Ontario Court of Justice

Date: January 21, 2015

Court File No.: Peel 12-15092

Between:

HER MAJESTY THE QUEEN

— AND —

JORDAN POGSON

Before: Justice F.L. Forsyth

Heard on: August 18, 2014 and August 19, 2014

Reasons for Judgment released on: January 21, 2015

Counsel

K. Watson — counsel for the Crown

A. Little — counsel for the defendant Jordan Pogson

FORSYTH J.:

Introduction

[1] Mr. Pogson was charged with one count contrary to s. 253(1)(b) of the Criminal Code arising out of an incident on November 25, 2012. He retained Mr. Little and trial dates were set for August 18 and 19, 2014.

[2] On August 18, 2014 the Crown proceeded summarily after arraignment and a plea of not guilty was entered by Mr. Pogson. Before August 18, 2014, in compliance with the Rules of Court, Mr. Little filed Charter applications in which he alleged breaches of Mr. Pogson's ss. 7, 8, 9, 10(a), and 10(b) Charter rights. In addition, he provided a factum of argument with respect to an allegation of a breach of s. 498 of the Criminal Code. It was agreed by both counsel and the Court that the entire matter would proceed as a blended trial and Charter application.

[3] Mr. Little also indicated that voluntariness of utterances made by Mr. Pogson to the qualified breathalyzer technician in the Intoxilyzer room would be in issue. Therefore, it was agreed by both counsel and also the Court that that particular voir dire would also be conducted within this blended proceeding.

Summary of the Evidence

[4] The first witness called by the Crown was P.C. Aman Bhalla who testified in Chief that he was a member of the Peel Regional Police Service and on November 25, 2012 he was on uniform patrol. While driving in his cruiser he observed a motor vehicle swerving back and forth in its own lane on Hurontario Street. He therefore activated his roof lights and stopped the vehicle in order to check the sobriety of the driver.

[5] He approached the vehicle and found the driver to be the accused person. He also had passengers in his vehicle. Mr. Little indicated that there was no issue with respect to the identification by the officer of the accused as the driver.

[6] He stated that he observed that the accused had glossy, red eyes and that his eyes were squinted. He said that these symptoms were consistent, in his mind, with the consumption of alcohol. He said that he, therefore, requested the accused to exit his vehicle, but only after he had asked him if he had had anything to drink, to which the accused had answered "no". P.C. Bhalla said that he had asked the accused to exit the vehicle because he wanted to investigate him for a possible impaired driving infraction. In other words, he said that he was at that time conducting an investigation into whether or not the accused's ability to operate his motor vehicle was impaired by alcohol.

[7] After the accused exited the vehicle, P.C. Bhalla said that he again asked him if he had been drinking and to that question the accused responded that he had had two drinks while he had been dancing.

[8] P.C. Bhalla said that it was now 1:50 a.m. and at this point he read the demand to Mr. Pogson pursuant to s. 254(2) of the Criminal Code requiring him to provide a sample of his breath into an approved screening device ("ASD"). Mr. Little took no issue with the wording of the demand. The officer said that he did not have an ASD with him, so at 1:50 a.m. he requested over the radio that one be delivered to his location. Because he was uncertain of the expected arrival time of the unit, he read Mr. Pogson his s. 10(b) rights to counsel ("RTC"). He said that Mr. Pogson declined to speak to a lawyer at that moment in time and he also declined to show any interest in speaking to duty counsel.

[9] The officer said that he had no note of what he had actually asked Mr. Pogson when he pulled him over or of what he told him with respect to the reason for stopping him. He said that he did not recall what he told him while the two of them waited for the ASD to arrive either.

[10] P.C. Bhalla said that the ASD arrived with P.C. Ferguson. He said that he tested the unit himself at 2:00 a.m. by blowing into it and it registered "000" which is the appropriate result when he had not been consuming alcohol himself. He also said that he noticed that the calibration of the unit had been checked on November 18 and, therefore, in his mind, it had been calibrated within the recommended period of time of a two-week cycle and less than two weeks before his stopping the accused on November 25. Mr. Little took no issue with these technical points.

[11] The officer said he then provided a mouthpiece to the accused and asked him when he had last been drinking. Mr. Pogson told him that his last drink was at 1:00 a.m. and P.C. Bhalla then concluded that it was safe to administer the ASD because it was certainly much greater than the minimum requirement of 15 minutes since the last drink.

[12] He said that the accused provided a fail result into the ASD at 2:00 p.m. and, therefore, the officer formed his opinion that the accused's blood alcohol concentration was greater than 80 milligrams of alcohol in 100 millilitres of blood. He said that he told him that he was arresting him at that time for 'over 80'. He said that he then again provided him with his rights to counsel and the accused responded by saying, "At this moment, no."

[13] P.C. Bhalla then, at the request of Mr. Little, read the exact wording of the s. 10(b) RTC that he had provided to Mr. Pogson into the court record. He also said that the accused had advised him that he did not wish to call a lawyer "now". P.C. Bhalla then said that he explained the reason for the detention of Mr. Pogson to him at that point just before his arrest.

[14] He said that after he arrested the accused he also provided the full RTC again and that the right seemed to be understood by the accused when he gave his response of, "At this moment, no."

[15] He said that at 2:02 a.m. he had cautioned the accused, and the accused said he understood by giving the answer "yes".

[16] At 2:02 a.m. he said that he had provided the s. 254(3) Intoxilyzer demand as well to the accused, and the accused indicated that he understood and would comply.

[17] He said that he told the accused's friends who had been in the car with him that they would have to take a cab home from there.

[18] He said that he then requested that a qualified Intoxilyzer technician be dispatched to the station to accommodate the breath tests of Mr. Pogson, and at 2:15 a.m. he left the scene with Mr. Pogson and drove directly to the police station, arriving at 2:20 a.m.

[19] He said that he had not noticed an odour of an alcoholic beverage on the accused's breath until he had him in his custody at the police station while they were waiting behind another breath test being conducted by the qualified breathalyzer technician.

[20] He said that at 2:55 a.m. he had contacted duty counsel while he and the accused were in the cell area and waiting for Mr. Pogson to be given over in custody to the Intoxilyzer technician. He said that he suggested the idea of duty counsel to the accused and that the accused had responded with "sure".

[21] He said that there was no return call from duty counsel so he called them again at 3:28 a.m., and at 3:34 a.m. the accused spoke to a duty counsel who had returned the call. At 3:48 a.m. the accused had completed his consultation with duty counsel.

[22] Mr. Little conceded that the accused had not complained about the quality of the duty counsel advice and neither had he asked to speak to another lawyer.

[23] At 3:48 a.m. P.C. Bhalla said that the accused had entered the breath room and was turned over to P.C. Bell who was the qualified breathalyzer technician on duty. His actual evidence was at 3:48 a.m. "or so".

[24] He confirmed that the first time that he had provided the rights to counsel to Mr. Pogson was at 1:52 a.m. and also that the accused had not asked him any questions.

[25] He said that at 4:24 a.m. the accused was turned back to him by P.C. Bell. He said that he served the accused with the Notice of Intention to introduce the Certificate of Analysis into evidence at the trial and also a copy of the Certificate of Analysis to him at 5:25 a.m. He said that the accused, as far as he knew, did not have a ride home available to him.

[26] The Crown asked him a couple of questions on the voluntariness voir dire with respect to the accused's utterances in the breath room. P.C. Bhalla said that he and P.C. Bell were both very polite and courteous to Mr. Pogson and that neither of them had made any threats or promises of favour or given him any inducements to make any utterances.

[27] In cross-examination by Mr. Little, with respect to his involvement with the accused at the scene where he had pulled him over, P.C. Bhalla agreed that he had been trained at police college to explain his reasons for stopping and investigating a person and also that he should record important details of his investigation in his notebook. He agreed that he had no note of reading the ASD demand to the accused, although he realizes that that is an important detail.

[28] He also agreed that he had no recollection of asking the accused for his licence and insurance documents, but it is standard practice to do so, he said, unless there was obvious medical distress on the part of the subject.

[29] He agreed that he did not detect an odour of an alcoholic beverage on the breath of the accused during the period when he was with the accused after he had approached the vehicle.

[30] He said that he was focussed on investigating the accused for a possible impaired driving and he was not necessarily suspicious at that time that he had alcohol in his body. However, he agreed that he may have been suspicious that there was alcohol in the accused's body, partially because his passengers and the accused were dressed up in party clothes. Therefore, he surmised that the group of them had probably been to a party where alcoholic beverages would very likely be served.

[31] He said that when he asked the accused if he had been drinking after he had asked him to exit the car, he may have had a suspicion that the accused had alcohol in his body because of the erratic driving and the squinted eyes and the party clothes. He said that it probably did not matter what the accused answered to this question about whether or not he had been drinking in the sense that the officer would have still been suspicious that the accused had been drinking alcoholic beverages.

[32] He said he did not know where P.C. Ferguson was when he asked him to bring the ASD to his location, but he just thought that it might be more than five minutes or so and, therefore, because of a course which he had taken, he felt that providing the accused with his rights to counsel would be necessary if there was more than a five-minute delay. Therefore, since he could not be certain that the delay would be less than five minutes he gave the accused his rights to counsel.

[33] Mr. Little then asked him some questions about his notes and something he referred to as yellow sheet notes. The officer admitted that he had erroneously ticked off a box on this sheet which indicated that he would feel that the accused was impaired by alcohol. He explained that what he meant by the term erroneously was because the accused had never manifested any physical impairment symptoms to him that he had noticed other than the squinty and glossy eyes.

[34] He also agreed with the suggestion by Mr. Little that he had made some errors in his notes with respect to the recorded times of his later actions with the accused.

[35] He agreed that he had told the accused that he pulled him over because of erratic driving. However, he also then stated that he thought it was probable that he had told the accused that the reason for pulling him over was also to check on his sobriety. He explained that he usually tells a subject whom he pulls over that that is one of the reasons. However, he conceded that he had no note to that effect.

[36] He agreed with the suggestion that he only remembers asking the accused to get out of the vehicle and that is really all. He had no additional explanation for that limited recollection of his interaction with the accused.

[37] In re-examination he told the Crown that he had only testified twice previously on s. 253(1)(a) charges and that this was actually the first time he had ever testified on a s. 253(1)(b) charge.

[38] The next witness called by the Crown was P.C. Michael Ferguson who testified in Chief that he is a member of the Peel Regional Police Service and has been since 2010. He received a radio transmission dispatch to bring an ASD to P.C. Bhalla. He did so and arrived at 1:56 a.m. He said that he also was the officer who arranged for a tow of the accused's vehicle.

[39] He said that after the accused was arrested he had asked the officers to have his car placed on a float for the tow as opposed to being towed with two of the four wheels on the road.

[40] P.C. Ferguson said that he was very calm with the accused and that he made no threats and offered no promises or inducements to him to provide any form of statement then or later.

[41] He said that the accused did not consume any liquids that he could see while in his presence.

[42] In cross-examination he said that he was the officer who did the inventory search of the accused's vehicle and, when he did so, he did not locate any alcoholic beverages either full or empty.

[43] The next witness called by the Crown was P.C. Robert Bell who testified in Chief that he is a member of the Peel Regional Police Service and that he is also a qualified Intoxilyzer technician. Mr. Little took no issue with his qualifications.

[44] He said that he took custody of the accused on November 25, 2012 at 3:45 a.m. from P.C. Bhalla from whom he also received his RPG for the arrest of Mr. Pogson.

[45] At this point in his evidence, on consent, the videotaped interaction of P.C. Bell and the accused in the Intoxilyzer room was played in open court. From the video it was obvious that P.C. Bell had made a breath demand at 3:48 a.m. upon the accused.

[46] My own observations from the video are that the accused and P.C. Bell were talking amicably to each other and often joking with each other. Both the officer and the accused seemed to be constantly quipping with each other in their interactions.

[47] There appeared to be nothing in the demeanour or deportment or conduct of the questioning by P.C. Bell, in my view, that would adversely impact upon the voluntariness issue of the voir dire concerning any utterances made by the accused in the breath room to him, subject, of course, to any possible testimony that might be forthcoming from the accused on the voluntariness issue.

[48] The readings obtained on the two breath samples provided by the accused to P.C. Bell were 142 milligrams of alcohol in 100 millilitres of blood at 3:56 a.m. and 127 milligrams of alcohol in 100 millilitres of blood at 4:19 a.m.

[49] On consent, the DVD video was entered as Exhibit Number 1 on the trial.

[50] In his evidence in Chief P.C. Bell testified that he had not made any threats or offered any promises or inducements to the accused in order for the accused to make any statement to him.

[51] Also on consent, the Intoxilyzer 8000C test records were entered as Exhibit Number 2.

[52] Just before beginning his cross-examination of this officer, Mr. Little advised the Court and the Crown that the s. 10(b) Charter application issue with respect to the interaction of P.C. Bhalla with the accused at the roadside was being abandoned by him. Specifically, he indicating that he was accepting P.C. Bhalla's evidence that the accused had declined to call a lawyer at the scene after he had been provided his rights to counsel by P.C. Bhalla.

[53] In cross-examination of P.C. Bell, Mr. Little asked the officer about the sequencing of the breath testing that evening with respect to the accused and another subject. P.C. Bell said that he had done a test for an OPP officer before the ones on Mr. Pogson.

[54] He said that he had no recollection of talking to his Staff Sergeant about the accused at any time during the evening.

[55] He said that the OPP subject tests had occurred sometime after 2:17 a.m. and were completed about 3:15 a.m. He said that he had no knowledge of any criminal record for Mr. Pogson.

[56] There was no re-examination by the Crown.

[57] The trial was remanded to its second day of August 19, 2014 and the first witness called by the Crown on that day was Staff Sergeant David Cryderman who testified in Chief that on November 25, 2012 he was the staff sergeant on duty at Number 22 Division. He first observed the accused at 2:47 a.m. and he said that the officer in charge, P.C. Bhalla, told him that the accused had been arrested for "over 80" and that he had also been previously arrested in his life for being intoxicated.

[58] Sergeant Cryderman said that Mr. Pogson was very polite and cooperative while he took what he referred to as the 'tombstone data' from him which consists of name, date of birth, et cetera, as he put it.

[59] He said that P.C. Bhalla eventually advised him of the results of the breath tests. He also testified that while he dealt with Mr. Pogson he made no promises, threats, nor did he offer any inducements to him to make any statements.

[60] When he was asked by the Crown what he considers to be the criteria for releasing an accused person who has been charged with a drinking/driving offence, he said that he considers the level of intoxication and the behaviour of the individual while in the station, any medications that the person may be taking and also whether or not a person is available to drive the accused home. He said that if there is any breath reading greater than 100 milligrams of alcohol in 100 millilitres of blood, then these factors have to be taken into consideration before releasing the subject.

[61] In cross-examination he said that with respect to the sobriety observations that he made of the accused, that he had a flushed face but no other impairment indicia were discernible by this officer. He agreed with the suggestion of Mr. Little that on many occasions he may release an accused person who has provided breath samples of 110 milligrams of alcohol in 100 millilitres of blood or lower, but the decision would still depend upon a consideration of all of the factors that he had earlier mentioned.

