Court Information

Court: Ontario Court of Justice, Old City Hall – Toronto

Date: June 19, 2018

Between: Her Majesty the Queen

And: Pavel Kuviarzin

Before: Melvyn Green, J.

Counsel:

• S. Walker and D. O'Connor for the Crown
• B. Brody for the Defendant

Heard: November 6 and 7, 2017 and May 7, 2018

Reasons for Judgement

A. INTRODUCTION

[1] Mid-summer. About 5:30 in the morning. A residential neighborhood in central Toronto. A blue Mini Cooper sits immobile in the middle of the street. It's a one-way street, northbound. The car is facing south, the wrong way. The doors are locked. The motor is running. The man sitting in the driver's seat is asleep, if not unconscious. That man is the defendant: Pavel Kuviarzin.

[2] The police are summoned. Unable to arouse the defendant, they break a window, unlock the driver's door and extract him from the car. An officer detects an odour of alcohol. He arrests the defendant for having care or control of his motor vehicle while his ability to drive was impaired by alcohol. Later, at the police station, the defendant is found to have a blood alcohol concentration (BAC) of approximately twice the legal limit of 80 milligrams of alcohol in 100 millilitres of blood. He is then also charged with having care or control of his vehicle while his BAC exceeded the lawful limit – or, in legal parlance, with being "over 80".

[3] The Crown, as in all criminal prosecutions, bears the onus of establishing beyond reasonable doubt the essential elements of each of these two offences. The defence assumes a legal burden, and then on a civil standard, only with respect to its constitutional claim: first, that the police violated the defendant's Charter-protected rights to counsel and, in particular, his right to consult with his counsel of choice; and, second, that the breach should lead to exclusion of the evidence of the defendant's BAC test results – and, with them, any chance of conviction for the offence of "over 80". As regards the charge of alcohol-impaired care or control, the defendant says that global consideration of his condition at the time of his apprehension leaves ample room for reasonable doubt as to his alleged impairment.

[4] I am satisfied that the defendant's assertion that his Charter rights were infringed is well grounded, as is his claim to an exclusionary remedy. Accordingly, I find him not guilty of the charge of "over 80". I am equally satisfied, and to the requisite legal standard, that the defendant was impaired by alcohol when found behind the wheel and in care or control of his car. I find him guilty of that offence. My reasons follow.

B. EVIDENCE

(a) Introduction

[5] The trial was conducted by way of a blended proceeding. The Crown called three witnesses. Two of them testified solely to the circumstances surrounding the defendant's arrest, and his condition and response upon being removed from his vehicle. One is the woman who alerted the police to the motionless car and the second is a member of the emergency medical team of first responders. The third witness is an officer who testified as to the defendant's arrest, his transport to the police station, and the events at the station. This testimony is supplemented by videotape evidence of the defendant's booking and breath-testing procedures and, as well, by a number of helpful defence concessions. Most importantly, the defendant concedes that, subject to his Charter-based challenge, the combination of his Breathalyzer readings and toxicologist's report are sufficient to establish his excessive BAC at the time of the alleged offence. The integrity of both the breath-testing equipment and the testing procedures is also conceded. Further, no issue is taken with the statutory "as soon as practicable" requirement.

[6] The defendant did not testify, nor did he call any other evidence.

(b) On the Street

(i) Introduction

[7] All three witnesses first saw the defendant between 5 and 6am on August 22, 2015. He was slumped in the front seat of his stationary car on Lippincott Street. There is no issue as to the defendant being in care or control of the vehicle. The witnesses' accounts speak to the defendant's demeanour and deportment, evidence that bears on the allegation that the defendant's ability to drive was then impaired by alcohol. The defendant's removal from the car and response to being aroused were, on their evidence, closely observed by all three witnesses. Nonetheless, there are some significant variations in their accounts. A summary of the evidence of each follows.

(ii) The Local Resident

[8] Griska Carli lived on Lippincott. She cabbed home from a club between 4:30 and 5:30 that morning. A Mini Cooper was parked in the middle of the street. Music was "blasting" from its interior. Its doors were locked. The driver did not respond to her repeated knocking on the windows. He appeared comatose. Carli called 911.

