Court Information

Court File No.: Central East Region: Newmarket 15-03615

Date: October 13, 2016

Ontario Court of Justice

Before: Justice Peter C. West

Heard: September 14 and 15, 2016

Reasons for Judgment Released: October 13, 2016

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Luigi Russo

Counsel:

• Mr. O. Da Silva — counsel for the Crown
• Mr. F. Pizzimenti — Counsel for the defendant Luigi Russo

WEST J.:

Factual Background

[1] Mr. Russo was charged on May 3, 2015 with impaired driving and over 80. A Charter application was brought by the defence alleging breaches of ss. 8, 9 and 10(a) and (b) and it was agreed by counsel this application could be heard by way of a blended hearing. Mr. Russo entered pleas of not guilty to both charges and a trial was commenced.

[2] The Crown called two witnesses, Sgt. Brent Stitt, the arresting officer and P.C Linda Newman, the qualified breath technician. No evidence was called by the defence.

The Traffic Stop and Initial Observations

[3] On May 3, 2015, at approximately 2:00 a.m., Sgt. Stitt was on patrol, eastbound on Teston Road approaching Keele Street in the City of Vaughan, when he observed a car southbound on Keele Street. This car appeared to be travelling at a high rate of speed so Sgt. Stitt turned southbound onto Keele Street to follow the car. He caught up to the car at Major Mackenzie Drive, approximately two kilometers from where he turned onto Keele Street. Keele Street is a 50 km/hr zone. The car's speed fluctuated between 72 km to as low as 40 km. The car was driving in the curb lane and swerved several times within its lane, coming close to the curb and the line separating the fast lane and the curb lane. It did not strike the curb or cross the line.

[4] At Cromwell Road, approximately a kilometer from Major Mackenzie, Sgt. Stitt activated his emergency roof lights. The car turned right onto Cromwell and came to a stop by the curb. As Sgt. Stitt began to exit his police cruiser the car moved forward causing Sgt. Stitt to quickly re-enter his cruiser. The car only proceeded forward six feet before it stopped again. The traffic stop was made at 2:00 a.m. Sgt. Stitt was in uniform and was driving a marked police cruiser (SUV). He was a patrol sergeant.

[5] In cross-examination the defence suggested Sgt. Stitt was only behind Mr. Russo's vehicle for 30 seconds. Sgt. Stitt testified he was behind Mr. Russo from Major McKenzie Drive, which was about one kilometer north, before he activated the emergency lights of his police SUV at Cromwell Drive. Sgt. Stitt testified when he activated the emergency lights of his police cruiser, the in-car camera video automatically starts recording 25-30 seconds prior to when he turned on the emergency lights. Consequently, not everything about Mr. Russo's driving can be observed on the in-car camera video. Further, Sgt. Stitt testified the in-car camera video is not good quality as it is being recorded at night in poor lighting conditions.

[6] Sgt. Stitt agreed Mr. Russo put on his blinker before turning onto Cromwell Drive. Mr. Russo's vehicle had the proper lights on. Sgt. Stitt agreed he did not note any inappropriate breaking. There had been no 911 calls about Mr. Russo's driving. Mr. Russo did not go through any red lights. There were no HTA violations other than speeding. Mr. Russo identified himself properly by retrieving his wallet and removing his driver's license with no difficulty.

Initial Contact and Observations of Impairment

[7] Sgt. Stitt spoke to the driver at the driver's door and asked for the driver's license. The driver provided a valid driver's license, which Sgt. Stitt testified showed Mr. Russo's photo identification. Upon speaking to Mr. Russo, Sgt. Stitt immediately detected the odour of an alcoholic beverage on Mr. Russo's breath. It was Sgt. Stitt's opinion Mr. Russo's speech was slurred when he spoke.

[8] Sgt. Stitt testified he advised Mr. Russo he stopped him because of his driving; his speed and moving side to side within the lane and almost hitting the curb. Mr. Russo advised the officer he did not have his shoes on because they were hurting his feet. Mr. Russo told the officer he was coming from a party. Sgt. Stitt continued to detect the odour of alcohol coming from Mr. Russo's breath.

