R. v. Bennett

Court File No.: Orangeville 12-0085

Date: March 26, 2015

Ontario Court of Justice

Central West Region

Parties

Between:

Her Majesty the Queen

— And —

Derek Bennett

Before the Court

Justice: Richard H.K. Schwarzl

Heard on: May 15, June 9, August 11, 2014 and January 22, 2015

Reasons released: March 26, 2015

Counsel

For the Crown: Raphael Feldstein

For the Defendant: Derek Bennett (Self-represented)

SCHWARZL, J.:

1.0: INTRODUCTION

[1] In the early morning hours of January 12, 2012 the Defendant, Derek Bennett, was driving on Highway 10 in Orangeville when he was stopped by the police. Upon investigating the Defendant, the police arrested him for impaired driving. He was brought back to the police station for breath tests which he never gave, resulting in the additional charge of failing or refusing to provide a breath sample. A trial was held in which a number of issues arose.

[2] With respect to the impaired driving charge, the central question is whether the Crown has proven beyond a reasonable doubt that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol. As for the charge relating to the Defendant's failure to provide breath samples, there were four issues. First, whether the Crown has proven either an act of refusal or the intent to refuse; second, whether the Defendant's right to counsel was violated; third, whether the Defendant's right to be free from arbitrary detention was breached; and fourth, whether the Defendant's right to freedom and security of the person was violated by the police losing certain video evidence.

[3] A great deal of evidence was led during a lengthy trial including photographs, police station security camera video, and testimony from five officers and the Defendant himself.

2.0: EVIDENCE

2.1: Prosecution Evidence

[4] Robert Button is a police officer with the Orangeville Police Service. He is also a qualified breath technician. On Thursday, January 12, 2012 he was on routine patrol within Orangeville and the surrounding highways. The road was in decent condition, being clear but wet. The weather was cold and snow was on the ground. Poor weather was in the forecast. P.C. Button disagreed it was storming at the time.

[5] At around 2:35 a.m. P.C. Button was northbound on Highway 10 when he noticed the car driven by the Defendant travelling well over the speed limit north on Highway 10 near Fourth Avenue. P.C. Button did not recall ever seeing the Defendant earlier that evening while patrolling a side street where the Defendant was standing on the driveway. He said that if he looked at the Defendant on the side street, he never noticed him. In any event, the officer paced the Defendant motor vehicle because the radar unit he had only operated in a stationary mode. The officer observed the Defendant to drive at about 110 km/h in a posted 80 zone and to drift within his lane, and moving over the dashed lines separating the two northbound lanes. P.C. Button was concerned about the sobriety of the driver so he activated his emergency lights to signal the Defendant who did not stop, but continued north. P.C. Button then activated all his lights and sirens because the Defendant's car did not appear to be slowing down.

[6] At 2:36 a.m. the Defendant pulled into a closed gas station and came to a halt. P.C. Button pulled in behind his car, got out and went to the Defendant's driver's side window. The Defendant, who was belted, rolled down his window. The officer asked the Defendant for his ownership, insurance, and licence all of which he produced without hesitation or difficulty. P.C. Button noticed a strong odour of alcohol coming from the Defendant's breath. He asked the Defendant if he had been drinking alcohol to which the Defendant replied that he had "two", which the officer understood as two alcoholic drinks.

[7] At 2:38 a.m. the officer made a formal screening demand to the Defendant because the officer suspected that the Defendant was driving with alcohol in his body. At first the Defendant said he did not understand the demand, so the officer explained it to him in simple language. The Defendant argued with P.C. Button, telling the officer that he had no right to stop him and make a demand. He also started yelling about a trip he was going to take to Las Vegas, which the officer described as turning into a long-winded rant about his confederate rights. P.C. Button found the Defendant to be very mixed up and jumbled in his thoughts. P.C. Button disagreed that the Defendant said "constitutional rights." He distinctly hearing the Defendant say "confederate rights" because it made the Defendant look like he might be from the American South.

[8] P.C. Button interrupted the Defendant and asked again if he understood the screening demand. This time, the Defendant replied, "I respectfully decline" The officer disagreed with the suggestion that the Defendant actually said, "I respectfully decline to exit until I can speak to someone about my rights." P.C. Button cautioned the Defendant about the legal consequences of failing to comply with the demand. The officer noticed that the Defendant then continued his jumbled rant, but nevertheless appeared to understand the demand.

[9] As time passed and the Defendant continued his disorderly thoughts, the officer found that the cumulative effect of all the circumstances to this point were such that the officer now believed that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol. Those circumstances included the nature of the driving, the smell of alcohol on the Defendant's breath, the Defendant's eyes were red and glossy, his face flushed, his speech slurred, his head rolled as he spoke, and finally his disorganized and irrational thoughts. The officer agreed with the suggestion that the Defendant was not unsteady or swaying while on his feet, but the officer qualified this by stating that while on his feet, the Defendant was being physically controlled by the officer. The officer also agreed that the Defendant appeared oriented as to time and place.

[10] At 2:40 a.m. P.C. Button abandoned his intention to administer a screening test and arrested the Defendant for impaired driving. The officer told the Defendant to turn off his car and step out, but he refused to do either and locked his door. The officer was not impeded by this because the Defendant's window was still rolled down allowing P.C. Button to reach in and unlock the door. P.C. Button then opened the door and told the Defendant to come out, but the Defendant continued to refuse, saying it was against his rights. Given the Defendant's lack of cooperation and a general concern for his own safety, P.C. Button radioed for the assistance of another officer. While waiting for help, P.C. Button continued to unsuccessfully negotiate with the Defendant to leave his car.

[11] A short time after calling for assistance, P.C. Daniel Migueis arrived. P.C. Button brought the other officer up to date on the situation. While P.C. Button remained at the driver's door, P.C. Migueis went to the front passenger door, opened it, reached in and undid the Defendant's seat belt which then allowed P.C. Button to pull the Defendant out from his seat. P.C. Button disagreed with the suggestion that P.C. Migueis did nothing but stand by. P.C. Button then handcuffed the Defendant and placed him in the rear of his police car. P.C. Button then asked P.C. Migueis to deal with the seizure and towing of the Defendant's car.

[12] At 2:44 a.m. P.C. Button provided the Defendant his rights to counsel. The Defendant said he understood his rights but added that he did not want a lawyer at that time. P.C. Button was certain that at no time at the roadside did the Defendant state that he wanted to speak with a lawyer there. The officer also gave the Defendant a primary caution, a secondary caution, and a breath demand all of which the Defendant said he understood.

[13] At 2:49 a.m. P.C. Button left the scene with the Defendant to transport him to the Orangeville Police station for the purpose of taking and testing samples of the Defendant's breath. On the way to the station, the Defendant talked about how he belongs to a local service club and that he knows people including police officers. P.C. Button explained to the Defendant what was going to happen at the station, including providing him access to a lawyer. The Defendant told the officer he did not want to speak to him any further without counsel being present. This was the first time that the Defendant said he wanted to speak with a lawyer. P.C. Button disagreed that on the way to the station the Defendant asked to speak with a lawyer named Michael Rombis.

[14] At 2:57 a.m. they arrived at the station. On entering the station, P.C. Button informed the Defendant that the interior of the station was subject to video surveillance and recording. He also showed the Defendant a sign on the station wall that posted rights to counsel. The Defendant said he did not want to speak the police until he had spoken to a lawyer. P.C. Button told the Defendant he could speak with his own lawyer, but the Defendant did not provide him with any names. The transcript of the booking room video disclosed the following exchange:

P.C. Button: And on the right there. Take a seat on the bench please. Okay, sir. I read to you your rights to counsel and caution at the scene there, prior to leaving. This was done there. At that scene you told me you did not want to speak to a lawyer, then half way here you said you refused to speak to me any further without your lawyer present.

Defendant: I'd like to have counsel present.

Button: That, that, that is perfectly fine. I indicated to you that we can contact counsel. You then said that's not your [inaudible] a lawyer of your choice or we can contact a free lawyer, which a duty counsel lawyer for you. So, are you going, now that we're on video, are you going to answer me whether you have a lawyer…

Defendant: Please contact duty counsel on my behalf.

Button: Duty counsel. Okay. Perfect.

