Court File and Parties

Court File No.: Brampton 3111-998-19-18427 Date: 2022-09-27 Ontario Court of Justice

Between: Her Majesty the Queen — And — Robert Cairney

Before: Justice Paul F. Monahan

Heard on: December 16 and 17, 2021 and July 22, 2022 Reasons for Judgment released on: September 27, 2022

Counsel: R. Mullins, for the Crown D. Lent, for the defendant Robert Cairney

Reasons for Judgment

MONAHAN J.:

Introduction

[1] Mr. Robert Cairney is charged with one count of “over 79” contrary to section 320.14 (1)(b) of the Criminal Code. The trial took place on December 16 and 17, 2021 and continued on July 22, 2022. The alleged offence date is July 25, 2019.

[2] The defence brought a Charter application at trial seeking a stay of the charges or to exclude the breath readings under section 24 (2) of the Charter. The defence alleged breaches of sections 7, 8, 9 and 10 of the Charter. In final argument, the defence only proceeded with arguments related to section 8, 9 and 10 (b) of the Charter. On consent, the trial proper and the Charter application were held together on a blended basis.

[3] The Crown called as witnesses the following persons: Peel Regional Police (“PRP”) Sergeant Scott Hogan who was the staff Sergeant at 22 division at the time Mr. Cairney was brought to that station; Officer Bradley Nelson who was involved in the stop and arrest of Mr. Cairney; Officer Remone Whitley who was the arresting officer and Sergeant Jeff Duffield who took over as staff Sergeant at 22 division at 5 AM on July 25, 2019 at the time Sergeant Hogan completed his shift.

[4] Mr. Cairney testified on the Charter application only. The defence called no other evidence. The defence did have admitted, on consent of the Crown, a letter from Mr. Cairney’s father saying that said that he was available to pick his son up at the police station on the day of Mr. Cairney’s arrest but that he received no call from the police station. The Crown and the defence agreed that Mr. Cairney’s father would have been upset to learn that his son had been charged with a drinking and driving offence and that he was aware of an earlier charge in this regard.

Chronology

[5] I will expand on the evidence and facts in further detail below. Briefly stated, the chronology, based on my findings of fact, is as follows.

1:04 AM-Officer Bradley Nelson sees Mr. Cairney driving a motor vehicle on Main St. in the City of Brampton. He is driving very slowly. He makes a right turn onto Church Street and the officer followed him. The defendant’s vehicle was straddling the center lane. He turned on to Union Street and “hopped” a curb and drove on the lawn of a private home. The defence sought to argue that this had not happened and put several photos or maps to the Officer Nelson (see exhibits 2, 3, 4 and 5). However, Exhibit 6 gives the best view of the area in question, and it shows that the defendant could easily have driven on the lawn, and I find that Mr. Cairney did drive on the lawn as Officer Nelson said he did.

1:07 AM-Office Nelson is at the roadside with Mr. Cairney and he detects alcohol on the breath of Mr. Cairney who has red and watery eyes. Mr. Cairney fumbles for his registration and licence. He has no driver’s licence on him. At this time, Officer Nelson suspects that Mr. Cairney has been driving a motor vehicle with alcohol in his body. He does not have an Approved Screening Device (“ASD”) with him but he calls for one over the police radio.

1:08 AM-Officer Remone Whitley arrives on scene with an ASD. He is briefed by officer Nelson as to the driving on the lawn/hopping the curb, driving slowly and “all over the road” and as to the smell of alcohol coming for Mr. Cairney.

Within a few minutes after 1:08 AM, Officer Nelson and Officer Whitley attend at Mr. Cairney’s vehicle. Officer Whitley can see for himself that Mr. Cairney is disheveled and has glossy eyes. The officers tell Mr. Cairney that he needs to exit his vehicle. Officer Nelson tells Mr. Cairney that he will be providing a breath sample.

Within a few minutes before 1:14 AM Officer Whitley forms his own suspicion that Mr. Cairney has been operating a motor vehicle with alcohol in his body. At this time, he makes an Approved Screening Device (“ASD”) demand for Mr. Cairney to provide a breath sample.

