Court File and Parties

Court File No.: 14-15011565 Date: 2016-06-28 Ontario Court of Justice

Between: Her Majesty the Queen — and — Arash Yousef-Pour-Fard

Before: Justice K. Caldwell

Reasons for Judgment released on: June 28, 2016

Counsel:

• Ms. Tania Monteiro, counsel for the Crown
• Mr. Michael Engel, counsel for the accused

Reasons for Judgment

K. Caldwell J.:

[1] The accused is charged with impaired operation and drive over 80. He was stopped as he left a parking garage in downtown Toronto after watching the Toronto Raptors basketball game at the Air Canada Centre.

[2] He raises numerous Charter motions involving the grounds for arrest, delays in giving the screening and breath demands, delay in administering the approved screening device ("ASD"), plus the violation of his right to counsel of choice.

[3] I will outline the evidence in three sections. The first will deal with the events on scene, the second addresses events at the station, and the third deals with the accused's evidence in relation to the Charter.

[4] Much of the evidence is not in dispute. I will make the necessary factual findings on the disputed points once I outline my analysis of the issues.

Events on Scene

[5] Mr. Thomas Stamos, a private security guard, was watching security footage of the SouthCore Financial Centre (SFC) at 12:54 am. The security cameras show activity in real time and cover the lobby, elevators and underground parking levels.

[6] He saw two men enter the building and they appeared intoxicated. They went down to the parking levels and got into a black Honda Civic. He asked his shift supervisor to call the police and then he went down to the parking area to investigate as he was concerned that they were driving while impaired.

[7] One of the men approached him, confused about where to pay for the parking, and claiming that he lost his ticket. I find as a fact and it is not disputed that this person was the accused.

[8] He asked repeatedly where he could pay and Mr. Stamos told him that he had to go back to the lobby area. The man then tried to convince Mr. Stamos to take cash and just open the parking gate but Mr. Stamos didn't have the ability to do that. The man kept trying to convince Mr. Stamos to do what he asked. Mr. Stamos testified that the man's speech was slurred, he dropped his wallet twice and his keys once, and constantly swayed, unable to stand up straight. He couldn't smell alcohol on the man's breath but he also kept his distance as he was concerned that the man might vomit and he would be hit by the backlash. Mr. Stamos tried to keep up small talk with the man to stall him in order to give the police time to arrive.

[9] Eventually the man seemed to find his ticket. He then got into the driver's seat and exited the parking garage but by that point the police had the exit blocked off. Mr. Stamos passed on his observations to the officers – that the driver was wobbling, swaying, couldn't stand straight, and that he dropped his keys and wallet multiple times.

[10] The security video was played in court. I will give further details of this footage in the impaired driving portion of this judgment.

[11] PC Gordon Hines arrived on scene around 1:10 am. The Civic was at the top of the ramp with the accused in the driver's seat. He smelled alcohol on the accused's breath, noted that his speech was slurred and his eyes were glossy and red rimmed. The accused admitted drinking two glasses of wine at the game. Within minutes PC Hines had determined that an alcohol screening test was warranted.

[12] His partner headed to the station to obtain an ASD as they did not have one in their car. At 1:24 a.m. another officer, PC Tammeorg, arrived on scene with the ASD. Between his 1:10 arrival on scene and the 1:24 arrival of the ASD, PC Hines spoke with the accused, obtained his documentation, and spoke with security regarding their observations. He believed approximately ten to twelve minutes passed between the time he had finished these tasks and the machine's arrival.

[13] The test was administered by PC Hines, and the accused failed the test at 1:32 a.m.

[14] The officer also testified regarding his knowledge of the machine. It was a Drager Alcotest 6810 or 7410 and it had been calibrated on November 4, 2014. He was not sure if he checked the calibration date before or after the machine was administered though he thought he probably checked it beforehand. He didn't know how frequently the machines need to be calibrated but he was sure this machine was within the range because it was calibrated only four days before this incident.

[15] He said that the device can show "pass", "fail" or "warn". "Pass" means no alcohol, "warn" means an alcohol level of between .5 and .8 while "fail" is over .8. He watched his partner perform a self-test and he remembered that his partner received a "0" reading.

[16] He saw the "F" received by the accused. He also heard the even tone and the beep that indicated failure, and he saw his partner show the fail result on the machine to the accused. He admitted that he was not very familiar with the machine and that this was one reason why PC Smith administered the test. He thought that the machine was operating properly though he was relying on PC Smith to make the final determination.