Sobriety Tests

[9] The officer asked Mr. Russo to step out of his vehicle to perform two sobriety tests. Mr. Russo put on his shoes at his open door. Sgt. Stitt then requested Mr. Russo to come to the back of Mr. Russo's car and perform two sobriety tests. Mr. Russo was standing between the front of Sgt. Stitt's police cruiser and the back of his car when he performed the tests. Sgt. Stitt described the first test as a finger to nose test, which he demonstrated to Mr. Russo, wherein Mr. Russo was to tilt his head backwards, put his arms out to the side, close his eyes and then, one finger at a time, touch his nose. Sgt. Stitt testified Mr. Russo was unable to perform this sobriety test correctly.

[10] The second sobriety test was described by Sgt. Stitt as a heel-to-toe walking test, which he had Mr. Russo perform by walking on the painted line on the pavement beside the curb of Cromwell Road where they were stopped. Sgt. Stitt directed Mr. Russo to walk heel-to-toe for a short distance and then turn around and walk back heel-to-toe to where he started. According to Sgt. Stitt, Mr. Russo did not follow his directions when he first attempted this test and walked very quickly in one direction in a normal walk and then turned around and walked back. He had to explain again what he wanted Mr. Russo to do. The second time Mr. Russo attempted the test he did the test poorly and appeared to be unsteady and swaying on his feet.

[11] Unfortunately Sgt. Stitt is standing in front of Mr. Russo when he is performing the finger to nose test and it is difficult to completely see Mr. Russo. I watched the in-car camera video, Exhibit 1, in court when it was played by the Crown and several times on my office computer and I observed Mr. Russo miss his nose and touch beside on his nose with each hand. The in-car recording was played during Sgt. Stitt's evidence. It showed the following times for things done by Sgt. Stitt and said by Sgt. Stitt inside his cruiser respecting rights to counsel, caution and the breath demand.

Timeline from In-Car Camera Video:

1. 1:59:40 a.m.: In-car camera shows Sgt. Stitt's vehicle following Mr. Russo's vehicle in curb lane;

2. 2:00:05 a.m.: Sgt. Stitt activates the emergency lights on the roof of his SUV police cruiser;

3. 2:00:25 a.m.: Mr. Russo turned right onto Cromwell Drive and stopped. As Sgt. Stitt exited his police cruiser, Mr. Russo's vehicle moved forward approximately six feet and then stopped again. Sgt. Stitt jumped back into his vehicle and moved it closer to the rear of Mr. Russo's vehicle;

4. 2:02:00 a.m.: Sgt. Stitt approached the driver's door of Mr. Russo's car and can be seen talking with Mr. Russo. The conversation continues until 2:02:53 a.m. when Mr. Russo exits his car;

5. 2:02:53 a.m.: Mr. Russo can be seen standing beside the car in the open driver's door putting on his shoes;

6. 2:04 a.m.: Mr. Russo walked back to the area between the back of his car and the front of police SUV; and

7. 2:04 a.m.: Sgt. Stitt demonstrated the finger to nose test and then Mr. Russo performed the test. Sgt. Stitt can be seen pointing to the line on pavement. Mr. Russo walked quickly on the line but not heel-to-toe. Sgt. Stitt demonstrated the heel-to-toe test again and Mr. Russo walked heel-to-toe as he was instructed. Mr. Russo appears to be unsteady as he walked heel-to-toe and then he went out of the view of the camera.

[12] Sgt. Stitt testified Mr. Russo did not follow his instructions for the heel-to-toe test and, when he did do it as Sgt. Stitt had instructed him, he performed the test poorly, was unsteady on his feet and swaying as he walked heel-to-toe.

[13] I also watched this on the in-car camera video in court as well as on my office computer and I observed Mr. Russo perform the test the first time by simply walking quickly on the line and then turning around and walking quickly back to where he started. Mr. Russo goes out of the view of the camera for part of this. Sgt. Stitt can be observed explaining again that he wants Mr. Russo to walk heel-to-toe. When Mr. Russo performs the test the second time I was able to observe him walking heel-to-toe and swaying as he walked. He walks beside the police cruiser and out of the view of the camera and then comes back into the view of the camera. The defence suggested the curb was affecting Mr. Russo's ability to properly perform this sobriety test; however, Sgt. Stitt denied this and from observations the curb did not interfere with Mr. Russo's ability to perform the heel-to-toe test.