[15] P.C. Button then paraded the Defendant before the booking sergeant, A/Sgt Ryan Kett. The Defendant's personal property was taken and stored. That property included some American money, earrings, a necklace, and a bracelet. When asked to take his jacket off, the following conversation took place between A/Sgt. Kett and the Defendant:

A/Sgt. Kett: Well, we'll start with the jacket, actually and you can just set the jacket on the bench. And just take off anything necessary…

Defendant: Is this really all necessary before counsel gets here?

Kett: You'll be speaking with counsel on the phone. They don't come here.

Defendant: That doesn't actually answer my question. I'm not trying to be argumentative.

Kett: Okay. But is this necessary?

Defendant: Is this really all necessary before counsel…

Kett: Yes. Yeah, I have to remove all your jewellery and account for it and put it in this bag and seal it.

Defendant: Before my counsel gets here?

Kett: That is correct, sir.

Defendant: I just wanted to go on video to get you to say that.

Kett (to Button): Okay. Is he aware that counsel doesn't actually come here?

Button: Yeah. I tried to explain to him several times about this whole process.

Kett (to Defendant): Okay. The only time counsel…

Defendant: …[inaudible]…

Kett: …would show up here is if you're a young offender.

Defendant: Yeah. YOAs [inaudible]

Kett: So I have no opportunity to make a phone call on my own…[video jumps ahead several minutes].

[16] P.C. Button testified that during the time gap in the booking room video, the Defendant repeatedly ask to speak with a clergyman. In P.C. Button's presence, A/Sgt Kett explained that the Defendant would only be allowed to call a lawyer or someone, including clergy, for the purpose of getting a lawyer. A/Sgt. Kett recalled the Defendant wanted his "spiritual advisor" called and present. The officer showed the Defendant a book containing rights to counsel. P.C. Button also told the Defendant he could call a clergyman in order to get a lawyer's telephone number.

[17] The booking procedure in this case was much longer than normal, nearly 18 minutes, due to the behaviour of the Defendant, whom P.C. Button described as unfocussed and mentally disorganized. In addition to personal property, the police also confiscated the Defendant's eyeglasses. P.C. Button described the Defendant as mildly belligerent during this time. The booking room video transcript states:

Kett: Okay. That's all I'm gonna do. Any injuries? Yes or no.

Button: Do you have any physical injuries, sir?

Defendant: How far do we want to take this?

Kett: Do you have physical injuries?

Defendant: You guys tell me. It doesn't matter what I answer. At the end of the night I just might.

Kett: Just answer.

Defendant: Buddy's putting his gloves on. I just may.

Kett: How tall are you, sir?

Defendant: Six foot.

Kett: How much to you weigh?

Defendant: 155.

Kett: Eye colour?

Defendant: Blue with a tinge of red.

Kett: Brown hair. Right-handed or left-handed?

Defendant: Depending on what?

Kett: Right-handed or left-handed. What hand do you write with?

Defendant: I'm ambidextrous.

Kett: Okay. I'll put that down. And your place of birth?

Defendant: Hospital.

Kett: In what city?

Defendant: If I knew my mother I'd tell you.

[18] After the Accused was booked and lodged in the cell area, at 3:15 a.m. P.C. Button started the approved instrument he intended to use to analyze samples of the Defendant's breath. Around this time, P.C. Button recalled the Defendant complaining about his constitutional rights, which was in contradistinction to complaining of his confederate rights when he was stopped. During the booking procedure, A/Sgt. Kett did not recall the Defendant to have any coordination problems, nor did he recall the Defendant's speech being slurred. A/Sgt. Kett agreed that the Defendant did not appear to be intoxicated.

[19] Both A/Sgt Kett and P.C. Button agreed that six minutes during the booking procedure is not on the disclosed video disc. A/Sgt. Kett testified that he recalled that it was during this time that the Defendant spoke about having his spiritual advisor present. A/Sgt. Kett recalled that the Defendant acknowledged that his spiritual advisor was not a lawyer and further that the Defendant did not wish to contact his spiritual advisor for the purpose of accessing legal counsel.

[20] With respect to the gaps in the disclosed videos, Special Constable Brian Black gave evidence. He is in charge of all video and audio services at Orangeville Police Service including storage, retrieval, and reproduction of audio and video recordings at the station. He testified that all areas of the police station are subject to audio and video recording. He also stated that the cameras will only come on when there is some motion to activate them. In order to record any motion or sound, someone or something has to move. Simply speaking will not activate the recording equipment. In connection with this case, S.C. Black reviewed the booking area, cells, and hallway videos several times each. The Orangeville Police Service internal surveillance system it has been, and continues to be, reliable in all aspects. After speaking with the software provider as well as to members of the Town IT department, S.C. Black could not find any software or hardware issues that could account for the gap in the booking room video in this case. Nor was there a power spike or outage. S.C. Black testified that for an unknown reason, these six-plus minutes were simply not recorded. He is not aware of this problem ever having occurred before. S.C. Black agreed that it is possible to edit or interrupt the booking room recordings but he added that in this case human intervention was unlikely because there was no one monitoring the system to pause the recording at the time and no evidence of anyone subsequently editing what was recorded.

[21] S.C. Black testified that surveillance footage within the station is retained for 8 to 9 months before being overwritten by more current data. He said that if a request is made in a timely way, data can be copied and permanently archived. In this case, the Defendant requested a copy of the video of his release but because he asked for it only shortly before the trial started, that footage had long been overwritten.

[22] At 3:17 a.m. P.C. Button called duty counsel. At the time he called duty counsel, P.C. Button was told by the Defendant that he wanted to speak to a clergy. P.C. Button asked for the number of the clergyman but the Defendant refused to provide it.

[23] At 3:31 a.m. duty counsel called the station. The Defendant was immediately brought from the cell to a room with audio privacy where he spoke with duty counsel. P.C. Button maintained visual contact through the door window to ensure no mischief or self-harm. The Defendant finished his call at 3:38 a.m. When the Defendant finished, he yelled into the receiver, banged it twice and muttered, "Nice try guys. I will wait it out." P.C. Button strongly disagreed with the suggestion that the Defendant told him that he was dissatisfied with duty counsel and wanted to peak to another lawyer as such a statement would have been captured on the station security video. After the call with duty counsel, the Defendant was returned to the cell to await P.C. Button who was completing the set up of the approved instrument.

[24] P.C. Button disagreed with the suggestion that after the Defendant got off the phone with duty counsel he said he wanted to speak with Michael Rombis. The officer testified that if the Defendant had said this, he would have facilitated the call. P.C. Button also disagreed that he told the Defendant "You can call your lawyer, but you have to provide me with a number." P.C. Button testified that had he been given the lawyer's name he would have looked up the number himself. P.C. Button also disagreed that he refused the Defendant's request to retrieve his cell phone to look up Mr. Rombis' number. P.C. Button stated that had such a request been made he would have accommodated it and then permitted the Defendant to speak to his own lawyer on a private line. A/Sgt. Kett testified that at no time did the Defendant ask to speak to a particular lawyer, including Michael Rombis, but did request duty counsel. A/Sgt. Kett said that had the Defendant wanted access to his cell phone to retrieve a lawyer's telephone number he would have facilitated that request.

[25] By 4:00 a.m. P.C. Button was ready to take the breath tests. Over the next ten minutes, P.C. Button tried without success to have the Defendant exit the cell to comply with the breath demand. Special Constable Jeronimo testified that when he told the Defendant it was time to come out for breath testing the Defendant told him, "I can't come out because I am in prayer and cannot be interrupted. My God is a higher power than you." Special Constable Jeronimo observed that the Defendant had slurred speech. The transcript of this period states:

Button (to cell officer): Bring him on in.

Jeronimo (cell officer): Ready to go?

Button: I am.

Jeronimo: Okay. (to Defendant) Hey Derek. Is it Derek? Right. Hey, Derek. Derek. (to Button) He's in prayer. Don't disturb him.

Button: (to Jeronimo) Okay. Well, we'll document that at this point. Well, let me just go and talk to him for a sec. (to Defendant). Sir, are your refusing to exit the cell at this point because you're in prayer, is that correct? Derek? (to Jeronimo) Page the sergeant [inaudible]. I'll, I'm just gonna document that.

Dispatch: Rob, call dispatch. Rob.