[17] At 1:33 am, the accused was arrested for drive over 80 and placed in PC Hines' scout car. PC Hines provided him with his right to counsel.

[18] 36 minutes later, at 2:09 am, they left for the station. According to the in car video, the officer was entering information into the new police Versadex system, determining the location of Central Traffic, and responding to the accused's comments during that 36 minute period.

[19] If the details are not entered into Versadex on scene, then further delays would occur upon arrival at the station as the details would have to be entered before the accused could enter the booking hall. The system was new at the time but the officer was more familiar with it by the time of trial so such delays would no longer occur.

[20] The officer told the accused while en route that he was going to Traffic Services in order to provide more breath tests. Once in the breath room, PC Hines read the formal approved instrument demand from the back of his memo book.

[21] The officer agreed that the accused wanted to call his own lawyer. He didn't have the name of a lawyer but he wanted to call a friend who would contact a lawyer for him. It wasn't possible to have him do that while he was seated in the back of the cruiser.

[22] PC Smith's testimony mirrored much of PC Hines' testimony. He could not tell if the smell of alcohol came from the driver, the passenger or the car itself. He said it was his call to administer the ASD. He believed it was around 1:14 or 1:15 am when the conclusion was reached to administer an ASD. As he thought the machines were kept at 52 Division, he headed there. The station was only a two minute drive away so he assumed it would be faster to go there to get a machine rather than putting out a call for one over his police radio. He assumed that he told the accused that he was obtaining a machine as that was his usual practice but he had no actual memory of doing that nor any notes on this point.

[23] Once he arrived at 52 Division, he learned that the ASDs were out for calibration so he put a call out asking if there was a car in the vicinity with an ASD on board that could attend. PC Tammeorg arrived at 1:24 am with the machine. The demand was read at 1:29 am and PC Smith began demonstrating the use of the machine immediately after the demand was read.

[24] Both officers agreed that in hindsight the accused should have been given his rights at the scene when he was detained awaiting the arrival of the ASD. A pat down search had been done before putting the accused in the scout car and no cell phone was found on him.

[25] PC Smith was familiar with the machines and knew that 0 to .50 is a pass, .5 to .1 is a warn, and over.1 is a fail. Later he said that a fail would register over .01 and he candidly admitted that he was blanking on the stand regarding the precise readings. He knew that he had to make sure the machine didn't appear damaged, and that the calibration and the display needed to be checked to ensure that it was working properly. He said the machine will register "fail" if there is a fail. He performed the test though he verified that PC Hines read the demand to the accused in PC Smith's presence.

[26] After a self-test, PC Smith provided the accused with a fresh mouthpiece and a suitable sample was provided after a few attempts and some coaching. He did recall two error messages but said they were due to the insufficient air flow from the accused.

[27] Under cross-examination, he agreed that he did not mention in his direct evidence that there was a short tone, or that the display showed "ready" before the test was administered, or that the lamp flashed green but he pointed out that the machine will not operate unless all of those aspects happen.

[28] PC Ghazarian was a new officer at the time of this incident and was simply watching his coach officer, PC Smith, that evening. His main responsibility was to arrange for a tow of the car. He did an inventory search of the car prior to the tow to ensure there were no obvious valuables. He just did a plain view search and looked in the centre console but he did not think he looked in the glove compartment or in the trunk.

[29] PC Tammeorg testified that she arrived on scene four minutes after she heard the radio call for an ASD. She has been with Traffic Services for six years. She verified that the machine was a Draeger 6810 and had been calibrated on November 4, 2014, four days prior to this incident. She always does a check of the calibration and turns the machine on to ensure it is working before she takes it out for her shift. She also saw PC Smith do the self test and show the accused the 0 result. She recalled some issues with the accused not blowing hard enough when he did the test himself. She saw the fail result.

[30] In this case she turned on the machine to make sure it was in proper working order before giving it to PC Smith. If there is an insufficient sample provided, it will display "fault" and if there is a failure of the test the display will show "fail". She also agreed that a fail will be shown by a solid red lamp and that there will be three short tones.

[31] The in car video was also played. I will review more of the contents in the "impaired driving" section.

