Court File and Parties

Ontario Court of Justice

Date: June 6, 2018

Court File No.: Ottawa 17-A9474

Between:

Her Majesty the Queen

— and —

Nathan Guilbeault

Before: Justice Trevor A. Brown

Decision released on: June 6, 2018

Counsel

Mr. Sujit Nirman — Counsel for the Crown

Ms. Anna Brylewski — Counsel for the Accused

Decision

BROWN, J.:

Charges and Overview

[1] Nathan Guilbeault is charged with one count of having care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code, and one count of having care or control of a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 milliliters of blood. These charges arise out of an incident alleged to have occurred on January 31, 2017 in Manotick, an area located in the south of the city of Ottawa.

[2] The trial and Charter issues proceeded together as part of a blended voir dire. Mr. Guilbeault seeks the exclusion of evidence to remedy what he alleges are violations of his right against unreasonable search and seizure (section 8 of the Charter), his right to counsel (section 10(b) of the Charter), and his right to be free from arbitrary detention (section 9 of the Charter). He also asserts that the breath samples taken in this case were not taken as soon as practicable, and that the Crown has failed to prove that his ability to operate a motor vehicle was impaired by alcohol.

[3] Specifically, Mr. Guilbeault alleges the following breaches of the Canadian Charter of Rights and Freedoms:

a. That the roadside test was not administered forthwith, thereby violating his rights under sections 8, 9 and 10(b) of the Charter;

b. That he was not provided with his counsel of choice when given the opportunity to speak to a lawyer, violating his rights under section 10(b) of the Charter;

c. That because he was held for a number of hours following the taking of breath samples, he was arbitrarily detained, thus violating sections 7 and 9 of the Charter.

The Evidence

Civilian Witness — Connor Good

[4] Connor Good is a civilian witness who was standing outside the Tim Hortons in Manotick at the intersection of Mitch Owens and River Road on January 31, 2017 at roughly 12:15 in the morning. The evidence of the witnesses in this case, as shown in the Google maps filed as exhibits with the court, was that Bridge Street becomes Mitch Owens Road on the east side of River Road. There is a concrete island at the intersection of Bridge Street and River Road just before Bridge Street turns into Mitch Owens Road.

[5] Mr. Good saw a dark coloured sedan travelling eastbound on Bridge Street towards the intersection of Bridge Street and River Road, hit the concrete island, and pass over the median into the oncoming traffic lane. In so doing, it knocked over a sign embedded in the island. The vehicle went through the red light at the intersection and continued eastbound onto Mitch Owens Road. There was no other traffic on the road at the time.

[6] Mr. Good could not say the exact speed of the vehicle but was certain that it was travelling more than 50 km per hour. After the vehicle crossed over the island, he saw something dragging underneath the vehicle, which he believed to be the front or back bumper. He noticed some smoke going up from under the vehicle after it ran over the island. Mr. Good contacted 911, and went over to the island where the vehicle had hit the sign. He observed pieces of broken glass or plastic on the ground where the sign had been bent over by the dark sedan. The debris looked to him like it came from headlights of a vehicle, which he deduced to be those of the vehicle that had just struck the sign on the island.

[7] Although Mr. Good was able to describe the vehicle as a dark sedan, which he believed to be four doors, he was unable to observe the make, model, colour, or plate number of the sedan. He was also unable to make any observations of the driver or the number of occupants of the vehicle. He lost sight of the vehicle shortly after it passed through the intersection, as his view of Mitch Owens Road at that point was blocked by the TD Bank. The last he saw of the vehicle before his view was blocked, it was travelling eastbound on Mitch Owens Road.

Police Response — Constable Quinn McCabe

[8] Constable Quinn McCabe is an Ottawa police service officer assigned to the south Ottawa area where this incident took place. He was situated in his police cruiser northbound on River Road just south of Mitch Owens Road at approximately 12:20 AM, when he received a radio call for a possibly intoxicated driver on Mitch Owens Road east of River Road. Constable McCabe travelled northbound on River Road and then eastbound on Mitch Owens Road, and at 12:22 AM located a car in the southern ditch of Mitch Owens Road approximately 150 to 200 metres east of River Road.

[9] This vehicle was a black Mazda sedan, and was 10 to 15 metres off the roadway in a snow covered ditch. Constable McCabe observed the Accused walking out of the ditch from the driver's side of the vehicle. He observed Mr. Guilbeault to be walking slowly and to be slightly unbalanced on his feet. Mr. Guilbeault approached the officer, and Constable McCabe observed what he termed "glassy eyes" that he felt was consistent with intoxication but also consistent with exposure to the cold air. He asked Mr. Guilbeault if he had been drinking, to which Mr. Guilbeault replied that he had hit a patch of black ice. Constable McCabe detected a slight odour of alcohol on Mr. Guilbeault's breath and slightly slurred, slightly slow speech. He asked Mr. Guilbeault to sit in the back of the police cruiser, as he wanted to speak with Mr. Guilbeault about the impaired driving call and because it was so cold out.

[10] At the point in time that he placed Mr. Guilbeault in the cruiser, he had a reasonable suspicion that Mr. Guilbeault had alcohol in his body. Constable McCabe did not have a notation nor an independent recollection of the time at which he placed Mr. Guilbeault in the cruiser. He did not think it was within a minute or two of his arrival on scene, but did feel that it was fairly soon after his arrival on scene.

[11] Once in the cruiser, Constable McCabe asked Mr. Guilbeault to provide his driver's license, which he did. He ran Mr. Guilbeault's name on the standard police database checks, and engaged him in further conversation. At 12:35 AM, he made the demand for the provision of a roadside sample. Mr. Guilbeault agreed to provide a sample, and registered a "fail" at 12:41 AM. For Constable McCabe, the fail on the approved screening device meant that Mr. Guilbeault's ability to drive a motor vehicle was impaired by alcohol, and he arrested him for impaired driving at 12:41 AM. Prior to the fail on the device, Constable McCabe did not feel he had grounds to arrest Mr. Guilbeault for impaired driving.

[12] After Mr. Guilbeault's arrest at 12:41 AM, Constable McCabe read Mr. Guilbeault his rights to counsel and cautions. At 12:46 AM he made the breathalyzer demand. Constable McCabe departed with Mr. Guilbeault from the scene at 12:55 AM, arriving on scene at the Ottawa central detachment at 1:21 AM. Upon arrival at the cellblock, Mr. Guilbeault was processed and searched by special constables in the cell block. This procedure took roughly 10 to 15 minutes. By 1:40 AM, Constable McCabe was facilitating Mr. Guilbeault's contact with legal counsel.

Right to Counsel — Lawyer List Interaction

[13] At 1:40 AM, Constable McCabe left a voicemail with counsel by the name of Patrick Snelling. At 1:42 AM, Constable McCabe made contact with William Murray, who Mr. Guilbeault chose to speak with after being unable to reach Mr. Snelling. Mr. Guilbeault was afforded the opportunity to speak in private with Mr. Murray, and did so. Constable McCabe did not have any notation of how long Mr. Guilbeault's phone call with Mr. Murray lasted.