[9] The Toronto Fire Service (TFS) responded within 15 minutes, followed by members of the Emergency Medical Service (EMS) and, finally, officers of the Toronto Police Service (TPS), with whom she spoke. The police were unable to rouse the defendant, the sole occupant of the car. They broke a rear window, unlocked the driver's door, and dragged the defendant out. The police, she recalls, had to hold him up: the man's legs were dragging, his speech was slurred, his eyes were rolling, and he had trouble keeping his head straight.

[10] Carli was sitting on the sidewalk, about three or four metres distant, as she observed the defendant being pulled from his car. Within seconds, he began to physically resist the police. His arms were flailing. She did not see him assume a "boxer's stance". Carli was uncertain as to whether the defendant was grounded by the police. She was also unclear as to how the defendant traversed the distance to the EMS ambulance.

[11] Carli repeatedly attributed her poor recall to the incident having occurred "a long time ago" (more than two years) and her fatigue at the time. She was, she said, both tired and sick during the course of her testimony. Indeed, she appeared at times to be falling asleep in the witness box.

(iii) The EMS Attendant

[12] Bernard MacDonald had worked as a paramedic for about one year at the time of the incident. Members of the TFS were already on scene when he and his partner arrived. Like Carli, MacDonald was unable to rouse the defendant. The police broke the driver-side rear window when they arrived, opened the driver's door and dragged the defendant out and onto the ground. He "came to" as he was pulled out of the car. Several persons, including MacDonald, helped the defendant stand up and onto a stretcher. The defendant did not "spring up", nor did MacDonald at any time see him assume a "boxer's stance".

[13] Other than some temporary confusion as to his location, the defendant answered MacDonald's questions appropriately and comprehensibly. Asked, in effect, why he was where he was, the defendant said he had drank too much. MacDonald had not been trained to determine the signs of intoxication, but the defendant's admission as to his alcohol consumption and his arousal difficulties led him to check the "alcohol intoxication" box on a form he completed to best explain the reason EMS was summoned. MacDonald could not recall if had smelled an odour of alcohol. The defendant declined the opportunity to be taken to a hospital.

(iv) The Arresting Officer

[14] PC Lubomir Panayotov arrived at the Lippincott address at 6:21am, almost an hour after the first 911 call. The Mini Cooper was still running, its doors locked, and the defendant, slumped across the front seats, was still oblivious to efforts to arouse him. There was no loud music. Panayotov broke the rear, driver-side window and unlatched the front door with the assistance of the TFS. There was a "quite noticeable" odour of alcohol. Shaking the defendant elicited no response. Then, as the officer began to drag him out of the car by his feet, the defendant suddenly stood up, appeared startled, and assumed what Panayotov variously characterized as a "boxer's" or "aggressive" stance. Fearing a physical altercation, the officer grounded the defendant, quickly and without difficulty. The defendant's eyes were bloodshot, his speech occasionally slurred, and there was an odour of alcohol on his breath. Panayotov helped the defendant to his feet, although it appeared he did not require assistance. The defendant was moving slowly, but his gait was otherwise unremarkable and he made his own way to the ambulance. The defendant did not appear to slur his words when speaking to the EMS attendants.

[15] In the officer's opinion, the defendant's ability to have care and control of his automobile was impaired by alcohol. Based on his initially comatose state, sudden aggressiveness, bloodshot eyes, odour of alcohol and slurred speech on getting out of the Mini Cooper, and the location and positioning of the car, PC Panayotov arrested the defendant for the offence of impaired care and control. He read him his rights to counsel and ancillary cautions and made an approved instrument demand at 6:29am. The defendant did not then wish to call a lawyer.

[16] In the course of their assessment, the EMS team asked the defendant how much he had had to drink. "A lot", the defendant responded. PC Panayotov heard this exchange. He also overheard the defendant advise the paramedics that he lived around the corner. Asked by the officer where he thought he was, the defendant answered Woodbridge – his residential location (more than 30 kilometers north) as recorded on his driver's license. The defendant was in the paramedics' care for some 18 minutes. Other than an odour of alcohol, the defendant, says Panayotov, did not exhibit any indicia of impairment after he was placed in their care.

