R. v. Ayoub

Court Information

Court File No.: Not provided

Date: June 13, 2013

Ontario Court of Justice

Before: Justice Lucia Favret

Heard on: March 14, July 26, August 9, and November 8, 2012

Charges Dismissed: March 7, 2013

Written Reasons Released: June 13, 2013

Parties and Counsel

Crown: M. Schwartz

Accused: G. Hamilton

Endorsement

[1] Overview

Mark Ayoub is charged that on May 3, 2011 he was impaired by alcohol and had more than 80 mg of alcohol in 100 ml of his blood while operating a motor vehicle. The defendant sought an order excluding evidence of the analysis of samples of his breath provided to the police because his s.8, 9 and 10(b) Charter Rights were infringed. On consent of the crown and defendant, the Charter voir dire and trial evidence was blended. The crown presented the evidence of an employee of the L.C.B.O., several police officers and a toxicology report. There was no other evidence.

(1) Overview

[2] The Incident at the L.C.B.O.

On May 3, 2011 Ms. Levay worked as a cashier at the L.C.B.O. at Fairview Mall located at 1800 Sheppard Avenue West, Toronto. In that capacity, she refused to sell liquor to Mr. Ayoub, a customer she recognized. Based on her observations, Ms. Levay believed Mr. Ayoub's ability to operate a motor vehicle was impaired by alcohol. She spoke with her manager who called the police.

[3] Police Response and Initial Investigation

Sergeant Marchak (the "Sergeant") received a radio call about a possible impaired driver which included the plate number of the motor vehicle. Through a computer check he conducted, he obtained the home address of the registered owner of that motor vehicle, 50 Graydon Hall Drive, and went there. This address was one to two kilometres from Fairview Mall. The apartment building there had two entrances to the underground parking. The Sergeant parked across the street from the east entrance to the building underground parking which was near the main surface entrance of the building.

[4] Initial Contact with the Defendant

At about 11:40 a.m., the Sergeant believed he saw the car referred to in the radio call ("Subject Car"). A male driver was the only person in the car. Identification is not an issue at this trial. The defendant was the driver. The Sergeant and defendant made eye contact. The Sergeant moved his cruiser to get behind the Subject Car but another vehicle (the "Second Car") moved to that position. As a result the cruiser was behind the Second Car. He did not turn on the cruiser lights or siren.

[5] Entry into Underground Parking Garage

The defendant used a device to access the underground parking garage causing the door to open, drove in, followed by the Second Car and the cruiser. At some point, the Second Car turned. The Sergeant continued to follow the defendant as he drove to the second level where he backed his vehicle into parking spot 288 touching a shopping cart which was against the back wall.

[6] Initial Detention and Observations

The Sergeant got out and approached the defendant who was getting out of his car. After asking a few questions, he directed the defendant to his cruiser explaining he was investigating him for impaired operation of his motor vehicle. He asked the defendant if he had any weapons. The defendant did not have any. The defendant was directed to sit in the back seat. He was not cuffed. The Sergeant got into the cruiser where he radioed a request that a traffic car deliver an approved screening device. He was concerned about the quality of the radio communication with dispatch. The Sergeant told the defendant he was detained and that he smelled alcohol on his breath. Based on that smell, the Sergeant formed a suspicion the defendant had alcohol in his body. The Sergeant asked the defendant when he last consumed alcohol. The defendant responded, a sip one hour ago. The Sergeant allowed the defendant to send a text to his wife to let her know he was detained by police.

[7] Securing the Vehicle and Exiting the Garage

The Sergeant got out of the cruiser to secure the defendant's vehicle, returned to his cruiser and drove to the surface. He found the exit with the assistance of a man on the first parking level. The Sergeant drove out the north entrance of the building and parked on the driveway waiting for a traffic officer.

[8] Approved Screening Device Demand and Testing

At 11:56:41 the Sergeant read the roadside screening device demand to the defendant. At 12:01:52 the defendant asked the Sergeant if he had the equipment. The device arrived at 12:02:36. The Sergeant read the approved screening device demand to the defendant. The Sergeant did a self-check. At 12:04:40, the Sergeant demonstrated how to provide a sample of breath into the device. At 12:06:09, the defendant provided a breath sample that registered "F", a fail. The Sergeant arrested the defendant for impaired operation of a motor vehicle.

[9] Arrest and Rights to Counsel

At 12:12:568, the Sergeant told the defendant he will have to give a breath sample into an intoxilyzer. The defendant asked if the reading was bad. At 12:14:16, he asked if he could call his wife. The Sergeant said no explaining, the defendant would have reasonable access to a phone at the station. At 12:15:54, the defendant was arrested for impaired driving and his rights to counsel were read to him. At 12:17:08, the defendant stated he wanted to call a lawyer "Right Now." At 12:17:46, a demand that he provide a sample of breath into an intoxilyzer was read. At 12:18:21, the defendant said he understood. At 12:18:33, the defendant said he had a lawyer and wanted to call that person. At 12:22:40, the defendant was told he was arrested for over 80 and that another officer would transport him to the station to give a breath sample.

[10] Transport to Station

A second cruiser arrived on scene. At 12:31:36, the defendant got out of the Sergeant's cruiser, walked to the second cruiser, following which he was transported to the station.

[11] Contact with Counsel at Station

After he was paraded Constable Dowling left a voice mail message for the defendant's lawyer. He called a second time, because no one had called back and he spoke with an assistant who provided a cell phone number for the lawyer. Constable Dowling then dialled that number leaving a message for the lawyer. As no one called back Constable Dowling called duty counsel. The defendant spoke with duty counsel in private and then went to the breath room.

[12] Breath Sample Analysis

The defendant met with Constable Mailer the qualified breath technician and provided two samples of his breath. These were analyzed by the Intoxilyzer 8000C. The results respectively were 205 and 202 mg of alcohol in 100 ml of blood, Exhibit 4. A certificate analysis was prepared. The truncated analysis was 200 mg of alcohol in 100 ml of blood, Exhibit 3.

[13] Expert Evidence

On consent the affidavit of Mr. Jean-Paul Palmentier, a toxicologist, appending his report, was filed as Exhibit 7. Based on enumerated factors he concluded that at 11:40 a.m. the defendant's projected blood alcohol concentration was 205 to 250 mg of alcohol in 100 ml of blood. In his opinion an individual would be impaired in their ability to operate a motor vehicle with a blood alcohol concentration within that range. No other expert evidence was presented.

[14] Issues Before the Court

The issues in this matter relate to whether the police breached the defendant's s.8, 9 and 10(b) Charter Rights by following him into the underground parking garage, without first attempting to stop him, to investigate a radio call concerning an impaired driver, and whether the breath sample into the approved screening device was obtained forthwith. The issues also include whether the defendant's s.9 and 10(b) Charter Rights were infringed while waiting to provide a breath sample into the approved screening device.

[15] Defendant's Submissions

The defendant submits he had a reasonable expectation of privacy in the parking garage beneath his dwelling. Access and egress was controlled. There were no exigent circumstances and the Sergeant made no attempt to stop him before following him underground. At that time the Sergeant's intention was to stop the defendant to investigate him. He had no grounds to arrest the defendant. Once underground the defendant submits the Sergeant immediately knew he was having radio transmission problems and did not know if his request for a device was received or if a device was en route. The defendant submits the Sergeant delayed leaving the parking area and going to the surface. The defendant had a cell phone. He submits there was a reasonable opportunity to consult with counsel while waiting for the approved screening device. The approved screening device breath sample was not obtained forthwith. The defendant submits the breath sample results should be excluded. Without that evidence he submits the evidentiary record does not support a finding beyond a reasonable doubt that the defendant was impaired by alcohol or over 80 mg. when operating a motor vehicle on May 3, 2011.

[16] Crown's Submissions

The crown submits there is no reasonable expectation of privacy in the underground parking garage and if there is, it is diminished. She submits exigent circumstances existed here justifying the police pursuing the defendant underground. The crown submits that if I find there is a Charter infringement pursuant to s.24(2) the evidence obtained should not be excluded.

[17] Court's Ruling

For the following reasons, the Charter applications are granted. The evidence is excluded. The charges are dismissed.

(2) Analysis

Standard of Proof

[18] The Crown must prove the criminal charge beyond a reasonable doubt, which means "a doubt based on reason and common sense, which must be logically based upon the evidence or lack of evidence." This standard does not require that the Crown "prove its case to an absolute certainty since such an unrealistically high standard could seldom be achieved." "A probability of guilt is not sufficient to establish guilt beyond a reasonable doubt."

[19] I have reviewed the evidence of the trial as a whole and assessed the credibility of the witnesses in the context of the circumstances and all of the evidence. Each witness testified about the events. The witnesses in this trial are not interested in the proceeding. Cross-examination may best expose defects in a witness' evidence. Evidence that offends common sense requires closer examination. Inconsistencies on minor matters or matters of detail are normal but where there are inconsistencies on a material matter about which an honest witness would unlikely be mistaken the inconsistency can demonstrate a carelessness with the truth. See R. v. G.M., 93 C.C.C. (3d) 347 (Ont. C.A.).

