ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANKIT SINGH
Before Justice P.T. O’Marra
Heard on April 1, 2, 2025 and March 30, 2026
Reasons for Judgment released on June 2, 2026
Counsel: M. Otim, counsel for the Crown R. Sidhu and M. Aulakh, counsel for the defendant Ankit Singh
Introduction
1Mr. Singh was tried on two charges arising from events alleged to have occurred in Brampton on May 27, 2023: impaired operation, contrary to s. 320.14(1)(a) of the Criminal Code, and having a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood within two hours, contrary to s. 320.14(1)(b). The Crown elected to proceed summarily. Mr. Singh pleaded not guilty.
2The trial proceeded on April 1 and April 2, 2025, and continued on March 30, 2026, for further evidence and submissions, including submissions on a Charter application directed primarily at the admissibility of Detective-Constable Amaro’s iPhone video and a screenshot from that video of Mr. Singh’s eyes.
3Count 2, the “over 80” count, was dismissed mid-trial. The remaining charge is impaired operation under s. 320.14(1)(a).
Procedural matters
4At the outset of the trial, the defence admitted date, time, jurisdiction, and identity. The proceeding was conducted in a blended fashion to accommodate the Charter issues raised.
Blended voir dire testimony
5Detective-Constable Bruno Amaro testified in chief that he worked an overnight shift ending at 5:00 a.m. on May 27, 2023, and was driving home in his personal vehicle when he observed a damaged Honda stopped on the northbound Highway 410 off-ramp to eastbound Mayfield Road in Brampton. He testified that he observed Mr. Singh seated in the driver’s seat and noticed the driver’s seatbelt hanging outside the closed driver’s side door. He made U-turns to return and check on the driver’s well-being. He testified that he observed Mr. Singh holding a phone to his ear, later observed Mr. Singh out of the vehicle examining the front-end damage, and then observed Mr. Singh pushing the vehicle in live traffic while attempting to direct its movement. He described the vehicle swerving partially into an adjacent lane and a grey BMW swerving to avoid it. He described Mr. Singh attempting to turn onto Ace Drive, losing control, and causing the vehicle to mount the boulevard and come to a stop.
6Detective-Constable Amaro testified that at approximately 5:31 a.m., he called dispatch. He testified that he began recording on his work phone while continuing to observe Mr. Singh and the movement of the vehicle. He testified that while recording, he observed Mr. Singh appear slightly unsteady as he moved to the driver’s side door while the vehicle was still in motion. He testified that Mr. Singh’s pants slid down and that Mr. Singh pulled them back up. He testified that after the vehicle came to a stop on the boulevard, he approached Mr. Singh. He testified that at close range he detected an odour of alcohol and observed that Mr. Singh’s eyes were red and watery. He testified that these observations, together with the manner in which the vehicle was being moved and directed, led him to conclude that Mr. Singh’s ability to operate was impaired by alcohol.
7Detective-Constable Amaro testified that he arrested Mr. Singh for operation while impaired, identified himself as a police officer, showed his badge and warrant card, and told Mr. Singh that he was not free to go. He testified that he did not provide a complete rights-to-counsel caution because he did not have his duty book, and he did not provide a breath demand because he did not have his pre-printed materials. He testified that he told Mr. Singh that he did not have to speak unless he wanted to, and that he could contact a lawyer. He testified that he attempted to provide a number for a free lawyer from memory and permitted Mr. Singh to use a phone while attempting to maintain distance for privacy and simultaneously maintain observation for safety.
8In cross-examination on April 2, 2025, Detective-Constable Amaro was questioned about his off-duty status, the timing and content of the arrest sequence, and the absence of a complete rights-to-counsel caution at arrest. He accepted that he did not provide the complete rights-to-counsel caution at the point of arrest because he did not have his duty book. He was also cross-examined about the counsel-access steps that followed, including his offer of a free lawyer number and the limitations of the information he provided.
