Court File and Parties

Date: February 8, 2017

Court File No.: Brampton 15-7325

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Roydel Cole

Before: Justice P.A. Schreck

Heard on: April 20, November 4, December 15, 2016

Counsel

M. Thomaidis ....................................................................................... counsel for the Crown

A. Little .............................................................................................. counsel for Roydel Cole

Reasons for Judgment

SCHRECK J.:

[1] The Initial Stop and Impaired Driving Investigation

A police officer stopped Roydel Cole's car. Although the officer intended to investigate Mr. Cole for impaired driving, he told him that he had stopped him for speeding. The officer smelled alcohol on Mr. Cole's breath, so he made a demand for a breath sample into an approved screening device ("ASD"). Although Mr. Cole had done nothing threatening, the officer subjected him to a pat-down search and secured him in the back of his police car before administering the ASD. When Mr. Cole failed the ASD, he was arrested and taken to the police station. There, the officer tried to contact Mr. Cole's counsel of choice. He was initially unsuccessful, but after about 20 minutes made further attempts and this time reached counsel. Mr. Cole later provided breath samples which revealed that the concentration of alcohol in his blood exceeded the legal limit and he was charged accordingly.

[2] Charter Violations and Remedy

This sequence of events has given rise to claims of violations of ss. 8, 9, 10(a) and 10(b) of the Charter and a requested remedy of exclusion of the breath sample test results. For the reasons that follow, I have concluded that although there was no s. 10(b) violation, there were violations of ss. 8, 9 and 10(a) and that the evidence ought to be excluded pursuant to s. 24(2) of the Charter.

I. EVIDENCE

A. The Initial Stop

Cst. Jeff Caplan was on uniform patrol in the early morning hours of June 21, 2015 when he received a radio call about a car that was driving at high speeds, running red lights, cutting people off and swerving on the road. He was provided with a description of the car and a partial licence plate number. Cst. Caplan located the car, activated his emergency lights and effected a traffic stop at 5:45 a.m. Cst. Caplan testified that his purpose in stopping the vehicle was to "investigate to see if the driver was impaired".

Cst. Caplan approached the car, which was operated by Mr. Cole. He told Mr. Cole that the reason he was being stopped was because "someone had called him in for speeding and running red lights". Mr. Cole responded by saying "No, I just came from the highway".

In cross-examination, Cst. Caplan agreed that he had been trained to immediately advise individuals he detained of the reasons for the detention. He agreed that he ought to have advised Mr. Cole that he had been stopped in relation to an impaired driving investigation and that his failure to do so was contrary to his training.

B. The ASD Demand, Pat-Down Search and Detention in the Cruiser

Cst. Caplan testified that while he was speaking to Mr. Cole, he noticed an odour of an alcoholic beverage emanating from his breath and that his eyes were bloodshot and watery. He asked Mr. Cole whether he had consumed any alcohol, which he denied.

At 5:49 a.m., Cst. Caplan directed Mr. Cole to step out of his car and made a demand that he provide a breath sample into an ASD. He brought him to his police cruiser and placed him in the back seat. Cst. Caplan explained that the reason he secured Mr. Cole in the back of the cruiser was because his queries had revealed that Mr. Cole had "some criminal activity history". He was concerned that Mr. Cole might flee and for his own safety. Cst. Caplan later clarified that the "criminal history" was that Mr. Cole was facing an outstanding charge of refusing to comply with a breath demand.

Cst. Caplan testified that at the time of Mr. Cole's detention, he had administered an ASD 20 to 30 times in his career and that he had secured the individuals involved in the back of his cruiser about 75% of the time. He explained that his decision about where to administer the ASD "depends on feelings and how things are going, how cooperative they are." Cst. Caplan testified that he had since changed his practice and now administered ASDs at the roadside in the majority of cases. The change was due to having worked with more experienced officers and observing how they did things.

Cst. Caplan did not recall whether he had subjected Mr. Cole to a pat-down search prior to placing him in the cruiser but agreed that he had probably done so. He testified that he had been trained that if he detained an individual, he was always entitled to search the person for weapons but not for evidence. He agreed that he did not have reasonable grounds to believe that Mr. Cole posed a threat to his safety. His safety concerns were of a general nature and were not based on anything Mr. Cole had said or done.