1:16 AM-after providing two insufficient blows into the ASD, Mr. Cairney blows into the ASD and a failure result is generated. He was placed under arrest for excess blood alcohol.

1:21 AM- Rights to counsel are provided. Mr. Cairney says he would like to call a lawyer but does not give a name of counsel at this time.

123 AM-An approved instrument demand and caution are given.

1:26 AM-Officer Whitley clears the scene with Mr. Cairney.

1:32 AM-Officer Whitley and Mr. Cairney arrived at 22 division.

1:38 AM-a call is made to Mr. Cairney’s counsel of choice, Mr. Douglas Lent. No callback is ever received from Mr. Lent.

1:44 AM-Further rights to counsel are provided in respect of an alleged breach of a Provincial Offences Act probation.

2:22 AM-The first breath sample is provided, and it registers 220 mg of alcohol in 100 mL of blood.

2:45 AM-A second breath sample is provided, and it registers (truncated) 200 mg of alcohol in 100 mL of blood.

2:55 AM-Mr. Cairney is placed in the cells.

3:11 AM -The cells officer provides the breath readings to Sergeant Hogan.

3:45 AM -Officer Whitley advises Sergeant Hogan that Mr. Cairney is a suspect in a fraud involving “accommodation”.

4:30 AM- Officer Singh (another officer) advises Sergeant Hogan that Mr. Cairney will be charged with accommodation fraud.

5 AM-Staff Sergeant Duffield takes over for acting Staff Sergeant Hogan.

7:46 AM-Mr. Cairney is released from the station. There is no evidence as to how he got home.

The Section 8 Issues

Introduction to the Section 8 Issues

[7] The defendant submits that there was a violation of section 8 of the Charter for two reasons: first, it is submitted that the police did not meet the “immediacy requirements” of section 320.27 (1)(b) of the Criminal Code; and second, it is submitted that the arresting officer, Officer Whitley, could not reasonably rely on the ASD “fail” result because of a residual mouth alcohol issue. Further, it is submitted that he failed to properly understand how to operate the ASD because he thought the ASD would produce a failure at 80 mg of alcohol in 100 mL of blood rather than at 100 mg of alcohol in 100 mL of blood.

[8] Where there is a warrantless search or seizure, the Crown has the burden of establishing, on a balance of probabilities, that the search or seizure was a reasonable one: R. v. Collins, [1987] 1 S.C.R. 265 at paras. 21-23. This proposition is applicable to the case at bar as the ASD sample and the approved instrument samples were all warrantless searches. To establish that a search or seizure was reasonable, the Crown must show that the police had reasonable and probable grounds to conduct the search or seizure. In the case of alleged drinking and driving, this will relate to, among other things, the demands made and subsequent obtaining of the breath samples.

The Law with respect to the “immediately” or the forthwith requirement

[9] Section 320.27(1)(b) of the Criminal Code provides that if a peace officer has reasonable grounds to suspect that a person has alcohol in their body and that the person has within the preceding three hours operated a motor vehicle, the peace officer may, by demand, require the person 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” (my emphasis).

[10] A predecessor provision under section 254(2) of the Criminal Code provided that a peace officer could in similar circumstances require the person to “provide forthwith a sample of breath” (my emphasis) for an analysis by an ASD. In my view, the prior case law concerning the “forthwith” requirement under section 254(2) applies to the “immediately” requirement in section 320.27. I say this because, among other reasons, the Supreme Court determined that the “forthwith” requirement under s. 254(2) meant “immediately” or “without delay”: see R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at paras. 13-14 and 44.

[11] As I have indicated, the “immediately” requirement in section 320.27 is governed by the prior case law concerning the “forthwith” requirement in the now repealed section 254(2). Accordingly, the immediately requirement applies both to the demand by the peace officer and the response by the person who is subject to the demand: see R. v. Quansah (2012), 2012 ONCA 123, 92 C.R. (6th) 1 (Ont. C.A.) at para. 47.