[62] Mr. Little showed Sergeant Cryderman the wording of s. 498 of the Criminal Code and drew to his attention that a police officer is required to release a subject as soon as practicable subject to certain exceptions that are stated within the section. Sergeant Cryderman agreed that he was well aware that Mr. Pogson's licence would be suspended for the usual 90 days after he provided a breath sample greater than 80 milligrams of alcohol in 100 millilitres of blood and also that his car would be impounded. He also agreed with the suggestion by Mr. Little that there is no fact specific victim in this case other than the general public and their concern for safety on the roads.

[63] He also testified that sometimes there are other duties that crop up within the police station that may delay the release of one particular arrestee. He provided the example of a situation where he or other officers have to deal with other prisoners in addition to the one about whose detention the questions were being asked. Hypothetically, he said that he would have released the accused between 5:30 and 6:30 a.m., but only to someone else's care. By that answer, I assume that he was referring to a ride home being available for the accused.

[64] In re-examination he said that he has seen situations where persons under an ADLS suspension have driven another vehicle away from the police station even when that person's vehicle had been impounded. He also said that the cell officer checks the prisoners every 30 minutes for various reasons such as safety and also for diminution of signs of intoxication.

[65] The next witness called by the Crown was Staff Sergeant Navdeep Chainzer who testified in Chief that he has been with the Peel Regional Police Service for 20 years and he was a staff sergeant on that night in question. He was the release officer for Mr. Pogson.

[66] He listed the factors that had to be considered for the release of a person charged with drinking and driving, and his testimony basically paralleled the provisions of s. 498 and also the testimony of Staff Sergeant Cryderman.

[67] He said that Mr. Pogson's BAC was above the legal limit and, therefore, he was not prepared to release him immediately.

[68] He said that he always discussed the matter with the cell officer who checks on the prisoner every 30 minutes and gives him an update as to the condition of the prisoner.

[69] He said that he came on duty himself at 5:00 a.m., and at 7:00 a.m. he had six prisoners waiting for release in the station.

[70] He also said that he was told that Mr. Pogson did not have a ride home available to him.

[71] He said that at 9:00 a.m. he "would have" released Mr. Pogson.

[72] With respect to certain policy considerations that exist in the Peel Regional Police Service before the release of prisoners who are considered to be intoxicated, this staff sergeant provided, with the consent of the Crown and Mr. Little, a reference document for the Court to take into consideration. This document is entitled 'Impaired Release Considerations'. The document is a summary of points that are contained within Mr. Justice Durno's decision in R. v. Price, 2010 ONSC 1998. The points listed are as follows:

1. The accused's blood alcohol level;
2. Whether the accused was charged with impaired operation;
3. His or her level of comprehension;
4. That the accused is prohibited by statute from driving a motor vehicle (the ADLS suspension);
5. That the accused's vehicle would have been impounded;
6. Whether there was a responsible person available to pick up the accused (although the officer in charge has no authority to bind the responsible person as a surety would be bound);
7. Whether the accused has a criminal record and, if so, its contents;
8. Whether the accused had outstanding charges;
9. His or her attitude; and
10. That by drinking and driving, the accused has recently exhibited poor judgment.

[73] In cross-examination he said that they had a major incident occur on this night outside of the police station and, since he was the staff sergeant in charge of the division, he was responsible for assigning officers to this incident. Therefore, he said that this assignment took priority over any internal release issues at the time.

[74] He said on that evening he was occupied from 5:00 to 6:00 a.m. with this other problem, and at 6:00 a.m. he then began to consider the release of the various prisoners who were in the station.

[75] He agreed that he understands that the elimination rate of alcohol from the human body is 10 to 15 milligrams per hour and he agreed that he knew of Mr. Pogson's 127 milligram reading at 4:19 a.m. Therefore, he also agreed that by 6:00 a.m. his BAC should be approximately 90.

[76] He said that his first chance to assess Mr. Pogson for release in the cell was 9:30 a.m. and that this was because of the other duties that he was required to attend to in the station. He did say that he could have released Mr. Pogson as early as 5:00 to 5:30 a.m. based upon the impaired release consideration points which I set out in his evidence in Chief.

[77] He said that the only reason for the delay until 9:30 a.m. was the fact that he had to attend to these other pressing duties that concerned an incident that had occurred outside of the station and also some other duties in the station at the time because there were other prisoners in the station.

[78] He agreed that Mr. Pogson's lack of an available ride home from the station was not a reason to detain him until as late as 9:30 a.m.

[79] The staff sergeant said that he relies upon the cells officers' reports until he personally does the final pre-release assessment of the subject himself.

[80] He said that at 6:37 a.m. some other detainee was released. He was charged with driving while disqualified and he had no idea why this person was released before Mr. Pogson.

[81] He agreed that at 7:14 a.m., from his notes, five prisoners were released to bail court and were taken by van to that court. He said that this requires about 10 or 15 minutes per prisoner for the paperwork to be completed for bail court.

[82] At 8:04 a.m. he said that there was another prisoner released to the bail court by police cruiser because he had missed the prisoner escort van which contained the other prisoners for bail court. He said that this took about 15 minutes as well.

[83] After these matters had concluded, he said that he reviewed the paperwork of the remaining five prisoners, which number included Mr. Pogson. He explained that he has to check the release documents, which are usually Promises to Appear, for accuracy. He said that he believed that Mr. Pogson was released as soon as practicable under all of the circumstances with which he was dealing on that particular morning.

[84] He was asked if he recalled talking with an Assistant Crown Attorney in Peel by the name of Mr. Doyle, but he did not recall Mr. Doyle warning him that the lengthy detention of Mr. Pogson was going to be at issue at the trial.

[85] The last witness called by the Crown was Mr. Bernard Yen who testified in Chief that he is a forensic toxicologist. On consent of Mr. Little, I qualified Mr. Yen, at the request of the Crown, as an expert witness on the ingestion, absorption and elimination of alcohol in the human body.

[86] Mr. Yen said that he received information from the Crown that Mr. Pogson had been last operating his motor vehicle at 1:48 a.m. of the day in question.

[87] He said that he had been informed that the breath samples of Mr. Pogson at the station were taken at 3:56 and 4:19 a.m. respectively and that they produced results of 142 and 127 milligrams of alcohol in 100 millilitres of blood respectively. He was informed of the body weight of Mr. Pogson at 240 pounds and also his height.

[88] Working with the 127 BAC reading, being the lower of the two, Mr. Yen said that at 1:48 a.m. Mr. Pogson's BAC would have been between 125 and 170 milligrams of alcohol in 100 millilitres of blood. He applied the convention of elimination of alcohol from the human body of 10 to 20 milligrams per hour in order to arrive at this range. He also assumed that there was no bolus drinking within five to 15 minutes before 1:48 a.m. by Mr. Pogson.

[89] He said that, as a result of these calculations, Mr. Pogson would have had about seven beers in his system at 4:19 a.m. with a 127 BAC reading. At 170 he would have had approximately nine beers in his system. By "beers", Mr. Yen was referring to 12-ounce, five per cent regular beer.

[90] He filed his curriculum vitae on consent as Exhibit Number 3 and as Exhibit Number 4, on consent, his report was filed.

[91] In cross-examination he agreed with Mr. Little that some toxicologists do use a period of time of up to 30 minutes as the cautionary period to be concerned about with respect to any bolus drinking or last drink before driving as a requirement to eliminate the bolus drinking issue. However, Mr. Yen says that he disagrees with those who use that period of time. He is of the opinion that five to 15 minutes are sufficient.

[92] This concluded the case for the Crown both on the Crown's response to the Charter motions and also on the merits of the case.

[93] Mr. Little indicated that the defence would be calling no evidence on the voluntariness voir dire. Nor would the defence be calling any evidence on the merits of the charge. He also indicated that the defence would be calling no viva voce evidence on the Charter motions. At this time Mr. Little also informed the Court that he was abandoning the voluntariness voir dire issue and, therefore, it was agreed that any statements made by Mr. Pogson to the police officers on that evening in question, including his discussions with the Intoxilyzer technician, were expressly voluntary.

[94] I then received submissions from both the Crown and the defence immediately thereafter on August 19, 2014. Following those submissions, I ordered a transcript of them in order to be sure that I had followed each and every detailed argument, especially those made by Mr. Little because this was a case of multiple Charter issues, as well as a s. 498 Criminal Code issue. At the outset of them, Mr. Little abandoned the s. 10(b) Charter issue at the roadside.

Position of the Defence

[95] First of all, Mr. Little informed the Court that there would be no issue raised by the defence on the merits of the required elements of proof on this s. 253(1)(b) charge if the Court should happen to dismiss the Charter motions. He specifically indicated that there would be no 'bolus drinking' issue.

The Section 10(a) Charter Breach Application

[96] Mr. Little submits that the arresting officer did not inform the accused that he was being detained in order for the officer to conduct what he believed was to be an impaired driving investigation at the point when he requested the accused to exit his vehicle. He argues that this was a breach of the accused's s. 10(a) Charter right and he submits that the Court should, therefore, exclude the verbal admission that the accused made to the officer that he had earlier consumed 2 beers pursuant to an application of s. 24(2) of the Charter, thereby depriving the Crown of that evidence for the analysis of the sufficiency of the officer's subjective and also objective belief of his reasonable suspicion that the accused had alcohol in his body while operating a motor vehicle.

[97] Mr. Little then submitted that absent that utterance the Court should find that the officer did not possess sufficient reasonable and probable grounds or actually suspicion to make the ASD demand upon the accused.

[98] He conceded that the exclusion of the accused's utterance is a sine qua non for the defence s. 8 Charter application with respect to the arrest of the accused to succeed on the lack of reasonable suspicion issue. He submitted that the Common Law precedents have established that the Court could find that the officer had acquired his requisite reasonable suspicion with the odour of alcohol on the accused's breath combined with the fact that he was pulled over while operating his vehicle.

The As Soon as Practicable ("ASAP") Issue as a s. 8 Charter Issue

[99] Mr. Little submits that the 'as soon as practicable' statutory requirement of admissibility for purposes of compliance with s. 258(1)(c) for breath test results obtained by the police pursuant to a s. 254(3) demand is also an integral requirement of s. 254(3) of the Criminal Code. That section reads as follows:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and

(b) if necessary, to accompany the peace officer for that purpose.

[100] Mr. Little argues that if the Court finds that the s. 254(3) demand was not made as soon as practicable, or that the breath samples were not provided as soon as practicable, the result should be a finding that the accused's s. 8 right was thereby infringed because the seizures of his breath samples would not be authorized by law.

The s. 9 Charter and s. 498 Code Arbitrary Detention Issue

[101] Finally, Mr. Little argues that Mr. Pogson's s. 9 Charter right to be free from arbitrary detention was breached by the fact that he was detained from approximately 5:25 a.m., when the investigating officer had completed serving all of the necessary forms upon him, until he was released at 9:30 a.m. He also submits that the evidence has established that the breath tech had prepared the Promise to Appear release form by 5:25 a.m.

[102] Mr. Little argues that the Crown has failed to elicit sufficient evidence from the officer in charge at the station or from the arresting officer to comply with the available exceptions to the mandatory release required by s. 498(1) in the circumstances of this case that are provided in s. 498(1.1):

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[103] With respect to the prospective remedy that he would ask the Court to impose if the Court found in favour of his argument that there had been a s. 9 Charter breach by reason of the 4-hour overholding, Mr. Little conceded that by itself that period of time would be insufficient to justify a stay of proceedings on these charges. He quite candidly and professionally submitted that it just would not meet the high standard for a judicial s. 24(1) Charter stay of proceedings of the requirement that it be 'the clearest of cases.' Rather, he conceded that he would have to have also convinced the Court on the required standard of a balance of probabilities that the accused had sustained additional breaches of his Charter rights in conjunction with that breach in order for him to make a viable argument that a s. 24(1) Charter stay of proceedings was the appropriate remedy.

[104] Mr. Little then made detailed submissions in support of his three fundamental Charter applications above outlined. Firstly, he conceded that P.C. Bhalla initially complied with s. 10(a) by informing the accused immediately after pulling him over that he had done so as a result of the accused's apparent erratic driving.

[105] However, he submits that the more serious concern is what the officer did after that initial provision of information to the accused. He referred the Court to the evidence of P.C. Bhalla wherein he proceeded to request the usual driving documents from the accused and simultaneously made observations of his eyes, after which he believed that he was now commencing an impaired driving investigation. He even admitted that he intended to administer the ASD to the accused after he had him exit his vehicle despite the fact that the accused had denied consuming any alcoholic beverages.

[106] Mr. Little submits that this set of circumstances establishes the breach of the accused's s. 10(a) Charter right in the absence of the officer informing him of his investigative intention when he requested that he exit his vehicle, which is undisputed.

[107] In support of his argument Mr. Little then referred the Court to a number of common law precedents and argued from a number of specific paragraphs from those cases which he read into the court record. Rather than waiting until my analysis to refer to some of them I will set them out in this summary of the Defence position.

[108] He referred the Court to the Supreme Court of Canada decision in R. v. Mann, 2004 SCC 52, [2004] SCJ No. 49 at par. 21 where Mr. Justice Iacobucci stated:

Section 10(b) of the Charter raises more difficult issues. It enshrines the right of detainees "to retain and instruct counsel without delay and to be informed of that right". Like every other provision of the Charter, s. 10(b) must be purposively interpreted. Mandatory compliance with its requirements cannot be transformed into an excuse for prolonging, unduly and artificially, a detention that, as I later mention, must be of brief duration. Other aspects of s. 10(b), as they arise in the context of investigative detentions, will in my view be left to another day. They should not be considered and settled without the benefit of full consideration in the lower courts, which we do not have in this case.

[109] Mr. Little submits that the officer actually admitted that he was trained about the importance of informing a motorist who is asked to exit his car of the reason for that police request. He submits that there never has been any common law decision to apply s. 1 of the Charter to suspend a s. 10(a) right for police investigative purposes as there has been in the case of s. 10(b). In support of that submission, he referred the Court to para. 19 of a 2004 summary conviction appeal decision of Mr. Justice Hill cited as R. v. Wackernagel, [2004] O.J. No. 5543:

The appellate case law permitting the police to forgo providing a motorist the s.10(b) Charter right to counsel where the A.S.D. test is administered "forthwith", as that term has been judicially interpreted, does not sanction suspension of a driver's s.10(a) Charter right to be "informed promptly of the reasons" for detention. Insofar as this fundamental right is concerned, with reference to R. v. Evans (1991), 63 C.C.C. (3d) 289 (S.C.C.), its character may be described as follows:

(1) Quite apart from allowing meaningful exercise of the s.10(b) right to counsel, "The right to be promptly advised of the reason for one's detention embodied in s.10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest [or detention] if one does not know the reasons for it" (page 302)

(2) The detainee must be told the "true grounds" for detention (page 293)

(3) What must be communicated is the "substance" of the reason for detention (page 293) – in determining whether a s.10(a) breach occurred, "it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern" (page 303)

(4) "The purpose of communicating this information . . . is, inter alia, to enable the person under . . . detention to immediately undertake his or her defence…" (page 294).

[110] Mr. Little relied upon the Ontario Court of Appeal decision in R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 for statements of principle that confirm the Court's differentiation between the s. 10(a) and s.10(b) Charter rights of a police detainee:

[16] The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed.