[14] Although he had no note of any request made by Mr. Guilbeault at the time he was standing at the lawyer list choosing who to speak with, he agreed that it was possible that Mr. Guilbeault may have asked to speak with X-Copper Legal Services and a lawyer with "X-Copper" by the name of "Anna B". Though he had no recollection of this conversation, Constable McCabe's understanding at the time was that X-Copper were paralegals who dealt only with traffic tickets, and he agreed that he may in fact have told Mr. Guilbeault that there were no lawyers at X-Copper. He agreed with Defence counsel's suggestion that it was possible that Mr. Guilbeault was insisting that there was a lawyer at X-Copper with whom he wished to speak, and that he may have told Mr. Guilbeault to call someone from the lawyer list instead and to contact X-Copper the following day. He was shown a cell block video from the night in question, Mr. Guilbeault and Constable Grison were conversing immediately in front of the lawyer list, and agreed that what appeared on the video was consistent with a prolonged discussion on the topic of X-Copper and Anna B.

[15] Constable McCabe confirmed that when a detained person is brought into the cell block at the Ottawa Police station, the process of arranging contact with legal counsel is controlled by the arresting officer. Accused persons do not have access to their phones to make the call from the station, as any cell phones in their possession are seized by special constables at the time of processing. Similarly the Accused persons do not dial themselves the number of their chosen counsel; rather they review a list of lawyers on the wall outside the telephone booth, advise the officer of their selection, and the officer makes the call to counsel.

[16] Constable McCabe was unaware of whether there was internet access in the cellblock that would allow him to perform a Google search or a search on the Canada 411 online directory to find a particular lawyer's phone number. He was unaware of whether the Law Society of Upper Canada had a lawyer directory online for the names and numbers of lawyers available to take calls in the middle of the night. He relied solely on the lawyer list on the cell block wall when detainees in his custody sought to exercise their right to counsel.

[17] At 1:47 AM, Constable McCabe provided his grounds for arrest to the breath technician, Constable Grison. At 2:04 AM, custody of Mr. Guilbeault was transferred from Constable McCabe to Constable Grison. Constable McCabe's next contact with Mr. Guilbeault was when he received custody back from Constable Grison after the completion of the breath samples. At 3:04 AM he served Mr. Guilbeault with various documents. After service of these documents, Mr. Guilbeault was lodged in cells with the special constables on duty, and Constable McCabe left the station to return to his own detachment.

[18] Constable McCabe testified that it was not within the scope of his duties to make any decisions with respect to the release of the detainee; the decision as to when and whether to release an accused person was up to the cellblock sergeant. He confirmed however that by 3:04 in the morning, Mr. Guilbeault's car would have been impounded, notice of his driver's licence suspension served on him, and that there was no further evidence to secure or preserve by that point in time. Constable McCabe did not turn his mind to asking Mr. Guilbeault whether he had anyone who was available to pick him up from the station, as these sorts of things were arranged between the accused person and his legal counsel or by the cellblock sergeant once the accused person was sober. Constable McCabe recalled that Mr. Guilbeault was polite and cooperative with him, and was not in any way violent or threatening or otherwise presenting any gross physical indicators of intoxication. He had no note or recollection of Mr. Guilbeault requesting to have someone come to pick him up from the station.

Constable Jana Gauthier

[19] Constable Jana Gauthier was also dispatched to the impaired driver call on January 31, 2017, and arrived on scene at Mitch Owens Road at 12:27 AM. Road conditions at that time were good, icy in some spots but otherwise dry. There was no snow that night. Upon arrival she observed a black Mazda 3 in the ditch, intact. Mr. Guilbeault and Constable McCabe were in Constable McCabe's cruiser at the time of her arrival. She spoke with Constable McCabe and agreed to assist with the towing of the vehicle. She did not speak with or make any observations of Mr. Guilbeault. She did however make observations of the vehicle. There was no alcohol or weapons inside, and she did not observe any damage to the vehicle. She did not see a bumper hanging off of the vehicle or any broken lights. After the vehicle was towed she went to the intersection where the vehicle was said to have crossed the island, and noted that the sign at the island was bent over but still intact.

Breath Technician — Constable Lisa Grison

[20] Constable Lisa Grison was acting in her capacity as a qualified breath technician on January 31, 2017. By 2:04 AM she had received from Constable McCabe his grounds for Mr. Guilbeault's arrest, and custody of Mr. Guilbeault himself. She obtained from Mr. Guilbeault two samples of his breath that were suitable for analysis, with the first sample registering 168 mg/100 ml blood at 2:11 AM, and the second sample registering 170 mg/100 ml blood at 2:34 AM. She returned custody of Mr. Guilbeault to Constable McCabe at 2:46 AM. She at first observed Mr. Guilbeault to be unsteady on his feet, but later noted his balance as "sure". He had no difficulty walking in or out of the room where the breath sample procedure took place. Constable Grison noted the smell of alcohol on Mr. Guilbeault's breath, and observed his eyes to be glossy and red-rimmed. His speech was fair, with no apparent slurring or slowness.

[21] Constable Grison was shown the video of she, Constable McCabe and Mr. Guilbeault standing at the lawyer list. She had no recollection during the time she was at the wall with them of having any conversation regarding X-Copper. She could not agree or disagree with the suggestion of counsel for Mr. Guilbeault that Mr. Guilbeault requested to speak with a lawyer by the name of Anna B. She asserted that had there been any conversation about X-Copper, she would have made a note of it, but also acknowledged that she made no note at all of her involvement in this conversation and had not even recalled being part of a conversation at the wall where the lawyer list was posted until the video was shown to her.

Cell Block Sergeant — Sergeant Paul Murphy

[22] Sergeant Paul Murphy was the cell block sergeant who came on duty around 6:45 AM on January 31, 2017. As cell block sergeant, Sergeant Murphy was responsible for overseeing the operation and safe handling of the prisoners in the cell block, and for the overall administration of the cell block while he was on duty. He had no recollection of Mr. Guilbeault on January 31, 2017, nor did he have any duty book notes relating to Mr. Guilbeault's stay in custody at the cell block on that date.

[23] Sergeant Murphy testified to his own general practice as a cell block sergeant. Upon starting his shift, he would meet with the cell block sergeant he was taking over from, and go over the booking sheets for each detainee in the cell block. The booking sheet is a pre-set form filled out by the cell block sergeant when the accused arrives at cells that records the accused's name, address, date of birth, time and location of arrest, and the nature of the charges they are brought into the cell block for. It includes information such as the person's escape risk, medical conditions, injuries, and whether the person has been violent or has a communicable disease. Other than the nature of the offence (e.g., assault, homicide, over 80), the booking sheet does not detail the facts underlying the alleged offence. The booking sheets are stacked in clear plexiglass baskets hung on the wall such that the top half of each booking sheet is visible.

[24] For those persons in custody for impaired driving related charges, the practice was to write the test times and blood alcohol concentration readings at the top of the booking sheet. The practice at the time of Sergeant Murphy's training was to subtract 15-20 mg/alcohol from the test results for every hour from the time of the detainee's last test. He would estimate the person's level of intoxication by going through this process of subtraction, and generally release a person once they were under 50 mg/100 ml of blood. The 50 mg/100 ml standard was the one he personally employed, as that was the blood alcohol concentration set out by statute for a driver to be removed from the roadway and serve a three day suspension under the Highway Traffic Act.

