Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Mark Laurin

Before: Justice C. Kehoe

Decision released on: August 31, 2012

Counsel:

• Mr. P. Napier for the Crown
• Mr. L. Greenspon for the accused, Mark Laurin

KEHOE J.:

Facts and Charges

[1] Mr. Laurin is charged that on or about February 10, 2011 he was operating a motor vehicle while his blood alcohol concentration was over 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code. He is also charged that on or about the same day, he was operating a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code.

[2] Ultimately after some discussion, the Crown proceeded on the basis that the charges arose only on the facts surrounding the accident with the white van with the Enbridge Logo at approximately 23:34 hours on February 9, 2011.

[3] Mr. Greenspon, on behalf of Mr. Laurin, brought a Charter application, claiming that his section 7, 8, 9, and 10(b) rights were violated. Exclusion of the evidence was sought as a remedy pursuant to section 24(2) of the Charter.

[4] In submissions, section 9, 10(a) and 10(b) breaches were the focus.

Witness Evidence

Mr. Donald Brisson

[5] Mr. Donald Brisson, a resident at 146 Forestcrest, Ottawa, Ontario, was working on his computer when he heard what he believed to be a car crash. He immediately looked outside and saw what he described as a panel van that was heavily damaged. He and his wife went outside. Mr. Brisson had his phone in hand as he went outside. When he got outside, the van was pulling away from in front of his residence. He called police at that point and believed that the call would have been made within a minute of the crash. He believed that police arrived within five minutes or so of his 911 call. Mr. Brisson described the van as a large white panel van, with a logo with some red on the van. He did not have his glasses on and therefore could not see what the logo said or get the licence plate number.

[6] Mr. Brisson described the damage to a sound barrier fence on his property as "shattered". It was a fence of aluminum posts, aluminum rails, and boards about an inch to two inches thick. He testified that about 20 feet of the fence was just gone, destroyed. Mr. Brisson observed tire tracks from Jeanne D'Arc Boulevard through the snow bank on Jeanne D'Arc Boulevard, through the fence, through his front yard and out onto Forestcrest. There was damage to the fence, rosebushes, an evergreen tree and the van that left pieces of it on the lawn.

[7] Mr. Brisson could not see the driver of the van. He agreed that he did not see the crash and therefore assumed that the van he saw was the vehicle that crashed. He observed the van drive away and did not observe anything unusual about the tires or the driving. He did observe significant, unspecified damage to the front end of the van. Mr. Brisson agreed that it was snowing at the time and the roads were slippery.

Constable Mark MacMillan

[8] Cst. Mark MacMillan, an Ottawa Police Officer since August 1990, was on duty on February 9 and 10, 2011. He was on patrol in the east end of the city when he heard 911 dispatch to 146 Forestcrest. He received information that it was a fail to remain accident. He had information that it was a full-size white van with an Enbridge logo on it. No plate was obtained and the van had fled the scene approximately five minutes earlier.

[9] Cst. MacMillan was aware that other patrol cars were going to the area and he decided to go to the area to try to track the person that was responsible, if a vehicle was located. Cst. MacMillan had a canine unit. He estimated that it would have taken him approximately ten minutes to drive to the area on a good day.

[10] Cst. MacMillan testified that the roads were snow covered as two centimetres of snow had fallen that night. He described the roads as slightly greasy. He observed that the van had lost control and had driven over a median across some lanes of traffic, over a sidewalk, through some grass, through a fence and narrowly missed a parked car.

[11] As other officers were on-scene, he drove around the surrounding streets to locate a van.

[12] At 01:03, Cst. MacMillan observed a vehicle, a blue, 2009 Hyundai, on Forestcrest as it passed him going in the opposite direction back towards the accident scene. He turned around and followed the vehicle.

[13] Cst. MacMillan followed, and located the vehicle again on Henri Lauzon. It was stopped facing southbound at Jeanne D'Arc Boulevard. Cst. MacMillan queried the vehicle and received information that the vehicle was co-owned by a female and a male, Mark Laurin. There was only one occupant, the driver, who was Mr. Laurin before the court.

[14] Cst. MacMillan checked Mr. Laurin and found him to be an employee of Enbridge Gas. Cst. MacMillan continued to follow the vehicle for three or four kilometres. He did not observe any bad driving but after following the vehicle for several kilometres in the area, he activated his emergency lights and the vehicle pulled over. Cst. MacMillan pulled the vehicle over because he "felt that the vehicle was related to the accident scene". He testified that he based his belief on the fact that Mr. Laurin was an Enbridge employee and because the vehicle was going in the same direction that the van initially was going in. He felt that the person was probably going back to look at the accident scene.

[15] Cst. MacMillan exited his truck and approached the vehicle. The driver, Mr. Laurin, put his window down three quarters of the way. Cst. MacMillan noticed that he had a moderate odour of an alcoholic beverage coming from his breath.

[16] Cst. MacMillan asked the driver what he was doing and the driver did not answer. He then asked the driver if he was in an accident earlier and the driver replied.

[17] The statement was part of voir dire along with several other statements made.

[18] Cst. MacMillan asked Mr. Laurin if he had anything to drink and he replied earlier. At 01:06 hours, Cst. MacMillan requested an Alcotest be brought to the scene.

[19] Cst. MacMillan also asked Mr. Laurin for his driver's licence, ownership and insurance documents which were all produced.

[20] At 01:06 hours, Cst. Jonathan MacLean arrived on scene.

[21] At that time, Cst. MacMillan asked the driver where he had parked the van. Mr. Laurin responded and Cst. MacMillan could see the white Enbridge van with heavy front end damage parked about 100 metres from where he was.

[22] Cst. MacMillan denied that he made any threats or promises to Mr. Laurin. He testified that Mr. Laurin appeared to understand the questions. Cst. MacMillan could not say where Cst. MacLean was when he asked the last question or whether he was involved.

[23] After this conversation, Cst. MacMillan read the Alcotest demand to Mr. Laurin from his notebook. Cst. MacMillan testified that he would have read the demand three minutes after he observed the odour of alcohol. He described it as a moderate odour on his breath. He concluded that Mr. Laurin had consumed alcohol that evening.

[24] After looking at the documentation produced, Cst. MacMillan asked Mr. Laurin to get out of his vehicle and to walk back to Cst. MacLean's police cruiser. Cst. MacMillan observed that Mr. Laurin seemed to be walking fine. Cst. MacMillan testified that it was a cold night, minus 11 degrees Celsius. As a result, he gave Mr. Laurin the option of sitting in the back of the cruiser or standing outside with the officers. Mr. Laurin got into the cruiser.

[25] Neither Cst. MacMillan or Cst. MacLean had an Alcotest with them. Cst. Dhaliwal arrived on scene at 01:11 hours. Cst. Dhaliwal had an Alcotest with him. However, when Cst. MacMillan plugged the device in, it was not working properly.

[26] Cst. MacMillan had operated a Drager 7410GLC in the past and testified that a pass meant "you were good to drive"; "a warn would be a three day suspension depending". He was then asked "if a fail would be calibrated to fail at 100 milligrams and he answered "that's right".

[27] Cst. MacMillan informed Mr. Laurin that the Alcotest was not working properly and Cst. MacLean left driving Cst. Dhaliwal's cruiser to get another Alcotest device. Cst. MacLean was driving to the 10th Line Police station to get another device. Cst. MacMillan testified that Cst. MacLean returned at 01:19 hours.

[28] Cst. MacMillan testified that while Cst. MacLean was gone, Mr. Laurin remained in the back of the cruiser and he stood outside. Cst. MacMillan could not recall having any conversation with Mr. Laurin. He remembered asking him if he needed medical attention based on the accident.

[29] The second Drager 7410GLC arrived at 01:19 hours. Cst. MacMillan noticed that the machine had turned on properly and he spoke to Cst. MacLean who informed him that he had tested the machine and found it to be in working order. When asked if the machine was in proper working order, Cst. MacMillan testified "it seemed to power up just fine". Cst. MacMillan testified that "normally what he does is explain the three steps, the pass, the warn and the fail and what is required. Normally he demonstrates it, but in this case he did not because…it arrived already tested. So, he just explained to Mr. Laurin that he's going to have to blow and it will be like a balloon. He also gave him the plastic sealed mouthpiece for him to put in the machine himself". Mr. Laurin had no problem with the mouthpiece. Mr. Laurin provided a sample of his breath at 01:21 hours and registered a fail. Cst. MacMillan testified that a fail meant that "it registered over .01 in the Alcotest", meaning "100 milligrams".

[30] As a result of the fail on the Alcotest, Cst. MacMillan placed Mr. Laurin under arrest for "Failing the Alcotest"… "He would have been advised that he blew over the 100 milligrams into the machine".

[31] Mr. Laurin was asked to step out of the cruiser, was handcuffed and searched by Cst. MacLean. Cst. MacMillan testified that "at that point, I would have read him some stuff". Asked what he would have read, Cst. MacMillan stated, "I would have read him his Charter of Rights, again taken from the back of my notebook. I would have given him the primary police caution."

