Court File and Parties
Court File No.: City of Burlington No. 12-2570 Date: 2014-03-05 Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Daniel McMeekin
Before: Justice Stephen D. Brown
Heard on: November 4, 2013 and December 12, 2013
Reasons for Judgment released on: March 5, 2014
Counsel:
- E. Roda, for the Crown
- B. Brody, for the accused Daniel McMeekin
Brown, J.:
Introduction
[1] Mr. McMeekin is charged that he operated a stolen motor vehicle on August 18, 2012 and that he had the care or control of a motor vehicle while his ability was impaired by alcohol. He is also charged with having the care or control of a motor vehicle while his blood alcohol reading exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[2] Mr. McMeekin pleaded guilty to the count of theft but not guilty to the charges of impaired and over 80. The Crown proceeded summarily on all charges.
[3] The defendant advanced Charter applications alleging violations of his rights under ss. 8, 9, 10(a) and (b) of the Charter and those matters proceeded by way of a blended voir dire.
[4] Mr. Brody, on behalf of Mr. McMeekin, made several helpful concessions that served to focus the issues in this trial and eliminate the necessity of calling some witnesses.
1.0: Evidence at Trial
1.1 Evidence of Shane Barnes
[5] Constable Barnes has been a member of the Halton Regional Police Service since 2003.
[6] At 10:27 p.m. on August 18, 2012, Constable Barnes was patrolling an area in Burlington where they had received information that there would be a large party referred to as a 'flash party'. He was partnered with Constable Korda that evening. Constable Korda was off with three people who were drinking on the sidewalk and Constable Barnes was in the police cruiser on Folkway Drive facing westbound when a Taylor moving truck pulled directly behind him coming from Headon Road and stopped. He saw the truck drive about 10 feet before stopping. There was nothing unusual in the way that the vehicle was being operated or how it was parked.
[7] Constable Barnes had received information about two hours earlier over the police radio that a Taylor moving truck was on Fairview Avenue and Walkers Line and that it was 'all over the road' and that it was a suspected impaired driver. This location was about seven kilometers from the location where the truck pulled up behind him.
[8] Shortly after this, Constable Barnes exited his cruiser and, although he did not see anyone getting out of the truck as he was walking towards the driver's side door, he saw someone running from the back of the truck towards the party down the road. The defendant was sitting in the driver's seat. After he exited his cruiser but before he got to the truck he said to Constable Korda "What are the chances?".
[9] When he walked up to the defendant, he noticed that he had glossy, bloodshot eyes, slurred speech and he smelled alcohol on his breath. He also noticed that his pupils were dilated.
[10] He asked the defendant to exit the truck and noticed that he was swaying back and forth as he tried to climb down the truck and when he was on street level. In response to a question, he told him that he had been drinking at The Nines, which is an establishment near Fairview Avenue and Maple Avenue in Burlington, approximately 10 or 12 kilometers away from where they were now.
[11] As a result of these observations, Constable Barnes formed the opinion that Mr. McMeekin's ability to operate a motor vehicle was impaired by alcohol and arrested him at 10:28 p.m. for impaired care or control.
[12] He then escorted the defendant to the rear of the police vehicle and searched him, which took approximately five minutes, and then he placed him in the rear of the police cruiser.
[13] He then went to speak to Constable Nagy who had arrived on the scene about arranging a heavy tow. This took approximately five more minutes because Constable Nagy was a relatively inexperienced officer and had never arranged for a tow of a heavy truck before. During this time, he had tried to get information from Mr. McMeekin about whether the truck was loaded or not. He did not get a satisfactory response from the accused, but he then looked at the truck and assumed that it was loaded because it had a seal on the back door.
[14] After this, he went back to his cruiser and began his notes after having stood by for a couple of minutes to make sure that Constable Korda was all right with the three people that he was talking to who had been drinking.
[15] Constable Barnes filled out his notes and the six-page report that comprised the driving evidence notes, which is a detailed report that includes the reasons for the arrest, the accused's personal information and the times. He wanted to do this so that he would not miss any important times and so that he could hand this to the Intoxilyzer technician at the station when he arrived.
[16] It was not until 10:51 p.m., some 23 minutes later, that Constable Barnes commenced to read the accused his right to counsel, the breath demand and the caution.
[17] The right to counsel was read at 10:51 p.m., the breath demand was read at 10:53 p.m. and the caution was read to him at 10:53 p.m.
[18] At 10:54 p.m. they departed the scene en route to the police station, arriving at 30 Division at 10:56 p.m.
[19] When they arrived at the police station the defendant was taken into the booking room and he went through the booking process. Constable Barnes phoned duty counsel for the accused at 11:20 p.m. because the accused had indicated a desire to speak with counsel but did not have private counsel.
[20] The accused was able to consult with duty counsel in private from 11:32 p.m. when duty counsel called back until 11:40 p.m. when Constable Barnes, who could hear no muffled talking in the room, entered the room and asked him if he was still talking with the lawyer. He wanted to confirm this, so he took the phone and said "hello" and there was no one on the line.
[21] He then hung up the phone and almost immediately duty counsel called back and the defendant then talked to duty counsel and this call was finished at 11:47 p.m.
[22] At 11:48 p.m. he took the defendant into the breath room and turned him over to Constable Radley, the qualified Intoxilyzer technician. He had previously filled out the Intoxilyzer information sheet while the accused was being booked or was on the telephone with duty counsel and had provided that to Constable Radley before turning the defendant over to him. This form took him about 5 minutes to complete.
[23] He next saw Mr. McMeekin at 12:22 a.m. when he had completed the breath tests and he took custody of him, then had him sit in the attached booking room and received the results of the breath tests from Constable Radley. Mr. McMeekin recorded the rather alarming results of 284 milligrams of alcohol in 100 millilitres of blood at 11:59 p.m. and 274 milligrams of alcohol in 100 millilitres of blood at 12:22 a.m.
[24] In cross-examination Constable Barnes was confronted with the fact that he had testified in direct examination that Mr. McMeekin was difficult in the booking room as he alluded to in direct examination. Constable Barnes expanded on this in cross-examination and stated that the defendant said to him, when directed to sit down, words to the effect of "Make me sit down" and Constable Barnes had to push him to sit him down. This action was not described in his notes.
[25] As well, it came out in cross-examination that Constable Barnes did not write any notes about impaired abilities of the defendant after the arrest (with the exception of the grounds for arrest that he wrote for Constable Radley, which interestingly omitted mention of slurred speech). He said that he would not note observations of swaying or unsteadiness at the station or walking to or within the station unless they were new observations other than those that he had made before.
[26] Indeed, Constable Barnes cannot recall if he observed any unsteadiness or swaying after arrest of the defendant.
[27] As well, he was unable to articulate the words or phrases that he noticed to be slurred when he had the very brief conversation with the defendant pre-arrest.
