R. v. Singh, 2026 ONCJ 396
Toronto Region
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
HARPREET SINGH
Before Justice Michael Waby
Reasons for Judgment released on June 30th, 2026
Ms. Espinosa.............................................................................................................. for the Crown
Mr. Verma............................................................................................................... for the Accused
1Harpreet Singh is charged with Impaired Operation of a motor vehicle and with operating a motor vehicle with a blood alcohol level in excess of 80 mg. of alcohol in 100 ml. of blood. The trial proceeded over a number of different dates. Crown proceeded summarily and Mr. Singh pleaded not guilty.
2Date, time, jurisdiction and identity are not in issue in this case.
[3] Defence counsel filed various Charter applications and seeks the exclusion of evidence under s 24(2) of the Charter of Rights and Freedoms based upon alleged breaches of Mr. Singh’s sections 8, 9, 10 (a) and 10(b) Charter rights.
4On consent, at trial a blended voir dire was conducted with the relevant and admissible evidence to be applied to the trial proper. Mr. Singh was assisted at his trial by accredited Punjabi interpreters.
5The three central issues in this case are:
i. Has the Crown met the evidentiary threshold to establish that Mr. Singh was guilty of Impaired Operation
ii. Were there reasonable and probable grounds for the officers to arrest Mr. Singh for Impaired Operation of a motor vehicle
iii. Did special circumstances arise in this case such that a language barrier existed which amounted to a breach of Mr. Singh’s s 10(a) and s 10(b) Charter rights.
Overview
6The case for the Crown is advanced through the viva voce testimony of Jessica Rios and her partner, Mahde Attawan, the evidence of several police officers and certain portions of video footage from the in-car video, body worn camera footage and qualified breath technician at the division and other exhibits, including the Intoxilyzer test record. The defence called no evidence and Mr. Singh did not testify on the voir dire.
7In summary, Ms. Rios was driving home eastbound on Highway 401 near Victoria Park on January 5, 2023 at about 7:00 p.m. in the evening. After coming to a stop in heavy traffic, her vehicle was struck from behind by a vehicle with 4 male occupants in it. This vehicle, a black Chrysler, then entered the off ramp and continued to drive for some distance and was followed by Ms. Rios.
8When the vehicle eventually stopped adjacent to a townhouse complex, Ms Rios pulled up next to it and she and the four males all exited their respective vehicles and began exchanging information. One of the males told Ms. Rios the accident was her fault and that she would have to pay for the damage caused. She smelled alcohol on his breath and challenged him about this. Upon doing so, two of the males walked away from the scene, one walked away and entered a nearby house and the Accused got back into the Chrysler and drove off.
9By this stage, Ms. Rios had called her partner Mr. Attawan and advised him of what had happened and of her location. He arrived in his vehicle in time to follow the Accused who was driving away. Ms. Rios, in turn, followed her partner in her car and they all briefly drove around the roads of the apartment complex. The accused subsequently stopped and exited his vehicle. So too did Mr. Attawan and Ms. Rios.
10Ms. Rios testified that the Accused began begging and pleading with them not to call the police and offered them money and even offered to let them beat him (sic) if they wished as long as they did not call the police.
11Police were called by the couple and arrived on scene where they spoke with the parties and then subsequently arrested an increasingly distraught and emotional Mr. Singh.
12An Agreed Statement of Facts was entered as an exhibit in which it is acknowledged that Mr. Singh was the registered owner of the black Chrysler vehicle and also that that none of the officers observed the Accused consuming alcohol during their investigation and nor did they determine to whom various bottles of alcohol located in the vehicle belonged.
13For the avoidance of doubt, since defence counsel had also suggested that identification may be an issue in this trial, I am satisfied beyond a reasonable doubt on the totality of the evidence before me that Mr. Singh, was the driver of the motor vehicle immediately prior to being arrested by police.
14I found the evidence of Ms. Rios and Mr. Attawan to be credible and trustworthy and reliable. Their evidence was also consistent in all materials respects with the evidence each gave in term of their various observations of the person driving the motor vehicle after it had stopped and being driven away from the townhouse complex. Their evidence was not meaningfully undermined in cross examination
15I do not know, and nor does Ms. Rios claim to know, whether the Accused was driving his vehicle at the time it struck her vehicle on the 401. However, for the purpose of the charges before the court and my analysis that it academic. I find that there is no doubt, that Mr. Singh spoke to Ms. Rios when he finally exited his motor vehicle, that she noted an odour of an alcoholic beverage on his breath, and that after she challenged him about this he drove away from the scene in his vehicle.