Button (to sergeant): Hey. Hi, Sarge. Okay. Well, my suggestion would be to stand by the cell and wait 'til he acknowledges that he's ready to stop prayer. He's causing a reasonable delay for himself but we have to be there just in case he says, "Okay, I'm ready to go now." All right. (to camera) Well, the video's running. I'm ready to go. It's 4:00 a.m. He's refused because he (to Jeronimo) what was his exact words?

Jeronimo: He's in prayer. He cannot be disturbed.

Button: Okay. And I attended the cells and he would not respond to me either. So all I can do is, we'll stand by the cells and wait for him.

Jeronimo: I'll talk to him again and let him know that we're ready once he's done his prayers.

Button: Yeah, that'd be great.

Jeronimo (to Defendant): Derek, let me know what you're all done, okay?

Defendant: My religious beliefs entail that I cannot be disturbed until twelve noon on Thursday of any given week.

Jeronimo: Okay.

Button (to Defendant): So, Derek, since you're responding right now, at this point, if you fail to come, I'm going to consider that a refusal which, as I've cautioned your before, carries the same weight as impaired driving.

Defendant: My religious beliefs entail that I cannot have any human interaction until 12:00 p.m. on any given Thursday.

Button: Okay. Well, alright.

Defendant: I have rights [inaudible].

Button: If that's the case, you are refusing to provide a breath sample.

Defendant: You law given by the Crown does not govern the law given by my God.

Button: Okay. When then…

Defendant: And sir, in any federal court…

Button: Then in that case…

Defendant: …in any superior court you will be bowed down to by this religious belief.

Button: Okay, sir. So at this point it is my understanding that you are refusing to provide such samples due to your religious beliefs. Is that correct? I'm just trying to gain an understanding. Is that correct?

Defendant: Are you infringing on my right to…

Button: No. I'm trying to gain an understanding, sir.

Defendant: Sir, are you infringing on my rights to prayer? Are you infringing on my religious beliefs that I have before God?

Button: As I understand you, no I'm not. I am asking you if, due to your religion, religious beliefs you are refusing to provide a breath sample.

Defendant: Sir, never once did I ever, ever…

Button: Failure to attend the breath room and provide me a sample is deemed as a refusal and I have no problem proceeding that way, and you're welcome to go to court and explain that because of your religious beliefs you were required by God or whatever belief of superior being you have, that you are unable to provide a breath sample.

Defendant: At this time I cannot disrupt the ceremony.

Button: Okay. Well I don't see a ceremony going on, so it is my understanding that you're refusing to provide…

Defendant: That's your interpretation, sir. At this time I cannot disrupt the ceremony.

Button: Okay, well you are responding to me, so at this point you are still responding, so I'm gonna ask you, are you refusing to provide a breath sample?

Defendant: Sir, at this time I cannot disrupt the ceremony.

Button: Okay. I'll give you another few moments and then I'll come back and check on you again and at that point, if you're not ready to provide a breath sample, then I will be deeming that as a refusal to provide to provide a breath sample. You'll be charged with impaired operation and refusal to provide.

Defendant: Sir, you're welcome to your interpretation of it in the eyes of your laws, but under the eyes of my God I cannot disturb this ceremony.

Button: Okay. Well, you obviously are disturbing your ceremony by responding to me, so again, you let me know if…

Defendant: You have no understanding of…

Button: Okay, so when is your ceremony gonna be finished?

Defendant: At twelve noon on every Thursday.

Button: Okay. Well twelve noon on every Thursday and you can't be disturbed at that point, then officially on record with the video here I'm gonna deem you as a refusal and I'm gonna be preparing the documents as refuse to provide…

Defendant: At no time did I refuse…

Button: Okay, sir…

Defendant: …under your laws.

Button: Okay. Well, sir, you don't have to tell me you refuse. Failing to comply, failing to exit the cell to attend the breath room is gonna be deemed as a refusal. I don't wanna have to explain that no more.

Defendant: At no point did I ever refuse to exit.

Button: Okay. And do you realize, sir, at this point I can only gauge that your blood alcohol level is about the legal limit of 80, and that I have to hold you until such time as your blood limit increases [sic] to a safe level to release you back in the public, so you're unfortunately gonna be delayed until, I guess, noon tomorrow. Do you understand that? Obviously the lack of response is soaking in. Right now the time officially is 4:10, and I'm deeming this as a refuse to provide breath sample….

[26] P.C. Jeronimo agreed that the Defendant never actually said that he was refusing to provide a breath sample, but he concluded the Defendant was in fact refusing to provide samples because he would not come out of the cell. After P.C. Button told the Defendant about the second charge, Special Constable Jeronimo checked on the Defendant periodically over the next couple of hours. Each time he looked, the Defendant appeared to be praying. Sometime around 5:30 a.m. release papers were prepared but not presented to the Defendant at that time.

[27] At 6:10 a.m. the day shift came on duty. The day shift sergeant, Sgt. Tom Dellelce spoke with A/Sgt Kett and Special Constable Jeronimo about the Defendant, who was the only prisoner in the cells. He then went with P.C. Jeronimo to assess the Defendant who had been sitting cross-legged for hours. The officers tried to get the Defendant to stand up, but he refused, causing a very minor struggle as the officers insisted he get up and then with minimal force lifted him up against his will. Despite the obvious lack of cooperation by the Defendant, Sgt. Dellelce deemed him fit for release. Sgt. Dellelce then left the cell area to conduct a shift meeting with his fellow officers and do paperwork.

[28] Just after 7:00 a.m. Sgt. Dellelce and Special Constable Jeronimo went to the cells together to release the Defendant. Sgt. Dellelce tried to get the Defendant to leave the cell and sign release papers, but he refused, in part by telling the officers he needed his glasses. Sgt. Dellecle did not retrieve the Defendant's glasses because they were stored with cash and the officer did not want to be later accused of tampering with the Defendant's property if any cash was missing. Special Constable Jeronimo and Sgt. Dellelce both testified that had the Defendant come out of the cells they would have given him all his property, including his glasses, at the time he signed the release documents. While trying to convince the Defendant to sign papers, the Defendant's voice did not appear slurred at this time.

[29] After the officers and the defendant bickered back and forth about getting the Defendant to sign papers so he could leave, the Defendant told the officers, "I refuse to leave for my safety." Sgt. Dellelce informed the Defendant that since he refused to sign the release documents that he would be held for a show cause hearing and he left the cell area. Shortly after this, P.C. Button was told to prepare bail papers because the Defendant refused to come out of the cells. Special Constable Jeronimo that the Defendant had missed his flight to Las Vegas, to which the Defendant said that he bought travel insurance and would go tomorrow. Special Constable disagreed that he was deliberately antagonizing the Defendant, but was instead merely making conversation.

[30] Shortly after 8:00 a.m. Sgt. Dellelce returned to the cells hoping that the Defendant would reconsider and sign the release papers. He had been asked by another cells officer to come back earlier, but Sgt. Dellelce wanted to finish other duties and wanted the Defendant to cool off for a time. When he returned to the cells it was because he wanted the Defendant out of custody and on his way, believing that a bail hearing was a last resort. The Defendant still refused to cooperate with the police.

[31] Eventually, at the Defendant did sign the Promise to Appear and Undertaking at 8:11 a.m. and was released from the station before 8:30. The Undertaking included a condition to remain in Ontario.

2.2: Defence Evidence

[32] The Defendant resided in Shelburne at the time of this incident. He had airline tickets to travel at 6:30 a.m. on Thursday, January 12, 2012 from Toronto to Las Vegas. In the evening of January 11, the Defendant went to the bank and got some American money. He then met a friend at Boston Pizza were he drank a single Coors light draft beer. The Defendant and his friend left the restaurant around 8:00 p.m. and went to his friend's house on Hurontario Street.

[33] The Defendant slept a while at his friend's house with the plan of driving to Shelburne to retrieve his luggage and to drive to the airport for 3:00 or 3:30 a.m. The Defendant slept very poorly and was fatigued when he left his friend's house around 1:45 or 2:00 a.m. While his car was warming up, he noticed a police car on the street. It was P.C. Button who slowed down to look at the Defendant, signalled an acknowledgement and drove on.

[34] A few minutes later, the Defendant drove away from his friend's house and headed north on Highway 10 to drive home. He was not fully awake whilst driving. His car was still cold and would not go very fast, but he had the cruise control locked in at 80 km/h. The weather was very cold and stormy, with blowing snow that caused his car to sway a bit, but not swerve.