[17] Canadian jurisprudence has since generally affirmed that s. 10(a) of the Charter captures that common law definition. In R. v. Kelly (1985), 17 C.C.C. (3d) 419, this court had occasion to comment on s. 10(a) and its relationship to s. 10(b). At p. 424 this court noted that:

The interest protected by paras. (a) and (b) are not the same. With respect to para. (a), a person is not obliged to submit to an arrest if he does not know the reason for it: Christie et al. v. Leachinsky, [1947] A.C. 573 at pp. 587-8. It is, accordingly, essential that he be informed promptly or immediately of the reasons. On the other hand, the relevant interest protected by para. (b) … is that of not prejudicing one's legal position by something said or done without, at least, the benefit of legal advice. … While there may be good reasons why an arrested person's right to be informed of his right to counsel should be "without delay", there is no essential reason why it has to be part and parcel of the s. 10(a) statement, which is really part of the arresting process itself.

[18] This court's pronouncement in Kelly was later affirmed and expanded by the Supreme Court of Canada in R. v. Evans (1991), 63 C.C.C. (3d) 289. McLachlin J. stated at p. 302:

The right to be promptly advised of the reason for one's detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly … A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J stated for the court in R. v. Black (1989), 50 C.C.C. (3d) 1 at p. 12, … "[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy". In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

[19] Most recently, Iacobucci J. made it clear in Mann, supra at para. 21, that detention, for purposes of s. 10(a) of the Charter, includes individuals who are detained for investigative purposes:

Section 10(a) of the Charter provides that "[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor". At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention.

[20] It is clear, therefore, that while the main purpose of s. 10(a) is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel conferred by s. 10(b). Specifically, the purpose of s. 10(a) is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel conferred by s. 10(b) in a meaningful way. The purpose of s. 10(b), in turn, is to ensure that an individual subject to detention or arrest understands his or her right to silence and can make a meaningful choice about whether to exercise it: R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.). As to the difference in language between s. 10(a) and 10(b), I return to this court's holding in Kelly at p. 424:

First, it may be noted that s. 10(a) uses the word "promptly" and s. 10(b) does not. While semantically there may appear to be little difference between "promptly" and "without delay" I think there is a subtle difference between them. The former is a positive term and, I think, does mean "immediately" while the latter does not quite have this connotation. The injunction of the latter is expressed in negative terms – not to delay, or postpone, which does not necessarily convey the notion of immediacy. Further, if the same temporal requirement was intended to be equally applicable to each clause then it is reasonable to think that the same word or words would have been used in each.

[111] He then referred the Court to para. 21 of Nguyen as support for his argument that a s. 10(a) breach is to be considered by the courts as a serious breach and as one that strikes at the heart of the spirit and policy intentions of the drafters of the Charter:

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill – as it was in this case – the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[112] Mr. Little then referred the Court to the officer's evidence that he subjectively believed that he had sufficient reasonable suspicion that the accused had alcohol in his body at the point just before he asked him to exit his vehicle and that he was going to administer the ASD demand regardless of the accused's answer to his question about whether the accused had been drinking alcoholic beverages earlier in the evening. He submits that the undisputed evidence would not support the officer's belief on an objective analysis.

[113] Additionally, he submits that the Court should find that the officer's request for the accused to exit his vehicle was akin to the administration of a physical sobriety test without first having informed the accused of that intention which thereby deprived the accused of making an informed decision to comply with that request or not.

[114] In the context of those factual circumstance Mr. Little referred the Court to a decision of the British Columbia Supreme Court on a Summary Conviction Appeal of an over 80 charge cited as R. v. Ryan, [2008] BCJ No. 1359. At para. 29 Mr. Justice Metzger states:

The Crown argued that the appellant must be responsible for her actions and therefore must be deemed to know that she had excessively consumed alcohol prior to operating a motor vehicle. The Crown stated the appellant should be deemed to know that she smelled of alcohol and a police officer might suspect that she was impaired.

[115] At para. 44 the learned Justice stated his opinion of the policy purposes of s. 10(a):

The precise meaning of "promptly" in the context of s. 10(a) may be difficult to determine. However, the interests that s. 10(a) are meant to protect—including the provision of a detained person with the opportunity to make an informed choice about how to conduct herself in the presence of the detaining officer—lead to the conclusion that "promptly" is meaningful inasmuch as it provides the detainee with the reasons for her detention before she submits to an investigation that has serious legal consequences.

[116] Mr. Little then submitted that the provisions of par. 48 to 51 of the Ryan decision are integral to Mr. Pogson's s. 10(a) Charter application:

[48] I find that the learned trial judge erred in his application of the law to the circumstances before him. The purpose of s. 10(a) is not only to enable the person detained to decide whether to submit to the detention, but to enable the person to make an informed decision about whether to submit to investigatory screening measures.

[49] The officer has clearly not notified the appellant "promptly" of the reasons for the detention, if he does so only after he has already performed field sobriety tests.

[50] The officer pulled over the appellant in order to investigate her for impaired driving. There were no safety concerns that prevented him from declaring the reasons for her detention. The appellant was not uncooperative, and there is no evidence that the officer did not have an opportunity to tell her the reason for the detention. The officer was clearly investigating her for indicia of impairment while he spoke with her and directed that she walk to the back of her vehicle.

[51] There is no reasonable explanation why the officer could not have immediately told the appellant why she was being detained. If the appellant had been simply asked about her drinking at the time of detention, the delay might have been a reasonable one.

[117] Mr. Little then addressed a precedent that he knew the Crown would be asking the Court to apply in favour of the Crown's response to these Charter applications. It is R. v. Kumarasamy, [2011] O.J. No. 2114, a summary conviction appeal decision of Mr. Justice Dambrot of the Ontario Superior Court of Justice. Mr. Little had included it in his own book of authorities and, as a matter of fact, had argued the case at the appeal level for the defendant respondent.

[118] He began in his customary candid and professional manner by conceding that if I agree with Mr. Justice Dambrot's analysis and conclusion on the s. 10(a) Charter application that was at issue in that case, then Mr. Pogson's s. 10(a) Charter application should be dismissed. He also acknowledged that the Court would have to determine whether Kumarasamy is binding upon it in the circumstances of the facts in the case at bar.

[119] He then referred the Court to an unreported decision of Mr. Justice Douglas of the Ontario Court of Justice called R. v. Close which was decided on December 13, 2012. He admitted that the facts in that case are somewhat distinguishable from the facts at bar, but he commended the statements of principle of Mr. Justice Douglas and the fact that he felt that he could and, in fact, did disagree with Mr. Justice Dambrot in Kumarasamy. Because this was the only decision referred to me that expressly disagrees with Kumarasamy, supra, I will set out the entirety of Mr. Justice Douglas's reasoning in the factual context of Close:

[29] 10(a) obligates an officer, on arrest or detention, to inform... promptly" the one so arrested or detained "of the reasons therefore".

[30] The evidence is clear and the crown concedes that the D was detained at least from the point in time that she was asked to step out of her car, but also, clearly, from the moment the IO used his lights to require the D to stop her motor vehicle".

[31] The evidence is equally clear that the IO said or did nothing to 'inform' the D of the reasons for his detention of her. Here the Crown strongly argues Justice Dambrot's decision in Kumarasamy. As this was a decision on appeal, it is binding on me.

[32] Having said that, I must say that I simply do not accept the reasoning of Justice Dambrot as that is stated at paragraphs 51 through 79, at least as that is put to me by the Crown. Nor do I accept the assertion that these thoughts are in accord with either Nguyen or Mann.

[33] I certainly agree that the Charter imposes no obligation on an officer to use specific language.

[34] I further agree that language and one's likely understanding thereof is to be interpreted within the context it is used; hence, an officer can say little and yet a defendant can understand much.

[35] Where I part company is with the notion that the officer, in unexceptional contexts, as most highway traffic act stops are, need 'say' nothing. To me, that sort of approach turns a citizen's constitutional right "to be informed promptly" by the state into a citizen's obligation to figure out what the state is going to him, and why: what, that is, is going on. While an individual may be an informed one, because of his or her own knowledge, he is not 'informed' in the context of section 10(a) unless the state takes some positive steps to make him or her so informed.

[36] For example, it is most likely the case based on common experience, that almost all in our society know that they have a right to legal assistance in their dealing with the police. Hence, in the context of most police arrests or detentions, most people would know that they have a right to counsel. Yet, we still insist that police take some positive steps with respect to both the informational component and the implementation component of section 10(b). The interpretation advanced of Justice Dambrot reasoning respecting the phrase, 'to be informed', would equally undermine the phrasing found in 10(b), 'and to be informed of that right'.

[37] In noting my disagreement with this authority, I do so on the basis that Justice Dambrot's comments are for the most part obiter; hence non-binding. I take this position for the following reasons.

[38] At paragraph 18, it is noted that the appeal proceeded on the basis that while the trial judge made no specific finding of a 10(a) breach "when the respondent was stop", "It is a fair inference that she made no such finding" since she found that "it should have been obvious...when he was stopped that there was some concern about the driving and that the police wanted to look at driver documentation and establish identity."

[39] Similarly, at paragraph 20, it is noted that there was no finding of a 10(a) violation when the officer "began to investigate the respondent for an impaired driving offence".

[40] In that context, Justice Dambrot then analyzes the question of whether 10(a) was violated "when the officer asked the respondent to step out of the car". But he does this on the basis of his previous conclusion that the trial judge had actually made a finding of fact that the D knew of the unchanging public safety reason for the officers various acts of detention. Hence, there is simply no basis for such an underlying assumption: at issue is the police failure to advise the D at any stage of the unfolding process.

[41] In my view, Nguyen is determinative. There, specifically addressing the informational component of 10(a), the Court of Appeal found that it codified the common law right:

"...a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must in substance, inform the person as to the reason why the restraining is being imposed [emphasis added]

[42] While this statement of the right clearly admits of some exception in 'circumstances', there is no reason to believe the exception is broader than the rule. Indeed, in this case, the defendant's admission that he lived there, made in his own drive way, in the context of an obvious drug search of his home, was excluded on the basis that he was not told why he was being detained.

[43] The court noted, as well, that "while the main purpose...is to inform an individual of why he or she is being detained, it also has an important secondary aspect as an adjunct to the right to counsel....[It] is also to inform an individual of the extent of his or her jeopardy such that he or she can exercise the right to counsel..." Consistent with the notion that 10(a) is a primary right that feeds another, the court adopts Kelly (1985), 17 C.C.C. (3 rd) 419 (O.C.A.) and holds that the "promptly" or 10(a) means "immediately" while the "without delay" of 10(b) "does not quite have this connotation... [but means] not to delay, or postpone...."

[44] Nguyen quotes Mann, which of course binds us all. The quote is very clear. "At a minimum, individuals who are detained for investigative purposes must therefor be advised, in clear and simple language, of the reasons for the detention [emphasis added]." Clearly, to the SCC, there is a linguistic element to the state obligation to inform. And, in that, the Court was saying nothing it had not already said in Evans, [1991] 1 S.C.R. 869. There it had rejected the need for any formalism in the language used, but assessed what was said in the context of the need to assess whether to submit to the detention or not and whether to consult counsel or not.

[45] Accordingly, in my view, the D 10(a) rights were breached immediately on her stop by the OIC because, when he stopped her, he did not say, in clear and simple language, the reason for the stop. That breach continued when the OIC requested, without intervening reasonable suspicion or reasonable and probable grounds that the D get out of her vehicle.

[46] I mean, by this, that the OIC investigative detention was continuing and the degree of detention was escalating; if the immediacy of the stop somehow prevented compliance with 10(a), this was not the case as the investigation carried on. Clear and simple language would have alleviated this breach, and provided the information necessary for the coming 10(b) assessment.

[47] I also mean by this that as the OIC himself testified to, he did not in his mind have enough grounds for either a roadside test or an arrest, and that he was seeking to gather those – hence seeking to get incriminating evidence from the D. Hence, just like in Nguyen, the purpose of the officer's actions was to get the suspect to somehow incriminate themselves. While that purpose is noble, the rules say that suspects have certain minimal rights in such circumstances. These were not provided.

[48] I should note, that if the OIC had formed a reasonable suspicion while standing at the door of the vehicle, and made a roadside demand, it is likely that the breach of 10(a) would be immediately mitigated, if not specifically by words saying, 'I am detaining you because...', then, by clear inference from the language of the demand, which says, in effect, I think you have been driving with alcohol in your body. In addition, if the OIC had gone further, and had, lawful, reasonable grounds for an arrest, then there, too, the breach would be immediately mitigated by specific words of or inferences from the language of the arrest and the breach. As it was, there is no mitigation of the initial breach concurrent with the stop; indeed, the request to get out of the vehicle with the unstated purpose of looking for evidence of impairment, both continues and compounds the initial breach.

[120] Mr. Little relies heavily upon the statements from Nguyen, supra, that a person is entitled to be informed of the reason why he or she is being detained unless the circumstances are such that he or she knows why. He acknowledges that the reason does not need to be expressed in technical or precise language, but must in substance inform the person of the reasons why the restraint is being imposed.

[121] Mr. Little concluded his submissions on Close by asking the Court to find that there is a very strong argument to be made that this Court is not bound by Kumarasamy, supra, and is not required to follow that decision in light of the application of the principles expressed in Nguyen, supra, and Mann, supra, as enunciated by Mr. Justice Douglas.

[122] Mr. Little then referred the Court to another summary conviction appeal cited as R. v. Marchionne, 2013 ONSC 569, [2013] O.J No. 431, a decision of Healey, J. in the Ontario Superior Court of Justice. In that case the trial judge, Crawford, J. in the Ontario Court of Justice had found a breach of the s. 8 and 9 Charter rights of the accused when the arresting officer had administered an ASD demand, but had declined to exclude his breath tests subsequently obtained, from the body of trial evidence. Mr. Justice Healey found that the trial judge did not engage in a proper s. 24(2) analysis in accordance with the guidelines established by R. v. Grant, 2009 SCC 32, [2009] SCJ No. 32. He therefore allowed the appeal of the accused's conviction and entered an acquittal.

[123] Although the Marchionne case does not deal with a s. 10(a) breach, Mr. Little submits that it has relevance to the alleged seriousness of the type of s. 10(a) breach that he argues was the result of the conduct of P.C. Bhalla with the accused, and the necessary balancing analysis that this Court must conduct if I happen to find that the alleged s. 10(a) breach was established on the requisite burden of a balance of probabilities on the accused applicant. I will consider that submission in due course if I find in favour of the accused's application.

The Section 24(2) Issue

[124] Mr. Little then provided his submissions on the s. 24(2) analysis assuming that the Court finds that a s. 10(a) breach was established on the evidence from the roadside interaction between the arresting officer and the accused. They are, of course, predicated upon the principles enunciated by the Supreme Court of Canada in R. v. Grant, supra.

[125] On the first arm of that analysis he submits that a s. 10(a) breach has always been found to be serious by the appellate courts. Furthermore, he submits that the fact that P.C. Bhalla was unable to provide any mitigating reason for his failure to inform the accused of the reason why he was requiring that he exit his car renders the breach objectively more serious.

[126] In addition, the fact that the officer admitted that he had been trained to inform subjects of the reason for their detention and simply just did not do so in this case strengthens the argument for exclusion of the accused's verbal utterance about his alcohol consumption, argues Mr. Little.

[127] On the second branch of the analysis he submits that the impact of the breach on the accused must be considered to have been very significant because the Supreme Court in Grant makes it clear that verbal statements made by an accused to an officer in the wake of a Charter breach are presumptively inadmissible, and in the circumstances of this case, in the absence of any evidence that the Court could consider as an exception to rebut the presumption by the Crown, the statement of the accused to P.C. Bhalla should be excluded.

