R. v. Seguin

Court Information

Court: Ontario Court of Justice (at Ottawa)

Citation: 2016 ONCJ 441

Date of Judgment: July 14, 2016

Reasons for Charter and Voluntariness Rulings Released: July 14, 2016

Judge: Allan G. Letourneau, J.

Parties

Crown: Her Majesty the Queen

Accused: Marie-Josee Seguin

Counsel

For the Crown: Gerrard McGeachy

For the Accused: Michael D. Edelson

Trial Information

Trial Dates: October 19, 20, 21, 22, 23 & November 30, 2015

Heard: In Writing (Charter and Voluntariness Phase)

Introduction

[1] At 2:00 a.m. on May 7, 2014 the accused, Marie-Josee Seguin, was operating a pickup truck travelling eastbound on Highway 417 in Ottawa when she was stopped by RCMP Constable Gary Lee because he felt that she was driving erratically.

[2] That stop brings her before me charged with impaired operation and refusing to comply with a s. 254(3) approved instrument (AI) breath demand.

[3] Counsel proposed, and I agreed, that a two phase blended trial was appropriate. The first phase, being a blended Charter and voluntariness voir dire, has now concluded. RCMP Constables Gary Lee, Kelly Zacharkiw, Darren Pelly, and Michael Chenier testified for the Crown. In addition, the Crown filed written evidence, with the consent of Ms. Seguin, that constitutes the evidence of RCMP Constable John Graziano. Ms. Seguin elected not to call any evidence.

[4] Counsel further proposed, and I agreed, that there would be no recalling of the first phase witnesses and that my factual findings in that phase would apply to the trial issues unless either counsel advised the court, prior to such findings, that certain factual issues would be reserved until all of the trial evidence had been called.

[5] This ruling addresses the following four issues:

1. Did Cst. Lee have statutory or common law authority to stop and detain Ms. Seguin?

2. Did he have reasonable and probable grounds (RPG) to arrest her for impaired operation and reasonable grounds (RG) to make the breath demand?

3. Were Ms. Seguin's section 10(a) & (b) rights to counsel violated, and if so, a/ what effect does that have on the breath demand; and, b/ what, if any remedy, should be applied?

4. If there were Charter breaches, should the inculpatory observations by the police and statements made by Ms. Seguin (except those deemed admissible per R. v. Rivera, 2011 ONCA 225) be excluded from admission into evidence pursuant to s. 24(2) of the Charter?

[6] This ruling does not address:

1. Whether, at this stage of the proceedings, the Crown has proven the impaired operation offence?

2. Whether a proper breath demand was made?

3. Whether the Crown has proven that there was an unequivocal refusal to comply with the breath demand?

The Voluntariness Voir Dire

[7] As noted, Ms. Seguin elected not to call any evidence in the blended voir dires. On the evidentiary record, I am satisfied that the Crown has proven beyond a reasonable doubt that Ms. Seguin made the utterances alleged and that those utterances were voluntary and the product of an operating mind.

The Charter Issues

Issue 1: The Statutory or Common Law Authority for the Stop and Detention

The Crown's Position

[8] Mr. McGeachy submits that Cst. Lee had legislative authority for the stop and subsequent investigative detention because the RCMP is a police force for all of Canada without territorial limitations. Furthermore, Cst. Lee is not only permitted to protect the public from danger during the course of his duties as an officer, he is required to do so. He also maintains that there is common law authority for the stop and investigative detention.

Ms. Seguin's Position

[9] Ms. Seguin submits that there was no statutory or common law authority for the stop nor her continued detention for investigative purposes.

[10] If there was statutory or common law authority, she maintains that Cst. Lee did not have either in his mind as the basis for the stop or subsequent investigative detention.

[11] She further maintains that the RCMP do not have lawful authority to stop a motorist on the 417 Highway in Ottawa because they are not a "police force" pursuant to the Ontario Highway Traffic Act; there was no bilateral agreement in place between the RCMP and the municipal or provincial police force; and, at the time Cst. Lee had not been appointed as a "Special Constable". That appointment (Exhibit 10) was made on January 12, 2015 (i.e. 8 months after this stop).

[12] If there was lawful authority for the stop, Ms. Seguin submits that Cst. Lee testified that there was no lawful authority for him to embark upon an investigation yet he did exactly that. Why? Because, as he testified, he "wanted to".

Factual Findings and Ruling

[13] As of the incident date, Cst. Zacharkiw and Cst. Chenier each had 6 years of RCMP police service as a constable; Cst. Lee had 5 years; and, Cst. Pelly had 18 years.

[14] In a general sense, the evidence of all four officers was troublesome.

[15] To begin with, their notetaking was atrocious.

[16] Their failure to make substantive and contemporaneous notes regarding the incident resulted in testimonial gaps in their memories regarding the events and detracts from the overall reliability of their evidence.

[17] Cst. Zacharkiw arrived at the location of the stop in response to Cst. Lee's request for assistance. She arrived at 2:10 a.m.. Cst. Lee tasked her with maintaining visual observation of Ms. Seguin, who was in the back of his police cruiser, while he dealt with other issues. Despite maintaining watch of Ms. Seguin for approximately 20 minutes, she made no roadside notes concerning the events including her observations of Ms. Seguin or her purported utterances.

[18] Her dutybook notes were made after she left the scene with the first entry being made at 4:06 a.m.. Her supplementary occurrence report was completed two weeks later.

[19] She acknowledged the requirement to use quotation marks when purporting to record Ms. Seguin's utterances. Yet, she failed to use quotation marks in her notes and reports when purporting to enter what Ms. Seguin actually said.

[20] Likewise, Cst. Pelly failed to make any roadside notes. He was there for more than 2 hours. His supplementary report was prepared 6 days later.

[21] He was the most senior RCMP officer at the scene and he was Cst. Lee's direct supervisor.

[22] Likewise, Cst. Chenier failed to make any roadside notes. He was there for approximately 1 ½ hours.

[23] In examination-in-chief he said that he believed that he commenced writing his supplementary report the next day. However, in cross-examination he conceded that the report was opened on the computer two months after the incident and that is when he wrote the report.

[24] There are many problems regarding Cst. Lee's notetaking. Those problems have enhanced significance given that he is very familiar with the RCMP's notetaking requirements, specifically s. 25.2 of their Operational Manual (Exhibit 1, Tab 5). In fact, he was in charge of quality assurance regarding notetaking at the detachment that he worked out of in Alberta.

[25] He agreed with Mr. Edelson's suggestion that his original dutybook notes (Exhibit C) are "grossly insufficient". That is a fair characterization of the notes in their entirety. The notes essentially start with him providing Ms. Seguin with her s. 10 Charter rights. Obviously, she had already been arrested. He properly conceded that there is absolutely no information in those notes as to what led to Ms. Seguin's arrest including his grounds for the arrest.

[26] The problems with his second set of notes (Exhibit D) are equally troubling. To start with, the only time notation in those 15 pages of notes is a brief reference that he advised dispatch of the stop at 2:00 a.m.. When asked to explain the lack of time notations, he said that he would give the notes an "F" in that regard.

[27] Furthermore, he conceded that he is required to finish his dutybook notes prior to the end of his shift. Nevertheless, he left the detachment and drove home. Once home, he was too tired to complete the entries on Exhibit D. At 7:20 a.m. he got a "second wind" where he purported to chronicle the more than an hour of interaction that he had with Ms. Seguin at the roadside.

[28] His explanation for making very few contemporaneous notes regarding the incident, including the 40 minutes at the scene of the stop that was spent allowing Ms. Seguin to locate and consult with counsel by telephone, was that his hands were frozen. I do not accept that explanation.

[29] Although Ms. Seguin was using his cruiser to consult, in private, with her counsel there were two other RCMP vehicles present that he could have used to write comprehensive notes and to warm up. As he noted in cross-examination, he did use Cst. Zacharkiw's car to warm up.

[30] He acknowledged that many important details regarding the incident were not mentioned in his second dutybook notes. His explanation for those omissions was that he did not recall those details when he prepared those notes. If I were to believe that explanation that would mean that he had forgotten most of the important details regarding the incident less than 5 hours later. I reject his explanation.

[31] He agreed that he knew that there was a continuing duty to disclose new information to the Crown so it could be disclosed to the accused prior to trial. He said that when he reviewed his notes, the new information that he gave during his testimony had not "come back" to him yet. That explanation is equally incredible and is rejected.

[32] His General Report (Exhibit B) is also deficient. Although he opened that report on the computer at the detachment at 4:36 a.m., in cross-examination he acknowledged that it was actually prepared at home approximately 15 hours later. He further agreed that he made no notes about when he actually prepared that report.

[33] His explanation for not having prepared the General Report at the police detachment was that his colleagues were essentially pestering him about the investigation. That situation could have, and should have, been quelled by him telling his colleagues to leave him alone and him diligently entering the important information regarding the investigation into the computer at that time.

[34] He agreed that—on its face—the General Report purports to have been prepared prior to his preparation of his 15 pages of supplementary dutybook notes (Exhibit D). He also agreed that he should have corrected that false impression before trial, but did not.

[35] The following paragraphs of s. 25.2 of the RCMP's Operational Manual pertaining to notetaking are highlighted:

1.1 Investigator's notes serve to refresh memory, justify decisions made and record evidence. Well documented notebook entries lend credibility to testimony and can substantiate information years after the original entry was made. Inadequate and inaccurate entries in a notebook can compromise an investigation and subsequent prosecution.

1.2 Members must make written and/or electronic notes, at the first available opportunity, in order to articulate observations made and actions taken during the course of their duties.

1.6 Contents of forms, either written or electronic, which are not made contemporaneously to an event are not considered notes and are not a substitute for an investigator's notebook.

2.1 Investigator's notes should thoroughly describe the details of the occurrence and answer: who, what, when, where, why and how.

2.3 Notes should be factual and descriptive enough to explain decisions made.

3.2 Supervisor

3.2.1 Inspect member's notebooks monthly to verify quality and content.

[36] The extent of the failure of all four officers to comply with their own force's notetaking requirements is astounding and disturbing. Cst. Pelly's failure to properly inspect his subordinate officers' notes, which included Cst. Lee at the time of this incident, is also disturbing.

[37] Police officers' notes have attracted greater importance since at least R. v. Stinchcombe, (1991), 68 CCC 3d 1991 SCC.

[38] The officer's notes were so deficient in R. v. Karunakaran, 2008 ONCJ 397 that Justice Armstrong found that they resulted in a violation of the accused's s. 7 Charter rights:

25 More significantly, the officer's notes were insufficient to enable the Crown to provide proper disclosure and resulted in a breach of Mr. Karunakaran's section 7 Charter rights. In this case, as is common practice, the police officer's notes were given to the Crown to disclose to the defence, without any accompanying will-say statements. As such, they constituted the means by which the Crown fulfils its disclosure obligations and assesses its case. They are also the basis on which the defence prepares full answer and defence. In the post-Stinchcombe era, such notes cease to be simply a memory aid. While an officer's notes cannot be expected to record every minute detail, they must contain a complete and accurate record of the significant events in the investigation so as to enable the Crown to fulfill its constitutional obligation to make full disclosure.

[39] The Ontario Court of Appeal in Schaeffer v. Wood, 2011 ONCA 716 emphasized the requirement that police officers take contemporaneous and comprehensive notes (the appeal to SCC, 2013 SCC 71, was on an unrelated issue and does not affect the passage quoted below):

68 OPP Orders confirm officers' professional obligation to take "concise, comprehensive particulars of each occurrence" during an officer's tour of duty: Ontario Provincial Police Orders, June 2009 Revision, at s. 2.50.3. Police officers are trained that their "[n]otes must contain your independent recollections providing an accurate and complete account of police observations and activities" and that "entries are to be made during or as close to the investigation as possible": Ontario Police College, Basic Constable Training Program (Student Workbook -- Evidence) 2008, at pp. 2, 8.

[40] Contemporaneous and comprehensive notes are especially important in drinking and driving cases where often there is no independent evidence available to corroborate the testimony of police officers and there may be appreciable delay from the date of the incident and the conduct of the trial.