[17] The police escorted the defendant to their scout once advised by EMS that he did not need to be taken to a hospital. PC Panayotov turned off the Mini Cooper after locating a key fob on the driver's seat in which the defendant had been sitting. Panayotov left the scene at 7:11am. The defendant was already asleep in the back seat and an odour of alcohol pervaded the police vehicle.

(c) At the Station

[18] Panayotov, with the defendant in tow, reached Central Traffic Services at 7:18am. The defendant was paraded before the officer in charge, S/Sgt. Redman, at 7:30am. As captured on video, the defendant appears lucid. He declined an offer to contact a lawyer, advised that he had consumed about a half-dozen beers, and claimed not to understand why he was required to provide samples of his breath as he had not been driving. Asked if he had a lawyer, the defendant replied, "Yes, Sharma". Redman said, in effect, that there were "too many" lawyers named "Sharma" and that the defendant would have to be more precise. The defendant needed his cellphone to locate the number. "Sure", he responded, when asked if he wished to speak to duty counsel if he was unable to reach his lawyer.

[19] The defendant could not locate "Sharma" on his phone. He did find a number for a lawyer named "Marty Shapiro" and indicated he wished to speak to him. At 7:56am, PC Panayotov called that number and, following the voice mail prompts, left a message for Shapiro. He advised the defendant of what had occurred. In direct examination, Panayotov testified that the defendant then asked to speak to duty counsel. In cross-examination, the officer agreed that it was "possible" that he first asked the defendant if he wanted to call duty counsel. In any event, Panayotov left a message for duty counsel at 7:58am and fielded the return call at 8:12am. Panayotov gave no thought to trying to locate Sharma through use of the internet, a phone book or a lawyers' directory. At 8:21am, following his private conversation with duty counsel, the defendant was escorted into the breath room.

[20] The defendant wanted to wait until he had an opportunity to speak to his lawyer. In answer to his query, the qualified breath technician (QBT) explained that refusing to provide breath samples would result in a charge of failing to comply with the officer's demand. The defendant suddenly grew very angry, shouting that he was only sleeping in his car. Returning, equally abruptly, to a civil, conversational tone, the defendant said, "I want to see my lawyer". The defendant agreed he had spoken to duty counsel but repeated his desire to "speak to my lawyer". Reminded again that he had spoken with duty counsel, the defendant responded, "I need to speak with someone who I trust". He did not know, he said, the person with whom he had spoken and expressed doubt as to his being a lawyer. "I want", he said again, 'to speak to my lawyer" – with a palpable emphasis on the word "my". "You've already spoken to duty counsel", the QBT repeated. "We can't sit here and continue to wait for your lawyer", he continued. "So we're going to wait", the defendant replied.

[21] The defendant continued to resist participating in the breath testing procedure until he spoke with his lawyer. "Try again", he directed, without substantive response from the officers. He reiterated his distrust of the unfamiliar person, the purported duty counsel, with whom he had spoken. He claimed he did not understand why he was charged, that he was only sleeping in his vehicle, that he was not in its care or control, and that he did not speak English.[1] Advised by the QBT that he would be charged with failing or refusing to comply if he did not provide a sample, the defendant, at 8:40am, agreed to do so. "You don't give me any choice", he said. The first suitable sample was finally provided some seven minutes later. Other than the single expression of anger noted earlier, the defendant was polite and rational, if sometimes argumentative, throughout.

[22] PC Panayotov left a further voice mail message on Shapiro's extension between the two breath tests. He also tried the extensions of two assistants in the same office. He could not recall if he left messages on their voice mails. The defendant re-entered the breath room at 9:07am and provided a suitable second sample at 9:13am. His first and second BAC readings were, respectively, 168 and 176 milligrams of alcohol in 100 millilitres of blood. The certificate of analysis recorded truncated BAC readings of 160 and 170.