[25] Sergeant Murphy's own practice was also to ask the arresting officer if there was someone who could come pick up an impaired driver who had been charged, and ask the arresting officer to call that person. He would only release an impaired driver to a responsible person; persons who were above that 50 mg/alcohol per 100 ml/blood were not permitted by the OPS policy to leave the station on their own, for example by getting a taxi. If the person did not ask to be released or there was no one to release them to, the general policy was to release them only when they were sober and it was safe to do so.

[26] In respect of Mr. Guilbeault's case, Sergeant Murphy was not the cell block sergeant at the time of intake. He took over as cell block sergeant after Mr. Guilbeault had already been in custody for a number of hours. The booking sheet for Mr. Guilbeault had a reading of 170 at 2:34 AM written at the top. Though he had no specific recollection of Mr. Guilbeault and although he was not the intake officer, Sergeant Murphy offered that the release time for Mr. Guilbeault was likely based on the subtraction process typically employed in the cell block, as the readings of 170 at the time of the last test and Mr. Guilbeault's time of release at 10:30 a.m. coincided with a 15 mg/alcohol per hour subtraction.

Accused's Testimony — Nathan Guilbeault

[27] Nathan Guilbeault testified on the voir dire for the Charter application. Mr. Guilbeault was 21 years of age at the time of his arrest, and worked as a cook in a restaurant. He testified that after being processed at the police station, he was taken by Constable McCabe to the lawyer list posted on a wall of the cell block and was asked by Constable McCabe if he wished to speak with counsel. He indicated that he wished to speak with "X-Copper", but was told by the officer that X-Copper wasn't on the list, that they only dealt with speeding tickets and that he should probably choose somebody else. Mr. Guilbeault insisted that he wanted to call X-Copper, and asked to charge his phone (which had a drained battery) so he could look them up on the internet. This request was denied, and he told the officers that the specific lawyer's name at X-Copper was "Anna" and that he thought the last name started with a "B". He ran his finger down the list on the wall, which was in a strange order, but her name wasn't there. The officer said he should choose someone from the list, and after discussing it for a while and exhausting his options of reaching X-Copper, he just picked a lawyer off the list.

[28] Mr. Guilbeault agreed that when asked by Constable McCabe following his call with Mr. Murray whether he was satisfied with the legal advice he had received, that he confirmed that he was. He also said that he did not complain about his choice of lawyer once he was in the room with the breath technician as he felt it was useless by that point, as he had already been through that part of the process. He further agreed that he asked Constable Grison during the breath sample procedure if he could charge his phone so he could write down Mr. Murray's name to contact him the next day. He did not have a charger with him when brought into the station. He agreed that he did not make any mention during the breath sample procedure of X-Copper or a lawyer named "Anna B".

[29] Mr. Guilbeault testified that after providing samples of his breath, no one asked him if he had a responsible person who could come pick him up. At one point a special constable came over to him and told him that Louise Lafleur, who was his aunt, had called to see if he was in the cell block. The special constable told him that he could not confirm or deny to his aunt that he was there. When the special constable came back, Mr. Guilbeault asked whether his aunt could pick him up, but the reply was that he was an adult and it didn't work like that. Mr. Guilbeault said he asked a different officer if he could call his work because he and his boss were supposed to be doing something that morning, and he could come pick him up. However, when the officer asked where he worked, he did not want to tell the officer where he worked because it would be embarrassing for him if someone other than his boss answered the phone and found out he was in jail.

[30] Mr. Guilbeault also testified that his sister would have been able to pick him up in middle of the night and that he could have reached her on the home line. Eventually when he was released, he went to a diner down the street from the police station, charged his phone and called his boss who came and picked him up.

Video Evidence

[31] Exhibit No. 5 in these proceedings is a video clip showing Mr. Guilbeault standing in the cell block with Constable McCabe. The video has no sound. It shows Mr. Guilbeault and Constable McCabe in apparent conversation while looking over the lawyer list. After a couple of minutes, Constable Grison joins them, and the conversation continues. All three can be seen gesturing towards and pointing at the list from time to time. Each of them can be seen at some point to be running their finger down both sides of the list.

[32] Exhibit No. 8 in these proceedings is a video recording of the breath testing procedure administered to Mr. Guilbeault at the police station. In the video Mr. Guilbeault is asked by Constable McCabe whether he is satisfied with his call to counsel, to which Mr. Guilbeault replies in the affirmative. He asks Constable Grison at one point if he can charge his phone so that he can input Mr. Murray's contact information into it. He also asks the officer to write it out, which she declines to do. At the conclusion of the breath testing procedure Constable McCabe returns to the testing room, and starts to serve him with a number of documents. Constable McCabe then advises Mr. Guilbeault at the conclusion of the video of the next steps in the process, and tells him "you'll go into a cell until the sergeant feels you are sober enough to release". Mr. Guilbeault says "Ok".

Timeline

[33] The following is a summary of the relevant timeline in this case:

• 12:22 AM — time of arrival of Constable McCabe on scene at Mitch Owens Road
• 12:27 AM — time of arrival of Constable Gauthier on scene at Mitch Owens Road
• 12:35 AM — time of ASD demand
• 12:41 AM — Mr. Guilbeault registers a "fail" on the device
• 12:41 AM – 12:46 AM — rights to counsel, cautions and breath sample demand
• 12:55 AM — departure from scene
• 1:21 AM — arrival at cell block
• 1:40 AM — first call to counsel
• 1:42 AM — second call to counsel
• 1:52 AM — grounds to breath technician
• 2:04 AM — custody to breath technician
• 2:11 AM — 1st intoxilyzer test
• 2:34 AM — 2nd intoxilyzer test
• 2:46 AM — custody back to Constable McCabe from Constable Grison
• 3:04 AM — documents served on Mr. Guilbeault
• 10:25 AM — promise to appear signed and Mr. Guilbeault released from cell block

Analysis

Issue #1 — Was the ASD Test Administered Forthwith?

[34] The Accused argues that there is a delay of at least eight minutes, and quite likely more, between the time the officer formed a reasonable suspicion that Mr. Guilbeault had alcohol in his body and the demand itself.

[35] It is well settled that "forthwith" connotes an element of immediacy, both in terms of the demand and compliance. It is this factor which allows the regime in section 254(2) of the Criminal Code to pass constitutional muster, otherwise the detention would be illegal, the search unreasonable and the failure to give rights to counsel without delay a further violation of Charter rights. Indeed, as stated in R. v. Quansah, 2012 ONCA 123:

[22] So long as the demand is validly made pursuant to section 254(2) - that is, so long as it is made "forthwith"- for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her rights to counsel.

[36] To determine whether a demand under section 254(2) has been made forthwith, the Court of Appeal gave the following guidance in Quansah at paras. 45-50 as to the factors to be considered:

• The analysis of the immediacy requirement must be done contextually;
• The immediacy requirement commences at the stage of reasonable suspicion;
• Though in unusual circumstances a more flexible interpretation may be given, the time must be no more than is reasonably necessary to enable the officer to discharge his or her duty;
• "Reasonably necessary" may arise where a delay is occasioned because the ASD is not immediately available, to ensure an accurate result, or due to articulated and legitimate safety concerns; and
• Whether police could realistically have fulfilled their obligation to implement the detainee's section 10(b) rights before requiring the sample.