[128] The fact that the accused was deprived of the ability to make an informed decision to submit or not to the officer's request that he exit his car under detention, in conjunction with the decision to answer the officer's question, only compounds the seriousness of the breach, argues Mr. Little.

[129] With respect to the 3rd arm of the Grant analysis, Mr. Little submits that the verbal response of the accused to the officer's question is not a sine qua non element of the Crown's case. To exclude it would not effectively 'gut' the prosecution, to quote Mr. Little.

[130] In conclusion he submits that the serious nature of the breach and the "profound" impact that it had on the accused in the context of this trial must tip the scales in favour of exclusion pursuant to s. 24(2).

The Section 8 and 9 Issues

[131] Mr. Little submits that if this Court excludes the utterance by the accused about his consumption of alcohol to P.C. Bhalla, then the officer lacked the requisite grounds to make an ASD demand because he would not have had sufficient reasonable suspicion that the accused had alcohol in his body at that time. Mr. Little submits that the only information available to the officer at that time would be some swerving in the driving, red glossy eyes and the fact that the accused's eyes were "squinty". Mr. Little reminds the Court that the officer agreed with his suggestion that an individual's eyes can be red for any number of reasons, but also added the caveat that, in his experience, the look would be different.

[132] Mr. Little submits that the only other aspect of evidence to which the officer referred for his suspicion or grounds was the fact that the individuals in the vehicle were dressed up in party clothes and, therefore, there would normally be alcohol involved.

[133] Mr. Little submits that at the point when P.C. Bhalla requested that the accused exit his vehicle, it is clear and it should be clear to the Court from the evidence of P.C. Bhalla that he believed that he was going to be investigating a possible impaired driver. Even after the exit from the vehicle, the officer observed no unsteadiness on the part of the accused and he had no issues with the balance of the accused. Mr. Little reminds the Court that the officer agreed that no matter what the accused had answered to him when he asked him the question about his drinking, he was going to make the ASD demand in any event.

[134] Mr. Little submits that if the statement of the accused is excluded, then the Court does not have even the odour of alcohol in the body of evidence available to the officer and all that is left is some apparently erratic driving and red eyes. Mr. Little submits that that evidence cannot establish a reasonable suspicion on the part of the officer to believe that Mr. Pogson had alcohol in his body while operating his motor vehicle from an objective analysis. Therefore, he submits that there has been a breach of the s. 8 and s. 9 rights of Mr. Pogson at that point.

[135] Mr. Little even suggested to the Court that there is a possible issue on the officer's testimony that he had a subjective belief that he possessed the sufficient reasonable suspicion under s. 254(2) to make an ASD demand because he went to the trouble of asking the question of the accused about whether or not he had been drinking after getting him out of the car.

[136] Therefore, in conclusion, on this area of the application, Mr. Little submitted that if the Court does find that the officer lacked the reasonable suspicion to make a proper s. 254(2) demand at least from an objective analysis viewpoint, then the demand was unlawful and the subsequent detention of the accused in order to provide the breath samples to the ASD was unlawful. Mr. Little concedes once again that his s. 8 and s. 9 Charter arguments are predicated upon the Court finding that the accused's s. 10(a) Charter right had been breached as previously argued by him.

As Soon as Practicable

[137] Section 254(3) of the Criminal Code states as follows:

If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and

(b) if necessary, to accompany the peace officer for that purpose.

[138] In partial support for his argument on the ASAP issue, Mr. Little referred the Court to a decision of Mr. Justice Brophy of the Ontario Court of Justice in R. v. McLeod, [2011] O.J. No. 4118 at paras. 34 and 35:

[34] The as soon as practicable criteria arises in two places in the Criminal Code under the drinking and driving provisions. The first is under Section 258 where it speaks in terms of the taking of tests as soon as practicable and if they are and other criteria are met, the results of those tests have satisfied the presumption of identity and the test results inside the two hours are acceptable as evidence of what the blood alcohol concentration was at the time of driving. Both Crown and defence agree that that is not relevant for this case and the Crown says that she proves the over 80 offence by external means, that is to say the breath technician and the report from the CFS.

[35] The as soon as practicable requirement however also appears in Section 254 dealing with demands that are made for the provision of samples. The language appears particularly in Section 254(3)(a). This is the provision that authorizes a peace officer to make demand, which demand is to be made as soon as practicable, requiring an individual to provide as soon as practicable samples of breath that in a qualified technicians opinion will enable a proper analysis to be made to determine the concentration of alcohol in the person's blood.

[139] Mr. Little refers the Court to two areas of evidence in the case for the Crown that he submits deprive the Crown of establishing that the breath tests of the accused were administered to him as soon as practicable as contemplated by s. 254(3). He, of course, draws a distinction between the as soon as practicable requirement of s. 258(1)(c) which simply deals with the ability of the Crown to be able to rely upon the breath tests being related back to the last time of driving as long as the tests were taken within a two-hour period from that point and also as soon as practicable. This is otherwise known as the 258(1)(c) presumption in favour of the Crown that obviates the necessity of the Crown calling a toxicologist to read back the readings to the time of driving.

[140] Firstly, Mr. Little refers the Court to the evidence of P.C. Bhalla that he and the accused arrived at the police station at 2:20 a.m. and that the officer buzzed in from the sally port. The evidence, Mr. Little submits, is such that the Court may conclude that the officer may have been told at that point or perhaps later that there were some issues with respect to an OPP investigation to be dealt with.

[141] Mr. Little submits that it is not clear from the evidence whether, in fact, he had that information then or learned about it later. However, what is clear, Mr. Little submits, is that there was a delay of as long as perhaps 30 minutes from 2:20 a.m. until approximately 2:55 a.m. which is the time when duty counsel was called on behalf of the accused. Mr. Little submits that the evidence is unclear as to whether or not the accused could have been brought into the booking area and at least had the procedure begin without necessarily that 35-minute delay. He said that the only thing that is clear from the evidence is that there was some kind of an issue with the OPP having to conduct another breath test.

[142] Mr. Little reminds the Court that the breath technician in this case testified that he did take samples from another individual before the accused and he also testified that he would have been ready to take samples from Mr. Pogson at approximately 3:30 a.m., and yet, Mr. Pogson was not introduced to him until approximately 3:45 a.m.

[143] Next, he reminds the Court of the evidence of P.C. Bhalla that he decided later on to canvas with Mr. Pogson once again whether or not he wanted to speak to a lawyer. This interaction took place after they had finally got through the waiting period in the sally port and into the station. Mr. Little also submits that Mr. Pogson had specifically answered in the negative on two previous occasions to P.C. Bhalla that he did not want to speak to a lawyer. However, the officer decided unilaterally to call duty counsel on behalf of the accused.

[144] Mr. Little submits that this inquiry of the accused could easily have taken place during the 35-minute delay while the two of them were waiting to be admitted into the booking room of the station. He submits that the officer simply testified that he did not know what was going on at that time. Had the accused been asked by the officer about his desire to call a lawyer during that waiting period, Mr. Little submits that steps could have been taken to facilitate a discussion with a lawyer or duty counsel much earlier than was the case even if the accused exercised that option.

[145] Mr. Little, therefore, submits that there is an unreasonable delay on the evidence of the approximately 35 minutes in the sally port, combined with the 15-minute delay between 3:30 and 3:45 when the accused was handed over to the qualified Intoxilyzer technician, amounting to a total delay of 50 minutes.

[146] He concedes that the Crown does not bear the burden of proving that the tests were taken as soon as possible and that they only need to satisfy the Court on a balance of probabilities that the tests were taken as soon as practicable. In this particular case, Mr. Little argues that there is insufficient evidence of what was really happening that contributed to all of this delay in order for the Crown to satisfy the Court that they have established on that balance of probabilities that the tests were taken as soon as practicable. For these reasons, he argues that Mr. Pogson's s. 8 Charter right was breached by the taking of his breath samples under those circumstances.

The Section 24(2) Overarching Analysis

[147] Mr. Little then proposed that he make his submissions with respect to s. 24(2) on all of the alleged breaches that he was attempting to establish in the applications before he concluded his argument on the s. 498 Criminal Code section and its relationship to the allegation that the accused was detained for a period of time in the station which would amount to a serious overholding amounting to a s. 9 Charter arbitrary detention.

[148] With respect to the s. 24(2) analysis, Mr. Little began by submitting that if he is successful in his Charter applications, then the Court will find that there was a breach of Mr. Pogson's s. 10(a), s. 8, s. 9 and a second breach of his s. 8 Charter rights, totalling four breaches in all. He submits that the number of breaches is a relevant factor with respect to the considerations that must be entered into by the Court on a s. 24(2) exclusion of evidence analysis using the rubric of the Grant, supra, principles. In other words, he submits that the higher the number of Charter breaches arising out of a single case of an interaction with the police, the more serious they must be considered to have been with respect to the state conduct, and thereby the argument for exclusion of any evidence obtained after those breaches is strengthened.

[149] At this point, Mr. Little referred the Court to para. 26 of Mr. Justice Healey's decision in R. v. Marchionne, supra:

Finally, the appellant suggests that the failure of the trial judge to provide reasons as to why the balancing of the three factors resulted in inclusion of the evidence is an error of law. The trial judge simply stated: "[i]n the result then I find that the approved instrument readings should not be excluded". The Court in Grant explained that the balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision (at para. 140). In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, the Court further explained:

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

[150] Mr. Little concedes that even if the Court finds a s. 8 breach as a result of the breath tests not being taken as soon as practicable, it would not be considered to be the most serious of breaches on a s. 24(2) analysis. Certainly he concedes that it would be unlikely that such a breach taken alone would lead to exclusion. However, he submits that when that breach is included within the totality and context of the multiple breaches which he has alleged occurred, then once again the argument for exclusion of the breath tests would be enhanced.

[151] With respect to the second branch of the Grant analysis which involves the impact of the breaches on Mr. Pogson's Charter-protected interests, Mr. Little repeated his earlier submission that, in his view, the impact would be very significant. He argues that when the Court examines the entire chain of events, it should find that P.C. Bhalla pulled over Mr. Pogson and breached his s. 10(a) Charter right by not providing him with the information that he was being investigated for an impaired driving offence, that his s. 8 right was breached when the ASD demand was made in the absence of sufficient grounds, and that everything that happened from that point on is really, in essence, an arbitrary detention contrary to s. 9 of the Charter beginning at approximately 1:50 a.m. and concluding at 9:30 a.m. that morning.

[152] This amounts to more than seven-and-a-half hours of detention during which for a portion of the time Mr. Pogson was handcuffed and being transported in a police cruiser to a police station, sitting in the cruiser in a sally port outside the station "for God knows how long", submits Mr. Little, subsequently providing breath samples and then being placed in a cell for what appears to be approximately five hours before being released. Mr. Little submits that four hours of that time period should be considered to be unjustified from a legal point of view in the context of s. 498 of the Criminal Code. Those would be the hours from 5:30 a.m. to 9:30 a.m.

[153] Mr. Little submits that the cumulative effect, both from a subjective and also from an objective standpoint, of Mr. Pogson being detained, handcuffed, transported to the station and being placed in a holding cell for an inordinate period of time amounts to a situation that should not be considered by the Court to be minimally intrusive. It may well be that courts have decided that the mere taking of breath samples from an accused is a somewhat minimal intrusion into the privacy of the person, but Mr. Little submits that that act cannot be considered in isolation in the process. In other words, the entire procedure from the time when the individual stopped his vehicle, and was detained and investigated right up to and including the taking of the breath samples, must be considered on a s. 24(2) analysis in the event of a breach being established.

[154] In conclusion, he argues that the cumulative effect of this procedure had a profound impact upon his client's Charter interests and rights, and that the result of these multiple breaches should clearly mandate that the Court decide the s. 24(2) exclusion analysis on a balance of probabilities in favour of Mr. Pogson, the applicant, and exclude his breath samples from the body of evidence in this trial.

[155] On the third branch of the Grant analysis, Mr. Little conceded what he referred to as three obvious facts:

• He concedes that the breath samples should be considered by the Court to be reliable evidence;
• If the samples are excluded it "guts" the Crown's case;
• The Supreme Court of Canada in para. 111 in R. v. Grant has clearly established that the interests of society in having a criminal charge prosecuted on its merits favours the admission of the evidence:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[156] Notwithstanding these societal interests he submits that the balancing analysis by the Court should result in then s. 24(2) exclusion of the breath samples.

The Section 498 Code Issue

[157] Mr. Little submits that both he and the Crown are relying upon a decision of Mr. Justice Durno in the Ontario Superior Court of Justice cited as R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587, with respect to an 'overholding' of a subject detainee by the police before release from the station.

[158] Section 498(1) and 498(1.1) of the Criminal Code reads as follows:

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[159] In para. 93 of Price, Mr. Little submits that Mr. Justice Durno considered the effect of 498(1.1) on the onus borne by the Crown to justify what would appear to be an apparent overholding:

While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

[160] Mr. Little submits that the Pogson case is somewhat different from Price because the evidence is not that Mr. Pogson was really being held until 9:30 in the morning because of his blood alcohol concentration. He submits that the evidence reveals the following facts:

• That Mr. Pogson's last breath sample was provided at 4:19 a.m.
• The police should be granted some time to do some paperwork in connection with the charge and the breath samples, but that the evidence demonstrates that by 5:25 a.m. all of that paperwork had been completed and indeed the Notice of Intention and Certificate of Analysis had been served on Mr. Pogson. This evidence comes from the arresting officer.
• The breath technician testified that, in his opinion, he would have had the Promise to Appear prepared and ready to be served on the accused by 5:25 a.m. at the latest or no later than 5:30 a.m.
• Notwithstanding the above, the accused was held in custody until 9:30 a.m.

[161] Mr. Little submits that s. 498(1) clearly mandates that the peace officer "shall" "as soon as practicable" release the person on a Promise to Appear if none of the other forms of release contemplated by the section are required. Mr. Little submits that there is no evidence that any release other than a Promise to Appear was being considered in this case and I believe that that is not in issue. This requirement, of course, is subject to the exceptions contained in subsection (1.1) which can justify an extended period of time in detention if the Crown can establish the presence of any of them in the circumstances of the case.

[162] Mr. Little submits that this was not done in this case and that there is no evidence of any reasonable ground in the body of evidence before this trial that would justify a s. 498(1.1) exception available to the Crown. Mr. Little refers the Court to the evidence from the staff sergeant in the booking room that there was some incident that had taken place outside of the station involving a missing person and also a motor vehicle accident that he had to assign police officers to investigate on the street. Although there is no evidence to inform the Court of how long that investigation took, Mr. Little is prepared to concede that it could take up to one hour, which still does not justify, in his submission, why the accused was not released at perhaps 6:00 a.m. or 6:30 a.m. as opposed to 9:30 a.m.

[163] He acknowledges that the sergeant testified that he was dealing with other people and getting the paddy wagon ready for certain detainees to be taken across the street to bail court on the weekend. He testified that he was arranging for that type of transportation at approximately 7:00 a.m. Mr. Little questions the necessity of that type of procedure consuming some two to two-and-a-half hours before the accused could be released at 9:30 a.m.