[32] The wording of the "Charter of Rights" and cautions were not in issue. However, Cst. MacMillan was asked to read the wording of the "Charter of Rights" and caution into the record. He stated, "So, it starts off: 'I am arresting you for failing the Alcotest…'" and he continued to read the right to counsel from his notebook.

[33] Cst. MacMillan's evidence concerning the "Charter of Rights" and cautions was a little confused and confusing. He was asked to repeat what he would have read for the primary caution and he testified, "Sorry, yeah, I'll go back, again from the back of my notebook: 'You may be charged with reading over-80 milligrams'". The question was repeated, "You may be charged with?" and he stated, "You may be charged over-80 milligrams". He testified that the "Charter" was read at 1:23, the primary caution at 01:23 and the secondary caution at 01:24 hours. Mr. Laurin's response to the rights to counsel when he was asked if he wished to call a lawyer now and whether he understood was "yes". His response to whether he understood the primary caution was "yes" and whether he understood the secondary caution was "I understand, but I drove back and saw two cruisers there. Then the third time, they were gone". Cst. MacMillan read the Breathalyzer demand after the secondary caution.

[34] Cst. MacMillan was asked whether, when he read him the "Charter caution" that he just read in court, "did he respond in any way other than giving a reply as to whether or not he understood". Cst. MacMillan could not recall.

[35] Cst. MacMillan turned custody of Mr. Laurin over to Cst. MacLean at 01:25 hours. Cst. MacMillan got into his truck and drove down to take a look at the van and from there went to the Central Police station. He testified that he would not have looked at the van very long, stating "it would have been minutes". Cst. MacMillan arrived at the station at 02:06 hours. He noticed that Cst. MacLean was dealing with Mr. Laurin. Cst. MacMillan spoke with the Breathalyzer Technician, Cst. Dwight Stewart, providing the grounds that he provided in court.

[36] When he finished providing his grounds to Cst. Stewart, Cst. MacMillan was called out on another call. He attended the call and returned to the station at 02:32 hours. Mr. Laurin was returned to custody at 03:11 hours. Cst. MacMillan served the Notice of Intention to Produce, Exhibit 2 and the Certificated of the Qualified Technician, Exhibit 3, with other documents, including the Intoxilyzer Printout, Exhibit 5, to Mr. Laurin.

Cross-Examination of Constable MacMillan

[37] In cross-examination, Cst. MacMillan agreed that he would have been dispatched at 23:34 hours and later said it was 23:04 on the 9th of February and that he first observed the blue Hyundai at 01:03 hours on February 10th.

[38] Cst. MacMillan testified that he received the information that Mr. Laurin was an Enbridge employee prior to him stopping Mr. Laurin's vehicle. He agreed that he did not stop him for any Highway Traffic Act violation. He agreed that the stop was not a random stop for a document check, and he agreed that he did not have any grounds to believe that this driver might be impaired, stating, "From driving evidence, no, I did not".

[39] Cst. MacMillan testified that the reason he stopped the blue Hyundai was because "he was investigating the accident". He agreed that he stopped the vehicle because "he thought he was either involved or knew something about it".

[40] Cst. MacMillan agreed that after he smelled the odour of alcohol on Mr. Laurin's breath, he asked him whether he was involved in an accident. He agreed that he was aware that under the Highway Traffic Act anyone involved in an accident has a statutory duty to report it and to do so forthwith to the nearest police officer. He stated, "I don't have the exact wording, but that sounds right". He was asked if he was aware that the same section of the Highway Traffic Act places a duty on the person to furnish the police with the information regarding the accident if requested by the police officer, stating, "Again, the exact wording I don't know". He agreed that he was aware of the duty.

[41] Cst. MacMillan agreed that when he asked Mr. Laurin if he was involved in an accident, he did not tell Mr. Laurin that he did not have to answer that question.

[42] He agreed that he did not caution Mr. Laurin before asking the question. He agreed that he had the authority under the Highway Traffic Act to ask him that question.

[43] Cst. MacMillan was asked who responded to the request, at 01:06 hours, for an Alcotest. He testified, "Ultimately, Cst. Dhaliwal arrived on scene. Did other officers pipe up on the air, let's say, and volunteer? It may have been. I really don't know. I don't recall. Sometimes when you request an Alcotest several officers will say, well, I got one, I got one, but obviously we elect to try to get the closest officer to come by."

[44] Cst. MacMillan was asked, in this case, if he knew it was Cst. Dhaliwal who had responded to the request. He testified, "I knew that somebody was coming, yes."

[45] He was asked if he actually became aware that it was Cst. Dhaliwal who was going to bring the roadside before he actually showed up. Cst. MacMillan testified, "I don't recall sir".

[46] Cst. MacMillan was confronted with the fact that he could not have known where Cst. Dhaliwal was when he responded because he did not know or could not recall whether he knew it was going to be Cst. Dhaliwal. Cst. MacMillan responded, "I just knew one was coming". He agreed that he did not know how long it was going to take to get to him.

[47] Cst. MacMillan agreed that as soon as he turned the first device on, it stopped working. Cst. MacMillan could not remember if he asked Cst. MacLean or whether Cst. MacLean volunteered to go to the 10th Line Station to get another Alcotest.

[48] Cst. MacMillan testified, that "he presumed Cst. MacLean went to the closest one, which was the 10th Line Station" when he was asked where the station is located. He testified that the 10th Line Station was not very far away from his location.

[49] Cst. MacMillan was not aware of how many devices would have been at the 10th Line Station at the time. Cst. MacMillan testified that because he is a canine unit, he does not really report to a station, other than his home base that is at Greenbank Road and because he is fully equipped and operational from his residence, he does not report to the station every day and sometimes not for a week.

[50] When asked whether he was aware that any device would have to be tested, he responded, "Calibrated, yes". He agreed that the device has to be tested prior to using it and he testified that "that is what I look at".

[51] Cst. MacMillan was of the opinion that "it would not take that long (for Cst. MacLean to go to the station, check the battery, test the machine and make sure it had been calibrated within the last week) because the station is not that far away". He agreed that it could take as long as 10 to 15 minutes but thought it would be closer to 10 minutes. He thought it could depend on the variables but a straight drive there and back would be about 10 minutes.

[52] Cst. MacMillan agreed that between 01:09 and 01:19 when Cst. MacLean came back, he did not provide Mr. Laurin with his rights to counsel. He agreed that "he did not even think about providing him with his rights to counsel". He agreed that he did not ask Mr. Laurin if he had a cell phone and did not offer Mr. Laurin his cell phone to contact counsel.

[53] Cst. MacMillan was confused as to whether he went to look at the van at 01:25 hours when he turned custody of Mr. Laurin over to Cst. MacLean for transport to Central Cells or whether he looked at the van after he had been at the station. His memory was refreshed with his notes that showed he left the scene at 01:49 were put to him. He was still confused as to what exactly he did between 01:25 and 01:49 hours but ultimately agreed that he looked at the van and left for the Central station at 01:49.

[54] Cst. MacMillan agreed that when the first Alcotest failed, although he explained what had happened to Mr. Laurin, he did not offer to take him to the station to do a roadside test.

[55] Cst. MacMillan did not record the serial number of the Alcotest he used on February 10, 2011 although it was his usual practice to do so. He agreed that he did not test the device or demonstrate it to Mr. Laurin because Cst. MacLean had told him that he had already tested it. Cst. MacMillan did not see Cst. MacLean test the device. He agreed that he never determined from Cst. MacLean what the temperature of the machine was. He did not determine the temperature of the machine when he administered the test with Mr. Laurin.

[56] Cst. MacMillan was asked whether at 01:23 when he provided his rights to counsel to Mr. Laurin, he asked him if he wanted to contact a lawyer at that time. Cst. MacMillan responded, "I would have said it, but I don't recall his response. Typically, we'll tell them that there's a list that he can use at the station in a secured area."

[57] Cst. MacMillan was not sure, "when he arrived at the station, Mr. Laurin was still under the custody of Cst. MacLean. He was not sure if he called or who he called at that point".

Constable Gurprit Dhaliwal

[58] Cst. Gurprit Dhaliwal, an Ottawa Police officer for just under three years, was on duty on February 9 and 10, 2011. Cst. Dhaliwal received at dispatch. He stated that "the remarks were somebody had crashed a car across the given address, 146 Forestcrest Street"…and then it continued, white full-sized van with Enbridge logo on it"…crashing five minutes ago". He received the dispatch at 11:36 p.m. Cst. Dhaliwal searched the streets in the area of the address to try to locate the van. Cst. Dhaliwal testified that he received information that the suspect's vehicle had severe front end damage and there was fluid leaking from the vehicle. It possibly could have been transmission fluid. Cst. Dhaliwal arrived at 11:43 p.m. and spoke to Mr. Brisson. Cst. Dhaliwal spoke with witnesses and then observed the scene. He saw several wooden pieces of the fence on the roadway. He saw tire marks that showed that the vehicle was traveling eastbound from Jeanne D'Arc Boulevard, onto the curb on the south side of the street, west over the median and sidewalk, hitting the fence and ending up on Forestcrest Street. He observed plastic pieces that were left from the vehicle.