16I also accept the evidence of Ms. Rios and Mr. Attawan that the accused drove around Mr. Attawan’s vehicle as it arrived on scene and then Mr. Attawan then pursued Mr. Singh before eventually blocking in the Accused and his vehicle.
17I also note that Ms. Rios identified the accused from the driving licence he provided her with when they spoke and that both she and her partner identified the Accused in court as the person whom they pursued while driving his vehicle after he had spoken with Ms. Rios and before police arrived and arrested him.
18I do not accept the extensive, lengthy and increasingly emotional denials by Mr. Singh on the body-worn camera of the officers that he has not been driving his motor vehicle that night and had only been located in the rear passenger seat and that his cousin was the driver of the vehicle at the material time. These denials at the scene, contained on some of the video entered as exhibits are simply not credible and fly in the face of the compelling evidence I do accept to the contrary.
Issues to be determined
Impaired Operation – Ground for Arrest
[19] Defence counsel submits that there was no basis for the officers to arrest the for impaired operation and that as such his section 8 and section 9 Charter rights were breached and the evidence of the qualified breath technician, including the certificate of analysis with it’s readings of 130 mg per 100 ml of blood and 120 mg of alcohol per 100 ml of blood should be excluded pursuant to 24(2) of the Charter.
20The Crown submits that the constellation of facts available to the officer provided sufficient grounds to make the arrest for impaired operation.
Legal Principles Governing a Warrantless Arrest
21The police have statutory authority to arrest a person without a warrant under s. 495 of the Criminal Code, R.S.C. 1985, c. C-46. The applicable part of s. 495 in this appeal, s. 495(1)(a), allows a peace officer to arrest a person without a warrant if, on reasonable grounds, they believe the person has committed or is about to commit an indictable offence.
22The essential legal principles governing a warrantless arrest are settled:
A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint (R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 26; R. v. Tim, 2022 SCC 12, at para. 24).
23In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 17). Subjective grounds for arrest are often established through the police officer's testimony. This requires the trial judge to evaluate the officer's credibility.
24The arresting officer's subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. The arresting officer's grounds for arrest must be more than a “hunch or intuition.”
25In evaluating the objective grounds to arrest, courts must recognize that, “often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete” (R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743 (C.A.), at p. 750, per Doherty J.A.). Courts must also remember that “determining whether sufficient grounds exist to justify an exercise of police powers is not a ‘scientific or metaphysical exercise’, but one that calls for the application of ‘common sense, flexibility, and practical everyday experience’” (R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at para. 22, per Fairburn J.A. (as she then was).
26“Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime ( R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, at p. 251; Shepherd, at para. 23; Tim, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities R. v. Henareh, 2017 BCCA 7, at para. 39 (); R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18).
27Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, at para. 74. A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21).
28The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, at para. 34; Shepherd, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, R. v. Beaver Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114).
29The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest (R. v. Biron, 1975 CanLII 13 (SCC), [1976] 2 S.C.R. 56, at p. 72; R. v. Brayton, 2021 ABCA 316, 33 Alta. L.R. (7th) 241, at para. 43; Ha, at paras. 20-23; R. v. Montgomery, 2009 BCCA 41, 265 B.C.A.C. 284, at para. 27).
30When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds.
31The evidence of Police Constable (“PC”) Corcoran may be summarized thus. He received a radio call to a car accident with a possible impaired driver who had fled the scene. He was despatched and arrived at 8:00 p.m. hours. Once on scene, he spoke to Ms. Rios and Mr. Attawan and the Accused. The officer noted bottles of alcohol located inside the Accused’s vehicle. He was advised by Ms. Rios of collision and that she and her partner had seen the Accused driving. When the officer spoke to the Accused, he noted an odour of alcohol and glassy eyes and when he asked Mr. Singh for his vehicle documents the Accused provided him with Indian tax documents instead.
32PC Corcoran identified the Accused in court as the individual with whom he had engaged at the scene and whom he had arrested for impaired operation at 8:01 p.m.
33PC Dzikunu also arrived on scene at 8:00 p.m. in response to the possible impaired operation call. He also spoke with the Accused and noted an odour of alcohol and red eyes and testified that information had been provided that Mr. Singh had been crying and was very emotional. When asked by defence counsel, the officer accepted that the Accused was not unsteady on his feet or slurring his speech.