9Detective-Constable Amaro’s iPhone recording was played in court during his evidence and was marked as Exhibit 1. The transcription of the recording was marked as Exhibit 2. The court also marked, as Exhibit 3, a screenshot of Mr. Singh’s eyes taken from Detective-Constable Amaro’s iPhone video (Exhibit 1). The screenshot was tendered in relation to the appearance of Mr. Singh’s eyes.
10Constable Amanpreet Kandola testified that she attended the scene after being dispatched to a possible impaired driver involving an off-duty officer who had a person in custody. Custody was transferred to her. She testified that she arrested Mr. Singh, applied and double-locked handcuffs, conducted a pat-down search for safety, placed Mr. Singh in her cruiser, and read him his rights to counsel and the caution from her yellow notes. She testified that Mr. Singh appeared flustered, that she observed slurred speech when advising him of the arrest, and that he was unsteady on his feet while walking to the cruiser, such that she had to warn him of the curb. She testified that she had to repeat questions because Mr. Singh did not understand and kept stating that this was the first time it had happened to him.
11Constable Kandola testified that her notes recorded Mr. Singh’s responses during the rights-to-counsel sequence, including that he said, “no lawyer” and that he stated he had “never been in this situation” and “right now, no”. She testified that after dealing with rights to counsel she asked investigative questions about alcohol consumption and food intake. She acknowledged that she asked those questions because they appeared on the impaired worksheet and she was following it. She testified that she did not read a breath demand at the roadside, that she forgot to do so in the moment, and that she read it later at the division, and she stated her understanding that the breath demand should be read right after the caution.
12In cross-examination, Constable Kandola confirmed that she had received training in arrest procedures and note-taking, and that she understood the importance of making notes as soon as possible to ensure accuracy. She confirmed that her notes for this incident were the yellow driving-offence notes and evidence, and that she regarded them as an accurate account.
13In cross-examination, the timing of the sequence was explored. The defence put to Constable Kandola that the arrest occurred at approximately 5:52 a.m. and that the rights-to-counsel sequence did not begin until 5:58 a.m. Constable Kandola confirmed that she recorded the rights-to-counsel time as 5:58 a.m. and testified that she did not have the arrest time recorded in her notes. She confirmed that, before reading rights to counsel, she arrested Mr. Singh, applied handcuffs, escorted him, searched him, and placed him in the cruiser.
14Constable Kandola was also cross-examined on the completion of the yellow notes. She confirmed that another officer, Officer Truscott, completed entries at the end of the yellow notes after custody was transferred because Constable Kandola’s shift was over. She testified that she could distinguish the other officer’s entries by differences in handwriting, and she indicated that those later entries included portions relating to counsel contact.
15Portions of Constable Kandola’s body-worn camera footage were played during her evidence, and the body-worn camera footage was marked as Exhibit 4. A booking video was marked as Exhibit 5.
Issues
16The issues to be determined are:
(1) Whether the breath samples were obtained in a manner that infringed s. 8 of the Charter, having regard to the 49-minute delay of the breath demand.
(2) Whether Mr. Singh has established a breach (or breaches) of s. 10(b) of the Charter.
(3) And, if a Charter breach is (or breaches are) established and sufficiently connected to the impugned evidence, whether Detective-Constable Amaro’s iPhone video recording and the screenshot from that recording, and any other evidence obtained after arrest, should be excluded under s. 24(2).
(4) On the remaining admissible evidence, whether the Crown has proved beyond a reasonable doubt that Mr. Singh operated, or at least had care and control of, a conveyance, and that his ability to operate was impaired to any degree by alcohol.
Positions of the parties
17The defence submitted that Detective-Constable Amaro breached s. 10(b) by failing to fulfil the informational component of the right to counsel at arrest and that Constable Kandola breached the implementation component by proceeding with investigative questioning during detention without holding off pending meaningful counsel access. The defence sought exclusion under s. 24(2) of the iPhone video and the evidence flowing from the breaches. The defence further submitted that, absent that evidence, the Crown could not prove impairment beyond a reasonable doubt.
18The Crown opposed exclusion. The Crown emphasized the unusual off-duty context, the public safety setting, and the reliability and probative value of the iPhone video. The Crown submitted that society’s interest in adjudication on the merits strongly favoured admission.
