Ontario Court of Justice

Date: May 19, 2022 Court File No.: Central East Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NEESHARD MOHAMMED

Before: Justice F. Javed Heard on: March 18, May 3, 2022 Reasons on Application and Trial released: May 19, 2022

Counsel: M. Fabre, for the Crown J. East, for Mr. Mohammed

F. JAVED J.:

A. Introduction

[1] Neeshard Mohammed was tried before me for the offence of Over 80 mgs contrary to s.320.14(1)(b) of the Criminal Code (“Code”).

[2] On July 23, 2020, Mr. Mohammed was investigated by Police Constable Mckenzie Westcott (“PC Westcott”) of the Durham Regional Police Service (“DRPS”) for a sobriety check while operating a motor vehicle. Mr. Mohammed failed an approved screening device (ASD) test and subsequently provided two samples of his breath which exceeded the legal limit.

[3] Mr. Mohammed argued PC Westcott violated his rights under the Charter of Rights and Freedoms (“Charter”) and seeks an order excluding the evidence of his breath samples under s.24(2) of the Charter. In particular, he raised the following Charter complaints in his Form 1 Notice of Application:

(i) PC Wescott failed to comply with the immediacy or forthwith requirement in s.320.27 of the Code resulting in breaches of ss. 8, 9 and 10(b) of the Charter;

(ii) PC Westcott didn’t properly inform Mr. Mohammed the reason for his detention violating s.10(a) of the Charter; and

(ii) PC Westcott violated Mr. Mohammed’s s.10(b) Charter right to counsel by:

a. failing to ensure Mr. Mohammed properly understood his s.10(b) Charter right to counsel both at the roadside and in the breath room; and

b. failing to ensure Mr. Mohammed lawfully waived his s.10(b) Charter right to counsel before proceeding with the investigation.

[4] At the end of the evidence, Mr. Mohammed abandoned his s.10(a) Charter complaint but pursued the immediacy and right to counsel arguments.

[5] The Crown says PC Westcott did not violate Mr. Mohammed’s Charter rights in any manner but even if she did, it was done inadvertently and in good faith and Mr. Mohammed has not met his onus on a balance of probabilities to be awarded a remedy under s.24(2). The Crown says the court should admit the evidence of his breath samples and find him guilty.

[6] The Crown’s case consisted of the evidence of PC Westcott and PC Toby Seebaly, a Qualified Breath Technician (QBT), also of the DRPS. Both officers testified in person. The Crown tendered portions of the parade video as exhibit 1, a DVD of the breath room as exhibit 2 with an accompanying certified transcript as exhibit 2b and a copy of a certificate of a qualified technician as exhibit 3 – subject to the Charter ruling.

[7] The parties agreed to blend the evidence on the Charter and trial issues. Mr. Mohammed did not testify on either the Charter or trial issues.

[8] The parties reasonably agree that the resolution of the prosecution turns on the Charter arguments. That is, if the evidence of the breath samples (exhibit 3) is admitted, it would be sufficient to prove the Over 80 offence, but if the evidence is excluded, the prosecution would fail.

[9] I will start with some background facts including my findings on the timing of the events before turning to the Charter issues.

B. The Background Facts

[9] On July 23, 2020, at approximately 2:17 a.m. PC Westcott was on duty operating a marked police cruiser and patrolling the roads of Ajax and Pickering. At the time of this matter, she had been involved in about 10-20 drinking and driving investigations.

[10] PC Westcott was travelling northbound on Harwood Ave. near Bayly St. when she observed a black motor vehicle (a Mitsibushi Lancer), later identified as the vehicle driven by Mr. Mohammed, which was driving erratically. She testified the vehicle was unable to maintain a direct line of travel. There were some puddles on the road, but it was not raining and there were no other road hazards. She continued to observe the vehicle until it came to stop to turn left on Bayly St.

[11] When the traffic light turned green, Mr. Mohammed’s vehicle made a left turn and she followed behind. It was traveling about 40km/h in a 60km/h zone, but then increased its speed to 70km/hour. It continued to have inconsistent speeds. She measured his speed by pacing him and followed behind.

[12] Both Mr. Mohammed and PC Westcott stopped their vehicles at Westney Rd. and Bayly St. at a red light. PC Westcott decided to initiate a traffic stop to determine his sobriety suspecting he might be impaired. She activated her emergency lights for this purpose. Mr. Mohammed takes no issue with the basis for the traffic stop which I find was lawful pursuant to the Highway Traffic Act (HTA).

[13] At 2:17 am Mr. Mohammed pulled over to the side of the road without issue. PC Westcott exited her cruiser and approached the driver side door. Mr. Mohammed was the sole occupant. She told Mr. Mohammed the reason for the traffic stop, premised on her observations of his vehicle which included his inconsistent speed and that she was trying to determine his sobriety. She then made a demand for his driving documents. He was able to surrender his documents without issue. She asked Mr. Mohammed if he had consumed any alcohol. Mr. Mohammed admitted to having a “couple of drinks”. She asked him where he was coming from and where he was going - which she often asks to get some insight into the driver and the situation.

[14] At 2:19 am, PC Westcott said her suspicion was raised that Mr. Mohammed was operating a motor vehicle while impaired by alcohol. As a result, she read him an Approved Screening Device (ASD) demand from her notebook. I am satisfied with the content of this demand. Mr. Mohammed acknowledged understanding the ASD demand by stating “Yes [he understands]”. PC Westcott testified she didn’t have an ASD on her as not all cruisers are equipped with ASD’s.

[15] At 2:20 am, PC Westcott went over the police radio and asked dispatch to have an officer bring her an ASD to her traffic stop. She learned PC Davis would attend with an ASD but couldn’t recall if she spoke with PC Davis or whether she learned exactly when he would arrive as she didn’t make note of it. She testified if there was going to be a delay in the ASD’s arrival, she would usually be told this information and because she wasn’t on this occasion, she assumed there would be no delay and it would arrive imminently.

[16] PC Westcott testified she told Mr. Mohammed an ASD was requested and was on its way. Mr. Mohammed was permitted to wait in his car while she returned to her cruiser to conduct a license query to ensure he was a licensed driver and to obtain other relevant information.

[17] At 2:24 am, PC Davis of the DRPS arrived with an ASD identified as a Drager Alcotest 6810. PC Westcott tested the ASD and determined it was in working order. She powered it on and saw a sticker which displays information confirming it was calibrated on July 5, 2020 by PC Barnette. She learned that an accuracy check was done on July 19, 2020, by PC Fong. She testified the ASD measures if there’s any alcohol in one’s blood and if so, the level of alcohol in one’s blood. Finally, she did a self-test registering a reading of 0 mgs of alcohol as she had not consumed alcohol. She believed the ASD was in working order. The defence did not challenge the reliability of the ASD.