[41] The failure of police officers to make contemporaneous and comprehensive notes can affect the court's assessment of the relability and credibility of their evidence. The failure to contemporaneously record important information may result in the court being unable to accept the viva voce evidence in that regard.

[42] Cst. Lee was a very poor witness. The deficiencies regarding his notetaking are profoundly disturbing. Furthermore, his testimony suffers from material inconsistencies, internally and externally, exaggerations and implausibilities. There are portions of his evidence that I completely reject, of which more will be said later in this ruling.

[43] Nevertheless, I accept Cst. Lee's evidence that he stopped Ms. Seguin at approximately 2:00 a.m. because he felt that her driving endangered the public. When he was asked in cross-examination when he first thought that she might be impaired and that her driving was endangering the public his reply was: "When I was behind the driver". In the circumstances, I find that there was an objective basis for his subjective belief that her driving endangered the public.

[44] Admittedly, when he made the stop he advised dispatch of a "traffic stop", and at times during his testimony he used similar language. For example, in cross-examination he agreed with Mr. Edelson's suggestion that it was a s. 216 Highway Traffic Act (HTA) stop. However, I do not accept that his references to a traffic stop meant that when he pulled her over he had a settled intention to charge her with a traffic violation. His notes contain no such information and neither did he testify that he intended to charge her with such a violation. As indicated, I am satisfied that he pulled her over because her driving endangered the public. By pulling her over he was bringing the danger to an end. Furthermore, pulling her over for that reason qualifies as a traffic stop.

[45] Although I do not accept his testimony that she was "all over the road", I am satisfied that she accelerated up the 417 Highway ramp at Isabella Street and onto the highway reaching a speed of approximately 100 kilometres per hour but fairly soon after entering the highway she reduced her speed, considerably; that she made a quick lane change from the middle to the left outside lane followed by a fairly quick lane change back into the middle lane; that—at one point—her driver's side tires ended up on the dividing line of the highway that separates the two lanes; and, that a short time later she came close to veering into an adjacent lane just as another vehicle drove past her in that lane.

[46] I accept his evidence that when he pulled her over he thought that the erratic driving could be indicative of impairment by alcohol, a medical condition, general inattention, or distraction because she might have been using her cellphone while driving.

[47] Accordingly, the stop was not a random stop such as a R.I.D.E. program or an indiscriminate regulatory stop to check for proper licensing, registration and insurance.

(a) Ruling on the Stop - Statutory Authority

[48] The RCMP is a police force of Canada: Royal Canadian Mounted Police Act (RCMPA), R.S.C., 1985, c. R-10, s. 3.

[49] Exhibits 2A (General Duty Protective Policing Standard Operation Procedures "Police Agencies and Jurisdiction (GDPP-PAJ)) and 2B (General Duty Protective Policing Standard Operation Procedures "Traffic Services" (GDPP-TS)) were filed on consent. In addition, counsel agreed that both directives were in full force and effect on the date of Ms. Seguin's arrest.

[50] The RCMP have primary investigative jurisdiction concerning crimes committed in relation to national security or designated protected persons or designated protected sites: GDPP-PAJ (Security Offences Act, s. 2).

[51] The mandate of the Ottawa RCMP's traffic services is to conduct traffic enforcement on federal roadways and properties in the National Capital Region including but not limited to Criminal Code traffic offences: GDPP-TS.

[52] Exhibit 11 constitutes Cst. Graziano's evidence. It consists of a September 24, 2015 email from him to crown attorney, Mr. McGeachy. In the email Cst. Graziano, essentially, provides his opinion that Cst. Lee had no statutory jurisdiction to stop Ms. Seguin. That opinion is based on the following assertions:

• The Royal Canadian Mounted Police Act (RCMPA) does not address traffic enforcement. The provincial and territorial governments have exclusive authority in that regard;

• In Ontario the police force is defined as either the municipal police force or the OPP;

• The Ontario HTA does not define a "police officer" as a "peace officer"; and,

• Section 144 of the Ontario HTA provides the authority for a "police officer" to activate their emergency equipment to stop a motorist. Neither the RCMPA nor the Criminal Code provide such authority.

"Peace Officer"

[53] RCMP officers are "peace officers" for all of Canada: RCMPA, R.S.C., 1985, c. R-10, ss. 3 & 11.1.

[54] The Ontario HTA definition of a "peace officer" includes a police officer or other persons employed for the preservation and maintenance of the public peace: s. 1.

[55] The Criminal Code definition of a "peace officer" is as follows:

"peace officer" includes

(a) a mayor, warden, reeve, sheriff, deputy sheriff, sheriff's officer and justice of the peace,

(b) a member of the Correctional Service of Canada who is designated as a peace officer pursuant to Part I of the Corrections and Conditional Release Act, and a warden, deputy warden, instructor, keeper, jailer, guard and any other officer or permanent employee of a prison other than a penitentiary as defined in Part I of the Corrections and Conditional Release Act,

(c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process,

(c.1) a designated officer as defined in section 2 of the Integrated Cross-border Law Enforcement Operations Act, when

(i) participating in an integrated cross-border operation, as defined in section 2 of that Act, or

(ii) engaging in an activity incidental to such an operation, including travel for the purpose of participating in the operation and appearances in court arising from the operation;

(d) an officer within the meaning of the Customs Act, the Excise Act or the Excise Act, 2001, or a person having the powers of such an officer, when performing any duty in the administration of any of those Acts,

(d.1) an officer authorized under subsection 138(1) of the Immigration and Refugee Protection Act,

(e) a person designated as a fishery guardian under the Fisheries Act when performing any duties or functions under that Act and a person designated as a fishery officer under the Fisheries Act when performing any duties or functions under that Act or the Coastal Fisheries Protection Act,

(f) the pilot in command of an aircraft

(i) registered in Canada under regulations made under the Aeronautics Act, or

(ii) leased without crew and operated by a person who is qualified under regulations made under the Aeronautics Act to be registered as owner of an aircraft registered in Canada under those regulations,

while the aircraft is in flight, and

(g) officers and non-commissioned members of the Canadian Forces who are

(i) appointed for the purposes of section 156 of the National Defence Act, or

(ii) employed on duties that the Governor in Council, in regulations made under the National Defence Act for the purposes of this paragraph, has prescribed to be of such a kind as to necessitate that the officers and non-commissioned members performing them have the powers of peace officers; [s. 2]

[56] In R. v. Nolan, [1987] 1 SCR 1212 the Supreme Court of Canada (SCC) concluded the that Criminal Code definition of "peace officer" "…serves only to grant additional powers to enforce the criminal law to persons who must otherwise operate within the limits of their statutory or common law sources of authority": para. 20.

[57] The GDPP-PAJ directive states that the appointment to peace officer status for an RCMP officer for the enforcement of provincial or municipal statutes must come from the level of government of jurisdiction.

"Police Force" and "Police Officer"

[58] The following definitions are found in s. 2 of the Police Services Act (PSA), R.S.O. 1990, c. P.15:

"member of a police force" means an employee of the police force or a person who is appointed as a police officer under the Interprovincial Policing Act, 2009;

"police force" means the Ontario Provincial Police or a municipal police force;

"police officer" means a chief of police or any other police officer, including a person who is appointed as a police officer under the Interprovincial Policing Act, 2009, but does not include a special constable, a First Nations Constable, a municipal law enforcement officer or an auxiliary member of a police force;

[59] Part II of the Ontario HTA contains the following definition of a "police officer": "includes an officer appointed for carrying out the provisions of this Act". However, Part II does not deal with the enforcement of traffic safety: s. 6(1).

[60] The GDPP-PAJ directive states that by virtue of s. 17 of the RCMPA regulations every RCMP officer has authority to enforce all federal statutes and regulations across Canada unless they are not specifically recognized in the statute as peace officers.

[61] Section 20 of the RCMPA provides for contractual agreements between the RCMP and a province for the use of the RCMP force in aid of the administration and enforcement of laws within the province:

20. (1) The Minister may, with the approval of the Governor in Council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein.

(2) The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein.

(3) The Minister may, with the approval of the Treasury Board, in any arrangement made under subsection (1) or (2), agree on and determine the amount of money to be paid by the province or municipality for the services of the Force.

(4) There may be included in any arrangement made under subsection (1) or (2) provision for the taking over by the Force of officers and other members of any provincial or municipal police force.

(5) The Minister shall cause to be laid before Parliament a copy of every arrangement made under subsection (1) or (2) within fifteen days after it is made or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.

[62] All of the provinces and territories, except Ontario and Quebec, have contractual arrangements with the RCMP that recognizes its officers as "peace officers" within their boundaries with authority to enforce their provincial laws and many municipal laws: GDPP-PAJ.

[63] Section 3(2) of the PSA provides as follows:

3(2) The Solicitor General shall,

• (a) monitor police forces to ensure that adequate and effective police services are provided at the municipal and provincial levels;

• (b) monitor boards and police forces to ensure that they comply with prescribed standards of service;

• (c) . . . . .

• (d) develop and promote programs to enhance professional police practices, standards and training;

• (e) conduct a system of inspection and review of police forces across Ontario;

• (f) assist in the co-ordination of police services;

• (g) consult with and advise boards, community policing advisory committees, municipal chiefs of police, employers of special constables and associations on matters relating to police and police services;

• (h) develop, maintain and manage programs and statistical records and conduct research studies in respect of police services and related matters;

• (i) provide to boards, community policing advisory committees and municipal chiefs of police information and advice respecting the management and operation of police forces, techniques in handling special problems and other information calculated to assist;

• (j) issue directives and guidelines respecting policy matters;

• (k) develop and promote programs for community-oriented police services;

• (l) operate the Ontario Police College.

[64] Section 42 of the PSA stipulates a police officer's duties and powers:

42(1) The duties of a police officer include,

(a) preserving the peace;

(b) preventing crimes and other offences and providing assistance and encouragement to other persons in their prevention;

(c) assisting victims of crime;

(d) apprehending criminals and other offenders and others who may lawfully be taken into custody;

(e) laying charges and participating in prosecutions;

(f) executing warrants that are to be executed by police officers and performing related duties;

(g) performing the lawful duties that the chief of police assigns;

(h) in the case of a municipal police force and in the case of an agreement under section 10 (agreement for provision of police services by O.P.P.), enforcing municipal by-laws;

(i) completing the prescribed training.

(2) A police officer has authority to act as such throughout Ontario.

(3) A police officer has the powers and duties ascribed to a constable at common law.

[65] Section 53 of the PSA deals with the special constable appointment requirements.

[66] The GDPP-PAJ directive states that RCMP officers who have been appointed "Special Constables" for the purpose of enforcing provincial, territorial and/or municipal laws may exercise their discretion to enforce same. However, it also contains the following proviso in that regard:

***Members must clearly understand that the RCMP's mandate in the NCR [National Capital Region] is not as a provincial or municipal police force. As such, members will not, unless the situation warrants our intervention (ex. Dangerous or a risk to the public), be involved in the enforcement of provincial statutes. THE PURPOSE OF OBTAINING THE 'SPECIAL CONSTABLE' STATUS IS TO FURTHER ASSIST US IN THE PURSUIT OF OUR PROTECTIVE MANDATE AND TO ASSIST MEMBERS TO CARRY OUT THEIR POLICING ROLE OF GENERAL AND SPECIFIC DETERRANCE.

[67] Section 216(1) of the HTA provides as follows:

A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[68] In my view, Cst. Lee had no statutory authority to stop Ms. Seguin.

[69] There was no agreement in place between the RCMP and the Province of Ontario or the City of Ottawa authorizing the RCMP to assist the OPP or the OPS in the administration and enforcement of laws within their respective jurisdictions.

[70] Furthermore, as of the incident date, Cst. Lee had not been appointed a special constable.

[71] As stated by then Chief Justice Dickson of the Supreme Court of Canada in R. v. Nolan, supra:

18 The weight of authority points, therefore, to the conclusion that s. 2(f)(i) does not extend the authority of military police to act as "peace officers" throughout a province and in relation to all residents of a province, duplicating the role and function of the civil police. Of course, the mere preponderance of authority is not sufficient in itself to justify a particular conclusion before this Court, unless that authority is grounded in reason and fairness. In the present case, however, authority, common sense and principle all lead to the same conclusion.

