Court File and Parties

Ontario Court of Justice

Date: March 2, 2018

Court File No.: Newmarket 16 09143K

Between:

Her Majesty the Queen

— and —

Nikita Bukin

Before: Justice David S. Rose

Heard on: December 11, 12, 2017; February 20, 2018

Reasons for Judgment released on: March 2, 2018

Counsel:

• I. Denisov — counsel for the Crown
• A. Little — counsel for the defendant

Reasons for Judgment

Rose J.:

[1] Introduction

Mr. Bukin is charged with Impaired and Over 80 Operation from November 26, 2016. Although some things were narrowed at trial, he advances several Charter arguments, and argues that the evidence does not make out impairment. Two Crown witnesses testified, an Expert toxicologist report was filed, and Mr. Little filed an affidavit supporting Mr. Bukin's Charter Argument which the Crown elected not to cross-examine on.

Facts

[2] Initial Traffic Stop and Observations

Cst. Crook of York Regional Police was on general patrol in a police car at about 9 pm on November 26, 2016 when she saw a motor vehicle north bound on Weston Road in the curb lane. It changed to Lane 1, namely the inside of the two north-bound lanes. She saw it serving and brake for no apparent reason. She followed it for about two kilometers, which took about 3 or 4 minutes. With that she activated her emergency lights to initiate a traffic stop. The car came to a red light and rolled to a stop. That car was being driven by Mr. Bukin. Cst. Crook got out of her police car to tell the other car to pull over to the right. As she did that the other car moved to the curb lane and then made a right turn onto another road. When the car stopped at the second position its front tire came into contact with the curb. When Cst. Crook was on the roadway she stopped to look at a cigarette that Mr. Bukin had thrown out the car window. The initial driving pattern and stop were captured in PC Crook's dashcam, although apparently the sound portion of the video was not working at that point in time.

[3] Roadside Interaction and ASD Demand

At 9:07 pm PC Crook went up to the driver's side of Mr. Bukin's stopped car. The driver's window was half open, and she smelled alcohol from his mouth. She asked for his driver's licence and ownership. In her evidence she tried to be descriptive and explained what she was doing. Mr. Bukin explained that he had a couple of drinks and was going home. It took a long time for him to find his driver's licence. Crook testified that Mr. Bukin sounded like he had slurred speech and his eyes were red. She identified Mr. Bukin from his driver's licence. Although she didn't note it, she testified that she let him know why she stopped him right away. PC Crook asked Mr. Bukin to shut off his car and turn his music down. By 9:11, or about 4 minutes after the initial stop PC Crook read Mr. Bukin an Alcohol Screening Device (ASD) Demand. She based this on his admission of alcohol consumption, his speech pattern and trouble getting his licence. She believed he had alcohol in his body. Cst. Crook testified that Mr. Bukin understood what was going on and was cooperative.

[4] ASD Sample and Arrest

PC Crook showed Mr. Bukin how to provide a sample, and gave him a new mouthpiece to put on the ASD. She was confident that the ASD was working properly because she had done a self-check, which returned a zero reading, and the device had been calibrated about 2 weeks previously. After a first failed attempt, Mr. Bukin provided a second suitable sample at 9:14 pm, which was a fail. He was then arrested at 9:14 or 9:15 pm. Cst. Crook's evidence was that a failed ASD test meant that the subject had over 80 mg of alcohol in 100 ml of blood. At 9:15 she read Mr. Bukin Rights to Counsel in simple terms and a Breath Demand at 9:17. Mr. Little conceded that the wording of the demands were Charter compliant. Mr. Bukin said that he did not want a lawyer at that time. His concern was that his lawyer wasn't working at that hour.

[5] Transport to Police Station and Initial Attempts to Contact Counsel

Another officer arrived at 9:22 and stayed to have Mr. Bukin's vehicle towed. Cst. Crook then left the scene for the police station to continue the investigation. They arrived at 1 District at 9:38. Mr. Bukin then asked to speak to a specific lawyer, Todd Brown at Maverick legal services. After Mr. Bukin was booked, at 10:10, PC Crook called Mr. Brown. The message on the phone said that the office was open Monday to Friday until 6 pm. She left a message to say that Mr. Bukin had been arrested. She called Mr. Brown back at 10:18 pm because, in her evidence, sometimes lawyers pick up the phone.

