ONTARIO COURT OF JUSTICE

CITATION: R. v. MacDonald, 2026 ONCJ 294 DATE: 2026 05 27 COURT FILE No.: Belleville 24-31300137

BETWEEN:

His Majesty the King

— AND —

Corey MacDonald

Before: Justice R.B. Horton Heard on: September 2, 2025, and March 27, 2026 Reasons for Judgment released on: May 27, 2026

Counsel: Ms. D. Evans, counsel for the Crown Mr. P. Dotsikas, for the Accused, Corey MacDonald

HORTON J.:

[1] Mr. MacDonald is charged with impaired operation and over 80 under the Criminal Code, and with having driven while under suspension and having failed to have a currently valid permit under the Highway Traffic Act, together with having had an open container of alcohol pursuant to the Liquor License And Control Act and possession of unmarked cigarettes under the Tobacco Tax Act.

[2] At the conclusion of evidence the Crown, properly, requested the Court direct a verdict of not guilty in relation to the impaired operation, driving with open container of alcohol and the possession of unmarked cigarettes.

[3] The Defence properly conceded that Mr. MacDonald had failed to have a currently valid permit, and a finding of guilt may be entered.

[4] As a result, this matter was adjourned for counsel’s submissions in regard to the over 80 count. It is conceded that a determination of the Charter issues raised within the Accused’s Application will be determinative of the trial.

Charter Application

[5] Mr. MacDonald alleges violations of his ss. 8, 9, 10(a) and 10(b) Charter rights in relation to being detained and ultimately arrested by the Ontario Provincial Police on April 3, 2024. After he was detained for possible infraction under the Highway Traffic Act, of driving while suspended, the investigation carried out by PC Peters involved consideration of the remainder of offences subject to these proceedings. Mr. MacDonalad alleges breaches of his Charter rights at each stage of his interaction with the agent and investigation.

[6] In his Notice of Application dated March 27, 2024, Mr. MacDonald seeks the following orders:

1. That the demand to provide a sample of his breath was unlawful, and subsequently should be excluded, pursuant to section 24(2).

2. Furthermore, the demand to provide a sample was unlawful because the approved screening device was not on scene when the officer formed the grounds for making the demand, as contravened by R. v. Breault, 2023, SCC 9. PC Peters appears to be wasting time, repeatedly asking the Applicant if he knew his licence was suspended, as he waits for another officer to arrive on scene with an ASD. This is an arbitrary detention resulting in the violation of the Applicant's rights as guaranteed by section 9 of the Charter.

3. Where the police make a demand for a sample of breath, this demand will constitute an unreasonable search and seizure contrary to section 8 of the Canadian Charter of Rights and Freedoms, unless the police are acting within the authority conferred by section 320.15(1) of the Criminal Code.

4. In addition, it is the position of the Applicant that he was not informed of the reasons for his detention as police waited for an ASD to arrive on scene. At one point on PC Peter’s body camera, the officer asks the Applicant to put his hands behind his back and proceeds to handcuff him just as the other officer arrives on scene. Only when the assisting officer arrives does the interaction with the Applicant change. PC Peters then proceeds to conduct the ASD test while the Applicant remains handcuffed. Section 10(a) of the Canadian Charter of Rights and Freedoms guarantees the right of anyone on arrest or detention to be informed promptly of the reasons for their detention, and therefore the Applicant’s section 10(a) rights were violated.

5. Finally, from the time PC Peters asks the Applicant if he had been drinking, to the time the ASD arrives on scene and the officer reads the ASD demand, there is a significant amount of a delay when the Applicant should have been provided with rights to counsel. As the test was not being done forthwith the Applicant should have been given the opportunity to speak with a lawyer. Therefore, the police breached the Applicant’s right to counsel as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms.

*It was conceded that the ASD was present with officer Peters and was not required to be brought by second officer. Defence submits in light of this the effect of the delay in not acting on the ASD until this time is equivalent to the failure to have the device present at time of demand as they equate to the same result, that of an unreasonable delay

[7] Mr. MacDonald also seeks an Order that the evidence of the results of breath samples obtained from him be excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms.

Charter Sections

[8] The Charter sections applicable in this case are ss. 8, 9, 10(a) and (b), which provide:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention:

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; [...]

Facts Overview

[9] The facts are largely not in dispute. Where there is disagreement between the parties on the facts it will be noted and discussed further below. The factual circumstances where observable through the officer’s body warn camera and in vehicle cameras.

[10] Cst. Peters was permitted, on consent, to utilize his notes for the purpose of refreshing his memory, the preconditions to this being satisfied. In cross-examination, Cst. Peters testified if he had specific concerns within an incident, he would address same within his notes, beyond relying on his body warn camera.

[11] In the early afternoon, while driving of April 3, 2024, Cst. Peters was on general patrol and observed a vehicle as it was travelling towards him. As the vehicle approached a “hit’ was received on the ALPR system in the car alerting that the registered owner of the vehicle was a suspended driver.

[12] Cst. Peters performed a U-turn and began to follow the suspect vehicle. He did not engage his emergency lights and acknowledges having lost sight of the vehicle for a brief period. Re-engaging with the vehicle as it turned, as described by the officer, “abruptly” onto Alexandria Court and entered a private laneway. Cst. Peters pulled in to this laneway at 1:21 PM.

[13] During cross-examination Cst. Peters testified that he began to follow the Accused’s vehicle, an act which lasted 15-20 seconds, to investigate whether the driver was suspended. He described the vehicle to be “appear to be actively evading” given he was in a marked cruiser, this being despite his emergency lights being activated and the short period in which he noted following the Accused’s vehicle.

[14] Cst. Peters testified that,

(a) He observed no traffic violation;

(b) That there was no increase in speed by the Accused;

(c) There was no weaving by the Accused; and

(d) That no POA or criminal acts observed.

[15] He merely felt that the Accused made an abrupt turn, but even with this belief he acknowledged that in the absence of the suspended driver hit he would have had no reason to pull the Accused over. Yet, and somewhat odd was Cst. Peters’ insistence that notwithstanding the lack of any infractions the Accused behavior, an abrupt turn, was consistent with flight.

[16] It was this, and Cst. Peter’s concern that the occupant of the vehicle may pose a safety risk that caused Cst. Peters to request an additional officer attend the scene, even prior to his exiting his police vehicle or interacting at all with the Accused.