19 On the level of principle, it is important to remember that the definition of "peace officer" in s. 2 of the Criminal Code is not designed to create a police force. It simply provides that certain persons who derive their authority from other sources will be treated as "peace officers" as well, enabling them to enforce the Criminal Code within the scope of their pre-existing authority, and to benefit from certain protections granted only to "peace officers". Any broader reading of s. 2 could lead to considerable constitutional difficulties. Section 92(14) of the Constitution Act, 1867 provides that the administration of justice falls within provincial legislative competence. See Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, and Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218. Although the ability of the federal Parliament to create a national police force has never been challenged and any such exercise of authority is presumptively valid, to treat s. 2 of the Criminal Code as a broad grant of authority to thousands of persons to act as "peace officers" in any circumstances could well prompt a constitutional challenge. In the context of division of powers, legislation should be interpreted, when possible, so that it is not ultra vires. The assessment of legislation under the Canadian Charter of Rights and Freedoms is, of course, subject to different considerations. See Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.

20 I would therefore conclude that the definition of "peace officer" in s. 2 of the Criminal Code serves only to grant additional powers to enforce the criminal law to persons who must otherwise operate within the limits of their statutory or common law sources of authority.

[72] In Nolan the SCC specifically held that the authority for the officer's stop of Mr. Nolan could not be the definitional section of the Code, itself (i.e. s. 2 (f)(i)). In my view, the same can be said about the definitional provisions of the RCMPA that provide that the RCMP is a police force for all of Canada and that its officers are peace officers "in every part of Canada" with all "the powers, authority, protection and privileges that a peace officer has by law until the officer ceases to be an officer (e.g. ss. 3 and 11.1.).

[73] In Nolan the Supreme Court of Canada found regulatory authority for the stop because the officer was abiding by established military practice when he enforced the lawful speed limit set for the base during his routine patrol of it. Likewise, there was regulatory authority for the warrantless arrest of Mr. Nolan. The officer's conduct being lawfully authorized in compliance with the terms of s. 2(f)(ii) of the Code (now, s. 2(g)(ii)) meant that he was a "peace officer" pursuant to that definition with the requisite statutory authority to make the breath demand.

[74] Section 14(1)(c) of the RCMP Regulations, S.O.R./2014-281, requires that all officers enforce provincial laws and carry out their duties pursuant to all bilateral agreements between its force and the provinces or municipalities made pursuant to s. 20 of the RCMPA. This must mean that its officers do not have statutory authority to enforce provincial laws in the absence of a s. 20 bilateral agreement (or special constable status by provincial appointment).

[75] Furthermore, that interpretation is consonant with our constitutional division of powers; in particular, the provinces' authority to administer justice within its province: s. 92(14) of the Constitution Act, 1867. As noted in Nolan, para. 19: "In the context of division of powers, legislation should be interpreted, when possible, so that it is not ultra vires."

[76] I agree with Mr. Edelson's position that many of the cases that I found and reviewed on my own, and then requested and received written submissions from both counsel on, support my finding that Cst. Lee lacked statutory authority for the stop.

[77] For example, R. v. Decorte, 2004 SCJ 77, where the First Nation's Constables were provincially appointed, with no territorial limits, and they had specific statutory authority for their stop and arrest given that s. 54(3) of the PSA conferred upon them the powers of a police officer for the purposes of carrying out their specified duties which, by written agreement, included preserving the peace, order, and public safety; and, preventing crimes and assisting others in that respect.

[78] Likewise, in R. v. Stephens statutory authority for the First Nation's officers' stop of a suspected impaired driver just outside the boundaries of the reserve was established on the basis of their provincial appointments as "peace officers" under the PSA without any stipulated derogation of their territorial jurisdiction for the entire province.

(b) Ruling on the Stop - Common Law Authority

[79] Ms. Seguin is not denying that the RCMP have common law jurisdiction to detain a motorist traveling on Ontario's highways in certain circumstances.

[80] She submits, however, that "Cst. Lee had no clue what authority he purported to be exercising during the actual stop" [emphasis added by boldfaced italicized font, Written Submissions: Defence Charter Argument, para. 93]. Accordingly, she maintains that he "was not acting pursuant to a particular common law power" when he stopped her; and, "his continued conduct did not amount to a justifiable use of the police powers associated with that duty": Written Submissions, para. 93.

[81] Although Cst. Lee did testify that he had no authority for the stop and the investigative detention, the Court is tasked with determining whether his belief is accurate.

[82] Furthermore, and in a general sense, I am satisfied that when he gave those answers during his testimony he was referring to his belief as of that moment (in other words, what he believed when he testified in this matter), as opposed to what he believed at the time of the incident. Two small portions of my non-verbatim trial notes regarding Mr. Edelson's cross-examination of Mr. Lee on October 21, 2015 (being his 2nd day on the stand) are provided as examples in that regard:

Example 1 (p. 46 of my trial notes)

Q. you assumed maybe a drunk driver, danger to public—a decision—the basis for legal authority—felt driver a danger to public?

A. yes.

Q. you had no other authority to stop on 400 highway except danger to public?

A. no. (in other words, correct)

Q. you knew under HTA and rules and regns you had limited jurisdiction?

A. under O HTA

Q. no under own regns as well.

Q. you knew you needed a legal rationale to stop someone?

A. what was that.

Q exception not rule that RCMP officers might stop driver on 400 highway?

A. correct.

A. yes [I] had no authority at time to stop under HTA —because not a special constable then.

Q. you had to evoke some other authority—exceptional authority?

A. yes.

Example 2 (p. 48-49 of my trial notes)

Q. did you read exhibit 2a—General duty protective policing--recently?

A. no

A. yes I did read that material in some other format.

A. I read a document provided to me 2 weeks before my transfer to ontario.

A. he cant tell us 2A is the same document

A. it looks a lot like what he read.

Q does it give you authority to stop motorists not on NCR property

A. no

A. no authority under HTA for traffic stop not on NCR

A. right in Ontario—no delegated powers under Criminal Code in places other than NCR related property. True.

Q. so you knew no lawful statutory authority to stop?

A. correct.

[83] Continuing on that point, the following is a portion of my non-verbatim notes of Mr. McGeachy's re-examination of Cst. Lee regarding the "authority issue":

Q. Re: lawful authority—at least once you agreed with Mr. Edelson -no lawful authority to continue investigation?

A. no, I don't recall my answer.

Q. what did you mean no lawful authority to do investigation?

A. I don't know in relation to lawful authority or the jurisdictional Issue.

[84] I am satisfied that when Cst. Lee pulled Ms. Seguin over he believed that he had lawful authority to pull her over, to detain her to investigate the probable cause of her erratic driving, and to proceed with provincial or federal charges if requisite grounds existed. Yet, I am also satisfied that he was incapable at the time of the stop, as well as when he testified in these proceedings, of properly identifying the source of such authority.

[85] I am satisfied that the authority that he had mind when he stopped her was nothing more than he is a police officer, on duty, and he needed to stop her because her driving endangered the public.

[86] I agree with Mr. Edelson's submission that at the time of the stop Cst. Lee did not address his mind specifically to the issue of common law authority.

[87] I also agree with Mr. Edelson's submission that in cross-examination Cst. Lee agreed with him that he had no authority to stop Ms. Seguin, to detain her for investigation, or to proceed with the offences he ultimately charged her with. As indicated, my interpretation of such evidence is that he agreed at trial that ultimately he had no jurisdiction rather than he knew at the time that he had no jurisdiction. In any event, my view is that he is mistaken because the common law provides the authority for those actions.

[88] I would note that there is very little in Ms. Seguin's material concerning the law pertaining to the issue of common law authority for a stop of a motorist whose driving endangers the public or for the further detention of such a motorist for investigatory purposes.

[89] The defence Written Submissions: Defence Charter Argument prefaces the s. 8 Charter issues with:

126. Assuming for a moment that Cst. Lee had some authority to stop and then investigate Ms. Seguin and was acting pursuant to that authority, the Applicant argues that the Crown has still not established on a balance of probabilities that Cst. Lee had "reasonable and probable grounds" to arrest Ms. Seguin for impaired driving and to make a breath demand.

[90] Thereafter the written submissions focus on the evidence in this matter and, in particular, Cst. Lee's testimony concerning his own beliefs regarding the authority, or lack thereof, for his actions.

[91] As previously noted, I have accepted Cst. Lee's evidence that when he was following Ms. Seguin he felt that her driving was endangering the public and I have found his belief was objectively reasonable in the circumstances.

[92] In my view, he had lawful authority based on the common law to stop Ms. Seguin to protect the safety of the public. He was on duty engaged in his police duties at the time he came upon her. Exercising such authority in those limited circumstances is consistent with his general duties under the RCMPA and is a justifiable use of his power to protect our citizens and does not signify a wilful or flagrant infringement of our constitutional division of powers.

[93] In the totality of the circumstances the danger to the public necessitated an immediate stop. I am satisfied that the stop met all of the common law requirements as set out in the established jurisprudence: e.g. R. v. Clayton and Farmer, 2007 SCC 32; R. v. MacDonald, 2014 SCC 3, and others.

[94] As noted, RCMP officers have a duty to preserve the peace and prevent crime and offences against federal and provincial laws committed throughout Canada:

18. It is the duty of members who are peace officers, subject to the orders of the Commissioner,

(a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed, and the apprehension of criminals and offenders and others who may be lawfully taken into custody: RCMPA.

[95] In R. v. MacDonald, supra, the Supreme Court of Canada reaffirmed the common law duty of the police to protect life and safety in the context of a police officer forcibly entering the accused's residence when he refused to indicate what he was holding in his hand behind his legs. As it turned out, it was a loaded handgun. Given the finding that the officer's actions were authorized pursuant to the common law duty to protect and keep us all safe, the Court held that there was no s. 8 Charter breach.

[96] The Court indicated that whether the common law duty authorizes the police conduct will involve a review of the duty to the public good, the necessity of the infringement to fulfill the duty, the nature and extent of the person's liberty interests, and whether the manner in which the infringement occurred was reasonable in the circumstances.

[97] Relying on its earlier decision in Mann, 2004 SCC 52, para. 36, the Court indicated that the second part of the Waterfield test involves a balancing of the competing interests:

Thus, for the infringement to be justified, the police action must be reasonably necessary for the carrying out of the particular duty in light of all the circumstances….

[98] In Figueiras v. Toronto (City) Police Services Board, 2015 ONCA 208, the Ontario Court of Appeal noted that the Supreme Court of Canada in R. v. Dedman, [1985] 2 SCR 2, para. 50, indicated that the common law authority for the interference with the person's liberty had to be assessed in light of the importance of the public purpose to be served.

[99] The Ontario Court of Appeal also relied on Dedman for the principle that the right to operate a motor vehicle on a public roadway is not as fundamental as the right to walk our public streets: para. 79. As Doherty, J.A. held in Brown v. Durham Regional Police Force, the right to drive is a qualified right.

[100] I agree with Justice Dawson's finding in R. v. Vander Griendt, 2015 ONSC 6644 that the common law jurisdiction for an officer to stop and detain a person is contextually based and, in the context of the regulated activity of driving, with the potential dangers and harm associated with the activity, an officer need not have reasonable suspicion that an offence has been committed to effect the stop and detention.

[101] The stop in R. v. Campbell, 2009 ONCJ 157 (a case highlighted in Ms. Seguin's Written Submissions) was based on nothing more than a "hunch" that the driver may be impaired or the vehicle stolen based on someone in the vehicle saying "oh shit" as they drove by the police. In Campbell Justice Selkirk relied on R. v. Clayton and Farmer, supra, in taking a contrary view to Vander Griendt. With the greatest respect, I believe that his reliance on Clayton and Farmer was misplaced.

[102] In Clayton and Farmer the Supreme Court of Canada held that the police were acting with common law authority when they stopped and detained the vehicle Clayton and Farmer were in as they tried to leave the area where a 911 caller indicated that 10 "black guys", 4 displaying handguns, were standing in close proximity to a club. The Court came to that conclusion despite the fact that their vehicle did not match the description that the caller gave of the 4 vehicles implicated in the situation.