[59] Cst. Dhaliwal testified that Cst. MacLean, Cst. MacMillan and Cst. Jon Trudeau were present. After he obtained the witness statements, he was informed by dispatch that Cst. MacMillan needed assistance. He left the scene and attended Cst. MacMillan's location. He testified that it took him approximately 10 minutes to get from Forestcrest to Cst. MacMillan's location. He arrived at Cst. MacMillan's location at 1:11 a.m. He provided his Alcotest device to Cst. MacMillan. He got the device from the police station at the beginning of his shift. He did not know what device he gave to Cst. MacMillan other than that it was an Alcotest. He had not done anything with the device prior to giving it to Cst. MacMillan. After he gave the device to Cst. MacMillan, he got into Cst. MacLean's cruiser because the Alcotest did not work. Cst. Dhaliwal testified that Cst. MacMillan gave him the device back but he was unsure how long Cst. MacMillan had the device before he gave it back.

[60] Cst. Dhaliwal testified that Cst. MacMillan was speaking with Mr. Laurin. Cst. MacLean went back to the station and Cst. Dhaliwal remained in the cruiser with Mr. Laurin. He did not note and did not recall for how long.

[61] Cst. Dhaliwal remained with the white van after Cst. MacLean left the scene with Mr. Laurin. He did not note the time. Cst. Dhaliwal observed the damage to the van. He stated that the front end bumper was damaged along with the headlights, the hood, the fenders, windshield and the driver mirror. He testified that the van was located off the road at the intersection of Midsummer and Wildflower. He could not recall if he conducted any inquiries as to the ownership of the van. He was directed to his investigative action to refresh his memory and testified that he did not conduct any inquiry because when he attempted to obtain the ownership documents, the van door was locked. However, when he queried the plates of the van, it came back to Enbridge. He phoned and left a message for a supervisor at Enbridge. He remained on scene with the vehicle until 04:00 hours and then went to the Central station. He gave Mr. Laurin a ticket for Fail to Remain under the Highway Traffic Act.

Voir Dire on Statements to Constable Dhaliwal

[62] Cst. Dhaliwal testified on a voluntariness voir dire that Mr. Laurin made certain statements to him while he was seated in the cruiser waiting for Cst. MacLean to return from the station.

[63] Cst. Dhaliwal testified, when asked "how the conversation started", "It started by I asked what had happened".

[64] Cst. Dhaliwal testified that Mr. Laurin appeared to understand him when he asked what happened. Cst. Dhaliwal was in uniform. He testified that he did not threaten or make any promises to Mr. Laurin in advance of asking him that question.

[65] In cross-examination, Cst. Dhaliwal agreed that he did not have his duty book out and was not making notes during the conversation with Mr. Laurin. He agreed that he made notes of the conversation at approximately 01:55 hours, approximately 45 minutes after the conversation. He agreed that his notes were a summary of the conversation and not a verbatim record of what he would have said. He did not note the questions he would have asked. He was not sure of how many questions he asked or how long the question and answer period went on. Mr. Laurin was in the back seat of the cruiser, Cst. Dhaliwal was seated in the driver's seat. He did not advise Mr. Laurin of his rights to counsel. He did not caution him in any way. He did not tell him that he did not have to talk to him or anything like that. Cst. Dhaliwal agreed that he knew that he had the authority as a police officer to ask questions of a person whom he believed was involved in an accident. Cst. Dhaliwal was aware that Mr. Laurin had an obligation under the Highway Traffic Act to provide information to him.

[66] He could not recall whether Mr. Laurin had told him that when he left the scene that he went home. He did know that Mr. Laurin lived at 144 Midsummer. He agreed that the van was parked in front of his residence. However, he was unsure whether after the accident Mr. Laurin went home. He was aware that Mr. Laurin was shaken up by the accident.

Constable Jonathan MacLean

[67] Cst. Johnathon MacLean, an Ottawa Police officer of four years, was on duty on February 9 and 10, 2011. Cst. MacLean had been dispatched to 146 Forestcrest for a hit and run collision. He arrived on scene at 23:43 hours. Cst. MacLean testified that when he arrived, he and other officers spoke briefly to some people and made some notations of the scene. Cst. MacLean observed that the area was littered with debris. He testified that there were pieces of a wooden fence, pieces of what appeared to be a vehicle bumper on the street and on the front lawn of 146 Forestcrest Street. He also observed some tire tracks that appeared to be spinning or quick tire tracks in the snow on the street. Cst. MacLean testified that he remained on scene for approximately one hour.

[68] Asked what he did after leaving the scene he stated, "Once I departed the scene, I guess we received some information following the call. I think it was about an hour, an hour and a half later, that a vehicle was seen in the area. So, I attended the location of Wildflower and Midsummer Terrace."

[69] Cst. MacLean testified that he had received information that Cst. MacMillan had just expressed some information that he had observed a suspicious vehicle in the area of the original hit and run collision, and then advised that he had conducted a traffic stop at Wildflower and Midsummer Terrace.

[70] Cst. MacLean arrived on scene at about 01:06 hours. Cst. MacLean assisted Cst. MacMillan. Mr. Laurin was seated in the back of his cruiser. Cst. MacLean observed Mr. Laurin walk to his cruiser. Cst. MacLean testified that although he was not part of what happened when Cst. Dhaliwal attended with the roadside, he learned that the roadside device was not functioning. He testified that Mr. Laurin remained in the back of his cruiser and he took Cst. Dhaliwal's cruiser to the 10th Line Station to retrieve another roadside machine.

[71] Cst. MacLean testified that he did not make any observations of Mr. Laurin prior to leaving for the station saying, "No, I did not. No, I didn't have too much interaction at all with the male." He was referred to his investigative action to refresh his memory and he then recalled that when he returned to the scene when seated in the driver's seat of his own cruiser, he observed an odour of alcoholic beverage coming from the rear of the vehicle which was not present there previously meaning before he attended Midsummer and Wildflower or the start of his shift.

[72] Asked when Cst. Dhaliwal attended the scene with the roadside, Cst. MacLean testified, "He attended…I don't have a notation on what time he attended, but it would have been between 01:09 and 01:14, in that timeframe." He testified that he left the scene for the station at 01:14 hours. He returned at 01:19 hours. He had an Alcotest 7410GLC upon his return. The serial number was ARFE-0103. It was an approved screening device that had been calibrated on February 6, 2011.

[73] Cst. MacLean had turned the machine on while en route back to the scene. Once he arrived he tested the machine at 01:19 hours. He testified that he blew into the machine to test it and make sure that it was functioning. He testified that the machine was functioning properly and was able to provide an approved…a suitable sample of his breath into the machine. He received a reading of 000 and then handed the machine over to Cst. MacMillan. He did not have a notation as to when he handed the machine over. He said it would have been within minutes of his arrival of 01:19 hours.

[74] Cst. MacLean stood by for officer safety. He was asked if he had any interaction with Cst. MacMillan after he had given him the roadside device. He testified, "I don't recall. No, I don't have any notation until 01:25, when he advised that the made would be under arrest for over 80."

[75] Cst. MacLean handcuffed and searched the male. He was seated in the back of his cruiser. Cst. MacLean left the scene at 01:37 hours for Central Cells. He arrived at 02:00 a.m. Cst. MacLean was flagged down en route by a taxi driver. The problem was dealt with and he continued to the station.

[76] Mr. Laurin was paraded at 02:07 and searched and handcuffed again at 02:12. Mr. Laurin was then brought to the lawyer list. He selected Mr. Greenspon at 02:15 hours and a call was made at "roughly" 02:15 hours. The next notation was at 02:17 hours when Cst. MacLean spoke with Eric Granger who was taking calls for Mr. Greenspon. Mr. Laurin accepted and the call was transferred to a private telephone room at 02:17 hours.

[77] Cst. MacLean testified that the call was completed at 02:32 hours and Mr. Laurin was transferred to Cst. Stewart at 02:33.

[78] Cst. MacLean observed that Cst. MacMillan arrived at Cells at 03:00 hours and he provided him an update. Cst. MacLean did not have any other interaction with Mr. Laurin.

Cross-Examination of Constable MacLean

[79] In cross-examination, Cst. MacLean did not recall exactly where Cst. MacMillan was when Mr. Laurin walked to his cruiser. He did not recall whether Cst. MacMillan directed Mr. Laurin to go and sit in your vehicle or not.

[80] Cst. MacLean agreed that he would have arrived at the 10th Line Station at 01:14 and therefore would have left the scene at approximately 01:09 hours.