(a) Defendant Went to L.C.B.O., Ms. Levay and Assessment of Her Evidence

[20] Ms. Levay's Background and Training

Ms. Laurie Levay, had worked at the L.C.B.O. for 21 years which included 7 years at the Fairview Mall store located at 1800 Sheppard Avenue East, as a customer service representative. Her responsibilities included working as a cashier. Her training included completing the smart serve program and how to deal with impaired patrons. As a result of this training, she learned to look for signs of impairment including observing a customer's body language, whether a person was steady on their feet and determining if alcohol could be smelled on a customer's breath by engaging the customer in conversation. In cross-examination, she said she had not learned about potential causes of hiccupping or unsteadiness.

[21] L.C.B.O. Policy on Serving Impaired Patrons

Ms. Levay understood the L.C.B.O. policy required that she refuse to sell any alcohol to patrons who she believed were impaired. In cross-examination she said her training taught her that if someone was unsteady, smelled of alcohol and hiccupped, she was not to serve the customer if she thought the person had been drinking. During the course of her employment she had refused to sell alcohol to customers many times.

[22] The Incident at the L.C.B.O. Store

On May 3, 2011 she worked the 8:30 a.m. to 5:30 p.m. shift. The store opened at 9:30 a.m. At around 11 a.m. a customer came to the cash register to purchase a 1.14 litre of Absolut vodka. Ms. Levay was working at the cash register. She recognized the customer, was unable to recall how frequently she had seen him in the store, over what period that occurred or when she last served him. Ms. Levay identified the defendant.

[23] Observations of the Defendant

When the defendant came to the cash and put the above bottle down, Ms. Levay was not paying attention to him. She saw him walk to the mini section. As he walked back to the cash, she observed he was "a little unsteady". At the register he stood about 2 to 3 feet from her and hiccupped. Ms. Levay asked how he was and if he had been drinking. The defendant said he had not. He asked her why, and, if she asked this question because he hiccupped. She said yes and told him he seemed a little unsteady. She explained this meant the defendant moved a "little slower". He was not swaying.

[24] Further Observations and Refusal to Serve

In her evidence-in-chief, she said she thought the defendant seemed "a little bit off" explaining this meant that he had hiccupped, had slow movement and his breath smelled of alcohol. In cross-examination, Ms. Levay said the defendant's speech seemed "alright". She just noticed the smell of alcohol and the hiccup.

[25] Smell of Alcohol

In response to the defendant's above question Ms. Levay told him she believed he had been drinking, noticed a "slight" odour of alcohol and could not serve him. Ms. Levay testified she noticed the odour after the defendant spoke with her not before.

[26] Reporting to Police

Ms. Levay called the assistant store manager who was with her when she saw the defendant get into a car parked in front of the store and drive off heading east to the front of the mall. She recalled the car the defendant got into was a burnt orange kind of colour but did not notice the speed he drove at. The assistant manager wrote the plate number down and phoned 911. Ms. Levay recalled he provided the plate number to the police.

[27] Assessment of Ms. Levay's Evidence

Cross-examination did not undermine Ms. Levay's evidence. There were no inconsistencies. She did not exaggerate and did not have an interest in the proceeding. I accept her evidence and find that at about 11 a.m. on May 3, 2011 she saw the defendant in the L.C.B.O. store where she worked, observed he was a little unsteady not swaying, refused to serve him because of the smell of alcohol she noticed when the defendant spoke and that he had hiccupped. I find she observed him walk toward her in the store, walk out of the store, get into and drive off in a car. The defendant's speech was alright. I find the assistant store manager was with her at the time and she saw him write the car plate number down. I accept she was with the assistant store manager when he contacted the police and reported the defendant leaving the store in a car heading east to the front of Fairview Mall.

(b) Police Evidence

(i) Sergeant Marchak Received Radio Call and Intended to Stop Subject Car to Investigate

[28] Sergeant's Background and Experience

On May 3, 2011 the Sergeant had been with the Toronto Police Service for about 20 years. He had been a sergeant for 5 years. He had been involved in R.I.D.E. spot checks as a police constable and supervisor and had conducted between 5 to 7 impaired arrests from start to finish and had made approved screening device demands and supervised constables who made such demands at spot checks. In total he had probably supervised 10 to 15 spot checks. He considered himself fairly experienced with those checkpoints. He could not say when prior to May 3rd he was last involved in a R.I.D.E. spot check.

[29] Knowledge of Section 254(2)

The Sergeant said he was familiar with his obligations when an approved screening device demand is made under section 254(2). Although initially he said he was not familiar with the two options the sections makes available for an officer, when asked about each of the options he said he was familiar with them. Physical coordination tests he explained were not normally conducted. If an officer chose to do so he relied on officers who were qualified to conduct these tests and asks those officers come to the location where the officer is or take the person under investigation to where that officer is. The Sergeant agreed he had some knowledge of section 254(2) and (3) of the Criminal Code from his dealings with R.I.D.E. spot checks and his own impaired investigations but "wouldn't say I have a great knowledge".

[30] Radio Call and Initial Response

On May 3, 2011 the Sergeant began his shift at 6:30 a.m. He was the road supervisor, in uniform, driving a cruiser. At around 11:25 a.m. he received a radio call "for an impaired, … driver … the location given was 1800 Sheppard Avenue East, Fairview Mall" who had been refused service at the L.C.B.O, left in vehicle marker "AYYP 970" and the complainant said "the male was very, very H.B.D., or had been drinking". The Sergeant ran the plate number received in the radio call and learned the Subject Car was a red four door Ford. He did not record the exact make and model of the car. He obtained the address of the registered owner of the vehicle, 50 Graydon Hall Drive, which was just east of Don Mills and south of the 401 between 1 and 2 kilometers from Fairview Mall. There were several apartment buildings at that address.

[31] Positioning for Investigation

The Sergeant went to the address, circled the building there and noticed two entrances to the building underground parking, one to the north and one to the east. He went to the entrance to the east "which goes into the main lobby area". He concluded the garage "was directly underneath the building, the apartment,". The Sergeant parked across the street on the east side of Graydon Hall, east of the main lobby of the apartment building, facing out. The street was in front of him "so any vehicles, …would pass in front of me and, diagonally to my left is the entrance, the driveway entrance to that building and to the main entrance, the front entrance". From that location he confirmed he would be able to see any vehicle going into the parking east entrance. The Sergeant I find chose where to park to conduct the investigation.

[32] Spotting the Subject Car and Attempting to Position Behind It

The Sergeant first saw a vehicle matching the description driving in front of him at "11:40". As the vehicle drove by the Sergeant could only make out the front plate. There was a lone occupant, a male driver, who "turned and looked towards me, we made eye contact." It is not contested that the defendant was the driver. I make this finding. The Sergeant pulled out of the parking lot of the apartment building he had parked in and pulled onto the street to position himself behind the defendant. At the time his intention was to "stop the vehicle and investigate the driver". As the Sergeant attempted to pull in, "another car had gotten in between myself and the… red Ford". As a result "… the red Ford pulled into 50 Graydon Hall Drive as well as the car in between us pulled in, … the Ford, … pulled up the entrance to the garage, …the driver, ... used, … an access card, or a key of some sort to activate the door to open, he drove in, the car that was in between us also went into the underground garage, and I followed, so I was the third vehicle in".

[33] Verification of Plate Number

The Sergeant said when he got close to the vehicle he noted it was the correct plate. In his evidence-in-chief he does not clarify the place he referred to as 'close to the vehicle'. I find he was satisfied the plate was correct when he first noticed the front plate and based on that moved his cruiser to get behind the Subject Car.

[34] Explanation for Entering Garage Without Stopping

The Sergeant explained why he entered the garage and did not stop the Subject Car before it entered the underground parking,

"… the driver of the red Ford had already opened the garage, it was coming up. … in my opinion, if I had put my car in park and tried to run forward, past that middle car to the other driver, he …, the red Ford would have already gone into the underground and I might have lost sight of the, the red Ford"

" Because I had a car in between us. Ah, for the same reason if I had activated my lights and sirens, um, the car in front of me may have stopped, but the, the the red Ford may have stopped as well, but also the red Ford might have just gone in. So that's why I didn't conduct the stop prior to outside, prior to going into the underground garage".

The garage door opened and remained open. The Sergeant followed the Second Car into the underground. All three cars entered.

[35] Assessment of Sergeant's Conduct

The Sergeant I find saw the front plate as the Subject Car approached. He and the defendant made eye contact. The Sergeant's intention was to stop the Subject Car and investigate the driver. He did not act on that by a hand signal or nod when he and the defendant made eye contact. Instead the Sergeant decided to move his vehicle from where he had parked it and pull in behind the defendant. This decision was independent of any conduct of the defendant. He was unable to position himself behind the defendant.

(ii) Observations Made While Driving in Underground Parking Garage Until Subject Car is Parked

[36] Driving Through the Garage

Based on what he could see, the Sergeant said the garage appeared to have "at least two levels". The Subject Car went down two levels. The Second Car, he thought "… pulled off prior to getting into the second level." The Sergeant followed "right behind" the Subject Car as it went to the second level.

[37] Parking at Spot 288

On the second level the Sergeant saw the "… Ford reverse parked into a parking spot, 288, … in that parking spot there was a … shopping cart against the wall, so when he reversed he reversed into the shopping cart. … he corrected himself and went back again, reversed back, and I parked my car and approached on foot, to the driver's side".