34I found both officers Corcoran and Dzikunu to be credible and reliable in their evidence. They did not seek to embellish their evidence or their observations of the accused. Their evidence was often corroborated by the clear and comprehensive body-worn camera footage that was entered as an exhibit and which is a valuable and objective repository of many of the events that occurred on the night of this incident.
35I would pause to observe that the note taking of PC Corcoran was not as detailed and comprehensive as it should have been and it would have been preferable had some of his evidence been supported by corresponding notes. That said, this does not diminish the overall assessment I would make of his and PC Dzikunu’s credibility and reliability.
[36] Both officers were candid and transparent in their evidence and not evasive and I accept their evidence in its entirety. I am satisfied that on the constellation of facts available to the officers and in the circumstances of this particular incident PC Corcoran did objectively and subjectively have reasonable and probable grounds to make the arrest of the Accused for impaired operation when he did so and that this was a lawful arrest. I do not find that the arrest breached Mr. Singh’s section 8 or 9 Charter rights.
Impaired Operation
37Ms. Espinosa for the Crown accepts that at the conclusion of the evidence in this trial the evidence of impaired operation in this case at its highest amounted to observations by PC Corcoran and PC Dzikunu of an odour of an alcoholic beverage on Mr. Singh’s breath and red/glassy eyes. This evidence was supplemented by the qualified breath technician who testified that he believed at some point the Accused slurred his speech when he was engaging with him and the fact that the Accused had been consuming alcohol as evidenced by the two readings he provided at the division.
38The Crown submits that the evidential threshold for impaired operation is made out on the available evidence. Mr Verma for the defence submits that the necessary threshold has not been met on the evidence in this case. I agree with Mr. Verma
39The Criminal Code does not prescribe any special test for determining impairment such as a marked departure from normal behavior. If the evidence of impairment establishes any degree of impairment ranging from slight to great the offence is made out, R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 18 C.R (4th) 127 (Ont. C.A.) affd 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478, 90 C.C.C. 3d 160.
40It cannot be assumed however but where the persons functional ability is affected in some respects by the consumption of alcohol his or her ability to drive is also automatically impaired. Where the proof of impairment consists of observations of conduct, in most cases, if the conduct is a slight departure from normal conduct it would be unsafe to conclude beyond a reasonable doubt that the ability to drive was impaired by alcohol, R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392.
41On the facts of this case, the Crown accepts that the Accused was increasingly emotional and, at various points before and after police arrival he was tearful. It is also accepted by the Crown that red and glassy eyes are consistent with such emotional behaviour.
42While I accept that Mr. Singh speaks very good English, albeit with a notable Indian accent, my review of the video footage in the breath room does not reveal any obvious slurring of the speech by the Accused and I attribute PC Robertson’s perception of slurring at some point to Mr. Singh’s accent. On my assessment of the available evidence, I am left with an unmistakable odour of alcohol of the accused, red/glassy eyes from someone who is highly emotional and an absence of any other apparent indicia of impairment.
43The threshold required to justify an arrest by a police officer is substantially different from the threshold to be met in order to establish guilt. On the evidence before me, I am unable to conclude that the Crown has established the necessary degree of impairment beyond a reasonable doubt and on the Impaired operation and I find Mr. Singh not guilty of that charge.
Special Circumstances
44It is the defence position that there were “special circumstances” with respect to language, and that, given those special circumstances insufficient efforts were made to properly explain Mr. Singh’s rights to counsel to him and that both the implementational and informational components were breached by the officers. Mr. Verma submits that the evidence of the breath test readings should be excluded under s 24(2) of the Charter. I shall turn first to the alleged 10 (a) and (b) Charter breaches.
45It is also submitted that there was a violation of Mr. Singh’s right to counsel in this case, namely providing Mr. Singh with duty counsel in English without the offer of, or access to, an interpreter given the “special circumstances” in this case.
Law And Analysis
10 (a) and (b) Charter Breaches
46“Special Circumstances” arise when there are some objective indicia that an ac- cused person’s comprehension of the English language may be limited for various reasons, for example, because he or she is a relatively recent immigrant to Canada from a non-English speaking country and there is difficulty in comprehending their rights to counsel.