[35] While driving north, the Defendant noticed P.C. Button's car pacing him, which made him anxious as the Defendant could not understand why the police would be following him. When the police car lights came on, the Defendant pulled into a closed gas station. The Defendant turned off his car, but left the keys in the ignition. The Defendant rolled down his window and presented the officer with all of his paperwork. P.C. Button asked the Defendant if he had anything to drink, to which he replied, "One drink at dinner." When the officer said that he smelled alcohol, the Defendant stated, "Not from me. That's impossible." He did not tell P.C. Button he was fatigued because he did not believe the officer would listen to him.

[36] When the officer made a screening demand, the Defendant stated, "Is that necessary? I have a flight to catch." The officer became agitated and demanded that the Defendant exit his car. The Defendant was surprised and tried to make sense of what was happening. He asked the officer why he pulled him over and the officer told him, "It doesn't matter." The Defendant then told the officer that he wanted to speak right away with his lawyer, Michael Rombis, but P.C. Button said, "That's not going to happen" and radioed for back up.

[37] A short time later, P.C. Migueis arrived and came to the passenger side of the Defendant's car as P.C. Button insisted that he get out. As P.C. Button reached through the open driver's window P.C. Migueis came inside and unbuckled the Defendant's seatbelt after which P.C. Button pulled him out. The Defendant was put on the hood of his car with his hands behind his back and given his right. When P.C. Button asked the Defendant if he understood his rights he stated, "You know I do. I've been telling you for the past five minutes I want to speak to Michael Rombis." The officer then aggressively and militantly searched the Defendant and placed him in the rear of his cruiser. P.C. Migueis then left.

[38] Once in the rear of the police car the Defendant asked P.C. Button what was going to happen. The officer told him he was being taken to the station for breath tests. The Defendant said he wanted to take the screening test but P.C. Button would not let him. The Defendant told the officer he could not afford the delay because he was leaving very soon. When the Defendant told the officer that it would be his word against the Defendant's, the officer said that he guessed so. The Defendant felt that P.C. Button acted as if he owned the Defendant.

[39] On the way to the station, the Defendant challenged P.C. Buttons tactics and ethics. The Defendant tried to reason with the officer and told him he was making a huge mistake, but the officer was non-responsive. The Defendant told P.C. Button twice that he wanted to speak with his lawyer, to which the officer said, "That can happen at the station." The Defendant denied babbling, slurring his words, or bobbing his head. He said his face was not flushed and if his eyes were red it was because he had not only poor, but little, sleep.

[40] Once at the police station, the Defendant cooperated with the police but was upset about the unjust circumstances he found himself in. The Defendant said that it was during the missing six minutes of the booking room video that he told A/Sgt. Kett that he wanted to speak to his own lawyer and that he wanted his lawyer with him. The Defendant testified that on this missing six-minutes of the booking room video he not only told the officers he wanted to speak with Mr. Rombis, but that he had the lawyer's phone number in his cell phone which the police refused to retrieve. When he insisted on calling Mr. Rombis, P.C. Button said, "Dude, he won't be in his office."

[41] The Defendant testified that it was not he but A/Sgt. Kett who recommended that he might want to speak to a clergyman instead of a lawyer. The Defendant told the officer that if he can't speak to his lawyer then he would talk to the clergyman but that never happened. The Defendant felt the police were playing cat-and-mouse with him and that they treated him with condescension.

[42] The Defendant felt confused by the police conduct when he insisted on having his phone call and when asking the police when his lawyer was coming. He was equally confused when the police put him in touch with duty counsel because when he lifted the phone he thought it would be Michael Rombis, but it wasn't. The Defendant said that when he told P.C. Button it wasn't Mr. Rombis, P.C. Button said, "Take it or leave it."

[43] When the Defendant was escorted to the phone room by P.C. Button, he asked the officer how he managed to get Mr. Rombis' number. The officer replied, "We didn't. It's duty counsel." The Defendant also testified that on the way to the phone room he asked to call Mr. Rombis but when he told P.C. Button that he needed access to his phone to retrieve the phone number the officer said, "That's not going to happen."

[44] The Defendant spoke to duty counsel but was not satisfied with the evidence he was given. In fact the Defendant was not certain that the person he was speaking to was even a lawyer because the person was curt and did not speak "legalese." On the way out of the phone room the Defendant told P.C. Button "Nice, try. I'll wait it out" because he wanted to speak with Mr. Rombis. The Defendant disagreed with the suggestion that he never told P.C. Button he wanted to speak to a particular lawyer before or after speaking with duty counsel. He said it was not caught on the recording, even though his statement "nice try" was.

[45] When the Defendant returned to his cell, he wanted access to his cell number but he was denied. The Defendant decided to pray and was thinking how he was going to get out of this situation. Praying helped him keep calm and cool. He decided to stay in a state of prayer until he was told he could speak with his own lawyer. Each time the police came to the cell the Defendant felt he was being ridiculed by the police and he felt they were provoking and antagonizing him.

[46] When P.C. Button came to the cells to take the Defendant for breath tests, he told the police he was in prayer because he wanted to delay the tests until he spoke to his lawyer. The Defendant never intended to refuse to provide a sample, but only to delay the test until he got legal advice from Mr. Rombis. The Defendant explicitly told the police he was not refusing.

[47] From the time that P.C. Button told him he would be charged with refusal until Sgt. Dellelce entered the cell, the Defendant remained stoic, but was upset because he had been unjustly caged like a wild animal and had been forced to miss his plane. At no time were the police helpful or polite to the Defendant. The Defendant agreed that he never followed any of P.C. Button's or Sgt. Dellelce's directions to the leave the cell.

3.0: ISSUES

3.1: Was the Defendant's ability to operate a motor vehicle impaired by the consumption of alcohol?

3.1.1: Positions of the Parties

[48] The Crown submits that on the totality of the evidence it has proven that the Defendant's ability to operate a motor vehicle was impaired by alcohol and invited me to draw an adverse inference in favour of impairment from the Defendant's failure to comply with the breath sample. The Defendant denies he was intoxicated. He submits that on the totality of the evidence there ought to be a reasonable doubt that he was impaired to drive.

3.1.2: Applicable Legal Principles

[49] Impairment of the ability to operate a motor vehicle must be proven, not just "impairment" generally: R. v. Ryan, [1998] O.J. No. 3539 (Gen. Div.); R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A); R. v. Jobin, 165 C.C.C. (3d) 550 (Que. C.A.) at ¶ 53.

[50] Any degree of impairment ranging from slight to great, establishes the offence: R. v. Stellato, 78 C.C.C. (3d) 380 (Ont. C.A.); aff'd , 90 C.C.C. (3d) 160 (S.C.C.); R. v. Moreno-Baches, 2007 ONCA 258, [2007] O.J. No. 1314 (C.A.). "Slight" impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like: R. v. Censoni, [2001] O.J. No 5189 at ¶ 47 (S.C.J.).

[51] Impairment may be found if alcohol is a contributing cause to the impairment, even if the complete impairment is contributed to by additional causes such as fatigue, medication, paint fumes, or jet lag: R. v. Pelletier, 51 C.C.C. (3d) 161 (Sask. Q.B.); R. v. Connery, [1996] O.J. No. 5037 (Prov. Ct.); R. v. Bartello [1997] O.J. No. 2226 (C.A.); R. v. Spina [1999] O.J. No. 5130 (S.C.J.).

3.1.3: Analysis

[52] Sgt. Dellelce did not give any evidence regarding intoxication, which is not surprising since he only encountered the Defendant starting at 6:00 a.m., which was several hours after the arrest.

[53] The cells officer Special Constable Jeronimo testified the Defendant's speech was slurred but no other signs of intoxication. S.C. Jeronimo dealt with the Defendant periodically from the time he was first lodged in the cells until his release. Some of those dealings around 4:00 a.m. were introduced into evidence which included some conversation between S.C. Jeronimo and the Defendant. I did not detect any slurring of the Defendant's speech while watching the video from both the booking room or the cells.

[54] A/Sgt. Kett testified he did not detect any signs of intoxication while booking the Defendant.

[55] P.C. Migueis was at the scene of the arrest. But for a brief moment when he reached into the car to release the Defendant's seat belt, P.C. Migueis had no contact with the Defendant. His primary role was to stand by for safety reasons and to deal with the Defendant's car. The absence of any evidence of impairment from P.C. Migueis has no significance in the circumstances.