[81] Cst. MacLean was asked if he had radioed ahead to ask that a roadside device be made available. He testified, "Yeah. From what I recall, we had phoned ahead and made arrangements and someone had met me at the front of the station with…"

[82] Cst. MacLean testified that he turned the machine on on his way back and when he arrived at 01:19 hours, "I tested the machine at 01:19 as I arrived back, with my mouthpiece inserted in the machine and blowing into the machine". He did not recall exactly where he tested the machine.

[83] Cst. MacLean was asked whether he observed any lights on the machine prior to providing his sample and he stated, "Just that the machine was on and ready. There's a couple of green and red lights. I believe one of them is ready and ready to go and that means that machine is ready."

[84] He was asked how long after he inserted the mouthpiece into the roadside device did it indicate that it was ready. Cst. MacLean testified, "I don't have any notation. I would have inserted the mouthpiece once it was ready to go and then proceeded from there".

[85] He was asked how long after he inserted the mouthpiece into the roadside device did it indicate that it was ready. He stated, "I don't have any notation. I would have inserted the mouthpiece once it was ready to go and then proceeded from there."

[86] He later testified that "It's either it was ready before or after the mouthpiece went on. I'm not sure exactly, but it would have been ready and then blown into it."

[87] Cst. MacLean did not have any notation and could not recall whether Cst. Dhaliwal had any contact with Mr. Laurin after he returned at 01:19 hours.

[88] Cst. MacLean did not have a notation and could not recall whether he handcuffed Mr. Laurin or searched him first. He testified that the search could have taken as long as a minute or two or three.

[89] Cst. MacLean agreed that Mr. Laurin chose a lawyer within three minutes of being provided with the list at 02:12 hours. He agreed that within five minutes of being provided with the lawyer list, there was one attempt to call counsel and he was able to speak with Mr. Granger.

[90] Cst. MacLean did not have a notation of when he would have last checked Mr. Laurin between 02:15 and 02:32 hours. He agreed that he could not say when Mr. Laurin would have finished the phone call with Mr. Granger.

Constable Dwight Stewart

[91] Cst. Dwight Stewart, an Ottawa Police Officer was on duty on February 9 and 10, 2011. His name was published in the Gazette, as a Qualified Intoxilyzer Technician on August 14, 2010.

[92] Cst. Stewart was the Qualified Technician who dealt with Mr. Laurin on February 10, 2011.

[93] Cst. MacMillan provided his grounds to Cst. Stewart at 02:14 hours. Cst. Stewart testified that the grounds were that Mr. Laurin was operating a vehicle. It was near the accident scene. He stopped the vehicle I guess because he had queried the plate and it returned to an address that was not near to where he was. On speaking with the accused, he observed I guess there was, as he put it, a smell of alcohol on his breath. At that point, he gave him the roadside demand. After it was administered and the subject registered a fail, he was arrested for over-80.

[94] Cst. Stewart re-arrested Mr. Laurin when he took custody. He read him his rights to counsel and cautions again. Mr. Laurin told Cst. Stewart that he understood his rights to counsel and that he had spoken to Lawrence Greenspon and then indicated Eric Granger. He understood the primary and secondary cautions and the breath demand all at 02:34 hours.

[95] Cst. Stewart then prepared the Intoxilyzer and performed the first breach test. He then read the caution and secondary caution again at 02:43 hours.

[96] The instrument was an Intoxilyzer 8000C. It is an approved instrument within the meaning of the Criminal Code. Cst. Stewart was satisfied that the instrument was in proper working order. He operated the instrument as he was trained. The first breath sample was received at 02:44 hours. It was a suitable sample provided directly into the approved instrument. The result was 139 milligrams of alcohol per 100 millilitres of blood.

[97] Cst. Stewart observed that Mr. Laurin had a faint slur. His face was flushed and his eyes were bloodshot. He described him as cooperative.

[98] At 02:47, Cst. Stewart started asking questions. Mr. Laurin did not respond to several. When asked "when did you leave" he did not answer that question directly but sated, "he was headed home when stopped and that he did not wish to answer any questions". Cst. Stewart asked him if he had been drinking, and he answered, "two to three beers with supper". He was asked if he was involved in an accident, and Mr. Laurin stated, "he was not sure". He was asked if he was suffering from any kind of illness, injury, or medical condition. He stated "yes" but did not specify. He was asked if he was taking any medicine or pills and he stated "yes" but did not specify. He said "no" when asked if he had any physical handicaps, amputations, and if yes what. He was unsure of how much sleep he had had in the last twenty-four hours.

[99] Cst. Stewart testified that after the questions, he would have engaged Mr. Laurin in casual conversation. Mr. Laurin was responsive to the questions. Cst. Stewart testified that he did not threaten or make any promises to Mr. Laurin to get him to answer any questions or make any statements.

[100] Cst. Stewart testified when asked what he said and what Mr. Laurin said during the conversation, "I don't have the specifics of what I said to him or what I questioned him about. Normally, I just talk about where they were that evening and what they had done and how they came to be in the cellblock being tested."

[101] Cst. Stewart administered the second breath test at 03:05. It was a suitable sample for analysis and the result was 134 milligrams of alcohol in 100 millilitres of blood.

Cross-Examination of Constable Stewart

[102] In cross-examination, Cst. Stewart agreed that he did not recall the questions he asked Mr. Laurin in the second conversation. He could not recall how many questions he would have asked. He stated that it was more of a conversation but he would have been stating things as well.

[103] He agreed that he had no note and no recollection of what he would have said to Mr. Laurin. He agreed that the notes he had were Mr. Laurin's answers only and that the notes were not verbatim. He agreed that his notes were a summary of what he was said. He did not make the notes during the conversation. He did not have a note of when the conversation ended and estimate that normally the conversation lasts about five minutes. He estimated this conversation lasted five to ten minutes.

[104] Cst. Stewart did not know if there was a videotape functioning at the time in the breath room. He thought videotaping was installed around the time or shortly after but he had not checked to see if there was a videotape available.

[105] It was put to Cst. Stewart that the only question that was not crossed off by a line through it was the question of how many drinks have you had since the accident. Cst. Stewart disagreed with the suggestion that the failure to cross it off meant that he did not ask the question. However he agreed that more than a year after the fact he could not say definitively whether he asked the question.

Expert Evidence: Ms. Patricia Solbeck

[106] Ms. Patricia Solbeck, is a forensic toxicologist at the Centre of Forensic Sciences in Toronto. She was qualified to provide an expert opinion on the absorption, distribution and elimination of alcohol, drugs and poisons, including the calculation of blood-alcohol concentrations as well as the effects of alcohol, drugs and poisons in relation to the operation of motor vehicle. In addition she was qualified to provide opinion evidence on the theory and operation of breath testing instruments including the Intoxilyzer 8000C and the Alcotest 7410GLC.

[107] Ms. Solbeck provided an opinion of what the range of readings would have been at 11:19 to 11:50 based on the results of the breath samples taken at 02:44 and 03:05 hours.

[108] The opinion was based on several assumptions:

i. That the rate of elimination of alcohol from the blood ranged between 10 and 20 milligrams per litre per hour.

ii. A plateau that is a period time after the consumption of alcohol where the person's blood-alcohol concentration doesn't appear to be rising or falling.

iii. That there was no consumption of alcohol between the time of the incident and before the breath tests were conducted.

iv. That there was no consumption of a large quantity of alcohol within 15 minutes to the time of the incident.

[109] Ms. Solbeck's opinion about impairment is based on the blood-alcohol concentration and it was her opinion that a person with a blood-alcohol concentration within that range would be impaired in their ability to operate a motor vehicle.

[110] The range Ms. Solbeck calculated back was 140 to 200 milligrams of alcohol per 100 millilitres of blood.

[111] In cross-examination, Ms. Solbeck calculated that a male weighing 103 kilograms with a blood alcohol concentration of 130 milligrams at 02:45 am who had three beers between 5:00 and 5:40 p.m. of the previous day or evening would zero milligrams of alcohol in 100 millilitres of blood between 11:19 and 11:50 p.m.

[112] The same scenario having consumed three tall boy beers between 11:19 and 11:50 and 1:03 a.m. would be between 75 to 115 milligrams of alcohol per 100 millilitres of blood.

Legal Analysis

Charter Application

[113] Mr. Greenspon, on behalf of Mr. Laurin, submits that his section 9, 10(a) and 10(b) Charter rights have been violated. He submits that the evidence should be excluded pursuant to section 24(2) as to admit the evidence would bring the justice system into disrepute.

[114] Mr. Greenspon submits that Cst. MacMillan did not have any reason or any basis for stopping Mr. Laurin at 01:03 on February 10, 2011. There was nothing unusual about his driving, he was not exercising any authority under the Highway Traffic Act but instead was acting on intuition or a hunch that the vehicle or person was involved in the accident or knew something about it.

[115] Mr. Greenspon submits that the stopping and detention of Mr. Laurin was arbitrary as a result.