[12] The Court of Appeal in Quansah at para 34 said that “if there has been a realistic opportunity to consult counsel that has not been accorded to the detained person when the sample is demanded and the person has responded to the demand by either providing the sample or refusing to blow, the “forthwith” requirement is not met.” However, the Court of Appeal made clear that whether there was time to consult counsel is only one factor in the forthwith analysis (see Quansah paras 34, 42 and 49).

[13] The forthwith requirement is “inextricably linked to its constitutional integrity”: see Quansah at para. 21 and 22 citing R. v. Woods, supra at para. 29. If the forthwith requirements of s. 254 (2) are met, there is no obligation to advise the driver of his or her right to counsel and there is no violation of section 8, 9 and 10 (b) of the Charter. The forthwith requirement is a justifiable limit under s. 1 of the Charter on the person’s rights under ss. 8, 9 and 10 (b) of the Charter: see R. v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) at para. 27 citing R. v. Thomsen (1988), 40 C.C.C. (3d) 411; and R. v. Quansah, supra at para 22.

[14] The Court of Appeal in Quansah stated further that “the immediacy requirement must consider all of the circumstances” and that the time from the formation of the suspicion to the making of the demand to the response to the demand be “no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated under s.254(2)” (see Quansah at paras. 47 and 48). The analysis “must always be done contextually” (Quansah at para 45).

[15] The courts have held that the forthwith requirement requires that the demand be made by the officer as soon as he or she forms the requisite grounds to make the demand: (see Quansah, supra at para. 25).

[16] If the forthwith or immediately requirement is not met but breath samples are nevertheless provided, they will only be inadmissible if the accused can show that they should be excluded under s. 24(2) of the Charter: see R v. MacMillan (2013), 2013 ONCA 109, 114 O.R. (3d) 506 (C.A.) at para. 42.

Application of the Law to this Case

[17] Applying the law to this case, I am satisfied that the immediacy requirement under section 320.27 (1)(b) was met. The facts include the following. At 1:07 AM Officer Nelson formed the suspicion that Mr. Cairney had been operating a motor vehicle with alcohol in his body, but he did not have an ASD with him. It is true that he could have made the ASD demand at that time without the ASD. In any event, 1:07 AM is the start time for the immediacy requirement analysis.

[18] Quansah does permit some flexibility in the immediacy requirement in the context in which it arises. As I have said, here the context included that Officer Nelson did not have an ASD with him, but he called for one and it arrived about one minute later at 1:08 AM. Officer Nelson briefed Officer Whitley which took about “a minute or so” (see December 16, 2021, transcript at page 71). Then Officers Nelson and Whitley had Mr. Cairney exit his vehicle and walked to Officer Whitley’s cruiser. Officer Nelson made a “soft [ASD] demand” on Mr. Cairney as he exited the vehicle by telling him that he would be providing a breath sample. Officer Whitley demonstrated to Mr. Cairney how to blow into the device and Officer Whitley made a formal ASD demand a minute or two before 1:14 AM.

[19] Mr. Cairney provided two insufficient samples and on his third try at 1:16 AM he provided a sufficient sample which was a failure. He was arrested at this time for excess blood alcohol.

[20] In this case the delay for considering whether the immediacy requirement was met was from 1:07 AM (when Officer Nelson suspected that Mr. Cairney had been operating a motor vehicle with alcohol in his body) to about 1:12 or 1:13 AM when Officer Whitley made the formal demand and was in a position to receive a sample. Accordingly, the delay was about five or six minutes at most. It made sense that Officer Nelson, the road Sergeant, would have the more junior officer, Officer Whitley, proceed with the arrest and breath demand as Officer Whitley was there very quickly and had the ASD.

[21] The delay here of about five or six minutes was not sufficient to consult with counsel which, as I have said, is only one factor. Moreover, in the overall circumstances, a delay of five or six minutes was not a violation of the immediacy requirements of section 320.27 (1)(b). I note that Mr. Cairney knew when he exited the car at approximately 1:09 to 1:12 AM that he would be required to provide a breath sample. In other words, Mr. Cairney knew as early as two to five minutes after Officer Nelson formed his suspicion that Mr. Cairney would be required to provide a breath sample.