Events at the Station

[32] PC Hines and the accused arrived at the station at 2:19 am. The accused was booked. At 2:45 am a call was placed to duty counsel. Duty counsel called back three minutes later, the accused was taken to speak to counsel, and that call finished five minutes later. The accused never expressed any dissatisfaction with the advice.

[33] Once in the breath room, however, the accused insisted he had been told not to take the breath test and asked to speak to the same duty counsel once again. The officer called duty counsel back but he didn't know if the original duty counsel spoke to the accused or a different duty counsel. He assumed that he would have asked for the same duty counsel on the accused's behalf but he had no memory of what he actually did nor did he record the name of the first duty counsel.

[34] PC Brett Fogg was the qualified breath technician who administered the breath tests at the station. He got the call at 1:39 am to attend Traffic Services, began setting up the machine at 1:59 am and was ready to take a sample by 2:16 am.

[35] He agreed that the accused wanted to speak to the same duty counsel again after the officer told him how to provide a sample. The officer assumed that PC Hines attempted to locate the same duty counsel. After he returned once again to the breath room he didn't indicate that he wasn't able to speak to the same lawyer nor that he was dissatisfied with the advice.

The Accused's Testimony on the Charter

[36] The accused testified on the Charter applications. He said that he had a cell phone with him in either the glove compartment or the centre console – in fact, he recovered it from one of those places after his car was released by the towing company. He agreed he mistakenly thought his phone was in his pocket while he was in the scout car. He had wanted to call his friend, Mr. Navid Ghahraei, as his friend was an articling student. He assumed his friend would have the names of criminal defense lawyers. He also assumed that his friend would have been awake and reachable by phone given that they often contact each other late at night.

[37] He did not give the officers Mr. Ghahraei's number, even though he had it memorized, because he was never asked. He also agreed that he told the officers he would like to speak to duty counsel if his friend couldn't find him a lawyer. He said the officers viewed duty counsel as the only viable option.

[38] He spoke to two separate duty counsel and found the entire situation confusing. He had no idea who they were or how credible they were. He didn't complain at the station about the issues with counsel because he said he had been complaining all evening and no one had listened to him thus there was no point in continuing to complain. He had wanted to speak to duty counsel again partway through the breath room proceedings because he wanted to clarify matters.

[39] After he was charged, he did get in touch with his friend, Mr. Ghahraei and learned that his friend would have referred him to Mr. Arin Ross, a lawyer who operated during the early morning hours and thus could have been reached.

The Issues

Overview

[40] The accused raises four issues:

1. Did both officers possess sufficient knowledge to form the reasonable and probable grounds to arrest the accused based on the test's "fail" result?

2. Did the officers fail to administer the screening test and provide the demand "forthwith" as required in section 254(2) of the Criminal Code and thus violate the accused's section 8 Charter rights?

3. Did PC Hines fail to make the approved instrument demand "as soon as practicable" as required in section 254(3) of the Code and thus violate the accused's section 8 Charter rights?

4. Were the accused's section 10(b) right to counsel Charter rights violated both on scene and at the station?

Knowledge of the Approved Screening Device

[41] Mr. Engel, counsel for the accused, argues that PC Smith's knowledge of the screening device's operation was so deficient that he should not have relied upon the "fail" result to form his reasonable grounds to believe that the accused was operating his car while impaired.

[42] The Ontario Court of Appeal in R v Ho outlined in its brief endorsement that the test is the reasonableness of the officer's belief in the reliability of the screening result, not whether the officer actually knew if the result was reliable.

[43] Mr. Justice Durno in R v Mastromartino et al. also discussed the limited degree of knowledge required of the officer. He noted that the officer does not need to be familiar with the workings of the device in order to administer the test.

[44] Further, it is important to remember that the screening device is not being used to prove that the driver was impaired but only to confirm or reject the officer's suspicion of impairment. It therefore is not necessary for the officer to know the calibration setting, when it was last calibrated or even if it was working properly.

[45] The nature of what is in issue informs what must be proven. Greater rigour of proof would be required if the results were utilized to prove the accused's guilt but that is not the issue at this juncture. What is crucial at this stage is the officer's belief, not the true accuracy of the machine.

[46] I turn then to whether the officer's belief in the accuracy of the fail result was a reasonable belief and I find that it was.

[47] PC Hines was the officer who actually arrested the accused and provided him with a breath demand. As a result, it would be his belief that is the crucial belief in the analysis. He testified that he was relying on the greater experience of PC Smith to administer the test properly though he did see the "fail" result.

