Court File and Parties

Date: 2015-11-13

Court File No.: Brampton 14-6834

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Bhupinder Singh

Before: Justice P.A. Schreck

Heard on: September 15-16, 2015

Counsel

H. Gluzman – counsel for the Crown

M. Buchler – counsel for the defendant, Bhupinder Singh

Reasons for Judgment

SCHRECK J.:

[1] Bhupinder Singh ran a red light, passing a marked police cruiser as he did so. He was stopped, directed to exit his vehicle and then secured in the back of the police car. After a second officer arrived, he was arrested for impaired driving and taken to the police detachment. Samples of his breath later revealed that his blood alcohol concentration was well over twice the legal limit. Mr. Singh was charged with operating a motor vehicle while his ability to do so was impaired by alcohol (Count 1) and while the concentration of alcohol in his blood exceeded the legal limit (Count 2). He has applied, pursuant to ss. 9, 10(a), 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude certain evidence from his trial and, if successful, submits that the remaining evidence is insufficient to support a conviction on either count.

I. EVIDENCE

A. The Initial Stop

(i) The Evidence of the Police Officers

[2] At 2:26 a.m. on May 24, 2014, Cst. Nick Carroll of the Peel Regional Police was in a marked police cruiser stopped at a red light when a vehicle drove past him through the red light at a high rate of speed, which Cst. Carroll estimated to be about 100 km/h. He immediately activated his lights and siren and drove after the car, which he noticed bumped against the median before making a wide left turn. The vehicle then turned into a gas station parking lot and stopped.

[3] Cst. Carroll stopped his cruiser in the parking lot and got out. He could see that the other vehicle had two occupants. Because he had safety concerns, he did not approach it and instead called out to the driver to exit the vehicle. Cst. Carroll acknowledged that he was upset at the time because the car had barely missed his cruiser when driving past him. However, he denied a suggestion put to him in cross-examination that he had used any profanity when directing the driver to exit the vehicle. According to Cst. Carroll, the driver, who was later identified as the defendant, got out of the vehicle but staggered while doing so and needed to hold onto the car to maintain his balance. He then walked towards Cst. Carroll as directed.

[4] According to Cst. Carroll, when Mr. Singh approached him he immediately told Mr. Singh that he had been stopped because of red light and speeding offences. He then smelled alcohol emanating from Mr. Singh, so he immediately added that he was also investigating him for impaired driving. Cst. Carroll made no notes of this conversation. He did not advise Mr. Singh of his right to counsel because, according to him, he did not have time to do so.

[5] Cst. Carroll could not recall whether he asked Mr. Singh for his driver's licence or other documentation. He acknowledged that he had a note of having obtained Mr. Singh's passport, but could not recall where it had come from.

[6] Cst. Carroll then conducted a pat-down search of Mr. Singh and placed him in the back of his police cruiser. He closed the door, which could only be opened from the outside, effectively locking him in. When asked why he did this, Cst. Carroll explained that he had safety concerns because he was alone and the defendant's car had two occupants.

[7] Cst. Carroll used his radio to request the attendance of other officers. He then approached the other vehicle, directed the passenger to exit and spoke to him. The passenger told Cst. Carroll that he and Mr. Singh had been drinking alcohol at a restaurant. He had advised Mr. Singh not to drive but he had done so anyway. Cst. Carroll made notes of this conversation.

[8] According to Cst. Carroll, at 2:32 a.m., Cst. Darren Peel arrived on scene. Cst. Peel testified that he arrived at 2:28 a.m. Cst. Carroll then briefed him about what had transpired. According to Cst. Carroll, this took approximately four minutes. According to Cst. Peel, it took six minutes. Cst. Peel then took over the investigation of Mr. Singh and Cst. Carroll had no further interaction with him.