[28] In a rather effective cross-examination that I will now reproduce, I find that this officer fell into the all too common trap of making observations and statements not supported by objective or detailed evidence, thus lessening the weight to be afforded to the witness' evidence, in the Court's opinion. Commencing at page 44 of the transcript of November 4, 2013 we find Constable Barnes falling into this inability of backing up his observations with any objective and discreet evidence. This rather lengthy passage is instructive to officers as to how not to give evidence and is instructive in the benefit of proper note taking:
Q. So at the side of the road you told my friend that you didn't really have much conversation with him at the side of the road other than to tell him to get out of the truck. You said his words were slurred at that time, which words?
A. Exactly which words, I don't recall.
Q. Yeah, like what was the conversation?
A. You just said that, didn't you?
Q. You said, "get out of the truck", but what did he say that made you think to yourself…
A. I don't….
Q. …that's slurred speech.
A. I don't have it exactly written down, I don't exactly remember his words or conversation.
Q. Okay. But do you understand that when you take notes you're going to be, you're going to come to court eventually and be challenged on those notes, correct?
A. Yes.
Q. That guys like me — unfortunately for you sometimes — are gonna grill you about your notes, correct?
A. Correct.
Q. We're going to ask you what you meant by that, correct?
A. Correct.
Q. And you've been taught to be as detailed as possible in your notes, correct? So that when you come to court you don't get caught up in banter like this, correct?
A. Correct.
Q. Okay. So what did, you don't remember anything you said?
A. Details, no.
Q. You don't remember any of the words that were slurred?
A. No.
Q. Okay. So then how can you come to court today and say his speech was slurred when you have no evidence of that?
MS. RODA: Well, I'm gonna object to that question, Your Honour, because he's given evidence of that. He always indicated that he doesn't recollect the specific words that were used, so I'm not sure that's a fair assessment of the evidence.
MR. BRODY: Well, I mean, the, it's certainly written his notes, that's the evidence that he has. I'd like to know the specifics of that evidence. Like what, you've given evidence, I'm sorry, Your Honour, I'll wait for your ruling.
THE COURT: No, no, defense counsel's allowed to explore this area.
MR. BRODY: Q. You understand that it's not enough just to come to court and say he was unsteady or had slurred speech, that you're going to have to give some detail, correct?
A. In hindsight, I probably should have wrote down words that were slurred.
Q. Okay. You don't even remember if he spoke to you?
A. Well, he spoke to me cause I said there were slurred words.
Q. Okay. But other than the evidence that you wrote it in your notes, do you have any evidence about anything that he said that was slurred?
A. No.
Q. Now, you talk about unsteadiness, you describe the unsteadiness on the, when he hits the pavement, when he's standing on the pavement, you say that unsteady is the swaying, correct?
A. Correct.
Q. Which way is he swaying? Front to back, side to, right to left?
A. I don't recall.
Q. Okay. So you don't recall which way he's swaying. And how long did the swaying last for?
A. Probably only seconds, I seen him swaying.
Q. So it's fair to say that it was a, a slight sway, was it, was it pronounced?
A. He wasn't falling down.
Q. So there was no stumbling?
A. No.
Q. No falling down?
A. No.
Q. It wasn't a pronounced sway, it was a slight sway, is that fair to say?
A. Yes.
Q. A slight sway, so it was a slight sway and it only lasted seconds?
A. Correct.
Q. Now explain to me how he was unsteady, like you said, you've described him as being unsteady getting out of the truck, correct?
A. Correct.
Q. Now explain that to me. How high is the truck up from the ground?
A. To where his floor boards would be?
Q. Yeah. You're indicating with your hand maybe about two feet?
A. No, it's not two feet, I'll say maybe four foot, three and half, four foot.
Q. Okay. So it's not….
A. From the ground to the floorboards.
Q. Okay. So explain to me how getting out of his truck he was unsteady, what was unsteady about it? Did he, did he stumble or fall or misstep?
A. He did not fall, he was just unsteady, well, trying to look for his footing as he climbed out of the truck.
Q. Did he miss the step?
A. No.
Q. So he did not miss the step. Did he stumble when he hit the, when he stepped on the ground or misstep at all?
A. Just swaying.
Q. Okay. So but you described him getting out of the truck as unsteady. What is unsteady mean to you, what does that word mean?
A. He's fumbling trying to find his footing so he doesn't fall down.
Q. Well when he took his foot out and hit the, his foot immediately went on to the, that — I don't know what it's called you just mentioned it before — that board that he steps on before he goes to the ground?
A. A running board?
Q. Yeah, so his foot hits the running board no problem, right?
A. Yes.
Q. Okay. So foot hits board no problem. So what, what's that mean, stumbling and fumbling, I don't understand what you mean?
A. He put his place where he intended to put it I guess, and he was just like wiggly. Not falling down, not….
Q. Now you're saying he was wiggly?
A. For lack of a better term, he was unsteady on his footing.
Q. Explain to me, he didn't miss footing, he put his foot where it was supposed to be and he came off the truck?
A. Yes.
Q. How long did it take him to get out of the truck, two seconds?
A. Maybe, I don't know, I didn't time it.
Q. Okay. Cause you write, he wasn't very unsteady, correct? He just, he wiggled a little bit is what you said?
A. That's what I said, yes.
Q. Okay. But what do you mean wiggle, like his body shook? Don't look at the Crown, I'm asking you questions.
A. Do you want me to act it out? I don't know….
Q. Yes, act it, if you can show the court act it out.
MS. RODA: Sorry. Your Honour, I'm just gonna interrupt here because, kind of, both parties are doing it, but my friend isn't giving the Officer an opportunity to answer the question.
MR. BRODY: That's fine. Perhaps he could demonstrate what wiggle means, Your Honour.
Q. Can you describe it with words or demonstrate, one of the two, what does wiggle mean?
THE COURT: Either way you can express.
A. Yeah, okay. For lack of a better term, stepping out of the truck backwards and climb out of the cab, he would have been unsteady holding on to things to get to the ground.
Q. So now you're saying he was holding on to things to get to ground?
A. Correct.
Q. So he didn't wiggle, his body didn't wiggle?
A. What I just showed you is what happened.
Q. So when you just, sorry, when you just came off there I didn't see any unsteadiness, I saw you holding one thing or maybe another and getting down off the truck, do you agree with that?
A. I thought I wiggled a little but….
Q. Okay. But what you just did, was it very unsteady?
A. No, that wasn't very unsteady, he was unsteady.
Q. Okay. But isn't it true he's getting out of a, a truck that's four feet off the ground, shouldn't he be holding onto things when he gets out of the truck?
A. I guess it depends on every person.
Q. You just jump right out of the truck if you're in a four foot truck?
A. I drove truck for 15 years, yes.
Q. Do you know how long he drove truck for?
A. No idea.
Q. Okay. So you don't know how long he drove truck. And by no means was any of this behaviour very unsteady, it was slight, if anything, correct?