47In such circumstances, there is an added onus on the police to take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensible way. Relevant circumstances include factors such as: age, education, sophistication, language, and mental condition. Although the determination of “special circumstances” is fact specific, the court in R. v. Silva, 2005 ONCJ 2, [2005] O.J. No. 65 at para.11, correctly summarized the law as follows:
“The burden of showing a breach of the Charter right to counsel is upon the applicant on a balance of probabilities; the right to counsel encompasses a right to be informed of the right in a comprehensible and meaningful way and the right to exercise that right in a meaningful and comprehensible fashion. Where “Special Circumstances” exist that would reasonably alert the officers information the accused of his right to counsel that there may be linguistic difficulty with comprehending the right to retain and instruct counsel without delay, the officers are re- quired to take reasonable steps to ascertain that the constitutional rights being given are actually understood; the questions of the existence of Special Circumstances, the adequacy of the steps taken to ensure actual comprehension, and whether or not he was afforded meaningful and compensable access to counsel are questions of mixed fact and law. Special Circumstances may arise where it is clear to the officer that an accused persons first language is not English and there is difficulty comprehending the demand for samples of breath”: R. v. Vanstaceghem (1987), 38 C.C.C. (3d) 142.
48While there is not a comprehensive list of situations in which “Special Circum- stances” can arise, Justice Gage outlined situations which should alert an officer as to the existence of Special Circumstances. These may include:
A failure to respond to a question dealing with the right to counsel coupled with a statement to the effect “I don’t speak the best of English.”. R. v. Lukavecki, [1992] O.J. No. 2123.
The necessity of speaking slowly to an accused who speaks English “a little bit”: R. v. Ly, [1993] O.J. No. 268.
A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.);
The failure to honour the accused’s request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira, per Wren J. (S.C.J.) dated Dec. 6, 1993;
Knowledge that the language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel R. v. Shmoel, [1998] O.J. No. 2233.
49The subjective belief of the officers that the accused fully understood their rights is not determinative of the issue of “special circumstances”. Even where a court accepts the police testimony that the officers believed the accused had fully understood their rights as explained in the English language, the factual findings may still raise “special circumstances”.
50It is a reversible error of law to conclude there are no special circumstances solely on basis of the officer’s subjective belief about the accused’s ability to understand his legal rights. R. v. Vanstaceghem, supra, at pg. 6; R. v. Shmoel, [1998] O.J. No. 2233 (Ont. Ct. Jus.) at para. 9; R. v. Lukavecki, [1992] O.J. No. 2123 (Ont. Gen. Div.); R. v. Olivia Baca, 2009 ONCJ 194, [2009] O.J. No. 1926 (Ont. Ct. Jus) at para. 2; R. v. Peralta-Brito, 2008 ONCJ 4, [2008] O.J. No. 81 (Ont. Ct. Jus).
51A failure by the accused to assert a difficulty in communication (i.e. the accused did not specifically ask for an interpreter or duty counsel with a specific language) is not determinative of the accused of “special circumstances”. R. v. Oliva Baca, supra, at para.25; R. v. Silva, supra, at paras. 26-27; R. v. Peralta-Brito, supra. R. v. Barros-DaSilva, [2011] O.J. No. 3794 at paras 28-31 (S.C.J.)
52When determining whether such “special circumstances” exist, courts recognize that mastery of a language is not an “all or nothing” proposition, and that the situation of an individual detained or arrested by police, and attempting to understand his or her legal rights, is not an everyday situation. To the contrary, it frequently will be an unfamiliar situation. It also is a stressful situation in which the individual is inherently vulnerable, and may feel compelled to seem agreeable to authority figures.
53An individual who may be able to manage day to day in English, (e.g., after living and/or working in English-speaking areas of Canada for years), may nonetheless not be comfortable communicating in English, or sufficiently comprehend English, when dealing with the complexities of understanding or exercising his or her legal rights in a situation where he or she is detained and/or arrested, and the legal jeopardy he or she may be facing. Understanding of language in certain contexts is not the same thing as understanding rights. R. v. Ukumu, [2019] O.J. No. 3177 at paras. 31-36 (Sup. Ct.)
54Mr. Singh did not testify at trial nor on the blended voir dire with respect to the alleged Charter breaches. Accordingly, my assessment and determination is based upon the evidence of the two civilian witnesses and the several police officers who engaged with Mr. Singh, along with the extensive video footage that was entered as exhibits in this trial.
55It is obvious to me on the available evidence that there can be no reasonable doubt that Mr. Singh is a proficient speaker of the English language, albeit someone who speaks proficiently with a notable Indian accent.
56At the scene, both prior to and shortly after his arrest, Mr. Singh becomes extremely upset and emotional and repeatedly asserts, in evidence that I reject, that he was not driving his vehicle. At several points prior to being transported to 23 Division, Mr. Singh struggles to be clearly heard or understood. However, based on my assessment of the evidence this is attributable to the frenzied emotional state that Mr. Singh has risen to and not because he had any innate difficulty with speaking or understanding English.