[6] Cell Conversation and Request for Duty Counsel

By 10:21 no one had called back and she went to Mr. Bukin in his cell to tell him about leaving two messages. She said that in that conversation he said he wanted to speak to Duty Counsel. The cell video was played in Court, and it shows PC Crook going into Mr. Bukin's cell at 10:22 where he is passed out. She touched his leg and the audio has her saying "Wake up Nikita". She is in the cell for some 22 seconds, but the recording is not clear enough to confirm her evidence that Mr. Bukin asked for Duty Counsel.

[7] Duty Counsel Contact and Breath Technician Arrival

PC Crook called Duty Counsel at 10:22 but by 10:41 no one had called back so she called again. Duty Counsel did indeed call back at 10:47 but the line was disconnected. Duty Counsel called back, and at 10:51 Cst. Crook took Mr. Bukin to a booth for his call. That call was completed by 10:56 and by 10:57 the Breath Technician was on scene and she transferred custody to him.

[8] Counsel of Choice Calls Back and Breath Testing

At 11:22 PC Crook was notified by the Breath Technician that Mr. Brown had called back. She got a return phone number. She called him back at 11:22 and let him know that Mr. Bukin had spoken with Duty Counsel and that Mr. Bukin was now doing his last breath test. Mr. Brown said the he wanted to speak to his client, and she said that he had just completed his last test, and the she would call him back. She called Mr. Brown back at 11:33 and transferred the call to Mr. Bukin, who was put on the line at 11:36. At 11:39 Mr. Bukin said that the call hung up by accident and she called Mr. Brown back again, at 11:39. At this point she noted that Mr. Bukin's eyes were red and he was difficult to wake up. She spoke with the lawyer about the test results. By 11:42 Mr. Bukin was again put in touch with his lawyer and that call was completed at 11:54. He was released from custody at 1:12 am. She testified that she never wrote anything down in her notes about Mr. Bukin being dissatisfied with Duty Counsel.

[9] Cross-Examination on Roadside Investigation

Pc Crook was cross-examined at considerable length about her investigation at the roadside. One of the areas probed was whether she told Mr. Bukin the reasons for his detention or not. She made no notes of exactly what she told Mr. Bukin but was sure that she told him why she had pulled him over. She was also questioned about her use of the ASD that night. She was questioned about whether the ASD would be expected to give an accurate test result in the circumstances. She said that the ASD automatically tells the user when the last calibration date was. She repeated that she was satisfied with the calibration of the device.

[10] Cross-Examination on Cigarette Butt and ASD Procedure

PC Crook was also cross-examined at considerable length about the presence of a cigarette butt on the roadway. Mr. Little suggested to her that she knew better than to take an ASD sample in the circumstance given the presence of a cigarette butt and the possibility that Mr. Bukin had just finished a cigarette. She was candid that she had been trained that she should wait 15 minutes if there was recent alcohol consumption or a cigarette being inhaled. But she was also told that manual for the ASD says that the period is much shorter. Other co-workers said that she only had to wait 2 minutes. She was also cross-examined about a York Regional Police directive from 2012 which says that if there is recent consumption of alcohol or a cigarette then the officer should wait 15 minutes before getting an ASD sample. She admitted that she had been taught to wait 15 minutes in the circumstances but then added:

I've also been told that the manual for the device says that by waiting two minutes the, the smoke is – as soon as you exhale its out of your system so waiting any longer is like an unreasonable delay so that's why I didn't wait 15 minutes.

Cross-examination on this point — namely the use of training manuals in obtaining ASD samples — went for some time. Ultimately Cst. Crook put it this way:

Q. Okay, and you know since you didn't take those steps, in the circumstances of this case, you can't rely upon the result.