[38] Sergeant's Failure to Stop the Defendant

I find the Sergeant made no attempt to stop the Subject Car as he followed it to parking spot 288. He did not act on his stated intention to stop that car and investigate the driver. He offered no explanation for not doing so after the Second Car pulled off. The Sergeant did not describe any driving that was of concern to him when, he (1) first saw the Subject car, and (2) when he saw the defendant drive to the underground parking or (3) as he saw the defendant drive his car to the second level and reverse into parking spot 288, other than it "reversed into the shopping cart". The Sergeant did not inspect the rear of the Subject Car or the cart for damage. I have considered when assessing the evidence that the Sergeant's memory is somewhat frail. He qualified some of his evidence. The following are some examples:

(a) In his evidence in chief he said he knew the dispatcher knew he was at Graydon Hall but did not know if she knew he was under ground. He said "I think I tell her…where I am and that I'm two floors down at the exact parking spot, but I don't think she responds to me, or if she does, like, I don't think I heard it.";

(b) Initially the Sergeant said he did not pat the defendant down before directing him to go into the back seat of the cruiser. After refreshing his memory from his notes he said he had done so;

(c) Regarding the smell of alcohol he noted from the defendant he said "I think-it was much stronger" when the defendant was seated in the rear of the cruiser;

(d) When asked if Constable Kimmerer is the officer off camera at about TS 12:01 the Sergeant concludes it is. When asked if that constable is still present when the defendant said he wanted to exercise his right to counsel after his arrest and the Sergeant would not allow him to do so, in part for safety concerns, he said he could not recall if that constable was present. He did not think so.; and

(e) As well initially, the Sergeant said he believed the defendant corrected his vehicle after he reversed into the shopping cart and later after refreshing his memory from the surveillance video, Exhibit 1, agreed the defendant did not do so.

(iii) After the Subject Car is Parked

[39] In-Car Camera Activation

Before getting out of his cruiser the Sergeant activated the in-car camera, mounted at the front of the cruiser looking forward over the hood. The video, Exhibit 1, was played. The Sergeant had checked the time of the in-car camera against his watch before he began his shift and concluded the in-car camera was a 5 minutes behind the time on his watch. The video commenced at 11:36:40. The recording began 30 seconds before activation time without recording the audio for that 30-second period. The Sergeant activated the in-car camera 30 second prior to the first time stamp ("TS"), which the Sergeant concluded was 11:41 a.m. The in-car video was played from TS 11:36:40 to its conclusion, TS 12:33:25, 57 minutes 85 seconds. The Sergeant said the video accurately depicted his interaction with the defendant during that period.

[40] Initial Approach and Observations

The Sergeant and defendant got out of their vehicles and walked toward each other. He saw the defendant holding a bundle which he later determined were swim trunks wrapped inside a towel. Just before TS 11:38:01 the Sergeant told the defendant he was talking to him because he had received a radio call that he had tried to get a drink at the L.C.B.O. at Fairview Mall and they refused to serve him. He requested the defendant's documents. The defendant surrendered his driver's licence and ownership but did not have his insurance document. The Sergeant told the defendant they were being recorded while they spoke. The Sergeant thought the defendant "…appeared to be moving in a, a slow and measured way, like when, when he would move it was like real–slow, um, getting stuff out, even talking to me. It, it was like a, a little bit of delay in responding to me and my questions".

[41] Safety Concerns and Assessment

The Sergeant repeatedly testified he was concerned about safety given he was alone in the underground parking garage, no one else was around and he was having trouble right away with the radio. He said safety was uppermost in his mind throughout the investigation. Given the location of the investigation and the circumstances, it makes sense that a police officer would have such a concern and continue to assess this throughout an investigation. In this case, the Sergeant had an opportunity to assess safety from the beginning of the investigation. Indeed he had such an opportunity before he entered the underground parking and as he followed the defendant to parking spot 288. I find he did assess safety and concluded there was no concern. His decision to approach the defendant in the underground parking without first calling for assistance, not cuff the defendant while he was in the cruiser and allow the defendant to use his cell phone demonstrates the Sergeant's state of mind. The defendant was not cuffed at any time while in the Sergeant's custody seated in the back seat of his cruiser. I find despite the Sergeant's repeated evidence that he was concerned for his safety, while accepting he continued to assess safety, I find his conduct demonstrates he concluded he was safe. The continued assessment did not alter his decision not to cuff the defendant. The defendant was not cuffed until Constables Kimmerer and Dowling later took custody of him to transport him to 32 Division. I reject the continued safety assessment played any part in delaying the decisions made by the Sergeant while conducting the investigation. His location and his concern for officer safety I find were two reasons why the Sergeant should have left the underground sooner.

[42] Radio Communication Problems

From the outset, when he tried to communicate with dispatch after stopping his vehicle at parking spot 288, I find the Sergeant was concerned about whether the radio communication with dispatch was connecting. He knew the radio dispatcher knew he was at 50 Graydon Hall Drive but at the time did not know if the dispatcher knew he was underground. He said "I think I tell her, on the car that once I get back, where I am and that I'm two floors down at the exact parking spot, but I don't think she responds to me, or if she does, like, I don't think I heard it". He explained the "buzzing and all, all those tones you're hearing is because my radio's not making connection and I know I'm having trouble right away with my radio." In cross-examination he agreed he had difficulty communicating with dispatch on the radio when underground. The dispatcher told him he was staticky. The Sergeant was not sure if the dispatcher received his communications. I find the Sergeant knew he was having trouble with his radio when he first approached the defendant and that he knew this communication concern continued while he was underground.

[43] Seizure of Alcohol Bottle

The Sergeant asked the defendant if he had any alcohol in the car and whether he had any weapons. The defendant said he had no weapons but did have a bottle of alcohol. At the Sergeant's direction he returned to get a sealed 1.14 litre Absolut vodka, 40 per cent in a brown L.C.B.O. bag depicted in Exhibits 5a to d. Exhibit 2 is a L.C.B.O. receipt in the amount of $36.95 from the store at 5 Ellesmere Avenue in Scarborough found in that bag, dated and time stamped May 3, 2011 11:32 a.m.

[44] Detention in Cruiser

After seizing the bottle the Sergeant directed the defendant to get into the cruiser. At that point the defendant was detained in the rear of the cruiser. The Sergeant continued to smell alcohol from the defendant after the defendant was seated in the rear seat. The Sergeant did not know if what he was saying was coming through to dispatch and he could "kinda hear staticky stuff coming from the dispatcher as well".

[45] Request for Approved Screening Device

The Sergeant then made some inquiries "…basically checking on the computer, running his name, checking the car." At TS 11:41 the Sergeant asked dispatch if a traffic car was available with a roadside. Initially he told the defendant he was detaining him for "an impaired investigation and at this point I tell him that, ah , he's being detained because I, I'm going to request a roadside screening device, that ah, for the purpose of measuring the alcohol in his system and that its being brought to my location". The Sergeant said he was concerned that his request for a roadside device may not have reached dispatch. He said "I think I request it more than once, but while I'm in the underground I don't know if my request is coming though, I don't know if I'm making a connection".

[46] Availability of Approved Screening Devices

After first making his request for an approved screening device the Sergeant said he thought "dispatcher will voice out, if anybody has a roadside screening device, um, usually th-these devise are in our traffic cars." The Sergeant was not in a traffic car. If a device was not in a traffic car someone would have to go to the station, pick it up, and bring it to the requesting officer's location.

[47] Questions About Alcohol Consumption

The Sergeant asked the defendant if he consumed alcohol and the defendant told him "...he had a sip of alcohol and then he questioned me whether he – he had some alcohol yesterday, and he questioned whether the alcohol could be detected today". The Sergeant told him "... seemed to be more recent than yesterday and I advised him possibly a blood test, if there was alcohol n his system, would be able to tell".

[48] Informal Detention Notice

In cross-examination, the Sergeant agreed that at TS 11:42 a.m. he advised the defendant he was detaining him because he smelled alcohol on his breath and he will ask for a roadside screening device. He said this was an informal demand. The Sergeant agreed at TS 11:52:04 he told Mr. Ayoub he was detaining for the purpose of providing a sample of his breath.

[49] Defendant's Request to Exit Garage

The defendant asked the Sergeant if they should pull out to allow the officer delivering the device to get into the garage (Exhibit 1). The Sergeant said "..in a moment okay. I just gotto –I have to let you know why I'm detaining you". The Sergeant then asked the defendant when he last had a drink and where he had that drink, following which the defendant asked if he could make a message to his wife "upstairs" that he was detained. The Sergeant allowed him to send a text.

[50] Further Request for Device

After the defendant sent a text message the Sergeant contacted dispatch again stating he was in underground parking at spot 288 and asked if a traffic unit was available to see him with a roadside device, Exhibit 1.

[51] Securing Vehicle and Preparing to Exit

The Sergeant then decided to secure the defendant's vehicle. First he asked the defendant to step out of the cruiser and asked if he had anything in his pockets. He directed him back into the cruiser and then walked to the defendant's vehicle and used the keys to ensure it was locked. When he returned to the cruiser he asked the defendant if his wife responded and where he purchased the bottle of liquor from. At 11:51:45 the cruiser moves. The Sergeant told the defendant he was detained for the purpose of providing a sample of his breath. At TS 11:52:22, while still in the underground parking the Sergeant agreed he told the defendant he was going upstairs "to meet the traffic officer, who has a device that I'm requesting you provide a sample of your breath". He agreed this was not a formal demand and at this point he did not have confirmation that an officer was coming with the roadside device. Before making the formal demand the Sergeant wanted to know whether the device was coming or not.