[9] Cst. Peel opened the door of Cst. Carroll's cruiser and spoke to Mr. Singh. He testified that he could immediately detect an odour of alcohol emanating from him. As well, his words appeared to be slow, his eyes were red and glossy, and he was unsteady when he got out of the vehicle and had to support himself. At 2:34 p.m., Cst. Peel placed Mr. Singh under arrest for impaired driving. He placed him in the back of his own cruiser and advised him of his right to counsel at 2:37 a.m. Mr. Singh said he did not wish to speak to a lawyer. Cst. Peel then made a breath demand. At 2:42 a.m., he left the scene and drove to 12 Division, arriving at 2:48 a.m. After they entered the police division, Cst. Peel again asked Mr. Singh at 2:52 a.m. if he wished to speak to a lawyer. Again, Mr. Singh declined.

(ii) The Defendant's Evidence

[10] Mr. Singh testified on the voir dire. He acknowledged running a red light, which he initially said he had not noticed but later said he had noticed at the "last second". He testified that he was driving "a little fast", which he estimated to be 85 km/hr. When asked how he knew this, he claimed that he remembered looking at his speedometer. He later agreed in cross-examination, however, that he could have been going at 100 km/hr. When he saw the police car behind him, he pulled into the gas station. He denied that his car ever hit the median.

[11] Mr. Singh testified that he believed that he was being stopped for speeding and running a red light. He saw a police officer approaching his car so he opened the door, at which point the officer said "Get out of the car, shithead". Mr. Singh got out and the officer then placed him in the back of the police cruiser without saying anything to him. Later, a second officer arrived, told him to get out of the car and placed him under arrest for impaired driving. This was the first time he was told of the reason for his detention.

[12] Mr. Singh testified that if he had been advised of his right to counsel before being placed in the police car, he would have exercised it using the cell phone he had with him because he did not know what was going on or why he had been detained. After he was arrested, he no longer felt the need to speak to counsel as he now understood why he was being detained.

[13] Mr. Singh acknowledged that he had consumed alcohol that evening, although he believed that it had been "a little". He denied that he was unsteady on his feet or that he needed to support himself when getting out of his own car or the police cruiser.

B. The Breath Tests

[14] At the police station, Mr. Singh was turned over to Cst. Glen Leonardo, a qualified breath technician, at 3:04 a.m. Cst. Leonardo also advised Mr. Singh of his right to counsel and asked him if he wished to call a lawyer. Mr. Singh replied that he wanted to do the breath test first and then decide whether to speak to counsel.

[15] Cst. Leonardo noted that Mr. Singh's eyes were red, his speech was slurred and there was an odour of an alcoholic beverage emanating from his breath. In his opinion, Mr. Singh's ability to operate a motor vehicle was impaired. Cst. Leonardo did not notice any staggering or unsteadiness.

[16] The breath tests conducted by Cst. Leonardo were videotaped and portions of the video were made an exhibit at trial. In watching the video, it was evident to me that Mr. Singh was significantly impaired.

[17] Mr. Singh provided breath samples at 3:24 a.m. and 3:45 a.m., resulting in two readings of 205 mg of alcohol per 100 ml of blood.

II. ANALYSIS

A. The Charter Application

(i) Section 9

(a) The Initial Stop

[18] Cst. Carroll testified that the reason he locked Mr. Singh in the back of the police cruiser was because of safety concerns. He was alone while the other car had two occupants. Given the manner in which Mr. Singh had been driving, he wanted to ensure that he could not continue to drive. Even after Mr. Singh exited the vehicle, he was concerned that the passenger may start driving so he needed to place Mr. Singh into the police cruiser in order to deal with the passenger.

[19] It is not unusual for a traffic stop to develop into another type of investigation. Where that occurs, the court must proceed step by step through the interactions of the police and the applicant from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry: R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851 at para. 4.

[20] There is no issue that the initial traffic stop was valid. Cst. Carroll was investigating two Highway Traffic Act ("HTA") offences and, given the manner in which Mr. Singh had been driving, needed to get him off the road to preserve public safety. I am also satisfied that it was appropriate for Cst. Carroll to direct Mr. Singh to exit the vehicle. Once Cst. Carroll was near Mr. Singh, he detected the odour of alcohol, which legitimately altered the scope of his investigation to include the offence of impaired driving. Based on these factors, Cst. Carroll clearly had the authority to detain Mr. Singh as part of his investigation of both the HTA and the impaired driving offences.