A. Unsteady.
Q. What degree of unsteadiness? Slight?
A. Like I say, he wasn't falling down so if you wanna go slight, we'll go slight on unsteadiness.
Q. So let me ask you this Officer, if it's slight in your mind, is it important for you to take accurate notes?
A. Yes.
Q. Is it important to you to convey, isn't it an important obligation of yours to convey grounds accurately to the breath technician?
A. Yes.
Q. So when you're conveying grounds you're being as accurate and as truthful as possible, correct? You're not lying to the breath technician?
A. Truthful, yes, accurate maybe I could be a little more detailed than I was.
Q. Okay. You could be more detailed. Do you agree with me that exaggeration is a form of lying?
A. Yes.
Q. Okay. And you just said earlier that how you would describe the unsteadiness, including the swaying, would be slight? Okay, so then why in your notes and I'm going to refer you to your notes, you just said that exaggeration is a form lying, correct?
A. Correct.
Q. Now in your notes on the intoxilyzer information sheet that was entered as an exhibit,…
A. Yes.
Q. …I don't want to approach you, I don't have to approach you, on your….
MS. RODA: Sorry, do you want to give him copy of the exhibit?
Q. Oh, do you have a copy? I'm sorry. If I can approach the witness?
THE COURT: Yes.
MR. BRODY: Q. Can you read out what you wrote? First of all, before you do that you don't mention in there slurred speech or dilated pupils, correct?
A. I'm looking. No, there's nothing about pupils.
Q. There's nothing about slurred speech either, correct?
A. No.
Q. Okay. So then you left that out?
A. Yes.
Q. And you did, read the bottom about unsteadiness, what did you write?
A. Very unsteady.
Q. Okay. That's, very unsteady is very different than slight unsteadiness, correct?
A. Correct.
Q. So, did you lie in that report?
A. No.
Q. Did you exaggerate?
A. No.
Q. So you just told the court that the unsteadiness is slight, that the swaying was slight, it only lasted a couple of seconds, and getting out of the truck it was a wiggle but nothing exaggerated or pronounced, correct?
A. Yes.
Q. I asked you on the degrees from slight to very or great you said slight, correct?
A. Correct.
Q. And you wrote very?
A. Correct.
Q. Right. So what's, how do you explain the disparity between what you wrote and what you just gave evidence to?
A. In my, I guess I don't recall it as clearly as I thought.
Q. Okay. So then how does the court to trust what you're saying now if you don't recall what happened? Why did you write very unsteady in your notes when you gave evidence in court that it was slight?
MS. RODA: Well, that was two questions.
MR. BRODY: Sorry.
MS. RODA: He wasn't given an opportunity to answer the first question…
MR. BRODY: I'm sorry.
MS. RODA: …which is why should the court believe what you're saying now.
MR. BRODY: Q. You know what, I, I can take back that question, it's an unfair question. Why did you say in court it was slight and that the, you can't even really describe what it was other than he held on to things and the other was a slight swaying. Why would you describe it as slight in court, under oath, and say very on your notes?
A. Well, this paper was filled out the day of, it would have been more accurate than my, I guess my recollection today.
Q. But you're giving evidence under oath?
A. Correct.
Q. And it's important to tell the truth under oath?
A. Correct.
Q. And what are you coming to court and minimizing it for the benefit of my client? Yes or no?
A. No.
Q. Okay. So then you're giving accurate evidence. You refresh your memory with your notes, correct?
A. I guess with my notes, I never looked at that it was taken as an exhibit before I had a chance to read it over.
Q. Okay. But even in your notes….
MS. RODA: Sorry, just to clarify for purposes of the record, when he said that he was pointing to the intoxilyzer grounds sheet.
A. And my notes, Your Honour.
Q. So you really don't have an answer do you, as to why….
MS. RODA: Sorry.
A. In my notes here I just wrote it was unsteady and in the intoxilyzer sheet I wrote very unsteady.
Q. So why the, why the change from what you said in the, why the added very when you're conveying grounds? You just said it was important to be accurate to the breath technician?
A. Correct.
Q. And that exaggeration is a form of lying. Why add the very when you're conveying grounds to the breath technician?
A. I have no answer.
Q. Cause you admit that even between, on the same day you wrote the notes for the, for your notes and the notes for that, on that piece of paper that made, that made it, that was an exhibit, the intoxilyzer sheet, correct?
A. Same day, yes.
Q. Same day. So as the day went on did you think it became very versus not very?
A. I have no explanation for it.
[29] Officer Barnes conceded that he could have read the defendant his rights to counsel at 10:33 p.m. shortly after arresting and searching him.
[30] He also conceded that he has no explanation why he waited 24 minutes after arriving at the police station to call duty counsel when he knew that the accused wished to speak to a lawyer. He concedes that he could have left the booking procedure to the Acting Staff Sergeant or Constable Korda and that, by not doing so, there was a potential waste of 24 minutes of time.
1.2 Evidence of David Nagy
[31] Constable Nagy is an officer employed by the Halton Regional Police Service since August 2011.
[32] He was dispatched to this occurrence at 10:28 p.m. and arrived on the scene shortly after that.
[33] Upon his arrival at the scene, he was directed to assist with the tow of the truck. He spoke initially with Constable Barnes, but he does not have detailed notes of his arrival or other actions during that time and has a foggy recollection of the times that he spent interacting with Constable Barnes at the scene.
[34] He recalls that at 10:45 p.m. he located a half full bottle of beer in the truck cab in the middle console of the truck and a further 5 sealed beers near the driver's seat.
[35] He recalls smelling an odour of alcohol from the accused when he approached him as Mr. McMeekin was in the back seat of the police cruiser with the window down.
[36] He also recalls getting the keys for the truck from one of the officers at the scene and then checking on what sort of items were in the back of the truck.
[37] His recollections of the events of that evening are vague and generally unhelpful in the analysis.
1.3 Evidence of Tim Radley
[38] Officer Radley has been employed by the Halton Regional Police Service since August 2008 and has been a qualified technician since August 2011.
[39] He first came into contact with Mr. McMeekin at 11:48 p.m.
[40] He noted that there was an odour of an alcoholic beverage on his breath and that he had a tan complexion that appeared to be flushed. He noticed bloodshot eyes and dilated pupils.
[41] He noted that generally he was polite and cooperative and quite talkative during the interaction and at times he did become a bit excited and his emotions went up and down. On two separate occasions he slammed his fist into one of the cabinets situated near him while he was seated on the bench.
[42] He was concerned that he was going to be losing his job and on multiple occasions he stated that he really wanted to have a cigarette.
[43] At times he presented as slouching and sleepy and disinterested in the whole process. Officer Radley described him as using profanity at times, although not directed at the officer. Regarding his speech, he found it to be fair. At times, he found his speech slow but he did not make note of any slurred words or vowels or consonants.