[52] Difficulty Exiting Garage

Once the defendant's car was locked up the Sergeant returned to the cruiser. He explained he had difficulty getting out of the garage. He said, "I'm not able to (sic get out) because ... one door's closed." The Sergeant asked the defendant where the key to the garage door was. The defendant told him the remote was in his car and explained a key or remote is required to get out either door. The Sergeant said "… I try one door, it's locked, I can't get out, so I was going to go to the next garage door, … and that's when I see somebody who looks like, ... he might work there, and he confirms to me that yeah, this gentleman works here. And that person that I see on the –that's present on the video … He walked over to the wall where the … key to unlock the garage door is and he, he stuck a key in and it opened." The Sergeant thought this man was the superintendent or was working at that building. When he spoke with that person the Sergeant stayed in the cruiser. He said the man can be seen on the video at TS 11:53:47.

[53] Sergeant's Stated Priority to Exit

The Sergeant said it was a priority for him to exit the underground and get to the street level "…just for safety, also with,…. the impaired investigations time is …matters more, I find. So I wanted to make sure that once I got up top that I got the request out again, and that I received, .. my request is acknowledged". Based on all of the evidence I do not agree that getting above ground was a priority for the Sergeant. Had it been he would have gone to the surface immediately because he knew from the outset he was having radio communication difficulties and that timing was important in these investigations. That he waited to read the demand from his memo book once he knew a device was on the way underscores the Sergeant knew timing was important.

[54] Confirmation Device Was En Route

Once he was on the surface the Sergeant parked the cruiser on the driveway. He was at the garage door at the north entrance to the apartment building. When he got up top the Sergeant heard "a traffic car was heading to the police station". He got on the air "right away" and asked that car Traffic Bravo 3 attend his location first. At that point, TS 11:54, the Sergeant knew the traffic car was out there and "it could be anywhere from a few minutes to, depending on where he is in the division, ah, it, it could be 10 minutes, it could be 15 minutes depending on the time of day". I find at that point the Sergeant still did not know when the roadside device would arrive. The request was acknowledged and it was the first positive indication he received that the device was on the way. The Sergeant did not know his request for a device had been received until he was above ground. At that point there was no radio static and the Sergeant could hear the dispatcher clearly and he believed communications were fine. I find this evidence demonstrates the Sergeant's earlier request for an approved screening device had not been received. If it had been the traffic car would not have been heading to the police station but his location.

[55] Sergeant's Belief About Impairment

The Sergeant saw a police car and realized it was Sergeant Wilson. He briefed her on what he was waiting for. At that point the Sergeant "believed I had, um, an im-and impaired driver, um, the –and I was waiting for the roadside to confirm that suspicion". I find at that point the Sergeant did not have subjective and objective grounds to arrest the defendant for impaired operation of a motor vehicle and continued to have a suspicion the defendant had alcohol in his system.

[56] Timing of Formal Demand

In cross-examination the Sergeant agreed that at TS 11:56:41 he first read the formal demand to Mr. Ayoub from his memo book and that he did so because at that point he had received confirmation that the device was en route. He clarified "I knew that the device was en route and at this point in time I made the demand. I don't – probably that it's en route – but I -- or maybe it occurs to me I better give him the demand at this point, a formal demand". He agreed he did so because he knew the device would be there in a short period of time.

[57] Inference Regarding Timing of Demand

When asked if he did not give the demand earlier because he didn't know when the device would arrive he said, "I didn't know if I didn't want to give him but I knew I had to give him at some point in time, and I think at this point I determined to give him the demand because it's coming to me that I have to give him the demand, maybe I didn't read him the formal demand from the back of my memo book". Based on all of the evidence, I infer the Sergeant did not want to read the demand from his memo book until he knew the device was on the way. He did not know the device was on the way until he received a positive indication after he parked the cruiser on the driveway at the north entrance to the parking garage. I infer the Sergeant knew the defendant would not have been able to provide a sample until the device was available.

[58] Constable Kimmerer's Delivery of Device

Constable Kimmerer knew time was of the essence and dropped off the device before he picked up his partner at 33 Division. On the video this occurred at TS 12:01. The Sergeant said the distance between the Graydon Hall address and the Division was about 9 kilometers and estimated that on a Tuesday afternoon it would take 15 to 20 minutes to travel that distance.

[59] Approved Screening Device Demand and Testing

At 12:01 p.m., according to the Sergeant's watch not Exhibit 1, the video, he read the approved screening device demand from the back of his memo book. He told the defendant he was detaining him because he suspected he had alcohol in his system and "would be demanding from him, ah, a sample of his breath, and that we were waiting there for a device which would allow me to do that". The Sergeant was going to detain the defendant physically until the device arrived at his location. Prior to driving to the surface the Sergeant had taken the defendant's cell phone for safety reasons.

[60] Breath Sample Results

Pursuant to the Sergeant's watch, not the TS on Exhibit 1, at 12:09 p.m., the Sergeant demonstrated how to use the device. The Sergeant recorded the device serial number and other information concerning it on video. None of that is in issue here. The breath sample provided registered F, a fail. At that point the Sergeant arrested the defendant for being impaired and then radioed a request for the location of the nearest qualified breath technician.

[61] Sergeant's Agreement Regarding Timing

The Sergeant agreed that if he had gone to the surface sooner he would have been able to put the request for the device out sooner and administer the roadside test device sooner.

[62] Denial of Right to Call Wife and Assertion of Right to Counsel

At TS 12:14 the defendant asked if he could call his wife explaining the number was in his cell phone. The Sergeant had the defendant's phone. The Sergeant told him he could not do that at the time but would have reasonable access to a phone at the station. The Sergeant then read the defendant his rights to counsel at TS 12:15. At TS 12:17 the defendant said he understood and wanted to call a lawyer. At that point the Sergeant did not think to allow the defendant to make use of his cell phone to exercise his right to counsel explaining the defendant would be taken to the police station which was a "more secure facility" where he would be allowed use of the phone to call his lawyer or 'whoever he wishes".

[63] In-Car Camera and Safety Concerns

The Sergeant did not think the defendant would have been able to exercise his rights to counsel in private because the in-car camera was running so any conversations the defendant would have had would have been recorded "on his side". As well he said for "safety reasons" he wanted the in-car camera running to keep an eye on the defendant so he could maintain verbal contact with him. The Sergeant agreed at that point the defendant still was not cuffed.

[64] Assessment of Safety Concerns

I find at that point, based on all of the evidence, that the Sergeant had continued to assess safety concerns and had none. I infer this because he did not ask Constable Kimmerer to stay after that constable dropped off the approved screening device and, once on the surface at the north entrance he did not ask Sergeant Wilson to stay. While waiting for the constable after Sergeant Wilson left, before the device was delivered, and after he arrested the defendant, based on the breath analysis conducted, the Sergeant did not cuff the defendant.

[65] Possibility of Deactivating In-Car Camera

The Sergeant acknowledged it was possible to de-activate the in-car camera. He agreed if he had done so briefly the defendant could have contacted counsel and had a private conversation.

[66] Intoxilyzer Demand and Transport to Station

At TS 12:23 the Sergeant then read a demand that the defendant provide a sample into an approved instrument and to accompany him for that purpose. The defendant said he understood the demand. The Sergeant determined the defendant would be taken to 32 Division, the nearest location of a qualified breath technician. Constable Dowling said while at the station he received a radio call at 12:25 indicating the Sergeant had arrested someone for impaired operation of a motor vehicle and to "attend to provide a roadside". He was asked to transport the individual.

[67] Custody Transfer

Officers Dowling and Kimmerer arrived. Before they assumed custody of the defendant the Sergeant told him he was under arrest for driving with over 80 mg of alcohol in 100 ml of his blood. The Exhibit 1 video recording ends at TS 12:32:12.

[68] Defendant Cuffed and Transported

Once these constables arrived the defendant was let out of the Sergeant's cruiser and cuffed. Constable Dowling performed a pat down to satisfy himself the defendant had no weapons. They received custody of the defendant at about 12:37 and left the scene at 12:38.

(iv) Paraded at Station and Contact with Counsel

[69] Parade and Booking

The defendant was paraded before Sergeant Lu at 13:02. At 13:10, he was taken to the report room so he could contact his lawyer. During booking Constable Dowling agreed Mr. Ayoub seemed alert. The defendant did not appear to be slurring his speech at all. Constable Dowling agreed Mr. Ayoub told the Sergeant he had been in a traffic accident 2 years earlier and a car ran over his foot.

[70] Attempts to Contact Counsel

The defendant provided Constable Dowling with his lawyer's name from his cell phone. At 13:17, Constable Dowling called Robert Ziggler at (416) 599-7761 extension 242 but was not able to reach him. He left a voice mail message. As Mr. Ziggler had not called back by 13:35, Constable Dowling tried to call him again. He spoke with an assistant who gave him the lawyer's cell phone number. He called and left a voice mail message advising his client was arrested for impaired driving and was at 32 Division.

[71] Contact with Duty Counsel

As he did not receive a response at 13:39, Constable Dowling contacted duty counsel who called back at 13:55 following which the defendant spoke with duty counsel in private.

(v) Breath Samples

[72] Qualified Breath Technician

Constable Mailer was a qualified breath technician on duty May 3, 2011. As of that date, he had conducted approximately 200 tests using the Intoxilyzer 8000C.