[56] The evidence of impairment in this case comes primarily from the arresting officer, P.C. Button. P.C. Button's conclusion that the Defendant was impaired to drive was based on a constellation of factors including the time of day, the speed and drifting of the car while being driven, the slow response time to pull over, the odour of alcohol on the Defendant's breath, slurred speech, and finally the disjointed ranting of the Defendant when subjected to a screening demand. Prior to the rant, P.C. Button did not feel the Defendant was impaired which was why he made the screening demand. It was the Defendant's response to the screening demand that was the tipping point for P.C. Button to conclude that the Defendant was not just driving with alcohol in his system, but that he was intoxicated while driving.

[57] I found P.C. Button to be an honest, careful, and reliable witness. He was professional with the Defendant at all times, as is shown on all station videos. I accept that in the cauldron of events leading up to the Defendant's arrest that P.C. Button honestly and reasonably believed that the Defendant was driving drunk. Viewed in isolation, P.C. Button's evidence of impairment is persuasive. However, when taking his evidence together with all of the other evidence led at this trial, I cannot find that impairment was proven beyond a reasonable doubt. In particular, A/Sgt. Kett's evidence that when booking the Defendant he did not appear drunk is material. The booking started within ten minutes of the Defendant's arrest and he was in A/Sgt. Kett's presence for nearly twenty minutes. Also, the Defendant's evidence that it was stormy out causing some drifting and that he wanted to pull over in a safe place is plausible. Given the material conflicts in the evidence, I am not prepared to draw any adverse inferences against the Defendant due to his failure to provide breath samples.

[58] After carefully reviewing all of the evidence, I am left in a state of reasonable doubt that the Defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol. The charge of impaired driving is therefore dismissed.

3.2: Did the Defendant refuse or fail to provide a breath sample?

3.2.1: Positions of the Parties

[59] The Defendant submits that he did not refuse to comply with the breath demand but instead sought to defer it until he had spoken with his own lawyer. The Crown submits that it was not the words the Defendant used but rather his actions that constituted the refusal in this case.

3.2.2: Applicable Legal Principles

[60] The elements of the offence of Failing or Refusing to Provide a Breath or Blood Sample that must be proven beyond a reasonable doubt by the Crown are:

a) A valid demand;

b) The failure or refusal of the detainee to provide a suitable sample;

c) The intention of the detainee to fail or refuse to provide a suitable sample; and

d) Once raised by the evidence, the absence of a reasonable excuse.

R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 (C.A.)

[61] What constitutes a refusal depends on all of the circumstances of the case. The refusal or failure need not be words, but may be conduct of the detainee: R. v. Cunningham, 1989 ABCA 163, [1989] A.J. No. 544 (C.A.); R. v. Gutierrez, [2001] O.J. No. 3659 (S.C.J.).

[62] In R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 (S.C.J.) Durno, J. held that the determination of whether the mens rea component is satisfied beyond a reasonable doubt will require a case-specific analysis of all the circumstances, including, but not limited to, the following:

a) the words and actions of the detainee from which the officer concluded he or she intended to refuse to provide a suitable sample;

b) the number of opportunities the officer provided to the detainee;

c) the instructions provided to the detainee by the officer including:

(i) any reference to the applicable law,

(ii) how to provide the sample, and

(iii) whether the detainee was told they were being given one last chance to provide the breath sample;

d) the detainee's state of intoxication and attitude;

e) the availability of the technician and an approved instrument; and

f) where the detainee has been told that he or she has refused to provide a suitable sample and will be charged and indicates they want another opportunity, the time between being told of the charge and the offer, the number of opportunities to provide a breath sample and previous "last chance" offers, and the manner in which the offer is made. These criteria will assist in determining whether the request was bona fide.

[63] A defence of reasonable excuse on a charge under section 254(5) of the Criminal Code cannot be based on a denial of rights to counsel: R. v. Williams, 78 C.C.C. (3d) 72 (Ont. C.A.); R. v. Jacobson, [2002] B.C.J. No. 3202 (B.C.S.C.); R. v. Van Deelen, [2009] O.J. No. 272 (C.A.). However, where rights to counsel have been infringed, exclusion of evidence of the refusal may be a viable remedy: R. v. Van Deelen, supra; R. v. Lunn, [2012] N.S.J. No. 257 (N.S.S.C.); R. v. Soomal, [2014] O.J. No. 2160 (O.C.J.); and R. v. Gill, 2015 ONCJ 59, [2015] O.J. No. 668 (O.C.J.).

3.2.3: Analysis

(a) Was there a valid breath demand?

[64] I find that the breath demand made by P.C. Button was a valid one. It was clear, unequivocal, and understood by the Defendant. P.C. Button subjectively believed that when he made his breath demand that the Defendant had committed the offence of impaired driving. His belief was not immediate but formed when trying to administer the screening test. In forming his grounds to believe that the Defendant was impaired, P.C. Button relied not only on the reasons he had to make the screening demand, but also on the unusual way the Defendant behaved in response to that screening demand. The officer found the Defendant somewhat belligerent and uncooperative. He also found the Defendant's thoughts confusing and disjointed.

[65] On video at the police station, the Defendant displayed what I describe as a passive aggressive and confrontational attitude with the police. His thoughts at the station appeared inconsistent if not confused. In particular, he repeatedly stated his religion prohibited him from talking to any person until noon on Thursdays, but on this Thursday he spoke to the police at the roadside and in the station, plus he spoke with duty counsel. Also, he did not appear willing to understand the explanations given by the police as to why his clergyman could only be called for limited reasons. It may be that the Defendant's mind both on the road and at the station was not influenced by alcohol but rather by his feeling that the police were doing him wrong. I find that the Defendant's mental state at the station was not inconsistent to what P.C. Button said he observed on the roadside.

[66] The Defendant's attitude and demeanour after being stopped was explained by him as being the result of fatigue and a belief he was being persecuted. However, I find that at the time of the administration of the screening test it was reasonable for the officer to believe that the Defendant was in fact intoxicated. While I have found that the Crown has failed to prove beyond a reasonable doubt that the ability of the Defendant to operate a motor vehicle was impaired by the consumption of alcohol, I am wholly satisfied that it was reasonable for P.C. Button in all the circumstances known to him when he made the demand to believe the Defendant was impaired. The sum total of the constellation of factors the officer honestly believed to conclude that the Defendant was impaired were objectively reasonable, even if they fell short of proving impairment beyond a reasonable doubt.

[67] I conclude that the breath demand made by P.C. Button was a lawful one and that the Defendant had a legal obligation to comply with it.

(b) Did the Defendant fail or refuse to provide a suitable breath sample?

[68] It is agreed by the parties that the Defendant did not provide any suitable breath samples to a qualified breath technician in this case.

(c) Did the Defendant intend to fail or refuse to provide a suitable breath sample?

[69] I find that the Defendant intended to fail or refuse to provide a suitable breath sample. The Defendant was aware of the consequences of not providing suitable breath samples. An approved instrument and a qualified technician were both immediately available and ready to take and test those samples.

[70] Although the Defendant never said that he was refusing to provide breath samples, his actions and words unequivocally establish that he had no intention to comply. This intention was manifested when the Defendant told the police that he would not interrupt his prayers to give samples and when he added that the authority of his religion was greater than that of the criminal law.

[71] As is seen on the cell video, P.C. Button exercised both patience and professionalism when he gave the Defendant a reasonable opportunity to complete his prayers. When he returned and insisted the Defendant come out, the officer was greeted with a statement that the Defendant's religious beliefs did not permit any human interaction until noon. This of course, was nonsense. The Defendant had already spoken to P.C. Button at the roadside, he had spoken with P.C. Button and A/Sgt. Kett at the station, he had spoken with S.C. Jeronimo, and he had spoken to duty counsel. The Defendant stubbornly and disingenuously refused to provide any breath samples because he would not allow the police to interrupt his prayer ceremony.

[72] The Defendant's unmistakeable and obstinate refusal to provide breath samples was consistent with his refusal to get out of the car when arrested, his refusal to give A/Sgt. Kett straight answers to basic questions upon booking, his refusal to accept that he could not have a spiritual advisor present, his refusal to get up off the floor when told to by Sgt. Dellelce, and his refusal to leave the cells so he could be released.