[18] At 2:26 am, PC Westcott explained the ASD to Mr. Mohammed who indicated he understood. Mr. Mohammed registered a FAIL. As a result, she formed reasonable and probable grounds that Mr. Mohammed was operating a conveyance while his blood alcohol exceeded 80mgs of alcohol in 100mls of blood.

[19] At 2:27 am, Mr. Mohammed was arrested for the offence of impaired operation of a conveyance and handcuffed to the rear.

[20] PC Westcott didn’t search Mr. Mohammed incident to his arrest as she’s female and left this to male officers who were on scene, PC Richards and PC Davis. There were no officer safety issues identified. Mr. Mohammed was placed in the rear of PC Westcott’s police vehicle.

[21] At 2:31 am, PC Westcott read Mr. Mohammed rights to counsel from the pre-printed information in her notebook. At 2:32 am, Mr. Mohammed was cautioned and at 2:33 am, he was read a breath demand. The defence raised several complaints with the provision of rights to counsel, which I will discuss below. Ultimately, Mr. Mohammed did not exercise his right to counsel and was transported to 18 Division. At 4:13 am, Mr. Mohammed provided two suitable samples of his breath at the police station under the supervision of PC Seebaly, the QBT. Both samples exceeded the legal limit. Mr. Mohammed was eventually released on an undertaking. Mr. Mohammed did not exercise his right to counsel at the police station.

C. The Charter Arguments

Issue #1 – Was there a ss.8, 9 and/or 10(b) violation based on PC Westcott not complying with the immediacy requirement?

[22] Mr. Mohammed argues PC Westcott violated his Charter rights by not complying with the immediacy or forthwith requirement in s.320.27(1) of the Code. This complaint was framed in the written materials as encompassing violations of ss.8, 9 and s.10(b) of the Charter although Mr. East mainly pursued the s.10(b) right to counsel complaint in oral argument. For completeness, I will address all aspects of the complaint. The Crown argues these Charter complaints have no merit and should be dismissed.

a) The Law

[23] Section 320.27(1)(b) of the Code provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose (my emphasis)

[24] PC Westcott made an ASD demand under s.320.27(1)(b) of the Code which eventually resulted in a warrantless seizure of Mr. Mohammed’s breath sample. As a result, the Crown bears the onus on a balance of probabilities to prove the search and seizure was lawful and complied with s.8 of the Charter: R. v. Haas, 76 O.R. (3d) 737 (Ont. C.A.) at paras. 24-26 leave to appeal refused: [2005] S.C.C.A. No. 423.

[25] Mr. Mohammed argues PC Westcott failed to comply with ss.8, 9 and 10(b) of the Charter by not making the demand forthwith or immediately. In the amendments to the drinking and driving provisions in the Code, s.320.27 replaced the word “forthwith” in the legislation interpreting s.254(2), with the word “immediate”. As a matter of law, the immediacy requirement has two aspects. The first requires police officers to make the demand promptly once an officer forms reasonable suspicion the driver has alcohol in her body and second, the driver must provide the sample immediately. The latter immediacy requirement is tempered with some flexibility where a short delay is reasonably necessary: R. v. Quansah (2012), 2012 ONCA 123, 286 CCC (3d) 307 (Ont. C.A.); R. v. Woods 2005 SCC 42.

[26] In Woods, Justice Fish explained that the forthwith (or immediacy) requirement addresses issues of unreasonable search and seizure, arbitrary detention and the right to counsel: at para. 29. Accordingly, a forthwith or immediacy complaint can be framed as a free-standing Charter violation or a violation of all three rights under ss.8, 9 or 10(b) depending on the facts of the case. Courts have cautioned not to conflate the arguments as they may turn on different facts. In other words, a violation on one ground does not mean a violation on others. See for example R. v. Yamka, 2011 ONSC 40.

[27] The immediacy obligation on police officers is triggered at the stage of reasonable suspicion. It is not sooner in the investigation, for example, when a motorist is detained: R. v. MacMillan, 2013 ONCA 109, [2013] O.J. No. 727 at paras. 25-35; R. v. Stelmach, [2016] O.J. No. 7240 (Ont. Prov. Ct.) at para. 34. On the ss.8 and 9 issues, the issue to be determined is when PC Westcott developed reasonable suspicion to make the ASD demand which is a fact-finding exercise. If I find that PC Westcott acquired reasonable suspicion but delayed the ASD demand for some other purpose, then there may be a ss.8 and 9 Charter violation because Mr. Mohammed would have been arbitrarily detained which would not be justified under the Charter.

b) Application

[28] I find PC Westcott formed her belief for an ASD demand at 2:19 am. Furthermore, I find there was no delay in making the ASD demand. For example, she did not tend to other tasks related to the investigation or as some cases have sanctioned or wait for the ASD to arrive before making the ASD demand.

[29] Mr. East relied on the case of R. v. David, 2017 ONCJ 476 in support of its submission on the ss.8 and 9 issues. In my view, the reliance on David is misplaced. In David, the accused was investigated for a routine drinking and driving infraction by two police officers: a training and coach officer. The traffic stop was used as a teaching opportunity, but the evidence established it went awry. The court made factual findings that the officers improperly delayed communicating their ASD demand to the driver for 2 minutes - a fact that is not present here. The court also found that the officers delayed the demand because they had to request an ASD not knowing when it would arrive, which the court found was not a sufficient reason for not complying with the forthwith requirement: at para. 34. This was the impetus for the ss.8 and 9 Charter violations.

[30] In this case, PC Westcott formed her grounds for the ASD demand and immediately conveyed this demand to Mr. Mohammed at 2:19 am. There was no delay. Even though she did not have an ASD on her person, unlike the officers in David, she did not use this to delay administering the demand. Instead, she made the demand, immediately asked for an ASD and waited for its arrival. As a result, the facts in David do not assist the Applicant in this case. I find no ss.8 and 9 Charter violation.