[48] I find that PC Hines' belief was reasonable if it was reasonable for him to rely upon PC Smith. Both PC Smith and PC Tammeorg were extensively cross-examined on their knowledge of the ASD and its manual. PC Tammeorg's knowledge was somewhat more extensive than PC Smith's and that makes sense given that she is a Central Traffic officer and thus would be involved in administering the ASD tests on a regular basis.

[49] Neither officer had a perfect knowledge of the intricacies of the ASD nor could either officer cite perfect chapter and verse of all parts of the manual. I note, however, that such detailed knowledge is not required.

[50] I accept the evidence of both officers that the machine appeared to be working properly, that a "fail" was registered through display of the word "fail" and through lights and tone. I accept PC Smith's evidence that he believed that the machine's workings were relatively simple and that he believed there are fail-safe systems in place to shut the machine down if it is not working as it should. I accept that he performed a self-test and that he passed that test. I also accept PC Tammeorg's evidence that the machine was calibrated four days prior, well within the suggested guidelines. Further, I accept PC Hines' evidence that he too noted the "fail" result and that he had no reason to question PC Smith's ability to operate the machine properly.

[51] For all of these reasons, I find that PC Hines' belief that the "fail" result was accurate was a reasonable belief and thus I find that no section 8 Charter breach flowed from this aspect of the evidence.

Administration of the ASD Test and Demand "Forthwith"

[52] The Supreme Court of Canada has held that the testing provisions of the Code must be strictly complied with given that many of the accused's Charter rights are effectively suspended during the testing period.

[53] Section 254(2) requires the ASD test to be administered "forthwith". The "forthwith" requirement also has been held to apply to the timing of the screening demand. Given the interrelation between the provisions and the Charter rights' suspension, the definition of "forthwith" has been tied to the time it takes to consult counsel.

[54] Consultation with counsel does not mean just placing a call to counsel. A Charter breach occurs if the passage of time prior to administering the ASD is lengthy enough to allow for a meaningful consultation. In most cases, the demand is made once the officer forms his or her grounds. In such cases, the relevant passage of time is the period between making the demand and the machine's arrival.

[55] The officers arrived on scene at 1:10 a.m. It makes sense that it took a few minutes to assess the situation and speak to security. I therefore accept their evidence that it took until 1:14 or 1:15 a.m. to conclude that an ASD was required.

[56] The ASD arrived on scene at 1:24 a.m. PC Hines is seen on camera reading the breath demand to the accused at 1:28 am just prior to the test's administration. The test machine was set up and the test administered at 1:32 am.

[57] There are two passages of time that must be examined in this case. The first is the passage between forming the grounds and the ASD's arrival, a time period of nine to ten minutes. The second is the passage between forming the grounds and issuing the demand, a time period of thirteen to fourteen minutes.

[58] The accused testified that his intention was to call a friend, Mr. Ghahraei, who was either a law student or articling student at the time. Mr. Ghahraei does not practice criminal law but he learned that Mr. Ghahraei would have referred him to a friend who practiced in that area.

[59] I accept the accused's evidence that he had such a friend and that the friend's number was stored in the accused's phone. I find, however, that the nine to fourteen minutes in issue in this case would not have been sufficient time for the accused to contact counsel and obtain meaningful advice.

[60] First, the accused's phone would have had to been located. I accept PC Ghazarian's evidence that the phone was not in plain view that night. It is apparent from the in car video that the accused thought he had the phone in his pocket but he acknowledged in his testimony that this was not the case. It would have taken an officer some time to thoroughly search his car in order to find the phone.

[61] Next, a call at 1 am would have had to be placed to Mr. Ghahraei. Mr. Ghahraei would have had to pass on the name and contact info of a criminal lawyer. Assuming that this lawyer would have answered the phone at 1 a.m., it would have taken time for introductions to be made as the person would have been someone unfamiliar with the accused. Then the advice would have followed after this point.

[62] I find that nine to fourteen minutes would not have allowed sufficient time for all of these steps to unfold and meaningful advice to be received.

[63] I therefore find that the ASD demand was given and the test administered forthwith as required by section 254(2) and that no Charter breach occurred.

Provision of the Approved Instrument Demand

[64] There are two branches to counsel's argument in relation to the approved instrument demand. The first relates to when the demand was made and the second involves whether the timing of that demand was "as soon as practicable".