(b) The Decision to Secure the Defendant in the Police Car

[21] Having concluded that Cst. Carroll had the authority to detain Mr. Singh, the issue that now must be determined is whether he was justified in exercising that authority in the manner that he did in the circumstances of this case. Mr. Singh was not under arrest when Cst. Carroll placed him in the back of the police car. Any justification for detaining him in that fashion must arise from the common law power of the police to detain. That such a power exists is beyond dispute: R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725 at paras. 30-31; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 at para. 36.

[22] The limits of the common law power to detain are set by what is reasonably necessary in the circumstances. This was most recently made clear by the Supreme Court of Canada in R. v. Aucoin, supra. As in this case, the issue there was whether a police officer was justified in securing an individual who was not under arrest in the back of a police cruiser. Writing for the Court, Moldaver J. held (at para. 39):

Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view that in the context of this case, in order to justify securing the appellant in the back seat - knowing that this would also entail a pat-down search - detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter: Clayton, at para. 20.

(c) Officer Safety

[23] In this case, the Crown takes the position that the detention was justified by Cst. Carroll's safety concerns. Cst. Carroll attempted to articulate those concerns during his testimony:

At this point still this is very in the early stages of the traffic stop. I have – still have safety concerns. There's still an unknown occupant in the vehicle. There's a lot of unknowns by myself. I don't have any backup. There's two, I'll refer to them as subjects, the driver, you have the passenger, and that point I do not feel safe and I wanted to make the situation safe for myself.

Later in his testimony, he said:

And then I mean you can, you can "what if" any type of situation. I mean who knows, the passenger could be over into the driver's seat and the car could be off again. I, I had no idea what was going on. I had just seen, you know, numerous different things that occurred and, you know, I was using those observations to try and analyze the situation and figure out what was going on. I don't know these two individuals. I have no idea what their background is. I have no idea what, what might have just transpired, so there's a lot of safety concerns when there's unknowns.

[24] Policing is an inherently dangerous profession and the courts must be sensitive to the need to ensure officer safety. That said, there must nonetheless be limits on the extent to which the police can infringe on individual liberty in the name of safety. That limit depends on what is reasonably necessary in the circumstances. To determine reasonable necessity based on safety concerns in the detention context, it is helpful to consider how that standard is applied in the search context. When searches are reasonably necessary for safety reasons was considered in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, where LeBel J., writing for the majority, stated (at para. 41):

But although I acknowledge the importance of safety searches, I must repeat that the power to carry one out is not unbridled. In my view, the principles laid down in Mann [2004 SCC 52, [2004] 3 S.C.R. 59] and re affirmed in Clayton require the existence of circumstances establishing the necessity of safety searches, reasonably and objectively considered, to address an imminent threat to the safety of the public or the police. Given the high privacy interests at stake in such searches, the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search (Mann, at para. 40; see also para. 45). The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter (see R. v. Tse, 2012 SCC 16, [2012] 1 S.C.R. 531, at para. 33). As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on "reasonable and specific inferences drawn from the known facts of the situation" (Mann, at para. 41).

[25] Applying these concepts to the case at bar, the issue I must consider is whether Cst. Carroll had grounds to believe that his safety was at stake based on reasonable and specific inferences drawn from the known facts of the situation and that securing Mr. Singh in the back of the police car was the only way to address those concerns.

[26] The difficulty in this case is that Cst. Carroll did not purport to base his safety concerns on the facts of the situation but, rather, the lack of facts, or, as he put it, "unknowns" and "what ifs". While the manner in which Mr. Singh drove gave rise to legitimate safety concerns, those concerns were addressed once he stepped out of the vehicle. Mr. Singh was compliant with the officer's directions and the officer had no information to suggest that he may be armed or had a history of violence. As Crown counsel acknowledged during argument, the mere fact that a single officer was investigating two individuals did not, by itself, support the inference that Cst. Carroll's safety was at risk.