Arrest and Rights to Counsel

[14] Sgt. Stitt testified that based on the totality of his observations he formed the opinion Mr. Russo's ability to operate a motor vehicle was impaired by alcohol and he told Mr. Russo he was under arrest for impaired driving. This occurred at 2:05 a.m. The officer handcuffed Mr. Russo to the rear, completed a pat down search and then placed him into the rear of his police cruiser. At approximately 2:08 a.m., Sgt. Stitt advised Mr. Russo of his right to counsel. Sgt. Stitt testified he could not recall the exact words he used to advise Mr. Russo of his right to counsel but it was on the in-car camera audio from inside his police SUV cruiser.

[15] Sgt. Stitt testified if Mr. Russo had successfully completed the two sobriety tests he would have made a demand pursuant to s. 254(2) for Mr. Russo to provide a sample of his breath into an approved screening device. As the patrol sergeant he would have had one of the police officers he supervised attend with an ASD. He never read a demand to provide a breath sample into an ASD as Mr. Russo did poorly on the two sobriety tests and, based on the totality of his observations, he believed he had reasonable and probable grounds to arrest Mr. Russo for impaired driving, which he did.

Detailed Timeline of Events

[16] The in-car camera video (outside the police SUV) and the audio (inside the police SUV) reflect the following:

1. 2:05:45 a.m.: Sgt. Stitt arrests Mr. Russo for impaired driving;

2. 2:06:02: Sgt. Stitt can be seen handcuffing Mr. Russo and conducting a pat down search as Mr. Russo is leaning over the hood of the police SUV;

3. 2:07 a.m.: Mr. Russo can be heard being placed into the rear of the police SUV and he can be heard breathing heavily by sucking in his breath;

4. 2:07:45 a.m.: P.C. Guidon can be seen searching Mr. Russo's car;

5. 2:08:07 a.m.: P.C. Guidon comes to SUV and asks for keys to car, apparently they are in Mr. Russo's pocket;

6. 2:08:45 a.m.: Sgt. Stitt says the following respecting the right to counsel (he did not read it from the back of his police notebook): "Okay sir, you are under arrest for impaired driving at this point, okay. You have the right to retain and instruct counsel without delay, that means you have right to speak to a lawyer, okay. It's my duty to inform you that what's going to take place sir is you're going to be transported to the police station where you will be given an opportunity to provide two samples of your breath into an approved instrument." Mr. Russo said he understood;

7. 2:09:15 a.m.: Sgt. Stitt read the formal breath demand and the caution from the back of his notebook to Mr. Russo;

8. 2:09 a.m.: Sgt. Stitt continued with the right to counsel by saying, "If you do not have a lawyer there is a free duty counsel that is provided free of service, that's a free lawyer that you can speak to at the station. Do you have any questions at this time sir?" Mr. Russo said "No, but I'm okay to drive";

9. 2:10:23 a.m. Sgt. Stitt advised Mr. Russo he was on video and that Sgt. Stitt videotaped him driving along the roadway. Mr. Russo then asked "What happened?" and Sgt. Stitt advised Mr. Russo that he was driving all over road in his lane;

10. 2:10:30 a.m.: Sgt. Stitt out of police SUV speaking to P.C. Guidon;

11. 2:11:05 a.m.: Sgt. Stitt back in police SUV; and

12. 2:11:51 a.m.: Sgt. Stitt leaves scene with Mr. Russo and arrives at police station at 2:14:40 a.m.

[17] The in-car camera video and audio is marked as Exhibit 1.

[18] Sgt. Stitt did not record in his notes the time he gave Mr. Russo his right to counsel, caution or the breath demand but he left the scene with Mr. Russo in the back of his cruiser at 2:11 a.m.

[19] Sgt. Stitt explained because he is the patrol sergeant his police cruiser is not equipped with an in-car camera which video-tapes what occurs inside the vehicle. The reason for this is he normally does not place an individual he has arrested inside his police cruiser. Usually there will be another uniformed officer on scene who would take custody of someone he has placed under arrest. In this case, P.C. Guidon did not arrive until after Mr. Russo had been handcuffed and placed into the rear of Sgt. Stitt's SUV cruiser. His vehicle is only equipped with an in-car camera that points onto the roadway. Once the equipment is activated the lapel microphone records what occurs outside the vehicle in terms of any interaction Sgt. Stitt will have with a person and inside his vehicle there is a microphone that records what occurs inside.