57The officers and civilian witness all testified that they observed the accused had an Indian accent but that they had no difficulty in understanding him nor in being understood by him. I am satisfied that on the scene any limited repetition of questions or instructions to the accused was because of his sobbing or his repeated assertion that he was not the driver of his vehicle.
58The evidence of all the witnesses, corroborated significantly by the video footage, makes it apparent that Mr. Singh did not struggle to understand his situation. Quite the reverse, his highly charged emotional state was clearly a product of this realization. It was clear from the civilian witnesses that they had an extensive conversation in English with the Accused prior to police arrival and that there was no language barrier to this.
59Mr. Singh is seen to frequently acknowledges his understanding of the information given to him by police officers, including his rights to counsel, caution and the breath demand. The officers were clear in their evidence, which I accept, that they subjectively had no reason to believe the accused did not clearly understand them and that they had no difficulty in communicating with him.
60While I accept that the onus was not on Mr. Singh to raise the issue at the time, I note that at no point did he give any indication of a lack of proficiency in English, he did not indicate he did not understand anything the officers said and where appropriate he asked clarifying questions.
61Objectively I also find it entirely reasonable to conclude that special circumstances did not arise in this case. Once Mr. Singh had left the scene and was being transported to the Division he steadily began to regain his composure. During the ride to 23 Division, Mr. Singh spoke with the officers about the cost of lawyers and how hard he had previously had to work to afford a lawyer and how he could not afford to get a lawyer for the charges he was now facing.
62Even more compelling is the video footage from the video room in which his engagement with the qualified breath technician occurred. A now calm Mr. Singh asks the Qualified Breath Technician (“QBT”) pointed questions about how old the model of Intoxilyzer machine was that the officer was using and initiates a discussion about recent specific budget allocations to the Toronto Police Service (“TPS”) and the cost of police vehicles. I also note that Mr. Singh advises the QBT that the had very recently just completed the police foundation course.
63The compelling nature of the video footage in this case is of substantial help in assessing whether Mr. Singh has established that special circumstances exist in this case. I do not find on the balance of probabilities that they do and nor do I find that there was any breach of Mr. Singh’s 10(a) or 10(b) Charter rights. I accept that Mr. Singh did not receive his rights to counsel until approximately 5 minutes after he had been arrested.
64I note that the Crown does not seek to rely on any evidence from this intervening period while officers are engaged in various duties at the scene and before they transport Mr. Singh to 23 Division. I also note that given the emotionally charged state of Mr. Singh, it would have been unrealistic to expect him to meaningfully exercise his right to counsel at the roadside even if that had been a viable option. As it was, he was appropriately connected with duty counsel in a timely manner at the division.
65Once he had calmed down, it was apparent that Mr. Singh was an articulate individual who had no difficulty navigating the English language in this case. The evidence of the various police and civilian witnesses and the fact that he instigated clear discussions on the subjects he did and had recently completed the police foundation course all support this conclusion. While I accept that each case turns on its own facts and a notable accent may be a marker that requires further diligence and investigation, I do not find that was applicable here. Any limited confusion apparent o the video in the earlier stages of Mr. Singh’s interaction with the officers is attributable to his emotional state and not his lack of facility in the English language.
66Mr. Singh had made it clear to the officers that he could not afford to pay for a lawyer and he did not make a request for them to connect his to a specific lawyer. Nor did he request that police contact a 3rd party to identify a named lawyer for him. PC Corcoran promptly connected Mr. Singh with Duty Counsel at 23 Division and following this had no reason to believe Mr. Singh was less than satisfied with that conversation in English.
67It flows from my findings in this regard that I find that there was also no breach of Mr. Singh’s 10(b) Charter rights in respect of a failure on the part of the police to offer access to, or to provide, an interpreter when Mr. Singh spoke with Duty counsel at the Division. Given the lack of any linguistic challenges faced by Mr. Singh in his dealings with the officers, it cannot be assumed that Mr. Singh was somehow incapable of conversing meaningfully in respect of his legal rights over the course of a few minutes on the telephone with Duty Counsel. I am confident Mr. Singh was able to make informed choices about counsel and to meaningfully engage with them in English.
68The pivotal function of the initial information component under s. 10(b) has long been recognized by the courts. As McLachlin J. stated in R. v. Evans “a person who does not understand his or her right cannot be expected to assert it”. In Evans, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. I am satisfied that Mr. Singh understood his jeopardy and his rights and exercised those rights as he wished.