c) Immediacy and s.10(b) – The Law

[31] Turning next to the related s.10(b) arguments. The law provides that a person’s s.10(b) Charter right to counsel is constitutionally suspended during roadside sobriety investigations: R. v. Orbanski, 2005 SCC 37 at para. 60. Where there is a delay in accessing the screening device, the s.10(b) Charter limitation is no longer in effect. The law provides that police officers, must, in these circumstances, consider whether they can realistically fulfill the s.10(b) Charter rights before requiring compliance with the screening device: Quansah, supra; R. v. George, [2004] O.J. No. 3287 (Ont.C.A.) at para. 33; R. v. Singh, [2000] O.J. No. 4992 (Ont. S.C.J.); R. v. Steele, 2014 ONCJ 583, [2014] O.J. No. 5269 (Ont. C.J.); R. v. Ruck, 2013 ONCJ 527, [2013] O.J. No. 4429 (Ont. C.J.). In Ontario, there are conflicting Superior Court decisions on who bears the onus to show there was no opportunity to consult counsel when assessing whether the ASD test was “forthwith” under s.254(2): R. v. Menezes, 2019 ONSC 4497 at paras. 23-26. An alternative view was expressed in Yamka, supra which was decided in 2011. In that case, the court held the onus rests with the Applicant (or Defendant) whereas in Menezes, decided in 2019, the court held the Crown bears the onus. Mr. East relied on the Menezes decision in support of his argument. The Crown did not rely on the Yamka line of authority in defence of the Crown position. Importantly, the parties did not ask me to formally resolve this dispute in this case. Instead, I have decided to follow the more recent iteration of this principle in Menezes which builds on jurisprudence after Yamka that I will cite below. Therefore, I am satisfied in the circumstances of this case, the Crown bears the onus to justify the suspension of the s.10(b) right by proving whether there was a reasonable opportunity to consult with counsel.

[32] In the decisions of Steele and Ruck, supra (cited above), Justice Paciocco (sitting in the Ontario Court of Justice) considered this issue in detail and suggested a helpful two step framework. The analysis in Ruck pre-dated the appellate decision in Menezes. Both decisions were trial decisions but highly persuasive. The first question involves asking whether it was feasible in the circumstances for Mr. Mohammed to contact and speak with counsel in a private, secure fashion where the integrity of the investigation could be secured: at para. 31. In Ruck, like here, the detainee was left in the privacy of his car while awaiting the ASD and had a cellphone. While this additional information of a cellphone is not available on this record, I am prepared to find it’s reasonable to infer Mr. Mohammed would have had his cellphone on him given the ubiquity of cellphones.

[33] As for the second question, a court should ask whether the period of delay is long enough in the particular circumstances to enable the right to counsel to be accommodated. Paciocco J. held the court must be satisfied that a meaningful consultation could have probably been accomplished, citing R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355. This element is to be determined in all the circumstances and is not purely an objective fact but also viewed through the reasonable perspective of the officer at the time. In Steele, Paciocco J. added that the officer’s reasonable belief about the expected delay is therefore “a central factor”: at para. 29.

[34] In David, which was relied on by Mr. East, the court found a s.10(b) Charter violation because the facts were far more egregious than here. The investigating officer who made the ASD demand, testified he didn’t know how long the ASD device would take to arrive and believed “it would take no more than 15 to 20 minutes” which is a significant window of time. More importantly, the court found as a fact that the demanding officer acknowledged he could have afforded rights to counsel to Mr. David within the 15 to 20-minute window and didn’t. There was no evidence explaining why this didn’t occur. It turned out that the actual delay in the arrival of the ASD was 3 to 5 minutes, not 15 to 20-minutes but the court found a s.10(b) Charter violation despite this fortuitous windfall because of the evidence that Mr. David would have exercised his right to counsel in the intervening period and would have called duty counsel which is something he eventually did at the police station. The court was satisfied given the circumstances in that case, there was sufficient time to exercise the right and the conduct of both the training and coach officer was unreasonable. Felix J. was particularly troubled by the effusive attitude of the coach officer who wasn’t attuned to the forthwith obligation and imparted poor advice to his trainee. This was the impetus to find a serious Charter violation because a training officer would be expected to properly train a new recruit - which did not happen and reflected poorly on the administration of justice warranting exclusion of the breath samples.

[35] The facts of this case are fundamentally different, therefore the result in David does not fully assist the Applicant’s position – especially on meeting his onus under s.24(2) of the Charter. PC Westcott was working alone, was an experienced officer and for the most part, acted with dispatch during the roadside investigation. Even though the analysis of the proper onus in Menezes was not available to the court in David, the ratio is consistent with this principle because Felix J. was satisfied that the Crown would not have been able to meet its onus, largely because the court was presented with countervailing evidence from Mr. David which was accepted by the court that he would have exercised his right to counsel if given the opportunity. This case is different because the Applicant, Mr. Mohammed chose not to testify on the s.10(b) Charter issue which means I must determine if the Crown’s evidence is sufficient to meet its onus as described in Menezes. This does not mean Mr. Mohammed had to testify on the issue, but rather the evidentiary landscape is different from David. I must draw reasonable inferences from the evidence.

d) Application

[36] The evidence establishes the ASD demand was made at 2:19 am and the device arrived at 2:24 am which represents a delay of approximately 5 minutes. According to Menezes, the relevant question is whether the Crown has justified the suspension of the right to counsel for 5 minutes by proving there was not a reasonable opportunity to consult with counsel.

[37] Having considered the evidence as a whole, I am satisfied there was a s.10(b) Charter violation but for slightly different reasons than those argued by Mr. East. I find the evidence on this record does not permit the Crown to meet its evidentiary onus under Menezes to justify the 5-minute suspension of the right to counsel which means Mr. Mohammed could have exercised his right to counsel during this window. I say for the following reasons.

[38] First, PC Westcott testified she didn’t believe there would be an inordinate delay in the arrival of the ASD, but this subjective belief is not supported by any objective facts. She explained when she asked for the ASD, she was told PC David would deliver it but there is no evidence that she inquired from dispatch when PC David would arrive with the device. In cross-examination, she testified she could not recall what she was told by dispatch because she did make any notes of it, which means she would not have known when the ASD would in fact arrive. Further, PC Westcott testified she was not sure if she spoke with PC David to ascertain his timing because this detail was not recorded in her notes either. Therefore, PC Westcott was largely working on the assumption that the ASD would arrive in a timely way but there was nothing basing this assumption.

[39] Second, when PC Westcott was challenged on whether she was aware of her obligation to comply with the forthwith requirement, she gave unclear evidence. She testified she was “watching the clock and noticing delay” but there was nothing in her notes to base this belief. PC Westcott relied on her independent recollection that she was alive to both issues but with respect, this too is inconsistent with the overall theme of her evidence that she would record important events in her notes and if items were not recorded, they were not important. She made no notes on the immediacy issue. When pushed further, PC Westcott finally acknowledged “I wasn’t sure how long it would take to arrive” which can only lead to one reasonable inference, that she didn’t turn her mind to the issue at the outset and thus could not have been paying attention to the immediacy requirement.