[116] In addition, Mr. Greenspon submits that when Cst. MacMillan made the Alcotest demand he was not in a position to administer the test and when he requested an Alcotest device he had no idea how long it would take to get the device or who was bringing it.

[117] Mr. Greenspon submits that Cst. MacMillan did not inform Mr. Laurin that he was investigating the crash at 11:19 to 11:50 and did not provide rights to counsel to Mr. Laurin prior to questioning him or while he waited for the Alcotest to arrive. He did not turn his mind as to whether he should provide rights to counsel.

[118] Mr. Greenspon submits that Mr. Laurin's rights to counsel were breached when he was not provided those rights or given the opportunity to contact counsel while they waited for the Alcotest to be delivered by Cst. Dhaliwal and thereafter when Cst. MacLean had to go to the station to get another device to replace the Alcotest that was not functioning properly.

[119] The evidence is that once Mr. Laurin was at the station and given the opportunity to contact counsel he was able to choose counsel and speak with counsel within five minutes. Cst. MacLean was unable to say how long the conversation lasted.

[120] Mr. Greenspon submits that the test is a realistic opportunity to consult counsel.

[121] Mr. Greenspon refers to Tab 2 of the George Casebook, R. v. Fuks, where the court found that a five-minute delay was plenty of time to call a lawyer. The court found that there was a violation because the officer did not turn his mind to even asking if there was a cellphone present or not. In R. v. Adamson, a nine minute delay between the demand and the arrival of the device, and the court found that there was a duty on the officer to at least turn his mind to rights to counsel especially when the officer was not told when the device was likely to arrive.

[122] Mr. Greenspon submits that it is 2011 and there is still an officer, who has a cellphone, who knows that it will take at least 10 minutes to the Alcotest and he does not turn his mind to whether the accused wishes to consult counsel.

[123] Mr. Greenspon submits that the breaches could not be more serious, i.e. the arbitrary detention, the failure to inform of the reasons for detention and the failure to provide rights to counsel. He submits that the Court is entitled to look at a pattern of Charter violations and that such a pattern lends itself to the exclusion of evidence in a stronger way.

[124] He submits that the impact of the breach was serious.

[125] He submits that the evidence should be excluded.

Crown's Submissions

[126] Mr. Napier, on behalf of the Crown submits that Cst. MacMillan provided evidence as to why he stopped the vehicle, i.e. he had queried the car and Mr. Laurin and found out that he was an employee of Enbridge.

[127] Mr. Napier submits that Cst. MacMillan follows the car because the car is going in the direction that the van was going and he felt that the person was returning to the scene. He submits that the reason Cst. MacMillan stopped the vehicle was because he thought he was involved or knew something about the accident. He submits that it is clearly not an arbitrary detention.

[128] Mr. Napier submits that once he approaches the vehicle he begins to observe signs that are consistent with the consumption of alcohol.

[129] He submits that the time between the demand and the arrival of the first Alcotest is six minutes. It is not operating properly and he informs Mr. Laurin of the reason for the delay. He requests a new Alcotest and has a discussion with Mr. Laurin about whether he has any injuries.

[130] Mr. Napier submits that the second Alcotest arrives eight minutes later at 11:19.

[131] Mr. Napier submits that there is no evidence of whether Mr. Laurin was in possession of a cellphone and there is no evidence as to whether the cellphone Cst. MacMillan had was a police issue or personal cellphone.

[132] Mr. Napier submits that Mr. Laurin required the lawyer's list at 02:12 to find the telephone number for Mr. Greenspon and he was mumbling while he was selecting counsel.

[133] He speaks to Mr. Granger between 02:15 and 02:32. Mr. Napier submits that Cst. MacLean's evidence was that he was checking periodically whether Mr. Laurin had completed his call and although he didn't know exactly when the call was finished it would have been within a minute or two of completion that he got him out of the lawyer room.

[134] Mr. Napier submits that the facts in R. v. George are distinguishable as the officer did not have a roadside, did not inform the accused of his rights to counsel and the accused had a cellphone and testified that he would have called a lawyer if given the opportunity. Mr. Napier submits that there is no evidence in this case on that key element.

[135] Mr. Napier submits that Cst. MacMillan acted in good faith as he informed Mr. Laurin of the delay due to the first roadside not working. Cst. MacLean was aware of the urgency and radioed ahead to obtain a roadside more quickly. He tested on while on the way back to the scene.

[136] Mr. Napier submits that R. v. Smith, [2010] O.J. No. 5344, applies to this case. In Smith the officer thought he had the authority to stop a vehicle because of the snow on the back window. The officer was in error. However, even though the stop was arbitrary the evidence was not excluded. The trial judge found that even though no Highway Traffic Act offence had been committed, the officer had pulled over an unsafe vehicle.

[137] Mr. Napier submits that it was not a random stop and that Cst. MacMillan was authorized to stop the vehicle under investigative authority. He submits that the officer was duty bound to stop the vehicle as the officer had evidence that the van was involved in the accident and took off.

[138] Mr. Napier submits that even if the stop is found to be arbitrary the evidence should not be excluded.

[139] Mr. Napier submits that once the screening demand is made that is sufficient in terms of the reason for detention.

[140] Mr. Napier submits that there was no bad faith and the officers were aware of the time constraints. He submits that to exclude the evidence would bring the administration of justice into disrepute.

Court's Analysis of Charter Breaches

R. v. Yamka Framework

[141] I have reviewed the cases submitted by Counsel. In R. v. Yamka, [2011] O.J. No. 283, Durno J. reviews the issues of arbitrary detention, section 10(a), section 10(b), and section 11(b) in the context of an accident and a roadside demand.

[142] In Yamka, the accused appealed a conviction for driving with an illegal blood-alcohol level. The accused collided with a truck while driving on a highway shortly after midnight. The truck driver called 911. The attending officer decided to issue a roadside screening demand after speaking with the accused and noting a strong odour of alcohol and bloodshot eyes. The accused was placed in the back seat of the police cruiser to await the arrival of the device. Police agreed that the accused was in custody. When the device arrived ten minutes later, the officer formally issued the roadside demand. A further ten minutes later, the accused failed the roadside test. She was arrested, read her right to counsel and issued a breath sample demand. The accused told the officer that she wished to contact counsel. Police were unable to reach the accused's choice of counsel. She accepted an offer to speak with duty counsel and did so for approximately ten minutes. The accused gave two breath samples indicative of an illegal blood-alcohol level. At trial, she sought the exclusion of evidence based on breaches of her Charter rights protected by ss.8 and 10(b). The trial judge held that the failure to give the accused her rights to counsel during the ten-minute wait for the device was not a Charter breach. On appeal, the accused submitted that the judge erred in failing to find a violation of her rights. She sought a new trial, or an order excluding the evidence. The Crown conceded a violation of the accused's s.8 rights due to the delay.

[143] At paragraph 21, Justice Durno states:

"At trial the appellant framed her Charter application under s. 8. The trial judge never addressed s. 8, basing his judgment on s. 10(b) instead. The appellant contends the trial judge erred in so doing. I agree."

[144] At paragraph 22, he states:

"The appellant's trial evidence Charter notice of application cited only s. 8. She filed a factum which relied exclusively on s. 8. Neither document mentioned s. 10(b). At the outset of the trial, defence counsel told the trial judge the only application was under s. 8. However, in oral submissions trial counsel raised the s. 10(b) issue within a couple of pages of starting his submissions. For the remainder of his argument he referred to both sections. Mr. Latimer appropriately refers to the 'impromptu' s. 10(b) application for which there was no pre-trial notice."

[145] At paragraph 23:

"The appellant's main argument dealt with the failure of the officer to make the ASD demand 'forthwith'. The Supreme Court of Canada has held that the 'forthwith' requirement is 'inextricably linked to its constitutional integrity, addressing issues of unreasonable search and seizure, arbitrary detention and rights to counsel, notwithstanding s. 8, 9, and 10 of the Charter'. R. v. Woods, [2005] 2 S.C.R. at para. 29. As the argument proceeded, both counsel and His Honour moved from a s. 8 analysis to a s. 10(b) one. In these circumstances, it is perhaps not surprising that the trial judge never dealt with the s. 8 argument. Crown Counsel, not Mr. Latimer, never objected to the s. 10(b) argument being advanced despite the lack of notice."

[146] At paragraph 24:

"Notwithstanding the unfortunate position both trial counsel put His Honour in, I am persuaded he erred in failing to address the s. 8 issue. There was a viable s. 8 argument that should have been addressed. As noted below, not only was it viable, it is appropriately conceded on appeal that there was a s. 8 breach, a breach that had to be addressed by the trial judge."

[147] At paragraph 25:

"As Mr. Latimer correctly stresses in his factum, a police officer's use of an ASD raises several constitutional considerations, particularly when he or she does not have an ASD with them and they either have to await the instrument's arrival or drive the person to a police station. He notes that it is not an uncommon occurrence for trials involving ASD demands to lead to a consideration of various Charter sections with the arguments and analysis becoming confused and conflated. I agree with his submission that it is important to view them as distinct, albeit related constitutional concepts and examine them separately."

