Court and Parties

DATE: December 19, 2022 ONTARIO COURT OF JUSTICE Old City Hall – Toronto

BETWEEN: HIS MAJESTY THE KING — AND — MIKHAIL KORALOV

For the Crown: B. Kettles For the Defendant: A. Little

Heard: July 22-23, December 8, 2021; August 22, November 4, 2022

REASONS for JUDGMENT on CHARTER MOTIONS

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Mr. Koralov is charged with impaired driving and having a blood alcohol concentration equal to or exceeding 80 mg in 100 mL of blood within two hours of ceasing to operate a conveyance.

[2] The charges arise out of a driving incident culminating in Mr. Koralov’s arrest on May 26, 2019. Once back at the station Mr. Koralov eventually provided two samples of his breath, registering 120 mg/100 mL of blood and 110 mg/100 mL of blood respectively, according to the certificate of analysis.

[3] Mr. Little, on behalf of Mr. Koralov, has brought several Charter applications. Broadly speaking he alleges that:

(1) The arresting officer did not read Mr. Koralov his rights to counsel soon enough after his arrest, thus violating his section 10(b) Charter rights.

(2) The information conveyed to Mr. Koralov by the arresting officer regarding his right to counsel was constitutionally infirm and thus a further violation of his section 10(b) Charter rights.

(3) The arresting officer denied Mr. Koralov access to counsel by not allowing him to call a lawyer from the back of the police car – another 10(b) violation.

(4) The arresting officer’s decision to handcuff Mr. Koralov at the roadside and then again at the police division, where he was handcuffed to a metal bar while awaiting processing, constituted a violation of Mr. Koralov’s section 7 and 9 Charter rights.

(5) The breath sample eventually taken from Mr. Koralov was not taken as soon as practicable, which he argues constitutes a section 8 Charter violation.

[4] Mr. Little further argues that the numerous Charter violations support the exclusion of the breath sample readings pursuant to s. 24(2) of the Charter.

[5] Mr. Kettles argues that Mr. Koralov’s Charter rights were not violated, but if they were, the violations do not support the exclusion of the breath sample readings.

B. THE EVIDENCE

(a) Introduction

[6] The trial has proceeded in a somewhat blended fashion and is not yet complete. The evidence relevant to the Charter issues consists of police video of their interaction with Mr. Koralov, the testimony of P.C. Josh McSweeney, the testimony of Mr. Koralov and a brief agreed statement of fact.

[7] I found both P.C. McSweeney’s and Mr. Koralov’s accounts as to what transpired that night to be truthful and reliable. Their testimony did not materially conflict as between each other nor with the video evidence.

[8] I thus have no difficulty making several findings of fact on the aspects of the evidence relevant to the Charter applications.

(b) Findings of fact

[9] On May 26, 2019, at approximately 2:30 am, P.C. McSweeney and his partner arrived on scene on Bloor Street near Dufferin Street in Toronto, in response to a radio call to the effect that a drunk driver who had just rear-ended a taxi was trying to leave the scene.

[10] Upon exiting the police car, P.C. McSweeney encountered a witness who pointed out Mr. Koralov as the alleged “drunk driver”. P.C. McSweeney was also told by witnesses that Mr. Koralov had begun to fight with several of the witnesses on scene before the arrival of the police.

[11] P.C. McSweeney spoke to and observed Mr. Koralov and developed reasonable and probable grounds to arrest him for impaired driving. He arrested him at 2:31:45 am and immediately handcuffed him to the rear.

[12] P.C. McSweeney’s decision to handcuff Mr. Koralov immediately upon arresting him was motivated by three things: (1) this was his standard practice in all 500 or so criminal arrests he had ever been involved in; (2) he was trained to do so, and (3) there was a large boisterous crowd at the scene of the arrest, and P.C. McSweeney had been told that Mr. Koralov had been acting aggressively and had tried to drive away prior to the arrival of the police.

[13] P.C. McSweeney then escorted Mr. Koralov to the side of his police car where he performed a pat-down search. He then placed him in the back of the police car and asked for identification. After reviewing the identification, he then read Mr. Koralov his rights to counsel at 2:36 am, four to five minutes after the arrest. Three minutes later P.C. McSweeney made a demand for a breath sample.