[23] In cross-examination, PC Panayotov agreed that, while at the station, the police controlled to whom the defendant spoke and when. He also agreed that the defendant could select as many lawyers as he wished, that he, the officer, had never referred to a lawyers' directory during the course of the evening, and that he had made no effort to locate a lawyer named "Sharma". Accepting that it was "paramount" for a detainee in the defendant's circumstances to consult with counsel before the first breath test, Panayotov further agreed, if in retrospect, that he should have tried the associates' extensions at the Shapiro number before the defendant was first escorted to the breath room and, further, that he ought to have waited longer than a couple of minutes to see if there was a call-back from anyone in Shapiro's office before returning the defendant to the breath room for his second test.

[24] Panayotov knew that the initial 911 call respecting the Mini Cooper stopped in the middle of Lippincott was made at 5:29am. It was his understanding that, absent a toxicologist's report, the breath tests had to be taken within two hours of 5:29am to constitute proof of the defendant's excessive BAC at the time of the offence with which he was charged. Given the cumulative delay, Panayotov conceded he knew that a toxicologist's report would be required once he and the defendant settled in the breath room. Accordingly, he recognized that the urgency that might otherwise attend the testing process no long existed.[2]

[25] In view of their exchanges in the breath room, Panayotov also agreed that the defendant was clearly unhappy with the advice he had received from duty counsel. As a result, he testified, he, as the officer responsible for the defendant's detention, should have tried to reach a different lawyer. He agreed as well that the defendant had effectively been told that, irrespective of his rights to counsel, he either provide a suitable sample or he would be charged with refusing to do so. Again in retrospect, Panayotov said he would now handle it differently.

C. ANALYSIS

(a) Introduction

[26] As noted earlier, the defendant contends that the evidence fails to establish to the requisite standard that his ability to operate his vehicle was impaired while he was in its care or control. As regards the second offence, that of having an excessive BAC while in such care or control, he argues that the police infringed his constitutionally protected right to counsel and that the appropriate remedy is the evidentiary exclusion of the samples of his breath taken at the station, thereby terminating his prosecution for this offence of "over 80". I first address the allegation of constitutional breach.

(b) The Defendant's Charter Claim

(i) The Defendant's "Right to Counsel of Choice"

[27] Section 10(b) of the Charter proclaims the "right" of "everyone" on his or her "arrest or detention to retain and instruct counsel without delay and to be informed of that right". The latter half of the recitation is often styled the "informational" component of the right to counsel. The first part – the right "to retain and instruct" – informs the implementational dimension of the right. The defendant alleges a breach of this latter facet of s. 10(b), and in particular the judicially recognized extension of the right to "counsel of choice".

[28] The defendant's constitutional complaint is not uncommon, particularly is prosecutions arising from the interface between police and detainees in the context, as here, of drinking-and-driving related offences. Like most criminal court judges, I have had prior occasion to describe the scaffolding of the governing jurisprudence: see, for example, R. v. Veljovic, 2012 ONCJ 336, at paras. 22-23 and R. v. Anikhovskly, [2014] O.J. No. 5868, at para. 14. A more recent aggregation of the prevailing legal principles, and one I here adopt, is set out by Burstein J. in R. v. Ali, 2018 ONCJ 203. The portion of his reasons that addresses the police obligation to enable a defendant to contact counsel, as set out at paras. 47-53 (emphases in the original), includes the following:

More than 30 years ago, in R. v. Manninen, [1987] 1 S.C.R. 173, the Supreme Court of Canada firmly recognized that s. 10(b)'s duty to facilitate contact with counsel included the duty to offer the detainee the use of a telephone. … [T]he Supreme Court held:

... The detainee is in control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so...

... It was not necessary for the [accused] to make an express request to use the telephone. The duty to facilitate contact with counsel included the duty to offer the [accused] the use of the telephone....

As Stribopoulos J. recently noted in R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789 (C.J.), at para. 41, law enforcement agencies in other provinces have long accepted the Supreme Court's early Charter prescription that facilitating contact with counsel means providing access to a telephone and telephone books. …

… it seems that police agencies in Ontario merely afford the detainee the right to receive a telephone call from someone who the police have called on the detainee's behalf. The practice currently in place in Ontario seems constitutionally suspect.