[103] In delivering the majority decision Abella, J.A. agreed with Doherty, J.A.'s view (writing for the unanimous decision of the OCA in overturning the trial convictions for both accused for carrying a concealed weapon and possessing a loaded prohibited firearm) that "it is ... well established that the police power to interfere with individual liberties reaches beyond those powers specifically enumerated in statutes":

Doherty J.A. accepted that the first prong of the analysis was met in this case. In his view, which I share, the police "were clearly acting in the course of their duty to investigate and prevent crime" when they stopped the car and detained its occupants. It is true that the police had no specific statutory authority for the initial stop but, as Doherty J.A. pointed out, and as s. 42(3) of the Police Services Act, R.S.O. 1990, c. P.15, confirms, "it is ... well established that the police power to interfere with individual liberties reaches beyond those powers specifically enumerated in statutes". [para. 23]

[104] However, Abella, J.A. disagreed with the OCA's determination that the accuseds' section 9 and 8 Charter rights were violated because there was no imminent danger and the police did not tailor their intervention to stop only the four vehicles identified in the 911 call.

[105] On the facts Abella, J.A. agreed with the trial judge (Durno, J.) that the police were justified, and had a duty, to stop all vehicles coming from the parking lot based on the information that they had. In doing so she referenced the contextual approach exemplified by several prior SCC's decisions concerning the common law authority for police officers to interfere with a person's liberty:

In R. v. Godoy, [1999] 1 S.C.R. 311, at para. 18, this Court accepted the following test developed by Doherty J.A. in R. v. Simpson, 79 C.C.C. (3d) 482 (Ont. C.A.) at p. 499, for assessing whether police interference with individual liberties was justified:

[T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference. [para. 25]

[106] Abella, J.A., also referenced R. v. Mann, 2004 SCC 52 although in doing so she pointed out the significant factual differences in that case which resulted in her indicating that "… some of the analysis in Mann is nonetheless helpful in assessing whether the police were acting within the scope of their common law powers": [para. 28, emphasis added by boldfaced font].

[107] Notably, neither Clayton and Farmer nor Mann dealt with the common law police powers to stop and detain a motorist in order to preserve the peace and protect the public from danger or harm. In both cases the police were investigating crimes that were reported to their agency. In summarizing the core principles of Mann in Clayton and Farmer Abella J.A. once again emphasized that context is all important:

The Court's most recent delineation of this complex assessment is found in Mann, where Iacobucci J. described the interplay as follows:

... our duty is to lay down the common law governing police powers of investigative detention in the particular context of this case.

... Over time, the common law has moved cautiously to carve out a limited sphere for state intrusions on individual liberties in the context of policing. The recognition of a limited police power of investigative detention marks another step in that measured development. It is, of course, open to Parliament to enact legislation in line with what it deems the best approach to the matter, subject to overarching requirements of constitutional compliance. [Emphasis added; paras. 17-18.]

[Clayton and Farmer, para. 27. The underlined portion is part of the original SCC decision]

(c) Ruling on the Investigative Detention - Statutory Authority

[108] For the reasons provided regarding my finding that there was no statutory authority for the stop I also find that there was no statutory authority for the investigative detention.

(d) Ruling on the Investigative Detention – Common Law Authority

[109] I reject the defence submission that Cst. Lee should not have interacted with Ms. Seguin, at all, after he pulled her over.

[110] Having pulled her over pursuant to the common law power to protect the public he had a duty to promptly advise her why he pulled her over.

[111] Any unreasonable delay in him speaking to her about the stop would be perplexing and unnerving for her. Furthermore, it was necessary to determine in a prompt manner whether allowing her to continue driving would endanger the public.

[112] In my view, the common law authority to conduct an investigation into the probable causes of her erratic driving flows naturally and directly from the stop that I have found to be lawful based on the common law jurisdiction.

[113] I accept Cst. Lee's evidence that he stopped her at approximately 2:00 a.m. and placed her under arrest for impaired operation 2 or 3 minutes later. I am satisfied that the investigative detention was a "justifiable use of police powers associated" with his duty to protect the safety of the public: R. v. Clayton and Farmer, supra, paras. 22-24.

[114] In R. v. Orbanski; R. v. Elias, 2005 SCC 37, the Supreme Court of Canada specifically noted that the common law exists to fill in the scope of police powers where such powers are not expressly defined by statute:

45. … The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective. The police power to check for sobriety, as any other power, [page27] is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference" (p. 35).

[115] In my view, the fact that the OPP have primary jurisdiction to conduct traffic enforcement on that stretch of the 417 Highway, and that the OPS also has jurisdiction to do likewise, does not negate Cst. Lee's common law authority to stop her and to detain her for the purpose of a roadside investigation into the probable causes of the erratic driving.

[116] As the OCA noted in R. v. Stevenson, [2014] ONCA 842 the SCC (R. v. Mann, 2004 SCC 52, R. v. Grant, 2009 SCC 32, and R. v. Loewen, 2011 SCC 21) put an end to suggestions in the earlier caselaw (R. v. Cayer; R. v. Duguay) that an unlawful detention was not necessarily arbitrary for the purposes of the s. 9 Charter analysis:

[54] At trial, the Crown conceded that the appellant's arrest was unlawful but argued that it was not arbitrary as the OPP officers had acted in good faith and reasonably, based on the information provided to them. In accepting that argument, the trial judge did not have the benefit of the Supreme Court of Canada's reasons in Grant. In Grant, the court, applying the approach developed in the context of a reasonableness assessment under s. 8 of the Charter to s. 9, held, at para. 54:

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [Emphasis added.]

[57] Like the trial judge, I think the arrest was unlawful. It follows from Grant that the detention was arbitrary: see also R. v. Loewen, 2011 SCC 21, [2011] 2 S.C.R. 167 at para. 3. The bona fides of the OPP officers who made the arrest and the existence of grounds to detain the appellant for investigative purposes and to ensure the safety of the children do not alter the arbitrariness of the detention, although they are relevant to whether evidence obtained as a result of the arbitrary detention should be excluded under s. 24(2) of the Charter.

[117] Given that the stop and investigative detention were both lawful, neither resulted in a breach of Ms. Seguin's s. 9 Charter rights.

Issue 2: Was the Arrest based on RPG and the Breath Demand based on RG?

The Crown Position

[118] The Crown maintains that Cst. Lee had the requisite grounds to arrest and make the AI demand. Consequently, there was no section 8 or 9 violation.

Ms. Seguin's Position

[119] Paragraph 126 of Ms. Seguin's "Written Submissions: Defence Charter Argument", (which appears at paragraph 89 of this ruling) is reproduced again for ease of reference:

126. Assuming for a moment that Cst. Lee had some authority to stop and then investigate Ms. Seguin and was acting pursuant to that authority, the Applicant argues that the Crown has still not established on a balance of probabilities that Cst. Lee had "reasonable and probable grounds" to arrest Ms. Seguin for impaired driving and to make a breath demand.

[120] I would note that paragraph 126 appears under the s. 8 (search and seizure) heading of the Written Submissions and not in the s. 9 (arbitrary detention) section.

[121] Furthermore, I disagree with Ms. Seguin's assertion that the Crown bears the burden of proving on a balance of probabilities that Cst. Lee had sufficient grounds for her arrest. Ms. Seguin has that onus, not the Crown. I concede that the Crown would have the onus on the s. 9 issue had Ms. Seguin complied with the AI demand and challenged the admission of the test results under s. 24(2) of the Charter.

[122] Furthermore, although the arrest requires reasonable and probable grounds the AI demand only requires reasonable grounds to believe that Ms. Seguin commited a s. 253 offence within the preceding 3 hours. Admittedly, there was a time (i.e. prior to July 2, 2008) when the AI demand required reasonable and probable grounds.

[123] Section 8 protects our right not to be subjected to an unreasonable search and seizure. Had Ms. Seguin provided breath samples pursuant to the demand then it would constitute a warrantless search and seizure. In those circumstances, the Crown has the onus to prove that the warrantless search and seizure of the breath samples by the police was nonetheless reasonable: R. v. Collins (1987), 33 CCC 3d 1 SCC and R. v. Buhay, [2003] 1 SCR 631. The failure of the Crown to satisfy that onus could result in the breath sample evidence being excluded from admission into evidence pursuant to s. 24(2) of the Charter.

[124] To state the obvious, in regards to the refusal charge, if the requisite legal grounds for the AI demand did not exist then Ms. Seguin committed no offence in failing to comply with the demand.

The Governing Principles

[125] The following passage from our Court of Appeal in R. v. Bush, 2010 ONCA 554 summarizes the governing principles applicable with respect to the grounds for an arrest:

36 Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

37 Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80.' (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni at para. 31 and R. v. Shepherd 2009 SCC 35 at para. 23.

38 Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

39 While the SCA judge correctly noted that Storrey involved the validity of the arrest for aggravated assault, not impaired driving, I am not persuaded the trial judge inappropriately applied a reduced standard below reasonable and probable grounds. In Censoni, Hill J. wrote at para. 42:

In Storrey v. The Queen, supra at 323, Cory J. articulated the overarching context of drinking/driving investigations - the need for reasonable balance between the individual's rights to liberty and the need for society to be protected from the menace of impaired drivers. Every year, drunk driving leaves a terrible trail of death, injury, and destruction: The Queen v. Bernshaw, supra at 204; Regina v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 539, 541 per Cory J.A. (as he then was). [emphasis added]

40 In Storrey, Cory J. addressed the importance of the requirement that officers have reasonable grounds as follows at p. 249-250:

The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime.

41 In order to address the problems of drinking and driving, Parliament enacted a two-stage scheme for testing for driver impairment, the first involving roadside breath tests and the second, what has become the Intoxilyzer tests.

42 What the trial judgment and Censoni appropriately examine is the context in which the officer's reasonable and probable grounds obligations operate. Neither advocated a standard of less than reasonable and probable grounds. Both examined reasonable and probable grounds in the context of a roadside investigation, an approach that is consistent with judgments of the Supreme Court of Canada and this court. Even under the Charter, reasonable and probable grounds can mean different things in different contexts: see R. v. Jacques, [1996] 3 S.C.R. 312 at para. 20; Bernshaw, per L'Heureux-Dubé J. at para. 97; Censoni at para. 38.

43 In Golub, Doherty J.A. held that it did not follow that information that would not meet the reasonableness standard on an application for a search warrant would also fail to meet that standard in the context of an arrest, beginning at para. 18:

Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

The justice asked to issue a search warrant based on information provided by a police source is in a very different position than the police officer who is face to face with the complainant. The justice asked to issue a search warrant based on information provided by a police source cannot assess the reliability of that secondhand information without additional information from the officer pertaining to the reliability of the officer's source. The police officer faced with a complaint from a witness to events has information from a firsthand source and can question that source, if necessary. To the extent that the position of the justice and the arresting officer can be compared at all, the officer acting on a complaint from a witness to the relevant events is in a similar situation to a justice who acts on firsthand information provided by the police officer.

44 Doherty J.A. continues in Golub at para. 21:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 48 C.C.C. (2d) 34 (S.C.C.) at 56; R. v. Hall (1995), 39 C.R. (4th) 66 (Ont. C.A.) at 73-75; R. v. Proulx (1993), 81 C.C.C. (3d) 48 (Que. C.A.) at 51.

45 On a subsequent occasion, Doherty J.A. found police in a drinking and driving investigation were involved in making quick but informed decisions whether there were reasonable and probable grounds: see R. v. Smith (1996), 28 O.R. (3d) 75 (C.A.).

46 In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43.

47 There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.

48 The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17. Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang at para. 18.

[126] In making his impairment assessment Cst. Lee is not to ignore evidence that putatively supports an inference of impairment by alcohol even though there may be non-impairment (by alcohol) explanations for such evidence.

[127] In a general sense I agree with Mr. Edelson's summarization (in pages 29 to 45 of the Written Submissions) of the problems with the Crown's evidence in this matter.

[128] At paragraph 42 of this ruling I found that Cst. Lee's testimony suffers from material inconsistencies, both internally and externally, and exaggerations and implausibilities.

[129] Without at all purporting to be exhaustive, I highlight the following.

[130] His testimony that he made contemporaneous notes that were accurate and complete—in the sense of recording the important details—was swiftly and fundamentally destroyed in cross-examination.