Section 8 Analysis

[148] Justice Durno then analyzes whether there was a s. 8 breach:

Paragraph 27:

"Pursuant to s. 8, everyone has the right to be secure against unreasonable search and seizure. An ASD demand must occur 'forthwith' upon the officer forming the reasonable suspicion that the driver has alcohol in his or her body and the corresponding intention to administer an ASD test. Woods, supra at para. 13, 14, 15 and 29; R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.) at para. 36-39; R. v. Wakernagel (2004), 16 M.V.R. (5th) 297 (Ont. S.C.)."

Paragraph 28:

"'Forthwith' means 'immediately' or 'without delay'. It connotes a prompt demand and an immediate response by the person to whom that demand is addressed. Woods, at para. 13 and 44. An ASD demand that does not comply with the 'forthwith' component is not authorized by s. 254(2) and is not a lawful demand. The resulting breath sample is obtained in violation of the driver's s. 8 rights. Woods, at par. 11 and 14."

Paragraph 29:

"The Crown appropriately concedes that the appellant's s. 8 rights were violated when the officer did not make the ASD demand until the device arrived."

Section 10(b) Analysis

[149] Concerning the s. 10(b) breach, Justice Durno states:

Paragraph 30:

"Pursuant to s. 10(b), everyone on arrest or detention has the right to retain and instruct counsel without delay and to be informed of that right. The onus is on the person claiming his or her s. 10(b) rights were violated to establish the breach."

Paragraph 31:

"Before the Supreme Court of Canada released Grant, Crown counsel at trial conceded the appellant was detained in the back of the cruiser. On appeal, relying on Grant, the Crown argues the appellant was not detained."

Paragraph 32:

"The requirement that the demand and sample be made and taken 'forthwith' creates a quagmire for police officers who form reasonable suspicions warranting ASD demands and do not have the instruments with them. R. v. Singh (2004), 4 M.V.R. (5th) 252 at para. 33, R. v. Beattie 2009 ONCJ 456 at para. 8, 9 and 16, R. v. Comber, [2009] O.J. No 3854 at para. 13. The law is relatively easy to state. There are two questions:

Was the person detained?

If the person was detained, was there a realistic opportunity to contact, seek and receive advice from counsel before the sample was provided?"

[150] At paragraph 34:

"For the purposes of s. 9 and 10 of the Charter, detention refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention occurs where the individual has a legal obligation to comply with the restrictive request or demand such as a demand for an ASD demand or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, Grant at para. 30. Here, had the appellant been given the ASD when the officer formed the opinion or when she was placed in the cruiser there would be no issue that she was detained. The challenge is because she was not given a demand until after the ASD arrived."

Application to This Case

[151] In this case, the detention began when Cst. MacMillan stopped Mr. Laurin driving in the Hyundai at 1:03 a.m. Cst. MacMillan had no reason to stop the vehicle other than a hunch that it was involved in the accident or knew something about it. There was no authority under the HTA, it was not a random stop to check for documents and there was no driving evidence.

[152] When Cst. MacMillan approached Mr. Laurin's vehicle he does not mention that he is investigating the accident involving an Enbridge van at 11:19 to 11:50. Cst. MacMillan does not provide Mr. Laurin with any rights to counsel or caution before he starts to question him about that even though that is the reason he pulled Mr. Laurin over.

[153] Cst. MacMillan's investigation does not change from his original intention when he pulled the vehicle over, however it progresses when he observes the odour of alcohol on Mr. Laurin's breath when he rolls down the window. Cst. MacMillan's first question to Mr. Laurin is to ask him what he was doing. Mr. Laurin did not answer. Cst. MacMillan immediately asks Mr. Laurin "if he was in an accident earlier" and Mr. Laurin's reply was "maybe a little one".

[154] Cst. MacMillan asks Mr. Laurin if he had anything to drink and he replied "earlier". Cst. MacMillan also asked Mr. Laurin for his driver's licence, ownership and insurance which Mr. Laurin produced without difficulty. Cst. MacMillan then asked Mr. Laurin to step out of his vehicle and to walk to the back of the police cruiser. It was Cst. MacLean's cruiser.

[155] Having formed a suspicion Cst. MacMillan requested an ASD be brought to the scene at 1:06 a.m.

[156] Cst. MacMillan noticed that at 1:06 a.m. Cst. MacLean was on scene.

[157] Cst. MacMillan continued to ask Mr. Laurin questions concerning the investigation of the earlier accident involving the Enbridge van.

[158] Cst. MacMillan read the ASD demand to Mr. Laurin at approximately three minutes after he had first observed the odour of alcohol on Mr. Laurin's breath.

[159] Cst. MacMillan concluded from the odour of alcohol that Mr. Laurin "had consumed alcohol that evening".

[160] Cst. MacMillan testified that he gave Mr. Laurin the option of sitting in the back of the cruiser or standing outside with the two officers while they waited for an ASD.

[161] Cst. MacMillan did not have an ASD with him. It is assumed that Cst. MacLean did not have an ASD in his cruiser but neither officer provided evidence on that issue. Cst. MacMillan did not ask or receive information as to the estimated time of arrival of an ASD or who was bringing the ASD or how close or far that officer was.

[162] Cst. MacMillan testified that Mr. Laurin opted to sit in the back of the car. He testified that Cst. Dhaliwal arrived on scene with an ASD at 01:11 hours. However, as soon as Cst. MacMillan turned the ASD on he observed that the battery was not working and therefore the ASD was not functioning.

[163] It was decided that Cst. MacLean would take Cst. Dhaliwal's cruiser to go to a police station to get another ASD. Cst. MacMillan assumed that Cst. MacLean was going to the 10th Line Police Station as it was the closest to the scene. He did not ask Cst. MacLean which station he was going to. Cst. MacMillan assumed that it would take approximately 10 minutes for Cst. MacLean's round trip to the station and back. He agreed that the 10 minutes was travel time only and did not include time to verify that the ASD was calibrated and functioning properly. Cst. MacMillan did not note the time that Cst. MacLean left but noted that he returned at 01:19 hours. Cst. MacLean testified that he left at 01:09 and returned at 01:19 hours. Cst. Dhaliwal testified that he arrived on scene at 01:11 hours. As a result there is some discrepancy concerning the times as Cst. MacLean would not have left at 01:09 because Cst. Dhaliwal would not yet have arrived with the ASD. Cst. MacLean agreed in cross-examination that he left for the station between 01:11 and 01:14 hours.

[164] Cst. Dhaliwal got into Cst. MacLean's cruiser while Cst. MacLean went to the station. Cst. Dhaliwal began questioning Mr. Laurin who was in the back of the cruiser. Cst. Dhaliwal did not provide rights to counsel or any caution before he asked Mr. Laurin "what happened". Cst. Dhaliwal had not asked Cst. MacMillan if rights to counsel or cautions had been given to Mr. Laurin before he began to question him.

[165] Cst. MacMillan did explain that the ASD was not working and that Cst. MacLean was going to get another one. He did not provide rights to counsel, inquire whether he wished to speak to counsel or whether he had a cellphone on him while they waited. Cst. MacMillan did not even turn his mind to whether or not he should have provided rights to counsel.

[166] At paragraph 35 in Yamka, Justice Durno states:

"Notwithstanding the absence of the demand and the appellant not testifying as to her beliefs at the time, I am persuaded the appellant was detained in the back seat of the cruiser for the following reasons. First, I am persuaded the appellant was detained when she was put or 'helped' into the back of the cruiser 'for her safety'. In R. v. Grant 2009 SCC 32, the Supreme Court of Canada re-visited the criteria for detention applying a 'reasonable person' test. However, the individual's particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police and the reasonableness of any perception that the person had no choice but to comply with the police detective. Answering the question whether a person was detained requires a realistic appraisal of the entire interactions as it developed, not a minute parsing of words or movements. Grant, at para. 32."

[167] Justice Durno states at paragraph 36:

"Applying these criteria, the appellant was detained because a reasonable person would conclude that by reason of the state conduct, the officer helping her into the cruiser with no evidence of any accompanying words, that her liberty interests were restrained. In addition, the officer was singling out the appellant for focused investigation at the very least once she was put in the cruiser and she was in the rear seat of a police cruiser from which she could not get out. A person confronted by state authority ordinarily has the option to choose to simply walk away. Where the choice has been removed through physical or psychological compulsion the individual is detained. It includes any form of 'compulsory restraint'. Grant, at para. 21 and 25. Finally, she was in the cruiser for ten minutes before the demand was made."

[168] In this case, applying the above, Mr. Laurin was asked to get out of his vehicle and walk to the cruiser. At the cruiser he was given the 'option' of standing outside with the officers or to get into the back of the cruiser to wait for the ASD to arrive. It is unclear where and when during this sequence the ASD demand was made. I find that it was sometime before Mr. Laurin got into the back of the cruiser. However, I find that Mr. Laurin was detained as he was not free to simply walk away.