[37] In the present case, Constable McCabe's evidence was clear that he formed his reasonable suspicion before placing Mr. Guilbeault in the rear of his cruiser. He had arrived on scene at 12:22 AM to find the black Mazda in a ditch, with Mr. Guilbeault walking out of the ditch from the driver's side door of the Mazda. Mr. Guilbeault was the only person in the area in question, and he immediately engaged Mr. Guilbeault in conversation. Constable McCabe had been investigating an impaired driving call, and his observations of Mr. Guilbeault's unsteadiness on his feet, glassy eyes, and odour of alcohol on his breath combined to give him the reasonable suspicion that Mr. Guilbeault had alcohol in his body. Constable McCabe confirmed this to be the case this in cross-examination by Defence counsel.

[38] Constable McCabe was unable to recall the time at which he placed Mr. Guilbeault in the back of his cruiser. Constable Gauthier however testified that by the time she arrived on scene at 12:27 AM, both Mr. Guilbeault and Constable McCabe were already seated inside Constable McCabe's cruiser. Constable McCabe testified that he made the demand the approved screening device demand at 12:35 AM. I conclude from the evidence of Constable Gauthier, which I accept, that at least eight minutes passed between the time Constable McCabe formed the suspicion, and the time that he made the demand.

[39] As noted in Quansah, the immediacy requirement commences at the stage the reasonable suspicion is formed. After Constable McCabe placed Mr. Guilbeault in the rear of his cruiser, he then engaged him in some further conversation, obtained his driver's license, and ran his name in the onboard computer. Constable McCabe was unable to provide any explanation for why the demand was not made until 12:35 AM. There were no unusual circumstances here which would require a more flexible interpretation to be given to the word "forthwith" in the circumstances of this case. There were no safety concerns that Constable McCabe needed to address, there were no issues with respect to the obtaining or functioning of the ASD, and no reason not to make the demand immediately upon placing Mr. Guilbeault in the rear of the cruiser.

[40] Crown counsel argues that in the circumstances of this case, even had the officer made the demand immediately upon forming the suspicion, there was no realistic opportunity for Mr. Guilbeault to consult counsel in any event. The Crown argues that Mr. Guilbeault could not have been afforded his right to counsel in private given the cold weather conditions, and that necessarily Constable McCabe and Mr. Guilbeault were required to remain in Constable McCabe's cruiser to stay warm. Counsel for Mr. Guilbeault counters that Constable Gauthier was quickly on scene, and that a call to counsel could have been facilitated by placing Mr. Guilbeault with his cell phone in the rear of Constable Gauthier's cruiser.

[41] In the circumstances of this case, I am unable to conclusively resolve the question of whether implementation of the right to consult counsel could have been meaningfully facilitated at the roadside. To some degree, this is always an exercise involving some speculation. I note however that at a minimum, there was more than enough time for Mr. Guilbeault to have been advised of his right to consult a lawyer, and of the corresponding duty on the part of the police officer to hold off on further questioning of Mr. Guilbeault until he had an opportunity to do so.

[42] As noted in paras. 35 through 44 in Quansah, the opportunity to consult counsel is one, but not the only, criterion on which to assess whether the forthwith requirement has been observed. The inability of an accused person to establish that he or she had a realistic opportunity to consult with counsel during the impugned time period does not preclude a finding that the demand was not made forthwith.

[43] In the circumstances of this case, I find that Constable McCabe had ample opportunity to make the ASD demand immediately upon placing Mr. Guilbeault in the rear of the cruiser, and that he failed to do so. I conclude that this represented a delay of at least eight minutes between the forming the suspicion and the making of the demand, and consequently that the demand was not made "forthwith".

Issue #2 — Was Mr. Guilbeault Deprived of His Right to Counsel of Choice?

[44] The Accused argues that he was deprived of his counsel of choice by being effectively forced to choose a lawyer from the list of lawyers provided at the Ottawa police station. He asserts that he asked for and was denied the opportunity to speak with a lawyer from X-Copper Legal Services, and in particular "Anna B", who is Ms. Brylewski, his counsel in this case.

[45] Detained persons who are in a position of legal jeopardy and who are deprived of their liberty by virtue of being under the control of state actors are vulnerable to the exercise of state power: R. v. William, 2010 SCC 37 at para. 28. A detained person has a right to consult with the counsel of his or her choice, and the police are required to facilitate that contact. A detainee must be given a reasonable opportunity to receive legal advice from someone they know and trust. It is only if the lawyer chosen cannot be available within a reasonable time that the detainee should be expected to exercise the right to counsel by calling another lawyer: R. v. Bartle, [1994] 3 S.C.R. 173 at para. 18; R. v. Ross, [1989] 1 S.C.R. 3.

[46] Where a request has been made to speak with a specific lawyer, there is an obligation to facilitate contact with that lawyer, whether or not the detainee has the lawyer's number available. The jurisprudence in this area establishes that the obligation to facilitate contact includes providing access to a detainee's cell phone to obtain the number of a lawyer and permitting a phone call to a friend or relative to obtain the name of counsel of choice: see R. v. Kumarsamy, [2002] O.J. No. 303 (S.C.J.); R. v. Maciel, 2016 ONCJ 563; R. v. Panjwani, [2017] O.J. No. 4062 (O.C.J.); R. v. Rossi, [2017] O.J. No. 3494 (O.C.J.).

[47] In this case, Mr. Guilbeault asserts that he clearly stated his desire to speak with X-Copper Legal Services, and in particular a lawyer by the name of "Anna B". His evidence was that he asked to speak with X-Copper, and that Constable McCabe told him that the number for X-Copper was not on the lawyer list. Constable McCabe communicated to him his belief that X-Copper only dealt with speeding tickets, and that Mr. Guilbeault should probably choose someone else. Mr. Guilbeault asked to charge his phone so he could look it up himself, but was denied this opportunity. Mr. Guilbeault told Constable McCabe that there was a lawyer named Anna whose last name he thought started with a "B", went back to the list and ran his finger down the list but was unable to find anyone whose name matched that description.

[48] Though he did not have a distinct recollection of this being the case, Constable McCabe admitted that there was a real possibility that Mr. Guilbeault had asked to call X-Copper. He agreed that it was his understanding that X-Copper only did traffic ticket work and that they weren't lawyers, and further that he would have encouraged someone asking for X-Copper to speak to a real criminal defence lawyer instead and to follow up later with X-Copper if they wished. I find this evidence supports Mr. Guilbeault's assertions.

[49] The video of the exchange that takes place between Mr. Guilbeault and Constable McCabe in front of the lawyer list, where they are soon after joined by Constable Grison, also corroborates Mr. Guilbeault's version of events. Mr. Guilbeault can be seen on a number of occasions in the video raise his hands from his sides, palm up, after lengthy discussion with Constable McCabe. Constable Grison can be seen being invited in to join the discussion taking place in front of the lawyer list. There is a further prolonged exchange between the three, and Mr. Guilbeault and both officers can be seen poring over the list. It appears that all three are looking for a particular name or names on the list, as all three take the opportunity at some point to run their finger down the list of lawyers.

[50] What is seen on the video is consistent with the version of events testified to by Mr. Guilbeault, and admitted as possibly true by Constable McCabe. Although Constable Grison testified that she would remember if Mr. Guilbeault had asked to speak with X-Copper, it must be recalled that she had made no duty book notes of any involvement in the process of locating counsel of choice at the station, and indeed had no specific recollection of having been so involved until the video from the cell block was put to her in cross-examination. Accordingly, I can attribute little weight to her evidence.