[44] He concluded that his ability to operate a motor vehicle was obviously impaired by alcohol. In reaching this conclusion, it is apparent that he took into consideration the very high blood alcohol readings that Mr. McMeekin yielded on the tests.
[45] When asked by the Crown, he stated that even eliminating the breath readings from the matrix it would have been his opinion that he was obviously impaired by alcohol.
[46] The breath room video was played at the trial and made an exhibit. It shows Constable Radley as an extremely professional and likeable officer who engaged in his duties in an admirable manner. He treated the defendant in a respectful and friendly manner at all times.
[47] Constable Radley was first notified of this matter at 11:06 p.m. He immediately went to the breath room, as he was already at 30 Division, and began to set up the instrument. This was completed by 11:24 p.m.
[48] Constable Radley was subject to a vigorous and aggressive cross-examination by Mr. Brody. He acknowledged that the defendant did not seem to have difficulty walking while he was in his presence. He stated that at times his speech was deliberate, although he never detected any slurring.
[49] He did indicate that the symptoms of impairment that he noted individually could have other explanations for their cause, but that cumulatively he still maintained his opinion that Mr. McMeekin's ability to operate a motor vehicle was, in his view, obviously impaired by alcohol.
[50] He did not observe the defendant outside of the breath room, for instance in the booking room, and his only dealings with him were in the breath room.
[51] In my view, Constable Radley came across as a credible and honest witness and I accept his evidence after having observed his responses on cross-examination and his demeanour on the witness stand and in the breath room video.
1.4 Evidence of Michael Korda
[52] The defence in this trial called Constable Korda as their witness as the Crown elected not to call him. He was the partner of Constable Barnes that evening.
[53] He was the officer who searched the accused in the booking room that night.
[54] He noted observations of the accused while he was in the booking room with him. He noted that he had glossy eyes and that at one moment he would be very cooperative and the next moment he would not be.
[55] When he was asked if he saw if Constable Barnes had to restrain Mr. McMeekin or put him into a sitting position, he said that he did not recall. He did not hear Mr. McMeekin say to his partner "Come and make me sit down".
[56] In cross-examination, he agreed that it was possible that this happened and that he did not notice it or does not recall it now.
[57] He reiterated that Mr. McMeekin was uncooperative with himself and Sergeant Baird at times in the booking room.
2.0: Issues Before the Court
[58] The defence argues that Mr. McMeekin's rights under ss. 8, 9, and 10(b) of the Charter have been infringed.
[59] With respect to the s. 8 argument, Mr. Brody argues that the arresting officer did not have reasonable and probable grounds to arrest Mr. McMeekin for the offence of impaired operation.
[60] The onus is on the Crown to establish on a balance of probabilities that the officer had reasonable and probable grounds for an arrest because the seizure of the defendant's breath samples is a warrantless search and seizure. See R. v. Haas (2005), 200 C.C.C. (3d) 81; 76 O.R. (3d) 737 (Ont. C.A.).
[61] Regarding the ss. 9 and 10(b) argument, Mr. Brody states that the delay of 23 minutes before the breath demand or rights to counsel were read to the accused was a breach of these sections.
[62] The Crown opposed the defence arguments.
2.1: Analysis of Issue as to Whether Reasonable and Probable Grounds Existed
[63] The existence of reasonable and probable grounds imports both an objective and a subjective component. Section 254(3) of the Criminal Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief. See R. v. Bernshaw, [1994] S.C.J. No. 87 at para. 48, and R. v. Rhyason, 2007 SCC 39, [2007] S.C.J. No. 39 at para. 12.
[64] The "reasonable grounds to believe" formulation in s. 254(3) applies to the impairment of that person's ability to drive. Further, the test has both subjective and objective components: R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.), at para. 32. As said by Provincial Court Judge MacDonnell (as he then was) in the oft-quoted case of R. v. Cooper (1993), 46 M.V.R. (2d) 231, at paras. 12 to 14:
This provision [s. 254(3)] bestows a significant power upon a peace officer to interfere with the liberty of the citizen. It requires, however, as preconditions to [the lawful exercise of] the grant of power, that the officer form a particular belief, and that the belief be based on reasonable and probable grounds. ...
[Applying the approach to arrest powers endorsed by the Supreme Court in R. v. Storrey (1990), 53 C.C.C. (3d) 316], the question to be addressed is whether, on the basis of the record before the court, a reasonable person placed in the position of [the arresting officer] could conclude that there were reasonable and probable grounds to believe that the accused's ability to operate a motor vehicle was impaired by alcohol.
[65] As said by Hill J. in R. v. Censoni, supra, at para. 43:
Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom.
[66] In R. v. Bush, 2010 ONCA 554, [2010] O.J No. 3453 (Ont.C.A.) Durno, J, states at paras. 55-56 as follows:
55 In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539 (C.A.).
56 An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21.
[67] When engaging in the analysis of whether Constable Barnes had objective grounds to form his opinion, I must reflect on the difficulties of his evidence and the manner of giving it.
[68] I am not satisfied that his purported ground of slurred speech should be given any weight in this analysis.
[69] He was unable to elucidate any foundation for this observation. Not only was he incapable of giving even a minimal description of the slurred speech such as running on with an 's' in a word, but he was unable to even recall the context of any conversation or the detail of any conversation that was occurring when he noticed this so-called observation. As well, his observation of slurred speech was not corroborated or noted by any other officer who had contact with the accused that evening. It is also not present, in my opinion, in the breath room video.
[70] Constable Barnes did note that he had glossy, bloodshot eyes and the defendant had an odour of an alcoholic beverage on his breath. He noted that his pupils were dilated. As well, he obtained an admission from Mr. McMeekin that he had been drinking at a bar that he knew to be located near Fairview Avenue and Maple Avenue in Burlington, some 7 to 10 kilometers away.
[71] He noticed a slight sway when the defendant stepped from the running board of the truck to the ground that lasted only seconds. He was unable to describe whether this slight sway was back to front or side to side. The fact that he then gave grounds to the Intoxilyzer technician that Mr. McMeekin was "very unsteady" on his feet and, after this was brought to his attention, adopted that, gives me some cause for concern in this officer's credibility and reliability.
[72] There is no other evidence of swaying given by any other officer who had dealings with the defendant that night and, indeed, Constable Barnes makes no other mention of swaying or difficulties with walking when being taken to the cruiser, from the cruiser into the police station or any time while he was in the police station.
[73] Constable Barnes says that the defendant "wiggled a little bit" as he was climbing down from the truck, but as the example of his cross-examination that I have previously included shows, he was unable to effectively describe this observation and, as such, I can only afford it very little weight.
[74] Constable Barnes only observed the truck drive for a few feet and, therefore, was unable to make any observations of any improper or unusual driving. However, Constable Barnes did have information that he had heard over his police radio that approximately 1½ to 2 hours before his contact with the defendant there was a report of a Taylor moving truck driving all over the road at Fairview Road and Walkers Line, which was about 7 kilometers away from where he was. It was reported that it was a suspected impaired driver. Constable Barnes did not have information regarding the license plate of this vehicle, whether it was operated by a male or a female, or any other specific information about this incident.