[29] At paras. 55-60 of Ali (emphases, again, in original), Burstein J. then turns to the implementational obligations of the police in situations where, as in the case at bar, a detainee signals his wish to consult with a particular counsel of choice. In the process of elaborating the right, Burstein J. helpfully refines the standard by which to measure police compliance with their constitutional duties in such circumstances:

In Bartle, [1994] 3 S.C.R. 173, the Supreme Court recognized that "when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state". That "position of disadvantage" exists not only in relation to the investigation itself, but also with respect to the detainee's ability to contact counsel. For example, upon his arrest … , Mr. Ali [as in the instant case] was … taken directly to the police station without having had a chance to speak with anyone … . Once at the police station, he was entirely within the control of the police. He was only allowed to access his cell phone when permitted to do so by [the arresting officer]. He was [unlike the immediate defendant] … permitted to examine the Ontario Lawyers' Directory because [the arresting officer] chose to hand it to him. Finally, he was only allowed to go into the privacy booth and speak on the handset when escorted there by the police. Because of the "position of disadvantage" created when someone is arrested or detained, the Supreme Court has held that a detainee who says "yes" to the s. 10(b) offer of counsel need not also ask the police for an opportunity to access a telephone and telephone book [R. v. Manninen, supra].

The police may not then further that "position of disadvantage" by withholding the basic tools required for a detainee to locate counsel of their choosing for the purpose of immediate consultation. As other judges of this Court have repeatedly held, where the police choose to maintain exclusive control over the means by which a detainee can locate counsel of choice, the police will be expected to act as diligently as a detainee who is anxious to find and contact a lawyer. [For example, in R. v.] Panigas, [2014] O.J. No. 2058, at para. 52, Horkins J. held that:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply...

… In my view, the issue of whether the police discharged their duty to facilitate contact with a detainee's counsel of choice should be determined by what a reasonable detainee would likely have done to contact counsel had the police provided them with the tools for doing so. That is exactly how Stribopoulos J. approached his assessment of the constitutional adequacy of the police efforts to contact counsel of choice in Maciel [at paras. 45-48]:

…[W]here the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel's contact details in order to satisfy the reasonable diligence standard. In my view, common sense suggests that at a minimum this should include:

• Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;

• Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada's Paralegal and Lawyer Directory.

• Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

In my view, in this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court's direction that the police are required to take proactive steps to turn the right to counsel into access to counsel…. [Emphasis added in R. v. Ali.]

(See, also, R. v. Middleton, 2018 ONCJ 387, at paras. 60-61.)

[30] Applying the test articulated in Ali, I have no difficulty concluding that the police failed to honour the defendant's constitutionally protected right to consult with counsel of his choice – a right he repeatedly reasserted. Rather than meaningfully affording him the tools – the use of his own phone directories, internet search capabilities – to locate and contact his counsel of choice, the police assumption and execution of these constitutional responsibilities was never more than cursory. As put by Burstein J. in Ali, at para. 55:

S. 10(b) of the Charter requires that the police provide access to those tools if a detainee has expressed a desire to consult counsel. In other words, the analysis must begin with a recognition that by choosing to withhold those basic tools of access from a detainee, the police create additional s. 10(b) implementational obligations for themselves.

[31] In my view, having arrogated to themselves the execution of the defendant's right to "retain and instruct" counsel, the police failed to adequately respect the implemental obligations imposed by s. 10(b). The booking sergeant was dismissive of the defendant's identification of his preferred counsel, a lawyer for whom he only had the name "Sharma". Panayotov never turned his mind to finding any lawyer named Sharma. He effectively channeled the defendant to duty counsel very soon after leaving a message at the office of Marty Shapiro, the defendant's second counsel of choice. He did not wait for a call-back from Shapiro's office or try to reach the extensions of any of the associates listed on the law firm's voice-mail directory. He at no point searched the internet or phone books or legal data bases for home or cell numbers or other alternative means of contacting Shapiro. Instead, the officer, I find, suggested the defendant call duty counsel, and then facilitated that communication.