[22] The defendant submits that I should follow my own decision in R. v. Nithiyanathan 2016 ONCJ 426 where I found a violation of the forthwith requirement. Each case must be decided in the context in which the issues arise. That is the direction of the Court of Appeal in Quansah. The Nithiyanathan case was quite different-there was a longer delay in the immediacy assessment in that case (9 minutes) and the police in that case spent considerable time causing the delay by investigating a passenger who they had no right to question. There are other differences as well and the case of Nithiyanathan does not change my view that there was no immediacy violation in the case at bar.

The Residual Mouth Alcohol and Self Test issues

[23] For police to arrest someone, they must have reasonable and probable grounds (“RPG”). RPG requires, among other things, a subjectively held honest belief on the part of the arresting officer that the person has committed an offence and that subjective belief must be objectively reasonable.

[24] A residual mouth alcohol problem can lead to a false positive reading if the ASD test is done within 15 minutes of alcohol consumption. If an officer knows that residual mouth alcohol will make a result unreliable, then there can be no honestly held subjective belief that an offence has been committed: see R. v. Notaro 2018 ONCA 449 at para 38.

[25] The Court of Appeal in Notaro also said the following at paragraph 43 with respect to the objective grounds for the RPG test

(a) “if the information known to an arresting officer about a suspect's residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.

(b) if it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.”

[26] The failure of an officer to turn their mind to the residual mouth alcohol issue will not in and of itself amount to a Charter breach (see Notaro at para 50).

[27] In this case, Officer Nelson saw Mr. Cairney’s vehicle at 1:04 AM. The failure was ultimately received at 1:16 AM-12 minutes later. It would appear that neither Officer Nelson nor officer Whitley turn their mind to the possibility of residual mouth alcohol or the possibility of recent consumption of food. The usual practice is to wait 15 minutes after the consumption of alcohol or food.

[28] In this case, I infer that Officer Whitley had a subjective belief that the ASD he was using was in proper working order. He had checked the calibration on the device, and he did a self test at the beginning of his shift which gave a zero reading and this made sense to him because he had not been drinking. When the failure test result was received from Mr. Cairney, he reasonably believed that Mr. Cairney had just been operating a motor vehicle with over 80 mg of alcohol in 100 mL of blood.

[29] This belief was objectively reasonable. Officer Whitley had information that the ASD was properly calibrated and his self test at the beginning of the shift confirmed this belief. Further, it was consistent with other information Officer Whitley had namely that Mr. Cairney had shown poor driving by driving “all over the road” and up on the curb and appeared disheveled and had alcohol on his breath. It is more than arguable that even absent the ASD result, Officer Whitley had enough evidence to arrest Mr. Cairney for impaired but I need not decide that point. I know of course that Officer Whitley chose to make an ASD demand and ultimately arrested for over 79, not impaired. My point here is that Officer Whitley’s subjective belief in all the circumstances that an offence of over 79 had been committed was objectively reasonable. There was no evidence at all which would cause Officer Whitley to believe that Mr. Cairney had been drinking or eating in the 15 minutes prior to the ASD failure. The mere possibility that he had been drinking or eating during that time is not enough to undermine the subjective belief that the offence of over 79 had been committed here. I repeat that that his subjective belief was objectively reasonable.

[30] Two further points need to be addressed. Officer Whitley did a self test at the beginning of the shift, but he said he did not do a further test just before receiving a sample from Mr. Cairney as it was his training to do. He was not sure if he had used the device with anyone else that evening prior to using it with Mr. Cairney. Officer Nelson said that Officer Whitley did do a self test just before receiving the failure breath result in this case. I note that defence counsel did not raise this issue in closing argument, but he did touch on the point in his cross-examination. In my view, it does not matter whether Officer Whitley did a self test just before receiving the sample for Mr. Cairney. There was no evidence to suggest that the failure to do such a test would provide a false result for Mr. Cairney. He had done the self test at the outset of his shift and was clearly satisfied that the device was operating properly.