[17] Cst. Peters reported that once he attended at the Accused’s vehicle, at 1:21 PM, the Accused was polite, coherent, showed no signs of confusion, gave him his identifying documents and was cooperative. Again, when questioned further he maintained that he had reasonable concerns of the Accused fleeing or being a safety risk; his only rationale being his past history and having been involved in an escalating situation.

[18] I find also the officer’s acknowledgment as to the Accused’s manner of driving being without issue having been conditional on fact he only observed the driving for seconds yet was able to formulate the Accused attempting to evade difficult to accept.

[19] Equally, I find the reasonable question by Defence of whether the Accused was aware of the officer’s presence given lights were not activated yet as opposed to reasonably acknowledging this as plausible Cst. Peters simply dismissed the questions legitimacy electing to simply state, “…he saw me”.

[20] Cst. Petere activated his emergency lights and pulled into the lane effectively blocking any exit.

[21] During cross-examination Cst. Peters confirmed he did not advise dispatch of any concern with regard to the Accused being a flight risk in requesting the second officer.

[22] Similarly, the Officer confirmed during cross-examination that within the confines of the General Report he filed of the incident there is no mention of any grounds to support a perceived flight risk. Additionally, no mention was included of this within the Officer’s notes.

[23] Within Cst. Peters notes he indicates that he was waiting for the second officer for other investigative decisions, not for safety. In being questioned on this entry he testified that he waited to take any steps, whether to advise the Accused of the possible prejudice he faced in terms of charges being investigated, to make ASD demand or to provide him with his rights to counsel because, “I didn’t want to get in a fight when radio not working, I wanted another officer”. I confess some confusion with respect to the utterance of the radio not working when very clearly the officer was in contact with dispatch as requested second officer and so forth. I was left to question the concern of the radio not functioning as clearly it allowed for this officer to communicate with dispatch and request the additional officer and make inquiries as to the nature of the Accused’s driving suspension.

[24] Cst. Peters notes the driver’s window to be down as he approached the vehicle, with a lone male who had at the ready his identification. Ther driver, identified as the Accused, advised he had pulled into the lane to urinate as he was some distance from other facilities. Cst. Peters within his testimony readily dismissed this reasoning by the Accused as he did not deem it sensical given the distance the Accused had pulled his vehicle into the laneway, in his view far further than would be required.

[25] In cross-examination Cst. Peters acknowledged that at no time while observing the Accused driving did, he have any grounds to stop the Accused for any offences. The abrupt turn itself was not even a concern but for Cst. Peters viewing this as unusual and suggestive of attempts to flee or evade police. Despite no evidence of the Accused even being aware of the officer given the absence of lights being activated.

[26] Cst. Peters inquires whether the Accused was aware of why he was stopped, and that he was a suspended driver. The Accused indicated to the officer he was not aware of having been suspended.

[27] While engaged in conversation, Cst. Peters detected what he described as a strong odour of alcohol coming from the Accused or his vehicle.

[28] The Accused is ordered to step out of his vehicle, at which time the odour of alcohol is determined to be from the Accused’s person. Cst. Peters inquires of whether the Accused had consumed any alcohol and is advised the prior evening. Cst. Peters suspected, given the strong odour of alcohol, the Accused’s manner of driving, specifically what the officer described as a abrupt turn into the laneway, that the Accused had consumed alcohol much more recently.

[29] Cst. Peters identified the Accused by his driver’s license, ownership and insurance provided by the Accused.

[30] Cst. Peters testified he took no additional steps while he waited for the second officer to attend.

[31] At this stage the Accused has been removed from his vehicle, Cst. Peters had the Accused’s identification, which was provided voluntarily by the Accused, and Cst. Peters’ vehicle has blocked any egress by the Accused.

[32] Additionally, Cst. Peters is aware that the Accused is a suspended driver, though unaware of the nature of the suspension and has a suspicion of alcohol consumption on the part of the Accused, due to the odour and buttressed to this is the abrupt turn by the Accused into the laneway and the unreasonableness of the Accused stated intention to stop to urinate before proceeding on.

[33] It is based on these conditions and factors Cst. Peters testifies he was concerned both with officer safety and flight risks. He testified that this was the concerns prompting him to request a second officer before he had even approached the Accused’s vehicle, together with a recent prior event that he was involved with that caused him concern for proceeding alone.

[34] On the arrival of the second officer, Cst. Ascott, Cst. Peters testified that he placed the Accused under investigative detention at 1:28 PM. And handcuffed him. He than read him the ASD demand at 1:28 PM to which the Accused acknowledged he understood. Cst. Peters testified that this demand was based upon,

(a) The odour of alcohol emanating from the Accused;

(b) The observed driving behavior of the Accused;

(c) His belief the Accused was evading police; and

(d) The Officer’s unexplained dismissal of the Accused’s reason for stopping where he did, to relieve himself, as not making sense to him.

[35] Cst. Peters acknowledged in cross-examination the placement of the Accused in investigative detention and handcuffed was not related to any action by the Accused, who is merely suspected of driving under suspension and to having odour of alcohol on breath.

[36] Cst. Peters confirmed that he had the ASD in his vehicle. He continued to maintain in his testimony that the demand was made as soon as possible. The test was administered at 1:29 PM. While the Accused was in handcuffs. The officer confirmed the demand was read and that the Accused acknowledged his understanding. PC Peters performed the initial test, ensured the device was properly functioning and the Accused provided his sample. A result of FAIL was reported.

[37] During robust cross-examination Cst. Peters acknowledged from the moment he attended at the Accused’s vehicle, even before a suspicion was formed of the Accused drinking, the Accused was at that point not free to leave. He again, rationalized not informing the Accused of his suspicion of drinking or that he would be arrested for the driving while suspended charge because if did tell him, “He may take off”. Though he was unable to explain the merit of this concern, particularly as he had the Accused’s identification, the Accused was polite and cooperative, and the police cruiser was positioned to prevent his leaving in his vehicle.

[38] The cross-examination proceeded with the following exchanges being significant:

Counsel: “Because of your experience you felt safer for you to not advise why detained or to take any step until later?”

Cst. Peters : “I told him why being stopped [suspension of license], my lights were on and in my opinion he is being detained. I did not feel I needed to tell him more”

Counsel: “Why not give rights to counsel?”