After several attempts, Mr. Cole provided a suitable breath sample at 5:53 a.m. which registered a fail. He was accordingly placed under arrest.

C. Facilitation of Contact With Counsel

At 5:56 a.m., Cst. Caplan advised Mr. Cole of his right to counsel. Mr. Cole indicated that he wished to speak to counsel Adam Little. At 6:06 a.m., Cst. Caplan and Mr. Cole left the scene and went to 11 Division, arriving there at 6:11 a.m.

At the police station, Cst. Caplan searched for a telephone number for Mr. Little on the internet. He found a website with a phone number as well as an extension number of 225. At 6:31 a.m., he called the number and reached a recorded message. Cst. Caplan selected extension 225 before listening to the whole recording and left a message on the voice mail for that extension, which the message identified as belonging to Mr. Little's assistant. Cst. Caplan then offered to contact duty counsel, but Mr. Cole was insistent that he wished to speak to Mr. Little.

At 6:56 a.m., Cst. Caplan called Mr. Little's number again. This time, he did not select extension 225 but instead listened to the entire recording, which identified an extension number for Mr. Little. He selected Mr. Little's extension, which led to another recording that included Mr. Little's mobile phone number. Cst. Caplan called the mobile number and reached Mr. Little, whom he put into contact with Mr. Cole. Cst. Caplan agreed that he did not make any efforts to reach Mr. Little between 6:31 and 6:56 a.m.

Mr. Cole spoke to Mr. Little until 7:17 a.m. At 7:20 a.m., he was turned over to a qualified breath technician. He provided two breath samples into an approved instrument at 7:31 a.m. and 7:54 a.m., resulting in readings of 120 and 110 mg of alcohol per 100 ml of blood.

II. ANALYSIS

A. Section 10(a) of the Charter

(i) General Principles

Cst. Caplan initially stopped Mr. Cole's vehicle at 5:45 a.m. His purpose in doing so was to "investigate to see if the driver was impaired". However, that is not what he told Mr. Cole. Rather, he told him that he was being stopped because "someone had called him in for speeding and running red lights". Cst. Caplan admitted that he ought to have informed Mr. Cole that he was investigating him for impaired driving and that his failure to do so was contrary to his training.

Section 10(a) of the Charter requires the police to "promptly" advise a person who is detained of the reasons for the detention. The purpose of the section was explained in R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 (Ont. C.A.), at para. 20:

It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it . . . .

For the purposes of s. 10(a), "promptly" has been interpreted to mean "immediately": Nguyen, at para. 20. In the context of a roadside detention, even a delay of a few minutes has been found to violate s. 10(a): R. v. Somwaru, [2016] O.J. No. 1015 (S.C.J.), at paras. 13-15; R. v. Nguyen, [2012] O.J. No. 4784 (C.J.), at paras. 29-30.

It is well established, however, that compliance with s. 10(a) does not require that the police use any particular words, as was made clear in R. v. Evans, [1991] 1 S.C.R. 869, at para. 35:

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

(ii) Would Mr. Cole Have Been Aware of the Reasons for His Detention?

In this case, Mr. Cole would have been aware that he was being investigated for a drinking and driving offence by 5:49 a.m., when the ASD demand was made, or just prior to that when he was asked whether he had had anything to drink. Crown counsel submits, however, that the circumstances were such that even prior to that, Mr. Cole would have understood that he was being detained in relation to a drinking and driving investigation because he had been drinking alcohol and driving. In support of this submission, the Crown relies on the summary conviction appeal court judgment of Dambrot J. in R. v. Kumarasamy (2011), 2011 ONSC 1385, 15 M.V.R. (6th) 44 (Ont. S.C.J.), at para. 52:

The respondent was obviously aware that it was late at night, that he had consumed alcohol, that there was an odour of alcohol in his car, and that he was driving erratically - in the short time before he was stopped alone he almost hit the curb several times, and at one point almost hit a light post. He could not help but know that P.C. MacKay stopped him because of a concern about his unsafe driving, and that the officer would suspect that his erratic driving might have been the result of the excessive consumption of alcohol. This case falls squarely within what was said in Nguyen: even if the officer had said nothing to the respondent, the circumstances of this case are such that the respondent knew why he was stopped.

The Crown submits that in this case, Mr. Cole would have known that he was being investigated for impaired driving for the same reasons.