Findings of facts
19Because of the Charter rulings below, I set out only those factual findings derived from admissible evidence.
20In the early morning of May 27, 2023, Detective-Constable Amaro observed a heavily damaged Honda stopped on a public roadway. He observed Mr. Singh seated in the driver’s seat. He then observed Mr. Singh outside the vehicle pushing it in live traffic while attempting to direct its movement, slightly unsteady as he moved to the driver’s side door while the vehicle was still in motion. His pants fell down. The vehicle swerved partially into an adjacent lane, requiring another driver to take evasive action. Mr. Singh then attempted to turn the vehicle onto Ace Drive. During that attempted turn, he lost control, and the vehicle mounted the boulevard and came to a stop.
21Before Detective-Constable Amaro uttered the words, “You’re under arrest,” he had already approached Mr. Singh at close range and observed an odour of alcohol and eyes that were red and watery, and it is only those pre-arrest observations that I rely upon in the impairment analysis.
Charter findings of fact
22Detective-Constable Amaro arrested Mr. Singh at the roadside and asserted his authority as a police officer over him. At the time of arrest, Detective-Constable Amaro did not provide Mr. Singh with the complete rights-to-counsel caution because he did not have his duty book. He did not provide the full information necessary to enable a meaningful, informed choice and to facilitate access to immediate legal advice.
23During the post-arrest roadside detention, Detective-Constable Amaro continued to engage with Mr. Singh and continued recording. He offered a free lawyer number but did not use the phrase "duty counsel" and did not explain what the number was for beyond describing it as a free lawyer.
24When Constable Kandola assumed custody, she read rights-to-counsel from her notes and recorded Mr. Singh’s responses. The evidence establishes a gap of several minutes between the arrest and the commencement of the rights-to-counsel reading, during which Mr. Singh was handcuffed, escorted, searched, and placed in the cruiser. During that period, no complete informational compliance with the right-to-counsel had occurred.
25After the rights-to-counsel reading began, Constable Kandola asked investigative questions relating to alcohol consumption and food intake during the roadside detention. This occurred before any confirmed consultation with counsel and without a clear and informed waiver established on the record.
26Constable Kandola’s cross-examination also established that the yellow notes were intended as an accurate record made as soon as possible, and that Officer Truscott completed the end portion of the yellow notes after custody was transferred when Constable Kandola’s shift ended, including entries relating to counsel contact.
27Constable Kandola also acknowledged that the breath demand was not read at the roadside and was read later. In submissions, the defence characterized the timing as 49 minutes after the time of arrest. On the evidence before me, I find that the breath demand was delayed and was not made contemporaneously with the transfer of custody to Constable Kandola.
Charter analysis
Section 8
28Section 8 of the Charter guarantees that “everyone has the right to be secure against unreasonable search or seizure.” In the impaired driving context, the taking of breath samples is treated as a seizure of bodily substances and therefore engages s. 8.
29The evidentiary foundation for the s. 8 argument is that the breath demand was not made at the roadside and was instead made 49 minutes after Mr. Singh was arrested.
30A seizure of breath samples is a warrantless state intrusion. The Crown, therefore, bears the onus of establishing that the seizure was reasonable. A seizure will be reasonable where it is authorized by law, the law itself is reasonable, and the manner of the seizure is reasonable.
31In the impaired driving context, section 320.28(1) authorizes a peace officer, on the requisite reasonable grounds, to make a demand “as soon as practicable” and to require the person to provide samples “as soon as practicable”. The defence position is that a delay in making the demand necessarily renders the ensuing seizure unreasonable.
32In R. v. Guenter, 2016 ONCA 572, the Ontario Court of Appeal addressed a s. 8 challenge where the arresting officer did not make the demand at the scene and later read a demand at the station, and the qualified technician then made the demand after reviewing the grounds. The Court approached the question as one of authorization by law, emphasizing that the Crown bears the onus of justifying the warrantless seizure, and that the statutory requirement focuses on whether a peace officer made a valid demand with reasonable grounds and as soon as practicable. The Court held that, on the record, there was no dispute that the technician made the demand immediately following formation of reasonable grounds, and therefore the demand was made “as soon as practicable”, with the result that there was no breach of section 8.