[31] The other point that defence counsel raises is the evidence that Officer Whitley gave to the effect that the ASD was calibrated to fail at 80 mg of alcohol in 100 mL of blood. With defence counsel’s fair assistance, Officer Whitley corrected this evidence to be that the device is calibrated to fail at 100 mg of alcohol in 100 mL of blood, which I understand to be the correct calibration of an ASD. The initial evidence by Officer Whitley to the ASD producing a failure at 80 mg of alcohol in 100 mL of blood was a minor error which the officer corrected in his evidence. Officer Whitley knew that if he received a failed ASD result it would provide a reasonable ground for him to believe that Mr. Cairney’s blood alcohol was at least 80 mg of alcohol in 100 mL of blood.

[32] In summary on the section 8 issue, for the reasons outlined above, in my view there was no section 8 violation. The immediacy requirement for an ASD demand and receipt of breath sample was met. I am also satisfied that there was no residual mouth alcohol problem here nor any failure by Officer Whitley to properly understand how the ASD worked.

Section 10(b)

[33] The defendant submits that there was a section 10(b) violation for two reasons. First, he argues that there was a five minute delay in giving the rights to counsel. That delay was from 1:16 AM when the arrest was made to 1:21 AM when rights to counsel were provided. Second, the defendant submits that not enough was done to put Mr. Cairney in touch with his counsel of choice, Mr. Douglas Lent.

[34] In my view, the case law is clear that the “immediacy” requirement for rights to counsel has less flexibility than the immediacy requirement for making an ASD demand. I agree with the defence that there was a section 10(b) violation with respect to the delay in providing rights to counsel in this case. As mentioned above, the arrest was at 1:16 AM and rights to counsel were provided at 1:21 AM. In my view, the delay was not quite five minutes. Officer Whitley did handcuff Mr. Cairney to the front due to surgery Mr. Cairney had had to his shoulder. Officer Whitley testified that this was done upon the arrest but he gave no time estimate for it. I would deduct about two minutes from the five minute delay between 1:16 and 1:21 AM to allow for the handcuffing which is an officer safety issue and may be deducted from the right to counsel delay. See my own decision in R. v. Maan 2022 ONCJ 168 at paragraphs 25 to 35 where I explain my conclusion on this point. Let me say that whether the delay was three minutes or five minutes, the delay here was relatively minor in my view.

[35] The reason for the delay in providing rights to counsel was apparently caused by Officer Whitley speaking to Officer Nelson about the identification of Mr. Cairney. The rights to counsel should have been provided right after the handcuffing. Allowing for two minutes for the handcuffing, the delay was about three minutes and this was a breach of s. 10(b), albeit a minor one.

[36] Turning to the counsel of choice issue, at some point after the arrest Mr. Cairney told police that his counsel of choice was Mr. Douglas Lent. Officer Whitley called Mr. Lent at about 1:38 AM and when there was no answer he left a voicemail message for Mr. Lent to call back. Mr. Cairney was brought into the breath room at 2:07 AM, about 30 minutes later. The first sample was provided at 2:22 AM. Mr. Lent did not call back at any time.

[37] The breath room video shows that shortly after Mr. Cairney entered the breath room the breath technician confirmed that police had left a message on Mr. Lent’s voicemail. The officer explained that police only had Mr. Lent’s office number. Mr. Cairney said words recorded on the breath room video to the effect “that is all I have” meaning Mr. Lent’s office number.

[38] Mr. Cairney testified on the Charter application that he in fact had Mr. Lent’s cell phone number but he didn’t want to mention this to the police as he thought the number was confidential. I find this evidence to be highly doubtful but in any event, if Mr. Cairney had Mr. Lent’s cell phone number and he wanted to speak to Mr. Lent he should have told the police that he had his number. If he had the number and failed to tell them, he was not reasonably diligent with respect to exercising his right to counsel.

[39] Further, I note the police offered to call Mr. Lent again but Mr. Cairney said it was not necessary. The police also offered to put Mr. Cairney in touch with duty counsel and he declined. Finally, they asked him if he wanted to call another lawyer and he said he did not.