As Crown counsel points out, Kumarasamy is a summary conviction appeal court judgment and therefore prima facie binding at a summary conviction trial. Notwithstanding this, my colleague, Stribopoulos J., declined to follow it in R. v. Evans (2015), 2015 ONCJ 305, 21 C.R. (7th) 133 (Ont. C.J.). In that case, the accused had been stopped at 11:26 p.m. but not advised of the reason for his detention until he was arrested for impaired driving at 11:29 p.m. As in this case, the Crown relied on Kumarasamy, which Stribopoulos J. declined to follow for the following reasons (at paras. 62-64):

In finding that the accused's sections 8, 10(a) and 10(b) rights were violated in Borden, [1994] 3 S.C.R. 145, the Supreme Court specifically rejected the Crown's argument that because the accused had perpetrated the second sexual assault, he would have known his blood sample could have been used to link him to that offence and therefore his consent to the giving of his blood would have been informed. In rejecting this argument, Iacobucci J., for the majority, noted [at para. 37]:

As my colleague Sopinka J. pointed out at the hearing of this appeal, the logical extension of this argument would be that the protections afforded by the Charter no longer apply whenever the person arrested is guilty of the offence for which he or she has been detained. Also inherent in this line of argument is the unfairness of relying on the results of evidence whose admissibility is in dispute to support the contention that the respondent's rights were not violated.

In my view, this passage makes clear that the Supreme Court of Canada has rejected the notion that because an individual has engaged in a particular form of wrongdoing (i.e. speeding, bad driving, etc.) they would necessarily know why they were being detained and therefore the police would be relieved of their informational duties under section 10(a).

I am of course required to follow decisions of superior court judges sitting as summary conviction appeal courts in this province. However, with the greatest of respect to Dambrot J., I believe that he has misinterpreted the effect of the Court of Appeal's decision in Nguyen and the Supreme Court of Canada's decisions in Evans, Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 and Orbanski & Elias, 2005 SCC 37, [2005] 2 S.C.R. 3. In addition, he appears not to have averted to the implications of the quoted excerpt from the Supreme Court's decision in Borden. I have therefore concluded that the decision in Kumarasamy is per incuriam. I am accordingly not bound to follow it. Instead, I have followed the section 10(a) jurisprudence as set down by the Supreme Court of Canada and the Court of Appeal for Ontario; which has led me to conclude that Mr. Evans' section 10(a) Charter right was violated.

The Crown submits that Evans was wrongly decided and points out that in another summary conviction appeal court decision, R. v. Borer (2015), 123 M.V.R. (2d) 108 (Ont. S.C.J.), the Court held (at para. 19) that Evans was "not persuasive". The Crown submits that it was not open to Stribopoulos J. to conclude that the decision in Kumarasamy was per incuriam because a finding that a decision was made per incuriam (literally meaning "through lack of care") can only be made if two conditions are met, as set out in David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 26 O.R. (3d) 161 (C.A.), at para. 11 and R. v. Dunn (2013), 117 O.R. (3d) 171 (C.A.), at para. 35 (aff'd 2014 SCC 69, [2014] 3 S.C.R. 490). The two conditions are (1) that the decision in question did not refer to binding judicial authority and (2) that the case would have been decided differently if the binding authority had been considered. Crown counsel points out that Borden was referred to in Kumarasamy (at paras. 76-77). Counsel for Mr. Cole counters that Borden was cited on a different point in relation to s. 10(b) of the Charter, not s. 10(a).

Another summary conviction appeal court judgment respecting s. 10(a), R. v. Mayrhofer-Lima, [2017] O.J. No. 151 (S.C.J.), was released after the argument of this application. In that case, the accused, who had been involved in a motor vehicle collision, was advised by the police that they were investigating a "car crash" but not that he was the subject of a criminal investigation. The summary conviction appeal court justice, Wright J., disagreed with the trial judge that the accused would have appreciated from the circumstances that he was being investigated for impaired driving (at paras. 29-30):

In this case, the trial judge found that the appellant understood why he was being investigated by virtue of the circumstances, his utterance that he "crashed the car", and the content of the caution given by the officer. He found that, under these circumstances, the appellant would have appreciated that this was not an ordinary traffic investigation.