Cst Peters: “Because read off card and didn’t want to read rights to counsel by taking book out..”

Counsel: “Never say, hey while waiting, you have your phone….right to call counsel, he’s arrested from investigative detention before ASD demand?”

Cst. Peters: “Investigative detention for suspension”

Counsel: “He’s cuffed, two cops present, given no rights to counsel, why no rights to counsel”

Cst. Peters: “I didn’t want to read rights to counsel without getting ASD out of way”

Counsel: “ASD -why no rights?”

Cst. Peters: “Because not detained since if passes he is on his way and if fails would arrest and provide rights”

Counsel: “He’s not going anywhere if passed ASD because of suspension investigation”

Cst. Peters: “yes”

Counsel: “so give him rights to counsel”

Cst Peters: “In my opinion I didn’t want to delay ASD further once second officer present I places him in cuffs, read ASD and then rights to counsel regarding suspension and impaired”

[39] Similarly to the above questioning Cst. Peters was asked whether the Accused’s rights to be informed of right to counsel is secondary to his safety, he responded,

“I have authority. I did administer ASD and he failed. I arrested him”.

[40] Perhaps telling is the question asked of Cst. Peters,

“You would agree the fear for your safety lead to everything – call for other officer, not telling [the Accused] why detained, not rights to counsel and his being handcuffed to the rear?”

Cst Peters offered the following in response,

“I stopped him because of suspended driver hit. It is implied under detention until I tell you free to go. I immediately requested a second officer. Once other officer arrived I determined arrest. All within a very short time.”

[41] Similar issues arose as the Officer expanded on his concerns during his evidence, suggesting he was also concerned that by sharing with the Accused his beliefs and charges which were to follow would place him at risk of the Accused engaging in a fight with him.

[42] Cst. Peters’ concerns, he testified, are the result of his experience as an officer, at that time of less than one year, and his prior involvement with an Accused who was aggressive. It is solely this that dictated Cst. Peters’ reactions and decisions; his fear that something could happen. To further explain this, he offered,

“Given what I observed with his driving and entering into an impaired investigation I felt it reasonable to await the arrival of back up and when arrived I immediately took steps.”

[43] Cst. Ascott assisted at the scene and searched the Accused’s vehicle. It was alleged an open bottle of alcohol was located under the passenger seat which would be accessible to the driver. The bottle was described by Cst. Peters as being ½ full. In cross-examination the officer was unable to confirm the content of this bottle, whether water or vodka, and was unaware of whether that bottle was retained.

[44] Cst. Ascott had no other involvement.

[45] At 1:30 PM. The Accused was arrested for impaired operation, over 80, drive while under suspension

[46] At 1:32 PM the Accused was provided his rights to counsel and cautioned together with the formal breath demand.

[47] The Accused was than searched incident to arrest. The only items seized were cigarettes which were alleged to be unmarked and as such an offence in certain circumstances pursuant to the Tobacco Tax Act. Ultimately no evidence was received allowing this to be determined and the Crown properly withdrew this count.

[48] At 1:37 PM. Cst. Peters departed scene with the Accused and arrived at the Bancroft OPP Detachment at 1:45 PM..

[49] At 2:04 PM. the Accused was provided opportunity to speak with Duty Counsel. He ended this call at 2:08 PM.

[50] The Accused then attended with the Breath Technician and provided two suitable samples of his breath. Cst. Peters confirmed his readings having exceeded the .08 mg. of alcohol in 100 mL. of blood but was unable to confirm the actual readings.

[51] The Accused was released at 3:47 PM.

[52] Cst. Peters contended the Accused was placed under investigative detention as he was awaiting a response as to the nature of the suspension. What is readily apparent is that by virtue of the suspension the Accused was not going to be leaving in his vehicle and would be arrested, regardless of why he was suspended. Ultimately, this suspension was because of unpaid fines.

[53] The Crown filed on consent the certified copy of the Ministry of Transportation confirming the Accused’s suspension and that at the relevant period that this suspension remained in force. No proof of service or awareness by the Accused of the suspension was received, though the suspension was effective approximately 2.5 weeks before this incident, on April 15, 2024. The Crown would later confirm that service was deemed 7 days after service by mail on April 15th.

[54] As indicated the Court had the assistance of Cst. Peters body warn camera and in-car video to observe the interactions between Cst. Peters, the Accused and the second officer.

[55] Within the BWC the Accused is recorded denying any knowledge of his driving suspension, confirms his las drink was the night before and that he did not see the officer behind him as he was driving. He is heard to state,

“I promise you….no drinking”

“I didn’t realize you were behind me…”

“to my knowledge I am not suspended”

[56] Cst Ascott, as the second officer had little involvement. He searched car and found a purported bottle of vodka, noted it was a clear liquid but never verified if the bottle in fact contained alcohol.

[57] He testified in cross-examination regarding his belief given that Accused detained, in handcuffs, that this was unlike most individuals who must provide a roadside sample of breath. He confirmed that if was he, given handcuffed and detained that he knew rights to counsel should be provide, but offered that this circumstance was a little different with suspension and impaired investigation.

[58] Finally. Cst. Holbrook, the Qualified Breath Technician confirmed the breath sample of the Accused being each 160 mg. of alcohol per 100 mL. of blood taken at 2:17 PM. And 2:40 PM. A Certificate of Qualified Breath Technician was filed evidencing these results.

Analysis

[59] Defence Counsel set out in submissions three paths which they submit should lead to this Court finding that Mr. MacDonald’s rights under the Canadian Charter of Rights and Freedoms (“the Charter”) were violated. They submit,

(i) The detention of the Accused at the outset, for driving while suspended was a violation of the Accused’s s. 9 Charter rights; and/or,

(ii) The Accused being detained for the ASD demand, such demand not being made immediately, and therefore a presumptively unlawful detention contravening s. 9 of the Charter; and/or

(iii) The detention of the Accused being clear the moment he is handcuffed for suspicion of driving while suspended and then demanded to provide ASD sample while in handcuffs, leading to violations of the Accused’s Charter rights within s. 8, 9 and 10(a) and 10(b) rights.

Detention at the Outset

[60] The relevant Charter rights which Defence counsel relies upon in submitting that the Accused’s Charter rights were violated because of the Accused being detained for the drive while suspended issue are s. 9, 10(a) and (b).