[40] Considering all of the circumstances including the fact that it was the middle of the night and the police offered to call Mr. Lent again and offered to get duty counsel or call another lawyer, I see no violation of section 10(b) related to the counsel of choice issue.

Section 9

[41] Section 9 of the Charter provides “everyone has the right not to be arbitrarily detained or imprisoned”.

[42] The defendant submits that Mr. Cairney had his section 9 Charter rights breached because the police kept him in custody longer than necessary.

[43] The brief chronology on this issue is that Mr. Cairney gave his second breath sample at 2:45 AM. That sample registered 209 mg of alcohol in 100 mL of blood. The truncated reading was 200 mg of alcohol in 100 mL of blood. Mr. Cairney was placed in the cells at 2:55 AM.

[44] There was no mattress to lie on nor was he given any food. It is not clear whether he received any water. He made no other complaints in his testimony about any problems with his detention. He was released from custody at 7:46 AM. There is no evidence as to how he got home.

[45] In my view, while staff Sergeant Hogan was acting as staff Sergeant until 5 AM, there was no overholding giving rise to a section 9 violation. Sergeant Hogan properly considered the relevant factors and chose not to release Mr. Cairney before his shift ended at 5 am. I do not believe he would have released him by 5 AM even if the paper work was done. Staff Sergeant Hogan had the breath readings by 3:11 AM. Sergeant Hogan considered that the readings were high. He did consider that Mr. Cairney was able to comprehend the charges. He knew that Mr. Cairney had a rotator cuff injury. He knew he had no criminal record and he considered him to be cooperative. Sergeant Hogan had information that Mr. Cairney had told Officer Whitley that he had no one to pick him up and that he would walk home. I note that Officer Whitley could not remember making any inquires of Mr. Cairney about whether he had someone to pick him up (see page 80 of the December 17, 2021 transcript).

[46] Mr. Cairney said that no one asked him if he had someone to pick him up and that if he had been asked, he would have had his father pick him up. I believe Officer Whitley did ask Mr. Cairney if he had someone to pick him up-otherwise there would be no basis for Sergeant Hogan to have the information about walking home. I note that Staff Sergeant Duffield who took over at 5 AM had the same walking home information which he in turn received from Sergeant Hogan. It is clear to me that Mr. Cairney did not mention to police that his father was available to pick him up. I note that there is no evidence as to how Mr. Cairney got home that evening when he ultimately was released. I infer from Exhibit 11 that Mr. Cairney’s father was not called to pick him up when he was released which is contrary to Mr. Cairney’s own evidence that he would have had his father pick him up if he had been asked. I should say that I found Mr. Cairney’s evidence to have a number of inconsistencies giving me significant concerns about the reliability and credibility of his evidence. For example, he disagreed that his father would be upset if he had known about the charges he was facing even though that fact (i.e. that his father would be upset to learn this) became an agreed fact at trial. He also failed to properly recall that he been given rights to counsel again on the breath room video. I simply don’t believe that Mr. Cairney would have involved his elderly father in the middle of the night to have him pick him up after Mr. Cairney had been charged with over 79 and his father knew that this was not the first time he was charged with a drinking and driving offence.

[47] Sergeant Hogan testified that he was “towards the view” the Mr. Cairney was releasable as of 5 AM and he thought he would have told Staff Sergeant Duffield this when he took over at 5 AM. Staff Sergeant Duffield testified that Staff Sergeant Hogan did not tell him that this was his opinion. I agree with Staff Sergeant Duffield that Sergeant Hogan did not tell him this-otherwise Sergeant Duffield would have made a note of it. Further, Sergeant Hogan said that the shift was changing, and I consider that Sergeant Hogan had not yet decided that Mr. Cairney was releasable at 5 AM. In my view, the police could have kept Mr. Cairney significantly later than 5 AM given, among other things, his very high breath readings which would only eliminate every hour at about 15 mg of alcohol per 100 ml of blood. He also demonstrated poor judgment by drinking and driving. Finally, I infer that he must have been asked if he had a way to get home and he must have said he would walk, which would mean that he would not have any help from anyone to ensure that he got home safely.