[27] Even if Cst. Carroll had specific safety concerns, he would not have been justified in securing Mr. Singh in the cruiser if there were other reasonable means to address those concerns: R. v. Aucoin, supra at para. 39. Cst. Carroll called for another officer to attend, and one did so within a few minutes. Cst. Carroll could have simply directed Mr. Singh to wait at the roadside until the second officer arrived. The officer's concerns could have been addressed by measures that had far less impact on Mr. Singh's liberty interests: R. v. Christie, [2013] N.B.J. No. 428 (C.A.) at paras. 19-21.

[28] For the foregoing reasons, I find that although the initial detention of Mr. Singh was justified, it was not reasonably necessary for Cst. Carroll to lock him in the back of the police cruiser and doing so violated Mr. Singh's s. 9 Charter rights.

(d) The Arrest

[29] It is also submitted that there was a further violation of Mr. Singh's s. 9 rights because Cst. Peel did not have grounds to arrest him. In my view, he had ample grounds to do so. Leaving aside Cst. Peel's evidence of having seen Mr. Singh stagger (which I will discuss in further detail later), he was aware that Mr. Singh had driven through a red light at a high rate of speed past a marked police cruiser. As well, he noted that Mr. Singh had red-rimmed, bloodshot eyes and slurred speech and that there was an odour of alcohol emanating from his breath.

(ii) Section 10(a)

[30] There is no issue that Mr. Singh was detained from the moment Cst. Carroll directed him to exit his vehicle. While the reason for the detention was initially to investigate HTA offences, this expanded to include the investigation of a drinking and driving offence.

[31] Section 10(a) of the Charter guaranteed Mr. Singh the right to be advised of the reasons for his detention "promptly". Mr. Singh testified that he was never so advised. Cst. Carroll testified that he immediately told Mr. Singh why he was being detained. I must therefore assess the credibility of both witnesses.

[32] Mr. Singh was not a convincing witness. His testimony was inconsistent in many respects, such as the speed he was travelling or when he noticed the red light, and he often appeared confused while testifying. I do not accept his testimony that he had only consumed "a little" alcohol that evening. It is likely that he had consumed a significant amount and that this affected his memory of the events.

[33] Mr. Singh's denial of having been advised of the reasons for his detention is contradicted by Cst. Carroll. Cst. Carroll's notes, however, make no mention of any such exchange with Mr. Singh. Relying on Wood v. Schaeffer, 2013 SCC 71, [2013] 3 S.C.R. 1053, defence counsel submits that Cst. Carroll's failure to make notes of having advised Mr. Singh of the reasons for his detention should lead me to conclude that it never happened.

[34] Wood v. Schaeffer makes it clear that police officers have a duty to make notes. However, that is not the issue here. The issue here is what, if anything, can be inferred from the fact that the officer did not make notes. The fact that an event is not recorded in a police officer's notebook does not lead inexorably to the conclusion that the event did not take place: R. v. Antoniak, [2007] O.J. No. 4816 (S.C.J.) at paras. 21-25; R. v. Golubentsev, 2007 ONCJ 568, 55 C.R. (6th) 170 (Ont. C.J.) at para. 30. In my view, the inference to be drawn from the failure to make notes will depend on the circumstances of each case and will depend on a number of factors, such as:

• Whether the significance of the event that was not noted would have been apparent at the time the notes were made.
• Whether notes were made of other similar events.
• The police officer's level of experience.
• The explanation, if any, for why notes were not made.
• Whether notes of the event were made by other officers involved in the same investigation.