With the greatest of respect and deference to the learned trial judge, I cannot agree. The caution given by the officer under the circumstances fell short of what was required of him under section 10(a) of the Charter. The appellant was entitled to know that the officer was engaging in a criminal investigation as opposed to a traffic investigation. Only once possessed of that knowledge could he appreciate the full extent of his jeopardy and make meaningful choices in regard to rights to counsel and silence. There is nothing in the evidence to support a finding that the appellant appreciated that this was anything other than a traffic accident investigation.

Wright J. refers to Stribopolous J.'s decision in Evans with apparent approval (at para. 28), but makes no reference to Kumarasamy or Borden. However, the reasoning employed in Mayrhofer-Lima is, in my view, clearly inconsistent with Kumarasamy. As in that case, the accused would have been "obviously aware that it was late at night, that he had consumed alcohol . . . . and that he was driving erratically".

It is well established that where two summary conviction appeal court judgments conflict, a summary conviction trial court can follow whichever decision it finds to be more persuasive: R. v. Hummel, (1987), 60 O.R. (2d) 545 (H.C.), at p. 549; R. v. Millar (2012), 2012 ONSC 1809, 285 C.C.C. (3d) 208 (Ont. S.C.J.), at para. 28. Although Kumarasamy was decided by a very experienced jurist, for the reasons given in Evans I do not find it persuasive and prefer the reasoning in Mayrhofer-Lima.

Even if Mayrhofer-Lima is not inconsistent with Kumarasamy, in my view I am still not bound by the latter decision. Although I heard extensive submissions on the applicability of the per incuriam exception, in my view the issue here is far simpler than counsel have characterized it. I do not believe that the test set out in David Polowin Real Estate Ltd. and Dunn has any application here. Those cases related to situations where the Court of Appeal was considering whether to follow its own earlier judgments, what has been referred to as a "horizontal stare decisis context": R. v. Squires, [2016] N.J. No. 351 (C.A.) at para. 77. Given the Court of Appeal's role of providing guidance to trial courts and the importance of consistency in the law, the Court should only depart from its own earlier decisions when necessary and should explain clearly why it is doing so. The same considerations do not apply with respect to the decision of a trial court.

In my view, I am bound to follow a summary conviction appeal court judgment, but only if there is no conflicting authority from a court of an equal or higher level: R. v. Roberts (1989), 16 M.V.R. (2d) 79 (Ont. P.C.), at para. 14; R. v. Richards (1993), 12 O.R. (3d) 260 (P.C.), at para. 21. The reasoning in Kumarasamy is, in my view, inconsistent with paragraph 37 of Borden. While Kumarasamy may be binding, Borden is more binding.

My conclusion is not affected by the decision in Borer. The Court in Borer found Evans to be "not persuasive" because Evans "appears to suggest that Nguyen (on which Dambrot, J. relied) is not the law in Ontario" (at para. 19). With respect, nowhere in Evans does Stribopoulos J. suggest that Nguyen is not the law in Ontario. Furthermore, it appears from a review of the trial judgment in Borer that the issue in question, whether the court can rely on the fact that the accused had been drinking to conclude that she was aware of the reason for her detention, simply did not arise. In any event, Borer makes no reference to Borden which, as mentioned, is more binding on me than either Kumarasamy or Borer.

(iii) The Sufficiency of What Mr. Cole Was Told

The Crown also argues that what Mr. Cole was told, that he was being stopped for speeding and running red lights, was sufficient in the circumstances as it advised Mr. Cole that he was being investigated for unsafe driving, which would include any possible reasons for the unsafe driving, such as alcohol consumption. The Crown relies once again on Kumarasamy, where Dambrot J. concluded that in the circumstances of that case, it would have been sufficient for the officer to say that he had detained the accused to investigate why he had not been driving safely (at para. 58). However, as is made clear in paragraph 60 of Kumarasamy, the conclusion that this would have been sufficient was based on the accused's awareness that he had been consuming alcohol. For the reasons outlined earlier, I believe that Borden prohibits me from engaging in this line of reasoning.

Furthermore, one of the purposes of s. 10(a) is to ensure that a detainee is aware of the extent of his or jeopardy. The potential jeopardy arising from an investigation into a Highway Traffic Act offence is substantially different than that which arises from an investigation into a Criminal Code offence: Mayrhofer-Lima, at paras. 29-30; R. v. Peterkin, 2013 ONSC 165, [2013] O.J. No. 195 (S.C.J.), at paras. 101-102, aff'd 2015 ONCA 8, 319 C.C.C. (3d) 191 (Ont. C.A.).