(a) When was the Approved Instrument Demand Made?

[65] Both parties agree that at three different points PC Hines made statements involving taking breath samples. Those were as follows:

• (1) PC Hines read the formal section 254(3) approved instrument demand prior to the administration of the ASD device. In other words, he read the wrong demand initially. An ASD demand under section 254(2) of the Code should have been read but instead PC Hines read the approved instrument demand under section 254(3);

• (2) Once on route, at 2:12 am PC Hines told the accused that they were going to Central Traffic to provide more breath tests;

• (3) PC Hines read the approved instrument demand from the back of his memo book once in the breath room.

[66] Mr. Engel contends that the approved instrument demand was not made until the accused was in the breath room as per point #3 above. Ms. Monteiro argues that the demand was made on scene as per point #1 above or, alternatively, while in the police car as per point #2.

[67] I find that the approved instrument demand was made at point #2, while in the scout car.

[68] Ms. Monteiro contends that it is the substance of the demand that is important, not the form. I agree with her. It is for this reason that I find that the demand as per point #1 does not constitute the breath demand yet the demand as per point #2 does.

[69] The form of the demand made prior to the ASD test conformed to the full statutory wording of section 254(3). The officer intended, however, that this was the demand for the ASD. Undoubtedly the accused also thought it was the ASD demand given that he took the ASD test shortly after that demand was made. Once the ASD test was taken, the accused undoubtedly thought that the testing pursuant to that demand was complete.

[70] I find that the officer's wording in the scout car almost precisely conformed to the wording in R v Boyce. It is for this reason that I find that the words spoken by the officer constitute a demand pursuant to section 254(3).

[71] In Boyce, the appellant argued before the Summary Conviction Appeals Court that his conviction should be overturned given the demand's wording and a lack of nexus between the particular tests taken and the demand that was issued. Justice LaForme, now of the Ontario Court of Appeal, found that the words made out a legal demand but allowed the appeal on the basis of the second argument, an argument that is not relevant in this case.

[72] The Ontario Court of Appeal, however, overturned that decision and restored the conviction. The Court found that neither ground of appeal was valid.

[73] In Boyce, the officer stated "I demand that you provide such samples of your breath as are necessary to determine the concentration of alcohol in your blood and that you accompany for this purpose". Essentially, the officer simply told the appellant that he was required to go with the officer to provide breath samples to determine his blood-alcohol level.

[74] In this case, the officer told the accused that they were going to Central Traffic for further breath tests. It would have been crystal clear to the accused, given the ASD testing, that such breath testing related to his blood-alcohol level. I find that the substance of this wording is basically the same as that in Boyce and that the same amount of information was conveyed. Justice LaForme did note that the demand "perhaps should provide that the test is to be carried out by a qualified technician" but such an omission did not invalidate the demand.

(b) Was the Timing of the Demand "As Soon as Practicable"?

[75] I turn then to the time of the demand and find that the facts in this case on this point are very similar to those in R v Evans – similar in the sense that the demand was not provided as soon as practicable but that the breath tests were taken as soon as practicable.

[76] In Evans, Justice Stribopoulos notes that section 254(3) requires that the breath demand must be made "as soon as practicable" after the officer has determined that there are reasonable and probable grounds to find that the individual is impaired and/or over 80. The Court of Appeal has defined "as soon as practicable" to mean "within a reasonably prompt time", not "as soon as possible".

[77] There is a further "as soon as practicable" requirement in section 258(1)(c) requiring that the breath samples themselves be taken "as soon as practicable" after the time the offence was allegedly committed. The question to be asked is whether the police acted reasonably in circumstances.

[78] There is no question that the demand in this case was not made as soon as practicable. It should have been made immediately upon arrest and was not made until approximately 30 minutes later. Much of those 30 minutes was spent inputting information into the Versadex police system; even PC Hines agreed that the inputting did not prevent him from making the demand at an earlier point. I find that the delay simply stemmed from his inexperience with impaired driving investigations.

[79] As a result, the demand was unlawful and thus the resulting seizure of breath samples constitutes a violation under section 8 of the Charter.