[14] His decision not to read Mr. Koralov his rights to counsel until Mr. Koralov was in the back of the police car was motivated by his training and standard practice, i.e., first arrest, then handcuff, then search, then place the detainee into the back of the police car and only then read rights to counsel. P.C. McSweeney admitted that there was nothing preventing him from reading Mr. Koralov his rights to counsel immediately after the arrest.

[15] P.C. McSweeney resorted to the back of his memo book when reading Mr. Koralov his rights to counsel. The rights to counsel were not communicated smoothly, however. This is how it unfolded:

“I’m arresting you for impaired and care or control. It is my duty to inform you that you have the right to retain counsel without delay, you have the right to telephone any lawyer you wish…(interrupted by radio communications between dispatch and P.C. McSweeney )…you also have the right to free advice from a legal aid lawyer, if you are charged with an offence…(interrupted by radio communications between dispatch and P.C. McSweeney)…if you are charged with an offence you may apply to the Ontario legal Aid plan, 1-800-265-0451 is the number that will put you in contact with the legal aid right now, duty counsel lawyer will be provided for free legal advice, do you understand?( no pause for an answer) - You get a free ah lawyer. Do you understand?”

[16] P.C. McSweeney found these interruptions distracting and conceded that they might have distracted Mr. Koralov.

[17] In response to this speech, Mr. Koralov said “yes”. P.C. McSweeney then asked if Mr. Koralov wanted to speak to a lawyer now and he said “yes”. P.C. McSweeney then told Mr. Koralov that contact with a lawyer would take place back at the station.

[18] P.C. McSweeney knew that Mr. Koralov had a cell phone on him, but after Mr. Koralov said he wanted to speak to a lawyer P.C. McSweeney did not turn his mind to allowing Mr. Koralov to use his cell phone to call a lawyer from the back of the police car during the 18 minutes that P.C. McSweeney attended to other matters prior to driving to 32 Division. It was P.C. McSweeney’s standard practice only to facilitate access to counsel once at the police division. He had, in all his experience, never departed from this practice.

[19] P.C. McSweeney left the scene, destination 32 Division, at 2:54 am, with Mr. Koralov in the rear of his car. They arrived at 32 division at 3:16 am. Once at 32 Division P.C. McSweeney introduced Mr. Koralov to the booking sergeant. He told the sergeant that he had administered rights to counsel to Mr. Koralov and that Mr. Koralov understood and “wanted to speak with duty counsel”. It is P.C. McSweeney’s standard practice not to inquire of an arrestee if he has private counsel. Unless the arrestee tells the officer about private counsel P.C. McSweeney contacts duty counsel.

[20] Mr. Koralov was then ushered to a room at 32 Division referred to as the “report room” - occupied mostly by police going about their duties. He was seated on a bench with several other prisoners and handcuffed to a bar attached to the wall, just like the other prisoners. He remained handcuffed to the bar until his release from the station at around 5:30 am, except when speaking to duty counsel at 3:33 am and when providing his two breath samples at 4:42 am and 4:48 am.

[21] This was P.C. McSweeney’s first visit to 32 Division, and he handcuffed Mr. Koralov to the bar because that’s what he was instructed to do by senior officers at that division. At Traffic Services and other Toronto Police Service (T.P.S.) Divisions, where P.C. McSweeney usually works, prisoners are housed uncuffed in cells or locked rooms while awaiting processing.

[22] Mr. Koralov recalled being advised of his rights to counsel. Because the question “do you understand” came immediately on the heels of being told he got a free lawyer, Mr. Koralov believed he was only being asked if he understood that fact. As for the information that had been conveyed earlier, he did not understand it entirely and he did not tell the officer that he didn’t understand that earlier information because he was not asked. After his encounter with P.C. McSweeney concerning his rights to counsel he did not understand that he could contact any lawyer he wished.