[169] As Justice Durno states in Yamka at paragraph 37:

"In these circumstances, even under the new criteria, the officer crossed the line between police conduct that respects liberty and the individuals' right to choose and conduct that does not. Grant, at para. 32."

[170] Justice Durno then analyzes whether there was a realistic opportunity to contact, seek and receive advice from counsel before the sample was provided.

[171] At paragraph 38:

"When detention removes a person's 'choice to do otherwise' but comply with police directions, s. 10(b) serves an indispensable purpose. Grant, at para. 28. A person detained pursuant to an ASD demand has the need for legal advice. However, that right is suspended as a reasonable limit because of the required immediacy of the sample being provided. R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.). Where the officer is not in a position to require the sample to be provided immediately, the question becomes whether the officer was in a position to require the breath sample be provided 'forthwith', meaning before there was any realistic opportunity for the person to consult counsel. What is required is a realistic opportunity to contact, seek and receive advice before the sample is taken. R. v. Cote (1992), 70 C.C.C. (3d) 280 (Ont.C.A.); R. v. Latour (1997), 116 C.C.C. (3d) 279 (Ont. C.A.); R. v. Torsney (2007), 217 C.C.C. (3d) 571 (Ont. C.A.)."

[172] At paragraph 39:

"While the occasions when officers are not required to give the rights to counsel are apparently not closed, the only occasion that appellate courts have identified is when the officer delays the taking of the sample to permit recently consumed alcohol to dissipate from the detainee's mouth. In that situation, there is no obligation to provide the rights to counsel. This generally results in a delay of no longer than fifteen minutes. R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.)."

[173] At paragraph 40:

"Whether there was a reasonable opportunity to consult counsel requires a fact-specific analysis of all the circumstances. Latour, at p. 287, Torsney, at para. 8. Courts have considered the following non-exhaustive list of factors as relevant to the determination: the time the officer believed it would take for the ASD to arrive (Singh, George, [2004] O.J. No. 3287 at para. 42), the time between the demand and the taking of the sample (Latour at p. 288), the time between the demand and the ASD's arrival (George, at para. 39), the time of day the call to counsel would have been made (R. v. Singh (2005), 24 M.V.R. (5th) 19 (Ont. C.A.)), whether the detainee had a cell phone although having one is not in itself determinative (George at para. 42, Beattie), the amount of time it actually took for the ASD to arrive (Latour at p. 288, George at para. 39), whether there was an explanation for the delay (Fildan) and whether the detainee's efforts to contact counsel at the station after providing the ASD sample and being arrested bore fruit (Torsney)."

[174] At paragraph 41:

"While the amount of time is a relevant consideration, in itself, it is not determinative. For example, in Singh, a delay of ten minutes between the request for the ASD and its arrival did not result in a breach, in R. v. Pilon, [2006] O.J. No. 701 (S.C.J.) a seven minute delay did not result in a breach, in Latour twelve minutes did not result in a breach, in Fildan a fifteen minute delay resulted in a breach, in Beattie a twenty minute delay resulted in a breach, in R. v. Grant (1992), 67 C.C.C. (3d) 268 (S.C.C.) a thirty minute delay resulted in a breach because the demand was not forthwith, in R. v. Najm (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) a twelve minute delay resulted in a breach, in Torsney, a six or seven minute delay between the demand and first attempt at giving a sample did not result in a breach, and in Cote a delay of fourteen minutes including five at a police station resulted in a breach."

[175] At paragraph 42:

"Before addressing the facts here, as noted above courts have been inconsistent as to what period of delay is being referred to. Is it from the time the suspicion is formed to the 'fail' reading, to the time the ASD arrives or to some other time? Indeed, in some judgments the times appear to be referred to interchangeably. It seems the relevant time is the one between the time the suspicion is formed and/or the demand, if timely is made, until the device arrives assuming there is no further unreasonable and unexplained delay in administering the test."

[176] At paragraph 43:

"I reach that conclusion for the following reasons. First, if the officer had a device in the cruiser they would still have to explain the ASD device's operation to the subject and ascertain that he or she understood. Here, the officer showed the appellant how the ASD operated by demonstrating on himself and asking if she understood. It makes little sense to extend the time period to include the time that would have been required to prepare the device had it been sitting on the front seat of the cruiser. Assuming the detainee was given an opportunity to contact counsel that would have ended when the officer was ready to tell her how the instrument operated and demonstrate its use."

[177] At paragraph 44:

"Second, to extend the time to when the 'fail' is recorded could distort the delay period. Here, the device arrived ten minutes after the suspicion was formed. However, the 'fail' was not for a further seven minutes. That period was required because the officer's un-contradicted evidence was that the appellant failed to provide proper samples on four occasions before providing a suitable sample on her fifth attempt. Accordingly, the relevant time here was ten minutes. If the time is calculated to the first attempt, it would appear to have been around thirteen minutes. The uncertainty is caused by the officer's evidence that he showed the appellant how the ASD worked at 12:53 a.m. and that her sample analyzed as a 'fail' at 12:57 a.m. with four attempts at unspecified times between."

[178] At paragraph 45:

"Applying the criteria other courts have examined here, the officer knew it would take seven to eight minutes for the ASD to arrive, the other officer on his way, and the ASD arrived nine minutes after it was requested. The suspicion was formed at 12:41 a.m., the device arrived at 12:50 and the fail was at 12:57 a.m. It is reasonable to assume that the first inadequate attempt was around 12:54 a.m. Had the appellant been given her rights to counsel she would have been trying to contact counsel shortly after midnight. The officer knew the appellant had a cell phone with her. At the station when the officer attempted to call trial counsel he was unsuccessful. In cross-examination, he said that the phone number given was not successful from which I infer the appellant had counsel's number. However, when the officer tried to contact counsel about one and one half hours later, counsel could not be reached. Finally, while the officer explained that he did not make the ASD demand earlier because he was new and thought it had to be given immediately before the sample was provided, he gave no explanation for not giving the rights to counsel while he waited for the device other than to say that he could have done so."

[179] At paragraph 46:

"Having regard to all the circumstances and the cases referred to earlier, while I regard this as a very, very close call, the onus is on the appellant in regards to s. 10(b) violation and I am not persuaded that the officer was required to give her her rights to counsel before the ASD arrived. I reach that conclusion for the following reasons. First, in one of the most recent Court of Appeal cases dealing with this issue, the Court held that a delay of six or seven minutes was 'well within the periods of time that have been said to comply with the legislation' and cited Sigh (sic), where a seventeen minute period between the demand and the machine being ready did not result in a breach, Pilon where the delay was seven minutes from demand to testing and Latour where the delay was eight minutes to the ASD's arrival and another four minutes to testing. As was the case in Torsney, the delay on any version of the calculations was within the periods of time that have been said to comply."

[180] At paragraph 47:

"Second, while the appellant did not testify, assuming she had her trial counsel's phone number and assuming she would have tried to contact him from the cruiser, she would have been attempting to contact counsel after midnight. There is no evidence whether any number she had was his office or home number and if it was the office number whether there was an after-hours referral. Those issues alone substantially weaken the appellant's argument. In addition, as the Court of Appeal reasoned in Torsney, there is nothing on the record that leads to any other conclusion than the attempt to contact counsel from the cruiser while awaiting the ASD would have been futile as it was around an hour later from the detachment. That would have resulted in an attempt to contact duty counsel who operates on a 'call back' system which would have taken some time."

[181] At paragraph 48:

"Third, as the Court noted in Torsney (a detainee who also had a cell phone), the question is not simply was there time to make a call to counsel, but whether there was time to contact, seek and receive advice from counsel. I am not persuaded there was that much time here in all the circumstances."

[182] At paragraph 49:

"Fourth, in regards to the appellant's speculation as to what she might or would have done had she been provided with her rights to counsel, the appellant did not testify at the trial. There is no evidence to support her speculation on appeal as to what she might, would or could have done had the rights been given."

Findings on Charter Breaches

[183] In this case, the rights to counsel and cautions should have been given to Mr. Laurin, concerning the primary investigation, immediately.

[184] However, concerning the impaired investigation at 01:06 hours I find that it cannot be separated from the first investigation because they were one in the same. However, for the sake of the analysis, I find that Mr. Laurin was detained when he was pulled over. He was detained when Cst. MacMillan asked him to get out of his vehicle and walk to the cruiser. I find that he was detained when given the 'option' of standing outside with the officers or being seated in the back of the cruiser while waiting for the ASD to arrive.

[185] There was a delay of five minutes between 01:06 when the demand was made and the arrival of the first ASD at 01:11 hours.

[186] Cst. MacMillan did not know who was bringing the ASD, how far that officer was from the scene or when he could expect its arrival. He made no inquiries and testified simply that "he knew it was on its way".