[164] In conclusion, he submits that if the Crown cannot justify Mr. Pogson's detention from 5:30 a.m. to 9:30 a.m. under a subsection (1.1) exception, then that detention was not authorized by law and was, therefore, arbitrary resulting in a violation of Mr. Pogson's s. 9 Charter right.

[165] Mr. Little refers to the evidence of Staff Sergeant Chainzer, who discussed the considerations that the Peel Regional Police Service considered to be necessary before releasing a detainee who had been charged with a drinking and driving offence. Those considerations were:

1. the accused's blood alcohol level;
2. whether the accused was charged with impaired operation;
3. his or her level of comprehension;
4. that the accused is prohibited by statute from driving a motor vehicle (the Administrative Licence Suspension);
5. that the accused's vehicle would have been impounded;
6. whether there was a responsible person available to pick up the accused (although the officer-in-charge has no authority to bind the responsible person as a surety would be bound);
7. whether the accused has a criminal record and, if so, its contents;
8. whether the accused had outstanding charges;
9. his or her attitude;
10. that by drinking and driving the accused has recently exhibited poor judgment.

[166] With respect to the sixth consideration about whether or not there was a responsible person available to pick up the accused, Mr. Little anticipated the Crown's likely argument that that was not the case with Mr. Pogson and, therefore, that would establish a subsection (1.1) exception. Mr. Little conceded that that was no doubt the case, but urges the Court to find that the evidence from the Staff Sergeant and from any other police witness in this case was that the accused was polite and cooperative throughout the entire proceeding and that the police interaction with the accused shown on the video of the breath room reveals the accused not appearing to be impaired, quite coherent, and engaged in conversations with the breath technician. There is an absolute absence of any evidence of any concern by the officers who dealt with him about his level of comprehension.

[167] He, therefore, submits that from all of the other considerations on the policy basis contained in the Impaired Release Considerations form, Mr. Pogson ought to have been a good candidate for release much earlier than 9:30 a.m. Mr. Little submits that it should appear to the Court from the testimony of Staff Sergeant Chainzer that the accused basically kind of fell through the cracks at the time with the police giving other duties greater priorities to the release of Mr. Pogson.

[168] In conclusion, Mr. Little submits that the overholding evidence establishes a clear breach of s. 7 and s. 9 Charter rights of the accused and that the Court should consider those breaches within the context of the other breaches that the defendant has sought to establish and consider that the totality of those breaches and cumulative effect of them strengthens the case for the defendant for a s. 24(2) exclusion of the evidence of his breath tests.

[169] He concedes that the overholding breach, if it is found to have been the case, does not justify by itself a s. 24(2) exclusion of the breath tests because there is no nexus from a factual standpoint between it and the provision of the breath tests which occurred earlier. However, he said that if the Court does find such a breach, it just simply exacerbates the type and protracted nature of the s. 9 arbitrary detention that Mr. Little argues existed right from the arrest to the bitter end of the 9:30 a.m. release.

Position of the Crown

The Section 10(a) Charter Issue

[170] Ms. Watson clearly asks the Court to find that the evidence in this case does not support a finding by the Court on a balance of probabilities of a breach of Mr. Pogson's s. 10(a) Charter right by P.C. Bhalla. She relies upon the decision of Mr. Justice Dambrot in R. v. Kumarasamy, supra, and also on the decision of Mr. Justice Blacklock of the Ontario Court of Justice in 2012 in R. v. Daw, [2012] O.J. No. 2518. In that decision, although a breach of s. 10(a) was not argued, Mr. Justice Blacklock made certain statements at paras. 29, 30 and 31 that are relevant, in my view, to a s. 10(a) Charter application.

[171] In my view, the facts of that case are adequately set out for my purposes in the headnote:

Application by the accused for exclusion of evidence due to Charter violations. The accused was charged with impaired driving, driving over the legal limit and possession of marijuana. He argued he was arbitrarily detained by the officer, he was not provided with his right to counsel and that the officer did not have reasonable grounds to make the breath demand. An officer followed the accused's vehicle early in the morning. The accused suddenly pulled into a parking lot. The officer approached the vehicle and questioned the accused. The accused alleged he was arbitrarily detained at this point. The officer then asked the accused to produce his documents which the accused failed to do. The officer then asked the accused to remain in the vehicle while she was investigating further. The accused remained in his vehicle for about 15 minutes before he was asked to exit. At that point the officer noted the accused's unsteady walk. Based on her observation that his speech was slightly slurred, that he seemed disoriented and had admitted to consuming one beer, the odour of alcohol and the unsteady walking, the officer believed the accused was impaired. The accused was arrested and advised of his right to counsel and the officer made a breathalyzer demand. After the accused was arrested, other officer searched the accused's vehicle for the driving documentation and found marihuana in his vehicle.

[172] At paras. 29 through 32, Mr. Justice Blacklock states:

[29] Let me say, and it will be observed from my recitation of the evidence so far in this case, that it appears the officer did not inform the accused in express terms of why he was detained. As I mentioned, a breach of Section 10(a) was never argued in this case.

[30] Having reviewed, however, R. v. Kumarasamy [2011] O.J. No. 2114, I think I now understand why this was the case. That case holds, as I read it, that if the circumstances are such that the accused knows why he is being detained, 10(a) is not breached, notwithstanding the fact that the officer may not have expressly and precisely have conveyed the basis of the detention to the detainee. (See in that regard paragraph 43 to 46.)

[31] Here it was plain to the defendant that the officer was interested in the reason for his unusual driving manoeuvre of quickly turning into the plaza. That was indeed the subject of her initial questioning of him. Her demand for his driving documents, again, was a circumstance conveying to the accused that the officer was focused on her responsibilities under the Highway Traffic Act. He knew he'd consumed alcohol. He knew he was in close proximity to a uniformed police officer with a marked police cruiser. He knew, in those circumstances, that the officer would be interested in whether or not he was sober to drive. He also knew he was at risk that she would detect an odour of alcohol and take further investigative steps in that regard. Her question regarding his consumption of alcohol also made her interest in that area clear.

[32] In light of that totality of circumstances, I am satisfied that as the accused was being dealt with by the police, and as he was seated waiting in his car, he probably knew from the circumstances why he was being detained. I am certainly not satisfied that this was not the case, which may be a more apt way of stating the burden to establish a breach of Section 10(a).

[173] Ms. Watson acknowledges that P.C. Bhalla had been a very junior officer at the time and that his evidence "left much to be desired." However, she submits that Mr. Pogson's s. 10(a) right was certainly not breached by P.C. Bhalla, after the Court considers the appropriate rationale expressed by Mr. Justice Dambrot in R. v. Kumarasamy, supra, and to some extent by Mr. Justice Blacklock in R. v. Daw, supra.

[174] Ms. Watson submits that if the Court should find that there was a s. 10(a) breach, the Court should also find on the s. 24(2) analysis that it was a trivial breach in the sense that it involved approximately two minutes of Mr. Pogson being unaware as to the full extent of why he had been stopped by the officer.

[175] With respect to the defence argument about the breath tests being taken ASAP, Ms. Watson submits that the evidence reveals that it was at most an 8-minute delay outside the maximum 2-hour limit permitted by s. 258(1)(c), and that that also would be a somewhat technical non-compliance with the as soon as practicable provisions.

The s. 498 Code and s. 9 Charter Issue

[176] With respect to the s. 498 Code / s. 9 Charter breach allegation advanced by the defence, she, of course, agrees with Mr. Little that even if the Court finds a breach as a result of that three- or four-hour overholding, it would not justify a s. 24(1) Charter stay of proceedings. In addition, Ms. Watson submits that it would not even substantiate a finding of a breach of those rights. For this submission, she relies on the case of R. v. Price, supra.

[177] Ms. Watson referred the Court to the case of R. v. Burns for which she did not provide a distinct citation, but indicated that it was delivered in the year 2000 as a Superior Court of Justice summary conviction appeal decision wherein an individual had high readings and that person was held for five hours with no explanation given on the evidence from any of the officers for that length of time before release. I have since done my own research and found that case to be cited as R. v. Burns, [2000] O.J. No. 1743. Ms. Watson submits that the trial judge had found it to be a case similar to what Mr. Little is suggesting in this case, in that the individual had fallen through the cracks and, in that case, he found that there was no breach of Mr. Burns' s. 9 Charter right.

[178] Ms. Watson asks the Court to consider whether or not the detention was arbitrary, capricious or despotic, using the language of some of the common law precedents upon which she was relying. She referred the Court to cases such as R. v. Burns, supra, R. v. Agostinelli, R. v. McGovern, R. v. Gaudette, R. v. Janus, R. v. Sapusak. She did not provide citations for these cases, but indicated to the Court that they were all decisions where the person had been held for anywhere from 7 to 11 hours before release and in the case of Mr. McGovern it was 11 hours even though someone was available to pick Mr. McGovern up.

[179] The point that Ms. Watson seemed to be making is that even if the Court finds that Mr. Pogson was held for a few hours longer than he should have been, that is an issue that can be resolved in his favour on any eventual sentencing proceeding if the Court happens to find Mr. Pogson guilty of this charge contrary to s. 253(1)(b) of the Criminal Code.

[180] Ms. Watson submits that there is no causal nexus between that overholding and the administration of the breath tests to Mr. Pogson.

[181] Ms. Watson referred the Court to the Supreme Court of Canada decision in R. v. Orbanski, [2005] 2 S.C.R. 3, 2005 SCC 37, also a decision to which Mr. Little had referred in his submissions. The Supreme Court of Canada in Orbanski, argues Ms. Watson, established the fact that drinking and driving investigations have to be necessarily pre-emptive to avoid the serious harm that can potentially be caused by those drivers who are impaired by alcohol or drug.

[182] Therefore, the Crown submits that the Orbanski Court stated that drivers can expect to be stopped and expect to be questioned by police concerning matters relating to the operation of their motor vehicles, as well as related to drinking and driving. She submits that that expectation also goes to the fact that the pre-emptive investigation has to occur in order to formulate the statutory suspicion and grounds that an officer has to form before proceeding further with an investigation. Ms. Watson submits that it should not be a surprise that the Courts have not required the officers to state specifically to an individual the exact reason for their being stopped because, as she submits, the officer at that point may not know exactly what he or she will be investigating once the vehicle is stopped. The officer may have seen a swerve on the road which might cause him to consider a medical issue, a sobriety issue or the fact that the person could be texting on their cell phones. Therefore, the Crown submits that there, of necessity, must be a brief detention period with a brief necessary limitation on the individual's right to be informed promptly of the exact reason for being stopped in order for the officer to ascertain what exactly is happening.

[183] At this point, I will set out para. 31 of R. v. Orbanski, supra, wherein Madam Justice Charron, who is writing the decision for the majority of the Supreme Court of Canada, stated:

The Crown conceded that Orbanski and Elias were each detained within the meaning of s. 10(b) of the Charter when pulled over by the police. In my view, this concession was well founded. In each case, the degree of compulsion or coercion necessary for there to be detention was present as defined in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and reiterated in R. v. Thomsen, [1988] 1 S.C.R. 640. It also accords with the meaning of "detained" under s. 9 as defined in R. v. Hufsky, [1988] 1 S.C.R. 621, and R. v. Ladouceur, [1990] 1 S.C.R. 1257. It may be more readily apparent how being stopped and pulled over by the police amounts to a detention for s. 10 purposes when s. 10(a) of the Charter is considered. I suspect every motorist would fully expect "to be informed promptly of the reasons" why he or she is being stopped.

[184] This paragraph was quoted for the Court by Mr. Little in his own submissions.

[185] Ms. Watson submits that the cases of Kumarasamy, supra, and Daw, supra, are factually very similar to the facts revealed by the evidence in the case at bar.

[186] The Crown submits that the interaction between the accused and P.C. Bhalla wherein the officer stopped his vehicle and told him that he had stopped him for erratic driving after which he asked questions about the alcohol consumption of Mr. Pogson complies completely with the rationale of the common law authorities on what s. 10(a) of the Charter requires of a police officer after stopping an individual. She submits specifically that the application of Kumarasamy and Daw to those facts should allow this Court to find that the informational component given by P.C. Bhalla to the accused, Mr. Pogson, was sufficient to satisfy the requirement under s. 10(a) of the Charter.

[187] In addition, Ms. Watson asks the Court to find that the same presumption that was drawn by Mr. Justice Dambrot in Kumarasamy, supra, that a driver who has been consuming alcohol and perhaps weaving on the road would have to have known that there was a good possibility that the officer would be asking him about those factors once he was pulled over be applied to Mr. Pogson. She asks the Court to find, pursuant to Kumarasamy, supra, that there was no breach caused by P.C. Bhalla of Mr. Pogson's s. 10(a) Charter right in those circumstances.

[188] Assuming that the Court finds a s. 10(a) breach, Ms. Watson asks the Court to consider the fact that at 1:52 a.m. the evidence is that P.C. Bhalla was waiting for the arrival of the ASD from another location and during that period of time he provided Mr. Pogson with his s. 10(b) rights to counsel, as well as a caution. She submits that at that point at least Mr. Pogson would know exactly why he had been stopped and, therefore, the Court should find that it would be a 4-minute breach at most and not worthy of a s. 24(2) exclusion of the breath tests from the body of evidence on this trial.

[189] In rather graphic language, Ms. Watson concludes her s. 10(a) submissions by saying that the Court really does not have any evidence of what Mr. Pogson's understanding was with respect to the stop by P.C. Bhalla. She submits that when the officer told him, however, that he was stopping him for erratic driving and asking questions about his consumption of alcohol that Mr. Pogson certainly would have turned his mind to, "Oh, crap, I think the police are starting to investigate me for the following reasons."

[190] With respect to the 10(a) alleged breach, the Crown submitted that the Court should find that any breach that may have taken place, and the Crown, of course, argues that none occurred, was very brief in nature, resulting in a few minutes during which Mr. Pogson may not have known exactly why he was being detained. Ms. Watson argues that the Court should find that the officer's actions were executed in good faith and that he was a young officer perhaps learning the ropes and trying to comply with his note taking responsibilities in conjunction with his responsibility to respect the rights of the person whom he was investigating.

[191] In terms of the impact of any s. 10(a) breach, if so found by the Court, the Crown argues that given the brevity of the breach and the fact that Mr. Pogson later proceeded to give a full statement about his alcohol consumption, including what time he began to drink and what time he finished and the quantity of drinks consumed, the impact of this alleged breach must have been minimal on him.

[192] In any event, the Crown argues strenuously that the societal interest in having charges such as this one prosecuted on their merits is very high and that that fact has been recognized by the appellate courts in many precedents.

The ASAP Issue

[193] The Crown also submits that Justice Brophy's s. 24(2) analysis should not be followed by this Court because it tends to run contrary to the majority of precedents dealing with the balancing exercise mandated by R. v. Grant, supra.

[194] Ms. Watson emphasizes that the evidence in this case reveals that there is only an 8-minute period of time where the breath tests were outside of the two hours contemplated by s. 258(1)(c). In any event, the Crown submits that it is not concerned about trying to rely upon the presumption in 258(1)(c) because of the fact that the tests are outside of the two hours.