[23] The police put Mr. Koralov in contact with duty counsel at the station. Mr. Koralov was not satisfied with his encounter with duty counsel. He got the sense that duty counsel was “reading from a script”. He was also unsure as to whether to trust them, given that they “worked for the government”. He did not complain to the police about that interaction because “[he] didn’t think he had any other options”. He was never told at the station that he could call his family to find a private lawyer, nor was he offered access to the internet or any directories.

[24] Mr. Koralov did not know the names of any criminal lawyers, but had he been given his cell phone while in the police car he would have used it to look for a lawyer on the internet. This is how he had succeeded in finding Mr. Little after his release.

[25] As concerns the handcuffing, both at the scene and at 32 Division, Mr. Koralov found the cuffs painful. At 32 division he felt like he was being treated “like an animal”. He would have preferred to be locked in a room uncuffed. He did not complain to the police because he didn’t think it would do any good.

(c) Admitted facts

[26] On May 26, 2019, on the same floor as the report room at 32 Division, there were eight cells and a bullpen. On the 2nd floor of 32 Division there were five interview rooms. A directive at 32 Division in place at the time read as follows:

“Where an officer investigates a prisoner and the prisoner is held within the report room during the investigation, the prisoner shall be handcuffed to the prisoner’s bench. Exceptions to the foregoing shall only be made at the discretion of the Officer in Charge.”

C. THE ALLEGED 10(B) VIOLATIONS

(a) Introduction

[27] Mr. Little alleges several s. 10(b) violations. He argues that:

(1) Mr. Koralov ought to have been given his rights to counsel immediately upon being arrested.

(2) The rights to counsel incantation (found at the rear of all T.P.S. officers’ notebooks) is constitutionally insufficient.

(3) The circumstances under which P.C. McSweeney read Mr. Koralov his rights to counsel rendered them incomprehensible, leading to a failure on the part of P.C. McSweeney to provide Mr. Koralov with constitutionally mandated information.

(4) Mr. Koralov ought to have been afforded the opportunity to contact a lawyer on his cell phone while in the back of the police car.

(5) The police ought to have offered Mr. Koralov access to means to contact private counsel rather than simply putting him on to duty counsel.

(b) The immediacy issue

[28] It is now well settled law that the police must inform a detainee of his rights to counsel immediately upon arrest, unless to do so poses undue risk to the safety of officers or the public. R. v. Debot, [1989] 2 S.C.R. 1140 at paras 3 and 42; R. v. Suberu, 2007 ONCA 60 at paras 47-48; R. v. Pino, 2016 ONCA 389.

[29] There was nothing standing in the way of P.C. McSweeney reading Mr. Koralov his rights to counsel immediately after arresting him. This alleged breach has been made out.

(c) The Toronto Police standard rights to counsel

[30] Mr. Little argues that even in ideal circumstances, the standard rights to counsel routinely read to detainees by the T.P.S. fail to adequately inform a detainee of what the prevailing jurisprudence requires be communicated. He further argues that if the standard T.P.S. incantation was ever constitutionally adequate, evolving technology has rendered it obsolete.

[31] It is convenient to set out again the content of the standard T.P.S. right to counsel. It goes essentially as follows:

“I’m arresting you for (insert alleged offence).

It is my duty to inform you that you have the right to retain counsel without delay.

You have the right to telephone any lawyer you wish.

You also have the right to free advice from a legal aid lawyer.

If you are charged with an offence you may apply to the Ontario Legal Aid plan.

1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now.

Do you understand?”

See R. v. Devries, 2009 ONCA 477 at para. 11.

[32] Although this is not required by the prevailing Supreme Court jurisprudence (see R. v. Baig, [1987] 2 S.C.R. 128), the standard T.P.S. practice is, if the detainee says he understands, for the arresting officer to ask the detainee if “he wants to call a lawyer now”.