[48] Notwithstanding what the police could have done, Sergeant Duffield did not have any clear evidence to give as to why Mr. Cairney was kept from 5 AM to 7:46 AM. In his testimony, he seemed taken aback that he was even called to testify in this case.

[49] Staff Sergeant Duffield is an experienced staff Sergeant and I accept that he was working to release all prisoners who were releasable as soon as possible. I also recognize that his evidence was that he did not make some inquiries concerning some of the “Price” factors which refers to the section 9 Charter factors outlined in the decision of Justice Durno in R. v. Price 2010 ONSC 1898 at para 93. However, Sergeant Duffield’s evidence properly understood was that he emphasized certain factors over others. In particular, his approach to releasing prisoners in the position of Mr. Cairney was to focus on whether they comprehended their obligations and whether they were well enough to take care of themselves. If they did, they would be released.

[50] Having said that, I consider that there was an overholding here of approximately two hours. I say that because the hold up here was the paperwork for releasing Mr. Cairney. Staff Sergeant Duffield was not asked about this point in his evidence, but Officer Whitley testified that Staff Sergeant Duffield was upset with him and had stern words for him because he was taking too long to prepare the paperwork. Staff Sergeant Hogan said that he too had been waiting for paperwork.

[51] To be fair to the police, they had to prepare paperwork for the over 79 charge (to be prepared by Officer Whitley) and for the fraud accommodation charge (to be prepared by Officer Singh). Nevertheless, based on the upset expressed by Staff Sergeant Duffield as explained by Officer Whitley, and based on my consideration of the whole of the evidence, Mr. Cairney was held longer than he should have been. He was held up because of a paperwork problem. It is not the role of the court to lay down precise timing rules concerning the preparation of paperwork by the police. Still, it has been clearly established here by the defence that the paperwork was significantly delayed without good reason and this appears to be the only reason for the continued detention past 5:30 AM. I consider that all of the paperwork should have been completed by no later than 5:30 AM. and that therefore the overholding was about two hours.

[52] To be clear and to summarize on the overholding issue, police could have detained Mr. Cairney to 7:46 AM on, among other things, his high breath readings and his lack of someone to take him home as well as his poor judgment in driving with a high blood alcohol content. But police did not detain him from 5:30 AM to 7:46 AM for those reasons. They detained because of the lack of paperwork and this resulted in what I estimate as approximately a 2 hour overholding.

Section 24 of the Charter

[53] I have concluded that there was a 3 to 5 minute delay with respect to giving rights to counsel which caused a section 10(b) breach. There was also a section 9 breach by reason of an approximate 2 hour overholding.

[54] I note that in closing argument, defence counsel sought the exclusion of evidence pursuant to section 24(2) of the Charter. He did not advocate for a stay under section 24(1) based on the overholding and the other alleged violations of the Charter. The section 24 (1) stay was mentioned in the defendant’s written Charter application and, as a result, I will address section 24(1) issue briefly.

[55] I do not consider that it would be appropriate to stay this action under section 24(1) of the Charter based on the two hour overholding and the three to five minute delay with respect to the giving of rights to counsel. Put simply, this is not one of the clearest of cases calling for a stay. As concerns the overholding, as I have explained, the police could have legitimately detained Mr. Cairney here until 7:46 AM based on his breath readings and his lack of a responsible person to come and get him and his poor judgment. That is to say, the police could have addressed the paperwork delay on other grounds, but they did not do so here. The bottom line is that this case is not even close to being one in which a stay should be granted for the overholding.

[56] The next question is whether section 24 (2) is even available to exclude the breath readings based on the section 10(b) and section 9 breaches here.

[57] As concerns the section 9 breach, the case law is divided as to whether section 24(2) is available to exclude the breath readings obtained before the Charter breach. The issue is whether the breath readings were “obtained in a manner” that was connected to the section 9 breach of the defendant’s right to be free from arbitrary detention. The legal debate is reflected in several summary conviction appeal cases including in R. v. Cheema 2018 ONSC 229, R. v. Larocque 2018 ONSC 6475, R. v. Brar 2020 ONSC 4740 and R. v. King 2019 ONSC 5748. The issue, in part, follows from the Ontario Court of Appeal’s decision in R. v. Iseler (2004), 190 C.C.C. (3d) 11. In that case, the Ontario Court of Appeal held that there was “no temporal or causal connection” between the breach in that case which was an eleven hour overholding and the breath sample evidence gathered in that case which had been obtained many hours before the Charter breach.