[73] Observations of the Defendant

The Constable satisfied himself the approved instrument was in proper working order. At 2:01 p.m., Officer Dowling presented the defendant to him. Officer Mailer noted the defendant "seemed dishevelled", his hands and finger nails were dirty, he had a strong odour of alcohol on his breath, his eyes were watery, and the defendant's speech "seemed" slurred. He agreed this observation was based on his interaction with the defendant in the breath room and that he had prior interaction with him. Constable Mailer described the defendant as "very cooperative, well-mannered and polite".

[74] Confirmation of Rights and Cautions

Constable Mailer confirmed the defendant knew he had been arrested for impaired driving, had his rights to counsel, cautions and instrument demand. (See Exhibit 6).

[75] Timeline of Events

Constable Dowling advised Constable Mailer that, the occurrence time was 11:24, 12:01. was when the screening device test took place, 12:20 was the arrest time, and at 12:23 the instrument demand was made.

[76] Breath Sample Results

The test result of the two breath samples respectively was 205 and 202 milligrams of alcohol in 100 milliliters of blood. (See Exhibits 3 and 4.)

(vi) Notices Served

[77] Service of Documents

At 3:02 p.m. the Sergeant served the defendant with the A.D.L.S. suspension, a copy of the certificate of qualified breath technician which the Sergeant received from P.C. Mailer, which he checked to make sure was identical to the original (the "Certificate", Exhibit 3), the Notice of Motor Vehicle Impoundment, and the intoxilyzer printout (Exhibit 4). When asked in his evidence-in-chief if the defendant signed the documents, although the Sergeant recalled the defendant accepted these documents, he had to refer to the documents to refresh his memory, and after reviewing those identified the defendant's signature on the Certificate. The defendant was released on a Promise to Appear and a ride was arranged for him.

(c) Assessment of Police Evidence

[78] Defendant's Access to Parking Garage

The Sergeant responded to a radio call about a possible impaired driver. He conducted a brief investigation and based on that went to the residence of the registered owner of the vehicle. The defendant told the Sergeant his wife was upstairs. He wanted to let her know he was detained. The Sergeant believed the apartment building at 50 Graydon Hall was above the underground parking garage. There is evidence that the defendant lived at the address above the underground parking garage. Access to and egress from that garage was controlled by a key or remote. The Sergeant saw the defendant use a device to open the garage door. I find the defendant had the means to enter the underground parking area. The Sergeant I find knew he would not be able to enter that parking area unless he followed the Subject Car and Second Car.

[79] Sergeant's Failure to Signal Stop

When the Sergeant began his investigation he intended to stop the Subject Car and investigate the driver. He did not do so before the defendant entered the parking garage in part because of the place the Sergeant chose to park to conduct his investigation. I find although the Sergeant saw the front plate of the defendant's car and made eye contact with the defendant he did not provide any signal to him to stop, including a hand signal or nod of the head. I infer this was possible because the Sergeant and defendant made eye contact. I reject the Sergeant was only certain of the marker when he got closer to the defendant's vehicle. I find he only became closer after the Second Car turned not before and conclude that prior to that, the Second Car impeded the Sergeant's ability to see the Subject Car's rear plate.

[80] Sergeant's True Intention

The Sergeant did not stop the defendant before following him into the underground parking garage or make any attempt to do so before the defendant parked his vehicle. This is a significant problem in the Sergeant's evidence diminishing the reliability of his evidence. I find he followed the defendant and did not stop him because he was observing the defendant's ability to operate the motor vehicle. I reject his stated intention was to stop the vehicle. I find the Sergeant wanted to investigate the defendant's ability to drive. He continued to follow him after the Second Car turned until the defendant parked his vehicle.

[81] Lack of Urgency or Emergency

The Sergeant did not identify any urgency or emergency that required he follow the defendant underground. Based on the Sergeant's evidence I find the Sergeant had an opportunity to observe the defendant operate his motor vehicle as he approached the underground parking garage. Before the defendant entered that garage, the Sergeant had not formed reasonable and probable grounds to arrest the defendant for impaired operation of a motor vehicle. Specifically I accept the Sergeant did not form grounds to arrest the defendant for impaired operation of a motor vehicle after he saw the defendant reverse into the shopping cart by the wall at the defendant's parking spot. He did not form such grounds until after the defendant's breath sample, as analysed by the approved screening device, registered a fail.

[82] Safety Assessment

For the reasons stated earlier herein I reject that the Sergeant had safety concerns although I find he continued to evaluate safety throughout his investigation. Given the location in the underground garage this makes sense and indeed it makes sense in every police investigation.

[83] Defendant's Cell Phone

I accept the Sergeant knew the defendant had a cell phone and allowed the defendant to send a text message to his wife. Before leaving the underground garage the Sergeant had taken the defendant's phone.

[84] Sergeant's Conduct and State of Mind

While conducting the investigation the defendant's right to counsel and facilitating that right was not uppermost in the Sergeant's mind. He knew timing was important but chose not to stop the defendant as soon as reasonably possible. Failing to do so makes no sense in the circumstances. It undermines the Sergeant's stated safety concerns. As he continued to the second level of the underground parking, it makes sense that officer's concern for safety would be heightened. The Sergeant did not explain why he chose to continue to follow the defendant without stopping him after the Second Car turned off given his stated safety concern and intention. His failure to do so I find demonstrates the Sergeant's state of mind. I find he wanted to watch the defendant as he operated the vehicle and only approach him after he parked. His conduct is inconsistent with his stated intention to stop the vehicle and investigate the driver. His delay in stopping the defendant as intended was not explained. I find his intention was to investigate the defendant. He did so by following him and observing how the defendant operated the Subject Car. Although I accept the Sergeant knew timing was important in this investigation I find he delayed going to street level earlier to ensure his request was received.

[85] Sergeant's Understanding of Timing

The Sergeant I find did not understand the reason time was of the essence in his investigation concerned the defendant's right to counsel. He knew making the demand was important. I find he delayed making the formal demand until he believed the device was en route. The Sergeant did not consider driving to the station. He believed the device was with a traffic officer who was on duty. I find this made it all the more important to get to the surface as quickly as possible.

[86] Observations of Defendant's Speech and Demeanor

Neither the Sergeant, Constables Dowling or Kimmerer or Ms. Levay said the defendant's speech was slurred. This is externally inconsistent with Officer Mailer's evidence. I have reviewed the booking video and the video of the breath room testing. While paraded the defendant responded appropriately and clearly to questions asked by the sergeant there. He told that sergeant he preferred to speak with his own counsel and in response to that sergeant's questions told him two years earlier a car had run over his foot. He was polite and cooperative. I accept as stated by Constable Mailer the defendant appeared dishevelled. In response to questions posed by Constables Dowling and Mailer, the defendant's answers were prompt. There was no delay in responding as suggested by the Sergeant when he interacted with him. Ms. Levay said the defendant's movements seemed slow. The Sergeant also made this observation. There does not appear to be any delay in the defendant's actions while handling the mouthpiece in the breath room or while walking with the constables at the station. The observations made by each of the officers is subjective.

[87] Credibility of Other Officers

The evidence of Constables Kimmerer and Dowling is internally consistent. They did not exaggerate or speculate when testifying. I accept their evidence. In particular I find Constable Dowling was diligent in his efforts to facilitate the defendant's request to speak with counsel.

(3) Conclusions

(a) Diminished Reasonable Expectation of Privacy in Underground Parking Garage

[88] Crown's Submission on Privacy

The crown submits the underground parking area has a lower expectation of privacy than the driveway of a dwelling. The issue here is whether there was a reasonable expectation of privacy in the underground parking, not whether that expectation ranks higher or lower than any such expectation on the driveway of a dwelling.

[89] R. v. Clarke Analysis

In R. v. Clarke, [2005] O.J. No.1825 the Court of Appeal considered the lawfulness of a police stop in an underground parking garage. Constable Boyd had observed the defendant driving about half a block ahead of the police car make a right turn without signalling. The constable accelerated to catch up, activated the overhead lights on his vehicle and sounded his horn several times to stop the defendant because he failed to turn without signalling. Mr. Clarke stopped momentarily and then turned into the underground parking of an apartment building. The constable followed him into the garage. His emergency roof lights were activated. Mr. Clarke backed his car into the police car causing minor damage. The constable smelled alcohol on Mr. Clarke's breath and observed signs of intoxication. Another officer brought a roadside screening device to the scene. Mr. Clarke provided a breath sample, which registered a fail. He was arrested for over 80 and provided his rights to counsel.

[90] Highway Traffic Act Authority in Clarke

The court held at para. 24, "The authority of a police officer to demand that a motorist stop for the purpose of enforcing various laws in relation to highway safety and the operation of motor vehicles is not limited to situations where the motorist has committed an offence. Indeed, the Supreme Court has held that police may stop motorists at random for the purposes of enforcing highway traffic legislation with pressing and substantial objectives relating to safety, whether or not they have reasonable and probable grounds to believe that such legislation has been contravened. R. v. Husky, [1988] 1 S.C.R. 621; R. v. Dedman, [1985] 2 S.C.R. 2; R. v. Ladouceur, [1990] 1 S.C.R 1257." The court concluded Mr. Clarke was stopped because the police observed him driving in a manner which gave them reasonable grounds to believe a Highway Traffic Act offence had been committed. In this case, the Sergeant had no such belief.