[61] Cst. Peters very clearly had detained the Accused prior to his being handcuffed. This occurred the moment the officer advised the Accused he would have to wait. At the time of the Accused being asked to step out of the vehicle the officer indicated that he viewed the Accused being under investigative detention; he was not free to leave.

[62] Cst. Peters at this point is investigating the Accused for driving while suspended. At this time the officer clearly had grounds to arrest for this offence on the weight of the hit on the Accused license being suspended. Additionally, he had received the Accused’s identification and was aware the driver was one and same as the license suspension hit related to.

[63] While the officer attempted to suggest the delay in taking any further steps was the need to determine the nature of the suspension, whether a Provincial Offences suspension or Criminal Code. In fairness this does not matter in the duties Cst. Peters was required to perform. Very clearly Mr. MacDonald was not going anywhere, he would not be entitled to leave.

[64] From the testimony of Cst. Peters it was also clear tat the suspicion that the Accused had consumed alcohol was crystalized at the time the officer began to speak with the Accused, and the odour of alcohol was detected. Though this was not raised with the Accused who, at all times, was detained for the suspension of licence issue.

[65] Section 10 of the Charter confers certain specific rights that apply upon arrest or detention. “Detention” has been given a broad interpretation so that the rights conferred under this section of the Charter may be invoked in circumstances well short of incarceration. Section 10 provides,

10. Everyone has the right on arrest or detention:

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

[66] Under our system of criminal justice, police powers are limited by law, and before the police interfere with the liberty of an individual, they must be able to justify their actions. Arrest and detention represent a serious interference with personal liberty, and it is a basic right of an individual arrested or detained to know the reason. Requiring police to state promptly the reasons for arrest or detention permits the person arrested or detained to assess the situation and to decide upon an appropriate response, including submitting to the arrest, seeking counsel and responding to police questions.

[67] The right to be advised of the reasons arises upon arrest or detention and may arise again if the reasons for the arrest changes.

[68] In R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59, the Supreme Court indicated that a person, subject to investigative detention should be, “advised, in clear and simple language, of the reasons for the detention.” At the same time the Court expressed concerns that reading a person subject to brief investigative detention his or her rights to retain and instruct counsel under s. 10(b) “cannot be transformed into an excuse for prolonging, unduly and artificially” investigative detentions that should be brief. (Mann, paras 19 and 22).

[69] Similarly, the courts have been vigilant in upholding the right to counsel. The rationale for this is the need to ensure that everyone who is detained has the opportunity to learn immediately of his or her rights and obligations under the law. An individual in police custody is in a vulnerable situation and is entitled to the assistance of someone knowledgeable in the law and independent of the state. (See R. v. Bartle 1994 64 (SCC), [1994] 3 S.C.R. 173 at 191).

[70] The right to counsel is also triggered upon arrest or detention. The reference in s. 10(b) to the right to retain and instruct counsel without delay requires immediate provision of the right to counsel upon either arrest or detention. (See R. v. Suberu [2009] 3 SCC 33 at para 42.).

[71] At the same time, it is to be stated that a person, even a person being investigated by the police, will not be detained by a brief encounter with police that does not result in significant physical or psychological restraint in the sense that a reasonable person would conclude that he or she must comply with the police.

[72] Within Suberu the Court identified that,

“to simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.” (at para 100).

[73] Cst. Peters did not provide the Accused his right to be informed of the reason for his detention, though as he attempted to indicate within his testimony, it was mentioned in his initial interaction when he asked the Accused whether he was aware he was stopped due to his license being suspended. Cst Peters assumption, after the fact of detaining the Accused does not speak to the need for clear and simple language. It fails to directly address the fact that a charge in going to be laid.

[74] In relation to the lack of providing Mr. MacDonald his rights to counsel, there is no dispute that this right was not provided by the officer, despite the clear detention of the Accused, detention that was never going to be brief or of limited deprivation of liberty. The Accused had an absolute right to be provided this right.

[75] Cst. Peters testified that at the point of detention, that being the moment he advises the Accused he will have to wait, he had,

(a) the Accused exit his vehicle;

(b) noticed the odour of alcohol;

(c) requested a second officer before even approaching the Accused;

(d) felt that, if told the Accused what he was detaining him for, he would flee;

(e) felt that, if informed him of his right to counsel, the Accused would get worked up so wanted to wait on second officer.

[76] It is readily apparent from Cst. Peters’ testimony that he had pre-determined that the Accused may be a flight risk and/or a safety risk to him. This he rationalized was evident from his observing 15-20 seconds of driving by the Accused, his taking an abrupt right turn into the laneway and the hit on his driver’s licence suspension. But this must have some objective basis.

[77] Certainly, the Court heard that the officer had a prior occasion in which he had an unruly, even aggressive individual, that caused him personal difficulties. However, the evidence received in this trial revealed the Accused driving in a manner that did not run afoul of any regulations that would have led him to be stopped apart from the suspension. He readily provided his identification, was polite, answered questions, was not acting confused and was outside his car, a car that was blocked in by the police cruiser.

[78] There is no objective basis in which Cst. Peters was grounded in not providing the Accused his rights upon detention. Subjectively he may have had his own reasons but those cannot supersede the Accused’s rights. The lack of any concerns of flight or safety being conveyed to dispatch or being included within the officer’s notes raises further difficulty with accepting these explanations.

[79] In the event Cst. Peters felt he could not provide this Accused his rights, as required within s. 10 of the Charter, on what was quite apparently a routine stop with no apparent safety issues, absent a support officer, there is a need for this to be addressed administratively. Neither this Accused, or any member of the public, should be placed in the untenable position that the individual rights enshrined in the Charter are ignored.

[80] This court has some further concern as to the officer’s own understanding and appreciation of these rights. Within his testimony, Cst. Peters repeatedly expressed that he had, “reasons to wait”, noting further, “as soon as safe for me to read rights to counsel I do”, “I felt if I did tell him he could get worked up so wanted second officer” and “ did not feel needed to tell him” and that “I have authority” in relation to the Accused’s rights being secondary to his view of safety.

[81] I find that there was no rationale reason in which Cst. Peters conducted the detention of Mr. MacDonald absent providing him, without delay, his right to be informed of the reasons for detention clearly, and equally to provide him his right to retain and instruct counsel and to be informed of that right.

[82] As a result, the Accused s. 9 rights have also been infringed.