A. Now, yes. Now that you've explained that to me, I understand why I can't rely on the result if this is what my procedure is telling me. It's not what I believe at the time, I, I, I do disagree with it based on, on what I learned from the manual that it doesn't affect the actual reading by not waiting for, for cigarette.

She was candid that she never asked Mr. Bukin about when his last drink was because she didn't want to delay getting the ASD sample. Mr. Little put it to her that everything at the roadside told her that she should have waited 15 minutes before getting Mr. Bukin to provide an ASD sample. Her evidence was that now that it had been explained to her in Court she agreed, but at the time it made sense not to wait.

[11] Cross-Examination on Right to Counsel

PC Crook admitted in cross-examination that when she read Mr. Bukin his rights she believed he had his own lawyer. After 10:18 she did nothing proactive to put him in touch with counsel of choice. She didn't ask Mr. Bukin if he wanted to call another lawyer when she couldn't reach Mr. Brown. She testified that when she told him she couldn't reach Mr. Brown and that the outgoing voice mail message was that the office was closed she would have asked him if he wanted anyone else but she had no recollection of asking that and it was not in her notes. She admitted that she didn't ask him if he wanted to go through a lawyers' phone book or use Google. She was also cross-examined at length about what happened when, at 11:22 pm she learned that Mr. Brown had called back to the police station. She testified that her impression was that Mr. Bukin was satisfied with his call to Duty Counsel. She wasn't sure if she was permitted to stop the second breath test. She was candid that she wasn't sure what her training was with respect to putting Mr. Bukin in touch with Mr. Brown as soon as Mr. Brown called back. As she said "I need to educate myself more with it".

[12] Counsel Present During Call

PC Crook admitted that when she called back Mr. Brown after the second test Mr. Little was on the phone too.

[13] Observations of Impairment at Police Station

PC Crook was also cross-examined about her observations of Mr. Bukin's indicia of impairment. She maintained that while he was at the police station she observed him to be swaying while standing.

[14] Re-Examination on Residual Mouth Alcohol

In re-examination PC Crook was asked about residual mouth alcohol and testified that there was nothing in the circumstances of the roadside investigation of Mr. Bukin which made her believe that the accused had consumed alcohol in the last 15 minutes. She testified that, "There was no evidence of any bottles or any, anything, like even a water bottle that I noticed".

PC Mergit

[15] Breath Technician Observations and Testing

PC Mergit was the Breath Technician working at 1 District on the evening of November 26, 2016. He testified about his dealings with Mr. Bukin. PC Mergit was notified that he was required to do a Breath Test at 9:15 and he arrived at the police station at 9:37. He observed Mr. Bukin to have red and glassy eyes. There was a strong odour of alcohol coming from his face. He slurred his speech insofar as the letter "s" was slurred and he letter "K" was prolonged when he said "okay". He described Mr. Bukin's motor skills as slower and delayed when he reached for the breath tube attached to the Intoxilyzer. Mr. Bukin appeared quite fatigued or falling asleep when he was in the breath test room. At 23:01 and 23:25 Mr. Bukin provided samples of his breath into the Intoxilyzer. The results were 140 and 132 mg of alcohol in 100 ml of blood respectively.

[16] Counsel of Choice Calls During Testing

PC Mergit described in his evidence that at 23:19 Mr. Bukin's lawyer of choice called back. He told the lawyer that Mr. Bukin was in custody, and had already spoken with Duty Counsel. The lawyer said OK and asked for the Officer in Charge to call back. He admitted in cross-examination that he could have put Mr. Bukin in touch with the lawyer of choice at that time.

[17] Expert Opinion

The Crown case was rounded out by an opinion letter from Dr. Elliot, which stated that at Breath Readings of 140 and 132 mg. % a person is impaired by that alcohol.