For these reasons, I conclude that there was a violation of s. 10(a) of the Charter.

B. Section 8 of the Charter

Cst. Caplan testified that he could not recall whether he had subjected Mr. Cole to a pat-down search prior to placing him in the back of the police cruiser. Although he admitted that he had conducted pat-down searches in every other case in which he had placed an individual in his cruiser, he was for some reason reluctant to agree that he had done so in this case, although he acknowledged that it was "likely" that he did. I find that a pat-down search was conducted.

Cst. Caplan testified that any pat-down search that was conducted was to ensure his safety. He agreed that his safety concerns were of a general nature and that Mr. Cole had not said or done anything to cause him to have reasonable grounds to believe that Mr. Cole posed a threat to his safety. Cst. Caplan testified that he had been trained that he was permitted to search an individual for weapons whenever he effected an investigative detention. If that was his training, it was clearly wrong.

The Crown concedes that the search in this case did not meet constitutional standards. He was correct to do so. It is well established that unlike in the case of an arrest, an investigative detention does not justify an incidental search as a matter of course. This was made clear in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 at para. 40:

The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. I disagree with the suggestion that the power to detain for investigative searches endorses an incidental search in all circumstances: see S. Coughlan, "Search Based on Articulable Cause: Proceed with Caution or Full Stop?" (2002), 2 C.R. (6th) 49, at p. 63. The officer's decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

The necessity for the search must be established based on "reasonable and specific inferences drawn from the known facts of the situation": R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41. No such inferences existed in this case.

C. Section 9 of the Charter

Cst. Caplan secured Mr. Cole in the back of his cruiser prior to administering the ASD. Mr. Cole submits that he had no justification for doing so and that this violated his s. 9 Charter rights.

Crown counsel concedes this breach as well. Again, he was correct to do so. A detention of this nature is justified only when reasonably necessary, as was made clear in R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, a case involving a similar decision to secure an individual in the back of a police car (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, 2007 SCC 32, [2007] 2 S.C.R. 725, at para. 20.

See also R. v. Azarnush, [2016] O.J. No. 3248 (C.J.), at paras. 40-42; R. v. Ng, [2013] O.J. No. 2823 (C.J.), at paras. 6-11; R. v. Singh, [2015] O.J. No. 5922 (C.J.), at paras. 21-28; R. v. Schwab (2015), 22 C.R. (7th) 36 (Alta. P.C.), at paras. 45-49.

D. Section 10(b) of the Charter

When Cst. Caplan initially attempted to contact Mr. Cole's counsel of choice, Mr. Little, he called Mr. Little's office number and left a message on an assistant's voicemail. He did not listen to the entire recording. When he did so 23 minutes later, he discovered that dialing Mr. Little's extension resulted in another recording which had Mr. Little's mobile phone number. Although Mr. Little was then contacted and Mr. Cole had an opportunity to consult with him, it is submitted that Cst. Caplan's failure to take the steps he did earlier resulted in Mr. Cole's contact with his counsel being delayed and thereby breached s. 10(b) of the Charter.

I do not accept that there was a s. 10(b) breach in this case. Section 10(b) imposes on the police a duty to make reasonable efforts to facilitate contact with an accused's counsel of choice. Consequently, the issue is not whether the police could have done more but, rather, whether what was done was reasonable in the circumstances: R. v. Blackett (2006), 36 M.V.R. (6th) 223 (Ont. S.C.J.), at paras. 9-10; R. v. Wilson (2016), 2016 ONCJ 25, 95 M.V.R. (6th) 165 (C.J.), at para. 13.

In this case, Cst. Caplan found a website which identified a telephone number for Mr. Little and an extension number. He called that number and left a message at that extension. When Mr. Cole declined to speak to duty counsel and insisted on speaking to his counsel of choice, Cst. Caplan made further efforts to facilitate this, which proved to be successful. In my view, the police behaved reasonably. In fact, the police may well have been justified in proceeding to take the breath samples once Mr. Cole refused duty counsel: R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.), at paras. 11-12. However, they did not do so but instead made further efforts to locate counsel of choice. They can hardly be faulted for this.