The Accused being detained for the ASD demand, such demand not being made immediately

[83] The evidence received very clearly establishes that the initial stop, and ultimate detention, of Mr. MacDonald was because of the “hit’ received on the ALPR system, in the police cruiser, alerting that the registered owner of the vehicle was a suspended driver.

[84] Cst. Peters, within his testimony, confirmed his suspicion of the Accused having consumed alcohol, based upon,

(i) his view the Accused made an abrupt turn in an attempt to evade him;

(ii) his determination that the Accused’s explanation of looking to stop and relieve himself didn’t make sense to him; and

(iii) the detection of the odour of alcohol from the Accused.

[85] While there was some initial uncertainty whether Cst. Peters had an ASD in his vehicle when he stopped the Accused, this issue was resolved affirmatively.

[86] Section 320.27 of the Criminal Code of Canada states,

Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

Mandatory alcohol screening

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

[87] The issue is that of the immediacy.

[88] To make a valid demand under s. 320.27, the police must be ready to administer a test “forthwith”.

[89] This is what establishes s. 320.27 as a reasonable limit as it is an inextricable link to the constitutional integrity. With this requirement, it addresses the issues of unreasonable search and seizure, arbitrary detention and infringements of the right to counsel. Absent this requirement s. 320.27 would be unable to withstand constitutional scrutiny.

[90] The forthwith window, being the time within which the police must require a driver to provide a breath sample, commences upon the officer developing a reasonable suspicion that the Accused has consumed alcohol. Equally, it does not start with the ASD demand. It begins when the officer develops a reasonable suspicion that the Accused has alcohol in his body.

[91] In R. v. Quansah 2012 ONCA 123, [2012] OJ No 779 at para 25, the Court of Appeal noted that it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. They highlight that this is the only interpretation that would be consistent with the limits on the s. 10(b) right to counsel contained in that section.

[92] Quansah offers guidance of what a court is to consider when evaluating the immediacy requirement. They set out 5 considerations:

(i) First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

(ii) Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

(iii) Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

(iv) Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

(v) Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(b) rights before requiring the sample. If so, the “forthwith” criterion is not met. (See Quansah, at para 45-49)

[93] If the forthwith or immediately requirement is not met then the demand will be invalid and the subsequent approved instrument demand, which relies upon the results of the ASD demand, will also be invalid unless there are other facts to support it.( See: R. v. MacMillan, [2013] O.J. No. 727, 2013 ONCA 109 at para. 42.)

[94] If the actions of the police fall outside the terms of s. 320.27 because the forthwith or immediately provision is not complied with, then there will be s. 8, s. 9 and potentially a s. 10(b) violations if rights to counsel are not given, and the issue will be whether the evidence obtained should be excluded under s. 24(2) of the Charter. (See: R. v. Vinoharan, [2009] O.J. No. 4037 (S.C.J.) at paras. 9-26.

[95] I find Cst. Peters had formed a reasonable suspicion that Mr. MacDonald had consumed alcohol at the point he required the Accused to exit his vehicle and detected the odour of alcohol. The prior “feelings” described by Cst. Peters of the Accused making an abrupt turn, fear of his evading the officer and his view of the Accused unreasonable explanation of why turned into the laneway only adding to his now crystalized suspicion. This is when the immediacy of forthwith window opened.

[96] With this stated, and considering the context of this case, the ASD being present with Cst. Peters, and the reasonable suspicion formed by the officer there is no identifiable reason why a prompt demand was not issued.

[97] I have found previously Cst. Peters’ testimony of fearing the Accused would flee or that there existed reasonable or rational concerns for officer safety given the behavior exhibited by Mr. MacDonald, as witnessed through the viewing of the body warn camera footage and the evidence of Cst. Peters himself was not reasonable from an objective perspective. I find there exited no objective reasons for Cst. Peters to have required a second officer prior to having the Accused perform this test.

[98] I further find that had such a delay been appropriate, certainly the ability to alert the Accused of his jeopardy and providing him both his s. 10(a) Charter rights to be informed of the reason for this detention and his s. 10(b) rights to counsel, should have been provided.

[99] I further find that the flexibility that may be tolerated at times where the Accused has not been detained between the formed suspicion and the time the demand is issued can not assist in remedying this delay. Mr. MacDonald was detained for the driving suspension.

[100] Given my findings I find that Cst. Peters, in having detained the Accused on the initial investigation and having formed his suspicions upon detecting the smell of alcohol, failed to issue the ASD demand immediately. In doing so the Accused was detained, though unknowingly as the officer again determined that Mr. MacDonald’s rights were subservient to his rights to decide how these steps would be satisfied and on what timeline. The results of this have violated the Accused rights pursuant to s. 8, 9 and 10(a) and (b) of the Charter.

The detention of the Accused being clear the moment he is handcuffed for suspicion of driving while suspended and then demanded to provide ASD sample while in handcuffs

[101] I have previously commented upon the concerns expressed by Cst. Peters. Fears that appear at least to be the result of a past altercation he experienced while carrying out his duties as a police officer. Cst. Peters had concluded that his actions were justified notwithstanding the negative impact they had upon Mr. MacDonald’s Charter rights.

[102] As I have also stated, objectively his fears of Mr. MacDonald being either a flight risk or a risk to his safety were without any merit. Mr. MacDonald did not take any actions or state anything that could be construed to support such a concern. To the contrary, he was polite, cooperative, calm and responsive to the officer. His driving was not of concern to any extent that would have warranted intervention, apart from the licence suspension alert. Finally, he followed Cst. Peters’ directions and provided him with his identification and other papers. Objectively, he was a model suspect, pulled over and following the cues of the officer.

[103] Cst. Peters’ however, in providing his testimony, was evasive, and unwilling to consider the Accused’s rights in accordance with the Charter ahead of his own irrational view. Cst. Peters was provided multiple opportunities to explain his thoughts or provide some supportable grounds in which to base his actions. He failed in this endeavor. Quite honestly, I would have had less concern of his actions had he simply acknowledged his conduct did not meet the required level of an officer engaged in community policing.

[104] Ultimately, Cst. Peters did not want to inform the Accused of why he was being detained, whether on the initial drive while suspended or the issue of consumption of alcohol because he was afraid of flight or safety for himself. He did however ask the Accused twice if he knew whether he was a suspended driver. A question that did not prompt the Accused to flee or become aggressive.