[32] Despite it becoming clear soon after first entering the breath room that the defendant lacked confidence in the unfamiliar person with whom he communicated ("I need to speak to someone I trust."), despite the defendant's sometimes vigorous expression of his frustration, and despite, by then, the absence of any statute-provoked urgency, the police made no effort to afford the defendant a further opportunity to contact counsel before his first test. The defendant maintained his position until, on my read of the evidence, the QBT effectively threatened him with a charge of failing or refusing to provide a suitable breath sample if he continued to insist on contacting his counsel rather than complying with the breath demand. As put by the defendant at the point he finally acquiesced to the officer's demand: "You don't give me any choice".

[33] Panayotov did leave a fresh message on Shapiro's voice mail during the interval between the two tests and, on this occasion, tried the extensions of two associates in the same firm. He could not, however, recall leaving a voice mail for either of them, and he waited only a couple of minutes for a call-back from the firm before returning the defendant to the breath room for his second test. Panayotov most certainly made no further efforts to locate or contact the defendant's counsel of choice. Nor did he provide the defendant with the means to do so himself.

[34] In cross-examination, Panayotov conceded the inadequacy of the police efforts to comply with their s. 10(b) obligations. He acknowledged the lack of urgency by the time he escorted the defendant to the breath room. He also recognized that he ought to have at least attempted to contact a different lawyer given the defendant's patent dissatisfaction with duty counsel. Further, when queried about the ultimatum the QBT put to the defendant before he acquiesced to providing the first sample, Panayotov allowed that, with the advantage of hindsight, he would now "handle it differently".

[35] Measuring the police performance of their constitutional duty by the standard articulated in Ali, supra – that is, what a "reasonable detainee would likely have done to contact counsel had the police provided [him] with the tools for doing so" – I am satisfied that the responsible state actors did not honour their implementational obligations under s. 10(b) of the Charter. Accordingly, the defendant's rights to consult with his counsel of choice was violated.

(ii) Remedy

1. Introduction

[36] Section 24(2) of the Charter prescribes that where, as here, evidence was obtained in a manner that infringed or denied a defendant's constitutional rights, the evidence "shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute". The evidence here at issue is that of the toxicological report and the defendant's BAC readings on which it is premised – evidence essential to the successful prosecution of the charge of "over 80".

[37] As directed by R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the s. 24(2) analysis involves three lines of inquiry: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the infringement on the Charter protected interests of the defendant; and (3) society's interest in the adjudication of the case on its merits. The court, as said in R. v. Grant, supra, at para. 85, "must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute".

2. Seriousness of the Breach

[38] Pursuant to the first branch of the s. 24(2) analysis, I have no difficulty finding the breach serious. The police made only the most perfunctory effort to facilitate the defendant's access to legal advice from his counsel of choice, one in whom he was prepared to repose his trust. The police effectually funneled the defendant to duty counsel, treated the repeated verbalizations of his concern with the quality of the legal advice he received as annoyances, and declined to make timely follow-up inquiries when requested. None of the evidence suggests the defendant was other than sincere in his expressions of frustration and desire to speak to his counsel of choice. Nonetheless, the police effectively threatened him with a charge of "refusal" if he did not comply with their breath demand. This conduct reflects objectively discernable departures from settled constitutional norms. As said in R. v. Grant, supra, at para. 75, "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith".

[39] In R. v. John, 2018 ONSC 464, at para. 38, D.E. Harris, J., relying on the Supreme Court's germinal judgement in R. v. Kokesch, [1990] 3 S.C.R. 3, observed that the "stronger the inference that the police ought not to have committed the Charter breach, the more serious is the breach". Here, if only in retrospect, the officer in charge acknowledged deficits in his and the QBT's response to the defendant's invocation of his right to counsel of choice. The officer did not endeavour to attribute his implementational shortcomings to any change in the governing law or his appreciation of that law in the interval between the incident and his testimony. Accordingly, even on a subjective basis Panayotov's candour effectively effaces any claim to good faith premised on an innocent misunderstanding of police constitutional obligations.