E. Section 24(2) of the Charter

(i) Overview

The Crown accepts that the breath samples in this case were sufficiently connected to any Charter breaches such that the evidence could be said to have been "obtained in a manner" that infringed the Charter, thereby engaging in s. 24(2): R. v. Pino (2016), 2016 ONCA 389, 130 O.R. (3d) 561 (C.A.), at paras. 50-72.

A determination of whether to exclude evidence tainted by Charter infringements requires the balancing of two competing concerns. On the one hand, the courts cannot be seen to condone constitutional violations or minimize the importance of Charter rights. On the other hand, public confidence in the administration of justice may be undermined when relevant and reliable evidence is excluded, preventing a resolution of trial issues on their merits. This balancing requires the consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

(ii) 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.

I accept that Cst. Caplan did not set out to intentionally breach Mr. Cole's Charter rights. However, there are several aspects of this case that render the breaches serious. First, there were multiple Charter violations. Second, Cst. Caplan acknowledged that he had failed to follow his training when he did not properly inform Mr. Cole of the reasons for his detention. The best way to ensure that the constitutional rights of those with whom the police interact are protected is for police officers to be properly trained and to then follow that training.

Most concerning is Cst. Caplan's testimony that he was taught that he had the right to search everybody subjected to an investigative detention. It has been very clear since the Supreme Court of Canada's judgment in Mann over a decade ago that the police can only conduct searches in the context of investigative detentions in limited circumstances. If Cst. Caplan's training was as he claimed, then the police are being trained to violate the Charter. If Cst. Caplan is mistaken, then he clearly paid no heed to his training. In either case, the breach is serious.

(iii) Impact of the Breach

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. 10(a) breach, the delay between the time Mr. Cole was first detained and when it would have become apparent to him that the reason for the detention was a drinking and driving investigation was relatively brief. Moreover, one of the purposes of s. 10(a) is to ensure that detainees have sufficient information to decide whether to exercise their right to counsel. However, the right to counsel is suspended in the context of roadside detentions: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3. By the time Mr. Cole had to make decisions about exercising his right to counsel, he was fully informed. In these circumstances, the impact of the breach was relatively minor.

I draw a similar conclusion with respect to the s. 8 breach. This was a relatively non-intrusive and brief pat-down search over the clothing where nothing was found or seized. However, any unjustified search will have a negative impact on an individual's privacy and dignity.

The impact of the s. 9 breach was more significant. While the detention was relatively brief in duration, 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, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 31. In R. v. McGuffie (2016), 2016 ONCA 365, 336 C.C.C. (3d) 486 (Ont. C.A.), an unjustified detention in the back of a police cruiser was referred to as "imprisonment" (at paras. 38, 39, 44 and 79), although I note that the detention in that case was of longer duration and the accused was handcuffed.

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

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 are reliable and conclusive evidence of the offence and indispensable to the Crown's case.

(v) Balancing

The manner in which the three Grant factors are to be balanced was described in Harrison (at para. 36):

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

In this case, the first factor clearly favours exclusion and the third factor clearly favours admission. The second factor pushes towards exclusion, but to a lesser extent. Having carefully considered all three factors, I have concluded that the long-term repute of the administration of justice is best protected by excluding the evidence. Police officers need to be aware of their obligations and the limits of their powers, particularly in the context of roadside detentions, where the right to counsel is suspended and individuals enjoy less protection than in other contexts. In my view, the shortcomings of the police in this case were of such a nature that the need for the court to disassociate itself from the conduct of the police outweighs competing considerations.

III. DISPOSITION

As the evidence has been excluded, there is no evidence as to the concentration of alcohol in Mr. Cole's blood at the time he operated a motor vehicle. Given this conclusion, it is unnecessary for me to deal with the argument that the breath samples were not taken as soon as practicable, as required by s. 258(1)(c)(ii) of the Criminal Code. I note, however, that the focus of this argument was the time period between Cst. Caplan's first unsuccessful attempt to contact Mr. Little and when contact was eventually made and I have already concluded that the police behaved reasonably during this period.

The charge is dismissed.

I am indebted to both counsel for their thorough and helpful submissions as well as the professionalism and civility they demonstrated during these proceedings.

Justice P.A. Schreck

Released: February 8, 2017

[1] Counsel were made aware of this decision and invited to provide submissions on it, which they did.