[80] I find, however, that the delay in the scout car did not result in the samples themselves being taken outside the "as soon as practicable" timeframe. As was noted in R v Vanderbruggan, the question is whether the police acted reasonably in the circumstances and I find that they did. PC Hines gave a detailed description of the new police Versadex system, and the fact that it was time consuming initially as the officers became used to it. It is only reasonable to conclude that a new system will take time initially.

[81] Further, I find that the accused's own actions caused much of the delay. A review of the in car camera reveals that the accused talked at great length, despite repeated cautions from the officer, and that he asked numerous questions. His talk was dramatic, emotional and maudlin. The officer exhibited a great deal of patience in the scout car in responding to both the accused's commentary and often repetitive questioning. I infer, however, that it was distracting and undoubtedly only extended the time required by the officer to complete the necessary paperwork.

Right to Counsel of Choice at the Station

[82] I find that there was a breach of the accused's right to counsel of choice once at the police station.

[83] The accused made it clear repeatedly that he wanted to call a friend who would provide him with a lawyer. The accused clarified that the friend was an articling student who could have referred him to a criminal lawyer. The accused also testified that he and his friend are in frequent contact and often in the early morning hours.

[84] I accept the accused's evidence that he wanted to call his friend and I accept that there is a reasonable chance he would have reached his friend and that his friend undoubtedly would have provided him with the name of a criminal lawyer.

[85] I also find that PC Hines did absolutely nothing to facilitate this contact. He did not tell the training officer on scene that the accused needed his phone to locate a counsel. I find as a fact that he made absolutely no attempts to find out the name of the accused's friend or to locate his number. Finally, when the accused clearly wished to clarify matters once again with duty counsel, PC Hines made no attempts to locate the same duty counsel once again.

[86] I therefore find that there was a clear breach of his right to counsel of choice once at the station.

Section 24(2) Exclusion of Evidence Analysis

[87] I have found two breaches – a section 8 breach in relation to the failure to provide the breath demand as soon as practicable and a section 10(b) breach in relation to counsel of choice. Of the two, I find the section 10(b) breach to be the more serious.

[88] The Supreme Court of Canada in R v Grant held that a three prong test must be applied to determine if the evidence should be excluded: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.

(1) The Seriousness of the Charter-Infringing State Conduct

[89] Under this prong the court must determine whether admitting the evidence would send the message that the court condones deviations from the rule of law by failing to dissociate itself from the unlawful conduct. Minor or inadvertent violations fall on one end of the spectrum while wilful or reckless disregard of Charter rights fall on the other end. Good faith will reduce the need for the court to disassociate itself; however, the court must be careful not to confuse negligence with good faith. Further, the court must not reward ignorance of Charter standards.

[90] The seriousness of the state conduct increases with the number of violations and in this case we have two violations rather than one. On the other hand, I find that the delay in providing the breath demand is relatively minor in the overall context of this case. I do not find the officer's actions wilful, reckless or even negligent in this regard. The officer was not accustomed to impaired driving investigations, he has not done one in many years, and they are highly technical in nature. It is clear that he was attempting to take the correct steps though he was obviously struggling. Standing alone, I do not find this delay serious.

[91] The counsel of choice issue is more concerning. This right arises whenever there is an arrest for any type of offence thus the officer's unfamiliarity with impaired driving investigations cannot explain his conduct. I infer that the officer viewed the right to counsel as a box that had to be checked off in the course of the investigation rather than appreciating that the right had to be adhered to in substance, not simply form. This particular breach is more serious and leans in favour of exclusion.

(2) The Impact of the Charter Violation on the Accused

[92] This branch of the test favours admission.

[93] The delayed demand had no impact on the investigation's course. Further, I infer that the delay in informing the accused of the reason for his detention in the police car and trip to the station had no impact upon him having watched him on the in car camera. He was very focussed at that point on informing the officers that they were ruining his life by arresting him and berating them for doing same – it is clear that he didn't turn his mind to his detention or the reason they were going to the station until he was told that they were enroute to obtain further breath samples.

[94] The delay regarding counsel of choice is more problematic. I note, however, that he had not just one but two opportunities to speak with counsel, albeit duty counsel. I do find that he wanted to speak to the first duty counsel again; however, he did not seem to be at all concerned with the change in duty counsel after the second conversation. Further, he appeared quite satisfied with the advice he received the second time and made no complaints.