33The same conclusion is supported by the Supreme Court’s interpretation of the temporal structure of the breath demand provisions. In R. v. Deruelle, the Court explained that the formation of the belief and the resulting demand need not be concurrent, and that a demand made pursuant to the belief must follow “forthwith or as soon as practicable”, even if it falls outside a rigid temporal marker. Although Deruelle addressed the former breath demand provision, its reasoning confirms that the operative statutory requirement is practicality in the circumstances, not a stopwatch measure divorced from context.
34In R. v. Tadesse, 2022 ONSC 5128, the Summary Conviction Appeal Court rejected a section 8 breach founded on the mere fact of a delayed demand. There, the officer forgot to give the demand at the scene. The omission was corrected later at the station, and the summary conviction appeal was dismissed. The Court reviewed Guenter and the statutory structure and upheld the trial judge’s rejection of the Charter challenges advanced in that case, including those tied to the delayed demand.
35Applying these principles, the fact that the breath demand was not read contemporaneously with the detention and arrest, but was read later, even accepting the defence characterization of the elapsed time, does not, by itself, establish that the seizure of breath samples was unlawful or unreasonable. The focus is on whether the statutory authority was ultimately engaged on its terms, including whether the demand was made as soon as practicable in the circumstances. On this record, the delay evidence does not establish an unreasonable seizure. I therefore find that s. 8 of the Charter was not breached.
Section 10(b)
36Section 10(b) guarantees that on arrest or detention, a person has the right to retain and instruct counsel and to be informed of that right. The right includes an informational component and an implementation component. The informational component requires that the detainee be provided with sufficient information to make a meaningful choice and to access immediate legal advice, including duty counsel where applicable: R. v. Bartle, [1994] 3 S.C.R. 173. The implementation component includes the hold-off obligation requiring police to refrain from eliciting evidence until the detainee has had a reasonable opportunity to consult counsel, absent waiver or urgent circumstances: R. v. Manninen, [1987] 1 S.C.R. 1233.
Off-duty status and Charter obligations
37Detective-Constable Amaro was off duty when he first became involved. Off-duty status, however, does not determine whether the Charter applies. The Charter is engaged by the exercise of state authority. The question is functional and fact-specific. It turns on whether, in the circumstances, the officer remained in a private-citizen posture or exercised police authority, resulting in a detention or arrest.
38The authorities show that an off-duty officer may, depending on the circumstances, be treated as acting in the capacity of a private citizen. In R. v. Moir, 2010 MBQB 272, the Appeal Court treated the off-duty officer as being in a position similar to any civilian reporting an impaired driver and held that the brief interval before on-duty police arrived did not support a finding of a Charter breach by the off-duty officer in those circumstances. In R. v. Kelln, 2015 SKPC 9, the Court treated the off-duty officer’s interaction as civilian in nature, where his words and actions signalled that on-duty police were to be called and formal police action was being deferred. In R. v. Webb, 2017 SKPC 20, the Court treated the off-duty officer as acting as a private citizen where he did not identify himself as police and relied on citizen arrest powers, concluding that, in that posture, the off-duty officer was not subject to the police duties in sections 10(a) and 10(b) at that stage.
39Those cases also make clear that the analysis changes when the off-duty officer invokes and exercises police authority. An off-duty officer may, by choice and conduct, put himself on duty for Charter purposes. When an officer identifies himself as a police officer and asserts control over a person, the encounter is no longer properly characterized as a private-citizen interaction. It becomes the exercise of state authority. Detention for Charter purposes includes psychological detention, assessed from the perspective of a reasonable person in the circumstances, and it arises where a reasonable person would conclude that there is no real choice but to comply: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Once detention arises, the duty to advise of the right to counsel without delay is immediate, subject only to genuine safety concerns or other justified limits: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. The informational component must be meaningful. Where duty counsel exists and is available, the informational component includes advising of the existence and availability of that immediate assistance and how it may be accessed, so that the detainee can make an informed choice at the front end of the detention: R. v. Bartle, [1994] 3 S.C.R. 173. If the right is invoked, the implementation component includes the hold-off requirement. Absent waiver or urgent circumstances, police must provide a reasonable opportunity to consult counsel and must refrain from questioning or otherwise attempting to elicit evidence until that opportunity has been provided: R. v. Manninen, [1987] 1 S.C.R. 1233.