[40] Third, PC Westcott was asked if she canvassed with Mr. Mohammed if had his cellphone which would allow him to use it at the roadside. She testified she wasn’t sure if she asked Mr. Mohammed if he had his cellphone. Even though Mr. Mohammed didn’t testify on the issue, I find she did not ask the question because it was clear the theme of her evidence on this point is that it’s not something she would have pursued because in her mind, the detainee usually exercises right to counsel at the police station, not at the roadside. This was a general answer based on prior experience and not something she turned her mind to in the case of Mr. Mohammed. When PC Westcott was asked the question of what she would have done had Mr. Mohammed asked to speak with a lawyer at the roadside, she explained it was not something she came across often because usually the detainee exercises the right at the station for privacy and safety reasons. She wasn’t sure what she would have done. The only conclusion I can draw from this evidence is that PC Westcott did not turn her mind to even considering allowing Mr. Mohammed to use a cellphone at the roadside to access counsel because it was not something she had dealt with in the past. This is another factor which is relevant to whether she turned her mind to the forthwith obligation.

[41] Fourth, PC Westcott testified she believed her duty to comply with s.10(b) of the Charter was based on the ‘as soon as practicable’ standard, which of course is incorrect in law. The correct legal standard as identified by the Supreme Court in R. v. Suberu required her to afford right to counsel “without delay” which has been interpreted as immediately. It is not uncommon for some police officers to confuse the language of “as soon as practicable” with “immediately,” but these are different legal standards. This easily could have been a slip of the tongue in the witness box, but the Crown did not seek to clarify this confusion (if that’s what it was) in re-examination so I am left with the only finding that she didn’t know the right legal standard. I agree with Mr. East that this evidence is relevant to informing PC Westcott’s state of mind in understanding her obligations on the immediacy issue.

[42] Fifth, I am satisfied Mr. Mohammed was a cooperative detainee in the mind of PC Westcott. There were no concerns related to officer safety, no urgency in the investigation and no other reasonable factors which would have permitted PC Westcott to delay the provision of rights to counsel. He was permitted to wait in his car where he could have made a call in private so any common concerns about privacy that animated her usual practice were not present.

[43] In light of these reasons, I conclude much like the court did in Ruck, at para. 32, that PC Westcott had no reasonable basis to know how long the ASD would take to arrive and decide whether she should accommodate s.10(b) of the Charter. Given the state of the record, I am unable to accept that PC Westcott had determined in her mind that a 5-minute delay was a constitutional cut-off and anything beyond this would have caused her to act differently and administer rights to counsel. The evidence establishes while she turned her mind to reading the ASD demand immediately, she didn’t really turn her mind to the issue of whether Mr. Mohammed could exercise his right to counsel at the roadside because she had already decided this was going to happen at the police station later. I find the 5-minute cut-off threshold was developed in the witness box when she was challenged on her evidence in cross-examination. Unfortunately, she misidentified the correct legal standard and simply assumed without any foundation that the ASD would arrive in a timely way. This leaves a void in the record about whether Mr. Mohammed could have reasonably exercised his right to counsel within the 5-minute interval at the roadside. See R. v. Shabir, 2016 ONCJ 696, at para. 40; R. v. Perez Meija, 2019 ONCJ 129 at paras. 135 to 137.

e) Conclusion on the immediacy issues

[44] Therefore, there were no ss. 8 and 9 Charter violations on the immediacy requirement but there was probably a s.10(b) Charter violation. In submissions, Mr. East raised a novel argument that the new Code amendments which permit courts to do a read back of the readings and relieve time constraints on the police in proceeding with the investigation expeditiously should result in the Quansah analysis being modified to account for this change. Mr. East did not point me to any binding cases that advance this argument, and the Crown chose not to respond, acknowledging it’s a novel issue. In my view, it’s unnecessary to address this submission because I’ve found a s.10(b) Charter violation on Mr. East’s other arguments which were argued with a full record. Quansah is authority from the Supreme Court and an appellate court is better suited to interpret its reach in light of the amendments. I don’t have to do so in this case as the defence complaint on the immediacy issues is successful. However, it is my view, this Charter violation was at most technical in the circumstances of this case because as I will go on to explain, the evidence does not establish any further violations of Mr. Mohammed’s s.10(b) Charter rights. Fundamentally, I find Mr. Mohammed properly understood his right to counsel and decided not to exercise it. In the end, this technical s.10(b) Charter violation relating to the suspension of the right at the roadside means very little because despite the roadside delay, Mr. Mohammed chose not to exercise his right to counsel at the roadside, therefore the technical error was harmless. Similarly, the novel Quansah argument would add nothing to s.24(2) analysis in light of my overall conclusion on s.10(b).

Issue #2 – Did PC Westcott fail in her informational duties in s.10(b) of the Charter?

a) Positions of the Parties

[45] Mr. Mohammed argues PC Westcott violated his s.10(b) Charter rights by failing to adhere to her informational duties. In the Applicant’s written materials, he advanced three arguments related to this issue. First, it was argued the objective circumstances were such that Mr. Mohammed didn’t understand his right to counsel and PC Westcott failed to clarify his understanding. Second, it was argued Mr. Mohammed’s legal jeopardy changed at the police station resulting in a renewed obligation on the part of the police to make sure Mr. Mohammed properly understood his right to counsel. Third, it was argued any waiver of Mr. Mohammed’s right to counsel was not valid.

[46] The Crown argues PC Westcott properly informed Mr. Mohammed of his rights to counsel at the roadside and he clearly communicated his desire not to invoke his right. Further, he made the same decision in the parade room on his own and without any police interference. The Crown says there was no legal duty to re-inform Mr. Mohammed of his right to counsel and he chose to waive it, so there can be no Charter violation.

b) The Law

[47] Section 10(b) of the Charter provides that everyone has a right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Section 10(b) imposes certain duties on the police and the detainee. The Supreme Court summarized the obligations on the police as including both an informational component and if the detainee invokes her right to counsel, further implementational duties. In R. v. Owens, 2015 ONCA 652 the Court of Appeal held that the police implementational duties are not triggered unless a detainee expresses her desire to exercise her right to counsel: at para. 24.

[48] In R. v. Willier, 2010 SCC 37, the police duties were summarized as (i) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (ii) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (iii) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[49] The informational duty is the subject of this Application. Compliance with informational duty depends on the police imparting complete information to the detainee. In R. v. Brydges, [1990] 1 S.C.R. 190, at pages 203 and 211 and in R. v. Bartle, [1994] 3 S.C.R. 173, at pages 191-192 and 201, the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of immediate and free duty counsel through Legal Aid if such services exist in the jurisdiction.