[51] Crown counsel urges me to infer from the fact that Mr. Guilbeault did not tell Constable McCabe that he was dissatisfied with the advice he received, and that Mr. Guilbeault did not raise his desire to speak with X-Copper with Constable Grison during the breath testing procedure, that in fact Mr. Guilbeault made no request to speak with X-Copper at any time. I accept Mr. Guilbeault's evidence that it seemed to him to be a pointless exercise to do so given what had just occurred in front of the lawyer list. It is difficult to imagine how he could have come to any other conclusion.

[52] In the circumstances, I find that Mr. Guilbeault did in fact ask to speak to X-Copper and a lawyer named "Anna". I am satisfied that he asked to charge his phone to search himself, but was not permitted to do so. On this point I observe that it is not the responsibility of the Ottawa Police to find a charger that might work with a particular detainee's phone, and I take nothing from the officers' refusal to allow Mr. Guilbeault to access a cell phone that was not operational. However, one or both of Constable McCabe and Constable Grison were duty bound to make reasonable efforts at locating the number for X-Copper and the lawyer, Anna B, that Mr. Guilbeault asserted worked there. The Ottawa Police Service controlled access to the phones and access to a list of lawyers. Constable McCabe was not entitled to re-direct Mr. Guilbeault away from his counsel of choice and instead to counsel on the list provided. A simple effort on his part to locate the number for X-Copper, through consultation with the special constables on duty and the use of a simple internet search engine, was required in the circumstances. In today's day and age, such efforts are hardly labour intensive and are reasonable expectations to have of officers who control access to legal counsel. This has been the finding of a number of my colleagues in the Ontario Court of Justice, and the reasons of Stribopoulos, J. in Maciel, supra, are particularly instructive in this regard.

[53] In the result, I find that Mr. Guilbeault's right to consult counsel of his choice was violated in these circumstances.

Issue #3 — Was There an "Over-Holding" of Mr. Guilbeault After He Provided His Breath Samples?

[54] Mr. Guilbeault argues that after providing his breath samples at 2:34 in the morning, he was arbitrarily detained for a number of hours until his release at 10:30 in the morning. He argues that no individualized assessment was undertaken in his case to ascertain his suitability for release, beyond a simple calculation of his likely blood alcohol concentration, and further that no steps were taken to see if a responsible person was available to pick him up from the police station at any time prior to his release.

[55] Section 498 of the Criminal Code sets out the circumstances in which a person who has been arrested without warrant can be detained by a peace officer or an officer in charge. Such a person is to be released as soon as possible unless the officer, on reasonable grounds, and having regard to all of the circumstances, determines that the person's detention is necessary in the public interest. "All the circumstances" includes the need to establish the identity of the person, secure or preserve evidence of or relating to the offence, preventing the continuation or repetition of the offence or another offence, or ensuring the safety and security of any victim of or witness to the offence: Section 498(1.1) Criminal Code.

[56] What is meant by "all the circumstances" in cases where persons have been charged with an "over 80" offence has been the subject of judicial consideration. In R. v. Price, 2010 ONSC 1898, Justice Durno of the Ontario Superior Court of Justice, sitting as an appeal court, articulated a non-exhaustive list of the considerations at play for an officer in charge. These considerations include:

• the accused's blood alcohol level;
• whether the accused was charged with impaired driving;
• his or her level of comprehension;
• the administrative license suspension;
• the fact that the accused's vehicle would be impounded;
• whether there was a responsible person available to pick up the accused;
• whether the accused had a criminal record, and if so, its contents;
• whether the accused had outstanding charges;
• the accused's demeanour;
• the poor judgment that the accused would have exhibited by drinking and driving.

[57] As noted by Durno, J. in Price, "it is only after an objective analysis of these factors and any other deemed relevant, that the officer in charge can make an informed decision on release. Being guided only by the blood-alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood-alcohol level should be given primary weight in the context of all the considerations, a breach may not be established": Price, supra at para. 93.

[58] While it may be appropriate to accord "primary weight" to the blood alcohol level of the accused as a key factor in determining whether an accused should be required to temporarily remain in custody, to permit the blood alcohol concentration of the accused to be the sole determining factor in this assessment results in too narrow a focus: R. v. Waisanen, 2015 ONSC 5823 at para. 23.

[59] In this case, Mr. Guilbeault testified that he raised the issue of his continuing detention after being booked for the impaired driving and over 80 charges with cell block staff on at least two occasions. One conversation involved a special constable who referenced an inquiry reportedly made by Mr. Guilbeault's aunt into whether Mr. Guilbeault was being held in the cell block. The other involved a different special constable of whom Mr. Guilbeault made the request that he be permitted to call his employer for a ride. He did not however want the officer calling the employer himself, in case someone from his work other than his boss answered the phone. Mr. Guilbeault testified that had he been offered the opportunity, he would have called his sister, aunt or employer to pick him up from the police station.

[60] Although I have some reservations about Mr. Guilbeault's evidence on this point, given the absence of corroborating evidence from his aunt, employer or sister, I am not in a position to reject his evidence outright. His evidence was largely unshaken in cross-examination, and Mr. Guilbeault's explanation for not pushing the issue with respect to the call to the employer is grounded in logic and common sense. One can see how a person in his position might wish to be circumspect about fellow employees learning of his circumstances. Moreover, I note that Constable Gauthier attended at Mr. Guilbeault's residence in the early morning hours of January 31 to serve impoundment documents on Mr. Guilbeault's father. The father was not home, so she left them instead with Mr. Guilbeault's sister. Mr. Guilbeault's assertion that, given the opportunity, he would have been able to reach his sister at their home number for a ride home from the station therefore has some support elsewhere in the evidence.

[61] Given his evidence and given further the 8 hours he spent in police custody following the provision of the second breath sample, Mr. Guilbeault's evidence raises a prima facie case with respect to over-long detention that calls for some answer from the Crown.

[62] The most germane evidence on the over-holding issue comes from the Crown case itself. Constable McCabe was clear in his evidence that once he served Mr. Guilbeault's documents, his duties in respect of the matter ended. It did not fall into the scope of his duties to make any determination as to the timing of Mr. Guilbeault's release, and he did not turn his mind to asking Mr. Guilbeault whether there was a responsible person who might be able to pick him up. Constable McCabe's evidence on this point makes it plain that he was not asked by whatever cell block sergeant was on duty at 3:00 AM to inquire into the existence of a responsible person or to otherwise assess options for an earlier release of Mr. Guilbeault.

[63] Moreover, Constable McCabe communicated to Mr. Guilbeault at the conclusion of the breath test video that the timing of Mr. Guilbeault's release rested in the hands of the cell block sergeant, who would make the determination as to when Mr. Guilbeault was sober enough to release. No other option beyond waiting in custody until he was sober was presented to Mr. Guilbeault. Constable McCabe's evidence is completely at odds with a finding that the kind of assessment contemplated by section 498 of the Criminal Code and the Price decision took place in respect of Mr. Guilbeault in this case.

[64] Sergeant Murphy was able to provide some evidence as to the policy in place at the Ottawa Police Station in respect of persons charged with impaired driving and over 80 offences, and of his own practice that he follows when he is the cell block sergeant on duty. Unfortunately, Sergeant Murphy was not the cell block sergeant on duty in at the time that Mr. Guilbeault was lodged in cells. As such, Sergeant Murphy was unable to testify to what if any assessment was made in respect of Mr. Guilbeault regarding the timing of his release after he was lodged in cells following his second sample.