[33] Mr. Little argues that the standard rights to counsel are problematic. They do not invite the detainee to express his level of understanding for each new concept that is conveyed to him. He is only asked if he understands at the end of the delivery of several ideas. They also purport to provide the detainee with an opportunity to physically make a telephone call to counsel when, as a matter of practice, the police make the call and put the detainee on the phone after contact with counsel is established, usually by a return call from counsel to the station phone. They say nothing about what resources are available to the detainee should he not have a lawyer in mind and wants to look for one. See Meryl Friedland and Dr. Andrew Haag, You Have the Right to Be Read Something That You Probably Won’t Understand: Comprehensibility of the Right to Counsel, 2022 70 C.L.Q. 485.

[34] These observations are not new, and I share Mr. Little’s concerns. However, in my view the Court of Appeal has made it clear that the use of the standard T.P.S. rights to counsel is not a per se constitutional violation as concerns any of the noted difficulties set out above. R. v. Devries, supra, R. v. Zoghaib, aff’d 2006 ONCA 209.

[35] What matters is whether, in the particular circumstances of the case, the arresting officer delivered to the detainee, a readily understandable package of the constitutionally mandated information as set out in R. v. Brydges, [1990] 1 S.C.R. 190 and R. v Bartle, [1994] 3 S.C.R. 173. R. v. Magalong, 2013 BCCA 478, para. 28.

(d) The circumstances of the communication in this case

[36] Even though the standard police script is Charter compliant, the police are required to ensure that when they read this script, they do so in such a way, and in such a place that it is reasonable to presume that the detainee has an adequate opportunity to understand the communication. No one would argue that reading the rights to counsel to a detainee on the dancefloor of a loud discotheque, or while the detainee is concentrating on his interaction with an emergency room doctor would be satisfactory.

[37] There seems to be a presumption in Canadian law that a detainee understands the standard script, insofar as there is an onus on the detainee to point to unusual circumstances that rebut the presumption. It is not sufficient for the detainee to convince the Court that he did not understand the information. He must essentially also demonstrate that his lack of understanding is the fault of the police - either they knew he didn’t understand, or they ought to have known that the circumstances were such that the detainee could not reasonably be expected to understand. R. v. Bartle, supra at paras 19-20.

[38] In this case, I find that Mr. Koralov came away not understanding what had been read to him, through no fault of his own. The police radio interrupted the police officer twice, and the officer, after asking Mr. Koralov if he understood did not wait for a response, but instead offered what would have been reasonable for Mr. Koralov to interpret as a summary of the entire message – “you get a free lawyer…do you understand?”.

[39] Mr. Kettles argues that it was incumbent on Mr. Koralov to tell P.C. McSweeney that he didn’t understand the early portion of the script. I don’t agree. P.C. McSweeney, in summing up “you get a free lawyer, do you understand?” essentially wiped the slate clean and purported to unify the message.

[40] P.C. McSweeney ought to have turned off the police radio before reading the rights to Mr. Koralov. Although the Courts have endorsed the T.P.S. standard script as Charter compliant, it is nonetheless problematic (see Friedland and Haag, supra) and if it is going to be the information package chosen by the arresting officer, given its weaknesses, it must be delivered in an extremely well controlled environment.

[41] In my opinion, P.C. McSweeney failed to clearly communicate the essential, Charter mandated information that Mr. Koralov was entitled to, thus violating his s. 10(b) rights. This failure to communicate was never rectified. As such the s. 10(b) violation continued throughout Mr. Koralov’s detention. Bartle, supra at para. 28. Putting Mr. Koralov in touch with duty counsel mitigated the breach (see below) but did not absolve the police of their unfulfilled obligation to clearly explain to Mr. Koralov that he had the right to counsel of choice.

(e) The failure to allow Mr. Koralov access to counsel from the rear of the police car

[42] The duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. Where the police delay access to counsel the Crown bears the burden of demonstrating that the delay was reasonable in the circumstances. R. v. Taylor, 2014 SCC 50, at para. 24.

[43] In R. v. Rover, 2018 ONCA 745 at paras. 26-28 Doherty J.A. summarizes the law on this issue as follows:

The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

See too R. v. La, 2018 ONCA 830; R. v. Mitchell, 2018 ONCJ 121; R. v. Campoli, 2020 ONCJ 167.