[105] Notwithstanding these facts, the officer elected to wait for a safe moment to tell Mr. MacDonald what his Charter rights were.

[106] If this was not enough to raise the issue of Charter violations, Mr. MacDonald is, upon the arrival of the second officer, handcuffed, purportedly for the driving while suspended. He is then immediately required to provide his breath sample without his right to counsel or caution and while handcuffed to the rear.

[107] The Crown submits that officer safety issues persisted until the arrival of the second officer, and that the rights were then provided. This I find is simply not an objectively reasonable action in these circumstances.

[108] What occurred matters. Mr. MacDonald was detained and handcuffed purportedly for driving while suspended. He had not been advised of his right to counsel or informed of the suspicion that he had been driving with alcohol in his body. He had not been provided “forthwith” the ASD demand. As was noted previously If the forthwith or immediacy requirement is not met then the demand will be invalid and the subsequent approved instrument demand, which relies upon the results of the ASD demand, will also be invalid unless there are other facts to support it.( See: R. v. MacMillan, [2013] O.J. No. 727, 2013 ONCA 109 at para. 42.)

[109] The forthwith window had closed. The result is not that the investigation closes as it relates to the impaired investigation, rather as a result the Accused’s requirement to comply with the demand ends. He is now entitled prior to any questioning, any testing or any other steps that would place him at risk of incriminating himself, to be advised of his rights pursuant to s. 10 of the Charter.

[110] Where an officer is not in a position to require that a breath sample be provided by the Accused before there is any reasonable opportunity to consult counsel, the officer’s demand is not in accordance with s. 320.27 of the Code. This usually arises in the situation that the officer does not have the ASD with him or her, and they are required to await the arrival of the instrument. This though can not be read to be the exhaustion of such circumstances.

[111] The forthwith requirement is what allows the provision of s. 320.27 to pass the constitutional mustard of suspending an individual’s right to counsel. In circumstances such as this case, with the delay attributable only to Cst. Peters being unwilling to proceed to administer the ASD upon his suspicion being formed until he was supported by another officer, he ought to have provided the Accused the right to counsel while waiting.

[112] In this case the Accused is handcuffed to the rear, made to provide his breath sample into the ASD and is still not advised of his rights to counsel. Cst. Peters testified that he did not take the time to read Mr. MacDonald his rights before administering the ASD because he,

“didn’t want to delay the ASD further. Once the second officer arrived, I placed [him] in cuffs, read the ASD demand, did test then provided rights to counsel”.

[113] The damage was already done.

[114] Turning to the specifics of the handcuffing, R. v. Virk [2018] O.J. No. 5651 provides an example of the relationship between the placement of handcuffs on a detained individual and the Charter rights that are to be enjoyed by all community members who are subject to state intervention. While subject to summary appeal on other grounds my colleague, Justice Stribopoulos, provided a useful overview of this issue:

53 Although a motorist subject to an approved screening device breath demand validly made (i.e. a demand prefaced on the required grounds) is subject to lawful detention, such a motorist is not under arrest. Therefore, unless a motorist's conduct gives rise to objectively grounded safety concerns, for example, where the person's behavior causes a police officer to reasonably believe they pose a threat to the police, the public, or themselves, it is not reasonably necessary to use handcuffs. Without reasonable justification, restraining a motorist in handcuffs during roadside breath testing is unlawful.

54 In this case, I suspect that the decision by police to handcuff Mr. Virk resulted from his strange behavior during the early stages of the investigation, when he failed to comply with basic instructions. Importantly, after the second police officer arrived at the scene, Mr. Virk became compliant. Mr. Virk's peculiar conduct at the outset of the encounter did not, without something more, make it reasonably necessary to handcuff him during police efforts to obtain a breath sample. Consequently, restraining Mr. Virk in handcuffs was unlawful.

55 Even though a motorist subject to a valid approved screening device breath demand is lawfully detained, the use of handcuffs escalates the incursion on that person's liberty. Handcuffs represent a far more coercive form of state compulsion. If handcuffs are applied, they transform a detention that its inception takes the form of psychological restraint (with legal compulsion) into an encounter marked by physical restraint. If the police unjustifiably handcuff a motorist subject to an approved screening device demand, the result is an unlawful interference with that person's liberty. In such circumstances, a detention that begins lawfully becomes unlawful.

56 The Supreme Court of Canada has made clear that a detention not authorized by law is arbitrary and violates section 9 of the Charter. Given this, courts in other cases have found that the unjustified handcuffing by police during efforts to obtain an approved screening device breath sample violates a motorist's section 9 Charter not to be arbitrarily detained. If police also secure a breath sample while a motorist is unjustifiably handcuffed, these same cases also hold that the manner of the resulting seizure (or search), due to the unlawful use of handcuffs, is unreasonable and violates section 8 of the Charter.

57 Given my finding regarding the use of handcuffs, in light of the governing legal principles, I conclude that Mr. Virk's right not to be arbitrarily detained, as guaranteed by section 9 of the Charter, was violated.

[115] In the case of Mr. MacDonald, he is a suspended driver, but his arrest is made without rights to counsel. He was already under arrest when the ASD demand was made.

[116] Having found that there were no objectively reasonable grounds for the concerns raised by Cst. Peters in the manner he conducted the detention of Mr. MacDonald, reasons that have been stated repeatedly here, I turn to the placement of handcuffs on the Accused. There were no objectively reasonable concerns to believe that Mr. MacDonald posed a threat to the officer, the public, or himself, it was not reasonably necessary to use handcuffs. Without reasonable justification, restraining a driver in handcuffs during roadside breath testing is unlawful.

[117] The fact he was arrested for suspended driving, given my findings above, does not give rise to validating the subsequent actions of the officers. It is inappropriate in these circumstances to find violations of the Accused’s Charter rights leading up to the handcuffing, but than to condone those violations to support the unnecessary handcuffing during a roadside demand.

[118] The result here is that the unjustified handcuffing by police, during efforts to obtain an approved screening device breath sample, violated Mr. MacDonald’s section 9 Charter right not to be arbitrarily detained. As the police obtained a breath sample while Mr. MacDonald was unjustifiably handcuffed, it follows that the manner of the resulting seizure (or search), due to the unlawful use of handcuffs, is unreasonable and violates section 8 of the Charter.