[131] In the end he conceded that notes that purported to be prepared contemporaneously with the incident were, in fact, not prepared contemporaneously.

[132] His electronically generated General Report (Exhibit B) that contains time stamps for "Entered time" of 4:35 a.m. and "Report time" of 4:36 a.m. on the morning of the incident, was actually prepared 15 hours later, after Ms. Seguin's fingerprints and photographs were taken.

[133] He agreed that he should have but did not correct the erroneous time stamped information on the General Report, especially given that it created the false impression that it was drafted before his second dutybook notes (being Exhibit D) that have the first entry being made at 7:20 a.m.. No explanation was given as to why he failed to enter on the General Report, itself, a notation as to the actual time that he inputed the details regarding the incident nor did he provide an explanation as to why he never alerted anyone to the fact that the document was prepared 15 hours after the incident.

[134] As well, the magnitude of the basic and important information that he failed to document in his notes is astounding and very troubling.

[135] As noted, at times when he was confronted with those serious omissons in cross-examination his answer was that they were left out of his notes because he did not recollect those important details at the time he made his notes and that he never disclosed those same details to the Crown prior to trial because he did not remember them until testifying in this matter.

[136] One such exchange had to do with his evidence regarding Ms. Seguin producing her driver's licence. There is no reference to her producing her driver's licence in his original dutybook notes (Exhibit C). The only reference in his subsequent dutybook notes (Exhibit D), made more than 5 hours after the stop, is: "I requested driver's licence Driver fumbled document before providing same". During his examination-in-chief he indicated that she fumbled, like she had fat thumbs, and had a hard time producing her driver's licence. In cross-examination he agreed that her driver's licence came from her wallet and that it was behind other documents in her wallet.

[137] When Mr. Edelson asked him when he first remembered that her driver's licence was in her wallet behind other documents he said: "A few days ago that came to mind". I do not believe that he first recalled that information on the eve of the trial 18 months later.

[138] His dutybook (Exhibit D) entry that she fumbled, had fat thumbs, and had trouble producing her driver's licence and his examination-in-chief evidence all suggest that he paid close attention to her fine motor skills given his concerns that she may be under the influence of alcohol. The fact that her driver's licence was in her wallet, behind other documents, is important information for his, and the court's, assessment of whether the effects of her alcohol consumption contributed to her delay in producing her driver's licence.

[139] At the time, he would have known that. After all, he specifically relied on the circumstances involved in her producing her driver's licence for his grounds to arrest and make the AI demand. His failure to reduce that information to writing in any of his authored documents relating to this prosecution is very troubling.

[140] Knowing that her driver's licence was behind other documents in her wallet, it would be have been unreasonable for Cst. Lee to believe at the time, and me to believe now on review, that the moderate delay involved in her retrieving her driver's licence added much, if anything, to the grounds for the arrest and AI demand.

[141] I also agree with Mr. Edelson's submission that some of the grounds that Cst. Lee testified that he had for the actions that he took in the investigation are not referenced in any of his materials. I found many of his explanations for the evolving nature of his evidence on such important information to be indicative of an attempt to explain such omissions in the least problematic ways for the Crown's case.

[142] I also agree with Mr. Edelson's submission that Cst. Lee's viva voce evidence not only varied, significantly, from his only contemporaneous dutybook notes (Exhibit C) it also varied in several material respects from the evidence of the other RCMP officers who attended the scene.

[143] Despite Cst. Lee's personal involvement in upwards of 100 impaired driving investigations in Alberta it is extremely evident that Cst. Lee was poorly trained and ill-equipped to properly deal with this investigation. He never went to police college; had no training in the conduct of standardized field sobriety testing; had "barebones training" with respect to documentation preparation; and, had a "drive along" for 6 months with a supervisor in Jasper and, after that, he felt that policing was something you learn on the job.

[144] He had never thoroughly reviewed the RCMP Training Manual and he did know, let alone review, the RCMP's instructional material associated with drinking and driving investigations.

[145] At the time of Ms. Seguin's matter, his Ottawa detachment did not possess any ASDs (approved screening devices) nor AIs. Neither were any of their Ottawa detachment officers, including Cst. Lee, qualified in Ontario to operate either instrument.

[146] He conceded that he was not aware of the mandatory 7 day vehicle impound requirement. That explains why he let Ms. Seguin's friend attend at the roadside stop and drive away the truck.

[147] Likewise, he conceded that he was not aware of the mandatory 90 day driver's licence suspension (ADLS) requirements. That explains why no ADLS suspension notice was provided to her when she was originally processed.

[148] He also conceded that the original PTA (Promise to Appear) had the wrong court date on it and he did not know which courthouse to file it in.

[149] In addition to my prior factual findings, herein, I make the following factual findings pertinent to the arrest and AI demand issues:

• At 1:55 a.m. on May 7, 2014 Cst. Lee was on duty alone, driving a marked RCMP police cruiser, when he found himself travelling behind the truck that Ms. Seguin was operating;

• Based on the erratic driving (already summarized in this ruling) he thought she was possibly impaired, using her cellphone, being inattentive, or had a medical problem. Accordingly, he activated his lights and stopped her at approximately 2:00 a.m.;

• He advised dispatch of the stop, that the vehicle was all over the road, that the suspect was an OPS officer, and that he needed another member to attend to assist him;

• He was at the driver's door of the truck speaking with Ms. Seguin within about 10 seconds of the stop. The driver's window was down;

• He told her that he stopped her because she was all over the road;

• To him, it looked like she had glossy eyes. I accept Cst. Pelly's evidence that her eyes were tired and lazy and she had a hard time keeping them open. Cst. Zacharkiw was unable to recall anything unusual regarding Ms. Seguin's eyes. In my view, the eye evidence is of little, if any, weight in regards to the issue of the grounds for the arrest and AI demand. No expert evidence was adduced in regards to tired and lazy eyes nor was any evidence called with respect to what her eyes look like when she has not consumed alcohol. Furthermore, it was after 2:00 a.m., with less than ideal lighting conditions;

• He detected an odour of alcohol coming from the vehicle;

• He believed that her response, when he asked how much she had to drink, was "3 drinks". She then said: "I'm one of you"—meaning, a police officer;

• While they continued to converse he detected an odour of alcohol coming from her breath. I accept this evidence, in part, because I accept Cst. Pelly's evidence that he smelled an odour of "liquor" coming from her during the roadside conversation that he had with her. Despite Cst. Zarcharkiw's evidence that she did not smell alcohol on Ms. Seguin when she patted her down, I am satisfied that Cst. Lee smelled alcohol on her breath and Cst. Pelly smelled alcohol coming from her;

• At that point he formed the opinion that she had alcohol in her body and that her ability to operate the truck was impaired by alcohol;

• He arrested her for impaired operation at around 2:02 or 2:03 a.m. when she complied with his demand for her to step out of the truck for that purpose; and,

• He made the breath demand at 2:10 a.m..

[150] In all of the circumstances, not the least of which is the abysmal failure of all of the officers involved in this investigation to make meaningful and contemporaneous notes concerning Ms. Seguin's speech at the roadside, I am not satisfied that her speech was slurred, let alone, very slurred.

[151] As previously noted, Cst. Zacharkiw was tasked with maintaining constant observation of Ms. Seguin at the roadside stop. She testified that she was focussed on "looking for signs of impairment". She maintained that focussed observation of Ms. Seguin for over 20 minutes. There is no reason why she could not have made detailed contemporaneous notes regarding her observations. Yet, she failed to do so.

[152] Although Cst. Zacharkiw mentioned slurred speech in her examination-in-chief, when she was asked in cross-examination to provide specifics she responded by acknowledging that she did not know what words were slurred but it was when Ms. Seguin was speaking with someone by telephone about where she was stopped so that that person could attend and retrieve the truck she was driving. She further acknowledged that her non-contemporaneous entry, in documents she later prepared, to Ms. Seguin being "unclear" during that telephone conversation may be misplaced given that Ms. Seguin may simply have corrected information conveyed to her by the person she was speaking with on the phone.

[153] Although the supervising officer, Cst. Pelly, was at the scene of the stop for more than 2 hours, he made absolutely no notes while there regarding the events. The first time that he attempted to reduce what happened to writing was a week later when he sat down at a computer to do a supplementary report. At that time he attempted to reconstruct what happened without the assistance of any notes to go on.

[154] I accept his evidence that his only interaction with Ms. Seguin was a 30 to 40 second conversation when she wanted to speak to him, given that he was the supervisor at the scene, because she wanted to provide breath samples. Essentially he made short work of that issue by telling her that he was not going to interfere with Cst. Lee's decision that it was too late to provide the samples.

[155] Although he testified that she was speaking loudly he essentially acknowledged that it may have been reasonable for her to talk that loud given that traffic was passing by and it was very busy. Although he said that she had a hard time making a sentence he could not recall what the "hard time" was. Furthermore, he conceded that he did not detect any slurred speech.

[156] Cst. Lee testified that Ms. Seguin's speech was slurred and unintelligible. However, he failed to make notes as to what word or syllable was slurred and untelligible. When first asked in cross-examination as to what was slurred and untelligible, he indicated that he did not know what it was. Much later in cross-examination he said the slurring was when she said "fine, get the documents"—meaning, the charging papers. When asked what specifically was slurred he said that it was only one of those words but he did not know which one.

[157] He agreed that he is supposed to make notes each time there is slurred speech. Yet, he agreed that his second dutybook notes contain significant details of what she said to him, yet he made no entries signifying that there was any slurring of those words. For example, no slurring was noted when she said the following: "You are really doing this to me? How long have you been on the job?" [p. 86 of his notes]; and, "Are you serious?" [p. 86]. As well, there are numerous other words spoken by her, according to that document (e.g. on pages 86 to 91), that contain no indication of slurring.

[158] On page 75 of his dutybook notes he wrote: "Very drunk /slurred speech". On page 85 he wrote: "her speech was very slurred". Cst. Lee is the only witness who testified that he felt that Ms. Seguin was very drunk and that her speech was "very" slurred. In fact, no other witness testified that she was drunk. It is noteworthy that in examination-in-chief he did not say that she was very drunk. What he said was that he has seen "the look many times—she looked like she was drunk". [All of the boldfaced italicized font in this paragraph represents emphasis added by J. Letourneau]

[159] Although Cst. Pelly had a very brief conversation with Ms. Seguin, he was only one foot from her when that conversation took place. As noted, he did not detect any slurred speech let alone very slurred speech.

[160] I reject Cst. Lee's evidence that his grounds to arrest Ms. Seguin, and to make the AI demand, included that he then believed that she was drunk or very drunk. Furthermore, if he honestly believed that, his belief was not objectively reasonable in the circumstances.

[161] Although I reject Cst. Lee's evidence that Ms. Seguin nearly missed colliding with a car (Dodge Challenger or Charger) on Highway 417 and that she almost struck the concrete construction barrier, twice, I do accept that her tires ended up on the dividing line between her lane and an adjacent lane while Cst. Lee was behind her and that a short time later she came close to veering into an adjacent lane when the Dodge car sped past her.

[162] In regards to the barriers, I would note that in cross-examination Cst. Lee could not say where it was that Ms. Seguin almost struck the barriers nor whether it was a concrete barrier or a temporary road construction barrier. Furthermore, he agreed that the truck she was driving was large and that the roadway was not straight. He could also not say whether the lanes were constricted due to the road construction that was underway.

[163] I agree with Mr. Edelson's submission that Cst. Lee's inability to be certain as to when certain things happened, in large part because of the paucity of time notations in Exhibits B, C, and D regarding when things actually happened, creates additional uncertainty as to whether certain events happened before or after the arrest and/or AI demand.

[164] I reject Cst. Lee's evidence that Ms. Seguin had trouble focussing. Among many other things, she was lucid and focussed enough to understand her rights to counsel; to express a clear desire to obtain immediate legal advice from counsel; to devise a plan to obtain immediate legal advice that putatively worked; and, she clearly displayed an uneasiness about the prospects of being taken to her own police force for breath testing.

[165] Furthermore, on the heels of Cst. Lee's making of the breath demand she was successfully negotiating his agreement that he would release her from the roadside on an appearance notice and that he would allow her friend to attend to remove the truck that she drove.