[44] P.C. McSweeney offered no evidence that delaying Mr. Koralov’s phone call to counsel until arrival at 32 Division was reasonable in the circumstances. His decision to wait was not a considered one. Rather, this is his practice. Moreover, I find that the circumstances cried out for allowing Mr. Koralov to use his cell phone from the back of the police car. P.C. McSweeney ended up waiting 18 minutes for the arrival of other officers, yet he had no idea when they would in fact show up. There was no risk that Mr. Koralov would use the phone to obstruct the investigation. As concerns privacy, P.C. McSweeney could have simply turned off the police car’s recording equipment. See R. v. Ellacott, 2009 ONCJ 586; R. v. Tremblay, 2021 QCCA 24.

[45] P.C. McSweeney ought to have asked Mr. Koralov if he had a particular lawyer in mind or wanted to use his phone to look for one. If Mr. Koralov had said he wanted the “free lawyer” P.C. McSweeney would then have been obliged to call duty counsel from Mr. Koralov’s cell phone and then left the phone with Mr. Koralov to await duty counsel’s return call.

(f) The failure of the police to offer assistance in finding private counsel

[46] On the particular issue of the standard incantation’s lack of an offer of directory assistance, following Zoghaib, I have recently decided, in detailed reasons, that despite my personal opinion on the issue, the Court of Appeal and the summary conviction court (the Superior Court of Justice in Ontario) have ruled that the failure of the standard rights to counsel to provide an offer of assistance in finding private counsel is not a per se Charter breach. I am bound by those decisions. R. v. Henry, 2019 ONCJ 437. Despite Mr. Little’s able attempt to convince me that I was wrong in Henry, I am not so persuaded. I believe the state of the law is clear on this issue. Unless a detainee mentions private counsel, there is no obligation on the police to offer assistance in finding one. As I set out earlier, and as I make clear in Henry, while I would find otherwise if not constrained by stare decisis, the Court of Appeal and the summary conviction court have spoken in a binding fashion.

[47] That having been said, in Mr. Koralov’s case, as I have found above, P.C. McSweeney failed to adequately communicate to Mr. Koralov that he had a right to speak to his own lawyer. Mr. Koralov told P.C. McSweeney that he wanted to speak to a lawyer. P.C. McSweeney further exacerbated the s. 10(b) violation by not asking Mr. Koralov if he had a particular lawyer in mind and by defaulting to duty counsel after telling the booking sergeant that Mr. Koralov wanted to speak to duty counsel, when Mr. Koralov had said no such thing.

D. THE ALLEGED S. 7 AND 9 VIOLATIONS

(a) The handcuffing at the scene of the arrest

[48] I am not troubled by P.C. McSweeney’s decision to handcuff Mr. Koralov immediately upon his arrest. Even though P.C. McSweeney never really turned his mind to doing otherwise, given his engrained standard practice, thus injecting some arbitrariness into his “decision”, I am not convinced that it was unreasonable in the circumstances, and that is the test. R. v. Asante-Mensah, 2003 SCC 38; R. v. Pileggi, 2021 ONCA 4. The arrest took place amongst a boisterous crowd and P.C. McSweeney had been informed that Mr. Koralov had been behaving aggressively prior to his arrival.

[49] Regarding the decision to keep Mr. Koralov in cuffs while he was in the back of the police car, as set out above, I find P.C. McSweeney’s failure to allow Mr. Koralov to try to call a lawyer from the back of the police car using his cell phone to have been a 10(b) violation. It goes without saying that P.C. McSweeney would have had to uncuff Mr. Koralov temporarily for him to use his cell phone, and as I have discussed above, I find that doing so did not present a risk to the safety of P.C. McSweeney or the public. I do not, however, find that the continued handcuffing in the car is itself a Charter violation. If, hypothetically, Mr. Koralov had not expressed the desire to speak to a lawyer, I would not have been troubled by the decision to leave him handcuffed in the back of the police car. Had he been given the opportunity to use his cell phone in the back of the car, the cuffs could have remained on, but moved to the front of his body.