[91] Highway Traffic Act Authority

Section 216(1) of the Highway Traffic Act provides a police officer in the lawful execution of his duties may require a driver stop and the driver, when signalled or requested to stop by an officer, is required to come to an immediate safe stop. Pursuant to section 217(2) of that Act an officer who believes on reasonable and probable grounds that subsection 216 (1) has been contravened may arrest that person without warrant. The Court held section 216(1) provided authority for the constable to stop Mr. Clarke and as a result the detention was not arbitrary.

[92] Distinction from Clarke

In this case the crown does not submit the Sergeant was authorized to stop the defendant pursuant to the Highway Traffic Act or that before he entered the underground parking garage the Sergeant had reasonable and probable grounds to believe a crime had been committed. Unlike Clarke, there is no evidence the defendant knew the Sergeant wanted him to stop and invited him into the underground garage. Although the defendant and Sergeant made eye contact before the defendant entered the garage, unlike the circumstances in Clarke, the Sergeant made no attempt to stop him by signalling in any way. This is not a case involving a continuous transaction with the police in pursuit. The Sergeant did not provide any evidence upon which I may conclude or infer there was an implied invitation to enter the garage.

[93] Reasonable Expectation of Privacy

I find there is evidence demonstrating the underground garage was an element of the defendant's dwelling in the apartment building. The Sergeant had determined the defendant, the registered owner of the vehicle he was investigating, lived at the apartment at 50 Graydon Hall. He circled the building and concluded there were two entrances to the underground parking of that building. He chose to conduct his investigation near the entrance to the building main entrance opposite the building east underground parking entry. The defendant had means to access that garage and used that means to enter the garage. Access and egress to that parking entry was limited. I have considered the factors to be considered in determining whether an accused has a reasonable expectation of privacy referred to in R. v. Edwards, 104 C.C. C. (3d) 136 (S.C.C.).

[94] No Highway Traffic Act Authority

Unlike Clarke, in this case the Highway Traffic Act provided no authority to the Sergeant to enter the underground parking garage at 50 Graydon Hall.

[95] R. v. Kaltsidis Analysis

In R. v. Kaltsidis, [2007] O.J. No.1400 Justice Tulloch, sitting as a summary appeal conviction judge, concluded the trial judge did not err by concluding an arresting officer who entered the defendant's carport breached the defendant's rights. In that case Constable Pincoe received a radio communication about a motor vehicle driven in an erratic manner. He saw a vehicle matching the description of the subject vehicle and followed it. He saw the car pull into a residential driveway under the carport attached to a private residence. The officer also pulled into the driveway. While he followed the vehicle the constable did not notice any unusual driving. That constable agreed he had the opportunity to stop the vehicle on the residential street but chose not to because he wanted to observe the driving. The constable walked up the driveway and into the carport to speak with the defendant. At that point he noted indicia of impairment and formed the opinion the defendant had been operating his motor vehicle while impaired by alcohol.

[96] Implied Invitation Principle

At para. 32 of Kaltsidis Justice Tulloch referred to the principle of implied invitation to the public enunciated in R. v. Evans, [1996] 1S.C.R. 8, "Justice Sopinka stated that homeowners have an implied invitation to the public that permits the public to enter their property for the purpose of facilitating communication, but that implied invitation is exceeded when the person approaching on the private property does so while engaged in a search or while looking for evidence." At para. 32 he quoted Justice Sopinka at para. 3 "The sanctity of the home has constituted a bulwark against the intrusion of state agents for hundreds of years. The fact that the manner in which the police conducted themselves was not otherwise abusive does not alter the basic inconsistency of their act with this fundamental constitutional principle. Our society simply cannot accept police wandering about or "sniffing" around our homes." This principle applies here.

[97] Police Must Leave Person Alone

Justice Tulloch also referred, at para. 35, to the following quote by Justice Sopinka in R. v. Kokesch (1991), 61 C.C.C.(3d) 207, "Where the police have nothing but suspicion and no legal way to obtain evidence then they must leave the person alone and not proceed to obtain evidence illegally and unconstitutionally."

[98] Reduced Privacy in Multi-Unit Parking

At para. 39 Justice Tulloch concluded "In my view, a parking garage of an apartment building with multiple occupants who are essentially strangers to each other, but have access to the same underground garage is very different from the occupant of a single dwelling house with an attached garage or carport, where ownership, access and the right to quite enjoyment is limited to the owner of the dwelling house. The occupants of the apartment building expect to share access and enjoyment of the underground garage with other occupants, most of whom will be strangers to each other and thus each would have a reduced expectation of privacy from that of the single-dwelling home owner with respect to his/her garage or carport."

[99] R. v. Noerenberg Analysis

In R. v. Noerenberg, [1997] O.J. No. 4628 Justice Lally sitting as a summary conviction appeal judge concluded at para. 22 the police had no authority to "enter a person's home unless they have a warrant, are engaged in hot pursuit or exigent circumstances existed." In that case the police had received information that a bartender called to report a lady leaving the bar in an impaired condition drive away in a vehicle. The police saw the defendant get into the car and leave the parking lot. They followed her ingot a residential area and saw her pull into a driveway activate the garage door and drive into the garage. The officers pulled into the driveway, entered the garage and confronted her. While following her police had not activated their lights or siren. She was arrested for impaired driving and the police demanded that she go with them to the station to provide a breath sample into an approved instrument. The court concluded at para. 26: "Here there was no justification for the officers to enter the accused's home to conduct an investigation and obtain evidence as to whether the accused's ability to operate a motor vehicle was impaired or was not impaired by alcohol."

[100] R. v. Belnavis Analysis

Justice Lally relied on para. 29 in R. v. Belnavis, [1997] S.C. J. No.81 where Justice Cory said:

"A person can expect that his home can and should be a safe castle of privacy. A person cannot possibly have the same expectation of vehicle. Vehicular traffic must be regulated, with opportunities for inspection to protect public safety. A dangerous car is a threat to those on or near our roads. The reasonable expectation of privacy in a car must, from common experience and for the good o all, be greatly reduced. The high expectation of privacy attaching to the home may well extend to an attached garage, but it should not extend to the car within when it leaves the premises."

The above quote is applicable in this case.

[101] Conclusion on Privacy

I find the defendant shared the underground parking garage located under his apartment building with other residents. There is no evidence that parking area was open to the public. On the evidentiary record before me I conclude access and egress to that parking was controlled by a key or remote. The defendant had the means to access and leave the garage. He had a remote in his car for this purpose. The Sergeant could not leave the parking area and get to the surface without the assistance of a man who appeared to work there or without the defendant's remote, which was still in his car. His inability to do so underscores the garage was restricted and not accessible to the public. I find the parking under the building was an integral part of that building and as such the defendant had an expectation of privacy there. That expectation was diminished somewhat from the expectation of privacy he enjoyed in his apartment because he shared the parking area with other residents.

(b) There Were No Exigent Circumstances and the Police Were Not in Pursuit of the Defendant

[102] Crown's Submission on Exigent Circumstances

The crown submitted the Sergeant believed a crime had been committed, the perpetrator went underground and evidence was in jeopardy. She submitted there were exigent circumstances that made the Sergeant's conduct reasonable. I disagree.

[103] Definition of Exigent Circumstances

The crown referred to section 529.3 of the Criminal Code which provides in subsection (2) that exigent circumstances include, "(a) reasonable and probable grounds to suspect that entry into the dwelling house is necessary to prevent imminent bodily harm or death to any person; or (b) reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling house and that entry into the dwelling house is necessary to prevent the imminent loss or imminent destruction of the evidence." I find there were no exigent circumstances here.

[104] Hot Pursuit Standard

At para. 41 of R. v. Chomik, 2011 ABPC 152, [2011] A.J. No. 500 (Alberta Provincial Court) Justice Kerby said "Hot pursuit must be a continuous pursuit conducted with reasonable diligence so that pursuit and capture along with the commission of the events may be considered as forming part of a single transaction. (See R. v. Macooh, [1993] S.C.J. No. 28 at para.24)."

[105] No Continuous Pursuit

The Sergeant went to Graydon Hall to investigate the Subject Car. He circled the building and decided to park his cruiser in a parking lot across from the main entrance to the building opposite the east entrance to the underground parking garage. The Sergeant had not received any information about the manner in which the defendant operated his vehicle and there is no evidence that the police received any subsequent communications about the Subject Car. The Sergeant saw the defendant's vehicle approach and go to the underground parking area. The Sergeant did not signal him to stop. There is no evidence the Sergeant thought the defendant was evading him or entered the garage to destroy evidence or thwart a police investigation.

[106] No Reasonable and Probable Grounds

The Sergeant's decision to investigate in the manner he did, by parking across street, did not create exigent circumstances. At most the Sergeant had a suspicion and wanted to stop the vehicle to investigate the driver, nothing more. He had an opportunity to observe how the defendant operated his motor vehicle and did conclude, before the defendant entered the underground, based on his observations, that he had reasonable and probable grounds to arrest the defendant for impaired operation of a motor vehicle. Indeed, quite fairly the Sergeant said he did not have such grounds until he left the underground and the approved screening device test analysis of the defendant's breath registered a fail. Similarly I conclude when he entered the underground the Sergeant was not in pursuit of the defendant. He followed the defendant to investigate and, followed him for that purpose.