Booking and Duty Counsel

[20] Mr. Russo can be seen on the booking video. (There is no audio on the booking video. Apparently this is a policy decision made by York Regional Police Service not to replace the existing video recorders with video recorders that also record what is said by the booking staff sergeant, arresting officer and person charged.) The staff sergeant and Sgt. Stitt can be seen pointing to a pre-printed poster on the front of the booking desk. Sgt. Stitt testified this is the right to counsel contained in the back of the police notebook. The staff sergeant asks the person to read the beginning of this out loud and the remainder to themselves. After Mr. Russo was finished reading the notice, the staff sergeant asked Mr. Russo if he understood the charges and if he wanted to call a lawyer. Mr. Russo requested to speak to a duty counsel. The sally port and booking video was marked as Exhibit 2. Sgt. Stitt agreed he did not observe any signs of impairment when Mr. Russo was at the police station.

[21] P.C. Milen contacted duty counsel and at 2:38 a.m. Mr. Russo spoke to duty counsel, Mark Lalonde, in a private room. No questions were asked by either counsel as to when Mr. Russo finished speaking to the duty counsel.

Breath Testing

[22] At 3:10 a.m., Sgt. Stitt testified he turned over Mr. Russo to the qualified breath technician, P.C. Linda Newman. Sometime prior to turning Mr. Russo over to the breath technician, Sgt. Stitt advised P.C. Newman of his grounds of arrest, which were noted on the Alcohol Influence Report.

[23] Sgt. Stitt next saw Mr. Russo at 3:51 a.m. when Mr. Russo was returned to Sgt. Stitt with the breath results. The results were 169 mg of alcohol in 100 ml of blood and 161 mg of alcohol in 100 ml of blood. Sgt. Stitt was not there when Mr. Russo was released.

[24] Exhibit 3, which is page 12 and 13 at the back of a police officer's notebook, was filed by the defence. These pages set out the right to counsel, caution and breath demands.

[25] Sgt. Stitt agreed he did not provide a phone book for Mr. Russo to look up a lawyer to call. Mr. Russo never requested to speak to his own lawyer. He asked to speak to duty counsel and that is why Sgt. Stitt arranged for duty counsel to be called. If he had asked for a specific lawyer or had asked to look up a lawyer in the phone book Sgt. Stitt would have looked on the internet or in the lawyer's directory but that did not happen.

[26] Sgt. Stitt went off shift at 4:30 a.m., as did the staff sergeant who paraded Mr. Russo, so the staff sergeant who was on duty on the next shift would have released Mr. Russo from the station after the paperwork was completed. The paperwork usually takes between one and a half hours to three hours to complete.

Qualified Breath Technician Evidence

[27] P.C. Linda Newman was the qualified breath technician. She testified she has conducted two breath tests on approximately 300-350 subjects since she was first qualified. Prior to P.C. Newman arriving at the breath room at 3:10 a.m., when she took custody of Mr. Russo, Sgt. Stitt had provided her with his grounds, which he filled out on the Alcohol Influence Report. Sgt. Stitt wrote, "he viewed vehicle southbound on Keele Street at a high rate of speed, caught up to vehicle at Major McKenzie and Keele and then followed vehicle southbound in the curb lane with speeds between 40 and 70 km in a 50 km/hr zone. The vehicle was swerving within its lane a couple of times, almost hitting curb and almost crossing line. He stopped vehicle at Cromwell Drive. Vehicle moved forward as if going to leave. He asked the driver if he had anything to drink. Detected odour of alcohol on breath and driver's speech slurred. He performed two sobriety tests on driver and arrested driver for impaired driving."

[28] P.C. Newman read the qualified breath technician's breath demand and secondary caution to Mr. Russo. She did this at 3:19 a.m. while the Intoxilyzer 8000C was going through its calibration and diagnostic tests. P.C. Newman read the breath demand when she performed the self-test. The approved instrument was working properly. She asked Mr. Russo if he was operating a motor vehicle and he replied yes. She asked where he was driving to and Mr. Russo said home. He said he was coming from the Legion in Aurora. He started driving around 1:45 a.m. He admitted to consuming alcohol, just one beer. He did not remember when he started or when he stopped. P.C. Newman believed Mr. Russo had spoken to duty counsel. He did not request counsel of choice, he requested duty counsel. Mr. Russo told P.C. Newman he was on medications for blood pressure, anxiety and cholesterol. He last took his medication at 5:30 a.m. the previous day. The doctor told him not to drink alcohol if he was taking his medication. The odour of alcohol was very noticeable when Mr. Russo was talking but not overwhelming. Mr. Russo's face had a flushed complexion, his entire face was red. He was very cooperative and polite. He had no issues walking out of the breath room.