Timing of Breath Demand
69The final issue for me to consider was raised by Crown counsel in submissions and that related to the timing of the breath demand made by PC Dzikunu who testified that while dealing with the various parties at the scene, following the arrest of the Accused, he forgot to provide the breath demand pursuant to s. 320.28 for suitable samples of breath to be provided by a qualified breath technician.
70Ms. Espinosa fairly acknowledged that it was open to the court to consider that a valid breath demand had not been made PC Dzikunu in this case given that the accused was arrested at 8:01 p.m. and the demand was not read by the officer until Mr. Singh was being transported from the scene at 8:16 p.m.
71However, Ms. Espinosa relies on R. v. Guenter (2016), 2016 ONCA 572, 340 C.C.C. (3d) 351 (Ont. C.A.) in support of the submission that PC Robertson the QBT had sufficient grounds to make the demand and thereby satisfy the requirements of s. 320.28 of the Criminal Code as he was “A peace officer who had reasonable grounds to believe that a person is committing or at anytime within the preceding 3 hours has committed an offence under section 320.28 as a result of the consumption of alcohol”.
72While R. v. Guenter dealt with the provisions under the former s 254(3) of the Criminal Code, the principle at issue remains the same under the current corresponding section of the Criminal Code and I find the facts and the analysis in the case compelling.
73I do find that the 15-minute delay in the breath demand being read was as a result of inadvertence on the part of PC Dzikunu and nothing more. While inadvertence is not to be encouraged the delay was not as a result of bad faith and the officer was still engaged with the two civilians in the wake of the accident and their pursuit of the Accused and a highly emotional Mr. Singh.
74While the demand by PC Dzikunu may not have been made as soon as practicable, I am satisfied that on the evidence before me PC Robertson the QBT satisfied the requirements of s. 320.28.
75PC Robertson spoke with the investigating officers who advised him Mr. Singh had been involved in a collision on the 401 and was located shortly afterwards. They made observations of an odour of alcohol and red bloodshot eyes and believed Mr. Singh’s ability to operate a motor vehicle was impaired.
76PC Robertson also noted an odour of an alcoholic beverage and testified as to slurred speech, although I accept slurred was not apparent on my review of the video footage. I accept that the video and the officers’ evidence makes it clear PC Robertson made his demand immediately upon his formulation of reasonable grounds and I am satisfied that the requirements of s. 320.28 that the demand be made as soon as practicable are ultimately met in this case.
[77] I find that it flows from this that there was not a s. 8 Charter breach and that the breath samples of Mr. Singh were lawfully taken and I find that the evidence flowing from them is admissible in this case.
[78] If, however, there had been a breach of Mr. Singh’s s. 8 Charter rights my analysis pursuant to s. 24(2) of the Charter would still admit the breath samples in this case.
79Section 24(2) of the Charter reads as follows:
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 ad- ministration of justice into disrepute
80Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court's decision in R. v. Grant, 2009 SCC 32 at para. 71:
Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) 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 (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
See R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
The Seriousness of the Breach
81It is my view that, in the particular circumstances of this case, any breach with respect to Mr. Singh’s s 8 Charter rights falls very much at the lower end of the spectrum. He was lawfully arrested, any omission by the arresting officer to provide the demand earlier than he did was simply inadvertent and the breath technician was diligent in the terms of both the basis and timing of his demand.
82The impact of any such breach on the Charter-protected Interests of the Accused was not significant given the situation in which he found himself and the inevitable requirement to provide the breath samples when required to do so. The provision of the breath samples was minimally intrusive.
83If the evidence in this case was obtained as a consequence of a Charter breach it was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial.
84While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. Drink driving continues to take a considerable toll on the lives and safety of road users in Canada. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.
85I find that the third Grant factor favours admission of the evidence.
[86] For the foregoing reasons, if there was a s. 8 Charter breach, I would admit the evidence in this case. It would in my view be inappropriate to exclude the highly relevant and reliable evidence and the administration of justice would not be brought into disrepute by its admission.
87Given my findings, Mr. Singh is acquitted of the Impaired operation count. The evidence with respect to the Over 80 count will be admitted and on the basis of the totality of the evidence before me, I find the Crown has established beyond a reasonable doubt that Mr. Singh is guilty of the single count of operating a motor vehicle Over 80.
Released: 30th June, 2026
Justice Michael Waby