[107] Sergeant's Explanation Rejected

I reject the Sergeant's explanation for failing to put on his flashing lights or signal the defendant before entering the underground parking. He said there was no real time. The Sergeant's evidence lacks reliability. I infer in the circumstances he could have signalled to the defendant he wanted him to stop. As the Sergeant failed to stop the defendant while he followed him to his parking spot, I reject he was in pursuit. He made no effort to stop the defendant as he followed him in the underground parking. The Sergeant did not explain why he failed to make such an effort. I reject there was no time to do so. While following the defendant the Sergeant did not know if a crime was in progress or not. None of the driving he observed gave him reasonable and probable grounds to arrest the defendant at any point prior to the analysis of the defendant's breath sample by the roadside screening device. The Sergeant was not in hot pursuit. He was investigating information he received by radio communication.

(c) The Forthwith Requirement Not Satisfied

[108] Delay in Leaving Underground Parking

As soon as the Sergeant spoke with the defendant he formed a reasonable suspicion the defendant had alcohol in his body. Before he formed this suspicion he knew he was having radio communication problems. After forming this suspicion the Sergeant made a request for a roadside screening device and was not sure if his request was received. The Sergeant told the defendant he was detained. He stayed at his cruiser and made a further request for a roadside device. He did not try to get to the surface immediately although he knew he had radio transmission problems and did not know if his first request was received. Indeed I find he did not leave when prompted to do so by the defendant who asked if the Sergeant was going to the surface. Objectively in the circumstances, knowing a device was used to access and to enter the parking garage, the only place another officer could deliver the ASD to the Sergeant was the surface or at parking spot 288. If the Sergeant was to meet him at the parking spot that officer could not enter unless someone provided access to the underground parking area. If the officer was to meet the Sergeant on the surface, the Sergeant had to leave the parking spot and get to the surface. Objectively, to ensure his request for a device was received and to ensure there was no delay in meeting the officer delivering the approved screening device ("ASD"), leaving parking spot 288 and going to the surface was the only logical decision. The Sergeant I find delayed leaving instead making a further radio request for the ASD.

[109] Intentional Delay in Reading Demand

The Sergeant knew timing was important in conducting an impaired investigation. He believed he should not read the demand that the defendant provide a sample of his breath into an ASD until he knew it was on the way. As a result the Sergeant purposefully delayed reading that demand until after he had left the underground and communicated directly with Traffic Bravo 3 directing that officer to bring the ASD to him. That was the first positive indication the Sergeant had that the ASD was on its way following which he read the demand. There was time to read the demand to the defendant in the cruiser underground. The Sergeant I find did not do so intentionally.

[110] No Formal Demand Made Underground

I reject an informal demand was made although I accept the Sergeant told the defendant several times he wanted to obtain a sample of his breath and needed a device to test the defendant's breath. He did not tell the defendant he was required to accompany for that purpose. Nor did he tell the defendant that he was required to provide the sample forthwith.

[111] R. v. Quansah Analysis

In R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 the Court of Appeal said at para. 18 to 24,

"[18] The meaning to be given to s.254(2) must be informed by its purpose. …

[20] As our courts have often noted, this two-step process provides the police with a powerful took to curtail, investigate and prosecute drinking and driving related offences. The deaths and substantial societal costs associated with drinking and driving fully justify the existence of this procedure: see R. v. Degriorgio, 2011 ONCA 527, … at para.41.

[21] The 'forthwith' requirement of s.254(2) is inextricably linked to its constitutional integrity: see Woods, at par 29. This justifies what would otherwise be sustained as violations of ss.8, 9 and 10(b) of the Charter. Thus, in interpreting 'forthwith', this court must bear in mind Parliament's choice of language and Parliament's intention, which is to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29.

[22] So long as the demand is validly made pursuant to s.254(2) that is, so long as it is made "forthwith" for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is became the statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads: see Degiorgio, at para.37.

[23] As this court noted in Degiorgio, at para.46, the "forthwith" period is the time in which Charter rights are justifiably infringed. That is to say, within this time a detained person can be required to comply with an ASD demand and respond to that demand-be it blowing and registering a "fail" or be it refusing or failing to blow – and incur criminal liability that is justified despite ss.8, 9 and 10(b) of the Charter.

[24] As I noted, the Crown argues that the only criterion to be assess in determining whether the "forthwith" requirement has been met is whether the demand and the response to the demand take place before there is a realistic opportunity to consult counsel. As I will explain this is an incomplete approach to assessing compliance with the immediacy requirement." [emphasis added]

The underlining purpose of section 254(2) is critical to my analysis herein: Quansah para.27.

[112] Meaning of "Forthwith"

Section 254(2) does not require that the demand be made forthwith. It requires that the motorist provide a sample of his breath forthwith. In Quansah the Court referred to Justice Arbour in R. v. Pierman at para. 25, where she said "it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body." She said this was the only interpretation which was consistent "with the judicial acceptance of an infringement on the right to counsel … If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer." At para. 26 the Court in Quansah confirmed "The term 'forthwith' in s.254(2), therefore, means 'immediately' or 'without delay' and indicates a prompt demand by the police officer and an immediate response by the person to whom that demand is addressed: see Woods, at paras. 13-14 and 44." The Court added in unusual circumstances 'forthwith' may be given a more flexible interpretation 'that its ordinary meaning strictly suggests": para 25, Quansah supra.

[113] Determining Compliance with Forthwith Requirement

Determining whether or not the forthwith requirement is met is not a function of simply determining how long it took for the device to arrive. In R. v. Au-Yeung, 2010 ONSC 2292 Justice Ducharme noted, that some delay is involved has been taken to mean a police officer is not required to make the ASD demand as soon as he/she forms the reasonable suspicion the driver has alcohol in his/her body. Both Justice Ducharme in Au-Yeung supra and Justice LaForme in Quansah conclude a officer is required to make the demand as soon as she / he forms the reasonable suspicion the driver has alcohol in his/her body. If a realistic opportunity to consult counsel has not been accorded to a detained person the forthwith requirement is not met. In this case the defendant submits there was a minimum 12-minute window during which there was a realistic opportunity for the defendant to consult counsel.

[114] Time Limits in Case Law

There are other criterion for determining if the forthwith requirement has been met. In R. v. Grant, [1991] 3 S.C.R. 139 the defendant was kept in the car for 30 minutes waiting for the device to arrive. In this case the defendant submits he was kept waiting 29 minutes before the device arrived. In Grant at p. 150 the Court held,

"Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unti does not, in fact, arrive for a half hour, the provisions of s.238(2) [equivalent of s.254(2)] will not be satisfied."

In Bernshaw a 15 minute delay was held to be outside the forthwith requirement.

[115] Three Situations Where Immediacy Requirement Met

In R. v. Fildan (2009), 69 C.R. (6th) 65 (Ont. S.C.) Justice Hill described three situations at para. 39 where the immediacy requirement was met:

(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand; or

(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed-with confidence that only one drink consumed, the constable may direct the motorist on his or her way; or

(3) Where legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediate communication of a formed intention to demand and undertake ASD testing.

[116] Time Discrepancy Between Video and Watch

The Sergeant here formed a reasonable suspicion the defendant had alcohol in his body and made a radio request that the ASD be delivered to him. He made this initial radio request at TS 11:41. The crown and defendant disagree about when the Sergeant first formed this suspicion. The defendant submits it was at 11:37. The Crown submits it was at 11:41. There is a discrepancy between the time stamped on Exhibit 1 and the time on the Sergeant's watch. The video time is 5 minutes delayed. The Sergeant said it was 11:41 on his watch when he activated the in-car camera. The time stamp on the video at the beginning is 11:36:40. I find the Sergeant activated the in-car camera before he got out of his cruiser to speak with the defendant.

[117] Formation of Reasonable Suspicion

The Sergeant agreed he formed a reasonable suspicion the defendant had alcohol in his body just after he spoke with him at TS 11:37. I find the Sergeant formed the reasonable suspicion the defendant had alcohol in his body before he told the defendant to get into his cruiser which was before the Sergeant made the radio request at TS 11:41 for the roadside device. During the first four minutes the Sergeant said he was conducting a criminal investigation. At TS 11:43:53 the defendant asked the Sergeant if he should pull out to allow the officer delivering the device to get into the garage. At TS 11:52 the Sergeant began to leave the underground and head to one of the garage doors. He agreed he could have left the underground sooner.

[118] Timing of Formal Demand

At TS 11:54:22 the Sergeant knew the traffic car was on its way with the roadside device. Prior to that he had no idea when the device would arrive or if his request had been received. At TS 11:56:41 the Sergeant read the ASD from the back of his memo book. The Sergeant was equivocal about why he read the demand at that time. Although he agreed he made the demand at this point because he knew the device was on the way he also said "I don't- probably that it's en route but I – or maybe it occurs to me I better give him the demand at this point, a formal demand." When asked this again the Sergeant repeated "I didn't know if I didn't want to give him but I knew I had to give him at some point in time, and I think at this point I determined to give the demand not because it's coming but because maybe it occurs to me that I have to give him the demand, maybe I didn't read him the formal demand from the back of my book". He said "I didn't give him a formal demand, no. But I let him know that I would be demanding some – a sample of his breath from him." I have watched Exhibit 1. At TS 11:56:33 the Sergeant read a demand from his memo book. He checked his watch before doing so and stated his watch indicating it was 12:01 following which he read the demand from his memo book. I find the Sergeant delayed reading the demand from his memo book until he knew the device was on its way.