(b) The handcuffing at 32 Division

[50] P.C. McSweeney was a guest at 32 Division, and he handcuffed Mr. Koralov to a pole for over an hour, less whatever little time it took to take samples of his breath and allow him to speak to duty counsel. He did this because that’s what he was instructed to do by the officer in charge at 32 Division. It was not a reasoned decision that took into account all the circumstances. There is no evidence that Mr. Koralov was anything but calm and cooperative while at 32 Division. Cf. R. v. Cuculuzzi, 2019 ONCJ 129. I find that the nature of the detention of Mr. Koralov was heavy handed and unreasonable. See R. v. Groome, 2019 ONCJ 507.

E. THE ALLEGED S. 8 VIOLATION

[51] Mr. Little argues that the failure by the police to take a breath sample as soon as practicable renders the taking of the sample without legal authority and thus a breach of s. 8. This argument requires interpretation of s. 320.28 (1) of the Criminal Code, which states:

If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument…

[52] Mr. Little argues that no peace officer may demand a breath sample unless he/she (1) has reasonable grounds, (2) makes the demand as soon as practicable, and (3) requires the accused to comply with the demand as soon as practicable. Failure to meet all three conditions renders the breath demand unauthorized by statute and thus a breach of s. 8 of the Charter.

[53] Mr. Kettles argues that the section only requires reasonable grounds and a demand made as soon as practicable.

[54] There is caselaw from the Superior Court of Ontario that addresses this argument. See R. v. Green, 2017 ONSC 119 and R. v. Mawad, 2016 ONSC 7589. This caselaw is not favourable to Mr. Little’s argument. He counters by suggesting that this caselaw is not binding because it deals with the Criminal Code drinking and driving provisions prior to their significant amendment in 2018. I agree.

[55] What is now s. 320.28(1) was formerly s. 254(3). Back then, what mattered in a charge of “over 80” was the concentration of alcohol in the blood of the accused at the time of his driving. The “presumption of identity” in the former drinking and driving sections allowed the Crown to rely on breath sample results taken from an accused within two hours of driving as proof of alcohol concentration at the time of driving as long as the samples were taken from the accused “as soon as practicable”. This is no longer the case. Under the new drinking and driving regime where, as in Mr. Koralov’s case, an accused is charged with having at least 80 mg of alcohol/ 100 mL of blood within two hours of operating a conveyance, whether a breath sample was taken as soon as practicable no longer matters to the admissibility and value of the breath sample result. The blood alcohol concentration at the time of driving is no longer significant and the presumption of identity is obsolete.

[56] In Green and Mawad, the judges on appeal found that the section required the police to obtain a breath sample as soon as practicable as a means of preserving the Crown’s access to the presumption of identity. Being able to ascribe that meaning to that obligation led them to conclude that the requirement to obtain the sample as soon as practicable was not a precondition to the validity of the officer’s breath demand. So, in Green, the summary conviction appeal judge, Wright J., ruled that the trial judge had erred in acquitting the accused of refusing to provide a sample where the acquittal was based on a finding that obtaining a sample as soon as practicable was a condition of a valid breath demand. The summary conviction appeal judge in Mawad, Andre J., made a similar ruling, also driven by the relationship between “as soon as practicable” and the presumption of identity. [1]

[57] When Parliament amended the drinking and driving provisions and removed the presumption of identity, they nonetheless left in place the requirement that the police require the accused to provide a sample as soon as practicable. The rules of statutory interpretation dictate that this requirement must have some meaning. If indeed this requirement did mean what Andre J. and Wright J. held it meant, it must now have a new meaning. After all, Parliament could have removed it, but chose not to. Alternatively, Parliament always meant this requirement to mean something other than what Andre J. and Wright J. thought Parliament intended. Either way, it falls on me to decide whether fulfilment of this requirement is necessary for the breath demand to be authorized by statute.

[58] I am greatly assisted in this endeavour by several of my colleagues in the Ontario Court of Justice who have addressed this issue. I rule that the validity of a breath demand is conditional on the police obtaining a breath sample as soon as practicable. I adopt the reasons set out in convincing detail in the following cases: R. v. Najev, 2021 ONCJ 427; R. v. Tubic, 2021 ONCJ 495; R. v. Araya, 2019 ONCJ 970; R. v. Navaratnarajah, 2020 ONCJ 607; R. v. Pillar, 2020 ONCJ 394.