Defence Affidavit

[18] Paralegal's Affidavit

Mr. Little filed an affidavit from Mr. Brown, a paralegal. Ms. Denisov chose not to cross-examine Mr. Brown on it. Mr. Brown's affidavit states that he is a paralegal licenced by the law society, and owner of Mavericks Legal Services. He is Mr. Little's partner in the firm. Mr. Brown had previously acted for Mr. Bukin in Highway Traffic Act matters. Mr. Brown confirms that PC Crook did in fact leave two messages on his office voice mail after 10 pm the night Mr. Bukin was arrested. He then outlined the efforts he took to reach PC Crook and then to involve Mr. Little. Notably, Mr. Brown called Mr. Little at 10:50 pm, who responded by text to Mr. Brown at 10:55 pm. When the calls were made to the police station during the time of Mr. Bukin's custody it was Mr. Brown who called and spoke with the police. That was first at 11:17 pm. At 11:22 he received a call from PC Crook. He was told that Mr. Bukin was just completing his last breath test and she would call him back so that Mr. Bukin could speak with him. She did call him back at 11:37 pm. At that time she conferenced in Mr. Little so that he could give Mr. Bukin legal advice.

Issues and Law

[19] Charter Arguments

In his factum and in oral submissions Mr. Little argues several Charter Violations:

i) Section 10(a) because Mr. Bukin was not advised of the reason for his detention;

ii) Sections 8 and 9 because Cst. Crook both failed to turn her mind to the possibility that Mr. Bukin had residual mouth alcohol prior to obtaining an ASD sample, and therefore knowingly obtained an unreliable ASD sample;

iii) Ss. 8 and 9 because Cst. Crook ignored her training about the effect of recent smoking on the test subject and therefore knowingly obtained an unreliable ASD sample;

iv) Section 10(b) because the police failed to wait for a reasonable time for counsel of choice to call back and failing to inform Mr. Bukin that he had the right to wait for counsel of choice to call back;

v) Section 10(b) in failing to follow the Ontario Court of Appeal's decision in R. v. Traicheff;

vi) Section 10(b) in failing to put the Applicant in contact with his counsel of choice when he was available and on the phone prior to the time that the Applicant provided his second breath sample.

Preliminary Findings

[20] Crown Concession

The Crown concedes the Charter violation in vi).

[21] Credibility of PC Crook

At the outset I would find that PC Crook was generally a credible witness. She was cross-examined repeatedly about her observations and which ones were not in her notebook and which ones were. At several points in her testimony she was careful to admit that she probably should have made notes of specific observations, and might have done the roadside investigation differently now that other things were explained to her during the trial by Mr. Little. I could find no attempt to exaggerate or mislead in her testimony. She was careful to say that the ASD operation manual which Mr. Little gave to her in Court was not the same one she had seen about a 2 minute delay regarding cigarettes because it had a different format. She also went so far as to say that the case in which the other manual was shown in Court had a specific incident number which might be of assistance in tracking down that other manual. I find that generally her evidence was genuine. The legal implications of what she did may well not have been Charter compliant, but she was a credible witness.

First Allegation of a Charter Infringement – 10(a)

[22] Finding on Section 10(a)

Mr. Little alleges that Mr. Bukin's Charter Rights under s. 10(a) were infringed when PC Crook failed to advise him of the reason for the traffic stop. Her evidence was that she would have told Mr. Bukin the reason for the stop. In any event, Mr. Bukin's vehicle was stopped at 9:07 pm and by 9:11 pm PC Crook was reading a Breath Demand. The claim of a Charter Infringement cannot therefore reach past 9:11. I find that Cst. Crook did in fact tell Mr. Bukin why she was detaining him in those 4 minutes. She was attacked in cross-examination on this point for some time and was steadfast. She told Mr. Bukin about the reason for his detention. There is no contradictory evidence on the point. It is preferable for officers to make note of that issue in their notebook, but the fact that Cst. Crook did not does not lead me to doubt her evidence on the point. This factual finding results in a dismissal of the 10(a) limb of the Charter Application.