[50] In R. v. Evans, [1991] 1 S.C.R. 869, at page 891, the Supreme Court held in circumstances which suggest that a detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Lamer, C.J.C. for the majority wrote that in such cases authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. Further, in R. v. Devries, 2009 ONCA 477, [2009] O.J. No. 2421 (C.A.), the Court of Appeal held questions or comments made by a detainee or other circumstances at the time the s.10(b) caution is given may indicate a misunderstanding by the detainee of the nature of the s.10(b) rights. In those circumstances, the arresting officer will have to provide a further explanation of the rights: at para. 38. In R. v. Guyette, 2010 ONSC 4575, the Summary Conviction Appeal Court held … “[t]he point made throughout the jurisprudence is that the detainee must have sufficient information to make an informed decision as to whether to speak to counsel before submitting to police interrogation”: at para. 16. The operative question is therefore: did Mr. Mohammed properly understand his s.10(b) Charter right to counsel or stated differently, did he have sufficient information to make an informed decision about whether to invoke his right to counsel?

c) Application

i. Events at the Roadside

[51] At 2:27 am Mr. Mohammed was arrested. At 2:31 am, PC Westcott read him his s.10(b) Charter rights from the pre-printed information in her notebook. I’m satisfied this information was accurate and complete and complied with the informational obligation to impart to him that he had the right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel for free. In other words, Mr. Mohammed was provided with all the right options in the right language. The standard Charter advice was accompanied with the two common questions: “Do you understand” and “Do you wish to call a lawyer now?” PC Westcott testified Mr. Mohammed responded “Yes” to the first question suggesting he understood the advice. I accept this evidence and there’s nothing suggesting to the contrary. As to the second question, I find Mr. Mohammed said words to the effect: “I don’t have one”. I accept PC Westcott’s evidence that while she did not place quotes around this answer in her notebook, she had an independent recollection of this response even though she could not be sure if it was verbatim. Mr. East argues this answer was equivocal and meant Mr. Mohammed didn’t understand his rights to counsel. I disagree. I find it was reasonable for PC Westcott to take from his clear answer that he didn’t have a lawyer, not that he didn’t understand his rights. Given Mr. Mohammed’s answer, she reminded him of the offer of free duty counsel and a lawyer’s book with names and contact information for lawyers which would be available to him at the police station if he changed his mind. Again, this evidence stands unchallenged. The evidence was:

Q. Sorry, I didn’t mean to, sort of, interrupt you there. If – if – if you were confident that my client understood his rights to counsel, then you wouldn’t have felt the need to re-explain duty counsel and the lawyer book, fair enough?

A. Well, him saying, I don’t have one or I don’t have a lawyer, that – that indicates to me that he doesn’t have one readily available, maybe he hasn’t gone through this before, so advised him again that there’s legal counsel and a lawyer’s list...

PC Westcott was also clear that his answer “I don’t have one” could mean “I just don’t have a personal lawyer”. I accept her evidence she was satisfied Mr. Mohammed understood his rights and was communicating to her that he didn’t have a personal lawyer. He was given other options to exercise them later even though he had opted not to exercise them at the roadside. It is important that even though PC Westcott was challenged on the “assumption” she made that Mr. Mohammed did understand his right to counsel, this assumption stands unchallenged. Mr. Mohammed never testified to undermine the reasonableness of this assumption which is well supported by this record. While I agree with Mr. East that PC Westcott’s notetaking on this point could have been better, it is not a reason to impeach her voir dire testimony which I accept. I don’t accept the defence complaints that her failure to note exactly what she told Mr. Mohammed and what he told her is fatal because I find as a fact Mr. Mohammed never invoked his right counsel which was clear from the outset and never changed.

[52] As an aside, the defence did not raise any arguments with the timing of the rights to counsel upon arrest, which I find was Charter compliant. There was a 4-minute delay which realistically more like 2 minutes because it was reasonable to delay the rights to have male officers conduct the search incident to arrest for safety and privacy purposes. Mr. East argues there was a 45-minute delay in the provision of rights to counsel, but this assumes Mr. Mohammed didn’t understand his rights until he arrived at the police station. I find he did understand them at the roadside, so the delay was not 45-minutes. It was 2-minutes, maybe 4 at most. Therefore, there was no problem with respect to timing of rights to counsel on this basis which may be a relevant factor under s.24(2). At 2:33 am, Mr. Mohammed was read a breath demand. PC Westcott testified initially he did not understand the demand and asked for clarification, so she read it to him twice. She read it a third time but this time in “laymen’s terms” or simple language and at this point he indicated he understood. This evidence is important because it is a window into Mr. Mohammed’s diligence in communicating his lack of comprehension on an issue, something I find he did not do when he was read his rights to counsel which leads me to conclude he was not confused about his rights to counsel even though he may have been confused about the breath demand.

ii. Events at the Police Station

[53] PC Westcott testified Mr. Mohammed was transported to 18 Division for breath testing and there was no communication between the parties in the police cruiser which might suggest Mr. Mohammed raised any concerns about his understanding of rights to counsel. This stands unchallenged and is further proof he understood what he was told at first instance. If Mr. Mohammed was confused, it was incumbent on him to say or do something to make this reasonably clear. He did nothing. When they arrived at the police station, she communicated her grounds to Sgt. Annie Ormond who was the parading officer and PC Westcott was present for the parading process. The parties tendered a small portion of the parading video and I have reviewed it on my own in my chambers. It shows a lucid and responsive Mr. Mohammed who is immediately told by Sgt. Ormond that the interaction is being audio and video recorded which would have fixed Mr. Mohammed with the knowledge that if he was confused, he could say so on video. He chose not to which leads to an inference he was not confused. Mr. Mohammed’s level of comprehension is clear. Sgt. Ormond asked him his understanding of why he’s at the police station. He responded without confusion: “because I was driving impaired”. The next series of questions relate to rights to counsel:

Sgt. Ormond: Have you been advised of your right to call a lawyer? Mr. Mohammed: Yeah Sgt. Ormond: Would you like to a call a lawyer? Mr. Mohammed: No Sgt. Ormond: If you change your mind, you let us know, okay? Mr. Mohammed: [Nods his head in affirmative]

Mr. East argues PC Westcott improperly assumed Mr. Mohammed had understood his right to counsel and had chosen to waive it during this interaction. I disagree with this submission because I accept her assumption was well grounded in the totality of the circumstances which began at the roadside. Mr. Mohammed never said or did anything (nor did he testify to this) that displaces the validity of this assumption. I find the only reasonable conclusion to be drawn from the parade room video is Mr. Mohammed clearly said “No” to the simple question of whether he wanted to call a lawyer. The No could not have meant he was confused or wasn’t told about his rights. The video is a clear, credible and reliable rendition of the facts.

[54] At 3:19 am, PC Westcott provided her grounds for arrest to the QBT, PC Seebaly. She testified Mr. Mohammed asked her for a glass of water as he was thirsty. There’s no evidence that Mr. Mohammed used this opportunity to communicate any misunderstanding about his right to counsel. Nor did he use it as an opportunity to change his mind.