[35] In this case, the significance of compliance with s. 10(a) of the Charter should have been apparent to Cst. Carroll, an officer with 10 years of experience. His explanation for not making notes of this was that it was a "fluid situation and I didn't have the ability to record it at the time". However, he made notes of his conversation with the passenger. As well, while Cst. Carroll purports to have a clear recollection of advising Mr. Singh of the reasons for his detention, he was completely unable to recall if and when he asked Mr. Singh for a driver's licence or any form of identification.

[36] Another factor relevant to Cst. Carroll's credibility is his testimony respecting the sallyport video. Videos were made of the police division sallyport area at the time Cst. Peel arrived with Mr. Singh. In these videos, taken from different angles, Mr. Singh is clearly seen exiting the police cruiser while cuffed to the rear and then walking out of the area. These videos were played during Cst. Carroll's cross-examination and he was asked whether he agreed that Mr. Singh had no difficulty getting out of the police car or walking.

[37] In my view, the videos have little probative value. They were made some time after the arrest and Mr. Singh is seen walking for only a short time. However, Cst. Carroll's testimony respecting the videos is troubling. While it is clear that Mr. Singh has no difficulty getting out of the car in the video, Cst. Carroll steadfastly refused to admit this. He claimed that the videos did not provide a clear view of Mr. Singh when clearly they did. He repeatedly evaded answering the questions on the basis that they were "not fair". At one point in his testimony on this issue, he scornfully laughed at defence counsel. Unfortunately, Cst. Carroll's approach to testifying on this issue leads me to conclude that he is not an objective witness.[1]

[38] For the foregoing reasons, I do not accept Cst. Carroll's evidence that he advised Mr. Singh of the reasons for his detention. I find that the reason this is not in Cst. Carroll's notes is that it never happened. While I have concerns about Mr. Singh's credibility, on this point I am persuaded on a balance of probabilities that he was not advised of the reasons for his detention at the time he was initially detained. The exact time that Mr. Singh was detained is unclear. Cst. Carroll had recorded the initial traffic stop as being at 2:26 a.m., but testified that he could not recall whether this was the time he activated his emergency lights or the time that Mr. Singh stopped his vehicle. Either way, the detention began no more than a few minutes after 2:26 a.m. Mr. Singh was not advised of the reasons for his detention until Cst. Peel placed him under arrest at 2:34 a.m., several minutes after he had been detained. As a result, I find that Mr. Singh's s. 10(a) Charter rights were violated.

(iii) Section 10(b)

[39] There is no issue that Mr. Singh was not advised of his right to counsel until after Cst. Peel arrested him at 2:34 a.m. Cst. Carroll testified that he did not advise Mr. Singh of his right to counsel because he "didn't have time" and because "there wasn't an opportunity". However, Cst. Carroll had time to question the passenger and to brief Cst. Peel. He could have chosen to advise Mr. Singh of his right to counsel before doing either of these things but chose not to. Section 10(b) required that Mr. Singh be advised of his right to counsel "without delay", which means immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 42. Cst. Carroll's decision to give priority to other investigative steps resulted in a violation of Mr. Singh's s. 10(b) Charter rights.

(iv) Section 24(2)

(a) The Threshold Issue

[40] Mr. Singh's Notice of Application indicates that the remedy he is seeking is the exclusion of "the Applicant's statements, breathalyzer results, the Certificate of the Qualified Breath Technician and evidence obtained by the police subsequent to the Applicant's arrest and detention". I take this to include the observations made by the police officers who interacted with Mr. Singh as well as the video made of the breath tests.

[41] Section 24(2) of the Charter empowers a trial court to exclude evidence as a remedy for a Charter breach provided that the evidence was "obtained in a manner that infringed" the Charter right. Relying on R. v. Manchulenko, 2013 ONCA 543, 301 C.C.C. (3d) 182 (Ont. C.A.), the Crown submits that because Mr. Singh was advised of his right to counsel after being arrested by Cst. Peel and later at the police station by Cst. Leonardo, there has in effect been a "fresh start" that isolated the gathering of the evidence from any earlier Charter breaches. The "fresh start" concept was explained by Watt J.A. in Manchulenko at para. 68:

In some circumstances, conduct by investigators prior to a second statement may sever the link between the original taint and the subsequent statement. In other words, investigators may attempt a "fresh start" in order to insulate the second statement from the taint that rendered the earlier statement inadmissible: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235 at paras. 2-3. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from the earlier Charter breach: R. v. Simon, 2008 ONCA 578, [2008] O.J. No. 3072 at para. 69; Wittwer, at para. 3. Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of the evidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was "obtained in a manner that infringed or denied" any enumerated Charter right of the person charged: Simon, at para. 69.