[187] Once the first ASD was found to be inoperable, there was a further delay between 01:11 and 01:19 of eight minutes. The fail was at 01:25. However, the time between 01:19 and 01:25 hours is unexplained because Cst. MacMillan did not test the machine or demonstrate how to provide a sample as he was told that Cst. MacLean had tested the machine and determined that it was in proper working order. Cst. MacMillan did not see Cst. MacLean test the machine on scene. Cst. MacLean testified that he did test the machine as he arrived on scene but did not provide a time for the test or when he would have handed the ASD to Cst. MacMillan. Therefore that time is also included in the calculation of the delay. The total delay is from 01:06 to 01:25, a total of 19 minutes. The officers were confused and unclear as to the specific times because all three officers did not have detailed notes as to times.

[188] When the first ASD failed, there was also the option of taking Mr. Laurin to the station that was a five minute drive from the scene. At the station, Mr. Laurin would have been able to consult the lawyer list to obtain Mr. Greenspon's number and as was the case at the station when Mr. Laurin did call Mr. Greenspon, Mr. Granger answered immediately and Mr. Laurin spoke with him right away. Mr. Laurin was in the lawyer's room from 02:15 to 02:32 however it is unknown how long his actual conversation with Mr. Granger was, but Cst. MacLean estimated that he would have been sitting for two or three minutes having finished his conversation. Therefore an estimate of 12 to 14 minutes to complete his conversation with counsel. Had Mr. Laurin been taken to the station when Cst. MacLean went to get the second ASD it is reasonable to believe that he could have contacted and spoken with counsel within the 19 minute time period.

[189] I find that there were at least three separate breaches of Mr. Laurin's section 10(b) rights by Cst. MacMillan. Cst. Dhaliwal's questioning of Mr. Laurin without providing rights to counsel or caution also breached his 10(b) rights.

[190] I find that the detention was arbitrary and Mr. Laurin's section 9 rights were violated.

Section 9 Analysis

[191] Justice Durno states concerning S. 9, at paragraphs 51 and 52:

"Pursuant to s. 9 of the Charter everyone has the right not to be arbitrarily detained or imprisoned. The state may not detain anyone arbitrarily, but only in accordance with the law. A lawful detention is not arbitrary within the meaning of s. 9 unless the law authorizing the detention is itself arbitrary. Conversely, a detention that is not authorized by law is arbitrary and violates s. 9 Grant, at para. 54."

[192] Paragraph 52:

"While not argued at trial, I agree with the respondent's concession that it is appropriate to examine the issue. I disagree with the respondent that the detention was not arbitrary. Here, the officer had the legal basis upon which to detain the appellant pending the ASD testing, a brief investigative detention. The problems arise because he never told her why she was being detained and never made the ASD demand forthwith. That meant the appellant was being detained pending a demand that was not a lawful demand. In those circumstances, the appellant's detention was not authorized by law. Accordingly, the detention was arbitrary."

Application to This Case

[193] In this case, the stopping of Mr. Laurin's vehicle was unlawful as it was based on a hunch that this vehicle or driver was involved or knew something about the accident with the van nearly two hours earlier. The hunch was based on the vehicle driving in the direction that the van had taken earlier and information Cst. MacMillan received that one of the co-owners of the Hyundai was an Enbridge employee. He had no confirmation of that fact when he pulled the Hyundai over. He had no description of the driver of the van to say that Mr. Laurin had been the driver of the van. He had no authority under the Highway Traffic Act to pull the vehicle over, it was not a random stop and there was no evidence of impaired driving.

[194] If it was for a brief detention to investigate the van accident, Cst. MacMillan had an obligation to inform Mr. Laurin why he was being stopped, what the officer was investigating and his rights to counsel, and cautions. Those obligations did not change because Cst. MacMillan observed an odour of alcohol when the ASD was not avaible to administer the test forthwith.

[195] Notwithstanding that the obligation did not change, even if Cst. MacMillan believed that he was simply investigating a possible impaired driver at 01:03 hours, he did not comply with the proper procedure. His first or second question to Mr. Laurin was whether he had been in an accident earlier.

[196] Cst. MacMillan did not tell Mr. Laurin why he stopped him or what he was investigating. He therefore breached Mr. Laurin's s. 10(a) rights when he stopped him and again when he did not inform him why he was being detained while he waited for the first ASD. He had provided the demand but he did not tell him or inquire himself as to when the ASD could be expected. In addition Cst. MacMillan had difficulty expressing the test for a s. 254(2) demand and thereafter the reason for arrest. All four officers had incomplete notes concerning the times and the conversation they had with Mr. Laurin.

[197] As stated by Justice Durno at paragraph 53:

"…The appellant was helped into the cruiser and there is no evidence of any compliance with s. 10(a). R. v. Mann (2004), 185 C.C.C. (3d) 308 (S.C.C.) at para. 21. It is an obligation that is 'easy to fulfill'. R. v. Nguyen (2008), 231 C.C.C. (3d) 541 (Ont. C.A.). That the officer breached s. 10(a) is a factor to take into consideration on the s. 24(2) analysis."

Statements and Exclusion

[198] The statements at the roadside are roadside statements and cannot be admitted other than for reasonable and probable grounds.

[199] The statements to Cst. Dhaliwal are excluded as Mr. Laurin was not provided rights to counsel, cautions or the opportunity to consult with counsel when Cst. Dhaliwal began to question him about the van accident while they waited for the second ASD to arrive.

[200] There was as a result, a breach of Mr. Laurin's section 8 Charter rights.

Section 24(2) Analysis

[201] Justice Durno reviews the steps in the section 24(2) analysis in paragraphs 64 to 92.

[202] He states at paragraph 66:

"Under the revised s. 24(2) post-Grant, the Court must assess and balance the effect of admitting the evidence on society's confidence in the justice system under the following lines of inquiry:

1. the seriousness of the breach;

2. the impact of the breach on the Charter-protected interests of the accused;

3. society's interest in the adjudication of the case on its merits. Grant, at para. 71."

[203] As Justice Durno states, "there is a continuum of unconstitutional departure ranging from minor, trivial, technical or the product of an understandable mistake to wilful or reckless disregard of Charter rights. Fildan, at para. 45. What must be determined is where along the 'fault line' the state conducts falls. Harrison, at para. 23. Admitting evidence obtained by deliberate and egregious police conduct in disregard of the accused's rights may lead the public to conclude the court implicitly condones such conduct, thereby undermining respect for the administration of justice. However, where the breach was committed in good faith, admitting the evidence may have little adverse effect on the repute of the administration of justice. Grant, at para. 108."

[204] Here, Cst. MacMillan's conduct resulted in breaches of section 8, 9, 10(a) and 10(b). Cst. Dhaliwal's conduct resulted in a separate and further violation of Mr. Laurin's section 10(b) rights. If the roadside statements are not excluded as a result of the violation of Mr. Laurin's section 10(b) rights, they would be considered statements he was obliged to provide under the Highway Traffic Act and therefore not admissible.

[205] While there is no allegation of wilful disregard for Mr. Laurin's Charter rights, it is extremely concerning that none of the three officers turned their mind to the issue of rights to counsel or cautions until after the arrest. It is particularly aggravating that both Cst. MacMillan and Cst. Dhaliwal began questioning Mr. Laurin, while he was unlawfully detained about the van accident without ever considering that rights to counsel, cautions and the opportunity to speak with counsel prior to questioning him. These were not minor, trivial or technical breaches.

[206] The impact of the breaches was serious. Mr. Laurin was pulled over, taken from his vehicle and placed in the back of a police cruiser. He was thereafter arrested and taken to the station where further searches and tests were administered.

[207] Concerning society's interest in the adjudication of cases on their merits, Justice Durno states at paragraph 83:

"Society generally expects that a criminal allegation will be adjudicated on its merits. Grant, at para. 79. In examining the third line of inquiry, an important consideration is the reliability of the unconstitutionally obtained evidence, with admission usually favour in cases involving bodily samples because they are generally reliable."

[208] Ms. Solbeck testified that a properly functioning, properly operated Intoxilyzer 8000C is a reliable instrument.

[209] Breath samples has been described as relatively non-intrusive.

[210] As stated in Yamka at paragraph 86: "Here, the evidence was reliable and essential to the prosecution's case. The offence is serious as the threat to public safety from those who drink to excess and drive is well known and has been the subject of comment by appellate courts for decades and well advertised public campaigns…The informed member of the public would view the testing as minimally intrusive and the violations not egregious or flagrant (in Yamka). The third line of inquiry strongly supports the admission of the evidence."

[211] However in this case, the number and the nature of the violations are serious and cannot be said to be good faith where Charter rights are completely ignored.

[212] I find that to include the evidence from the time of the unlawful stopping of Mr. Laurin's vehicle through to the results of the Intoxilyzer tests would bring the administration of justice into disrepute. The evidence will therefore be excluded.

Released: August 31, 2012

The Honourable Justice C. Kehoe