[195] In particular, the Crown argues that the reason provided by the Intoxilyzer technician for the delay in testing Mr. Pogson was perfectly reasonable in the sense that he had to deal with another set of breath tests on someone who had been brought in by the OPP to the same station just ahead of Mr. Pogson. The standard required by Parliament for the administering of the breath tests is "as soon as practicable", and not as soon as possible, the Crown reminds the Court. Ms. Watson submits that the breath tests in this case were taken as soon as the breath technician was available after testing the OPP subject and that that would be considered obviously to be as soon as practicable.

[196] On the issue of whether or not, as Mr. Little has argued, the officer should have tried to put Mr. Pogson in touch with counsel while they were waiting around in the sally port to get into the station, if, in fact, he was so concerned about protecting the s. 10(b) rights of Mr. Pogson, Ms. Watson submits that there is no air of reality to that suggestion because a phone call cannot be made to duty counsel in the appropriate manner requiring a call back to the designated phone in the station from the sally port, especially when the waiting time to have Mr. Pogson admitted into the station was uncertain at that time.

[197] In conclusion, the Crown argues that the Court should not find that there were any Charter breaches in this case and if the Court does find a breach, especially of s. 10(a), under the circumstances and in the context of the totality of the evidence, the Crown submits that the breach would be so minimal that it should not attract the application of s. 24(2) of the Charter to exclude the breath tests from the evidence.

[198] Otherwise, the Crown submits that all of the essential elements of this s. 253(1)(b) charge have been proven beyond a reasonable doubt.

Reply by Mr. Little

[199] Mr. Little was given leave to reply to the Crown. First of all, he reminded the Court that simply because breath tests are taken barely within the two-hour time period provided by Parliament, that does not mean that they would be considered to have been taken as soon as practicable in the context of the common law decisions on that particular issue.

[200] Secondly, Mr. Little stated that he wanted to be very clear about his s. 10(a) Charter breach submissions. He stated that he is only seeking a ruling that there was a s. 10(a) breach from approximately 1:48 a.m. until 1:50 a.m. when his client was asked to exit the motor vehicle. He conceded that when P.C. Bhalla read the breath demand to the accused that there is no s. 10(a) breach at that point. He specifically stated that he did not want the Court or the Crown to think that he was arguing that the s. 10(a) breach would go all the way to the time of the arrest. He said that it was focused narrowly on that particular time period between 1:48 and 1:50 a.m.

[201] Specifically, Mr. Little stated that he was not taking any issue with the Crown's submissions about the policy context involved in the prosecution of s. 253 alleged offences from a societal standpoint. However, he synthesized his main argument with respect to the s. 10(a) alleged breach in the following words which I have decided to reproduce from page 84 of the transcript of counsel's submissions on August 19, 2014 since I do have the benefit of that transcript:

The difficulty for my friend is only this, the officer said in his evidence, it was very clear, his purpose, what he was thinking was he wanted to get him out of the vehicle because he was engaged in an impaired investigation. He wanted to get him out to make observation of him. He said nothing to do with preventative anything. It comes back to the fact he should've been advised as to why it was that he was being told to exit the motor vehicle, and he wasn't. So, I don't want Your Honour to think that there is something in Orbanski or in Smith, or the fact that we want to have police officers doing preventative things that has any impact on Section (10)(a). The officer was entitled to do everything he did, he just left one step out. He should've advised my client why it was that he was being asked to exit the motor vehicle.

[202] Finally, very candidly and very fairly once again, Mr. Little reminded the Court and the Crown that he agrees that there is no causal connection between the overholding of the accused in detention aspect of this case and the legality of the seizure of the breath samples from Mr. Pogson. He stated that the argument is simply that the Court should be able to use that overholding as one factor or one circumstance relevant perhaps to the impact of any other breaches that the Court may find occurred with respect to the accused's Charter rights on that evening, but only if the Court finds that one or more other breaches did occur.

[203] This concluded the submissions of both Crown counsel and defence counsel, and I then reserved my judgment to October 21, 2014. On that date I was not prepared to render this judgment and I further reserved it to January 21, 2015 and this written judgment contains my rulings on all of the Charter applications within this case and my ultimate verdict.

[204] I do wish to thank both counsel, if I may say so, especially Mr. Little, for the very thorough and professional manner in which he argued this case. He drew the Court's attention to some matters which I have never had to decide before and, as I have probably stated on one or two occasions throughout this summary, his candour with respect to certain points that were being argued and the respective weight to be attached to some of the arguments was very much appreciated and very professional indeed.

[205] These comments are not meant to minimize the arguments of Ms. Watson for the Crown either. She also presented a very thorough and professionally prepared response to these Charter applications. It is simply that the defendant/applicant, of course, is the one who has to mount the challenges and, in so doing, often has to plumb the depths of research and contextual creativity and many different precedents to try to establish the breaches that are alleged and, for that reason, I commend the professional effort of Mr. Little.

Analysis

The Section 10(a) Charter Application

[206] As previously stated, both Mr. Little and also the Crown, Ms. Watson, are in agreement that the rationale expressed by Mr. Justice Dambrot in R. v. Kumarasamy, supra, is inextricably connected and, from a principled standpoint, absolutely applicable to Mr. Pogson's case. Having now had the opportunity of carefully reviewing and considering the Kumarasamy decision, I too agree.

[207] I am also of the view that it is necessary for this Court to decide whether the factual context on which Mr. Justice Dambrot made his decision on Kumarasamy with respect to the alleged s. 10(a) Charter breach in that case cannot be distinguished, at least significantly, from the factual foundation in the case at bar for this Court. I say that because Mr. Justice Dambrot was conducting a summary conviction appeal and it is my view that his decision to dismiss the s. 10(a) Charter breach application in that case would be binding upon this Court if I found that the issues with which he was confronted and with which he dealt in Kumarasamy were indistinguishable from those issues with which this Court is confronted.

[208] For these reasons, I will set out in this analysis the paragraphs from Kumarasamy which I find to be the most relevant and most salient for this Court's consideration on this s. 10(a) Charter application.

[209] The factual basis for the traffic stop of Mr. Kumarasamy by P.C. MacKay on November 26, 2006 is contained in para. 5:

On November 26, 2006, at about 1:00 a.m., David Young called 911 to report that he had observed the respondent driving erratically. At 1:16 a.m., P.C. MacKay and his partner P.C. Spencer met with Mr. Young, who advised them that the driver was in a black Jimmy at a Shell station. The officers observed the Jimmy pull away from the station, and they followed. In the following few minutes, P.C. MacKay observed the vehicle swerve in its lane, almost hit the curb, over-correct, coast across the lane again and over-correct again. As the officers continued to follow the vehicle, P.C. MacKay observed it to almost hit the curb several times, and at one point almost hit a light post. P.C. MacKay testified that it was a cool evening, there was no precipitation and the pavement was relatively dry. The traffic was busy for an early Sunday morning, and the officers were concerned about public safety if the respondent were permitted to continue driving his vehicle on the highway. They didn't want to let the respondent drive too far, so they activated their emergency lights and pulled the vehicle over. The respondent took a while to stop.

[210] In para. 6 the officer's reasons for stopping the accused are summarized:

P.C. MacKay explained, in cross-examination, that he detained the respondent for public safety reasons, with the intention of ensuring that he was a licensed driver with proper documentation, and assessing why he was driving in an unsafe manner - whether he was impaired by alcohol or drugs, or had a medical problem, or was just tired.

[211] The actions of P.C. MacKay upon stopping Mr. Kumarasamy are summarized in para. 7:

As a result, P.C. MacKay approached the respondent and demanded that he produce his licence, ownership and proof of insurance. He did not tell him why he had stopped him. When asked in cross-examination to explain why he didn't immediately tell the respondent why he had been pulled over, he said that he was fearful that if he told the respondent the reason he was stopped right away, the respondent might have driven away. His practice was to ask to see a driver's licence before explaining the reason for a stop, so that he would be able to identify the driver even if the driver were eventually to drive away without having to enter into a pursuit.

[212] In my view, it is interesting to note that P.C. MacKay gave no reason whatsoever for stopping the accused to Mr. Kumarasamy whereas in the case at bar P.C. Bhalla, it is conceded, did inform Mr. Pogson that he had stopped him because of his erratic driving. Although the officer conceded that he did not make a note of having said that to the accused and he realized that it would have been better practice to do so, that aspect of his interaction with Mr. Pogson has not been challenged and indeed was conceded by Mr. Little.

[213] The remainder of P.C. MacKay's interaction with Mr. Kumarasamy at the scene of the stop is summarized in paras. 8, 9 and 10 by Mr. Justice Dambrot:

[8] The respondent reached for his wallet very slowly and deliberately, and then fumbled through it trying to get his documents out. As the respondent fumbled with his wallet, the officer was able to detect an odour of alcohol, which he believed was emanating from the respondent's breath. The respondent finally handed his wallet to the officer. The officer told him to take it back and remove the documents. After staring at the officer for a few moments, the respondent took the wallet back, fumbled through it and produced the photo card portion of his licence. The officer asked him to produce the second portion of his licence as well as his ownership and proof of insurance. The officer then asked the respondent if he had had anything to drink that night. He replied that he had had a few beers. The officer asked when that was, but the respondent did not reply.

[9] The officer had a suspicion, based on his driving and the odour of alcohol, that the respondent might be impaired, and was "building his grounds." He did not yet have grounds to arrest him. He asked the respondent to exit his vehicle and follow him to the sidewalk so he could speak to him further and reassess his breath. He wanted to make sure that the alcohol he had smelled actually came from his breath, and was not alcohol that had spilled in the car or on his clothing.

[10] P.C. MacKay testified in cross-examination that he did not tell the respondent the reason he wanted him to get out of the vehicle because he did not want to tip him off, with the possible effect of panicking him and causing him to drive away.

Mr. Justice Dambrot's Section 10(a) Charter Analysis in Kumarasamy

[214] At para. 42, Mr. Justice Dambrot found that there is no justifiable argument for the existence of a limitation from a jurisprudential standpoint on a subject's s. 10(a) Charter right similar to the limitation permitted on s. 10(b):

Any argument that the justification for the limitation on s. 10(b) could equally support a limitation on s. 10(a) founders when the rationale for s. 10(a) is considered. The right to be promptly advised of the reason for one's detention fundamentally rests on the notion that one is not obligated to submit to an arrest or detention if one does not know the reason for it, and secondarily in aid of deciding how to exercise the right to counsel under s. 10(b). (See R. v. Evans, [1991] 1 S.C.R. 869 at pp. 886-887.) Having regard to the limitation placed on s. 10(b) in the roadside screening context, when considering s. 10(a) in this context we can only be concerned with the first of these two rationales. But that rationale alone is sufficient to reject the notion of a limitation on s. 10(a): a detained person still has the right to know why they have been detained, so that they can consider whether they must submit to the detention.

The Issue of the Sufficiency of the Informational Component in a Section 10(a) Charter Application

[215] Mr. Justice Dambrot considered and compared the rationales of a series of Supreme Court of Canada decisions cited as R. v. Evans, [1991] 1 S.C.R. 869, R. v. Latimer, [1997] 1 S.C.R. 217 and R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. He stated in paras. 43 and 44 of Kumarasamy:

[43] While there is no limitation on s. 10(a) in the roadside screening context, nonetheless the courts have not taken a formalistic approach to the adequacy of the information given to a person who has been arrested or detained. This is also plain from Evans. There the Court focused on substance over form, specifically what a person can reasonably be supposed to have understood, rather than the precise words used. McLachlin J., as she then was, stated, at p. 888:

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

[44] Similarly, in R. v. Latimer, [1997] 1 S.C.R. 217, Lamer C.J. stated for the Court, at paras. 31-2:

[31] There is no doubt that Mr. Latimer was not told that he was under "arrest"; he was told that he was being "detained". Nor was he explicitly told that he could be charged with murder. However, as with determining whether there has been a de facto arrest, when considering whether there has been a violation of s. 10(a), one must look beyond the exact words used...

[32]... On the facts of this case, I have no doubt that the trial judge was right in finding that Mr. Latimer understood the basis for his apprehension by the police and hence the extent of his jeopardy. He knew that his daughter had died, and that he was being detained for investigation into that death. Constable Lyons prefaced his comments in the car by saying "what I am about to say has very serious consequences". Mr. Latimer was then informed of his right to counsel and his right to silence, which clearly conveyed that he was being placed under arrest. Finally, he was told that he could not go into his own house by himself to change his clothes. It is clear on these facts that Mr. Latimer knew that he was in an extremely grave situation as regards his daughter's death, and that s. 10(a) cannot be said to have been violated.

[216] In para. 45 Mr. Justice Dambrot dealt with the argument made by the respondent, Mr. Kumarasamy, who was represented by Mr. Little himself, that the approach in Evans and Latimer "may have been overtaken by the decision of the Supreme court in R. v. Mann", supra. He also dealt with para. 21 of the Mann decision which Mr. Little has also relied upon in part in his argument in favour of Mr. Pogson's s. 10(a) Charter application:

The respondent suggested that this approach may have been overtaken by the decision of the Supreme court in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. In particular, he referred me to paragraph 21, where Iacobucci J. stated, in obiter, "At a minimum, individuals who are detained for investigative purposes must therefore be advised, in clear and simple language, of the reasons for the detention." I find myself in agreement with Hunt J.A. in R. v. Carrier (2008), 2008 ABCA 134, 90 Alta. L.R. (4th) 279 (C.A.) and Paperny J.A. in R. v. Lund (2008), 2008 ABCA 373, 70 M.V.R. (5th) 43 (Alta. C.A.) that Mann has not overruled or modified the approach taken to s. 10(a) in Evans and Latimer. In Lund, after considering the issue in some detail, Paperny J.A. stated, at paragraphs 15-16:

15 Lund also suggests that Carrier does not settle the law on the point. He submits that the argument in Carrier was that Orbanski and Mann overruled the law set out in Evans, whereas Lund submits that all three Supreme Court of Canada cases can be read together. While the arguments are slightly different, they amount to the same thing: that the law in Evans has been modified by Orbanski and Mann.

16 In my view, the law surrounding the informational component of s. 10(a) is settled. Carrier concluded that Evans remains the law and the informational requirement of s. 10(a) can be inferred from the context or circumstances in each case. The inquiry must be whether, substantively, the accused can reasonably be supposed to have understood the basis for the investigation. That is the precise issue raised here.

[217] At para. 46 Mr. Justice Dambrot refers to the Ontario Court of Appeal decision of R. v. Nguyen, supra:

It would appear that the Ontario Court of Appeal agrees. Recently, in R. v. Nguyen (2008), 2008 ONCA 49, 231 C.C.C. (3d) 541 at paragraph 16, the Court stated that s. 10(a) is complied with when the person arrested or detained is informed "in substance... as to the reason why the restraint is being imposed," "unless the circumstances are such that he or she knows why."

[218] For all of these reasons, I also find that the informational component of s. 10(a) of the Charter is complied with when the arresting officer detaining the individual informs that person substantively of the reason for the restraint upon his or her freedom of movement "unless the circumstances are such that he or she knows why" [emphasis added]. I would only add to that standard the qualifying words used by Mr. Justice Paperny of the Ontario Court of Appeal in R. v. Lund, supra, that the information must be such that the accused can reasonably be supposed to have understood the basis for the investigation, which, as I see it, is an objective standard to be applied by the Court to the totality of the circumstances of the case and it is not dependent upon whether or not the accused testifies on that subject. In this case, there was no testimony from Mr. Pogson viva voce on his motions.