[55] At 3:33 am, Mr. Mohammed was turned over to the QBT, PC Seebaly. The parties helpfully filed an official transcript of the breath room video which revisited the issue of rights to counsel for the third time in the investigation. It is 23 pages in length. The material aspects of the change are as follows:

P.C. Seebaly: Um, it’s also my understanding that you were given your rights to counsel, and you need to – you were given the opportunity to speak to a lawyer? Mr. Mohammed: yeah. P.C. Seebaly: And you said no at this time. Is that correct? Mr. Mohammed: (Nods head in the affirmative) P.C. Seebaly: Okay. At any time if you change your mind, and you do want to speak to a lawyer, you let me know. Do you understand that? Mr. Mohammed: (Nods head in the affirmative)

[56] Mr. East argued PC Westcott’s evidence about what Mr. Mohammed told her at the roadside when she explained rights to counsel cannot be trusted because her memory of the events is not reliable due to her alleged deficient notetaking. PC Westcott was extensively cross-examined on her notetaking during her roadside interaction with Mr. Mohammed and ultimately testified she could not recall the exact words used by Mr. Mohammed but maintained she had an independent recollection of his answer to the rights to counsel [“I don’t have one”] because she took the step of explaining to him that he could access the services of duty counsel or a ‘lawyer book’ at the station which is a recitation of the Brydges information related to legal aid for free. Mr. East argues the court can’t place any reliance on her in court testimony because she made sparse notes of the conversation, only to fill them in later when she prepared a report and thus could not recall what was said at the roadside.

[57] The law provides that police notes and reports are meant to act as a memory aid, not as a substitute for evidence. Just because an event is not recorded doesn’t mean it didn’t happen. However, a significant omission may impact the credibility and reliability of an officer’s testimony and the weight of that evidence depending on the circumstances. See R. v. Minhas, 2017 ONSC 1963 at paras. 24 to 26; R. v. Antoniak, 2007 ONSC 4816; R. v. Gill, 2015 ONSC 6787 at para. 46; R. v. Bero, 2014 ONCJ 444.

[58] I do not accept the defence complaints related to notetaking and find PC Westcott did not have any significant omissions from her notebook which undermine her credibility and or reliability. PC Westcott was an intelligent police witness who withstood a probing cross-examination about her notes. It’s clear she is aware of her obligation to take notes and did in this case. There is no rule that says police officers have to take notes in their memo-book at the time of the investigation. In some jurisdictions, officers choose to do this and in others, they don’t. She understood what was important and kept repeating, correctly, that police notes are meant to assist with refreshing memory. They are not a substitute for evidence. I accept the evidence of PC Westcott that even though she didn’t record Mr. Mohammed’s exact words contemporaneously in her notebook at the time they were uttered, she recalled what he said because she filled out a report when the events were still fresh in her mind. She was not confronted with a counter-narrative, so her credibility stands unchallenged. She fairly conceded in some areas her notes could have been better which shows she was balanced and fair but the overall theme in her account was she afforded Mr. Mohammed the opportunity to exercise his right to counsel and he chose not to. She cannot be blamed for this and her notes on this point have no bearing on what Mr. Mohammed chose (or not) to do. I do not agree with the submission that she was evasive in her testimony. Therefore, I find as a fact Mr. Mohammed said: “I don’t have one” which was reasonably interpreted by her to mean he didn’t have a lawyer. Despite a probing cross-examination, I believe her that even though it was not recorded in her notes, she told Mr. Mohammed about his other options including duty counsel and the right to look for a lawyer from a book and that he understood all his options. Her subjective belief he understood his options is amply supported by objective facts.

[59] Mr. East argues even if the court finds the comment “I don’t have one [lawyer]” was uttered by Mr. Mohammed it was ambivalent suggesting he didn’t understand his rights to counsel. I disagree. First, the evidence of PC Westcott that she took the comment to mean he didn’t have a lawyer stands unchallenged. Mr. Mohammed didn’t testify to say he said something different or meant something different or asserted his right to counsel and PC Westcott got it wrong. She didn’t get it wrong. Second, her evidence is supported circumstantially by her actions including explaining to him that even though he didn’t have a lawyer, he could change his mind at the police station with some tools to look for counsel if he later decided to get a lawyer. This offer was premised on Mr. Mohammed invoking his right to counsel – it was not an open offer that the police would invoke the right for him which they are not allowed to do. There would no reason to utter this comment if Mr. Mohammed asserted his right to counsel or said something suggesting he was confused about what his options were. Third, there is no evidence that at any point during the roadside interaction, either before during or after the ASD test, Mr. Mohammed was alive to his right to counsel and wanted to assert it suggesting he might have been confused when asked the question. Respectfully, this Charter complaint is an afterthought.

[60] In R. v. Badgerow 2008 ONCA 605, 237 CCC (3d) 107, the Court of Appeal held the police “are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s.10(b) rights”: at para. 46. This is not the case here because PC Westcott did not ignore the comment all together and there was no reasonable prospect that Mr. Mohammed was keen on exercising his right to counsel at any point while in police custody. He never said or did anything to suggest he was focused on exercising his right to counsel. He simply made a point which is not uncommon for many detainees: they don’t have a lawyer. He was reminded it was his choice to make and he would be given some tools if he needed them at the station – if he changed his mind but he never did. In fact, he was asked about his right to counsel on three separate occasions (roadside, parade room and breath room) and didn’t change his position. Some examples from other cases will make this point. In R. v. Hegedus, 2015 ONCJ 361, the court found a s.10(b) violation where the detainee was informed of his right to counsel and said “maybe duty counsel later” which the court said was ambiguous and required clarification which the officer failed to do. Similarly, in R. v. Wong, 2019 ONCJ 764 the court found a s.10(b) violation (at para. 33) where the detainee was asked if he understood his right to counsel and said “Maybe”. When asked if he wanted to call a lawyer now, he asked the officer for help by asking: “Do you have a lawyer you can refer to”. In addition, the accused testified on the voir dire that he was confused (unlike here) and the police didn’t help him understand his right to counsel because there were obvious language issues (also not the case here). In Guyette, the detainee said: “I will call my lawyer on my own” which is a clear assertion of the right to counsel (unlike here). In R. v. Mitchell, 2018 ONCJ 121, the accused said “Yes” when asked if he wanted to speak with a lawyer (unlike here) which was improperly delayed by the police. The central point of the principle established by these cases is that the police have to be reasonably satisfied the detainee properly understands her rights and can make informed decisions about how to exercise it. I’m satisfied PC Westcott was reasonably satisfied Mr. Mohammed understood his right to counsel.