(d) Did the Defendant have a reasonable excuse not provide a suitable breath sample?

[73] According to law, the Defendant's evidence that he would not provide samples until he spoke with his own lawyer is not a reasonable excuse on this charge. I will, however, consider this evidence when dealing with the alleged breach of the Defendant's rights to counsel.

[74] For the reasons given I find that the Crown has proven beyond a reasonable doubt that the Defendant failed or refused without reasonable excuse to provide suitable breath samples when required to do so by a valid breath demand.

3.3: Was the Defendant's section 10(b) Charter right breached?

3.3.1: Positions of the Parties

[75] The Defendant submits that he told the police several times he wanted to speak with his own lawyer, Michael Rombis, but they refused to facilitate his access to counsel of choice. The Crown submits that the police did not violate the Defendant's rights to counsel.

3.3.2: Applicable Legal Principles

[76] As mentioned earlier in these reasons (see paragraph 63, above) a denial of the right to counsel is not a reasonable excuse for refusing to comply with a breath demand within the meaning of s. 254(5) of the Criminal Code but where rights to counsel have been infringed, exclusion of evidence of the refusal may be a viable remedy.

[77] The police must give a detainee his rights to counsel before breath samples are provided and must give the person both (a) sufficient information and (b) a reasonable opportunity to exercise those rights: R. v. Brydges, 53 C.C.C. (3d) 330 (S.C.C.).

[78] Where the police assist the Accused in exercising his rights to counsel, the police must be reasonably diligent: R. v. Wilding, 2007 ONCA 853, [2007] O.J. No. 4776 (C.A.). While the police must be reasonably diligent in assisting the Accused in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.); R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).

[79] The test is not whether the police could have done more, but rather did the police provide the accused with the necessary information and assistance to allow the accused to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.); R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.); R. v. Antoninas, 2014 ONSC 4220, [2014] O.J. No. 5226 (S.C.J.).

[80] The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross, 46 C.C.C. (3d) 129 (S.C.C.); R. v. Richfield, 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, 196 C.C.C. (3d) 426 (Ont. C.A.); R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.).

[81] Where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why: R. v. Williams, [2014] O.J. No. 2559 (C.A.). The police are only able to respond to information provided by the detainee and cannot be held to a standard of clairvoyance: R. v. Eakin, [2000] O.J. No. 1670 (C.A); R. v. Littleford, [2001] O.J. No. 2437 (C.A.).

[82] The police must generally permit the detainee to contact a third party, such as a spouse, parent, neighbour, clergyman, paralegal, etc. to facilitate contact with counsel. It may be reasonable for the police to make those contacts on behalf of the detainee: R. v. Tremblay, 37 C.C.C. (3d) 565 (S.C.C.); R. v. Crossman, [1991] B.C.J. No. 729 (C.A.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Barran, [2004] O.J. No. 1686 (O.C.J.).

[83] Unless the detainee expresses to the police dissatisfaction with advice received, he is not entitled to Charter relief: R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Kumarasamy, supra, R. v. Cairns, [2004] O.J. No. 210 (C.A.); R. v. Burley, 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.), aff'd [2010] O.J. No. 5355 (C.A.); R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 (S.C.C.).

3.3.3: Analysis

[84] At the heart of the Defendant's claim that his rights to counsel was breached is his evidence that he repeatedly told the police both at the roadside and at the station that he wanted to speak to his own lawyer, Michael Rombis, but that the police refused to facilitate every request. The police deny any such statements were ever made to them.

[85] I found the police officers in this case to be credible and reliable. Each of them, and in particular P.C. Button, was a model of professionalism, patience, and reason. Not only was their oral testimony given in a clear, unbiased, and consistent fashion, but their conduct as captured on the police station video corroborates the way in which they said they comported themselves at the time.

[86] I find that P.C. Button and A/Sgt. Kett were at all times aware of their duties and responsibilities to provide the Defendant access to any lawyer he wished. Both officers were at all times conscientious and considerate to the Defendant's rights. I am well satisfied that if the Defendant had ever said he wanted to speak to a particular lawyer, (whether on video or not) the police would have facilitated that request forthwith.

[87] I did not find the Defendant a credible or reliable witness. Given that I find the police were well aware of their duties and executed them according to law, I find the Defendant's allegations that the police, and in particular P.C. Button, were antagonistic towards him and flagrantly ignored his pleas to speak to Mr. Rombis unworthy of belief.

[88] Many other aspects of the Defendant's evidence gave me grave concerns about his credibility. He said P.C. Migueis left the scene after the Defendant was placed in P.C. Button's cruiser. I don't believe it. P.C. Migueis was tasked to look after the Defendant's car after P.C. Button left with him for the station. This was his duty and utterly routine in cases like this. I found the Defendant's evidence that it was not him, but the police who suggested that he speak to a clergyman instead of a lawyer preposterous. Not only is this contrary to what both P.C. Button and A/Sgt. Kett testified, but is inconsistent with their known duties. I accept the evidence of A/Sgt. Kett that he went to great lengths to explain to the Defendant the limits on his request to speak to a clergyman.

[89] I disbelieve the Defendant when he said that at the time he entered the phone room, he asked the officer how they got a hold of Mr. Rombis and they said that they had not but called duty counsel for him instead. This evidence contradicts his own earlier testimony that he thought it was Mr. Rombis on the phone before he began talking.

[90] The Defendant's claim that he never wanted to speak to duty counsel is conclusively contradicted by the booking room video where the Defendant said to the police after being asked whether he had his own lawyer, "Please contact duty counsel on my behalf."

[91] Never once on any of the police station videos did the Defendant request a particular lawyer. I find the Defendant contrived a coincidence that his request came only during the missing portion of the booking room and cells videos. At no other time or place on video does the Defendant mention Mr. Rombis, nor does he ever appear to misunderstand what duty counsel is nor did he complain to the police about the advice he received.

[92] The police never limited the Defendant's access to counsel. The Defendant may have wanted to speak with a specific lawyer but I find that he never said so. The Defendant had an obligation to tell the police but he failed to meet his duty. As noted by the Ontario Court of Appeal in R. v. Zohaib, [2006] O.J. No. 1023, any misapprehension by the Defendant of his right to contact his own lawyer as opposed to duty counsel was a product of his own thought processes, none of which were conveyed to or known by the officer.

[93] The Defendant had a duty to express clear dissatisfaction with duty counsel but he did not meet his obligations in this regard. His utterance "Nice try. I'll wait it out" was ambiguous and it was unclear to whom the statement was directed. It was for the Defendant to articulate to the police in certain terms what he meant, but he did not.

[94] The Defendant's evidence is internally inconsistent. On the one hand he told the police he was not permitted by his religion to have human interaction on Thursdays until noon, but on the other hand he testified that he didn't want to take the tests until he had spoken with counsel. He cannot have it both ways.

[95] I find that the Defendant never told the police he wanted to speak to a particular lawyer. If he had, I believe the police would have facilitated that request. If the Defendant wanted to contact Mr. Rombis, he was not diligent in pursuing that desire. The police did not violate the Defendant's rights to counsel. Even if the Defendant had spoken with Mr. Rombis, it is more likely than not he would have refused to provide breath samples in any event given his attitude and conduct throughout this entire investigation.

[96] I find that the Defendant has failed to show that his rights to counsel was violated by the police in this case.

3.4: Was the Defendant's section 9 Charter right violated?

3.4.1: Positions of the Parties

[97] The Defendant submits that his right to be free from arbitrary detention was violated twice. First, he submits that P.C. Button had no lawful reason to stop him in the first place because he denies any bad driving. Second, he submits that he was unlawfully and unreasonably detained at the station after being charged by the police. The Defendant further submits that the release condition to remain in Ontario was an unacceptable act of dominance by the police over him.

[98] The Crown submits that the Defendant's right to be free from arbitrary detention was respected at all times in this case.

3.4.2: Applicable Legal Principles

(a) Roadside Detention

[99] Section 9 of the Charter guarantees that all persons shall be free from arbitrary arrest or detention.