[75] His comment to Constable Korda of "What are the chances?" when he was approaching the truck indicates to me that he certainly presumed that there was a chance that this was the same vehicle involved in the earlier report. An officer is entitled to rely on hearsay evidence to support his reasonable and probable grounds, but, in my view, must be cautious when relying on information that is several hours old and is somewhat lacking in detail.
[76] There is no evidence before me as to how many trucks Taylor Movers operates, but it is, in my view, reasonable to suspect that Taylor Movers is a more unique and identifying description of a vehicle than generic.
[77] I am mindful of the direction given by Hill, J. in Censoni, supra, where he states at para 44-46 as follows:
44 While a particular aspect of a police officer's roadside information, for example, observations of the driver or facts relating to the operator's driving, may deservedly achieve greater prominence in the circumstances of a particular case, it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly: Graat v. The Queen, supra at 382. It is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported. Sufficiently is never an examination of the articulated facts in isolation.
45 All too frequently, the defence makes submissions such as "bad driving and an odour of alcohol on the driver's breath can never amount to impaired driving" or "the cases have held that because the defendant wasn't involved in an accident" or "didn't stumble on getting out of the car" the ability to drive was unimpaired. The error of this approach is to elevate what are essentially individual factual circumstances to propositions of law. In Bernshaw v. The Queen, supra at 214, Sopinka J. stated:
The decision as to whether a peace officer believes on reasonable and probable grounds that an offence is being committed and, therefore, that a demand is authorized under s. 254(3) of the Criminal Code, R.S.C. 1985, c. C-46, must be based on the circumstances of the case. It is therefore, essentially a question of fact and not one of pure law.
46 The existence of reasonable grounds does not devolve to a simple mathematical exercise of comparing a list of factors supporting impairment to drive with a second list of factors pointing in the opposite direction. As observed by Doherty J.A. in Regina v. Golub, supra at 203:
In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable ....
[78] I find that Constable Barnes' evidence as a whole left me with some concerns as to his credibility and reliability.
[79] I have stated earlier in my judgment the reasons why I put little or no weight on Constable Barnes' evidence of slurred speech and unsteadiness of the defendant. The remaining factors that I have taken into account are the following:
- Odour of an alcoholic beverage on the defendant's breath
- An admission of consumption
- Bloodshot, glossy eyes
- Dilated pupils
- Flushed face
- The suspicion that this may be the same vehicle that was being operated by a suspected impaired driver a few hours before, at a location some 7 to 10 kilometers away.
[80] In my view, these observations, in the total circumstances of this case, do not rise to the level of reasonable and probable grounds on an objective basis at the time of the detention for the purpose of the demand commenced. Although I am of the view that Constable Barnes had sufficient grounds to make a roadside screening demand of the defendant when he made his s 254(3) demand, I find that he took an impermissible shortcut by going straight to an Intoxilyzer demand and instead should have made a roadside demand under s. 254(2).
[81] Accordingly, the defendant has proven to my satisfaction that his s. 8 and 9 Charter rights have been violated.
2.2 Section 24(2) Analysis
[82] Because of my finding of the s. 8 breach, I now move on to the issue of whether the evidence obtained after the breach is to be excluded. The revised approach to the lines of inquiry concerning the factors to weigh in this analysis are set out in the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32 at paras. 67-71 and paras. 85 and 86 and instruct courts to utilize a more flexible, balanced and comprehensive test under s. 24(2) as follows:
67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.
68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
71 A review of the authorities suggests that 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. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence...
85 To review, the three lines of inquiry identified above - the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits - reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.
[83] In assessing the seriousness of the breach in Grant, supra, and in R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34, the Court suggested that the conduct causing the breach be assessed on a continuing fault line. At para. 23 of the Harrison decision, the Court stated:
...The metaphor of a spectrum used in R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights... . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct. [Citation omitted; para. 41.]
2.3 Seriousness of the Breach
[84] The arrest of a citizen without reasonable and probable grounds is a serious breach of that person's rights as guaranteed under the Charter.
[85] I agree with the comment by Beninger J. in R. v. Robinson, 2009 ONCJ 450, [2009] O.J. No. 4018 OCJ at para. 30:
It was clearly contemplated by Parliament that there be two different standards to be followed by police in their investigation of drinking and driving offences. In my view, taking what is referred to in Cooper as an 'impermissible short cut' is a serious breach of Charter rights. The differing standards for making demands for a ASD and for an arrest for breath testing have existed for a substantial period of time, and should be well known to, and well recognized by the police who enforce those differing standards.
[86] It cannot be said that the improper application of the reasonable and probable grounds for arrest will, in all circumstances, constitute "bad faith," however it cannot be said that a mistake in applying that standard is one of "good faith." In this case, I find that the decision to forego the approved screening device test and the haste with which Constable Barnes jumped to his reasonable and probable grounds conclusion to be a serious breach of the defendant's right to be free of arbitrary detention and search and seizure.
[87] While the taking of the breath sample for the approved screening device would have taken but a brief period of time to confirm or dispel his suspicions, he instead chose an approach that involved arresting, handcuffing and transporting the defendant to the police station. This process will invariably take a considerable length of time and indeed, in this case, Mr. McMeekin was in custody from the time of his arrest at 10:28 p.m. until his release from the station several hours later after Constable Barnes had gone off duty.
[88] Taking into account all of the circumstances, I assess the police conduct in this instance as being moderately over the middle of the fault line continuum endorsed by the Supreme Court of Canada in Harrison, supra.
[89] I, therefore, assess the impact of this factor to favour exclusion of the breath samples in the analysis.
2.4: Impact upon the Defendant's Charter-Protected Interests
[90] Constable Barnes' precipitous arrest, when he only objectively had a mere suspicion of operating a motor vehicle with alcohol in his blood, had serious implications for the liberty and dignity of Mr. McMeekin.
[91] As a result of the arrest, he was handcuffed, subjected to a warrantless search that yielded incriminatory evidence against him and detained for several hours.
[92] Although Hill, J. in R. v. Bryce, [2009] O.J. No. 3640 (Ont. S.C.) referred to the Supreme Court of Canada's reference to the taking of the breath sample being "like the plucking of a scalp hair or fingerprinting", he did so in the context of discussing participation in ASD testing.
[93] As Gage J. states at para. 30 of R. v. Leonardo, [2009] O.J. No. 5018 (OCJ):
The taking of breath samples although a conscripted search of the body of the subject has been described elsewhere as relatively non-intrusive. It does however impact on concerns about self incrimination which are, in my view, more acute when the foundation for the arrest and demand is found to be absent.
[94] I assess the impact of the police conduct on Mr. McMeekin's Charter-protected interests as being a serious one and, therefore, favouring exclusion.