[61] Given the record before me, the comment “I don’t have one” was not ambiguous. It had a clear meaning that Mr. Mohammed didn’t have a lawyer and was later confirmed when he decided not to exercise his right to counsel at the police station. He was given ample opportunity to change his mind or voice any confusion and as this was explained to him in clear language repeatedly. He did not say or do anything to leave the officer with the impression that he wanted to speak to a lawyer but didn’t have one. In other words, it was not a clear “Yes” like in Mitchell. Even if he meant to say something different, PC Westcott did the right thing by not treating his comment as a full refusal to invoke his right to counsel at the roadside because she told him if he changed his mind, he had other options – which he never exercised. This was sensible because if the right was invoked, it would be implemented at the police station, not at the roadside so Mr. Mohammed had time to reflect on his options. Moreover, had PC Westcott not told him about his options in the first place (which she did when she read him the rights from her notebook), namely that he could access duty counsel for free, the comment I don’t have one might have required follow up. Therefore, when he uttered the comment “I don’t have one” it was with the knowledge that he could access duty counsel for free, which is to say he didn’t need a private lawyer to exercise his right. The state could have provided him with a lawyer if he decided he wanted to use one – but he never did. The comment did not mean he wanted to talk to duty counsel because that would have required him to say something along the line of “I don’t have one, so I will talk to duty counsel”. He never said this. PC Westcott was correct to remind him that even though he didn’t have a private lawyer, he had other options which he could exercise later. At the police station, Mr. Mohammed confirmed he was given his rights and made a choice not to exercise his rights. It would have been improper for PC Westcott to foist a particular lawyer on Mr. Mohammed against his wishes. The law does not permit officers to steer a detainee to a lawyer or even insist that they exercise their rights because it would be better for them to do so. Instead, the law is clear - the police provide the options and make sure the detainee understands them. The law only requires the police to do this once, not three times like they did in this case (for extra measure). The detainee makes the choice. If the detainee chooses to exercise the right, the police have a duty to provide reasonable assistance in implementing the right. Mr. Mohammed made his choice: not to speak with any lawyer so the duty to provide reasonable assistance (or implement his right) never arose.

[62] I find no breach of Mr. Mohammed’s s.10(b) Charter rights on this basis.

iii. Change in circumstances

[63] Mr. East argues there was a renewed obligation on PC Seebaly during the breath testing to readvise Mr. Mohammed of his rights to counsel. This argument stems from the submission that Mr. Mohammed didn’t provide an affirmative answer explaining he understood his right to counsel and instead nodded in the affirmative. The defence argues it was incumbent on the police to take extra steps to ensure Mr. Mohammed knew what he was doing when nodding his head when it would appear he seemed confused.

[64] I disagree with this submission. I find Mr. Mohammed was not confused in the breath room or in the parade room for that matter. The parade room video shows Mr. Mohammed was responsive to questions which means he knew about his legal jeopardy and knew his legal rights. There is no evidence of any language issues nor any comprehension issues. In R. v. Sinclair, the Supreme Court provided guidance to police officers about situations when a second consultation with counsel is required for purposes of s.10(b) of the Charter. This principle doesn’t fully apply here because Mr. Mohammed never asserted his right to counsel but to be sure, guidance can be taken from the principle. The Court held the categories are not closed but delineated three clear categories as: (i) new procedures involving the detainee, (ii) a change in jeopardy and (iii) reason to question the detainee’s understanding of her s.10(b) right.: at paras. 49 to 51.

[65] Mr. East relies on the third prong of the Sinclair principle arguing the nodding was reason to question his understanding. Again, I disagree. I rely on my earlier findings and conclude there is no reasonable inference on this record to question Mr. Mohammed’s understanding of his s.10(b) Charter right in the breath room. I have reviewed the breath room video in its entirety and read the corresponding transcript. There is nothing to suggest Mr. Mohammed was confused or scared. He was cooperative, amicable and friendly. He was responsive to the questions of PC Seebaly. There is no rule that says the police need a verbal answer to confirm a person’s understanding. A non-verbal gesture will suffice especially because it’s captured on video. A nod in the affirmative was no different from his earlier response to Sgt. Ormond and if there was confusion, there’s no evidence of it on this record. Mr. Mohammed did not testify to say he was confused and urges the court to speculate that he was confused. I am not permitted to speculate. I accept the evidence of PC Seebaly that in his mind, Mr. Mohammed was not confused and this is well supported by the video. This is not a case like R. v. Mohamud, 2010 ONSC 5142 where the court could not be sure what the accused said or meant because some part of the interaction was off-camera and not captured. The entire interaction in this case was on video and clear. I find as a fact Mr. Mohammed clearly understood his rights, used clear language to articulate them and was given ample opportunity to exercise them and chose not to. There was no s.10(b) violation in the breath room on this basis.

iv. Waiver

[66] The final argument raised by the defence is that the Crown has not proven a lawful waiver of Mr. Mohammed’s right to counsel. I disagree. In R. v. Smith, [1991] S.C.J. No. 24 the Supreme Court held the question is whether the accused possessed sufficient information to make his waiver of counsel valid. I am satisfied the police provided Mr. Mohammed with complete information to exercise his right to counsel and provided him with three opportunities to exercise it. They also reminded him that he could change his decision at any point and to alert them if he chose to. On all three occasions, he chose not to exercise his right to counsel. In cross-examination, PC Westcott confirmed after she read Mr. Mohammed his rights again in layman’s terms, she did not ask him if he wanted to call a lawyer and instead “left it for him to decide”. In my view, there was nothing improper about this because after all it was Mr. Mohammed’s decision to make, not PC Westcott’s. A detainee informed with correct information must be reasonably diligent and Mr. Mohammed was not. The waiver in this case crystalized at the police station after he was given other options to exercise his right to counsel. PC Westcott was pressed on whether she breached Mr. Mohammed’s Charter rights by failing to get a direct answer after he was advised of his options in layman’s terms but did not admit she violated the Charter based on her understanding of her obligations. She testified she should have obtained a more fulsome answer from him which doesn’t mean his s.10(b) rights were violated. In any event, it’s clear Mr. Mohammed clearly said No when asked later about exercising his rights to counsel and she was present for this answer. Based on all the evidence – which did not include any evidence from Mr. Mohammed – I’m satisfied her understanding at the time that Mr. Mohammed did not want to invoke his right to counsel was reasonable and lawful. This is not a case where Mr. Mohammed invoked his right to counsel but then changed his mind which would have required a Prosper warning to make sure he knew what he was giving up. This is a case where he never invoked his right to counsel in the first place which arises from Owens. I’m satisfied Mr. Mohammed was given correct and constitutionally complete information and made a choice not to exercise his right to counsel. If he was confused, there’s nothing on this record to suggest this confusion was reasonably known to the three police officers all of whom confirmed his understanding with him and all of whom were met with the same decision: not to exercise his right to counsel. In cross-examination she confirmed while she did not ask him again if he wanted to speak to a lawyer, after she provided him with other options, she left it for him to decide and the evidence establishes he did not change his mind and invoke his right to counsel. Again, this stands unchallenged. On this record, I am satisfied the Crown has proven a valid waiver.