[42] Any attempt by the police to make a "fresh start" is but one factor to be considered in determining whether evidence was "obtained in a manner that infringed or denied" a Charter right. The overriding approach to determining that issue was described by Doherty J.A. in R. v. Plaha, 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45:

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart, 107 C.C.C. (3d) 481 at 492-97 (S.C.C.).

See also R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235 at para. 21 and R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689 at para. 83.

[43] A "fresh start" is not established every time the police comply with the Charter after having failed to do so earlier. Rather, the subsequent police compliance must "clearly sever" the link between the earlier breach and the collection of the evidence. That link, of course, may be temporal, causal, contextual or a combination of all three. What constitutes "clear severance" will depend on the circumstances of each case. In many of the "fresh start" cases, the police, having realized that there has been a problem in the investigation, expressly take steps to remedy it. This is what occurred in R. v. Wittwer, supra (although the attempt was ultimately unsuccessful), as well as in R. v. Karafa, [2014] O.J. No. 2545 (S.C.J.), another case on which the Crown relies. This is why the Court in Manchulenko spoke of the police taking steps "in order to insulate" the subsequent collection of evidence.

[44] In this case, while Cst. Peel and Cst. Leonardo are to be commended for complying with the Charter, there is no suggestion that they did so based on a recognition that Cst. Carroll had failed to do so earlier. Furthermore, the subsequent compliance with ss. 10(a) and 10(b) were completely unrelated to the s. 9 violation.

[45] In this case, the Charter breaches and the obtaining of the evidence were part of the same chain of events and temporally connected. On the facts of this case, I do not find that there was a "fresh start" that had the effect severing the link. As a result, the evidence at issue was "obtained in a manner that infringed or denied" Mr. Singh's Charter rights.

(b) The Seriousness of the Violation

[46] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the first of which is the seriousness of the violation. In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[47] Crown counsel submits that any breaches that occurred in this case were minor and technical in nature. Respectfully, I do not agree. I will explain why, beginning with the s. 9 breach.

[48] Police officers are given a significant amount of power, both by statute and the operation of the common law, to interfere with an individual's liberty. It is of course necessary for the police to have these powers in order to carry out their duties. However, with these powers comes the responsibility of all police officers to be constantly aware of their limits. Unfortunately, Cst. Carroll did not have this awareness. As was made clear in R. v. Aucoin, supra, Mr. Singh's detention in a police cruiser would have been justified only if it was reasonably necessary, yet Cst. Carroll did not turn his mind to whether that was the case. Aucoin was decided well over a year before Mr. Singh's arrest. This is not a situation where the law was evolving at the time. I therefore conclude that while the breach in this case did not fall at the "blatant and flagrant" end of the spectrum, nor did it fall at the "minor and technical end". Rather, it fell somewhere in between.

[49] With respect to the s. 10(a) breach, there was simply no excuse for Cst. Carroll's failure to advise Mr. Singh of the reasons for his detention. Of all the obligations the Charter places on police officers conducting criminal investigations, s. 10(a) is the least onerous. More significantly, I have found that Cst. Carroll's claim that he explained all of the reasons for Mr. Singh's detention to him but forgot to write it down to be untruthful, which also renders the breach more serious: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 26.

[50] With respect to s. 10(b), as I have noted elsewhere, there appears to be a systemic problem with respect to the understanding members of the Peel Regional Police seem to have about the obligation to comply with s. 10(b) "without delay": R. v. Ahmad, [2015] O.J. No. 5727 (C.J.) at para. 31.