2.5 Society's Interest in Adjudication on the Merits
[95] It is the evidence of the Intoxilyzer readings that the defendant seeks to have excluded, as well as evidence emanating from the breath room video and the testimony of Constables Radley and Korda. Acknowledging that the Intoxilyzer results are crucial to the Crown's case regarding the charge of over 80, this factor favours inclusion. Acknowledging that the evidence of particularly Constable Radley and the breath room video informs the analysis on the impaired operation charge, this evidence is to be assessed on the issue of impairment.
[96] Breath samples provided into approved screening devices and the Intoxilyzer are generally considered reliable evidence absent evidence of malfunction or improper operator error. As stated by Hill J. in Bryce, supra, at para. 67:
67 Although the seriousness of the charge "must not take on disproportionate significance" (Harrison, at para. 34), impaired operation of a motor vehicle is a notorious threat to public safety: Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) at 356; R. v. Hufsky, [1988] 1 S.C.R. 621 at 636-7; R. v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 545.
[97] Also, these offences are serious offences. The carnage caused on our roadways to innocent victims is a notoriously recognized fact.
[98] That said, the Supreme Court stated in Grant, supra, at paras. 67-70:
67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.
68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
[99] Notwithstanding that the drinking and driving sections of the Criminal Code are serious offences, this case does not involve an accident. Fortunately, the defendant's driving did not result in an accident involving property damage or physical harm.
[100] There is no evidence that the defendant was the driver of the truck reported a few hours earlier. At best, there is a suspicion.
[101] His blood alcohol level disclosed by the Intoxilyzer readings was over three times the legal limit. The application of this factor in the analytical framework, in my view, favours toward inclusion.
2.6: Balancing the Factors
[102] Recognizing that the balancing and analysis involves weighing these sometimes disparate considerations and that no mathematical precision is possible in the analysis, I find that even though the factor of adjudication of the case on its merits favours including the evidence, I agree with Beninger J. when he states in Robinson at para 34:
The result of the breach had a very intrusive impact upon the defendant. In my view, there is a "systemic concern" (Grant, para. 70) to the breach in the sense that Parliament has clearly defined two differing standards for the police to follow in their investigation of drinking and driving offences, with those differing standards presumed to be well known to the investigators.
[103] Gage J. states at paras. 38 to 41 of his judgment in Leonardo, supra:
38 Section 24(2) is not an automatic exclusion provision but neither should it become an automatic inclusionary rule when the evidence is reliable and critical to the success of the prosecution - see Buhay (SCC) at paragraph 71.
39 The constitutional breach in this case is in relation to a procedural requirement that is both vitally important to, and of longstanding prominence in, the overall scheme of criminal justice in a free and democratic society.
40 The conduct of the arresting officer demonstrated inappropriate laxity in the application of that standard.
41 As a result, Mr. Leonardo was subjected to a temporary loss of liberty, the loss for thirty days of an important privilege and an intrusion, albeit of a relatively minor nature, of his bodily integrity.
2.7 Conclusion
[104] In balancing all these factors as best I can, I am of the view that the admission of the breath tests would bring the administration of justice into disrepute. Accordingly, the Intoxilyzer results will be excluded.
[105] As well, in the circumstances of this case, I will exclude the breath room video and the evidence of Constables Radley and Korda. But for the unlawful demand, they would not have been in a position to interact with and make the observations that they did in this case.
[106] Given my stated views on the indicia of impairment that can be yielded from Constable Barnes' evidence alone, the Crown has fallen well short of its onus of proving that Mr. McMeekin's ability to operate a motor vehicle was impaired to even a slight degree and the charge of impaired operation must also be dismissed.
[107] If I am found to be in error regarding the above, I will proceed to analyze the other issues in this case.
3.0: Analysis of Issues as to Whether the Breath Demand was made As Soon as Practicable and Was the Defendant's Rights to Counsel Breached
[108] Mr. McMeekin was arrested at 10:28 p.m. and was handcuffed, searched and placed in the rear of the police cruiser. He was not given his rights to counsel until 10:51 p.m., a delay of some 23 minutes after his arrest.
[109] During this period of time, Constable Barnes thought that it was more important to tend to other tasks than to respect the defendant's rights to be informed of his right to counsel without delay. The whole process of reading the right to counsel and the breath demand would have taken about 2 minutes, as shown by the timing of Constable Barnes reading these rights and demand in court.
[110] Instead, he took about 5 minutes to walk the defendant back to the police cruiser, search and handcuff him and place him in the cruiser.
[111] He then attended with Constable Nagy, a relatively new officer, and spent about 5 minutes explaining to him how to do a heavy tow, checking the truck to see if it was loaded and having some conversation with the accused about whether the truck was loaded.
[112] He then proceeded to stand by while Constable Korda was writing some drinking tickets to three youths to see if he needed any assistance. This took two or three minutes.
[113] He then returned to the cruiser and started making notes to give to the breath technician. This took him about 5 minutes.
[114] He then testified that he read the defendant his rights to counsel and the breath demand at 10:51 p.m.
[115] According to my calculations, the total time that he spent dealing with other matters would have been 18 minutes. Therefore, he should have been able to commence the rights to counsel at 10:48 p.m.
[116] None of these duties, other than the search and placing the accused in the cruiser, should have trumped the accused's right to have his right to counsel read to him and the breath demand read to him. Section 10(b) of the Charter imposes an obligation on police to inform an arrested individual of their right to counsel "forthwith". The Criminal Code pursuant to s. 253(3) requires the breath demand to be read to the accused "as soon as practicable".
[117] There were no cogent or compelling reasons to delay the rights to counsel or the breath demand in this case. In my view, he should have attended to these duties as soon as the arrest and search was completed and the accused was placed in the cruiser. That would have been at approximately 10:33 p.m. After that, Constable Barnes could have attended to arranging the tow and checked on Officer Korda if he thought that it was necessary and then written his essential notes.
[118] By relegating the statutorily directed duties of 'forthwith' and 'as soon as practicable' to the "end of the line" after some administrative and practical duties tends, in my view, to trivialize and to denigrate the clear statutory direction to proceed in a certain manner. The Criminal Code does not direct an officer to arrange for a tow or to complete notes 'as soon as practicable' but it does regarding the requirement of the reading the breath demand.
[119] The Charter of Rights and Freedoms does not direct that a tow be arranged or that detailed officer notes be made 'forthwith'.
[120] By attending to such other tasks that were not compelling in their need, I think that Constable Barnes trivialized his statutorily and constitutionally compelled obligations in favour of housekeeping tasks that had no pressing need to be done at that instant or in the order that they were.
[121] Such an approach shows, in my view, at best, a cavalier disregard for his duties and, at worst, a disdain for them.
[122] This is an officer with 9 years of experience at the time of this incident. Surely he should have been alive to the basic requirements of the necessity of imparting the informational component of the right to counsel forthwith and the requirement of making a breath demand as soon as practicable.