[219] Although Mr. Little has conceded in this case that there is no breach of Mr. Pogson's s. 10(a) Charter right merely because P.C. Bhalla decided to execute a traffic stop upon his vehicle, given the fact that it is conceded that the officer at least told Mr. Pogson that he was stopped because of his erratic driving, I feel that the comments of Mr. Justice Dambrot at para. 61 in R. v. Kumarasamy are apposite to this application in Pogson:

Admittedly, in this case, the officer did not say "I've stopped you to investigate why you're not driving safely." Nonetheless, there was no violation of s. 10(a), as I have said, because the respondent could not help but know that P.C. MacKay had stopped him because of a concern about his unsafe driving, and that the officer suspected that his erratic driving might have been the result of the excessive consumption of alcohol. This flows, once again, from the respondent's awareness that it was late at night, that he had consumed alcohol, that there was an odour of alcohol in his car, and that he was driving erratically. His awareness of the officer's suspicion was undoubtedly quickly heightened when the officer asked him about alcohol consumption. There was no violation of s.10(a) when the officer stopped the respondent.

[220] These statements by Mr. Justice Dambrot were preceded by similar comments in para. 52:

The respondent was obviously aware that it was late at night, that he had consumed alcohol, that there was an odour of alcohol in his car, and that he was driving erratically - in the short time before he was stopped alone he almost hit the curb several times, and at one point almost hit a light post. He could not help but know that P.C. MacKay stopped him because of a concern about his unsafe driving, and that the officer would suspect that his erratic driving might have been the result of the excessive consumption of alcohol. This case falls squarely within what was said in Nguyen: even if the officer had said nothing to the respondent, the circumstances of this case are such that the respondent knew why he was stopped.

[221] Mr. Justice Dambrot then considered the issue of whether or not Mr. Kumarasamy's s. 10(a) right was violated when the officer began to investigate him for an impaired driving offence. At paras. 65 and 66 Mr. Justice Dambrot stated:

[65] I return to what I said before. Both the respondent and the trial judge misconceive the requirements of s. 10(a). From the beginning, the reason for the detention of the respondent was to stop the respondent's unsafe driving and to give P.C. MacKay the opportunity to investigate the cause of it. One obvious potential cause was alcohol. The fact that the officer smelled alcohol in the car increased his suspicion that alcohol was the cause, and focused his attention on that possibility. It goes without saying that an arrest for impaired driving or some similar criminal offence, which might have been the ultimate outcome of the investigation from the beginning, was becoming more likely. But in no sense did the reason for detention change at this point. There was no obligation under s. 10(a) for the officer to communicate anything new to the respondent.

[66] In any event, it is inconceivable that the respondent did not know at this point that he was at risk of being charged with an alcohol-related offence. He was obviously aware that he had been driving erratically, that there was an odour of alcohol emanating from his car, and that P.C. MacKay had had an opportunity to smell it. And if that was not enough to bring the possibility to his attention, he also knew that the officer was thinking about alcohol as a cause of his erratic driving when he asked the respondent if he had had anything to drink that night, and then, when he replied that he had had a few beers, the officer asked when that was.

[222] At para. 67 Mr. Justice Dambrot concluded that:

...there was no violation of s. 10(a) when the officer "began to investigate the respondent for an impaired driving offence," or, to put it more accurately, when the officer formed the suspicion that the respondent might be impaired [emphasis added].

[223] In the case at bar, I note that P.C. Bhalla, while not having detected an odour of alcohol emanating from either the vehicle of Mr. Pogson or from Mr. Pogson himself when he was still behind the wheel after being pulled over, nevertheless just before asking him to exit his vehicle after observing his glossy, red eyes and the squinted nature of his gaze which he said were all consistent subjectively to him with the consumption of alcohol, actually asked Mr. Pogson if he had had anything to drink, to which the accused responded negatively.

[224] Most certainly at that point, from an objective standpoint, it would seem that Mr. Pogson would have to have realized that P.C. Bhalla was investigating him for a possible impaired driving situation, following the rationale of R. v. Kumarasamy, supra, and the cases that were referred to by Mr. Justice Dambrot and which I have referenced in this particular analysis.

[225] In other words, I find that the fact that P.C. Bhalla had told Mr. Pogson that he was pulled over to allow him to investigate his erratic driving and then, even before he was asked to exit his motor vehicle, he was asked if he had been drinking, would amount to sufficient information substantively for us to suppose on an objective basis that he would have realized that it was entirely possible that he was being investigated by the officer for a possible impaired driving charge.

[226] Mr. Justice Dambrot then dealt with the issue of whether or not Mr. Kumarasamy's s. 10(a) Charter right had been violated when P.C. MacKay asked him to step out of his vehicle, which is precisely the argument that Mr. Little has made in this case of Pogson, even after conceding that the initial information provided by P.C. Bhalla to Mr. Pogson after stopping his motor vehicle complied with s. 10(a). Mr. Little is strongly of the view that there is a change of direction in the investigation when the officer decided to ask Mr. Pogson to exit the vehicle, having it firmly in his mind that he was going to investigate him for a possible impaired charge and, as the officer stated, regardless of what answer the accused may have given to him when he decided to again ask him if he had been drinking earlier that evening.

[227] Mr. Justice Dambrot found that the trial judge had erred in finding that Mr. Kumarasamy's s. 10(a) right was breached when P.C. MacKay asked him to step out of his car without any explanation for the reason for doing so given to him. At paras. 68 and 69 of R. v. Kumarasamy, supra, Mr. Justice Dambrot provides the ratio of the trial judge on this issue and his own repudiation of that finding:

[68] I come at last to the finding of the trial judge that is directly called into question by the appellant. As I have already noted, the trial judge found that P.C. MacKay violated s. 10(a) of the Charter when he failed to inform the respondent of the reasons for his detention when he asked the respondent to step out of his car. She noted that P.C. MacKay "candidly admitted that once he investigated the identity and papers of the accused, his original reason for detaining the accused changed," but that he did not make a breath demand, nor advise him of his right to counsel, nor advise him that he wanted him to perform sobriety tests before asking him to step out of the car. In those circumstances, she said, "it cannot be said that the reason for his further detention should have been obvious to him from the circumstances of the detention. Nor can it be suggested that Mr. Kumarasamy could possible [sic] have been aware that the reason why the police continued to detain him and the jeopardy he was in had changed."

[69] This finding reflects an error in law. I have already stated that in my view, the reason for P.C. MacKay's detention of the respondent did not change at any point prior to the respondent being asked to step out of his car. Nor had it changed when P.C. MacKay actually made that request. Rather, from start to end, the officer was detaining the respondent for public safety reasons, with the intention of ensuring that he was a licensed driver with proper documentation, and assessing why he was driving in an unsafe manner - whether he was impaired by alcohol or drugs, or had a medical problem, or was just tired. Granted, consistent with his reason for stopping the respondent, and because he detected the smell of alcohol in the car, the officer had begun to focus more directly on the possibility that the cause of the erratic driving was impairment as a result of the consumption of alcohol. But this possibility was in his mind from the outset. All that happened throughout this period of time was that P.C. MacKay was narrowing what he suspected was the cause of the unsafe driving. Alcohol was becoming more likely, while drugs, a medical problem and fatigue were becoming less likely. There was no change in the reason for detention, no change in his potential jeopardy, and no new obligation under s. 10(a) - the respondent knew the officer was investigating him for unsafe driving, with alcohol as a potential cause.

[228] At para. 75 Mr. Justice Dambrot emphasizes that the case of R. v. Kumarasamy involved a detention and not an arrest and that, therefore, Mr. Kumarasamy's right to counsel and the requirement of the police to advise him of it in s. 10(b) of the Charter were suspended. He further stated, "Where the right to counsel is not in play, the rationale for advising the accused that he is now being investigated for a different offence disappears."

[229] And at para. 76 he stated:

But even if I am wrong in making this distinction, it is of no moment in this case. The respondent was not being investigated for a different offence at the time he was asked to step out of the car than he was at the time he was first stopped. As I have said, the possibility that alcohol consumption was responsible for the respondent's unsafe driving was under investigation, to the knowledge of the respondent, from the very first moment.

[230] With respect to the decision of Mr. Justice Douglas of the Ontario Court of Justice of R. v. Close, supra, I find that it is significantly distinguishable in the context of the s. 10(a) Charter application in the Pogson case. In Close, Mr. Justice Douglas founded his rationale upon the fact that the investigating officer who stopped and detained Ms. Close gave her absolutely no information for the reason for the stop. At para. 35 Mr. Justice Douglas states:

Where I part company is with the notion that the officer, in unexceptional contexts, as most highway traffic act stops are, need 'say' nothing. To me, that sort of approach turns a citizen's constitutional right "to be informed promptly" by the state into a citizen's obligation to figure out what the state is doing to him, and why: what, that is, is going on. While an individual may be an informed one, because of his or her own knowledge, he is not 'informed' in the context of section 10(a) unless the state takes from positive steps to make him or her so informed.

[231] With great respect to Justice Douglas, I do not agree with his declaration that Mr. Justice Dambrot's comments are "for the most part obiter", at least with respect to Justice Dambrot's analysis of whether or not there was a breach of Mr. Kumarasamy's s. 10(a) Charter right when he was asked to step out of the car. Mr. Justice Douglas links his point on that subject at para. 40:

In that context, Justice Dambrot then analyzes the question of whether 10(a) was violated "when the officer asked the respondent to step out of the car". But he does this on the basis of his previous conclusion that the trial judge had actually made a finding of fact that the D knew of the unchanging public safety reason for the officers various acts of detention. Here, there is simply no basis for such an underlying assumption: at issue is the police failure to advise the D at any stage of the unfolding process.

[232] At paras. 45 and 46, Mr. Justice Douglas finds that the s. 10(a) breach of Ms. Close began with a failure by the officer in charge of the case to provide her with any information in clear and simple language of the reason for the stop and that that unexplained detention simply continued and escalated in degree.

[233] As previously stated but now for emphasis, I repeat, Mr. Little conceded and I would so find in any event that Mr. Pogson was provided initially with adequate and sufficient information by P.C. Bhalla of the reason for his vehicle being stopped, namely for the officer to investigate his "erratic" driving.

[234] For all of these reasons above set out I find that the applicant has failed to satisfy this Court on a balance of probabilities that his s. 10(a) Charter right was breached by P.C. Bhalla and that application is dismissed. Specifically I find that I am bound by the principles and rationale of the decision in R. v. Kumarasamy, supra, as applied to the evidence in this case.

The Section 8 Charter Application Founded Upon the ASD Demand

[235] In view of my ruling that the s. 10(a) Charter application is dismissed, I find that there is no foundation for the establishment on a balance of probabilities of a breach of Mr. Pogson's s. 8 Charter right by virtue of P.C. Bhalla's s. 254(2) demand, now that Mr. Pogson's verbal response to the officer's question of what he had had to drink that evening is admissible. I believe that Mr. Little conceded that result if the s. 10(a) Charter application was dismissed.

The As Soon As Practicable Section 8 Issue

[236] It has been well established for some considerable time in the common law that the meaning of the term "as soon as practicable", in the context of Parliament's requirements that breath samples be taken as soon as practicable after a s. 254(3) demand by a police officer does not mean that the Crown has to establish that the tests were taken "as soon as possible" [emphasis added]. Rather, the accepted test is whether or not on an objective analysis, which considers the totality of the circumstances as revealed by the totality and context of the evidence available to the Court, the tests could be concluded by the Court to have been taken "as soon as practicable."

[237] In this case, unquestionably there is a significant delay between the arrival of P.C. Bhalla with Mr. Pogson in his cruiser at the sally port of 22 Division police station in Peel and the presentation of the accused to P.C. Bell, the qualified Intoxilyzer technician. I accept Mr. Little's submission that the total delay between the waiting in the sally port before entering the police station with Mr. Pogson and the eventual presentation of him to P.C. Bell was approximately 50 minutes.

[238] I also agree with Mr. Little that the evidence is unclear with respect to whether P.C. Bhalla learned that there was an OPP breath test being conducted ahead of Mr. Pogson before he entered the sally port area with the accused or whether it was at some time later that he learned the actual reason for the delay. However, what is undisputed is the evidence and the fact that he was asked to remain in the sally port with Mr. Pogson by presumably an officer from 22 Division who had the authority to do so until notified that he could proceed into the station with Mr. Pogson.

[239] Mr. Little argues that there is no evidence to enable the Court to decide why it was that Mr. Pogson could not have been at least brought into the booking area of the station while the breath test was being conducted on the OPP subject rather than having to wait in the sally port area standing idly by, so to speak.

[240] I agree that there is no precise evidence to that effect, but I find that it is reasonable to assume that the instruction that was given to P.C. Bhalla to remain in the sally port had a causal nexus to the fact that there was another breath test procedure ongoing in the station at the time of P.C. Bhalla's arrival in the sally port, given the fact that there is no dispute that the OPP test procedure had begun before the arrival of P.C. Bhalla.

[241] With respect to Mr. Little's argument that time was wasted by P.C. Bhalla deciding to call duty counsel on behalf of Mr. Pogson inside the station after they finally were admitted inside, I simply refer to Mr. Little's own statement on page 55 of the transcript of August 19, 2014 in his final arguments where he stated at approximately line 18 and forward:

This is after my client specifically said on two occasions he didn't want to speak to a lawyer. But so be it, if the arresting officer wants to go that route, despite the fact that the Court of Appeal in Devries and Justice Doherty has told us there is no obligation of re-read [sic] rights to counsel. I think that it's appropriate that the police should be doing that, they should re-canvas these things back at the station especially to prevent issues being litigated in court, one, and two, most importantly, to make sure that an individual understands that they probably should speak to a lawyer. The complaint is simply this, that could've been canvassed with my client throughout the 20 to 25, 30 to 35 minutes when they were sitting around waiting. The arresting officer's evidence is he didn't, he doesn't know what was going on but we know that nothing was really going on. It should've been canvassed at that point, steps could have been taken, right, but it's not.

[242] After making those submissions, Mr. Little emphasized that the evidence of P.C. Bell, the breath technician, was that he was prepared to receive Mr. Pogson as early as 3:30 a.m., but he was not brought into him until approximately 3:45 a.m. Mr. Little attributes that additional 15-minute delay at least partially to the fact that P.C. Bhalla decided to call duty counsel after he and Mr. Pogson had been able to finally get into the station as opposed to canvassing that issue and making the attempt to call duty counsel while waiting around dragging their feet in the sally port beforehand.

[243] He submits that the totality of the evidence concerning these two periods of delay should leave the Court in a position where it cannot find that the actions of the police with Mr. Pogson during that period of time were reasonable and, therefore, that 50-minute period of delay should be considered to be unreasonable delay leading the Court to a conclusion that the breath tests were not taken as soon as practicable.

[244] His final submission on that point is that if the Court concludes that the breath samples were not taken as soon as practicable, regardless of whether or not they were within or outside the two-hour period, which is not the issue in this case, he submits, then Mr. Pogson's s. 8 Charter right was breached by an unlawful seizure of his breath samples, since they were not taken in compliance with s. 254(3).

[245] As part of his submissions, Mr. Little asked the Court to refer to the evidence of P.C. Bhalla and conclude that he had testified that when he left the roadside area with the accused in his custody to drive to 22 Division for the breath tests he was unaware of any possible delay that might occur at that station before the breath tests, or at least that his evidence is equivocal on the point.