Charter Violations

[119] In summary I find that Mr. MacDonald’s Charter rights pursuant to s. 8, 9 10 (a) and (b) were violated. I now turn to whether, pursuant to s. 24(2) of the Charter the evidence of the results of the breath samples obtained from Mr. MacDonald ought to be excluded when applied.

[120] The law regarding exclusion of evidence pursuant to s. 24(2) of the Charter is both well known and worth repeating.

[121] Section 24(2) of the Charter states:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute

[122] The requirement that the evidence seized be "obtained in a manner" is not in issue in this case. It is accepted that the seizure of the evidence was connected to the Charter breaches.

[123] Following their decision in R. v. Grant, 2009 SCC 32, the Supreme Court of Canada in R. v. Le, 2019 SCC 34 discussed the governing principles and objectives of the application of s. 24(2). The Supreme Court of Canada stated:

Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. While the judicial inquiry under s. 24(2) is often rhetorically cast as asking whether evidence should be excluded, that is not the question to be decided. Rather, it is whether the administration of justice would be brought into disrepute by its admission (R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 42). If so, there is nothing left to decide about exclusion: our Charter directs that such evidence must be excluded, not to punish police or compensate for a rights infringement, but because it is necessary to do so to maintain the "integrity of, and public confidence in, the justice system" (Grant, at paras. 68-70).

Where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice -- such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. We endorse this Court's caution in Grant, at para. 68, that, while the exclusion of evidence "may provoke immediate criticism", our focus is on "the overall repute of the justice system, viewed in the long term" by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights.

[Emphasis in original.]

[124] At paras. 11-142 of Le, the Supreme Court of Canada referred to the three lines of inquiry from Grant at para. 71. They are:

a) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct);

b) the impact of the breach on the Charter- protected interests of the accused (admission may send the message that individual rights count for little); and

c) society's interest in the adjudication of the case on its merits.

[125] Each of the first two inquiries for each of the Charter breaches will be dealt with, together with the third inquiry, based on consideration of all of the relevant circumstances (Grant at para. 68), and then, finally, the balancing of the three inquiries. However, at the outset, as there are a number of Charter breaches arising in a short period of time, I will consider the recent Supreme Court of Canada case of R. v. Zacharias, 2023 SCC 30 regarding consequential or cascading breaches as opposed to cumulative or independent breaches.

[126] In Zacharias, the majority of the Supreme Court of Canada discussed the s. 24(2) analysis in situations where there are multiple Charter breaches that are all dependent on an initial breach, and therefore "cascading" or "consequential" to the initial breach. The Supreme Court of Canada stated that the initial breach, which involved the unlawful sniffer dog search, led to the unlawful search of the truck and the consequential unlawful subsequent arrests. The Supreme Court of Canada stated:

[47] Where an arrest is unlawful because it is premised on the results of a Charter breach, it is the initial Charter breach that renders what follows unlawful. In other words, there is a situation of linked or "cascading" Charter breaches (see Blanchard, at para. 34). We use the term "consequential" to refer to such breaches in the s. 24(2) analysis because the subsequent arrest is unlawful only as a consequence of the "initial" breach or breaches that preceded it.

[127] The Supreme Court of Canada noted that the cascading breaches scenario is distinct from situations where there are new, independent breaches, stating the following:

[48] Importantly, an arrest that can be viewed only as a consequential breach is distinct from state action that is characterized by additional or independent misconduct, including conduct that can be considered an "independent" breach of the Charter (such as failing to give an arbitrarily detained accused their right to counsel upon arrest). In those circumstances, the subsequent state action is of a different character and will be factored into the s. 24(2) analysis differently.

[Emphasis in original.]

[128] In Zacharias, the majority affirmed that a pattern of Charter breaches may cumulatively increase the seriousness of the Charter- infringing state conduct (see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 ("Grant 2009"), at para. 75). Some factual scenarios will raise the issue of cumulative breaches, which may evidence a pattern of misconduct, rather than consequential ones alone, which will likely not [citations omitted].

[129] The majority held that under the first line of inquiry in the s. 24(2) analysis, the seriousness of the state conduct, multiple Charter breaches that are consequential from an initial breach are "unlikely to significantly impact the overall seriousness of the Charter-infringing state conduct": Zacharias at para. 52. However, the Supreme Court of Canada added that if "the initial breach involves deliberate, intentional, or flagrant state misconduct", it may affect the overall seriousness of the Charter- infringing state conduct: Zacharias para. 54.

[130] In the present case with three Charter breaches having been determined with each being found to violate various specific Charter enshrined rights, it is necessary to differentiate independent from consequential breaches in the first inquiry of seriousness of the breach.

[131] In my view, the breaches determined are all independent except for the s. 9 Charter violation at the time Mr. MacDonald was detained on the suspended driver allegation which was consequential to the ss. 10(a) and 10(b) violations at this time. Similarly, the s. 8 and 9 violations resulting from the delayed ASD demand are themselves consequential to the ss. 10(a) and 10(b) violations that had occurred. I found a pattern of breaches that will be considered for their cumulative seriousness.

[132] The first series of breaches was found regarding the initial detention of the Accused for the drive while suspended investigation. The failure of the officer to have informed the Accused promptly of the reasons for his detention and to provide him his rights to counsel started the chain of cascading breaches. The s. 9 breach was, as noted, a consequential breach of the earlier s. 10 violations.

[133] Certainly the ss. 10(a) and 10(b) Charter violations are, serious breaches, and any arbitrary detention following these is of significant concern, as is the continuing interactions by the officer with the Accused.

[134] Next in the sequence of events is the unlawful detention of Mr. MacDonald as it relates to the ASD demand delay, the result of this creating further ss. 10(a) and 10(b) violations, and the consequential breaches of both s. 8 and s. 9.

[135] R. v. Mann and R. v. Taylor [2014] SCC 50 set out the requirements of ss. 10(a) and 10(b), respectively, and the reasons for the requirements. Specifically,

“Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence. (Taylor at para. 26).

[136] It is apparent Cst. Peters did not refrain from taking further steps when he commenced an impaired investigation without providing Mr. MacDonald his Charter rights pursuant to ss. 10(a) and 10(b), rights that became essential because of Cst. Peters delay in acting on his reasonable suspicions and engaging the ASD immediately. This is not a case of rapidly evolving circumstances but rather an investigation without urgency at this point, a fact made abundantly clear by Cst. Peters own inaction.