[65] Sergeant Murphy had no specific recollection of Mr. Guilbeault's case and no notes of any assessment he himself did in respect of Mr. Guilbeault's time of release when he came on duty at 6:45 p.m. At best, he could testify that the time of Mr. Guilbeault's release appeared to dovetail with the practice in place in the cell block at the time of subtracting each hour 15 mg of alcohol per 100 ml of blood from the reading listed on the booking sheet. Though his practice was to review each booking sheet with the cell block sergeant he was taking over from, Sergeant Murphy would not have undertaken a re-assessment of the time of release that had been determined by the cell block sergeant at the time the detainee was lodged in cells. He could give no evidence as to what assessment of Mr. Guilbeault was undertaken in this case beyond the calculation that would have been based on the numbers at the top of the booking sheet.

[66] I note at this juncture that, although the booking sheet for Mr. Guilbeault was filed as an exhibit in this case, the booking sheet itself contains no evidence of any assessment done by the cell block sergeant beyond simply noting the time of the last reading and the reading itself.

[67] The only conclusion I can arrive at considering the evidence tendered on this issue, is that the sole circumstance considered by the officers in charge of Mr. Guilbeault's detention were the blood alcohol readings taken at 2:34 AM. Constable McCabe paid no heed whatsoever to the timing of Mr. Guilbeault's release, given that to his understanding it was not part of his duties. The officer who actually booked Mr. Guilbeault and was responsible for determining whether and when he would be released was neither identified during the trial nor called as a witness. It is the officer in charge of the cell block who is responsible for considering the timing of release under s. 498 of the Code, and according to Sergeant Murphy, for leading the inquiry into whether a responsible person might be available for the accused to be released to.

[68] Many of the relevant factors in this case point towards a scenario where consideration ought to have been given to releasing Mr. Guilbeault to a responsible person. Constable McCabe confirmed that Mr. Guilbeault's car had been impounded, his licence suspended, and he had no prior criminal record. Mr. Guilbeault's sister had been notified of the impoundment of the vehicle. Mr. Guilbeault was described as polite and cooperative throughout his dealings with the police, and he was displaying no obvious physical indicia of impairment while at the station. As demonstrated in the videos filed with the court, he appeared to have no difficulties communicating with the officers or with standing, walking or maintaining his balance while selecting counsel from the lawyer list and undergoing the breath sample procedure at the station.

[69] As noted in Price, supra and Waisanen, supra, relying solely on the accused's blood alcohol level in determining the timing of release results in too narrow of a focus, and amounts to an arbitrary detention within the meaning of section 9 of the Charter. As such I find that Mr. Guilbeault's right to be free from arbitrary detention was breached in this case.

Issue #4 — Should the Readings Be Excluded Under Section 24(2) of the Charter?

[70] Mr. Guilbeault seeks exclusion of the breath test readings as a remedy for the Charter breaches that occurred in this case. He takes the position that separately or cumulatively, the breaches in this case are such that only exclusion of evidence will maintain public confidence in the administration of justice. The Crown on the other hand argues that a balancing of the three Grant criteria favours inclusion of the evidence, relying on the Court of Appeal's recent decision in R. v. Jennings, 2018 ONCA 260.

[71] Pursuant to s. 24(2) of the Charter, once a breach has been found, 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 burden of proof is on the applicant on a balance of probabilities.

[72] R. v. Grant, [2009] S.C.R. 353, outlines the test for the exclusion of evidence under section 24(2) of the Charter. A court must assess and balance the effect of admitting the evidence on society's confidence in the administration of justice having regard to the following criteria:

1. The seriousness of the Charter infringing state conduct;
2. The impact of the breach on the Charter protected interests of the accused; and
3. Society's interests in the adjudication of the case on its merits.

[73] In the present case, the Charter breaches relating to the failure to make the demand "forthwith" and the breach of the right to counsel of choice precede the discovery of evidence in this case, namely the breath samples obtained from Mr. Guilbeault. The Charter breach that results in this case from the over-holding of Mr. Guilbeault however follows the discovery of the evidence at issue. This does not mean that a Charter breach occurring after the discovery of evidence cannot meet the s. 24(2) threshold for excluding evidence. As outlined by Justice Laskin of the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389, the following considerations should guide a court's approach to the "obtained in a manner" requirement in section 24(2):

• The approach should be generous, consistent with the purpose of section 24(2);
• The court should consider the entire "chain of events" between the accused and the police;
• The requirement may be met or the evidence and the Charter breach are part of the same transaction or course of conduct;
• Causal, temporal, or contextual, or any combination of these connections;
• The connection however cannot be too tenuous or too remote.

[74] Turning to whether these considerations are met in Mr. Guilbeault's case, there is no question that the "forthwith" and right to counsel breaches are sufficiently connected casually, temporally and contextually to the evidence gathered. With respect to the over-holding of Mr. Guilbeault after he provided his two breath samples, I conclude that the evidence gathered and the Charter breach were part of the same transaction or course of conduct. This is a breach that above all concerns Mr. Guilbeault's detention. This detention ran continuously from the time Mr. Guilbeault entered Constable McCabe's cruiser shortly before 12:27 AM, when Constable McCabe formed his reasonable suspicion of alcohol present in the body. It continued from that point on through to shortly after 3:00 AM when Mr. Guilbeault was served his paperwork and lodged in the cells by Constable McCabe following his compelled breath samples at 2:11 and 2:34 AM, respectively. The evidence and the Charter breach were all part of the same transaction.

[75] There also exists a clear contextual connection between the evidence and the section 9 breach. Mr. Guilbeault was brought to the station to obtain blood alcohol concentration readings from the Intoxilyzer machine. Those very same readings were marked on a booking sheet as a means of assisting in the determination of when Mr. Guilbeault ought to be released. The readings themselves were the sole determinants in the assessment of how long Mr. Guilbeault would be held in custody after being lodged in cells on impaired driving and over 80 offences. There existed a strong contextual connection between the evidence gathered in this case and the breach emanating from his overlong detention.

[76] Lastly, there exists a temporal connection between the evidence gathered and the breach. Mr. Guilbeault's last sample was provided at 2:34 AM. Custody was then returned to Constable McCabe, who served Mr. Guilbeault with his documents at 3:04 AM. Rather than being released at that point in time, Mr. Guilbeault continued to be held. There is a close temporal connection between the breach and the evidence at issue.

[77] In short, I find that there exist causal, temporal, and contextual connections between evidence at issue and the s. 9 Charter breach in this case. I am guided in arriving at these conclusions by the persuasive reasoning and similar findings of my colleagues Justice Mulligan in R. v. Hall, [2016] O.J. No. 6211; Justice Hawke in R. v. Lorenzo, 2016 ONCJ 634; and Justice Perron in R. v. Rush, 2018 ONCJ 89.

[78] I turn now to a consideration of the three Grant criteria.

I. The Seriousness of the Charter Infringing State Conduct

[79] The officers in charge of the cell block at 474 Elgin Street had a duty to release Mr. Guilbeault after his arrest unless they had reasonable grounds to detain him in accordance with section 498(1.1) of the Criminal Code. This provision of the Criminal Code applies to every person arrested and detained without a warrant. The officer making the decision whether or not to release such a person is required to give due consideration to all of the circumstances.