[166] In addition to my prior factual findings in this ruling that are pertinent to my assessment of whether there were sufficient grounds for the arrest and the AI demand I also find that Ms. Seguin pulled the truck over safely, and as quickly as she could, and that she parked it safely. On Cst. Lee's own evidence the truck was very high off the ground, possibly as much as 3 feet, and Ms. Seguin had no difficulty getting out of it at his demand. Furthermore, she did not stagger, stumble, stray or weave while walking with him back to his cruiser. This was precisely at the time of her arrest and just prior to Cst. Lee making the AI demand.

[167] My doubts concerning Cst. Lee's evidence that he honestly believed that he had requisite grounds to arrest Ms. Seguin for impaired operation and to make an AI demand are so serious that I find myself compelled to reject such evidence. In my view, the most that he believed was that he had grounds for an ASD demand.

[168] Notwithstanding that Cst. Lee never asked Ms. Seguin when she had the 3 drinks, nor what the drinks were, I am satisfied that the indicia, objectively speaking, was sufficient to establish the requisite reasonable suspicion that she had alcohol in her body for an ASD demand. Reasonable suspicion relates to the possibility, and not the probability, that something occurred or exists: R. v. Chehil, 2013 SCC 49. In the circumstances Ms. Seguin would have known that Cst. Lee's question regarding how much she had to drink was in reference to alcoholic drinks.

[169] To be clear, I am not satisfied that there was an objective basis for the arrest or AI demand.

[170] The evidence satisfies me that Cst. Lee was determined to maintain exclusive carriage of this investigation despite offers from the OPP and the OPS to provide assistance or to take over the investigation. He confirmed in his testimony that at the roadside he was aware of their offers in that regard.

[171] I also find that his determination to maintain exclusive carriage of this investigation, coupled with the fact that he knew that his detachment had no ASDs nor qualified operators of that device, caused him to arrest Ms. Seguin thereby deliberately bypassing the ASD process altogether.

[172] Reasonable and probable grounds for an impaired operation offence and reasonable grounds for an AI demand can certainly be obtained in less than the 2 or 3 minutes that elapsed between the time that Cst. Lee stopped Ms. Seguin and when he arrested her. However, on my factual findings such grounds did not subjectively or objectively exist in this matter at the time the arrest and AI demand were made.

[173] As noted, I have accepted Cst. Lee's evidence that when he pulled Ms. Seguin over he thought that the cause of the erratic driving could be impairment by alcohol, a medical condition, general inattention, or distraction (e.g. due to cellphone use).

[174] Yet, he never asked her to explain the cause of the erratic driving.

[175] When she indicated that she had 3 drinks, he does not follow up with basic questions as to what type and quantity of alcohol; when were the drinks consumed—particularly, the last drink; how fast she drank them; etc.. That is troubling and further reinforces my view that he formed an intention, early on, to bypass the ASD stage given his detachment's inability to facilitate such testing.

[176] When asked in cross-examination what he does when he has insufficient grounds to arrest but has grounds for an ASD demand he said that he would have to call the OPP or OPS. Not only did he not initiate contact with either police force, he consciously chose not to accept their offer to assist or to take over the entire investigation. Furthermore, his determination to maintain exclusive carriage of the investigation resulted in at least two OPS cruisers and one K-9 unit that attended at the scene to be sent on their way.

[177] Objectively, sufficient grounds existed for an ASD demand. Ms. Seguin strenuously requested the opportunity to take that test. Cst. Pelly, who was Cst. Lee's direct supervisor, told Ms. Seguin that he would not interfere with Cst. Lee's decision not to conduct an ASD test.

[178] For the reasons noted, the arrest and AI demand were unlawful.

[179] Given counsels' agreement that there would be no recalling of the witnesses who testified in the Charter and voluntariness phase, and that my factual findings in the Charter phase would apply to the trial issues, I am of the view that I am required to dismiss the refusal charge at this time.

[180] On the basis of my factual findings in support of my s. 9 Charter ruling I have determined that reasonable grounds did not exist for the AI demand. Consequently, the demand was unlawful. Therefore, Ms. Seguin committed no offence in not complying with the demand: R. v. Grant, [1991] 3 SCR 139.

[181] I acknowledge counsels' agreement that I am not to rule, at this stage, on "whether a proper demand was made". I understood "proper" to mean I was not to address such issues as the actual wording of the demand (which is not identical to the wording in the Code) nor the timing of the demand.

[182] For example, in oral submissions Mr. McGeachy argued that the issue of the demand being made before she was given her rights to counsel, and that she was charged with refusing to comply before she spoke with counsel, were properly issues for trial. He followed that submission up with, "so pay attention to the timing of any s. 10(b) breach". Parenthetically, I would note that my findings of fact are that RTC was given at 2:07 a.m. and the AI demand at 2:10 a.m..

[183] Furthermore, the defence written submissions regarding the s. 10 issues concentrates on the hold-off principle, the privacy requirements, the right not to be interrupted while obtaining the legal advice, and whether Ms. Seguin's s. 10(b) rights were violated due to Cst. Lee terminating the conversation that she was having with counsel. Again, none of those issues relate to the actual wording or timing of the demand.

[184] Likewise, I have found that reasonable and probable grounds did not exist for the arrest. Again, I appreciate that both counsel agreed that I was not to rule at this stage on "whether the Crown has proven the impaired operation offence". However, I have stated my findings of fact including the evidence that I have found that reasonably supports and detracts from a finding that Ms. Seguin's ability to operate the truck at the time was impaired by alcohol.

[185] I certainly appreciate that the Stellato assessment at the end of the trial proper involves a consideration of all of the evidence that supports or detracts from a finding of impairment including post-arrest evidence.

[186] I look forward to discussing these issues with counsel when this ruling is provided to them on July 14, 2016.

Issue 3: Were Ms. Seguin's ss. 10(a) & (b) rights to counsel violated, and if so, a/ what effect does that have on the breath demand; and, b/ what, if any remedy, should be applied?

The Crown's Position

[187] Mr. McGeachy takes the position if there is a 10(b) breach then Ms. Seguin's response to the breath demand "follows more neatly into exclusion". However, any refusal before she consulted counsel is a matter for trial.

[188] If there were any Charter breaches, he maintains that they were technical and not motivated by bad faith or ill motives and no evidence should be excluded from admission at trial.

Ms. Seguin's Position

[189] In her written material Ms. Seguin alleged breaches of her section 10(a) and (b) Charter rights.

[190] In regards to s. 10(a) she alleged that Cst. Lee failed to promptly advise her of the reason for her arrest.

[191] I would note, however, that Mr. Edelson indicated during his final oral submissions that the heart of Ms. Seguin's Charter application is really sections 8, 9, and 10(b).

[192] In any event, I accept Cst. Lee's evidence that he promptly advised her of the reason for the stop (she was all over the road) and the reason for the arrest (impaired operation). Consequently, there was no breach of her s. 10(a) rights.

[193] I am also satisfied that he promptly advised her of her rights to counsel and that he gave her such rights by memory, as he does in all cases, rather than reading to her the RCMP issued card verbatim.

[194] The language in the RCMP issued card appears at Exhibit A (Application Record), Tab 6, top left hand side of the page and reads as follows:

Section 10(b) You have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll-free number for immediate legal advice. If you wish to contact any lawyer, a telephone and telephone book will be provided to you. If you are charged with an offence, you may apply to legal aid for assistance.

Do you understand?

So you want to call a free lawyer or any other lawyer?

[195] The RTC version that he gave her by memory included words to the effect that: everyone in custody has a right to speak to a lawyer and if you cannot afford a lawyer you can speak to a free lawyer by calling a legal aid 1-800# that will be provided to you. Do you understand? Answer: Yes. Do you wish to call a free or any other lawyer? Answer: Yes.

[196] As previously referenced, Ms. Seguin's s. 10(b) application is based on her allegation that the police breached the hold-off principle, her privacy requirements—particularly her right not to be interrupted while consulting with legal counsel—and on Cst. Lee's unilateral decision to terminate her consultation with legal counsel.

[197] Should I find that her s. 10 rights were breached she seeks an order pursuant to s. 24(2) of the Charter excluding from admission into evidence in this trial "all statements and utterances emanating" from her and all inculpatory observations made by all of the officers of her physical conditions "pursuant to the traffic stop…and her consequent detention and arrest…".

[198] Her original application also requested an exclusion of all inculpatory observations made of her physical conditions when she was fingerprinted and photographed at the RCMP station at 7:40 p.m. on the same date. However, at the conclusion of the Charter evidence no submissions were made by either counsel in that regard. Furthermore, at paragraph 11(c) of the Crown's original written "Response" there is a clear indication that the Crown has no intention of attempting to adduce any evidence regarding Ms. Seguin's attendance for fingerprinting or photographing. Accordingly, the Crown is bound by that position and, accordingly no such evidence will be admissible by the Crown in this trial.

[199] With respect to the hold-off principle, Ms. Seguin points out that Cst. Lee provided the rights to counsel information before making the AI demand. Yet, and despite the fact that she had not had an opportunity to consult with counsel, he continued to press her to comply with the breath demand.

Factual Findings

[200] The facts pertaining to the s. 10(b) issues are not in dispute and I make the following factual findings in that regard.

[201] Cst. Lee provided Ms. Seguin were her rights to counsel at 2:07 a.m..

[202] Ms. Seguin made a prompt request to speak to legal counsel and she made it clear to Cst. Lee that she wanted to speak to counsel from the roadside by telephone.

[203] She told Cst. Lee that her police force facilitates roadside consultation by placing the accused in their police cruiser, in private, and with a cellphone. Although Cst. Lee was uncomfortable with doing so, he retrieved her cellphone from the truck at 2:21 a.m. and acquiesced to her request. He told her to knock on the window of the cruiser when her legal consultation was finished.

[204] As previously noted, by that point Cst. Zacharkiw was already maintaining visual observation of Ms. Seguin.

[205] By 2:33 a.m. Ms. Seguin was alone in the cruiser with her cellphone attempting to locate a telephone number for her legal counsel, Gary Barnes, by doing a Google search on her phone. All of the cruiser's windows were rolled up and all doors were fully shut.

[206] Although some of the officers testified that they could hear Ms. Seguin's voice, at times, when she was in the cruiser on her cellphone, I accept their evidence that they were not able to make out what she was saying.

[207] Despite the fact that none of the RCMP officers at the roadside, including Cst. Lee, got on her cellphone to confirm that she was actually speaking to someone, let alone a lawyer, I am satisfied that she was speaking to a lawyer named Gary Barnes.

1st Interruption

[208] I accept Cst. Zacharkiw's evidence that after approximately 20 minutes Cst. Lee knocked on the cruiser's window and told Ms. Seguin that she had spent enough time on the phone with her counsel; that Ms. Seguin indicated that she was not finished and she put her phone on speakerphone at which point a male indicated that he was Mr. Barnes; and, that Cst. Lee then told Ms. Seguin he would give her more time and he shut the door and moved away from the cruiser.

[209] I also accept Cst. Lee's evidence that: the words that the male actually spoke were to the effect that "I am Mr. Barnes. I'm a lawyer"; her cellphone showed that she had spent 14 minutes and 56 seconds on that call to that moment; and, that his interruption of the call lasted for no more than 15 seconds.

2nd Interruption

[210] When Ms. Seguin was still on the phone at 3:13 a.m., roughly 20 minutes after the first interruption, Cst. Pelly suggested to Cst. Lee that she had had sufficient time. At that point Cst. Lee interrupted the call and told her to finish up.

[211] I accept Cst. Zacharkiw's evidence that Ms. Seguin put her foot out to block Cst. Lee from shutting the door because she wanted to talk to him about the process. Cst. Zacharkiw's evidence does not support Cst. Lee's evidence that Ms. Seguin kicked the cruiser's door, swung it open, and pushed him in the shoulder and I reject his evidence in that regard. After a brief discussion, Cst. Lee shut the cruiser door.

3rd and Final Interruption

[212] Less than a minute later Cst. Lee knocked on the cruiser's window and opened up the door, at which point Ms. Seguin's phone was not in use and she handed it him.