40On the facts of this case, Detective-Constable Amaro did not remain in a private-citizen capacity. He contacted 911, identified himself as a police officer, and then dealt with Mr. Singh on that footing. That factual matrix distinguishes this case from circumstances where an off-duty officer confines his actions to observing, reporting, and waiting for on-duty police to assume custody. By invoking police authority and asserting control, Detective-Constable Amaro acted as a state authority. From that point, the Charter applied to the detention and arrest in the ordinary way, including the immediate obligation to provide meaningful section 10(b) information and to respect the implementation and hold off duties if the right was invoked.
The breaches and the impugned evidence
41The impugned evidence relates to section 10(b) breaches by two different officers at two different stages of the same detention. The first breach is attributable to Detective-Constable Amaro and concerns the informational component at the time of arrest. Once he chose to act as police and arrest Mr. Singh, the Charter required meaningful advice enabling an informed choice about whether to seek legal advice and how to access immediate legal assistance, including duty counsel where applicable: Bartle, pp. 213 to 215. On my findings, the caution delivered by Detective-Constable Amaro was incomplete in a manner that impaired the practical availability of the right at the front end of the detention.
42The second breach is attributable to Constable Kandola and concerns the implementation component. Where a detainee has not had a reasonable opportunity to consult counsel, the police must hold off from questioning or otherwise attempting to elicit evidence, absent a clear waiver or urgent circumstances: Manninen, at paras. 21 to 24. Based on my findings, Constable Kandola asked questions directed at the investigation while Mr. Singh remained in detention, before there was a confirmed consultation with counsel or a clear waiver. That conduct breached the hold off obligation.
43The iPhone recording, the screenshot derived from it, and the statements obtained through roadside questioning were all obtained during the same post-arrest detention, in which the informational deficiency had not been meaningfully corrected, and the hold-off obligation was not respected. The necessary “obtained in a manner” connection is therefore established by the temporal and contextual nexus between the Charter infringing course of conduct and the evidence, rather than by strict causation: R. v. Strachan, [1988] 2 S.C.R. 980 at para. 40.
Section 24(2)
44Section 24(2) of the Charter is engaged once the court is satisfied that the evidence was obtained in a manner that infringed or denied a Charter right.
45In this case, the impugned evidence is bound up with section 10(b) breaches attributable to both Detective-Constable Amaro and Constable Kandola. Detective-Constable Amaro’s breach is an informational breach at the time of arrest. The informational component requires meaningful advice enabling an informed choice and access to immediate legal advice, including duty counsel where applicable: Bartle, pp. 213 to 215. Constable Kandola’s breach is an implementation breach. Once Mr. Singh was in police custody and had not had a reasonable opportunity to consult counsel, the police were required to refrain from eliciting evidence unless there was a waiver or urgency: Manninen, at paras. 21 to 24.
46The iPhone recording, the screenshot derived from it, and the evidence derived from investigative questioning during the roadside detention were all created or obtained during the same post-arrest detention in which the informational deficiency persisted and the hold-off obligation was not respected. Detective-Constable Amaro initiated the detention as a police officer but did not provide a complete and meaningful right to counsel caution. Constable Kandola then assumed control of the detention while that informational deficiency remained unremedied and proceeded with investigative steps that elicited evidence. The “obtained in a manner” threshold is therefore met on a temporal and contextual basis, and admissibility falls to the balancing approach in R. v. Grant, at paras. 67 to 86; Strachan at paras. 46 and 47.