[119] 29-Minute Delay Exceeds Forthwith Requirement

At TS 12:01 the ASD was delivered. The Sergeant ensured the ASD was working properly and at TS 12:05 began to administer the test. At that point the Sergeant said it was 12:09 on his watch. The Sergeant formed a reasonable suspicion at TS 11:37 and 29 minutes later conducted the ASD test. The Sergeant agreed if he had gone to the surface sooner the ASD test would have been administered sooner. This period of time, 29 minutes, exceeds the immediacy requirement of s. 254(2) and is not consistent with the underlying purpose of the section. In the circumstances, it is an unreasonable period of time. There was a breach of Mr. Ayoub's section 8 Charter Right. He has satisfied his onus on a balance of probability.

[120] Failure to Provide Right to Counsel

The Sergeant agreed he could have de-activated the in-car camera and allowed an opportunity for the defendant to have a private consultation with counsel. The defendant had a cell phone. The Sergeant allowed the defendant to text his wife while in the underground. While waiting for the ASD, after he arrived on the surface, there was a period of 12 minutes during which the Sergeant could have allowed the defendant to contact counsel. I find he had no safety concerns at that the time for the reasons stated herein. In any event if the Sergeant had been live to the constitutional issues underlying s. 254(2) I infer he could have asked Sergeant Wilson to assist him in watching the defendant when he de-activated the in-car camera. Deactivating the camera was a real possibility. The police must make practical decisions balancing safety issues with the constitutional issues underlining s. 254(2). Here I find there was no safety issue. The Sergeant I find was not live to the underlining constitutional issues.

[121] Realistic Opportunity to Consult Counsel

I have considered R. v. Devji, [2008] O.J. No.1924 (Ont. S.C.J.) where Justice Blishen said that the actual time it took the defendant to implement his right to counsel was suggestive of the fact there was no realistic opportunity to do this at the roadside. I accept that this analysis requires a consideration of how long and if at all the defendant was able to contact his counsel. I have also considered the factors enumerated by Justice Durno in R. v. Yamka, [2011] O.J. No. 283 at para. 40 where lists factors courts have considered when making an act-specific analysis of whether in the circumstances of each case there was a reasonable opportunity to consult counsel.

[122] No Meaningful Consultation Possible

At the station despite the diligent efforts of Constable Dowling the defendant's counsel of choice did not return the messages left. Duty counsel was contacted. During a period of 28 minutes this constable left two messages for counsel and then called duty counsel who called back in 16 minutes. I cannot conclude on the record here that there was time for meaningful consultation. See R. v. Yamka, [2011] O.J. No. 283. I cannot reasonably conclude how long it would take for duty counsel to return a phone call. Without that evidence I cannot conclude that the 12-minute window the defendant suggested was available, allowed for such consultation. While underground I cannot conclude there was any reasonable prospect the defendant could reach his counsel even though he had a telephone. The defendant told the Sergeant he was not able to reach his wife by text.

[123] Breach of Section 10(b) Charter Right

I have also considered the reasoning of Justice Hill in R. v. Singh [2000] O.J. No. 4992 where he found the officer was required to provide the defendant with his s.10(b) Charter Right while waiting for the arrival of the ASD or requested the defendant go with him to the detachment so a breath sample could be obtained. In that case Justice Hill found the constable delayed making the ASD demand because he had no idea when the device would arrive. Applying that reasoning here I find the defendant has demonstrated that the Sergeant failed to provide the defendant with his s.10(b) Charter right and in doing so breached this right.

[124] Arbitrary Detention - Section 9 Charter Right

The defendant was detained for 29 minutes waiting for the ASD device. He was told why he was detained. The Sergeant acknowledged the defendant was not free to leave and that he detained him in his cruiser. The real difficulty in this case is that during the period TS 11:37 to TS 11:54:22 the Sergeant had no idea if his request for the device had been received and if the device was on the way. He agreed he could have gotten to the surface sooner and if he had done so the test would have been administered sooner. I have found he delayed leaving the underground. The device arrived at about TS 11:56. As in Yamka, supra, the defendant here was detained pending ASD testing. The immediacy requirement of s.254(2) was not satisfied. I find the defendant was arbitrarily detained and his s.9 Charter Right was infringed.

(d) Should the Evidence of Breath Samples Be Excluded?

[125] Crown's Submission on Exclusion

The crown submits the evidence should not be excluded in the circumstances here. She relied on several cases including R. v. Fildan, [2009] O.J. No.3604 and Yamka supra. In Fildan Justice Hill said at para 43 quoting R. v. Grant at para 67 -71 and 86-6, in part:

"The words of s.24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice: is often used to indicate the processes by which those who beak the law are investigated, charge and tried. More broadly, hoer, the term embraces maintaining the rule of law and upholding the Charter rights in the justice system as a whole.

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of the, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, view in the long term, will be adversely affected by the admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)'s focus in not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s.24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s.24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system."

This analysis requires I 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 breach, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society's interest in the adjudication of the case on its merits.

[126] Seriousness of the Charter Breach

With regard to the seriousness of the breach I consider that there was an infringement of the defendant's section 8, 9 and 10(b) Charter rights. The Sergeant's conduct did not demonstrate that he understood the underlining purpose of s.254(2) and its relationship to the constitutional rights of citizens. Although he understood time was important in the investigation of impaired persons, his evidence does not satisfy me he understood why time was important. The length of the breach is significant, as is the fact that the breach occurred as a direct result of the manner in which the Sergeant decided to investigate the radio call. I infer based on the evidence at this trial, that the Sergeant could have located himself elsewhere. The parking lot across from the entrance to the east parking underground garage was not the only location for the Sergeant to commence his investigation. His decision to park across from the parking entrance, ran the obvious risk that the Subject Car would drive into the underground and the Sergeant may not have been able to stop him before the car did so. Similarly his decision ran the risk that if the Subject Car used the north underground parking entrance he would not have been able to investigate the Subject Car as a result of his investigative decision. This is a serious breach. The Sergeant only had a suspicion and chose to obtain evidence by trespassing. If there was no legal way to obtain the evidence the police must leave the person alone: Kokesch, supra. I have also considered that the Sergeant did not turn his mind to stopping the defendant once underground contrary to his stated intention of doing so. I find he was following the defendant to observe how he operated the motor vehicle. He trespassed onto private property without invitation to conduct an investigation. The Sergeant was a supervisor and experienced in conducting investigations.

[127] Impact on Defendant's Charter Rights

Although the defendant was told he was detained for the purpose of a breath test being administered I find on the evidence the defendant wondered how the device would be brought to the Sergeant if they did not leave the underground parking. He was told to wait. The Sergeant made another request for the device. The situation did not change. The Sergeant did not know if the request was received or if a device was on its way. I find there is no evidence the Sergeant considered the impact of the delay on the defendant's Charter rights or that he realized his conduct compromised those rights.

[128] Seriousness of Breach - Location

I accept the Sergeant had a reasonable suspicion the defendant had alcohol in his system but only arrived at that suspicion as a result of having trespassed. I consider the breaches serious as they occurred in a location where the defendant had a reasonable expectation of privacy, although diminished, in the parking garage attached to his residence.

[129] Serious Infringement on Protected Interests

The breaches resulted in a serious infringement on the defendant's protected interests. He demonstrated he would have exercised his right to counsel when advised of those rights. He did so immediately at the station.

[130] Defendant's Awareness of Passage of Time

I infer the defendant wanted to deal with the test right away and concluded the only way for the ASD to be delivered to the Sergeant was if they went to the surface to let either the officers with the ASD in or meet them on the surface. I infer the defendant was aware of the passage of time while waiting for the ASD to arrive because he asked the Sergeant about this.

[131] Reliability of Evidence

Lastly, the evidence is important and reliable. The readings are high. It is essential to the crown's case here. I consider that the Sergeant and civilian who initially reported this matter did not observe any bad driving and that the police did not receive any additional calls after Ms. Levay's.

[132] Conclusion on Exclusion

In all of the circumstances here only the last factor weighs in favour of inclusion. Having considered all of the evidence and circumstances I conclude the long-term interests of the administration of justice require that the evidence be excluded. Admission of the evidence would bring the administration of justice into disrepute.

(e) Crown Has Not Proved the Offences Beyond a Reasonable Doubt

[133] Charge of Operating with Over 80 mg Dismissed

The charge of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood is dismissed as there is no evidence.

[134] Charge of Impaired Operation Dismissed

The charge of impaired operation of a motor vehicle is dismissed. The expert opinion tendered relied on the evidence of the analysis of the breath samples by the Intoxilizer 8000C. This evidence was excluded and as a result the expert opinion is not probative. There is no evidence of driving in this case upon which the officer concluded, in conjunction with other observations he made, that the defendant was impaired by alcohol when he operated his motor vehicle. I accept some indicia of alcohol consumption were observed including that the defendant smelled of alcohol and that he moved slowly. I have a reasonable doubt, based on the inconsistent evidence of the officers, that the defendant slurred when speaking. The Crown has not met it onus of proving this charge beyond a reasonable doubt on the basis of the admissible evidence.

Date: June 13, 2013

Signed: Justice Lucia Favret