[246] The Crown submits that the evidence of P.C. Bhalla reveals that he, in fact, was aware of the possibility of a delay because he was asked about that in his evidence and he said that 22 Division was the only location where he could take Mr. Pogson within the Peel Region on this night in question and that when they arrived he was informed that there was an OPP case that had come in before Mr. Pogson.

[247] I do agree with the Crown at least to the extent that I am satisfied that P.C. Bhalla realized that there was a possibility of delay when he would eventually arrive at 22 Division because of the fact that it was the only location open at that time for the purpose of administering breath tests. As I said earlier, I think the evidence is equivocal with respect to whether or not he actually knew there was an OPP case ahead of him before he arrived in the sally port or whether he learned that some time later and, quite frankly, in my view, it is of no moment or relevance to my ruling on this issue.

[248] P.C. Bell did testify that the OPP case had been commenced before the arrival of P.C. Bhalla with Mr. Pogson and that he has to deal with people in the order in which they are presented to him in the station and he said that he feels the obligation to conduct the tests in a sequential order as people are introduced to him.

[249] I respectfully disagree with Mr. Little that the Court is left in a position of not knowing what was going on at all while Mr. Pogson was waiting in the sally port. The Crown does not have to provide minutiae of detail with respect to each minute of the impugned delay. Rather, from a contextual and overarching totality viewpoint of the evidence, I find that it is sufficient if the Crown at least satisfies the Court that there were reasonable procedures ongoing by the police which either contributed to or actually caused the delay in question.

[250] Obviously, there would be some period of delay between Mr. Pogson arriving in the sally port and eventually being presented to the qualified breathalyzer technician. That delay would normally be at least the period of time required to conduct the booking procedure between the exit of the accused from the cruiser and his eventual delivery to the breathalyzer technician. In this case, I most certainly cannot estimate how long that booking procedure would have or should have taken, but obviously it would have occupied some portion of the 50-minute delay.

[251] In my view, the important factor for this ruling is that I find that I do have an explanation of the fact that an OPP subject was being attended to by P.C. Bell before the arrival of Mr. Pogson and that P.C. Bell continued to conduct those tests until they were completed before he was ready to receive Mr. Pogson at 3:30 a.m., although he did not actually receive him until 3:45 a.m. I agree with the Crown that this procedure being conducted by the Peel Regional qualified breathalyzer technician was perfectly reasonable from an objective standpoint.

[252] With respect to Mr. Little's argument that P.C. Bhalla could have saved some time or better used some of the delay period in the sally port by canvassing with Mr. Pogson whether or not he would like to speak to duty counsel again and then presumably carrying out his own procedure of calling duty counsel on behalf of Mr. Pogson, I agree with the Crown's submission. In the absence of any evidence to the contrary, I find that it would not be reasonable to think that the officer could actually call duty counsel from his police cruiser and ask for a call back from duty counsel to the police cruiser to allow Mr. Pogson to consult with duty counsel in the police cruiser.

[253] First of all, there would be an issue of privacy with respect to that consultation, presumably, and also it could well be that after the call was placed from the cruiser they would end up entering the station for the booking procedure and the call back would end up coming to the officer's phone while he was with the accused in the booking room and, again, the problem with privacy would occur and there would have to be another connection made and the accused allowed to go to the proper room in the station to talk on the telephone in private with duty counsel.

[254] In other words, I am saying that I respectfully disagree with Mr. Little that the officer could have, from a standpoint of reasonableness, conducted that procedure in the cruiser in the sally port. Therefore, always trying to address the issue of what is to be determined on a not as soon as practicable application, I do not find the fact that the officer did not engage in that procedure in the sally port to be unreasonable.

[255] Therefore, if the additional 15-minutes of delay from 3:30 a.m. to 3:45 a.m. are to be attributed at least in part to the efforts of P.C. Bhalla to contact duty counsel on behalf of Mr. Pogson, I find that delay to be reasonable, especially in light of Mr. Little's own submissions to which I referred earlier on that point.

[256] With respect to Mr. Justice Brophy's decision in R. v. McLeod, supra, I can only say that I agree with Mr. Justice Brophy that the requirement that is stated by Parliament in s. 254(3) with respect to a demand being made as soon as practicable, and also that the tests be conducted as soon as practicable, should properly be considered by the Court in evidentiary circumstances where it is argued that that has not been the case regardless of whether or not the Crown seeks to rely upon the s. 258(1)(c) presumption.

[257] However, as my conclusions on this point have indicated, I am not prepared to find that the 50-minute delay in question in this case of Mr. Pogson should be considered to be unreasonable and, therefore, I have concluded that the tests were taken as soon as practicable. In that regard, my conclusion is on a different set of facts from those being considered by Justice Brophy, and I therefore R. v. McLeod [supra] is substantively distinguishable.

[258] In conclusion on this point, I find that the s. 8 application of Mr. Pogson has not been established on a balance of probabilities and, perhaps more appropriately stated, the Crown has justified the warrantless seizure of Mr. Pogson's breath samples by the evidence to which I have referred. I find that the breath tests were taken as soon as practicable and thus there was no breach of Mr. Pogson's s. 8 right on this basis.

The Section 498 Criminal Code Overholding Issue

[259] On this issue, I have carefully considered all of the evidence that pertains to it, including the requirements under s. 498(1)(b) that set out the standard to be applied to the Crown's attempt to establish a justifiable exception to what could appear to be a prima facie case of overholding in any particular case. In addition I have considered the case of R. v. Price, supra, referred to by each of Ms. Watson and Mr. Little in their submissions.

[260] I have also considered the reference document of the Peel Regional Police policy with respect to the release of prisoners that was referred to in the evidence of the staff sergeants who testified on this issue as a result of a decision of Mr. Justice Durno on the point.

[261] I have concluded that I accept Mr. Little's argument that in the totality of the circumstances of Mr. Pogson's detention I can find no justifiable exception under s. 498(1)(b) to his being held in custody until 9:30 a.m. The question of the starting point of that excessive detention period is a little less clear, but I am prepared to say that it would run from at least 6:00 a.m., which I believe was the approximate time when the staff sergeant testified that he was involved with making sure certain other prisoners were being ready to be conveyed across the street to the bail court. It may well have been even a half an hour or an hour earlier, but I am prepared to make the finding that it would be 3 to 3 ½ hours at least.

[262] The Crown relied heavily upon the summary conviction appeal decision of the Ontario Superior Court of Justice in R. v. Burns, [2000] O.J. No. 1743. The Crown submitted to the Court that that was a decision where the subject accused had high BAC readings and was held for five hours before release. Ms. Watson submits that there was absolutely no explanation given in the evidence of any of the officers as to why he was held for the five hours and that the Superior Court Judge and the trial judge seemed to arrive at the conclusion that Mr. Burns had simply fallen "through the cracks." In Burns there was no s. 9 breach found to have been established as a result of that overholding and Ms. Watson asks the Court to make the same decision in this case. Ms. Watson submits that in order for the Court to find a s. 9 breach the issue should be whether or not the overholding was arbitrary, capricious or despotic.

[263] In Burns Mr. Justice Cunningham set out the evidence that formed the foundation for the s. 9 Charter issue at para. 4:

At or about 3:45 a.m., after the work of the breath technician was completed, the appellant was lodged in a cell. He was released at 8:40 a.m. It is this period of approximately five hours that forms what is asserted to be an arbitrary detention. Without going into detail, suffice it to say that there were no reasons given by the arresting officer or the breath technician as to why this particular appellant was incarcerated rather than being released after the charge was laid. The arresting officer stated that the appellant's vehicle had been towed, that the appellant had been polite and cooperative throughout and that he had no particular concerns about his sobriety. It is the position of the respondent that although the appellant was not obviously intoxicated, this does not detract from either the fact that his ability to operate a motor vehicle was impaired, nor from the potential risk he posed to the public. The respondent points to the evidence that the appellant drove his vehicle despite the fact that his blood alcohol level was close to one and a half times the legal limit and says there was no evidence whatever that the police were acting capriciously or for an improper purpose. The respondent submits that the trial judge was entitled to find that the appellant's detention was not arbitrary regardless of who bore the onus on the Charter motion.

[264] At paras. 5 through 8 Cunningham, J. reviewed the common law with respect to the onus of establishing a s. 9 breach:

[5] The appellant argues that in addition to finding the appellant was not arbitrarily detained, but also by effectively assigning the burden of proof to the accused to disprove each hypothetical justification for his continued detention and by denying the appellant either a remedy of exclusion or a stay of proceeding the learned trial judge erred. I disagree. I am satisfied that the burden of demonstrating a violation of s. 9 of the Charter rests with the appellant. In that regard I rely upon the comments of Lamer J. (as he then was) in R. v. Collins, (1987), 33 C.C.C. 1 (3d) at 14:

The appellant ... bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied ... the appellant also bears the initial burden of presenting evidence."

[6] More recently, this subject was considered by the Ontario Court of Appeal in R. v. Flintoff, [1988] O.J. No. 2337 where at page 5, (para. 20) Finlayson J.A. stated:

The burden was on the appellant to show a violation of s. 9 of the Charter

[7] I have also considered R. v. Jamieson, (1999), 131 C.C.C. (3d) 347 and R. v. Kutynec, (1992), 70 C.C.C. (3d) 289, both decisions of the Ontario Court of Appeal

[8] Having found that the burden of demonstrating an arbitrary detention rests with the appellant, I must now consider whether the detention in the present case was arbitrary within the context of s. 9 of the Charter. The appellant concedes there is no universal definition of arbitrary since the issue arises in many different contexts. In relying upon R. v. Hufsky, (1988), 63 C.R. (3d) 14, and R. v. Simpson, (1993), 79 C.C.C. (3d) 500, the appellant argues that there must be some identifiable, reasonable grounds for the detention. That is to say, there must be some "articulable cause" for the detention.

[265] The trial judge's ruling is set out at para. 9:

At trial, the appellant brought an application pursuant to s. 24 of the Charter to either exclude the evidence of the breath readings or to stay the proceedings on the basis that the appellant's s. 9 Charter rights had been violated. The learned trial judge, after carefully reviewing the facts, concluded that the detention was not arbitrary. He concluded his Ruling as follows:

In the result, I am not prepared, upon the evidence presented, to find that Mr. Burns was arbitrarily detained. Even if I am in error, based upon the authority of our Court of Appeal in R. v. Sapusak, a 1998 decision, I would not be prepared to exclude evidence or stay the proceedings.

[266] At para. 10, Cunningham, J. upholds the trial judge on the basis of the evidence of the appellant's signs of impairment and the readings of one and a half times the legal limit:

The appellant agrees that what probably occurred here was that the appellant simply fell through the cracks and that no-one is able to account for this detention. Even if that is so, the appellant says that that is outrageous and that the most appropriate remedy should have been a stay of proceedings. I disagree that the continued prosecution of this case constituted something offensive to society's sense of justice, and I cannot conclude that the approximately five hour unexplained detention was arbitrary in the sense of it being capricious, despotic, tyrannical or autocratic. I conclude that the trial judge was perfectly entitled to make the finding he did given the evidence of the appellant's signs of impairment and the readings of one and a half times the legal limit.

[267] In paras. 11 and 12 Cunningham, J. refers to the Ontario Court of Appeal decision of R. v. Sapusak, [1998] O.J. No. 4148, where the Court found that even if there had been a s. 9 breach it could not be a basis for exclusion of the breath tests because of the lack of a causal nexus between the breach and the obtaining of the breath samples:

[11] In a case referred to by the trial judge, and one which, on its facts, is very similar to the present case, R. v. Sapusak, [1998] O.J. No. 3299 and [1998] O.J. No. 4148 (C.A.), Thomas J. concluded:

Although it is possible that the appellant could have been released earlier, the failure of the officer in charge to do so was not a contravention of s. 498 of the Criminal Code, and did not constitute an arbitrary detention within the meaning of s. 9 of the Charter ... the officer in charge made a decision not to release the appellant in the public interest until his blood alcohol level was safely below 50 rugs. It was not an arbitrary decision on his part which resulted in an arbitrary detention.

[12] The Court of Appeal, in an endorsement decision on appeal from Thomas J. stated:

We are not persuaded that the police in light of the 130 milligrams reading were not justified in detaining the appellant for his own protection. However, in the event that there was an arbitrary detention, it could not, in our view, be a basis for excluding the breathalyzer evidence since there 4 was no temporal or causal connection between the breach and the obtaining of the evidence. Further, this is not one of those clearest of cases that would justify a stay of proceedings.

[268] Finally, at para. 13 he provides his ratio for deciding that the trial judge had not erred in dismissing the s. 9 application:

In my view, that is exactly the situation we have in the present case. There is no evidence that the appellant was detained for an improper purpose, and given the onus upon the appellant it might have been appropriate to have called the cellblock sergeant. The onus is upon the appellant to prove an arbitrary detention on a balance of probabilities. This is not a situation such as that of a warrantless search where the onus shifts. In the case of a warrantless search, there is a presumption of unreasonableness and that is why there is a shifting onus. The same does not apply in the arrest situation. No error in principle has been demonstrated in the present case.

[269] In her final submissions on the subject, Ms. Watson concedes that the Court perhaps should make a finding that Mr. Pogson was held in detention for a longer period of time than he should have been, but that it should fall short of a formal finding of a s. 9 breach and that any impact of that overholding should be considered to the benefit of Mr. Pogson on sentence if the Court happens to find him guilty of this charge.

[270] I agree with the Crown and based largely upon the rationale of R. v. Burns, supra, I find that while there was a period of overholding of between 3 and 3 ½ hours at least in this case, it is not, under the totality of the circumstances, sufficient to establish on a balance of probabilities, which is the onus of the defendant applicant, a breach of his s. 9 Charter right.

[271] I specifically find that the overholding aspect of the detention was not arbitrary. Indeed, there was evidence of a reason for it, which removes it from the category of arbitrary, even if that reason was because the staff sergeant involved was dealing with other police matters, about which there is no issue, which happened to cause him to overlook Mr. Pogson's release for an extended period of time.

[272] In my view, the fact that the staff sergeant and any other police officer involved in dealing with Mr. Pogson on this night in question may have been distracted from their responsibility to consider the appropriate time when Mr. Pogson should have been allowed to have been released, even without a ride to pick him up, by other police duties which had come up unexpectedly and involved some administrative time on the part of the sergeant in charge of the station does not equate to an arbitrariness in the overholding period that resulted for Mr. Pogson.

[273] I have found that Mr. Pogson was properly in custody from the time of his arrest at the scene up to and including the completion of his breath tests with no arbitrariness attached to that period of custody.

[274] I am satisfied that the overholding which I have found would have been properly considered to be unnecessary from approximately 6:00 a.m. to 9:30 a.m., does not amount to a s. 9 breach of Mr. Pogson's Charter right. The standard is one of a balance of probabilities and the burden is on the defendant applicant, and I find that that burden has not been met.

Conclusion

[275] Having dismissed the principal s. 10(a) Charter application and the remaining s. 8x2 and the s. 498 Code /s. 9 Charter applications I find that the essential elements required to be proven beyond a reasonable doubt on this charge have been established to that standard by the totality of the evidence and the accused is found guilty as charged.

[276] Once again, I thank both counsel for their thorough and very professional presentation of this interesting case.

Released: January 21, 2015

Signed: "Justice F.L. FORSYTH"