[213] It is noteworthy that although Cst. Lee testified that his normal practice is to speak directly to legal counsel before the accused does in order to give the lawyer all of the pertinent information regarding the circumstances, particularly the grounds for the stop, arrest and breath demand, he never did so. In fact, none of the officers did so.

[214] Cst. Lee's termination of Ms. Seguin's consultation with Mr. Barnes was at his initiative, not hers, and he did so without making any inquiries of Gary Barnes or Ms. Seguin to confirm that the consultation had concluded.

[215] Cst. Lee agreed that his decision to terminate the consultation with counsel at that point was, in part, based on his belief that a lawyer could not legally tell Ms. Seguin not to provide breath samples.

[216] I also find, contrary to Cst. Lee's testimony, that they were concerned about the evidential shortcut (i.e. the presumption of identity) being lost if they did not obtain the results of the 1st breath sample within 2 hours of the stop. I accept Cst. Zacharkiw's evidence that they discussed that issue at the roadside and had concerns regarding the length of Ms. Seguin's telephone consultation with legal counsel.

[217] As noted, it was the supervising officer (Cst. Pelly) who suggested to Cst. Lee that Ms. Seguin had had sufficient time to obtain the necessary legal advice and that the call should essentially be terminated. Cst. Lee accepted the suggestion and quickly put an end to the consultation. In the circumstances Ms. Seguin cannot be faulted for not protesting further.

The Governing Principles

[218] The basic legal principles applicable to s. 10(b) issues are outlined in Mr. Edelson's Written Submissions and are not in dispute.

[219] Ms. Seguin must prove the alleged breach on the balance of probabilities standard.

[220] More than twenty years ago the Supreme Court of Canada made it very clear that the police are required to allow an accused a reasonable opportunity to speak to their lawyer of choice, if requested, and to refrain from eliciting evidence from the accused until he has had a reasonable opportunity to obtain that advice: R. v. Bartle. That is the "hold-off" principle.

[221] Cst. Lee initially testified that he did not know about the hold-off principle at the time. However, when he returned the next day to continue his evidence he indicated that he did know about the principle before this investigation but he was simply "confused" when he testified, the day prior, that he did not know what the hold-off principle was.

[222] The burden of establishing an unequivocal waiver of the accused's right to counsel rests on the Crown and the standard of proof required for an effective waiver is very high: Prosper v. The Queen.

[223] There can be no waiver of one's right to counsel unless the accused knows what she is entitled to and she specifically waives those rights: R. v. Bartle, supra.

[224] The Crown is not suggesting that Ms. Seguin waived her rights to counsel at any time. I have no doubt that she did not waive her s. 10(b) rights, in any manner. Quite the contrary. She pursued her s. 10(b) rights as vigorously as she could in the circumstances.

[225] The potential loss of the presumption of identity available to the Crown under s. 258(1)(c) of the Code does not, by itself, constitute such a compelling or urgent circumstance to allow the police to disregard an accused's s. 10(b) rights and the "hold-off" principle. A detainee's right to counsel takes priority over that evidentiary shortcut and presumption: Prosper v. The Queen, supra.

Ruling

[226] I am satisfied that none of the officers overheard what Mr. Barnes said to Ms. Seguin during their telephone consultation other than that one time when Ms. Seguin put Mr. Barnes on speakerphone so that Cst. Lee could confirm that she was actually speaking with her legal counsel.

[227] As noted, Ms. Seguin did not call any evidence.

[228] Thus, on the evidentiary record there is absolutely no evidence to suggest let alone to establish on the balance of probabilities standard that any of the officers could overhear her consultation with counsel or that she had concerns in that regard. So, in that sense, she has failed to establish a privacy breach.

[229] As it played out Ms. Seguin was not only permitted to attempt to obtain legal advice while at the roadside she was able to promptly reach Mr. Barnes to consult with him regarding her circumstances despite it being after 2:30 in the morning.

[230] There is no evidence that her ability to reach legal counsel, or the length of her telephone consultation with legal counsel, was prolonged due to her confusion in regards to Cst. Lee's wording of her RTC. Consequently, the wording of the rights to counsel that Cst. Lee gave her, which was not the same terminology as that in the Code or as that in the RCMP's issued RTC police card, did not cause any interference let alone frustration of her desire and efforts to seek and obtain immediate legal advice.

[231] Accordingly, I see no need to engage in a review of whether the RTC wording that he utilized complied with the SCC's jurisprudence. Furthermore, that issue and jurisprudence is not specifically addressed in counsels' oral and written submissions.

[232] Ms. Seguin spent approximately 35 minutes, in total, on the phone with Mr. Barnes by the time Cst. Lee put the call to an end. On a relatively simple factual impaired case, such as this (with the exception of the jurisdictional issues), that should have been sufficient time for her to obtain the requisite legal advice from Mr. Barnes.

[233] Nevertheless, given the gross mismanagement by the police of the implementation of Ms. Seguin's rights to counsel there has been a violation of her s. 10(b) rights. The breach of the hold-off principle and privacy requirements by the police, and their unilateral termination of her consultation with Mr. Barnes, constitute a serious violation of her s. 10(b) rights.

[234] The mismanagement includes the following.

[235] For inexplicable reasons Cst. Lee did not get on the phone at the start of the call to personally verify that Ms. Seguin had reached legal counsel.

[236] Even though Cst. Lee testified that it was his practice to speak directly to legal counsel, before the accused did so, in order to provide the requisite information concerning the investigation—for inexplicable reasons he did not do so in this case at any time. Had he done so, that would have facilitated a much more focussed discussion between Mr. Barnes and Ms. Seguin thereby reducing the length of the telephone call.

[237] I agree with Justice Kozloff's remarks in R. v. Natsis, March 18, 2013 (unreported) at paragraph 197 that I do not need the accused's evidence in order to appreciate and find that such interruptions of the consultation process would disrupt the natural flow and rhythm of the consultation. Obviously such disruptions increased the time that would have otherwise been required for the accused to obtain the requisite legal advice.

[238] Having not initially confirmed that Ms. Seguin had in fact called and reached legal counsel, and having not provided the requisite foundational information regarding the investigation to her counsel, as the length of the call increased it was prudent and necessary for Cst. Lee to interject. In that sense, due to his own incompetency, he had to interrupt her at some point to attempt to bring order to the fulfillment of her constitutional rights to counsel. Sadly, that was not the focus of any of his interruptions.

[239] The focus of his first 2 interruptions was to advise her to bring the consultation to an end. The focus of the last interruption, being less than a minute after the second interruption, was to ensure that she had followed his directive after the second interruption to essentially conclude the consultation immediately. As noted, she complied with that directive because the call was over before Cst. Lee made the third interruption.

[240] What he should have done to bring order to the fulfillment of her s. 10(b) rights was to apologize to her and Mr. Barnes for interrupting their consultation and then he should have spoken directly to Mr. Barnes to inquire as to whether he wanted to know the requisite information regarding the investigation. He should have told Mr. Barnes that he would try to answer any questions that he might have that may be of assistance to him in advising Ms. Seguin. After those matters were addressed, Cst. Lee should have asked Mr. Barnes for an estimate as to how long he thought he might be in finishing the consultation with Ms. Seguin. Thereafter, he should have returned the phone to Ms. Seguin and left her in privacy to finish the consultation process.

[241] Inexplicably, none of that happened during any of the 3 interruptions.

[242] Like the situation in Natsis, supra, Cst. Lee's concerns regarding the potential loss of the presumption of identity evidential shortcut; that Ms. Seguin and/or Mr. Barnes may be jerking them around by prolonging the consultation; and, his erroneous belief that the lawyer had no choice but to tell her to comply with the breath demand, all played a part in his actions that constitute a violation of Ms. Seguin's 10(b) rights.

[243] The net effect of what happened is that there was a violation of the hold-off principle.

[244] Cst. Lee testified that he intended to revisit Ms. Seguin's initial position that she would not comply with the AI demand once the legal consultation finished. In fact, he did just that. However, when she did not respond quickly enough to his directive for a simple "yes" or "no" answer he advised her that she was being charged with refusing to comply with the demand.

[245] As noted, the potential loss of the presumption of identity was a significant factor in Cst. Lee's decision to unilaterally terminate the consultation. It would not have been a factor if he had no intention of giving her a further opportunity to comply with the demand.

[246] Accordingly, his interruptions and unilateral termination of her counsultation with counsel were intended, in large part if not exclusively, to facilitate the breath sample testing within the 2 hour limitation should Ms. Seguin decide to partake in such testing. Yet, the police are required to desist such investigative measures until Ms. Seguin has had a reasonable opportunity to exercise her rights to counsel: R. v. Prosper, supra, para. 39.

Issue 4: Should the Inculpatory Observations by the Police and Ms. Seguin's Statements be excluded pursuant to s. 24(2) given the Charter Breaches?

[247] To summarize, I have found a breach of Ms. Seguin's s. 9 rights given that the arrest and AI demand were unlawful. Thus, her detention in both respects was arbitrary. As well, the police violated her s. 10(b) rights in failing to desist efforts to obtain breath samples from her (hold-off breach), and in interrupting (privacy breach) and terminating her consultation with legal counsel, before she had had a reasonable opportunity to consult with counsel.

[248] As noted, Ms. Seguin seeks to exclude from admission into evidence all inculpatory utterances by her (except those that constitute the actus reus of the refusal offence, R. v Rivera, supra) and incriminating observations by the police of her physical condition.

[249] In Rivera the Ontario Court of Appeal provided guidance on what constitutes evidence of the actus reus of the 254(5) failure or refusal offence:

91 The Crown's proposed characterization of the relevance of the statements, I believe, stretches the concept of actus reus beyond its well-established meaning. Actus reus is simply the voluntary and wrongful act or omission that constitutes the physical components of a crime. In the context of s. 254(5) - the criminal offence of either failing or refusing to comply with a demand without "reasonable excuse" - Molloy J. in Morrison, at para. 35, described how roadside statements could provide evidence of the actus reus:

[A]ny statements made by Ms. Morrison as to the process of attempting to give the breath sample are admissible to demonstrate whether she was really trying or whether there was some valid basis for her not being able to comply. However, her statements as to what she had to drink, and when, have no bearing on whether she properly complied with the demand for a breath sample.

[250] The following evidence is properly classified as evidence of the actus reus of the refusal offence and therefore forms no part of the s. 24(2) exclusion analysis in this matter:

• the evidence that after Cst. Lee made the breath demand and asked Ms. Seguin if she would comply with the demand she said words to the effect: No, it will be a refusal;

• he said, "Do you understand you will be charged?;

• she replied, "Yes";

• a couple minutes later he asked her again if she would comply with the demand and she again said "no";

• he waited "a little longer", trying to give her every chance to comply, and asked her again "will you comply?" and again she said "no";

• immediately after he terminated her consultation with legal counsel (approximately at 3:13 a.m.), he revisited with her whether she would comply with the demand and Cst. Lee gave the following evidence of that conversation (as summarized in my non-verbatim trial notes):

Cst. Lee- I sat in driver's seat of my cruiser—313-318am;

• as recorded at p. 78 duty book—I asked—"will you accompany me to obtain samples of your breath?";

• she delayed answering then she asked where they will take place;

-I asked her again, in the same words, if she would accompany me;

• she said "where";

• I said—in Kanata?;

• She said "who"?;

• I said with OPP;

• She asked for a few minutes to think about it;

• I waited a couple of minutes and I said "next words out of your mouth should be either a yes or no? Will you accompany me to obtain samples of your breath in Kanata with OPP?";

• she doesn't answer over couple minutes;

-at 318am— I said you will be charged with refusal;

• she said "fine, get the documents";

• I was ½ way to ¾ through preparing the PTA—3-5min when she says "okay I'll provide the samples"—however, it was too late.

[251] Given my finding that the AI demand was unlawful, and given the fact that no breath samples were provided, I do not intend to undertake an extensive 24(2) analysis in regards to the refusal charge. Suffice it to say that the unlawful arrest and breath demand prolonged the period that Ms. Seguin would have otherwise been in police custody thereby increasing the opportunity for the police to gather more potentially incriminating evidence to use against her.