[40] The breach of the defendant's s. 10(b) rights was not minor, technical or inadvertent. Its seriousness falls materially further along the spectrum of gravity (the "fault line" as put by Doherty J.A. in R. v. Kitaitchik, 166 C.C.C. (3d) 14, at para. 41 (Ont. C.A.)), resting somewhere between negligence and reckless (if not knowing) disregard or indifference. In summary, the first step of the s. 24(2) analysis clearly militates in favour of exclusion.

3. Impact on Protected Interests

[41] The second step necessitates a case-specific inquiry into both the nature of the interests protected by the right in question and the impact of the breach on those interests. Recently, in R. v. Jennings, 2018 ONCA 260, at para. 29, the Court of Appeal reminded the legal community of dicta in Grant, supra, "in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111". However, Jennings, like the paradigmatic illustration in Grant, addressed circumstances in which the breach at issue implicates s. 8 of the Charter – the right to be secure against unreasonable search or seizure – and not, as in the instant case, the right to counsel.

[42] Employing language that closely resonates with the immediate defendant's repeated rationale for wishing to consult with his counsel of choice, the Court of Appeal, in R. v. McCallen, 131 C.C.C. (3d) 518, noted that,

There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests.

Further, in R. v. John, supra, at para. 42, the court observed that,

The right to counsel protects the right to silence and the right against self-incrimination, one of the central organizing principles of our law: R. v. White, [1999] 2 S.C.R. 417, at para. 41.

And in R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486, at para. 80, the Court of Appeal recently reaffirmed that,

Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.

[43] Although the factual circumstances are clearly distinct, I find, as in R. v. Middleton, supra, that the "impact of the breaches upon [the defendant's] right to counsel was significant". As Parry J. there explained, at para. 80,

The right to counsel is of paramount importance. It is one of the cornerstones of a free and democratic society. Through counsel, an accused obtains advice as to whether or not to partake in his own incrimination, or to assert his right against self-incrimination. … Legal advice about the lawfulness of the demand, and thus the lawfulness of any possible refusal to comply with a demand has never been more crucial to an arrestee. Similarly, defence counsel face an increased obligation to thoroughly explore the factual and legal circumstances of the arrest, through both the arrestee and police involved in the investigation, so that proper advice about the lawfulness of the demand might be given. Having said that, the law does not permit speculation as to what advice Mr. Middleton may have received had he been afforded the right to consult [with his counsel]. The violation was complete when Mr. Middleton lost the opportunity to consult his counsel of choice. I therefore view the impact on Mr. Middleton's Charter protected right to be very grave. [Emphasis in original.]

[44] I also agree with Parry J.'s conclusion in Middleton that, "[t]his aspect of the Grant analysis therefore favours exclusion."

4. Societal Interest in Adjudication on the Merits

[45] The third analytical consideration, that of societal interest in an adjudication on the merits, routinely preferences, as here, receipt of "real" evidence that is vital to the Crown's case. However, the internal calibration is not entirely free of subtlety nor, as a result, is the inclusionary weight assigned this third factor of standardized value in the ultimate balancing under s. 24(2) of the Charter.

[46] Drinking-and-driving offences are universally characterized as "serious" but, as said in Grant, at para. 84, the "short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice". And in a relatively recent case involving a failure to honour s. 10(b) rights following an impaired driving arrest, the Supreme Court, in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 38, observed that,

It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 80, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences".

Further, admission of the impugned BAC readings is not, as in some cases, here "vital" or "key" to the Crown's "case". The BAC evidence is irrelevant to the second of two charges the defendant faces, that of impaired care or control. Further still, if the defendant were in fact convicted of both charges, a conviction would, pursuant to the "Kienapple principle", be registered for only one of them: Kienapple v. R., [1975] 1 S.C.R. 729.

[47] All that said, there can be no doubt that the third element in the Grant analysis here favours inclusion of the impugned evidence.