[23] Legal Context of Roadside Stops

Mr. Little spent considerable time in submissions arguing that as a matter of law I should not follow two summary conviction appeal decisions on the issue of Charter rights under s. 10(a), namely: R. v. Kumarasamy, 2011 ONSC 1385; and R. v. Borer, 2015 ONSC 4592. While not necessary to decide the issue I would not accede to this argument. Aside from the stare decisis issue which binds me as an inferior court I find Dambrot J.'s reasons in Kumarasamy compelling. It is axiomatic that context is quite important when adding content to Charter values. In Kumarasamy Dambrot J. recognized that roadside stops for sobriety do not immediately afford the motorist the right to consult with counsel. He also recognized that the context of the stop, namely a police officer stopping a motorist and inquiring about alcohol consumption itself explains the reason for the detention. Multiple generations of Canadian motorists have operated their vehicles with sobriety checks, including RIDE programs. That is the context which may answer the detained motorists' right under s. 10(a) to be informed of the reason for the detention. It is a very different context than the ones that presented themselves in R. v. Nguyen, 2008 ONCA 49, or R. v. Borden (1994), 33 C.R. (4th) 147 (S.C.C.).

[24] Alternate Finding on Section 10(a)

To say that a motorist who is stopped and asked by an officer about alcohol consumption does not from that interaction know why he or she was detained is, in my alternate finding, a very difficult proposition. Therefore, leaving aside my finding that Cst. Crook told Mr. Bukin about the reason for his detention, once she started asking him about whether he had been drinking Mr. Bukin would have known from the interaction the reason for the detention for s. 10(a) purposes.

Second and Third Allegations of a Charter Infringement – ss. 8 & 9

[25] Residual Mouth Alcohol and Cigarette Smoke

Mr. Bukin's second argument is that when Cst. Crook made her ASD demand she did not properly consider the possibility that Mr. Bukin had recently consumed alcohol and/or recently finished inhaling a cigarette. I accept Cst. Crook's evidence that there was nothing in the circumstances that made her believe that Mr. Bukin had consumed alcohol in the last 15 minutes. I also accept her evidence that she did not believe that she had to wait more than 2 minutes after the test subject had finished a cigarette before obtaining a roadside breath sample. I accept her evidence that there had been conversations within YRP members on this very issue and the result of that was that Cst. Crook did not see the need to wait for more than 2 minutes. In the end, her evidence is uncontradicted that she believed at the time of the ASD test that it would yield a reliable result.

[26] Reasonableness of Officer's Belief

Cst. Crook was cross-examined at considerable length about training manuals and her training about waiting for residual mouth alcohol or cigarette smoke to dissipate before obtaining an ASD sample. I find that she turned her mind to the cigarette smoke issue and followed a reasonable belief that there was nothing in the circumstances which would yield an unreliable ASD result. She was candid that Mr. Little's cross-examination gave her new information to consider on this point. While the process of cross-examination provided her with more information from Mr. Little which has changed her mind, she believed that the ASD would generate a reliable result even if she had seen a cigarette butt thrown from the car by Mr. Bukin minutes before he provided an ASD sample. I find that her belief at the time she made the ASD demand was a reasonable one, see R. v. Ho, 2015 ONCA 559.

[27] Dismissal of Sections 8 & 9 Arguments

There is no evidence in the trial that Mr. Bukin consumed alcohol recently to being stopped. When there is no evidence of residual mouth alcohol which should give the officer reason to consider that on the reliability of the ASD test there is no Charter violation flowing from the officer not turning her mind to residual mouth alcohol, see R. v. Au-Yeung, 2010 ONSC 2292, at par. 67. The ss. 8 & 9 argument is dismissed.

Fourth, Fifth and Sixth Arguments – S. 10(b)

[28] Paralegal Status and Legal Authority

When Mr. Bukin was arrested he asked to speak to Todd Brown at Maverick Legal Services. Affidavit evidence filed by Mr. Little proves that Mr. Brown isn't a lawyer, but a paralegal. Mr. Little concedes that Mr. Brown could not in law provide legal advice to Mr. Bukin. There is no evidence that either Mr. Bukin or any of the police officers involved in the case knew this.

[29] Definition of "Counsel" in Criminal Code

Whether a detainee has the right to speak to a paralegal when being investigated for a drinking and driving case is a question which engages statutory authority. The Charter speaks of the right to speak to "counsel" in s. 10(b). S. 2 of the Criminal Code says that

"counsel" means a barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings

[30] Paralegal Scope of Practice

The Law Society of Upper Canada governs paralegals, and Rule 3.02 of the Rules for Paralegals says that,

(3) A paralegal shall not undertake or provide advice with respect to a matter that is outside his or her permissible scope of practice.