[123] The following exchange serves to inform me on this issue. At page 60 of the transcript this exchange takes place in cross-examination:
Q. And really as soon as practical means unless there's something — as far as your training goes — unless there's something that requires your immediate attention, correct?
A. Correct.
Q. And to be fair, in this case, you should have done it when you arrested him, correct?
A. Wouldn't have been immediate, I still had, I was dealing with the dispatch wanting to know which kind of tow we had to….
Q. Right. You admit that….
A. I dealt with that, yes.
Q. All of those things could have been done after rights to counsel and demand, correct? None of those things required your immediate attention?
A. It wasn't pressing, no, you're correct.
Q. None of the things you did were pressing. And you admit that that's important information to convey to the accused?
A. Yes, it is.
Q. The rights to counsel, demands, these are important pieces of information that allow him to know what's going to occur and what rights he has, correct?
A. Correct.
Q. So you're saying that none of those things were pressing so you could have done that prior to doing all of those other things? You should have?
A. I should have, yes.
[124] Ms. Roda, on behalf of the Crown, has conceded that a s. 10(b) violation occurred, but has not conceded a similar infringement of the requirement that the breath demand be made as soon as practicable.
[125] I am alive to the fact that forthwith implies a greater immediacy than as soon as practicable, but I fail to see the distinction on the facts in this case. Rights to counsel and the breath demand are generally given one following the other and indeed were given in that fashion, after albeit a 23-minute delay.
[126] In a situation where, as here, the defendant does not present a security risk, is apparently understanding of the directions of the officer and comprehending the instructions and information imparted, and compliant to instructions and demands, there is no practical reason to make a fine distinction between the right to counsel and the breath demand. One should follow the other and the rights to counsel should be given forthwith.
[127] However, there can be delays in giving the breath demand that can be forgiven more easily than omission to give the rights to counsel. Even so, there was nothing compelling in what Officer Barnes had to tend to before he gave the breath demand, so I will find that the demand was not made as soon as practicable. Had Officer Barnes given the right to counsel and then attended to do everything else that he did before returning at 10:51 p.m. and giving the breath demand, I would still hold that the breath demand was not given as soon as practicable.
[128] I do not accept his evidence that he had to stand by and watch Constable Korda write tickets to some drunken teenagers. Constable Korda had not requested his presence and he did not even ask him if he wanted him to stand by. There is no evidence that the people Officer Korda was dealing with were in any way threatening or intimidating or behaving in any non-peaceful manner. I, therefore, reject his explanation that it was necessary to watch this process for officer safety reasons.
[129] That said, the right to counsel is the more important right in my opinion.
[130] That is so because, in the circumstances of this case, Mr. McMeekin knew that he was arrested for impaired care or control. What he did not know because of Constable Barnes' omission is that he could consult with and obtain information without cost from a lawyer that would be put in touch with him at the earliest possible time who would advise him of his rights and obligations in his present situation in private.
[131] His right to remain silent, his rights regarding release from custody and exactly what the process that he is involved in would likely entail.
[132] In my opinion, it is particularly crucial that an arrested person knows that a lawyer who will give him or her advice that will benefit them is just a toll-free call away and the police will hold off obtaining incriminating evidence from them until they have exercised that right. Twenty minutes in the back of police car in handcuffs may seem like an eternity for someone not given that timely assurance.
[133] As well, even if the facilitation of the right to counsel is only made at the police station, the person under arrest knows at the earliest possible time that this will be done. They have some comfort in knowing that there is a lifeline available to them even though it may be some time before it can be deployed. Their questions can be answered and their fears may be allayed. I can only imagine the exquisite agony of waiting for a 20-minute period not knowing this.
[134] Alerting the accused to this right at the earliest possible time allows them to reflect upon and formulate the questions that they will have of counsel should they wish to exercise that right. It allows them the comfort to know that they can soon find out if they are likely to be released in a fairly short period of time or to steel themselves to the grim reality that their detention is likely to be lengthy.
[135] The huge power imbalance between a person under arrest and the state is only ameliorated by the timely information that they have the right to speak to a lawyer in private at no cost and to have their concerns addressed and their rights and obligations explained by a lawyer acting in the client's best interest. The informational and implementational components of the right to counsel should occur forthwith.
[136] To relegate these rights to the bottom of the priority heap, as I find that Constable Barnes did in this case, is alarming, indifferent to his obligations to the rights of the accused and, in my view, is illustrative of a cavalier and uncaring attitude to not only the rights of the accused but also to his obligations as a police officer.
[137] We are not dealing with a rookie police officer in this case who has made innocent mistakes. This officer has 9 years of experience and should know better.
[138] Officer Barnes' apparent lackadaisical regard to Mr. McMeekin's right to counsel is further illustrated in him entering the consultation room when the defendant was speaking to duty counsel for some 8 minutes. This interrupted the discussion and duty counsel had to call back. His explanation that he could hear no muffled talking when he listened at the door was suspect to me. The right to speak to duty counsel also includes the right to listen to what advice duty counsel gives, and simply because Officer Barnes heard no talking for a short period of time did not give him the right to enter the consultation room and to take the phone from the accused and then hang it up. There were no pressing matters that could not have waited a few more moments to be sure that the conversation was concluded.
[139] Eight minutes is not an inordinate amount of time to spend getting advice from duty counsel and the effect of a police officer entering the room and taking the phone away and then hanging it up would have a chilling effect on most people under arrest. Further, there was no evidence to suspect that Mr. McMeekin was engaging in a pattern of behaviour designed to delay the process. I, therefore, make a finding as well that Constable Barnes, by his conduct, breached Mr. McMeekin's right to consult with counsel in private and that this further illustrates his pattern of having little regard for a citizen's constitutionally mandated Charter rights.
[140] Do the breaches of the defendant's 10(b) rights warrant exclusion of the breath results under s. 24(2)?
3.1 Seriousness of the Breach
[141] Applying the analytical framework in R. v. Grant, supra, I find that the delay in reading the breath demand was less serious than the delay in reading the rights to counsel. The police station was a short distance away and the accused knew that he was under arrest for impaired care or control. He was not apparently prejudiced in any way by the delay in reading the breath demand. On balance, I may not have excluded the breath results were this the only breach.
[142] The first prong of the Grant test militates towards exclusion, as they are serious breaches.
[143] The breaches of the right to counsel under s 10(b) were much more serious and bordered on egregious.