[80] In this case, on the evidence before me, there was no assessment done of when it would be appropriate to release Mr. Guilbeault besides the application of a single mathematical formula geared towards a rough estimate of sobriety. There was no inquiry conducted as to whether there was a responsible person who could pick him up, nor was Mr. Guilbeault assessed at any other point in time before 10:30 AM to determine whether he might be fit to be released earlier than that. The failure to assess Mr. Guilbeault's fitness for release in accordance with the clearly articulated standards in section 498(1) of the Criminal Code is an unacceptable situation and represents a serious breach.

[81] I note also that although Sergeant Murphy came on shift well into Mr. Guilbeault's detention and was not the cell block sergeant at the time that Mr. Guilbeault was lodged in cells, he failed to keep any duty book notes in which he tracked the execution of his duties vis-à-vis Mr. Guilbeault. Had he tracked his activities in his duty book or elsewhere, it would have been manifestly less likely that Mr. Guilbeault's fitness for release would continue to have gone unassessed. This is the second time in the past month that a cell block sergeant has testified before me to a practice of not keeping notes of the duties they performed with respect to the detainees in their care at central cells of the Ottawa Police Service: see R. v. Benjamin McEwan, Court File No. 16-A13157, decision release date 2018/05/01. This is a disturbing phenomenon.

[82] While the s. 9 violation in relation to the over holding in and of itself may merit the exclusion of evidence in this case, this serious violation is compounded by the fact that there were other meaningful Charter violations that took place in respect of Mr. Guilbeault. As has been noted in a number of cases, multiple breaches of an accused person's Charter rights is a relevant factor engaging a finding of the seriousness under the first branch of the Grant analysis. Where there are multiple breaches, the Charter violation will ordinarily be found to be more serious: R. v. Steele, 2014 ONCJ 583; Lorenzo, supra; R. v. Mann, 2018 ONSC 1703; R. v. McEwan, supra.

[83] In respect of the failure to make the ASD demand forthwith, I remind myself that it is only the immediacy component of both the demand and compliance with the demand that renders the roadside screening procedure constitutional. But for the "forthwith" requirement the detention would be illegal, the search unreasonable and the failure to give rights to counsel without delay a further violation of Charter rights: Quansah, supra; R. v. Woods, [2005] 2 S.C.R. 254 at paras. 15 and 29. The breach occasioned here is not inconsequential.

[84] More serious is the breach of the right to counsel of choice in this case. The Supreme Court of Canada has interpreted the right to retain and instruct counsel as including a concomitant right to consult a lawyer of one's choosing: R. v. Ross, [1989] 1 S.C.R. 3 at 11. Further, "proactive steps are required to turn the right to counsel into access to counsel": R. v. Taylor, [2014] S.C.R. 495 at para. 33 (italics in original). In this case, Constable McCabe not only failed to take reasonable steps to assist Mr. Guilbeault in reaching his counsel of choice, he actively dissuaded him from doing so. The fact that Constable McCabe did so on a mistaken belief of what he thought would be in Mr. Guilbeault's best interests cannot be equated with good faith. The Grant court was careful to note that ignorance of Charter standards must not be rewarded or encouraged, and further that negligence cannot be equated with good faith. Given that the police exercised complete control over the timing, means and manner of Mr. Guilbeault's access to counsel, the failure to take any meaningful steps to facilitate access to counsel of choice represents a serious violation of his rights under s. 10(b) of the Charter.

[85] In this case, the overall seriousness of the Charter-infringing state conduct strongly favours exclusion of the evidence.

II. Impact of the Breach on the Charter Protected Interests of the Accused

[86] I take account of the fact that the arbitrary detention of Mr. Guilbeault in this case extended for 7 ½ hours beyond the service of his documents at 3:04 AM. This is a significant period of time, and speaks not only to the seriousness of the violation but also to the impact of the breach on the Charter protected interests of the accused. At the conclusion of the breath testing procedure, Constable McCabe advised Mr. Guilbeault that he would be placed in a cell until the Sergeant deemed him sober enough to release. Mr. Guilbeault was told nothing about when this might be, or what criteria would be applied by the sergeant in making that determination. He was given no sense of how or when he would be released. The special constables he encountered in the cell block did nothing to alleviate the sense of uncertainty that would inevitably result.

[87] The impact of a loss of liberty in these circumstances, even though it is measured in hours as opposed to days, ought not to be understated. As was noted by Justice Iacobucci in R. v. Hall, 2002 SCC 64, 167 C.C.C. (3d) 449 at 467, "[l]iberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty".

[88] The presumption of innocence is the golden thread that runs through our system of criminal law, and is guaranteed in s. 11(d) of the Charter. In our system of justice, incarceration is imposed as punishment only after a person has been convicted of an offence and sentencing judge has heard submissions as to the appropriate sentence of the circumstances. Cases of "over holding" threaten these basic principles of criminal law. In this case, the over holding of Mr. Guilbeault represented the imposition of punishment before any determination was made as to his ultimate guilt or innocence.

[89] In relation to the "forthwith" violation, I note that the ultimate impact on Mr. Guilbeault's liberty and right to counsel interests were at the lower end of the spectrum of seriousness. It is unclear on the evidence before me that Mr. Guilbeault had a meaningful opportunity to contact and receive direction from counsel in the eight minutes or so between the formation of the suspicion and the making of the demand. I note also that no incriminating statements or other evidence was obtained from Mr. Guilbeault during this time period. Had the officer made the demand when the suspicion was formed, Mr. Guilbeault would have been bound to provide the sample demanded, as he ultimately did.

[90] I recognize in respect of the right to counsel of choice violation that Mr. Guilbeault expressed no dissatisfaction with the legal advice he received, and indeed appeared to follow that advice, relying repeatedly on his right to silence during the question and answer portion of the breath test procedure. He even asked for Mr. Murray's contact information so that he could contact him following his release from custody.

[91] At first blush, one might be tempted to conclude that this lessens the impact on the Charter protected interests of Mr. Guilbeault. However, the detainee who is about to provide breath samples has the right to reasonable access to counsel of his choice, and not just to competent legal advice. Mr. Guilbeault was misinformed by the officer as to whether the lawyer he wished to speak with was in fact a lawyer at all. This represented a denial of counsel of his choice and consequently a breach of both the informational and implementational components of the right to counsel. The result is a serious impact on the protected Charter interest of Mr. Guilbeault.

[92] In the overall circumstances, the s. 9 and s. 10(b) violations in this case had a very real and serious impact on the Charter protected interests of Mr. Guilbeault. This branch of the Grant analysis also favours exclusion of the evidence.

III. Society's Interest in the Adjudication of the Case on Its Merits

[93] The breath readings obtained in this case are reliable evidence, and exclusion of this evidence would lead to a situation where the Crown loses the ability to prove the "over 80" charge. As a result, society's interest in adjudication on the merits favours inclusion of the evidence.