The governing approach
47The inquiry under section 24(2) is whether admission of the evidence would bring the administration of justice into disrepute, assessed from the perspective of a reasonable person informed of all the relevant circumstances and concerned with long-term confidence in the justice system. The court considers three lines of inquiry: the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in adjudication on the merits: Grant at paras. 67 to 86.
First line of inquiry: seriousness of the Charter-infringing state conduct
48The first inquiry asks whether the conduct would be viewed as a marked departure from Charter standards. The purpose is not punishment. It is to determine whether the court must dissociate itself from the evidence to preserve long-term confidence in the justice system: Grant at paras. 72 to 75.
49On this record, Detective-Constable Amaro's informational breach is not a minor or technical lapse. The right to counsel is front-loaded. Its informational component is what gives practical meaning to the right at the first moment of detention. Detective-Constable Amaro’s explanation that he did not have his duty book may explain why the caution was incomplete, but it does not lessen the constitutional standard once he chose to arrest and act as a police officer. If an officer elects to exercise police authority, the officer assumes the corresponding Charter obligations. The omission was foreseeable in the context of an off-duty arrest that the officer nevertheless chose to make: Bartle at pp. 213 to 215; Grant at paras. 72 to 75.
50Constable Kandola’s conduct adds a further serious feature. Where a detainee has not had a reasonable opportunity to consult counsel, the police must refrain from eliciting evidence, absent a waiver or urgent circumstances: Manninen at paras. 21 to 24. Here, the investigative process continued during roadside detention while the informational deficiency remained uncorrected, without a clear waiver or confirmed consultation. The breach is not confined to the initial caution. It includes the continuation of investigative steps during detention in circumstances that section 10(b) was designed to regulate: Manninen at paras. 23 and 24.
51Good faith remains relevant. The Grant framework treats good faith as a factor that may suggest inadvertence rather than disregard: Grant at para. 75. I do not proceed on a finding of bad faith against either officer. Nonetheless, the informational deficiency at arrest and the continuation of investigative questioning during detention are departures from well-settled Charter requirements. This line of inquiry favours exclusion: Grant at paras. 72 to 75.
Second line of inquiry: impact of the breach on the Charter-protected interests of the accused
52The second inquiry examines the effect of the breaches on the accused’s Charter-protected interests. In the section 10(b) context, those interests include the ability to obtain legal advice at a time of vulnerability, to understand one's rights and obligations, and to make informed decisions about participation in the investigative process: Grant at paras. 76 and 77.
53The informational breach materially undermined those interests. Where the detainee is given incomplete or functionally unhelpful information about access to counsel, the detainee’s capacity to make a meaningful choice is compromised: Bartle at pp. 213 to 215. That impact did not end at the moment of arrest. It persisted through the roadside detention because the informational deficiency was not effectively corrected before evidence was elicited.
54The implementation breach compounds the impact. Manninen makes clear that section 10(b) is not satisfied by a bare recitation of rights. The detainee must be given a reasonable opportunity to consult counsel before the police attempt to elicit evidence, absent waiver or urgency: Manninen at paras. 21 to 24. Investigative questions about alcohol consumption and related matters during roadside detention are directed to central issues in an impaired investigation. When those questions are asked before confirmed consultation and without a clear waiver, the protective purpose of section 10(b) is undermined in a direct and practical way: Manninen at paras. 23 and 24; Grant at paras. 76 and 77.
55The fact that the iPhone recording was made during this period reinforces the impact. The concern is not merely that it is a recording. It is that it captures and preserves an evidentiary product of a detention that proceeded without meaningful informational compliance and without the required hold off. The impact on Charter-protected interests is therefore concrete and tied to the creation and preservation of evidence during a period when counsel access was not meaningfully secured: Grant at paras. 76 to 78.
Third line of inquiry: society’s interest in adjudication on the merits
56The third inquiry asks whether exclusion would exact too high a cost on the trial’s truth-seeking function, having regard to the reliability and importance of the evidence in the particular prosecution: Grant at paras. 79 to 83.
57The iPhone recording is, on its face, reliable as a contemporaneous record, and it would ordinarily be significant. Society has a legitimate interest in having allegations adjudicated on their merits. However, the third factor is not a trump. It must be weighed against the first two factors, and the analysis remains anchored in long-term repute rather than short-term fact-finding advantage: Grant at paras. 67 to 70 and 79 to 85.