[252] In oral submissions Mr. Edelson submitted that if I found that it was an unlawful investigation then all incriminating observations by the police should necessarily be excluded.

[253] As SCC held in R. v. Orbanski; R. v. Elias, 2005 SCC 37 at para. 58:

…evidence obtained as a result of the motorist's participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: see R. v. Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.), at pp. 128-31, leave to appeal refused, [1996] 3 S.C.R. xiii; R. v. Coutts (1999), 45 O.R. (3d) 288 (Ont. C.A.).

[254] That only applies to "evidence obtained from the compelled direct participation by the motorist in roadside tests and…police questioning about alcohol consumption": R. v. Orbanski; R. v. Elias, supra, para. 58.

[255] Thus, any such compelled incriminating evidence that was gathered during the pre-Charter investigative stage when Ms. Seguin's section 10 Charter rights were lawfully suspended (i.e. up to approximately 2:02 or 2:03 a.m.) is not the subject matter of this 24(2) ruling.

[256] Based on my findings, at that time Cst. Lee was engaged in a lawful investigative detention of Ms. Seguin. I have found that the evidence that he gathered in that investigative stage was sufficient for an ASD demand. Accordingly, no Charter violations arose in the investigative stage. Chronologically, the first Charter violation occurred when Cst. Lee arrested Ms. Segin.

[257] Observations by police officers while they are carrying out their authorized duties, such as signs of impairment of a motorist (e.g. odour of alcohol, blood-shot and glassy eyes, slurred speech, unsteadiness, etc.), are presumptively admissible at trial to prove impairment: R. v. Orbanski; R. v. Elias, supra, para. 58.

[258] However, the evidence of such non-compelled, and pre-Chartered, investigative observations is subject to Charter scrutiny and, as noted, Ms. Seguin is challenging the admission of that evidence and all incriminating utterances by her in these proceedings.

[259] In that regard, I believe that her argument is that the unlawful arrest and AI demand provided the police with a greater opportunity to gather such incriminating evidence and not that the non-compelled observations and Ms. Seguin's voluntary utterances constitute an unreasonable search and seizure in contravention of her s. 8 Charter rights.

[260] In determining whether the admission of evidence would bring the administration of justice into disrepute I am required to assess and balance the effect of the following: (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: R. v. Grant, 2009 SCC 32.

[261] The objective of the assessment is a ruling that promotes the prospective and long-term integrity of our judicial system and the public's confidence in the system.

[262] Challenged evidence should be excluded if Ms. Seguin satisfies the court, on a balance of probabilities, that a reasonable person, fully aware of the circumstances and the values underlying the Charter rights, would feel that its admission would bring the administration of justice into disrepute.

[263] The greater the negative impact on the accused's Charter rights the greater the risk that the admission of the evidence will be seen by the public to signify that the courts have little regard for its citizen's constitutional rights.

(1) The Seriousness of Charter Infringing Conduct

[264] These were serious Charter breaches. The right not to be arbitrarily detained and arrested, and the right to have a reasonable opportunity to consult with legal counsel (in private) upon detention and arrest, are fundamentally important to our criminal justice system and our collective view of a just society.

[265] The Supreme Court of Canada said the following in R. v. Grant, supra:

75 Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[Note: the bold-faced italicized print represents J. Letourneau's emphasis and not the SCC's emphasis]

[266] On the basis of my factual findings, the genesis of the Charter breaches was Cst. Lee's investigative arrogance. He was determined to maintain exclusive control of this investigation even though he knew very well that he, and his detachment, were ill-equipped and unqualified to properly conduct the investigation.

[267] Not only did his detachment not have any ASDs or AIs, none of their officers, including Cst. Lee, were qualified to operate either machine. Furthermore, their detachment did not have a room for such testing procedures.

[268] As noted, they did not know which courthouse to file the documents with, or what the correct remand date and time was, or that there was a mandatory requirement to impound the truck for 7 days, or that there was a mandatory automatic driver's licence suspension (for 90 days).

[269] To make matters worse, Cst. Lee chose not to accept the goodwill offers by the OPP and the OPS to assist or to take over the investigation. At the time he was aware that the OPP expressed concerns that his force would "lose the charge".

[270] As well, and as previously noted, I am satisfied that when he arrested Ms. Seguin he knew that he had insufficient grounds for the arrest but he did so to avoid making an ASD demand—which his force could not perform—and he wanted to try to maintain carriage of the investigation.

[271] In that regard, I am satisfied that he was concerned that if he asked either the OPP or the OPS to bring an ASD to the roadside, and to do the testing, it would likely result in that force taking over the investigation especially if Ms. Seguin registered a "fail" on the test. Given that an arrest and AI demand would naturally and quickly follow a "fail" reading, and given that Cst. Lee's detachment has no AIs nor qualified technicians, it would be reasonable for him to believe that the police force that did the ASD testing would thereafter take carriage of the investigation.

[272] He had a much better chance of maintaining carriage of the investigation after arresting her because it was his arrest and all he needed to do after the arrest was to borrow a qualified technician from the OPP who confirmed that they had one available who could do the tests for them.

[273] As noted in many cases, including R. v. Delaney, 2014 OJ 844 CJ and the Ontario Court of Appeal's decision on June 12, 2014 in R. v. T.G.H., 2014 ONCA 460, there is a power imbalance between the police and a citizen especially when the citizen is under arrest and in detention. A citizen under arrest for an alcohol offence is required to make some very serious and stressful decisions while in custody. That is precisely why it is imperative that the police ensure that the citizen understands the breadth of the right to counsel and that the police facilitate those constitutional rights.

[274] Cst. Lee's shortcomings with respect to the implementation of Ms. Seguin's rights to counsel were profound. His failure to provide any explanation for those shortcomings, including why he did not follow what he said was his usual practice of speaking with legal counsel to provide them with the important information regarding the matter, is alarming. He had at least 3 opportunities to salvage the rights to counsel quagmire but failed to do so. That failure, in my view, was not deliberate. However, it is yet another example of his woefully inadequate knowledge and expertise in dealing with such investigations.

[275] To be clear, although Cst. Lee is personally responsible for not having thoroughly reviewed the RCMP Training Manual and for not reviewing, at all, the RCMP's instructional material associated with drinking and driving investigations, I have no reason to disbelieve his evidence regarding the training he received in such matters—which I would characterize as minimal.

[276] In my view, Cst. Lee's "investigative arrogance" is similar, but worse, than what Justice Kozloff called "jurisdictional brinkmanship" in Natsis (at para. 84).

[277] I understand Justice Kozloff's use of that phrase to refer to the arresting officer's decision to essentially pre-empt another force's opportunity to have carriage of the investigation by making the arrest before the other force did, even though the arresting officer lacked subjective and objective grounds to make the arrest.

[278] While it is true that I, like Justice Kozloff in Natsis, found that the arresting officer (Cst. Lee in Ms. Seguin's matter) lacked subjective and objective grounds to make the arrest and AI demand, unlike Natsis, I have also found that Cst. Lee knew that he, and his detachment, were ill-equipped and unqualified to properly conduct the investigation yet he deliberately chose not to accept the offers from the OPP and the OPS to assist or to take over the investigation. He also knew that the OPP was concerned that he would lose the charge.

[279] On the basis of my factual findings he deliberately violated Ms. Seguin's right not to be unlawfully arrested and detained and he did so for the purpose of maintaining exclusive carriage of the investigation. Furthermore, it is egregious that he chose not to accept the assistance of the OPP (except possibly to borrow a qualified technician) or the OPS, or their offer to take over the investigation entirely when he knew that he, and his detachment, were not equipped nor qualified to properly conduct the investigation.

[280] For the reasons noted, the seriousness of the section 9 & 10(b) violations strongly favours exclusion of the impugned evidence.

(2) The Impact of the Charter breaches

[281] In determining the impact that the Charter breach had on the protected right the court must first identify the interests that the right seeks to protect: R. v. MacMillan, 2013 ONCA 109, para. 82.

[282] In regards to s. 9, those interests "…are usually liberty, freedom of choice and, sometimes, privacy": MacMillan, para. 82.

[283] The impact of the breach on Ms. Seguin's s. 9 rights was due solely to Cst. Lee's decision to bypass the ASD procedures for the purpose of solidifying his continued carriage of the investigation.

[284] Like other investigatory measures such as roadside sobriety testing, ASD testing has been held to be a reasonable limit of our citizen's constitutional rights because the measures can be employed quickly at the roadside, they are minimally intrusive, and the results can only be used in support of the grounds for further police actions. The results cannot be used as substantive proof of the offence nor can they be used for impeachment purposes: R. v. Orbanski; R. v. Elias, R. v. Rivera.

[285] The ASD testing has been held to be minimally intrusive, in part, because the suspect is not under arrest during the testing and is not handcuffed; nor, do the police have the right to do a pat down or more intrusive search; nor, can the police take photographs and fingerprints; and, generally the police must not remove the suspect from the scene of the detention, for example, taking him or her to their detachment, in order to do the tests.

[286] In bypassing the ASD stage, the impact of Cst. Lee's breach of Ms. Seguin's s. 9 rights was to substantially increase the damage to her liberty, freedom of choice and, privacy interests unnecessarily, and for an improper purpose (i.e. his continued carriage of the investigation). Furthermore, she was then confronted with a demand to comply with the breath demand. Complying with the demand risked incrimination and not comply risked facing another charge, being a refusal, which is exactly what happened.

[287] In regards to the s.10(b) violations, Natsis involved similar conduct with the officer interrupting the legal consultation a total of 6 times, unilaterally terminating the consultation on the last interruption without inquiring as to whether they were finished, and if not, how much further time was required; the officer felt that they were jerking him around; the officer did not believe that the lawyer could tell Ms. Natsis not to provide the breath samples; and, that when the officer terminated the consultation he believed that Ms. Natsis had had sufficient time to consult with counsel and he had no intention of allowing the consultation to continue further.

[288] As the SCC held at paragraph 75 in Grant—"…ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". Cst. Lee's failure to respect the hold-off principle was either deliberate or due to ignorance. Both are egregious.

[289] The provisions of the Code that authorize the taking of breath samples from motorists suspected or believed to have committed a driving offence have been held to be constitutional, in part, due to the countervailing rights of our citizens not the least of which is our citizens' s. 10 rights to counsel.

[290] The Supreme Court of Canada, prior to R. v. Bartle [para. 62] made it very clear that "…where the right to counsel has been infringed, it is improper to speculate about the nature of the advice that a detainee would have received and whether the evidence would have been obtained had the right not been infringed".

[291] Grounds existed for an ASD test and Ms. Seguin made it very clear that she wanted to take a roadside ASD test. However, Cst. Lee intentionally denied her that opportunity. Had ASD testing been employed, she may very well have not faced any charge under the Code.

[292] The impact of the section 9 and 10(b) breaches on the protected rights favours exclusion of the impugned evidence.

(3) Society's Interest in an Adjudication on the Merits

[293] I come to the same view as Justice Kozloff (in Natsis) that despite the egregiousness of the violations, society's interest in the adjudication of this case on its merits favours admission of the impugned evidence.

The 24(2) Ruling

[294] The fact that exclusion of the impugned evidence is favoured in two of the three categories does not mean that the evidence must be excluded. It is a qualitative and balanced assessment where the strength of the findings in each category must be considered, collectively, to determine whether the administration of justice would be brought into disrepute if the evidence was admitted.

[295] As the Supreme Court of Canada noted in R. v. Grant, supra, "…for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge."

[296] Many people in Ms. Seguin's circumstances do not have the will and/or the resources to challenge their unlawful arrest and breath demand and violations of their constitutional rights to counsel in a court of law.

[297] The 24(2) prospective lense reflects that reality and makes the exclusion of evidence remedy available where it is necessary for the court to disassociate itself from police conduct that violates our citizen's fundamental constitutional rights. As noted, the overall objective is the preservation of the long-term integrity of our judicial system and the public's confidence in it.

[298] In my view, on the R. v. Grant qualitative and balanced assessment the admission of the impugned evidence (as delineated in this ruling) would bring the administration of justice into disrepute. Accordingly, the evidence is excluded from admission into evidence in this trial.

Dated: July 14, 2016

Justice Allan G. Letourneau