Conclusion Regarding Section 24(2) of the Charter

[94] Having balanced the three Grant factors, I conclude that the Charter breaches that occurred in this case require the exclusion of evidence. The violations, particularly those relating to the over-holding of Mr. Guilbeault and the interference with his right to contact counsel of his choice, are particularly serious violations with real impact on important Charter protected interests. Although this means the exclusion of important evidence to the Crown in this particular case, I must nonetheless give appropriate weight to the need to preserve the public's long-term confidence in the administration of justice. Public confidence in the administration of justice would not be enhanced, and in fact would be harmed, by permitting into evidence the breath samples obtained in this case.

[95] Given that I am excluding from evidence the breath samples obtained in this case, the "over 80" charge before the Court is dismissed.

Issue #5 — Were the Tests Taken as Soon as Practicable?

[96] Given the exclusion of the breath samples in this case and the resulting dismissal of the over 80 charge for the Charter violations occasioned in this case, I do not necessarily need to address this issue. I can however indicate that had I not felt compelled to exclude the breath samples in this case, I would not give effect to Mr. Guilbeault's arguments on this issue. Though the overall time required to obtained the first sample in this case was approaching the two hour statutory limit to do so, there were no periods of delay in this case that were not adequately accounted for. Counsel for Mr. Guilbeault focused in on the time Constable McCabe spent at the scene on Mitch Owens Road as having taken unduly long.

[97] I find that Constable McCabe was able to articulate in full the duties that he was engaged in while on scene. Though he was unable to provide a minute by minute accounting of his activities while on scene, he was able to describe the steps that he took as part of his investigation at each stage of that investigation, including conducting an examination of the vehicle in the ditch and speaking with Constable Gauthier about the investigation while she was on scene. I conclude that he acted reasonably in the circumstances of the case.

Issue #6 — Has the Crown Proven Impairment by Alcohol of the Ability to Operate a Motor Vehicle?

[98] Crown counsel argues that the pattern of driving of the dark coloured sedan at the intersection of Bridge Street and River Road, including the jumping of the island, the crossing into the oncoming lane and the failure to stop at the red light at that intersection, are compelling evidence of impairment of the ability to drive. Counsel asks me to infer that this dark coloured sedan is one and the same with the black Mazda that was found in the ditch along Mitch Owens Road a short time later when Constable McCabe arrived on scene in response to the dispatch reporting an impaired driver proceeding in that direction. Considered in the light of the unexplained accident, and given the unsteadiness on his feet, odour of alcohol on his breath, slightly slurred speed and glassy eyes observed by Constable McCabe at the scene, the totality of the circumstances requires a finding of impairment of the ability to drive a motor vehicle beyond a reasonable doubt.

[99] Counsel for Mr. Guilbeault argues that the Crown has not proved that the vehicle observed at the intersection was the Mazda located in the ditch on Mitch Owens Road. Mr. Good's evidence was clear that there was damage to the car that he was reporting in, including a dragging bumper and broken headlights. Given that Mr. Good lost sight of this vehicle, and given also that the black Mazda being driven by Mr. Guilbeault had no observed damage whatsoever, it would be unsafe to find that the vehicles were the same. Further, there were explanations for the accident beyond impairment by alcohol. Constable Gauthier's evidence was that the roads were dry with icy patches, and it is well known that cars go into ditches for reasons other than impairment, such as distracted driving. The videos taken at the station display no issues on Mr. Guilbeault's part with balance, fine motor control, speech or comprehension. The Crown has not met the standard of proof of impairment beyond reasonable doubt in the circumstances.

[100] Before convicting an accused person of impaired driving, a Trial Judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or drug. If the evidence of impairment establishes beyond a reasonable doubt any degree of impairment of the ability of drive, ranging from slight to great, then the offence has been made out. This has been the law since our Court of Appeal's decision in R. v. Stellato, 12 O.R. (3d) 90. Impairment is an issue of fact which I must decide on the evidence. If the evidence of impairment by alcohol of the ability to drive in this case is so frail as to leave me with a reasonable doubt, the accused must be acquitted.

[101] Counsel for both the Crown and Defence have advanced able and persuasive arguments in support of their respective positions. On the question of whether the Crown has proven that the vehicle observed by Mr. Good at the intersection of Bridge Street and River Road was the same as the black Mazda located in the ditch alongside Mr. Guilbeault, I strongly suspect that the two vehicles are in fact one in the same. It would seem to me an unlikely coincidence that a dark coloured sedan being driven in the out-of-control manner described by Mr. Good, last seen traveling eastbound on Mitch Owens Road, would turn out to be a different dark coloured sedan than that discovered seven or so minutes later in a ditch roughly 150 to 200 metres east of that same intersection. It is quite likely that the vehicles are one and the same, and I am certainly tempted to draw the inference suggested by the Crown.

[102] However, the damage described by Mr. Good, and the absence of corresponding damage to the black Mazda 3, causes me to be less than sure that the vehicles are one and the same. Given that Mr. Good was unable to ascertain the make, model or colour of the sedan, and that he was further unable to make any observations of the driver or the number of occupants of the vehicle, I am left in a state where I am unsure whether there is a match between the two vehicles described in this case. Despite the seeming unlikelihood of coincidence, given all of the circumstances, it would be unsafe for me to conclude that they are.

[103] This leaves the question of whether the remaining evidence satisfies the Stellato standard of proof beyond a reasonable doubt of impairment of Mr. Guilbeault's ability to operate a motor vehicle. In assessing this evidence, I must remain mindful that I am not to assess the evidence of alleged impairment on a piecemeal basis, but rather am to consider the various indicia of impairment in its totality. Though each "sign" of impairment might itself have a competing inference – for example, glassy eyes could be as attributable to exposure to cold temperatures as it could to alcohol consumption, and the odour of alcohol may signal consumption and not necessarily impairment – I am to look at the "whole picture" to ascertain whether the evidence of impairment satisfies me beyond a reasonable doubt.

[104] In this case, I have evidence of an unexplained accident that occurred on winter roads that were mostly dry but which did have patches of ice. The Mazda 3 was located in a snowy ditch, and it is in this context that Constable McCabe made his observations of unsteadiness on Mr. Guilbeault's feet. When asked in chief to describe the unsteadiness on his feet, he explained that Mr. Guilbeault was "not walking in a manner consistent with a person who was completely sober", and was "maybe slow, maybe unsteady a bit, maybe wobbling from side to side, taking into account also that there was snow on the ground". Given this language, the officer's assertion of "unsteadiness" on the feet is not one that I can place a great deal of confidence in.

[105] Constable McCabe described Mr. Guilbeault's speech as being "slightly slurred" and "slightly slow" speech, and also noted the odour of alcohol on his breath. He had never spoken with Mr. Guilbeault before this day and was unfamiliar with his normal manner of speech. Even when taken in the context of the accident, the slight odour of alcohol, slightly slurred and slow speech and the observations of slight "unsteadiness" made by Constable McCabe, do not amount in its totality to evidence beyond a reasonable doubt of impairment of the ability to operate a motor vehicle. Indeed, until the "fail" was registered on the roadside screening device, Constable McCabe himself felt he did not have reasonable and probable grounds to arrest Mr. Guilbeault for an impaired driving offence.

[106] In these circumstances it would be manifestly unsafe for me to conclude proof of an impaired ability to operate a motor vehicle beyond a reasonable doubt. As such, I must acquit on the count of having care and control of a motor vehicle while Mr. Guilbeault's ability to operate a motor vehicle was impaired by alcohol.

Released: June 6, 2018

Signed: Justice Trevor A. Brown