[100] "Detention" occurs where the police have imposed a significant physical or psychological restraint upon a citizen that impairs the person's choices in dealing with the police in the context of the entire circumstances in which the citizen finds himself: R. v. Therens, 18 C.C.C. (3d) 481 (S.C.C.) at p. 503; R. v. Grant, 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.) at ¶ 24-44; and R. v. Suberu, 2009 SCC 33, 245 C.C.C. (3d) 112 at ¶ 21-22. Detention by the police triggers other constitutional rights including those under s. 10 of the Charter: R. v. Grant, ¶ 22.

[101] Not all encounters with the police will amount to constitutional detention, even where a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. To simply assume that a detention occurs every time a person is delayed from going his way because the police have accosted him during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter: R. v. Suberu, ¶ 23-24.

[102] Where a person is found to be detained, the detention is only "arbitrary" where it is not legally justifiable: R. v. Mann, 2004 SCC 52, 185 C.C.C. (3d) 308 (S.C.C.). To be legally justifiable, an officer must have reasonable grounds to detain a person. To be reasonable, the detention must possess an objectively discernable constellation of facts which may give rise to a reasonable suspicion that the subject has committed or may commit a crime. A detention is not necessarily arbitrary even if no crime has been committed provided that basis for the detention is more than a mere hunch: R. v. Simpson, 79 C.C.C. (3d) 482 (Ont. C.A.).

[103] The Ontario Highway Traffic Act authorizes police officers to stop any driver for the purpose of determining whether or not there is evidence to justify making a screening or breath demand. Under the same law, they are also entitled to stop any motor vehicle to check for mechanical fitness of the vehicle, the possession of a valid documentation, and the sobriety of the driver: Highway Traffic Act, R.S.O. 1990, Chapter H.8, section 48 and 216: R. v. Bryce, [2009] O.J. No. 3640 (S.C.J.) at ¶ 44.

[104] The common law also authorizes the stopping of motorists to check for sobriety: R. v. Dedman, [1985] S.C.J. No. 45 (S.C.C.); R. v. Hufsky, [1988] S.C.J. No 30 (S.C.C.); R. v. Ladouceur, [1990] S.C.J. No. 53 (S.C.C.); R. v. Smith, [1996] O.J. No. 372 (C.A.); R. v. Orbanski, 2005 SCC 37, [2005] S.C.J. 37 (S.C.C.).

(b) Post-Investigation Detention

[105] Section 498 of the Criminal Code mandates the release of an arrested person as soon as practicable unless it is believed on reasonable grounds that it is necessary in the public interest that the person be detained. Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released: R. v. Sapusak, [1998] O.J. No. 3299 (C.A.); R. v. Coulter, [2000] O.J. No. 3452 (O.C.J.), affirmed [2001] O.J. No. 5608 (S.C.J.); R. v. Padda, [2003] O.J. No. 5502 (O.C.J.); R. v. Gaudette, [2005] O.J. No. 2399 (O.C.J.), reversed for other reasons, [2006] O.J. No. 3732 (S.C.J); R. v. Kisil, 2009 ONCJ 424, [2009] O.J. No. 3821 (O.C.J.); R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No 6001 (O.C.J.); R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.); R. v. Baxter, [2012] O.J. No. 796 (O.C.J.).

[106] A police policy that looks to the level of intoxication of the detainee is a reasonable component in the assessment of when to release a detainee: R. v. Handley (unreported summary conviction appeal endorsement of Langdon, SCJ April 5, 1993); Coulter, [2001] O.J. No. 5608 (S.C.J.); R. v. Campbell, [1995] O.J. No. 2975 (S.C.J.); R. v. McGovern, [2007] O.J. No. 743; and R. v. Price, supra at ¶ 92. However, relying solely on the blood alcohol level is too narrow a focus. The releasing officer must also take into account all of the circumstances: R. v. Price at ¶ 93; R v. Hernandez, 2013 ONSC 4760, [2013] O.J. No. 3347 (S.C.J.).

3.4.3: Analysis

(a) Roadside Detention

[107] The stop by P.C. Button was not a violation of the Defendant's section 9 Charter right. The reasons given to pull the Defendant over were the time of day, the speed and drifting of the car while being driven, and the slow response time to pull over. The Defendant denies he was speeding because he said he had the cruise control locked in at 80 km/hr.

[108] I don't believe the Defendant on this point. His flight to the United States departed at 6:30 a.m. It is common knowledge that international flights require passengers to check in two to three hours in advance. The defendant was seen driving northbound at 2:35 a.m. The Defendant was leaving little room to get to the airport in sufficient time. Given his need to be at the airport in a few hours and his need to drive all the way to Shelburne first, the Defendant had a reason to go faster than the speed limit. He also testified he was extremely fatigued and this may well have caused him to think the cruise control was on when it wasn't. The Defendant passed into a 60 km/hr zone. Even if he was locked in at 80, he would have been speeding for at least part of the time he was followed. I believe P.C. Button because it was part of his duties to survey traffic including speeders, and unlike the Defendant he was alert while driving.

[109] Even if the Defendant was not speeding, the hour of the day and the drifting of the car – whether from the wind or some other reason – were sufficient reasons to pull him over to ascertain his sobriety.

[110] I am well satisfied that the Defendant's section 9 Charter right was not violated when he was stopped by the police.

(b) Post-Investigation Detention

[111] The charge of refusing to provide a sample occurred at 4:10 a.m. P.C. Button did not release the Defendant right away because he felt it would be unsafe to release him until he had sobered up. Release papers were drafted around 5:30 a.m. in anticipation of releasing him at or near the shift change at 6:00 a.m. At around 6:10 a.m. Sgt. Dellelce and S.C. Jeronimo went to the cells to assess the Defendant. Despite his obvious lack of cooperation, it was felt the Defendant should be released sooner than later.

[112] Following the shift meeting and doing other paperwork, the police tried to release the Defendant around 7:00 a.m. but he would not come out to sign the papers. This continuing lack of cooperation resulted in the shift sergeant deciding to prepare a bail hearing for him. After doing other things and letting the Defendant cool off, the Defendant signed the release documents around 8:10 a.m. and he left the station by 8:30 a.m.

[113] The total post-investigation detention was thus approximately four and one-half hours. It would have been much sooner, but the Defendant was less than cooperative.

[114] Here, it was not just the assumption by the police that the Defendant's blood alcohol concentration was over the legal limit that caused him to be held after 4:10 a.m. It was also his passive aggressive and even bizarre behaviour that materially contributed to the belief he was still intoxicated and the need to delay his release. I am sure that if he had cooperated with the police when they checked on him shortly after 6:00 a.m. that he would have been released then and there. I am also sure that if he had cooperated around 7:00 a.m. that he would have been released then, too. The police were justified in light of all of the circumstances to consider holding the Defendant for a bail hearing because he simply would not cooperate.

[115] The police were justified in taking some time to prepare the bail papers and to give all sides the chance to cool off, which finally happened shortly after 8:00 a.m.

[116] The total time between charge and release was not unduly long. The time it took to release the Defendant was made much longer mainly due to his conduct. If he was not released sooner, it was due to his self-inflicted wounds as well as a reasonable belief he needed to sober up.

[117] I find that in the circumstances of this case the Defendant has failed to demonstrate that his post-investigative detention constituted a violation of his section 9 Charter right.

[118] As for the condition on the Defendant's release to remain in Ontario, no evidence was given by anyone as to why the condition was included. Without any evidence it is impossible to assess what weight, if any, to give it when considering the issues.

3.5: Was the Defendant's section 7 Charter right violated?

3.5.1: Positions of the Parties

[119] The Defendant says there are many gaps in the videos provided to him. He submits that two of the gaps are critical to his rights to counsel application and thus material to his defence on the fail to provide charge. The first gap is nearly seven minutes in the booking room; the second gap is nearly five minutes after he left the phone room. He submits that the gaps have caused him an unfair trial. The Defendant submits that the police manipulated the video either by pausing the recording at the time or by editing it later to make him look bad. The Defendant also submits that he was never given the video of his release, which he submits was relevant to Sgt. Dellelce's negative attitude towards him, thereby being relevant to the post-investigation detention issue.

[120] The Crown says this is not a case of lost or destroyed evidence, but evidence which never existed. They submit that the gaps in the relevant portions of the station videos were caused by an unknown "glitch" which was not the result of any improper conduct by the police. The Crown submits that the police honestly and reasonably believed the video system was working properly at the time. The Crown submits that the police were not negligent, but if they were they were not unacceptably so. With respect to non-disclosure of videos now taped over, the Crown submits that the Defendant was not diligent because he only requested them shortly before trial started and well after the police retention period, which period was a reasonable.