[67] For these reasons, the police did not violate his s.10(b) right to counsel on this basis.

[68] In summary, I have found one discrete breach of s.10(b) of the Charter on the basis that the Crown did not meet its onus on this record to prove that Mr. Mohammed could not have exercised his right to counsel during the 5-minute delay at the roadside while the parties waited for the arrival of the ASD. It is on this basis that I will undertake a s.24(2) analysis to decide if the breath samples should be excluded.

Issue #3 – Should the evidence be excluded under s.24(2)?

[69] The legal inquiry is governed by the Supreme Court’s test in R. v. Grant, 2009 SCC 32 at para. 129 and R. v. Paterson, 2017 SCC 15. As a threshold issue, I am not entirely convinced, but will assume for the sake of argument that the s.10(b) breach had a temporal and contextual connection to the evidence even though the breach occurred early in the investigation. Therefore, I will assume the evidence was obtained in a manner that violated his right requiring a s.24(2) analysis,

[70] The decision to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires a consideration of all the circumstances of the case. Under Grant, it is necessary to assess and balance the effect of admitting or excluding the evidence on the integrity of, and public confidence in, the justice system. In doing so, the court must consider: i) the seriousness of the state’s Charter infringing conduct; ii) the impact of the breach on Mr. Mohammed’s Charter-protected interests; and iii) society’s interest in an adjudication of the case on its merits: Grant, at paras. 71, 85-86.

i. The seriousness of the Charter-infringing state conduct

[71] The first line of inquiry requires the court to assess the state conduct that led to the Charter violation and situate it along a “continuum of misconduct”: Grant, at para. 74. In R. v. Paterson the Supreme Court held for errors to be considered to have been made in good faith, they must be reasonable: at para. 44. In my view, the five reasons I identified relating to PC Westcott’s error in this case of not turning her mind to how long the ASD would take to arrive and not considering whether there was time for him to exercise his right to counsel were largely related to the quality of her evidence. The error was not done deliberately and instead was a technical one. The overall context is important. This is not a case like David where the officer didn’t administer the ASD demand immediately or improperly delayed the ASD demand to wait for the device. She made the demand immediately and then asked for an ASD right away. The breach arose because she took insufficient notes to support her subjective belief that the ASD was going to arrive imminently. Luckily, it did arrive within minutes, but this does not absolve the Crown from an ex post facto analysis on an issue where it bears the onus. The reality is she did not improperly investigate Mr. Mohammed during his 5-minute roadside detention to gather evidence or handcuff him: R. v. Culotta, 2018 ONCA 665, [2018] O.J. No. 3946 (Ont. C.A.) at para. 35. He was allowed to wait in his car which fortunately was brief. He also did not say or do anything to suggest he was keen on exercising his right to counsel at that moment. Indeed, as it turned out, he never did exercise his right to counsel even though she properly informed of him of the right.

[72] While PC Westcott miscommunicated the legal standard related to the timing of the rights to counsel, I’m satisfied this was an innocent mistake because her actions at the roadside and at the police station which were all consistent with her being attuned to her constitutional obligations of ensuring timely compliance with right to counsel. She correctly read him his rights and took steps to make sure he was confident in his decision when he decided not to exercise them. In David, the court found a systemic issue in holding that the investigating officer was entitled to proper training which was made worse by the coach officer who let the poor practice slide without intervening. The court held the poor training was reflective of a “serious concern”: at para. 80. A systemic or institutional problem is not present here. In Guyette, the forthwith error was serious because the accused (unlike here) asserted his right to counsel and ended up incriminating himself based on incomplete information. That too does not exist here. Finally, in Steele, the court found multiple Charter breaches, one of which being the “forthwith” breach which made the overall conduct of the officer serious. This too does not exist here. In summary, PC Westcott’s conduct was not serious, and this factor weighs against excluding the evidence.

ii. Impact of the breach on Mr. Mohammed’s Charter-protected interests

[73] Under this line of inquiry, the court must measure the extent to which a Charter breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76. The impact may vary, from being fleeting (transient) or technical to profoundly intrusive. The more impactful on the protected interest, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant, at para,76.

[77] I find the impact of the breach at the roadside had no impact on Mr. Mohammed’s Charter protected rights because ultimately, he decided not to exercise his right to counsel. Therefore, any failings at the roadside are of no moment. It is a reliable window into his state of mind at the time and speaks to his mindset during the 5-minute window as well. As the Supreme Court held, the purpose of the informational duty is to provide the detainee with information to allow her to make an informed choice as to speak to the police and guard against the risk of involuntary information: Sinclair at para. 25. Although Mr. Mohammed was not immediately told about his rights during the 5-minute window, he was later on. Mr. Mohammed was given the correct information and given three opportunities to change his mind about exercising his right. In David, there were multiple errors which had an impact on the rights of the accused because it was premised on poor training. This similar evidence does not exist in this case. This factor weighs strongly against exclusion of the evidence.

iii. Society’s interest in an adjudication on the merits

[78] The court must also consider society’s interest in having this case adjudicated on its merits. In that regard, the court must determine if it would better serve truth seeking to admit or exclude the evidence: Grant, at para. 79. The breath test results are reliable evidence: Grant, at para. 81. Further, the exclusion of this evidence will gut the prosecution’s case on the Over 80 offence: Grant, at para. 83. These considerations weigh heavily in favour of admitting the evidence.

iv. The balancing

[79] In R. v. Le, 2019 SCC 34 at paras. 141-2, the Supreme Court described the interplay between the three factors to be considered in the s. 24(2) analysis by stating: “While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion: see R. v. McGuffie, 2016 ONCA 365, at para. 62. But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”.

[80] In my view, the sum of the first two lines of inquiry does not pull towards exclusion as the police conduct was technical and the impact on Mr. Mohammed’s rights was negligible. As a result, Mr. Mohammed’s s.10(b) Charter application fails.

D. Conclusion

[81] In light of the reasonable concession of the defence, the evidence of Mr. Mohammed’s breath samples on Exhibit 3 are admissible. They prove two breath readings of 140mgs and 120 mgs respectively in 100mls of blood, which exceed the legal limit. Therefore, the Crown can rely on the presumptions of identity and accuracy: s.320.31(1). Accordingly, there will be a finding of guilt on the charge of Over 80 mgs. A conviction will be registered. The court would like to thank counsel for their helpful and professional submissions.

Released: May 19, 2022 Signed: Mr. Justice F. Javed