58Where the state conduct involves serious departures from section 10(b) at the most consequential stage, admission risks signaling that meaningful right to counsel compliance is optional, provided the evidence is useful or reliable. Bartle and Manninen treat meaningful information and the hold off obligation as central to the right’s purpose. In such circumstances, exclusion may be necessary to preserve the long-term integrity of the justice system even where the evidence is probative: Grant at paras. 68 to 70; Bartle at pp. 213 to 215; Manninen at paras. 21 to 24.
Balancing and conclusion on exclusion
59Balancing the three lines of inquiry, the first and second factors favour exclusion with substantial weight. The breaches concern foundational protections. They were not momentary technical errors. They affected Mr. Singh’s ability to access legal advice and allowed the investigative process to proceed during detention without the constitutional hold off required by section 10(b): Grant at paras. 72 to 78.
60Although society’s interest in adjudication on the merits is significant, it does not outweigh the need for the court to dissociate itself from evidence obtained in the course of serious infringements of the right to counsel. The long-term reputation of the administration of justice would be harmed by admitting evidence so closely connected to the informational deficiency at arrest and the subsequent hold off breach during detention. Accordingly, admission would bring the administration of justice into disrepute, and exclusion is warranted under section 24(2): Grant at paras. 84 to 86.
Operation, care and control
61I now turn to the merits of the offence.
62On the remaining admissible evidence, I am satisfied beyond a reasonable doubt that Mr. Singh operated the conveyance. He was observed seated in the driver’s seat and then intentionally moved and directed the vehicle in live traffic, culminating in the vehicle mounting the boulevard.
63In the alternative, and in any event, I am satisfied beyond a reasonable doubt that Mr. Singh had care and control of the conveyance. The inquiry concerns intentional conduct involving a motor vehicle in circumstances that create a realistic risk of danger to persons or property: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157.
64The risk here was not theoretical. The vehicle was moved in live traffic; it swerved partially into an adjacent lane, requiring evasive action, and ultimately mounted the boulevard. Whether described as operation or as care and control, the evidence proves control over a conveyance in circumstances of realistic danger.
Impairment by alcohol
65The impairment threshold under s. 320.14(1)(a) is “to any degree.” A marked departure from normal conduct is not required. The offence is made out if the evidence establishes any degree of impairment, ranging from slight to great, of the ability to operate by alcohol: R. v. Stellato, [1994] 2 S.C.R. 478.
66The conviction is grounded only in Detective-Constable Amaro’s observations made before the point of arrest, together with the surrounding admissible circumstantial evidence.
67Before the arrest, the evidence establishes unsafe control of a conveyance in live traffic. Mr. Singh pushed the vehicle along the roadway. It swerved partially into an adjacent lane, requiring evasive action by another vehicle, and he lost control during an attempted turn, causing the vehicle to mount the boulevard. This conduct reflects compromised judgment and coordination in a safety-sensitive task.
68He was slightly unsteady on his feet, and his pants were falling down.
69Before placing Mr. Singh under arrest, Detective-Constable Amaro approached Mr. Singh at close range and observed an odour of alcohol and eyes that were red and watery.
70Those pre-arrest indicia, together with the unsafe operation conduct, support the inference that alcohol impaired Mr. Singh’s ability to operate.
71Alternative explanations, such as exertion or collision effects, do not reasonably account for the totality of the unsafe conduct in live traffic, and they do not displace the inference that alcohol contributed to the impairment of the ability to operate. Considering the admissible evidence as a whole, I am satisfied beyond a reasonable doubt that alcohol impaired Mr. Singh’s ability to operate to at least some degree.
Conclusion
72Mr. Singh is found guilty of impaired operation contrary to s. 320.14(1)(a) of the Criminal Code. In the alternative, I also find that he had care and control of the conveyance. Count 2 was dismissed mid-trial.
Released: June 2, 2026
Signed: Justice P.T. O’Marra