(c) The Impact of the Breach

[51] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. With respect to the s. 9 breach, the time between when Mr. Singh was first detained to when he was legitimately arrested by Cst. Peel was relatively short. However, as the Supreme Court of Canada recognized in R. v. McKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 (at para. 133), "an arbitrary detention of any length . . . has a substantial impact on a person's Charter-protected interests". See also R. v. Harrison, supra at para. 31.

[52] With respect to the breaches of ss. 10(a) and 10(b), Mr. Singh testified that had he been advised of his right to counsel before being placed in the police car, he would have exercised it because "while I was in the car, I was scared, I was nervous. I didn't know what was happening." He explained that he did not call a lawyer once he got to the police station because by then he understood why he had been arrested. I accept that Mr. Singh was frightened when he was in the police car. Interactions with the police will often cause stress and anxiety, especially for those whose liberty has been restricted. That stress and anxiety will be significantly exacerbated where the reason for the deprivation is unknown. One of the purposes of s. 10(a) is to ensure that individuals understand why their liberty is being restricted. In the circumstances of this case, I accept that the s. 10(a) breach had an impact on Mr. Singh's Charter-protected interests. Like the s. 9 breach, the impact was of a limited duration.

[53] The s. 10(b) breach, however, had little or no impact. On Mr. Singh's evidence, he only wanted to speak to counsel in order to understand what was happening to him. Had s. 10(a) been complied with, he would not have had the need to do so. Once he did understand what was happening, he chose not to speak to counsel.

[54] Another factor to be considered with respect to the impact of the breaches is discoverability. I have concluded that Cst. Peel had grounds to arrest Mr. Singh, based on the manner of driving and the odour of alcohol. Cst. Carroll could have arrested him on the same grounds earlier, in which he case he would have been entitled to detain him in the police car. As well, the evidence sought to be excluded would have been obtained even if ss. 10(a) and 10(b) had been complied with. All of this weighs in favour of admissibility, although it is not determinative and does not necessarily lead to admission: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 at para. 69.

[55] In all the circumstances, I find that the breaches in this case had a low to moderate impact on Mr. Singh's Charter-protected interests.

(d) Society's Interest in a Trial on the Merits

[56] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. This branch clearly favours admission. The breath sample results and the observations made (many of which are on video) are reliable and conclusive evidence of the offences and indispensable to the Crown's case.

(e) Balancing

[57] Having carefully balanced the relevant factors, I am not persuaded that the evidence should be excluded. While the conduct of the police resulted in serious Charter breaches, those breaches had a limited impact on Mr. Singh's Charter-protected interests and there is a strong societal interest in a trial on the merits. While there was a temporal link between the evidence and the breaches, all of the evidence would ultimately have been obtained in any event. While the court does not condone the actions of the police in this case, the preservation of the reputation of the administration of justice does not, in my view, require exclusion. The application to exclude the evidence is accordingly dismissed.

B. Count 1: Impaired Driving

[58] The evidence of the manner in which Mr. Singh drove, the indicia of impairment observed by the officers and those apparent on the breath room video satisfy me beyond a reasonable doubt that Mr. Singh's ability to operate a motor vehicle was impaired. For the reasons expressed earlier, in coming to this conclusion I have not considered Cst. Carroll's and Cst. Peel's testimony about having observed Mr. Singh be unsteady on his feet.

C. Count 2: Excess Alcohol

[59] The Certificate of a Qualified Technician having been properly admitted, this charge has been proven.

III. DISPOSITION

[60] For the foregoing reasons, Mr. Singh is found guilty on Counts 1 and 2.

Justice P.A. Schreck

Released: November 13, 2015

[1] Cst. Peel was also shown the videos and similarly refused to admit that Mr. Singh did not stagger. In fact, Cst. Peel claimed to see Mr. Singh stagger in the video. I have watched the videos carefully and it is evident that Mr. Singh did not stagger.