[31] Offence Beyond Paralegal Jurisdiction

The offence before the Court carries a maximum sentence of imprisonment of 18 months which is beyond the scope of offence which a paralegal may appear on in this court, see Criminal Code s. 802.1.

[32] Precedent on Paralegal Counsel

It is for these reasons that my sister Pirraglia J. found that, in law, the right to counsel in the context of a drinking and driving case does not extend to paralegals see R. v. Ma, [2017] O.J. No. 897. I agree with her reasoning, and that of Schreck J. in R. v. Mazzuchin, 2016 ONCJ 38, and Bovard J. in R. v. Gownden, 2008 ONCJ 719.

[33] Timing of Actual Counsel Availability

It is against that background that I make the following findings. Mr. Brown, who could not provide legal advice in the circumstances, was the only 'legal advisor' who was in contact with the police in response to Mr. Bukin's assertion that he wanted to speak with counsel of choice until 11:37 pm. It was then that Mr. Brown "…conferenced the call [with PC Crook] with Mr. Little on his cell phone so that he could give Mr. Bukin legal advice". That call accidentally hung up, and another one was placed immediately after. It was in that follow-up call that Mr. Little actually spoke with PC Crook and then Mr. Bukin. Mr. Bukin had provided the second sample of his breath at 11:25 pm, which was 12 minutes previously. Mr. Little therefore only appeared on the phone in a position to provide legal advice after the second breath sample was taken.

[34] Finding on Counsel of Choice Unavailability

Cst. Crook took steps to tell Mr. Bukin that she could not reach Mr. Brown. She was challenged about what she said in that conversation. The station video does indeed show her going into Mr. Bukin's cell at 10:22 and telling him to wake up. It does not confirm that she told him that she could not reach Mr. Brown and that Mr. Bukin wanted to speak with Duty Counsel, but I accept her evidence on that point. The video provides some confirmation of that conversation, and there is no contradictory evidence on the point. I am satisfied that Cst. Crook asked Mr. Bukin to wake up at 10:22, that she told him that she could not reach Mr. Brown and that he asked for Duty Counsel.

[35] First Section 10(b) Violation – Failure to Offer Alternative Counsel

I would reject Mr. Bukin's Charter Argument that Cst. Crook did not wait a sufficient time before reporting to him that Mr. Brown had not called back. By 10:22 she had called Mr. Brown twice and heard the outgoing message that said that he stopped working at 6 pm. The Affidavit from Mr. Brown confirmed that he did not actually call back until sometime between 10:55 and 11:04 pm, over a half hour later. I would therefore find that Mr. Bukin's Charter Rights under s. 10(b) were infringed to the extent that Cst. Crook did not ask him at 10:22 pm. if he wanted to speak to another lawyer other than Mr. Brown or make use of other means to identify another lawyer to call, see R. v. Traicheff, 2010 ONCA 851.

[36] Second Section 10(b) Violation – Failure to Put Detainee in Touch with Counsel

The Crown concedes that there was a Charter violation under s. 10(b) when PC Mergit did not interrupt his breath testing between the first and second sample to put Mr. Bukin in touch with Mr. Brown. Given the fact that all parties, namely Mr. Bukin, PC Crook, and PC Mergit were proceeding on the understanding – incorrect though it may by – that Mr. Brown could provide legal advice, there is a breach of Mr. Bukin's rights under s. 10(b) for failure to put Mr. Bukin in touch with Mr. Brown at 11:19 pm. As Mr. Brown's affidavit says, of that conversation, "When I asked to speak to Mr. Bukin, the breath technician told me that he would have PC Crook call me on my cell phone". That is the gist of the second aspect of the s. 10(b) Charter violation.

[37] Summary of Charter Violations

In sum then, I have found two Charter violations in this case. The first is PC Crook's failure at 10:22 to provide Mr. Bukin with other options for legal advice other than Duty Counsel. The second is the failure of PC Mergit to put Mr. Bukin in touch with Mr. Brown at 11:19.