3.5.2: Applicable Legal Principles

[121] The basic principles respecting the impact of lost evidence and when a stay of proceedings should be granted were summarized in R. v. F.C.B., 2000 NSCA 35, [2000] N.S.J. No. 53 (C.A.) at ¶ 10 as follows:

(1) The Crown has a duty to disclose all relevant information in its possession;

(2) The Crown's duty to disclose creates a duty to preserve relevant evidence;

(3) There is no absolute right to have originals of evidence produced. If the Crown no longer has the original in its possession, it must explain its absence;

(4) If the Crown's explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached;

(5) In determining whether the explanation given by the Crown is satisfactory, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police or Crown acted reasonably in attempting to preserve it. The more relevant the evidence, the more care should have been taken to preserve it;

(6) If the Crown does not establish that the evidence was not lost through unacceptable negligence, there has been a breach of the Defendant's section 7 Charter right;

(7) In addition to a breach of section 7 of the Charter, a failure to disclose evidence may be found to be an abuse of process if, for example, the conduct leading the loss or destruction of evidence was deliberately for the purpose of defeating the duty to disclose;

(8) Where it is because of a failure to disclose, or an abuse of process, the remedy of a stay of proceedings is to be granted only if the matter is one of those rare cases that meets the criteria set out in O'Connor;

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary cases, there may still be a breach of the Defendant's section 7 Charter right if the loss can be shown to be so prejudicial to his ability to make full answer and defence that it impairs the right to a fair trial. In such a case, a stay may be an appropriate remedy; and

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

[122] When considering whether the loss of, or failure to preserve, the evidence was the result on unacceptable negligence, the court may consider whether or not it was deliberately destroyed or the product of human error; and whether the defect in question was part of a larger systemic problem or situational inadvertence: R. v. Labuckas, [2000] O.J. No. 4210 (C.A.); R. v. J.P., [2009] O.J. No. 5169 (C.A.) at ¶ 4; R. v. Anderson, 2013 SKCA 92, [2013] S.J. No. 528 (C.A.) at ¶ 107 to 109. The court should also consider whether or not the police were indifferent or ignorant of the duty to preserve the fruits of their investigation: R. v. Bero, [2000] O.J. No. 4199 (C.A.).

[123] In assessing the prejudice, if any, to the Defendant's right to make full answer and defence it is important to bear in mind that the Defendant is entitled to a trial that is fundamentally fair and not the fairest of all possible trials: O'Connor, [1995] S.C.J. No. 98 (S.C.C.) at ¶ 193. Where it is shown that the Defendant is deprived of relevant information this does not mean that his right to make full answer and defence is automatically breached; actual prejudice must be established: R. v. Mills, [1999] S.C.J. No. 68 (S.C.C.) at ¶ 75. Actual prejudice happens when the Defendant is unable to put forward his defence due to the evidence being lost and not simply that the loss of the evidence makes putting forward his position more difficult: R. v. Bradford, [2001] O.J. No. 107 (C.A.) at ¶ 8.

[124] The presence, or absence, of other evidence to support the Defendant's position independent of the lost evidence is a relevant consideration when assessing actual prejudice: R. v. G.S., 2010 ONCA 296, [2010] O.J. No. 1666 (C.A.) at ¶ 46 and 47. The fact that a piece of evidence is missing that might, or might not, affect the defence will not be sufficient to establish that irreparable harm has occurred: R. v. Bero, supra at ¶ 49 to 52.

[125] There is no constitutional right to have accused persons' interaction with police videotaped: R. v. Piko, [2000] O.J. No. 3605 (S.C.J.) at ¶ 6; R. v. Brownlee, [2008] O.J. No. 2432 (S.C.J.). Whether there is a breach due to lost video must to be determined on the facts of each case: R. v. Dulude, [2004] O.J. No. 3576 (C.A.); R. v. Winterfield, supra at ¶ 91.

[126] In some cases, the diligence of the Defendant in seeking disclosure must be considered. A lack of diligence in seeking disclosure may refute the argument that the Crown's failure to preserve evidence has irreparably prejudiced the Defendant: R. v. Knox, [2006] O.J. No. 1976 (C.A.) at ¶ 28, 29; 35 – 38; R. v. Dixon, [1998] S.C.J. No. 17 (S.C.C.).

[127] Where a stay of proceedings is being sought on the basis of irreparable prejudice to the integrity of the judicial process, the court may consider the presence or absence of a systemic disregard for the prosecution's obligation to preserve relevant evidence as well as any malevolent motive by the Crown or police: R. v. Bero, supra at ¶ 45.

3.5.3: Analysis

[128] The missing or incomplete video evidence complained of is connected with the video surveillance system at the Orangeville Police Service. The system is not designed for investigative purposes, but for internal security. The video and audio are only activated when there has been some motion to cause the system to record. The system can be interrupted at the time, and edited later, by authorized personnel. Although the system is not designed as an investigative tool, the security system has the ability to capture potential evidence. As a result, booking room, cell area, and breath room audio and video are regularly disclosed due to the potentially relevant evidence they often contain.

[129] The Orangeville Police therefore have a duty to preserve and disclose potentially relevant evidence recorded by their security camera system. That duty, however, is not boundless. I find their retention period of 8 to 9 months prior to overwriting is a reasonable one that permits most instances of disclosure obligations and requests to be fulfilled. Audio and video for items not routinely disclosed can be copied and archived if requested within the retention period.

[130] There is no doubt that the missing portions of the booking and cell area videos were potentially relevant. However, I am satisfied for the following reasons that the Crown has provided a reasonable explanation for the loss. First, I accept S.C. Black's evidence that no police official present during this investigation was authorized to interrupt or to edit any of the recorded data. Second, I accept S.C. Black's evidence that despite a thorough review of the system by him and by software and hardware consultants, there is no reason to believe that anyone at any time intervened to pause, manipulate, or delete any part of the security footage in this case. Third, I accept that this was a rare and inadvertent intermittent malfunction of the police security recording system. There is no evidence that any of the police personnel present at the time were aware that not everything was being recorded as it should have been. In other words, the loss of some of the booking and cell area videos was not the produce of unacceptable negligence, but of a singular and unintentional glitch.

[131] With respect to the video showing the release of the Defendant, his request was for something not normally disclosed, so it is not surprising he had to make a special request for it. However, I find that he was not diligent in seeking the release video because he waited until just a short time before the trial, which was well beyond the reasonable 8 to 9 months retention period.

[132] Having accepted the Crown's explanations for the lost evidence as reasonable, I find that the Defendant has failed to establish that his section 7 Charter right was breached.

[133] If I am wrong, and his section 7 Charter right was breached, this is not one of those clearest of cases for which a stay of proceedings would be appropriate. The right of the Defendant to a fair trial has not been impaired. While the missing videos might have assisted his defence, they cannot fairly be characterized as essential or critical. Had they been available they would been one more weapon amongst others in his arsenal. Considerable amounts of other video were available including how Sgt. Dellelce and P.C. Button comported themselves, he was able to effectively and thoroughly cross-examine all of the prosecution witnesses, and he gave evidence himself on all issues. Furthermore, the integrity of the justice system has not been undermined in this case because the loss of the video was not the product of any systemic causes nor was any malicious intent proven. To the contrary, and as I have already stated, the loss was due to a unique and inadvertent malfunction that no one was aware of until the Defendant pointed it out.

[134] Accordingly, the Defendant's section 7 Charter application is dismissed.

4.0: CONCLUSIONS

[135] After carefully considering all of the evidence in this trial and applying the applicable legal principles to the facts that I have found, I find the Defendant not guilty on Count 1 being the charge of impaired driving.

[136] I have ruled that none of the Defendant's Charter rights were breached by the police.

[137] Lastly, I also find that the Crown has proven beyond a reasonable doubt that the Defendant refused without lawful excuse to provide suitable breath samples pursuant to a lawful breath demand. The Defendant is therefore found guilty of Count 2.

[138] I would like to thank both Mr. Bennett and Crown counsel for their professional, thorough, and capable conduct throughout this long trial.

Original signed by The Honourable Justice Richard H. K. Schwarzl

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice