R v Gill

Court Information

Court File No.: Brampton 13-379
Date: February 2, 2015
Ontario Court of Justice

Between:
Her Majesty the Queen
— AND —
Sahibjit Gill

Before: Justice Nancy S. Kastner

Heard on: August 15 and October 29, 2013; February 6, March 4, September 23, October 2, October 28 and December 18, 2014; and February 2, 2015

Reasons for Judgment released on: February 2, 2015

Counsel:

• Ms. C. Valarezo, for the Crown
• Mr. R. Posner, for the defendant Mr. Gill

KASTNER J.:

I. Overview

[1] On December 11, 2012, in the early morning hours, Sahibjit Gill was observed by police driving a motor vehicle from the parking lot of a licensed establishment to an industrial plaza nearby. A police officer had observed Mr. Gill getting out of a taxi cab long after closing time for the bar and entering the driver's seat of the vehicle. The officer activated his emergency equipment and stopped the vehicle. Mr. Gill, the sole occupant, ran a short distance from the car before he was arrested.

[2] Mr. Gill is charged with Impaired Driving and Refusing a Breath Sample at the station.

[3] It is not disputed that Mr. Gill had no reasonable excuse not to provide a breath sample, and that he wilfully failed to provide such sample. Mr. Posner argues that a lack of reasonable and probable grounds to arrest and make a breath demand is a complete answer to the charge of refusing or failing to provide a breath sample. The defence alternatively submits that the police infringed his client's Charter right to be free from unreasonable search or seizure by failing to have reasonable and probable grounds to make the arrest and demand that night, which rendered his detention arbitrary. He further submits that a Grant analysis should exclude the acts and words of refusal.

[4] The Crown takes issue with non-compliance with the Criminal Rules of the Ontario Court of Justice by the Applicant and indicates that the application filed speaks solely to a section 8 Charter violation, and objects to an amendment to include an allegation of a section 9 Charter violation, as argued orally almost one year later and in the written submissions.

[5] The Crown submits that the officer had reasonable and probable grounds to affect an arrest and make a breath demand, and in the alternative, that the subsequent breath demand by the qualified technician was a lawful demand which Mr. Gill was obliged to comply with. The Crown further argues that no Charter infringement is established. Ms. Valarezo further argues that the applicant has failed to meet the onus in s. 24(2) to exclude evidence, as admission of such evidence would not tend to bring the administration of justice into disrepute.

[6] With respect to the charge of impaired driving, the Crown submits that, in light of the test from R v Stellato, the evidence is more than sufficient to justify a finding of guilt. In contrast, the defence argues that, considering all of the circumstances, the evidence falls short of proof beyond a reasonable doubt.

II. Chronology of Appearances

[7] This is not a complex case, but the trial was fraught with various adjournments.

[8] Mr. Gill appeared in Court and scheduled his trial for August of 2013. The trial began on August 15, 2013 as a "four hour trial," when only two Court hours remained. At the outset of the trial Mr. Posner admitted his client was operating a motor vehicle on the night in question; the Intoxilyzer instrument was suitable for use; any statements made on the breathalyser room video were voluntary; identification; jurisdiction; and that the actus reus of the Refuse charge is established beyond a reasonable doubt. A late filed s.10 (b) Charter application was abandoned on this first date.

[9] The issues in this case simply devolved to credibility and reliability, whether the Crown had established the officer had reasonable and probable grounds to make the breath demand, and if impairment to operate a motor vehicle had been established beyond a reasonable doubt. Although Mr. Posner indicated he was going to argue that his client had a reasonable excuse not to comply, it was later conceded that no reasonable excuse existed. The first line of attack was on what the defence submitted was lack of reasonable and probable grounds to make the demand, which he submits would cause the Refuse charge to fail. In the alternative, liability or acquittal on the Refuse charge would be dependent on the result of the Charter Application.

[10] The arresting officer testified the first date. When the trial resumed on October 29, 2013, the qualified technician testified as did Mr. Gill. As the trial developed the absence of a Section. 8 Charter argument was noted and the defence sought leave to bring that argument. Leave was granted, but it necessitated an adjournment for the Crown response. Ultimately after a series of appearances where counsel was ill and materials had mistakenly not been filed, the Crown decided not to call further evidence in response to the application. The argument then was slightly enlarged to include an alleged violation of Section 9 of the Charter, the right to be free from arbitrary detention. The Crown resisted, and continues to question the ability of the Applicant to add this alleged violation in argument. There was some discussion of written argument. It was problematic to find time in the schedule of both counsel for submissions. Final submissions began orally on October 28, 2014 and both parties sought to file written argument on two issues: the application of the recent decision of R v Soomal, and the effect of a second lawful breath demand on the analysis.

[11] Counsel filed written submissions in due course. The Applicant's submissions were received by the Court in November 2014. The Crown's submissions, although properly filed shortly thereafter, were lost before the Court received them. The Court got those submissions one week before the Christmas break. Ultimately, judgment had to be put over until after all the materials were located.

[12] This is a rather long explanation of how a short matter was in the court system for over two years, even though the evidence was not lengthy.

[13] I wish to thank counsel for their thoughtful and thorough oral and written submissions on behalf of the Crown and Mr. Gill.

[14] Upon completion of all submissions, judgment was reserved to February 2, 2015. These are the Reasons for Judgment.

III. Evidence

[15] The Million Dollar Saloon and strip club is located at Torbram Road and Drew Road in the City of Mississauga. The licensed establishment was closed at the time Police Constable Chatura made his observations. At the time close to 4:00 a.m., one vehicle remained in the parking lot, and was readily visible to the officer.

[16] The Applicant and several friends had been at the Million Dollar Saloon that night, and had been drinking.

[17] Police Constable Chatura was doing RIDE enforcement in that area that night and early morning in full uniform and in a marked cruiser.

[18] Constable Chatura testified that at 3:42 a.m. he had seen three individuals in a taxi driving around the area by the Million Dollar Saloon and circling it, which drew his attention because he had seen three individuals in the area dodging in out of commercial buildings across from the saloon. In cross-examination he said he saw three men board the cab, which he did not put in his notes.

[19] He testified that after his presence was seen by the individuals, they took a cab in the area, and the cab drove around the restaurant, up and down Torbram, west on Drew, then turned around toward Torbram, went south on Torbram, turned back on Drew, went west on Drew and parked across the street from the Million Dollar Saloon. He found this to be odd behaviour for a cab with patrons inside.

[20] In cross-examination, he testified that he had personal experience and many arrests in the vicinity of the Million Dollar Saloon of suspected impaired drivers, so he was in that area that evening.

[21] In cross-examination, he initially described this as "bizarre" and later as events that were so unusual that they were all very clear in his mind. He later testified:

Well at first, I had seen three individuals in the area. I did not confirm who they were at the time. They kept dodging in and out of the building across the street from the Million Dollar Saloon.

He did not mention this in his notes made that evening. He said the behaviour of the taxi was suspicious, and he did not know if it was a hijacked cab or if he could be dealing with drunk people.

[22] Constable Pallett testified that Officer Chatura told him that there was an earlier call about these men at the tavern and that they were warned (or the Applicant in particular) not to drive. However, Police Constable Pallett did not record all of this in his notes.

[23] He said he saw a single male exit the cab and run south across Drew Road into the parking lot of the Million Dollar Saloon. He said the male seemed to have access to a key fob, and unlocked the vehicle, a gray Acura. At this point the officer was approximately 250 metres away.

[24] He testified the male got into the driver's seat, started the vehicle, and reversed in a very fast manner, squealing the tires and exiting the parking lot. The vehicle then entered onto Drew Road from the lot and drove into the lot across the street at 2395 Drew Road. He later described that the vehicle "bolted across" the street.

[25] Once he saw the vehicle in motion, he went to see what the issue was, and if the driver was intoxicated, because of all the bizarre behaviour with the taxi.

[26] The officer pulled up into the lot and the Acura he was watching turned around and faced him.

[27] There was nothing unusual about the manner in which the vehicle was parked. The Applicant then emerged from the vehicle but, upon noticing Chatura, he began to run northbound in the parking lot with the keys in his right hand. Chatura caught up to the Applicant. Mr. Gill stopped then.

[28] The officer immediately detected a strong odour of an alcoholic beverage on his breath. He was staggering and swaying after running, and had a hard time stopping, as if the momentum of running was too much to bear.

[29] Police Constable Chatura also noticed his eyes were red rimmed and watery, and that his speech was slurred. In cross-examination, he admitted he formed the opinion of slurred speech based on only one word uttered by Mr. Gill, "Sorry". He testified he had yelled at the male to stop running, and he kept saying "sorry", but slurred. He may have been on the ground at this time but the officer had no recollection of this one way or the other. He remembered applying the handcuffs against the car. He later stated Mr. Gill continued to slur words in the cruiser.

[30] He made no suggestion that the Applicant had any difficulty getting into or out of the Acura in examination-in-chief, but said his note of unsteadiness referred to the sluggish manner, and not being sure of himself when he walked or ran.

[31] The officer said he immediately formed the opinion Mr. Gill was operating a motor vehicle while his ability to do so was impaired by alcohol and arrested him at 3:44 a.m. He then read right to counsel and the caution and read the breath demand at 3:49 a.m., which Mr. Gill said he understood.

[32] During cross-examination, the officer said he recalled that after he had the defendant under arrest, another male approached with another male in the cab, who was a young East Indian male. He gave him an order to step back from the vehicle and continued his investigation. He said the male asked for his keys and he told him to stand back and he would be with him shortly, which he did not. He said that male was intoxicated as well. None of that was in his notes, but he recalled it.

[33] At the station he facilitated right to counsel in the time period from about 4:19 am to 4:50 a.m., when he turned Mr. Gill over to Police Constable Pallett, the qualified technician.

[34] In cross-examination, Mr. Posner characterizes the officer as:

… Extremely vague about the circumstances surrounding the moment of the arrest. In particular, he could not recall if he had directed the Applicant to "freeze" or get to the ground. Nor could he recall if he had put the Applicant to the ground. He also claimed for the first time that [he] appeared "sluggish" when he got out of the Acura.

[35] Although the officer testified that the Applicant was exhausted from running and "the momentum of him running loose was almost too much for him to bear", he later testified that the distance that the Applicant had run was extremely short, "maybe three and a half car lengths".

[36] The officer's notes were not fulsome, to say the least. He omitted the fact he thought the cab driving pattern was bizarre; did not note he saw someone come out of the cab; did not note that he saw the individuals in the other lot; omitted that the roads were dry (although he was in a foot chase and said if it was wet, he would have fallen); did not note that he checks strip clubs in RIDE; did not note his interaction after the arrest with the other male coming up to the cruiser; not note that the defendant was sluggish getting out of the Acura or that he appeared scared; did not indicate he told the male to stop, nor that he asked why he was running; not note that he asked him "whose car is that?; nor whether he said he was not driving. He said he did not handcuff Mr. Gill on the ground because he was the only officer there, and he had him up against the car to do that. He did not note any poor walking at the station, but recalled him swaying on the way to the washroom.

[37] He did write that, when lodged, he asked if Mr. Gill had any drugs and he admitted to doing marijuana yesterday. He also wrote down that in the cruiser on the way to the division he noted that Mr. Gill said three times that his girlfriend was killed by allergies. Police Constable Chatura also testified that he said "sorry" many times on the way to the division.

[38] He took Mr. Gill to the washroom once before entering the breath room and once before the test began. He was asked in cross-examination if he accused Mr. Gill of not peeing when he went to the washroom with him, and he recalled Mr. Gill stood over it but did not do anything.

[39] In cross-examination, Police Constable Chatura said the behaviour in the lot at the Million Dollar Saloon made him suspicious and caused him to put his car in reverse to see where he was going. He had no idea if the driver was impaired at that point, and when he got out and ran, he still had not grounds until he caught up with him, and made his observations.

[40] Police Constable Dane Pallett is a qualified technician for the purpose of receiving and analyzing breath samples into an approved instrument. He was very detailed and candid in his evidence, and much of his dealings with Mr. Gill are recorded on video. It is an understatement to say he was the epitome of patience with an obnoxious Mr. Gill that Tuesday morning.

[41] Police Constable Pallett testified that he received the following reasonable and probable grounds for the demand from Police Constable Chatura prior to receiving Mr. Gill into the breath room:

• Officer Chatura was conducting a R.I.D.E spot check in the area of the Million Dollar Saloon (a bar);
• Officer Chatura saw a male [later identified as Mr. Gill] run into a motor vehicle that was parked in the parking lot;
• the male appeared unsteady;
• the male put the vehicle in motion and drove away squealing his tires;
• he then drove across Drew Road and entered into a private industrial lot;
• the officer pulled behind the vehicle;
• the defendant fled from the vehicle and Officer Chatura engaged in a brief foot pursuit and stopped him;
• Officer Chatura detected a strong odour of an alcoholic beverage emanating from his breath;
• Officer Chatura noted that the defendant's eyes were bloodshot and watery and that he was staggering; and
• There had been a prior investigation following an earlier call for intoxicated parties associated to that vehicle and they had been told not to drive.

[42] This information informed Police Constable Pallett's reasonable and probable grounds to make a Breathalyzer demand. He also made his own observations which included the immediate detection of a strong odour of alcohol on his breath, bloodshot and watery eyes, speech slurred, unusual actions [crying off and on in the interview], uncooperative, antagonistic and at times concerned.

[43] He read the breath demand to Mr. Gill at 4:58 a.m., having formed the opinion himself that his ability to operate a vehicle was impaired by alcohol.

[44] Following the demand, Mr. Gill entered the breath room. Police Constable Pallett gave him every opportunity to comply with the demand for over one hour (4:50 a.m. to 6:10 a.m.). Much of the time, Mr. Gill remonstrated that this would ruin his life, and asked the officer for a break or a favour. He denied driving that night. Some of the time he pretended to blow. Some of the time he tried to delay the testing by breaks to get water and to attend the washroom. The officer also gave more than one demonstration to show that the instrument was working properly, and how to provide a sample. Ultimately, Police Constable Pallett gave a second opportunity for Mr. Gill to speak to duty counsel to explain the consequence of failing to provide a sample and to seek legal advice.

[45] The video of the interaction of Mr. Gill with the two officers is objective evidence which is accepted by the Court. Some slight staggering appears evident when he first takes his seat, when he gets water from the sink, and when he leaves to go to the washroom. Otherwise, his speech appears to be fine at times, although it may be slurred when he was crying. He is visibly upset, but does not appear to be in a complete emotional breakdown, as he indicated. Rather, he appears to have put some thought into how to not comply by pretending to blow, by exhaling through his nose, by complaining the Intoxilyzer was not working properly, feigning ignorance; by grabbing the tubing, by sucking in on the mouthpiece "like a hookah pipe", by saying he was asthmatic, by appealing to the officer to give his a break, and by verbally abusing the officer.

[46] Mr. Gill testified on the Charter voir dire and the trial.

[47] He testified that he is a 21 year old student studying for the Bachelor of Business Administration program at Wilfred Laurier University. On the date of the alleged offence he was 20 years old.

[48] In the fall of September 2012, his girlfriend of over three years died from an allergic reaction to poppy seeds. Several months earlier in March, his university roommate and close friend, had also died. The Applicant's puppy also was hit by a car in April 2012 between these two tragedies. As a result of these events, Mr. Gill's life, sleep and school was "messed up". He was treated by a psychiatrist given sleeping pills and medication for anxiety and depression.

[49] He admitted to going out with two male friends on the night of Dec.10 to 11, 2012. They started at Shoeless Joes in Mississauga and had a mini-pitcher of beer between 8:30 p.m. and 11:30 p.m. They had Aman's mother's Acura and Aman drove to the Million Dollar strip club. He said they arrived around midnight, and he had two to three beers, but did not drink heavily because they played pool. He stated they left when closing, around 2:00 to 2:30 a.m.

[50] Mr. Gill said he did not feel like going home, and there was a plaza with a Burger King and another strip club there, and they "hung out" at the plaza for just under an hour. At 3:30 to 3:45 a.m. it was time to go home. They were going to take a taxi and one was called. They were worried about both his mother having to pick up the car at that location, or if it got towed from the strip club.

[51] They waited for the taxi, and Aman was worried about the car, but said he was too drunk to drive. Gill felt he was sober so decided to move it to the parking lot for him and did not go into the cab, although his friends did. He walked to the car and moved it across the street. He saw the police lights and panicked. He opened the car door and ran because they had all drank, and the others were already in a cab.

[52] He testified it was so quick until the police officer was behind him in the car. He chased him and yelled "freeze" or something. He said he was grabbed and put to the ground and instantly arrested. The officer kept asking "whose car is it, and all that". He said his face was on the ground, his arm entangled, and he asked him not to hurt him.

[53] He was arrested for impaired driving, and he tried to explain to him the situation. He was panicking and crying and trying to ask for a break.

[54] He insisted that he was not drunk or impaired although he had been drinking. He testified that he ran from the police and later declined to provide a breath sample because he was very much afraid of the consequences and in a very poor emotional state because of the tragic events in his life. Mr. Gill was not a fully licenced driver and the law precluded him from operating a motor vehicle with any alcohol in his body. When asked about his conduct in the breath room, the Applicant testified:

To be honest, when I saw it, that was my first time seeing it last time and when I saw that video, it was completely, like, that wasn't me drunk, that wasn't me sober, that was just me completely messed up at the time, I know that time, like, I'm completely better now but at that time I was - wasn't not sober - I wasn't not sober, I was just messed up.

[55] He said he was panicking, and was worried with job interviews coming up and his mother worrying about him.

[56] In cross-examination, he admitted that he is not supposed to drink with his medication, and he decided not to take it that night. Although he first said he did not omit to take it because he planned to drink, he acknowledged that to be the case. He did not count his drinks, but said he did not want to drink a lot at the time because of the way it made him act, and emotions that get triggered.

[57] Mr. Gill thought his friends drank more than he did, and although Aman drove to the strip club and said he was fine, afterwards he said that he was not. It stands to reason that since he was out with two friends who were intoxicated, and he was not the driver, and he planned to drink and did not take his medication, that he was under the influence of alcohol to a greater degree than he either recalls, or asserts in his testimony. The purpose of the evening was to take his mind off things, and he was having a good time with his friends. Although drinking, he said "no one was out of order drunk".

[57] He did not recall being warned by someone at the Million Dollar Saloon not to drive, but said maybe to someone else but not him personally.

[59] It was his idea to move the car across the street, but denied the consumption of alcohol affected his judgment. He denied squealing the tires. He thought the odour of alcohol on his breath would not be strong. He denied being unsteady.

[60] He said he decided to fake blowing and pretending to try to provide. He agreed he was not honest when he told Constable Pallett he was trying, and agreed he maintained that lie around maybe ten times. He also agreed in cross-examination that he lied when he said he was not driving.

[61] He stated he knew if he blew into the instrument that he would get a criminal record, and that it "would confirm I was drinking and driving".

[62] The falsehoods that Mr. Gill maintained over a lengthy period of time (more than two and a half hours) to both police officers is concerning in placing much weight on his evidence. He lied when it served his interest then and because of what was at stake, and the Court can have little confidence in his reliability in testimony.

[63] Notwithstanding the absence of notes of some of Police Constable Chatura's observations, he had a remarkable memory of detail. He said it was a unique situation that had not happened to him before, so he remembered the foot chase and what had happened. He omitted making notes of what he believed he would always remember.

[64] His evidence is also corroborated, in part, by Mr. Gill, by Police Constable Pallett, and by the breath room video. To the extent he is corroborated, that evidence is reliable and accepted by me.

[65] Although he was challenged in a skilful cross-examination, his overall demeanour was of calm confidence. He maintained that on the breath room video as well. I did not find him to respond to questions in any artificial or contrived way, and the added detail appears to come from memory alone. It is not so much his credibility that is in issue here, but the reliability of his evidence of events which happened eight months earlier, which were not in his notes that morning.

[66] I accept the evidence of Constable Pallett.

[67] Mr. Gill agrees with much of what Police Constable Chatura says. Although he personally disagreed that he had been cautioned not to drive earlier, he agrees it is possible that was said to others in his group. I find that while it is possible that he was grounded by the officer in the chase, although the officer did not recall doing that, I find he is mistaken about the immediacy of the arrest because he was panicked and under the influence of alcohol. Where his evidence differs from the officer, I accept Police Constable Chatura's evidence on the circumstances of the arrest.

[68] Mr. Gill also corroborates that his friends got into a taxi, although he disputes that he exited it. There is no burden on Mr. Gill to establish anything in this trial, but I note his evidence on this point stands alone, and is uncorroborated. I accept that the officer's perception was that the defendant was getting out of the taxi.

[69] Something drew the officer's attention to what was happening in the vicinity of the Million Dollar Saloon at that off-hour when the operation was closed, and the Court finds that there was some circling of the lot by a taxi cab with the three boys inside it before Mr. Gill got out to move the car.

IV. Refuse Sample

[70] In this case, Police Constable Chatura made a breath demand pursuant to Section 254(3) to the Criminal Code:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, …

(b) if necessary, to accompany the peace officer for that purpose.

[71] A further demand pursuant to the same authority was made by Police Constable Pallett.

[72] Section 254(5) of the Criminal Code makes it an offence to refuse or fail to comply with a demand made under the section without reasonable excuse.

[73] I will discuss whether reasonable and probable grounds existed for each of the demands infra, and whether any deficiency in the grounds affords a complete defence to that count.

[74] Mr. Gill clearly and unequivocally "messed around" wilfully failing to comply with the demand of the officers, particularly Police Constable Pallett, who is particularized in the information.

V. Charter Sections 8 and 9

[75] The Applicant/defendant here alleges an infringement of Section 8 (and 9) of the Charter of Rights and Freedoms.

[76] The burden of proof on the issue of whether the right to be secure against unreasonable search and seizure has been infringed rests upon the Crown. The Applicant does not have the onus.

[77] The application also alleges an infringement of s.9 of the Charter, or the right to not be arbitrarily detained. The burden is on the defence of establishing such an infringement on a balance of probabilities.

[78] If the applicant's s.8 rights are infringed, counsel submits that the resultant search and/or seizure is deemed to be arbitrary as it is not lawful. He also submits that the breath demand would not be legal, and the detention and resultant refusal would not be admissible.

[79] The Crown's main position is that the arrest was made on reasonable and probable grounds, therefore the arrest and breath demand made by Police Constable Chatura was lawful, as unquestionably was the breath demand made by the qualified technician Police Constable Pallett.

[80] The defence submits that the officer's lack of reasonable and probable grounds to arrest on scene is a serious infringement, and ought to result in the exclusion of any evidence obtained thereafter.

[81] The Crown counters that if s.8 and or s.9 of the Charter were infringed in this case, it was not by much, and the demand made subsequently by the breath technician was based on reasonable and probable grounds. She submits the evidence of the acts of refusal in the Intoxilyzer room should be admitted in all the circumstances.

Reasonable and Probable Grounds

[82] No issue is taken with the legality of the Highway Traffic Act stop. It is not arbitrary or capricious, as it is authorized by law.

[83] The Crown submits that the investigating officer had reasonable and probable grounds to make the demand. Such grounds must be subjectively held and objectively reasonable.

[84] I accept Police Constable Chatura had subjective grounds to believe that Mr. Gill's ability to operate a motor vehicle was impaired. These included, as outlined in the evidence, the following:

• the time of day, nearly four in the morning, after the bar was closed;
• one vehicle remained in the parking lot;
• the peculiar conduct of the driving of the taxi cab in the vicinity circling the licensed establishment parking lot;
• the earlier observation of 3 individuals dodging around the industrial lot across from the saloon lot;
• seeing the defendant go quickly from the taxi which had other young men in it;
• the observation of the defendant driving the motor vehicle;
• squealing of tires as the vehicle exited the lot;
• the driver "bolted" across the street;
• movement of the vehicle from one parking lot to another in an industrial lot;
• eye contact made between the uniformed officer in a marked cruiser and the driver, followed by flight;
• some unsteadiness noted;
• a brief foot pursuit;
• a very strong odour of alcohol emanating from the defendant's breath;
• bloodshot, watery eyes;
• slurring the word 'sorry' when he stopped, winded;
• staggering; and
• unusual actions noted.

[85] Constable Chatura did not mention any prior investigation of persons associated with the vehicle, likely because he did not make any notation, and his testimony was almost a year after the arrest; but he did tell the qualified breath technician about an earlier call for service regarding intoxicated persons at that location involving that subject vehicle within one hour of the stop. It was likely this earlier call was in the back of his mind as he watched the Million Dollar Saloon parking lot with that very vehicle remaining, but I cannot put much weight into that factor reported to Police Constable Pallett, as he had not mentioned it to either counsel, although he was never asked. He likely lacked present recall of it without making a notation.

[86] Although the officer at one time in cross-examination indicated he found the circumstances suspicious, at that time he was referring to the fact of someone entering that car at the time and in the manner indicated. At no time did the officer demur from his testimony that he believed the driver to be impaired only after he caught up with him and observed the odour and condition of the driver.

Flight

[87] The Crown argues that the flight of the defendant substantiates the officer's subjective belief of reasonable and probable grounds. She submits that "the fact of attempted avoidance of the police is capable of raising an almost irresistible inference which gives rise to an officer formulating the required grounds to arrest."

[88] The Crown also relies on the following cases which found that fleeing police at the scene can be a major consideration in forming the requisite reasonable and probable grounds to make an arrest and 254(3) demand: R v Nistico, R v Lapensee, R v Esquega, R v Liu and R v Williams.

[89] Ms. Valarezo argues that in this case, both Officers Chatura and Pallett relied on more factors than were accepted by the summary conviction appeal justice in R v Reynolds as sufficient to justify an arrest and the making of a breath demand including the fact that the accused fled from the officer prior to his arrest. She states that this in and of itself should be sufficient to find that both officers' section 254(3) Breathalyzer demands were lawful.

[90] Mr. Posner asks the Court to consider all of the possible reasons why his client engaged in the short and foolhardy flight, which a reasonable observer should have considered as equivocal and not adding to the formation of reasonable and probable grounds.

[91] I find Constable Chatura's subjective belief was objectively reasonable in all of the circumstances which presented themselves that morning.

The Technician Demand

[92] Police Constable Pallett testified to having received information from Constable Chatura on the date of the investigation. He relied on this information in concluding that he had reasonable grounds to believe the accused's ability to operate a motor vehicle was impaired by alcohol.

[93] He also made his own observations of a strong odour of alcohol on Mr. Gill's breath, which was so strong at one point the room had to be aired out and the fan put on to remove alcohol laden air from the breathalyzer room. He also notes the condition of his eyes and slurred speech, as well as very unusual behaviour on Mr. Gill's part.

[94] It is not disputed that his demand was based on reasonable and probable grounds, although founded by information received from Police Constable Chatura, which the defence submits was lacking.

[95] The Applicant submits that if this Court finds that Constable Chatura lacked the requisite reasonable and probable grounds to arrest the Applicant, the Applicant was entitled to refuse to provide a breath sample at the police station without attracting criminal responsibility, as the lack of reasonable and probable grounds provided him with a reasonable excuse described in s. 254(5) of the Criminal Code.

[96] The Crown cites a number of cases which have held that in cases where there were multiple demands, so long as the testing is preceded by at least one lawful demand, the breath results are admissible in any event: R v Dhaliwal, R v Nassier, R v Townsend, R v Hollmer, R v Guenter.

[97] She submits that Justice Durno, sitting as a summary conviction appeal Judge, in R v Dhaliwal made reference to Justice Hill's decision of R v Nassier and found that evidence of the technician's demand was sufficient to establish that the sample was taken pursuant to a valid demand. He held that as long as there was evidence of a valid demand, either the technician was acting as the agent for the demanding officer or there was a continuing demand.

[98] Similarly, she also relies on decision of the summary conviction appeal Judge in R v Chilton, that it was open for the Crown to attempt to rely on the breathalyser technician's demand as being a valid demand.

[99] While the above-noted cases speak to situations where the individuals did provide a sample pursuant to a valid and legal demand, the principles, she argues, apply to this case in so much as the Crown is required to prove that the demanding officer had the requisite reasonable and probable grounds to make a breath demand that is subsequently refused.

[100] Accordingly, she submits this Court can safely conclude that the breathalyzer officer's demand was valid, in that it was made on reasonable and probable grounds and rely on his demand to make a finding of guilt in respect of the refuse/fail to comply charge.

[101] In the circumstances of this case, I need not decide whether the defendant is entitled to refuse the second demand, alleged to be not founded on reasonable and probable grounds, as I find that the officer did have the requisite reasonable and probable grounds to both arrest and make the breath demand in all the circumstances. For completeness, I will briefly make the following comments.

[102] In R v Rilling, the Supreme Court made the following comment about the relationship between reasonable and probable grounds and the charge of refusal:

…While absence of reasonable and probable grounds for belief of impairment may afford a defence to a charge of refusal to submit to a breathalyzer test laid under subs. (2) of s. 235 of the Code, it does not render inadmissible certificate evidence in the case of a charge under s. 236 of the Code. The motive which actuates a peace officer in making a demand under s. 235(1) is not a relevant consideration when the demand has been acceded to (emphasis added).

[103] Rilling has been recently affirmed by the Ontario Court of Appeal in R v Gundy, amongst other cases.

[104] Mr. Posner submits that his client, in refusing to comply with Constable Pallett's breath demand, exercised a similar type of refusal envisioned in the abovementioned passage of Rilling.

[105] The Supreme Court in Rilling specifically differentiated between instances when an accused complied with a breath demand and when that demand was refused. Had the Applicant complied with the breath demand and provided breath samples at the police station, it is conceded that the Respondent would not be required to establish reasonable and probable grounds for the demand unless the Applicant brought a Charter motion. In the case at bar, however, the Applicant refused to provide a breath sample.

[106] The defence submits that the fact that Mr. Gill refused Constable Pallett's demand as opposed to the demand of Constable Chatura is inconsequential to the analysis of whether or not the Applicant's refusal is justifiable under common law. He submits that the adequacy of reasonable and probable grounds for a breath demand formed by an officer not personally involved in the arrest of an accused should be evaluated in the same way as reasonable and probable grounds for a search in similar circumstances. It is submitted that Constable Chatura was effectively the officer who decided that the Applicant should be required to provide a breath sample; Constable Pallett's repetition of the breath demand did not constitute a new search, but was instead a continuation of the search initiated by Constable Chatura.

[107] It is argued that Constable Pallett's deference to and acceptance of Constable Chatura's accounting of events at the roadside is analogous in principle to a situation where an officer makes an arrest based on grounds relayed to him by another officer. In such circumstances, it is submitted that the reasonable and probable grounds of the relaying officer should be subjected to scrutiny when the legitimacy of the arrest is challenged. Mr. Posner says "whether Constable Pallett had his own reasonable grounds to make a breath demand is neither here nor there".

[108] The Crown submits that Constable Pallett can rely on his own opinion for reasonable and probable grounds, even if the information received from the investigating officer turns out to be untrue or misinformed.

[109] With respect to this argument, the technician demand is informed by the observations of others, particularly as to driving evidence or evidence of positioning of a detainee in or around a vehicle. He can consider hearsay if he feels it is trustworthy. However, that officer makes his own observations, and has a duty to form his own reasonable and probable grounds for any demand, which also must be subjectively held and objectively reasonable. It is not a mere repetition.

[110] In all of the circumstances, having found that both Police Constables Chatura and Pallett founded their breath demands on reasonable and probable grounds to believe that Mr. Gill's ability to operate a motor vehicle was impaired by alcohol, I find that the right against unreasonable search and seizure is not infringed in the circumstances of this case, and the arrest was lawful.

[111] Both counsel spent considerable effort analyzing my colleague's decision in R v Soomal, in part based on discussion in submissions by the Court. I commend their thoughtful analyses in the written submissions filed. As that case is distinguishable from this one, in which no Charter breach is found, I need not deal with it at length.

[112] But in the event I am in error, and Constable Chatura's grounds, while subjectively held were not objectively sound, I will briefly outline the arguments.

[113] In R v Hanneson, four police officers were charged with wilfully attempting to obstruct justice after they colluded to conceal an assault perpetrated by one of the officers. During the course of the investigation, the officers were compelled to provide statements in breach of their s. 10(b) right to counsel. These statements were misleading, and were found to constitute the actus reus of the attempted obstruction of justice. In finding the statements admissible despite the s. 10(b) breach, Justice Zuber, writing for a unanimous court, made the following comment:

The question then becomes - What is the effect of such a Charter breach? Does such a breach insulate the person detained against liability for subsequent criminal acts? The answer must be in the negative. It cannot be sensibly argued that following a breach of s. 10(b) of the Charter the person detained is free to assault his custodian or commit theft without any attendant criminal responsibility. Similarly, despite a breach of s. 10(b), a detained person will attract criminal responsibility for crimes committed by words, e.g., threatening death or offering a bribe. Section 10(b) has as its object the provision of counsel to those under investigation for crimes already committed in order that they might be advised with respect to making disclosure, the provision of evidence, etc., regarding those crimes. Section 10(b) cannot possibly relate to crimes yet to come.

[114] Recently, in R v Sidhu, Justice Schwarzl applied the reasoning in Hanneson to a situation where an accused refused to provide a breath sample into an approved instrument following a breach of his s. 10(b) Charter rights. He found that the decision of Hanneson was binding upon him, and thus any breach of the accused's right to counsel was rendered irrelevant in relation to the refusal charge, since the actus reus of the charge - the refusal - took place after the breach of the accused's Charter rights.

[115] The defence submits that Sidhu was wrongly decided and that the proper approach to analyzing Charter breaches in relation to charges of refusal is in accordance with the decision of Justice Stribopoulos in R v Soomal.

[116] His Honour found that the context of failing to comply with a breath demand is functionally different than the situation in Hanneson:

In Hanneson the accused were charged with obstructing justice for making false statements to their superiors who were conducting what was essentially a criminal investigation. In coming to the conclusion that it did, the Court of Appeal would have in mind the circumstances of that case. That is, a situation in which an accused whose Charter rights are violated then makes a false statement to investigators. Similarly, the Court clearly contemplated the analogous circumstances it specifically referenced in its judgment. For example, cases in which, following a Charter violation, an accused assaults, steals, threatens or offers a bribe.[37] With each of these examples, it is difficult to conceive of circumstances in which an accused in custody, following a violation of their Charter rights, would have a good excuse for committing any of the crimes listed by the Court.

In stark contrast, it is not at all difficult to imagine circumstances in which one might rather legitimately refuse to provide a breath sample. The very definition of the offence found in section 254(5) contemplates that possibility. One is only guilty of this offence if they fail to provide a breath sample "without reasonable excuse". Not surprisingly, a whole body of case law has developed that elucidates the sorts of circumstances that will and will not provide a reasonable excuse for refusing or failing to provide a breath sample.[38]

As a result, I do not believe the Court of Appeal in Hanneson intended for its decision to be determinative in a case like this one, where the violation of a Charter right precedes the refusal to provide a breath sample in response to a demand under subsection 254(3)(a) (i.e. an approved instrument demand). I come to this conclusion for two reasons: first, the Court did not include the refusal to provide a breath sample in the list of offences it enumerated to illustrate the principle it recognized; and second, the circumstances contemplated by the Court of Appeal are distinguishable from a case like this one, where a defendant could potentially have a reasonable excuse for not providing a breath sample. As a result, I have concluded that the holding in Hanneson does not reach the circumstances of this particular case. [at paras. 75 to 77]

[117] Justice Stribopoulos identified other cases which support the proposition that R v Hanneson does not apply in refusal cases. In R v Cobham, the Supreme Court of Canada applied section 24(2) immediately upon finding a breach of the right to counsel on a refusal charge. His Honour explained the significance of Cobham at para.82:

I appreciate that the criteria governing the application of section 24(2) have evolved since Cobham was decided. The significance of the decision for the purpose of Ms. Soomal's case is primarily that the Court does not suggest that evidence of the refusal to provide a breath sample is incapable of being excluded because it constitutes the actus reus of a crime. To the contrary, in Cobham the Court emphasized that because evidence of the refusal was conclusive of guilt trial fairness strongly favoured exclusion. In my view, this unquestionably establishes that, in light of the Charter violations, I am obliged to consider whether or not the admission of evidence regarding Ms. Soomal's refusal to provide a breath sample would bring the administration of justice into disrepute. To the extent that Hanneson might be read to suggest otherwise, I believe the Supreme Court's decision in Cobham takes precedence and binds me.

[118] Other decisions cited by Stribopoulos J. go even further and suggests that R v Hanneson may no longer be an accurate statement of the law.

• R v Rusnov, 2009 ONCJ 564 at para. 72
• R v Whyte, 2009 ONCJ 389 at para. 32
• R v Richards, 2004 CarswellOnt 2031 at paras. 43-44 (CA)

[119] Mr. Posner adds to this list of cases relevant to the issue of Hanneson's application to this case the Ontario Court of Appeal's decision in R v Williams. In Williams, the Court concluded that while a violation of an accused's right to counsel does not create a reasonable excuse for refusing to provide a breath sample, a breach of the right to counsel in refusal cases should be dealt with under section 24(2) of the Charter:

Mr. Duncan submitted that a Charter violation committed during the investigative process, that is before the offence (refusing to provide a breath sample) was committed should be viewed differently. I do not agree. The circumstances of the Charter violation, including its temporal relationship to the offence, should be addressed when the issue of the exclusion of evidence under s. 24(2) is dealt with. If the offence is committed after the Charter violation, the court will more readily exclude the evidence (here the refusal) obtained as a consequence of the violation.

As Williams was decided after Hanneson, it is submitted that Hanneson should be interpreted in a manner so as not to conflict with Williams.

[120] Mr. Posner submits that Sidhu is wrongly decided and is distinguishable in any event because the breach of s.10(b) occurred after a lawful arrest, and the breach did not have a direct link to the subsequent refusal to provide a breath sample.

[121] He submits there is a causal connection between the Charter breach and the evidence obtained in the present case created by the violations of sections 8 and 9 of the Charter, which distinguishes this case from R v Sidhu, and thus from the application of the Hanneson principles.

[122] He relied on other recent decisions, including R v Khan. After a finding that the arresting officer lacked the requisite reasonable and probable grounds to make a breath demand, Clark J. conducted a section 24(2) inquiry, which ultimately led to the exclusion of evidence of refusal.

[123] The Crown argues that Soomal is wrongly decided, is not binding, and submits that the Supreme Court of Canada decision of R v Cobham is distinguishable.

[124] While not dealing specifically with the application of Charter relief in cases involving the failure/refusal to provide a breath sample, the Crown relies on the appellate case of R v Bleta, where Justice Code commented on the applicability of the Court of Appeal's decision in Hanneson in a case that involved a roadside refusal.

[125] Justice Code clarified that statements and words uttered constitute the actus reus of the refusal to comply with a demand offence. In support of this proposition, he cited R v Rivera, R v Stapleton, R v Hanneson, and R v Ha.

[126] Justice Code concluded that Hanneson still represents the state of the law and applied and emphasized the passages from Hanneson that speaks to the inapplicability of the Charter to insulate an offender from subsequent criminal responsibility by rendering inadmissible statements which are the whole or part of the actus reus of a crime.

[127] Ms. Valarezo submits that Justice Stribopoulos' analysis in the decision of Soomal is legally incorrect when considered with the binding decision of Justice Code's case decided two years earlier, which applies Hanneson as applicable to a refuse breath sample case.

[128] She further argues that in R v Cobham, the focus of the Court is on the fact that the statements uttered by the accused in refusing to comply with a breath sample were self-incriminating ones, and makes no reference to the decision of Hanneson, that they are part of the actus reus of the offence.

[129] In the alternative, the Crown distinguishes Soomal from the facts of the present case, by asserting the defendant in this case was not forced to incriminate himself as a result of the alleged Charter breach. She said the Court cannot find as Justice Stribopoulos did in Soomal that had Mr. Gill's right to be lawfully arrested and issued a lawful breath demand not been violated, he may very well have complied with the breath demand and thereby avoided incriminating himself in the way he did. Such a conclusion does not flow from the evidence, since Mr. Gill admits to "faking it", pretending to provide a sample, and lying multiple times about "trying to provide" during his interactions with Officer Pallett. The accused was not compelled to behave in this manner. He for his own motives chose to fail/refuse to provide a sample, which she says does not rise to the level of self-incrimination contemplated by the Supreme Court in Cobham or by Justice Stribopoulos in Soomal.

[130] The Court of Appeal in R v Rivera, adopted Justice Hill's comments in R v Bijelic in a case that dealt with the admissibility of roadside statements:

… (t)he appellant volunteered the statement of prior experience - it was not conscripted or "elicited" as that term is understood in the context of ss. 7 and 10(b) of the Charter. There is no evidence of a ploy or manipulation of the appellant raising compulsion to inform the officer that he was familiar with a breath-testing device. There was no legal compulsion to speak. The appellant, for his own motives, chose to do so.

[131] Applying this line of reasoning established by Justice Hill, the Crown argues that the accused in this case was not forced to incriminate himself and not compelled to speak. Counsel agreed this was so at the outset of the trial. The accused in this case, chose to refuse/fail to provide a sample of his breath.

[132] Finally she distinguishes this case from that of R v Soomal in that the trial judge focuses his judgment in that case on the notion that the accused had a "reasonable excuse" to not provide a sample as a result of the section 10(b) Charter violation. The defence is not advancing a reasonable excuse defence in this case.

[133] Based on the admissions made by both the accused and counsel for the accused, the Crown submits that it is apparent that the act of refusal/failure to provide was a wilful one, not one that was created by the officers.

[134] I adopt Justice Stribopoulos' reasoning in R v Soomal, as a sound, well-reasoned decision which I would follow, had I found a breach of s.8 and 9 of the Charter. It remains for another day where there is an appropriate case to determine if a breach of the right to counsel weighs heavier in the balance, than a precipitous formation of reasonable and probable grounds to arrest where there is a right to investigative detention in any event one must bear in mind either scenario is a breach of a constitutional right.

VI. Section 24(2)

[135] I have decided that there is no Charter breach in all the circumstances of this case, but I will outline the arguments made as to the application of s. 24(2) of the Charter to this case, if there indeed was a breach found.

[136] In this case the evidence the applicant seeks to exclude is any evidence which accrued after the breach, including the breath room video, any utterances, and any other conduct of the defendant.

[137] The Crown relies on the lawful demand of the qualified breath technician to remedy any deficiencies in the arresting officer's demand, and submits the evidence is not "obtained by the breach".

[138] The defence submits that the breath demand read to him at the police station by Constable Pallett does nothing to remedy the earlier Charter-infringing conduct of Constable Chatura, and that despite the second demand, evidence of his refusal was "obtained in a manner that infringed or denied any rights or freedoms guaranteed" by the Charter.

[139] In the face of a Charter breach by the police, remedial conduct by investigators may constitute a "permissible fresh start" if it severs the link between the original taint and the subsequently obtained evidence.

[140] To determine whether the remedial conduct on the part of the police severed the subsequently obtained evidence from the previous Charter-infringing conduct, the Court must conduct a case-specific factual inquiry: see R v Plaha.

[141] While most jurisprudence on the "permissible fresh start" doctrine relates to statements of an accused following a section 10(b) violation, "no principled reason exists to confine the "fresh start" jurisprudence to cases involving successive statements made to persons in authority. The rationale that underpins the "fresh start" principle is the same irrespective of the specific form the evidence proposed for admission takes" per R v Manchulenko.

[142] A causal relationship between the breach and the impugned evidence is not necessary for a finding that evidence was "obtained in a manner" that infringed the Charter. "The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three."

[143] A temporal link between the infringement of the Charter and the obtaining of the evidence, while not determinative, figures prominently into the assessment of whether the evidence was "obtained in a manner" that infringed the Charter. The evidence should be considered tainted if the Charter breach and the impugned evidence can be said to be part of the same transaction or course of conduct.

[144] Here, there is a temporal link between Mr. Gill's refusal and the Charter-infringing conduct on the part of Constable Chatura, there is also a strong causal and contextual connection between the unlawful arrest and the evidence of refusal. The second breath demand read to him by Constable Pallett did not sever the link between the Charter breaches and the evidence of refusal ultimately obtained.

[145] Temporally, the breach of the Applicant's rights is quite proximate to the evidence of refusal. The breach of the Applicant's section 9 rights is said to begin at the roadside and continue throughout the entirety of his interaction with the police on December 11, 2012. The continued arrest of the Applicant as he was transported to the station and given the opportunity to either comply or refuse to provide breath samples, and is a continuing breach of the Applicant's section 9 rights.

[146] In relation to the causal connection issue, it was only as a result of Constable Chatura's arrest of the defendant that he had an opportunity to commit the offence of refusing to provide a breath sample. This makes out a causal and contextual connection between the breach of the Applicant's Charter rights and the evidence of refusal obtained by Constable Pallett.

[147] Further to the temporal, causal, and contextual connection between the breach of the Applicant's Charter rights and the evidence of Applicant's refusal, Mr. Posner submits that Constable Pallett's breath demand did nothing of substance to remedy the breaches of the Applicant's rights, and that it was a mere technical exercise that did nothing to remedy the prior breaches.

[148] In R v Plaha, the Ontario Court of Appeal made the following comments regarding the need to consider the effect of any intervening events on whether a temporal connection between the evidence and the breach can be established:

The measurement of the temporal connection between a breach and a subsequent statement requires more than simply counting the minutes or hours between the two. Events that occur during the time interval can colour the significance of the passage of time. Here, the appellant was sitting by himself in a small interview room for almost the entire six and a half hours. He was under the total control of the authorities and his contact with the rest of the world was exclusively through the authorities and subject to their control. Virtually nothing had changed in the six and a half hours between the last breach of the appellant's right to counsel and statement #4. I do not think time passed for the appellant in the same way it would for someone who was not in custody. To a large extent, time was frozen for the appellant. In such circumstances, the mere ticking of the unheard clock cannot distance statement #4 from the earlier events.

[149] The defence submits that in the same way the time delay in R v Plaha did not change the situation for the accused, the second breath demand read to the Applicant by Constable Pallett did nothing to alter the Applicant's perception of his situation. In essence, Constable Pallett's breath demand did not constitute a "fresh start", but instead is better characterized as an unwitting continuation of both the unlawful arrest and the unreasonable search and seizure.

[150] Finally, the defence submits the injection of a lawful search mechanism into an investigation that has been unlawful from its inception does not insulate the evidence obtained as a result of the lawful search from Charter scrutiny. In finding that the products of a valid search warrant obtained following a Charter-infringing initial investigation attracted the application of section 24(2) of the Charter, the Supreme Court in R v Grant wrote as follows:

In the case at bar, there is a sufficient temporal connection between the warrantless perimeter searches and the evidence ultimately offered at trial by the Crown to require a determination as to whether the evidence should be excluded. The warrantless searches, while perhaps not causally linked to the evidence tendered, were nevertheless an integral component in a series of investigative tactics which led to the unearthing of the evidence in question. It is unrealistic to view the perimeter searches as severable from the total investigatory process which culminated in discovery of the impugned evidence. Furthermore, to find otherwise would be to ignore the possible tainting effect which a Charter violation might have on the otherwise legitimate components of searches by state authorities. The temporal and tactical connections between the warrantless perimeter searches and the evidence finally offered at trial were sufficient to warrant the conclusion that the evidence was obtained in a manner that violated the constitutional rights of the respondent so as to attract the provisions of s. 24(2) of the Charter. Accordingly, I now turn to consider whether the impugned evidence ought to be excluded. [para.255]

[151] It is submitted that Constable Pallett's breath demand should not insulate the evidence of refusal ultimately obtained from consideration for exclusion under section 24(2).

[152] In R v Grant, the Supreme Court of Canada set out a three-branch test for exclusion under section 24(2) of the Charter that trial courts must balance, namely (i) the seriousness of the breach; (ii) the impact on the Charter-protected interests of the Accused; and (iii) society's interest in adjudicating the matter on its merits.

[153] The first line of inquiry is the seriousness of the breach. This inquiry focuses on the gravity of the State's infringement of the rights of the citizen. The more severe or deliberate the breach the greater the need for the Court to dissociate itself from that conduct.

[154] This is not a case in which it can be said that there was a deliberate or flagrant disregard of the rights of Mr. Gill. The officer involved acted professionally toward Mr. Gill, and this was not a case of bad faith. Unlike many of the breach of the right to counsel cases, in which the defendant is deprived of an essential right to secure legal advice, the defendant here was afforded every opportunity to exercise that right on two separate occasions.

[155] If Constable Chatura's assessment of the reasonable and probable grounds to arrest fell short on that night, he was not far off the mark. Given the peculiar behaviour of Mr. Gill, the overwhelming odour of alcohol about his person, the flight on stopping the vehicle, and other indicia noted shortly thereafter, less than a minute or two more talking to the detainee would likely have readily augmented the articulated lists of indicia and factors noted by the officer to that point.

[156] It is not disputed that the officer had at least enough grounds to suspect there was alcohol in Mr. Gill's body while driving and he could have made an approved screening device demand.

[157] There was no flagrant or wilful lack of adherence to constitutional standards. There were not multiple violations of rights.

[158] In all the circumstances, consideration of the first line of inquiry results in an assessment that falls at the lower to the middle of the continuum between minor and flagrant. It is not deliberate, but at the same time the conduct of the officer displays a flawed appreciation of the continuum of suspicion to reasonable and probable grounds.

[159] The second line of inquiry is the impact of the Charter protected interests of the accused.