[137] It is not only that the Accused’s s. 10 rights were violated, which rendered the search and detention unlawful and serious, but also that the officer did not know the law or elected not to comply with the law.

[138] The final series of breaches of Mr. MacDonald’s Charter rights relates to his being handcuffed and the finding here that this was unjustified in the circumstances leading to the s. 8 and 9 breaches.

[139] The findings that there were not grounds to support the manner of detention, the handcuffing, were not reasonably and objectively justified, which is serious on its own, also involves an assessment of the reliability of Cst. Peters. As discussed, Cst. Peters stated grounds at trial were not contained in his notes nor were they conveyed to dispatch at any time. The Court’s task in assessing grounds for arrest or detention is made more complex without straight forward and consistent evidence from the arresting officer.

[140] Errors by an officer can of course be honest and inadvertent, particularly with inexperience, and often such breaches will be assessed at the less serious end of the scale of culpability, only weakly favouring the exclusion of evidence.

[141] In this case, the evidence illustrates the unreliability of the evidence of Cst. Peters as to his reasonable and objective beliefs at the time of the incident. In addition, the unreliable evidence, there is a series of Charter violations, not simply a single breach.

[142] The Supreme Court of Canada in R. v. Tim [2022] SCC 12 reiterated the direction that the Court is required to situate the Charter infringing conduct on a scale of culpability, with wilful or reckless disregard of Charter rights at the more serious end of the continuum. Courts should disassociate themselves from such conduct as it risks bringing the administration of justice into disrepute. Inadvertent, technical or minor Charter breaches of course fall at the opposite end of this spectrum.

[143] In the present case, the totality of circumstances places the conduct towards the more serious end of the scale. There were a series of independent Charter breaches cumulatively establishing a pattern of reckless or careless disregard for Mr. MacDonald’s Charter enshrined rights. However, these cannot be said to have been in good faith on the part of Cst. Peters, as they were, at a minimum, unreasonable errors and a clear ignorance of Charter standards.

[144] In regard then to the first line of inquiry, I find the number and seriousness of the breaches overall pulls strongly towards the exclusion of the subject evidence.

[145] The second line of inquiry focusses on the seriousness of the infringements from the Accused’s perspective. One must consider both the right which is infringed and the impact and manner of infringement. (See: Grant at para. 76-77).

[146] The two breaches of s. 9 were the unlawful detention of Mr. MacDonald who was detained without his s. 10 rights initially and then was handcuffed without necessity. The duration of his handcuffing continued unabated throughout the impaired investigation.

[147] In R. v. Le, the Supreme Court noted that the stakes are undeniably high when a court is presented with a s. 9 violation. (See: Le at para 153). The two s. 9 breaches had a serious impact upon the Accused.

[148] In relation to the s. 8 Charter violation, this being the seizure of breath samples, the Crown raises the issue of discoverability of this evidence. The submit that discoverability relates to all situations in which the police obtain evidence following a Charter breach which they could have obtained without the breach. (Grant, para 119).

[149] This arises, in their submission, because Cst. Peters had the grounds to arrest on the impaired, and it follows to have then required him to provide a breath sample and thereby obtain the evidence in question lawfully. They argue that as a result the seriousness of the s. 8 Charter violation, the seizure of his breath sample, was reduced.

[150] Respectfully, I do not accept the Crown’s submission. The search was unlawful, the issue of whether Mr. MacDonald had consumed alcohol was not discoverable absent the pattern of continued violations. The search had a serious impact on the Accused.

[151] The ss. 10(a) and (b) violations are each, independently, serious breaches as noted. In relation to impact, they may the Crown suggests, be found on the lower level as he was read these rights in a relatively short period. However, and with respect, Mr. MacDonald was kept in the dark while Cst. Peters was fully aware of what charges were forthcoming, and what he had detained him for. Given the time frame of the second officer attending and the intentional delay of Cst. Peters I find the impact on Mr. MacDonald to be significant. Certainly Mr. MacDonald had rights pursuant to the Charter but those rights, together with the underlying concerns they are to address, are rendered meaningless when they are simply ignored or deemed to be secondary to any other issues an arresting officer wants to prioritize.

[152] The impact on Mr. MacDonald of these Charter violations also pulls towards favouring the exclusion of the evidence.

[153] The final inquiry is that of the interest of Society in the adjudication of the case on its merits. The factors to be considered in this third line of inquiry include the reliability of the evidence and secondary, its importance to the Crown’s case. On this later factor of consideration, the Crown submits their case is “gutted” in the event this evidence is excluded.

[154] In this regard the Crown submits, appropriately, that the nature of impaired motorists on our roadways is of significance, labelling it a scourge on all communities. I agree, it is well documented the tragedies that result. This line of inquiry pulls strongly towards admissibility of the evidence.

[155] However, there is a vital balance between the interests of society to punish those that operate their vehicles while impaired and deterring this behavior and ensuring that the members of the public have assurance that their Charter rights are respected and not overridden during state involvement. The rights enshrined within the Charter of Rights and Freedoms must be more than words put to paper, only to be enlisted when deemed so by the state actors. These rights can not be viewed as subservient to an officer’s improper interpretation or wilful blindness.

[156] Therefore, despite the reliability of the evidence and the importance to the Crown’s case, Mr. MacDonald has discharged his onus of establishing, on a balance of probabilities, that the administration of justice would be brought into disrepute by its admission at trial.

[157] The Application pursuant to s. 24(2) of the Charter is granted and the evidence of the results of the breath samples obtained from Mr. MacDonald are excluded.

[158] As a result, the parties having confirmed at the outset of trial and again at the time submissions were received that the resolution of this Application would effectively be determinative of the trial proper. Accordingly, Mr. MacDonald will be found not guilty of the over 80 count pursuant to s. 320.14(1)(b).

[159] Previously a directed verdict of not guilty was requested and granted at the conclusion of the trial in relation to the impaired operation count, s. 320.14(1)(a), together with the provincial offences of driving with an open container of alcohol and possession of unmarked cigarettes.

[160] This leaves the provincial offence of driving while suspended, s. 53(1) HTA and failing to have a currently valid permit pursuant to s. 7(1)(a) HTA. Findings of guilt are conceded by Defence, and a finding of guilt shall issue.

Released: May 27, 2026

Signed: Justice R.B. Horton