5. The Balancing

[48] The final step involves a balancing of the search for truth and the integrity of the judicial system, as informed by "long term", "prospective" and "societal" interests. Regard for these overarching principles ultimately favours exclusion where, as here, a detainee is deprived of his diligently pursued right to counsel of choice as a result of the police negligently and needlessly departing from their constitutional obligations. As said in R. v. McGuffie, supra, at para. 63, "[i]f 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".

[49] The repute of the justice system demands that courts not be seen to excuse disregard of constitutional norms governing the protection of fundamental rights by those charged with their enforcement. I conclude, in the end, that an informed public's respect for the administration of justice is better served by the exclusion rather than the receipt of the impugned evidence.

(c) Impaired Care or Control

[50] The remaining charge – that of having care or control of his motor vehicle while the defendant's ability to drive was impaired by alcohol – is more readily resolved.

[51] I accept the uncontradicted evidence of PC Panayotov, the arresting officer, that a strong odour of alcohol emanated from the defendant upon first entering the Mini Cooper and, later, as he slept in the back seat of the police cruiser on the way to the station. The issue, at bottom, is not whether the defendant had consumed alcohol while, as is undisputed, in care or control of his automobile but whether his consumption was such as to have then impaired his ability to drive.

[52] The evidence from which one may infer that the defendant's ability to drive was impaired by alcohol is not limited to the odour of that drug. He is either asleep or unconscious in his car. That car is parked in the middle of a residential street with its doors locked and motor running for at least an hour. He is completely unresponsive to the efforts of several persons to rouse him during the course of that hour. Irrespective of the particular stance he assumed, when finally awakened or revived by the physical intervention of the police, he reacts, I find, in a startled and, if only momentarily, aggressive manner. When questioned a few minutes later, he is completely mistaken as to his whereabouts.

[53] Labrosse J., speaking for the Court of Appeal, long ago set out the venerable test for assessing the requisite degree of impairment in R. v. Stellato, 78 C.C.C. (3d) 380 (Ont. C.A.); appeal dismissed, [1994] 2 S.C.R. 478:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

Labrosse J.'s dictum applies with equal force to the offence of impaired care or control.

[54] I recognize that portions of the testimonial record and that entered by way of video recordings chronicle the conduct of a man who appeared to be responsive and relatively lucid soon after his extraction from his car. I also recognize that many of the more suspect tiles in the evidentiary mosaic before me may individually admit to explanations inconsistent with alcohol-induced impairment – although such benign inference-drawing is likely impermissibly speculative in the absence, as here, of any evidentiary foundation. In any event, applying Stellato I am satisfied to the requisite standard that the cumulative impact of the evidence pertaining to both the conduct of the defendant upon his apprehension and the circumstances surrounding his detection "establishes [some] degree of impairment" of his ability to operate a motor vehicle of which he was then in care or control. In the result, I find him guilty of that offence.

D. CONCLUSION

[55] For the reasons just recited, I find the defendant guilty of the offence of having care or control of his motor vehicle while his ability to drive was impaired by alcohol, but not guilty of having an excessive blood-alcohol concentration while in such care or control.

Released on June 19, 2018

Justice Melvyn Green

Footnotes

[1] As to the latter assertion, the defendant's English, while accented, appeared fluent and functional. His answers were directly responsive to the questions posed. He did require the service of an interpreter at his trial.

[2] Impaired "care or control" is a continuing offence that, if established, almost certainly extended until the defendant was removed from the Mini Cooper a few minutes after Panayotov arrival at 6:21am. However, even if one does not punch the statutory clock until the defendant was extracted from his vehicle, the temporal prerequisites for Crown reliance on the presumption of identity, as set out in s. 258(1)(c) of the Code, would still most likely have been compromised by the delay that would have accumulated by the time the defendant, in the ordinary course, provided an initial breath sample some minutes after he was escorted into the breath room at 8:21am. In any event, Panayotov's subjective appreciation of the situation being one that would require a toxicologist's report to ground a successful prosecution for the offence of "over 80" erases any Crown "expediency" counter-argument from the calculus of constitutional infringement of the right to counsel.