Admissibility – section 24(2)

[38] First Limb of Grant Test – Seriousness of Breach

Taking the first limb of the admissibility test from R. v. Grant, 2009 SCC 32, namely the seriousness of the Breach. In this case Cst. Crook made no attempt to mislead the Court, and admitted to those areas where she was confronted with the need for further training. She made several attempts to contact Mr. Brown, not knowing that he could not provide legal advice. When Mr. Brown did not answer the phone she is seen on video telling Mr. Bukin of that development. She contacted Duty Counsel for Mr. Bukin and later succeeded in reaching Mr. Brown – albeit after the breath samples had been obtained. That said, she should have known that once counsel of choice was unavailable she should have taken an extra step before offering Duty Counsel. She should have given Mr. Bukin the option of another lawyer, or the option of looking up another lawyer.

[39] Breath Technician's Failure

PC Mergit should have stopped the breath testing procedure as soon as he was aware that Mr. Brown was on the phone to speak with Mr. Bukin.

[40] Conclusion on Seriousness

Those two breaches lead me to conclude that the seriousness of the Charter violations were not technical. I would not find them to be at the most serious end of the scale, but somewhere in between. The first factor from Grant modestly favour exclusion of the Breath results.

[41] Second Limb of Grant Test – Impact on Charter Protected Interests

Turning to the second limb of Grant (supra) – namely the impact of the Charter violations on Mr. Bukin's Charter protected interests, I would find the following. Mr. Bukin asked to speak with someone who was incapable of providing legal advice because he was a paralegal. The entire narrative of providing rights to counsel in this case was played out against that backdrop. I find that putting Mr. Bukin in touch with Duty Counsel prior to providing his first breath sample significantly mitigated the impact of the Charter violations. Put bluntly, Mr. Bukin wanted legal advice from someone who could not provide it. Cst. Crook put him in touch with someone who could. Mr. Bukin therefore received legal advice at the appropriate time. There is no evidence of complaint about, or inadequacy of, that legal advice. I would also find that, if Mr. Bukin was ultimately put in touch with counsel of choice at 11:39 pm, namely Mr. Little, his counsel of choice was still Mr. Brown. There is no evidence that Mr. Bukin ever asked for Mr. Little. There is no evidence that Mr. Bukin ever wanted any lawyer at the Maverick Legal Services firm. He specifically asked for Mr. Brown. There is no evidence that he wanted to speak to Mr. Brown to get a competent lawyer. I would therefore find that the second limb of Grant strongly favours admission of the breath samples.

[42] Third Limb of Grant Test – Society's Interest

The third prong of the test from Grant (supra), asks about society's interest in an adjudication of the trial on its merits. It plays a heightened role in the analysis when the first two factors pull in opposite directions. As Doherty J.A. said in R. v. McGuffie, 2016 ONCA 365, at par. 63:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241 (Ont. C.A.), at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.

[43] Reliability and Societal Interest

In this case the impugned breath sample evidence is reliable, and the charge of Over 80 is one which senior appellate courts have repeatedly reminded trial courts is aimed at a serious societal problem, namely drinking and driving. The third factor therefore favours admission of the evidence.

[44] Admission of Evidence and Conviction

Putting this together, the breath samples are admitted into evidence. Mr. Bukin is convicted of the Over 80 Count.

The Impaired Driving Charge

[45] Acquittal on Impaired Charge

The evidence of impairment consists of some driving which is minimally bad. Mr. Bukin's car drifted minimally, and then when he pulled to the curb a tire touched the curb. He was observed to have red glossy eyes and slurred speech. The evidence of motor coordination deficits includes taking small steps to walk within the police station. On reflection, I agree with Mr. Little that the indicia of impairment are weak. Applying the test in R. v. Stellato, 1993 ONCA 3375, the evidence of impairment is sufficiently frail that impairment has not been proven by the Crown beyond a reasonable doubt. He is acquitted of that charge.

Released: March 2, 2018

Signed: Justice Rose