[95] The accused testified that his apparent contentment was false and that he had basically given up requesting his own counsel as his requests fell on deaf ears. I reject this aspect of his evidence. The accused was very vocal in his demands throughout to the point of verbal aggression. I have no doubt that he would have let the police know if he was dissatisfied with the advice that he had received after his second discussion with duty counsel.

(3) The Importance and Reliability of the Evidence to a Trial on the Merits

[96] I find that this branch of the test favours admission.

[97] The court must determine if the truth seeking function of the trial is better served by inclusion or exclusion of evidence. The reliability of the evidence is an important element of this step of the analysis. Excluding reliable evidence may undermine both the accuracy and the fairness of the trial and bring the administration of justice into disrepute by reducing the public's confidence in the trial process.

[98] The Supreme Court in Grant noted that this branch of the test will usually favour the admission of bodily samples as such evidence is usually reliable.

Conclusion Regarding Section 24(2)

[99] I find upon balancing the three prongs of the test that the evidence should be admitted for the reasons already outlined. I find that the reputation of the administration of justice favours admission. The section 8 breach was relatively minor and did not significantly impact the accused. The section 10(b) breach was more serious but, again, I find that the impact was on the lower end of the spectrum. Further, the breaches did not undermine the integrity of the evidence itself. R v Grant has specified that the analysis usually will favour the admission of bodily samples.

[100] A balancing of the three factors favours inclusion and thus the accused's breath results are admitted into evidence.

Impaired Operation Findings

[101] In R v Stellato, the Court held that any degree of impairment from slight to great makes out the offence.

[102] I have absolutely no difficulty finding that the accused's ability to operate a motor vehicle was impaired by alcohol.

[103] First, I accept Mr. Stamos' evidence regarding his observations of the accused. I also had my own opportunity to view the various video footages of the accused that evening and to draw my own conclusions regarding his state of sobriety.

[104] Mr. Stamos testified that the reason he went down to the parking garage is that he saw two men on camera in the lobby area who appeared intoxicated and who were headed to the parking garage. Obviously it is the actions of the accused that are of concern in this trial and not those of the other gentleman.

[105] It became clear from watching the police video footage that the accused was wearing a red shirt. I agree with Mr. Stamos' observations that the person with the red shirt, the accused, was not walking straight, that he swayed, that his movements were jerky, and that he staggered at one point. The video footage does not appear to be jerking but instead it is the accused who was jerky in his movements.

[106] I also accept Mr. Stamos' evidence that the accused dropped both his keys and his wallet. He was extensively cross-examined on both the number of times and precisely where this happened. I do not find that Mr. Stamos contradicted himself per se but I find instead that he explained these observations with greater detail and precision under more in depth questioning. I also accept this evidence because it is exactly the type of evidence that I would expect him to remember and it was clearly evidence that confirmed his initial suspicions regarding impairment.

[107] I also find that the accused's other behaviour in the parking garage reflected his intoxicated state – his confusion regarding where to pay, his inability to find his ticket and then finding it, and his persistence in attempting to convince Mr. Stamos to let him pay cash and circumvent the use of the ticket at the exit machine despite Mr. Stamos' explanations that he could not do that. I note that an inability to find a ticket and confusion about a pay location standing alone would not be evidence of impairment but I find that this confusion is evidence of impairment when combined and viewed in light of the other observations I have noted both above and below.

[108] Finally, I have watched the accused on the in car police footage for quite some period in time. I also watched him on the booking video. I find that on both videos he appeared very intoxicated. In attempting to articulate why I make this finding, I have some sympathy for the task officers face in articulating such reasons in court. We have all had many occasions to observe drunk people in many social situations. The combination of the various mannerisms and behaviours, seen over time and on various occasions, lead us to conclude in any given instance whether someone is intoxicated. It can be difficult, however, to tease out the individual elements.

[109] In this case, and at the risk of embarrassing the accused, I note that he was by turn dramatic, maudlin, weepy, verbally aggressive and obnoxious. He drooled and swayed within the police car. He repeatedly asked the officers the same questions, particularly on the booking video, and did not give them the opportunity to answer between such questions. Mr. Engel submitted that his reactions fit those of a sober, confused citizen who had been arrested for the first time and was simply attempting to find answers. I disagree. Instead, I find that he appeared and in fact was drunk.

[110] I therefore find that the Crown has proven beyond a reasonable doubt that the accused was impaired when he operated his car that night.

Released: June 28, 2016

Signed: "Justice Kathleen Caldwell"