[144] Indeed, this arrest occurred more than 3 years after the decision in R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 (S.C.C.) and this principle had more than enough time to filter through to frontline officers. In that case at paragraphs 40 to 43 the Court states:
40 As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.
41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
3.2 Impact upon the Defendant's Charter-Protected Interests
[145] I agree with the comments made by Bovard, J. in R. v. Hawkins, [2013] O.J. No. 1103 (OCJ) where he states commencing at paragraph 108 as follows:
108 The impact on Mr. Hawkins of these breaches is serious. The right to counsel is one of the hallmarks of a democratic and free society. It distinguishes us from regimes in which persons are routinely stopped by the authorities and are helpless to defend themselves. It is a serious thing for the ordinary citizen to be detained, arrested, handcuffed and put in a police cruiser on the side of the road in the middle of the night without being told that they have the right to speak with a lawyer who can advise them and assuage their fears by explaining to them the jeopardy in which they find themselves and what they should do about it.
109 When this is added to an unlawful detention and search of Mr. Hawkins' body it increases dramatically the impact on his Charter-protected interests. In Grant, the court stated that "An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy ... is more serious than one that does not" (para 78).
110 Therefore, even though Mr. Hawkins did not provide evidence of the impact of the breaches of his rights, I find that it is reasonable to infer that they had a high impact.
[146] Similarly, I think that in this case, even where Mr. McMeekin did not provide evidence of the impact of the breaches of his rights, I too find that it is reasonable to infer that they had a high impact on him as well. I hold that the second prong of the Grant test suggests exclusion on the facts as I have found them.
3.3 Society's Interest in Adjudication on the Merits
[147] I adopt the reasoning of Wake, J., when he states in R. v. Berto-Lopez, [2010] O.J. No. 5433 (O.C.J.) as follows:
21 The third branch of the Grant test would certainly favour admission of the evidence given the serious problem of drinking and driving and the interest of the public in seeing that trials are heard on their merits and the fact that the breath samples are reliable evidence and would be determinative of this case. Nevertheless, when I come to weigh the three lines of inquiry, I agree with Justice Ducharme in R. v. Ah-Yeung, when he stated at paragraph 67,
"Given the comments about breath sample evidence in paragraph 111 of Grant, one might conclude that the breath sample evidence in this case should be admitted but this conclusion would be incorrect because it would ignore the first two lines of inquiry described in Grant and give the third factor an unjustified analytical preeminence. Moreover these comments in Grant were directed solely at the section 8 issues involved in the taking of breath samples and did not consider the broader issues mentioned above. While the Courts have long recognized the need to effectively address the serious problem posed by drinking and driving, it is important to remember that persons accused of drinking and driving offences are entitled to the full protection of the Charter. The protections of the Charter apply to all persons accused of criminal offences no matter how minor or serious."
22 To some extent, this pronouncement echoes Justice Doherty's statement on section 24(2) in R. v. Golub at paragraph 60:
"In addressing the effect of the exclusion of evidence on the administration of justice, I bear in mind the comments of Iacobucci, J. in R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.) At 408:
... we should never lose sight of the fact that even a person accused of the most heinous crime is entitled to the full protection of the Charter. Shortcutting or short-circuiting those rights affects not only the accused but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system, as well as promoting the decency of investigatory techniques are of fundamental importance in applying section 24(2).
Iacobucci, J. reveals the heart of the third part of the section 24(2) inquiry in this passage. The moral authority to apprehend and punish those who commit crimes rests on the community's commitment to the rule of law, convictions procured by state violations of our most fundamental law lack that moral authority. Respect for the rule of law and the long-term viability of the justice system suffers where the police engage in shortcuts or fail to respect the constitutional rights of those they encounter in the course of the exercise of their duties. The long-term harm to the justice system is not worth the short-term gain made by the admission of the evidence which was obtained in a manner which ignores the rule of law."
In this case, where there were multiple breaches of the Charter, it is my view that the cumulative effect of those breaches was so serious that the admission of the evidence of the breath samples, although reliable and determinative of the case, would bring the administration of justice into disrepute.
3.4 Balancing the Factors
[148] As I stated, I agree with Wake, J. in his analysis in R. v. Berto-Lopez, supra, and in the case at bar I believe that although the third prong of the Grant test leans towards inclusion because the breath tests are reliable evidence essential to the Crown's case and society's need for a determination on the merits of trials, however, the multiple and serious breaches of the Charter rights of the accused, if condoned or excused, would bring the administration of justice into disrepute if I nonetheless admitted the evidence of the breath samples.
[149] After having considered all of the above factors, I find that due to the number of Charter breaches and the lackadaisical attitude towards these rights as evidenced by Constable Barnes' actions and inaction, that the admission of the breath tests would bring the administration into disrepute more so than their exclusion.
[150] Therefore, the evidence of the breath readings will be excluded and the defendant will be found not guilty of the Over 80 Care or Control charge.
4.0: Impaired Care or Control Charge
[151] Returning to my consideration of the impaired care or control charge, even if I was wrong to exclude the evidence of Constables Radley and Korda and the breath room video because my finding was incorrect regarding the lack of reasonable and probable grounds, I still believe that when one looks at the cumulative effect of their evidence, together with viewing the breath room video, that the Crown has not met the standard of proof beyond a reasonable doubt based on the standard relative to impaired operation as approved by the Supreme Court of Canada in R. v. Stellato, [1994] S.C.J. No. 51.
[152] There is no evidence of bad driving in this case. The suggestion that this was the same Taylor moving truck that was called in as being a suspected impaired driver a few hours earlier had no evidence to support that called at trial.
[153] Indeed, the evidence of driving in this case is only Officer Barnes stating that he saw the truck drive about 10 feet and park normally.
[154] The odour of alcohol and the bloodshot, glossy eyes with dilated pupils would not be uncommon in someone who may have been drinking a minimal amount of alcohol that evening at the time of the arrest.
[155] There is no fine or gross motor skill impairment noted by any officer with the exception of Constable Radley stating that "he could have put the mouthpiece in the Intoxilyzer more smoothly than the defendant did". A close viewing of the breath room video shows no unsteadiness or degraded motor skills, no slurring of speech, and only a couple of unusual actions such as hitting the cabinets that could be attributed to his frustration with getting arrested driving his employer's truck which was stolen and the certainty that he would lose his job because of that. His begging to be allowed to have a cigarette are just as consistent with a heavy addiction to nicotine as with unusual actions showing that a person's ability to operate a motor vehicle is impaired by alcohol. The defendant's use of profanity in his discussions with Constable Radley are just as consistent with someone who uses those words on a fairly consistent basis as they are with someone who is impaired.
[156] His uncooperativeness in the booking room is only vaguely alluded to by Constable Korda and does not assist me in my decision. I reject Constable Barnes' evidence that he had to push Mr. McMeekin to sit him down in the booking room. This would have been something that Constable Korda, in my view, would not have forgotten and it would be unlikely that he would have missed in the small booking room.
[157] On all the evidence before me, including the testimony of all the witnesses and after several viewings of the breath room video, I am left in a reasonable doubt on the charge of Impaired Care or Control and he will be found not guilty of that charge as well.
5.0: Conclusion
[158] In light of all the above reasons, Mr. McMeekin is found not guilty of both charges.
Released: March 5, 2014
Signed: "Justice Stephen D. Brown"