[59] Approximately 68 minutes elapsed between Mr. Koralov’s discussion with duty counsel and the taking of the first sample of his breath. This inordinate delay calls for an explanation, and none was provided. R. v. Shouten; R. v. Dean, 2013 ONSC 2916. I have no difficulty in finding that the police did not obtain this sample as soon as practicable and that as a result, the seizure of his breath was not authorized by law and constitutes a violation of Mr. Koralov’s s. 8 Charter rights. R. v. Collins, [1987] 1 S.C.R. 265.

F. SECTION 24(2)

[60] Section 24(2) of the Charter reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[61] There is no dispute as between the parties that if the alleged breaches occurred, the breath results were obtained in a manner that infringed Mr. Koralov’s Charter rights. R. v. Tim, 2022 SCC 12.

[62] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

See too R. v. Tim, 2022 SCC 12.

(a) The seriousness of the breach

[63] The breaches in this case are numerous. Mr. Koralov was not given his rights to counsel soon enough. Once given, they were insufficiently communicated. He was handcuffed at 32 Division unnecessarily and for a significant period. The taking of his breath samples was done without lawful authority. While P.C. McSweeney’s breaches were not wilful nor flagrant, neither were they merely inadvertent. Police officers are expected to know the law they are enforcing. R. v. Tim, supra, at para. 84. In my opinion, the many breaches in this case amount to a major departure from Charter standards and are not mitigated by any good faith according to the law as recently explained in Tim, supra. There is evidence of a systemic failure on the part of the T.P.S. in so far as P.C. McSweeney’s testimony was that many of his decisions with respect to the timing of rights to counsel, and access to counsel were driven by his training.

[64] I find that the breaches fall at the more serious end of the spectrum.

(b) The impact of the breach on the Charter protected interests of the accused

[65] Mr. Koralov’s rights to counsel were never properly explained to him. His liberty interests were infringed over an extended period while handcuffed to the bar at 32 Division. The difference between being under arrest and being cuffed to a bar is significant. The taking of his bodily substance was unauthorized. While the impact of these breaches is somewhat mitigated by access to duty counsel, and the relatively non-invasive nature of the taking of his breath samples, I conclude that the breaches had a relatively significant impact on Mr. Koralov’s Charter protected interests.

(c) Society’s interest in the adjudication of the case on its merits

[66] The Supreme Court in Harrison, 2009 SCC 34, at paras. 33 and 34, deals with this factor as follows:

At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.

The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

[67] I find that the third Grant factor favours admission of the evidence.

(d) Balancing the three Grant factors

[68] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[69] Justice Doherty, in R. v. McGuffie, 2016 ONCA 365 at para. 63, added this to the analysis: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”.

[70] The breaches of the accused’s Charter rights were serious and strongly favour exclusion of the evidence. The impact of the breaches strongly favours exclusion.

[71] Notwithstanding the reliability of the evidence, its importance to the Crown’s case and the public interest in an adjudication of this case on its merits, the admission of the evidence would, in my opinion nonetheless bring the administration of justice into disrepute.

G. CONCLUSION

[72] The blood alcohol charge is dismissed.

Released on December 19, 2022 Justice Russell Silverstein

Footnote

[1] In R. v. Wylie, 2013 ONCA 673 the Court of Appeal for Ontario dealt with the question of whether the summary conviction appeal judge had erred in setting aside the conviction of an accused of refusing to provide a sample because the summary conviction appeal judge could not decide on the evidence which officer had made the demand. The Court of Appeal restored the conviction and said this:

All that s. 254(3) requires is that a valid breath demand is made by a peace officer with reasonable grounds to do so and that the demand is made as soon as practicable. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the "who, what, where and when" of the demand.

In my opinion, the issue in question in that appeal was narrow, and the issue before me was not raised. As a result, I do not interpret this paragraph as decisive of the issue before me.