[160] The breach occurs after Mr. Gill was properly subject to detention for investigation for the offence of impaired operation in any event. His detention was not extended as a consequence of the breach. Rather it was somewhat abbreviated. The breath testing procedure has been described elsewhere as highly reliable and minimally intrusive. It was entirely likely Mr. Gill would not have complied with the breath demand that night. Notwithstanding legal advice on two occasions and the gentle exhortation of the breath technician, he decided to lie and obfuscate rather than provide a breath sample.

[161] There can be no doubt that Charter protected interest in preventing unreasonable searches and seizure in advance of providing a breath sample is an important right, and in my view the analysis under the second line of inquiry leans toward exclusion.

[162] The focus of the third line of inquiry is society's interest in an adjudication of the charges on the merits. Impaired driving is a serious and persistent societal problem. The Intoxylizer instrument is accepted to be highly reliable and Parliament has compelled drivers to provide suitable breath samples upon a proper demand by a peace officer. The breath room recording provides reliable evidence regarding Mr. Gill's state of impairment, relevant to the first count, and exclusion of this evidence of refusal to provide would be fatal to the Crown case on count two. This factor strongly favours admission.

[163] Balancing all of the factors set out above, and balancing the competing considerations, I find that the integrity and repute of the administration of justice would not be compromised by the admission of the recorded acts and words which amount to a refusal to supply breath readings for analysis. The police conduct was not egregious and the evidence was reliable and of considerable value.

[164] The applicant has failed to establish on a balance of probabilities that the admission of this evidence would tend to bring the administration of justice into disrepute, and I would admit it.

VII. Impaired Charge

[165] Count One is a charge of impaired operation of a motor vehicle. The Court is obliged to decide whether the admissible evidence establishes beyond a reasonable doubt that Mr. Gill's ability to operate a vehicle was impaired by alcohol. As the Court of Appeal explained in Stellato: "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." However, the "question is whether the person's ability to drive is impaired to any degree by alcohol" which means that judges "must be careful not to assume" that where a motorist's "functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired."

[166] There is evidence of alcohol consumption which gives rise to a well-founded suspicion and, arguably reasonable and probable grounds, that the defendant was operating a motor vehicle while impaired. But, in its entirety, the collection of incriminating circumstances is, while more than likely on a balance of probabilities to establish impaired ability to operate a motor vehicle, when considered along with the exculpatory evidence, the charge is simply not proven beyond a reasonable doubt. I will briefly review the relevant evidence in order to explain this conclusion.

[167] The manner in which Mr. Gill came to the attention of the officer was not a traffic infraction, nor was there any bad driving or improper parking of the vehicle. He was simply suspicious of someone getting out of a taxi and into an abandoned vehicle at a time when the licensed establishment was long closed. The entire time he observed the vehicle was momentary as it traversed one parking lot into another across the road.

[168] Police Constable Chatura also testified that when he dealt with the defendant his eyes were red rimmed and watery. Again, this is somewhat equivocal. This could be evidence of impairment but it also could be evidence that the defendant was tired. After all, it was 3:42 in the morning. Also, I accept that Mr. Gill had a number of tragic events in his life and that alcohol made him more emotional. He might well have been crying prior to the stop, or when the officer caught him in the foot chase.

[169] The officer testified that when he spoke with the defendant after he stopped him his speech was somewhat "slurred". However, during cross-examination, the officer conceded that he had never dealt with the defendant before and that he only heard the one word, "sorry" prior to the arrest. The defendant was blubbering on the way to the station, and repeated this word also. When he made this notation of slurring, it is possible his observation strengthened later in his dealings.

[170] In addition, Constable Chatura testified that, at the stop, the defendant appeared to be a bit unsteady on his feet as he exited the car to run. In cross-examination, he clarified that at its highest Mr. Gill was "sluggish" getting out of the car.

[171] The officer described some staggering after Mr. Gill was handcuffed, but his manner of walking would be difficult to determine for such a short distance under escort to the cruiser, and the defendant's emotional state at that time was heightened, and he was panicky, which could affect his gait.

[172] The strong odour of alcohol on Mr. Gill's breath is evidence of consumption of alcohol, but cannot prove the quantum of consumption.

[173] In assessing the Crown's offering of proof I should not view each item of evidence in isolation. I must decide whether the entire collection of circumstances just outlined makes out the charge. Of course as Justice Stribopoulos states in the Soomal case, infra, "it is not simply the incriminating evidence to which I must have regard; I must obviously consider all of the evidence. Here, there was also other, arguably exculpatory, evidence".

[174] There was nothing untoward about the driving per se, other than a slight squealing of tires. Although Mr. Gill denied doing so, it was someone else's vehicle, and it is entirely possible he did so, intentionally because his friends were in a nearby cab, or unintentionally because of his unfamiliarity with the car.

[175] The evidence of his eye condition was equivocal in light of the time of day and his emotional condition.

[176] His state of emotional upset was also equivocal, either due to excess drinking, or because of his personal recent circumstances.

[177] The more compelling evidence was Mr. Gill's flight from the vehicle when he made eye contact with the officer. Although in the large number of cases, that factor alone, along with basic indicia of alcohol consumption, might compel a conclusion beyond a reasonable doubt that the person knew his ability to operate a motor vehicle was impaired by alcohol, and knew that; in this case, the flight can also be explained by the following circumstances: the young age of the defendant; his lack of maturity of decision making; the fact he would be in trouble with his parents and cause his mother more anxiety; that he was a G1 driver who was in violation of the terms of his license and liable to lose it; and that he had consumed alcohol and driven whilst under age 22 years, contrary to provincial legislation. These reasons provide an alternate and equally compelling reason to not want to stick around for the consequences.

[178] The Court must also consider the refusal of Mr. Gill to provide suitable breath samples at the division. Section 258(3) of the Criminal Code states as follows:

258 (3) In any proceedings under subsection 255(1) in respect of an offence committed under paragraph 253(1)(a) or in any proceedings under subsection 255(2) or (3), evidence that the accused, without reasonable excuse, failed or refused to comply with a demand made under section 254 is admissible and the court may draw an inference adverse to the accused from that evidence.

[179] This is a statutory expression of the application of common sense. The Court may draw an adverse inference from one's lack of cooperation with compelled breath samples. Such an inference is discretionary, and the discretion must be exercised judiciously. In this case, it would be unfair to draw it because the refusal, while not equivocal, is based on the defendant's fear of proof of alcohol consumption alone, which could deprive him of his license. I am not satisfied that he in fact knew his ability to drive was impaired by alcohol, as opposed to the fact of mere consumption. Of course his subjective opinion of his abilities is fraught with difficulty and also cannot be relied on by the Court.

[180] To sum up, based on all of the evidence, I am very suspicious that the defendant's ability to operate a motor vehicle was impaired by alcohol on the morning in question. In fact, it is more probable that his ability to operate a motor vehicle was impaired by the consumption of alcohol, as was the opinion of two experienced officers. However, given the equivocal nature of much of the admissible incriminating evidence presented by the Crown, combined with the exculpatory evidence that I heard, I am not sure beyond a reasonable doubt that that is the case. Accordingly, I am obliged to dismiss the impaired driving charge.

Conclusion

[181] On Count One alleging the impaired operation of a motor vehicle, Mr. Gill is found not guilty.

[182] On Count Two alleging the refusal or failure to comply with the breath demand of Police Constable Pallett, he is found guilty.

Released: February 2, 2015

Justice N. S. Kastner