[58] The question arises as to whether Iseler has been “overruled” by the Ontario Court of Appeal’s decision in R. v. Pino 2016 ONCA 389 which held that section 24(2) could be used to exclude evidence before a Charter breach. Pino was not a section 9 breach case.

[59] Cheema, Larocque and Brar held, based on Iseler, that section 24 (2) was not available to exclude evidence in an overholding case where the evidence is obtained before the Charter breach. Justice Dennison in King held that section 24 (2) is potentially available to exclude evidence obtained before an overholding although Justice Dennison in King ultimately declined to exclude the breath sample evidence in that case.

[60] Iseler was not a s. 24(2) case, and it did not expressly find that section 24(2) was not available. Given that the binding case law on me is divided, either position is open to me. I am of the view that Justice Dennison is correct namely that section 24(2) is potentially available in an overholding case to exclude evidence obtained before the overholding. Put simply, Pino has changed the section 24(2) calculus.

[61] The point here is that in light of Pino, it can be said that the breath samples in this case, like the breath samples in King, were “obtained in a manner” that violated Mr. Cairney’s Charter rights. Accordingly, the Court must undertake the section 24(2) analysis.

The Section 24(2) Analysis in this Case

[62] Let me say that the section 10 (b) breach by itself or in combination with the section 9 breach does not support the exclusion of the breath sample evidence under section 24(2) in any material way. The section 10(b) breach was brief namely only 3 to 5 minutes. The delay in giving rights to counsel was attributable to the inexperience of a relatively new police officer (he had been on the road just over a year). On my view of the facts, the police did not seek to obtain evidence from Mr. Cairney without giving him an opportunity to consult counsel. Officer Whitley made an error when he went to speak to Officer Nelson about the identification issue concerning Mr. Cairney. He should have provided rights to counsel right away after the arrest. However, the delay was only three minutes on my calculation. There should have been no delay but I consider the breach to be of low seriousness and to have had a low impact on the Charter rights of Mr. Cairney. I am aware of the alleged “systemic” issues concerning the delay in providing rights to counsel in Peel but nevertheless I consider that the section 10 (b) breach here, considered by itself or in conjunction with the section 9 issue, was not serious and had little impact on Mr. Cairney and does not justify the exclusion of evidence.

[63] Turning to the section 9 breach, like the case of King, the seriousness of the section 9 breach in this case was low. In this case, the overholding was relatively brief at about two hours. As I have already said, based on the high breath readings and the lack of a responsible person to come and get him and his poor judgment, Mr. Cairney could have been detained without a section 9 violation. However, the police did not seek to detain him on that basis. The reason for the overholding detention was strictly related to the failure to prepare the paperwork which simply took too long.

[64] As for the impact on Mr. Cairney’s Charter rights, I would say the impact was low. He made no specific complaint in his evidence about the cell conditions. At two hours, the overholding was relatively brief compared to other cases where section 9 violations have been found and I would put the impact at low to moderate.

[65] Society’s interest in adjudication on the merits favours the inclusion of the evidence. Balancing all of the Grant factors and considering both the s. 10(b) and section 9 breaches, the admission of the breath samples would not bring the administration of justice into disrepute.

[66] In summary on the section 24 issue, this is not a case for a stay under section 24(1). Further, the section 9 and 10(b) breaches, looked at individually and together do not support the exclusion of the breath sample evidence. I will consider the possibility of a lesser remedy under section 24(1) for the Charter breaches once the parties have had the opportunity to consider my reasons.

[67] For these reasons, there will be a finding of guilt on count 1 contrary to section 320.14 (1)(b) of the Criminal Code.

Released: September 27, 2022 Signed: Justice Paul F. Monahan