[29] The first reading was at 3:24 a.m. and provided a result of 169 mg of alcohol in 100 ml of blood. The second reading was at 3:48 a.m. and provided a result of 161 mg of alcohol in 100 ml of blood. Mr. Russo was returned to the custody of Sgt. Stitt at 3:51 a.m. Exhibit 5 is a true copy of the Qualified Breath Technician's Certificate.

[30] In cross-examination P.C. Newman testified Mr. Russo was in her presence for about 40 minutes and he took three to four steps when he left the breath room. He had no issue getting out of the chair to leave. His speech was good with no slurring of his words. P.C. Newman had no concerns about Mr. Russo being released and she would have conveyed that to the officer in charge of the station.

Release from Custody

[31] An agreed statement of facts was filed as Exhibit 6, which indicated P.C. Guiden contacted Mrs. Russo at 4:30 a.m. and asked her to pick up her husband at 5:30 a.m. She was available to attend the police station. Staff Sgt. Lambert told P.C. Guiden to call Mrs. Russo back and tell her not to come at 5:30 a.m. as Mr. Russo would not be released until later that morning.

[32] The promise to appear indicates Mr. Russo was released at 10:00 a.m.

Analysis

A. Were Mr. Russo's s. 10(a) and (b) Charter rights infringed?

Section 10(a) — Right to be Informed of Reasons for Arrest

[33] Section 10 (a) and 10(b) provide:

Everyone has the right on arrest or detention

(a) To be informed promptly of the reasons therefor;

(b) To retain and instruct counsel without delay and to be informed of that right.

[34] Mr. Pizzimenti argued in his original Charter application that Sgt. Stitt had not promptly advised Mr. Russo of the reason for the traffic stop and thereby breached Mr. Russo's Charter rights under s. 10(a). Sgt. Stitt testified he did advise Mr. Russo as to the reason why he stopped him. On the in-car camera video Sgt. Stitt can be seen speaking at the driver's window to Mr. Russo from before 2:02 a.m. to 2:03:50 a.m. At 2:03:53 a.m. Mr. Russo steps out of his vehicle and then puts on his shoes.

[35] Sgt. Stitt testified he checked his microphone, which was attached to his uniform at the start of his shift and it was working. He cannot explain why the microphone was not working when he attended Mr. Russo's car other than in the past sometimes the batteries die during a shift. He stopped Mr. Russo towards the end of his shift. Sgt. Stitt testified the failure of microphones officers wear on their uniforms is an issue with the in-car camera system.

[36] Mr. Pizzimenti argues there is nothing in Sgt. Stitt's notes about advising Mr. Russo as to the reason for the traffic stop and therefore I should not accept his evidence. Sgt. Stitt agreed he did not write in his notes about advising Mr. Russo of the reason for the traffic stop. Sgt. Stitt testified he specifically recalled advising Mr. Russo he stopped him because of his driving: his fluctuating speed and moving within his lane and almost hitting the curb. It was during this conversation and when he asked for Mr. Russo's driver's license and other documentation he detected the odour of alcohol on Mr. Russo's breath.

[37] Mr. Pizzimenti took issue with the fact that Sgt. Stitt had not put anything in his notes respecting his advising Mr. Russo of the reason for the traffic stop. I would note that while an officer's notes are provided as part of disclosure, there is no law that a police officer must record every detail of what he or she did or saw in their notebook to comply with the Crown's disclosure obligation. I agree with the following comments by Garton J. in R. v. Antoniak, [2007] O.J. No. 4816 (S.C.):

24 It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

25 The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.

[38] I accept Sgt. Stitt's evidence on whether he advised Mr. Russo of the reason for the traffic stop. Mr. Russo did not testify on the Charter application. Consequently, the only evidence as to whether Sgt. Stitt advised Mr. Russo of the reason for the stop is the uncontradicted evidence from Sgt. Stitt. Of course, Mr. Russo is not obligated to testify, even on the Charter application. I found the evidence of Sgt. Stitt to be straightforward and without embellishment. I found Sgt. Stitt to be a very fair witness in terms of the observations he made. In my view the amount of time Sgt. Stitt was at the driver's window, as seen on the in-car camera video, supports Sgt. Stitt's evidence he advised Mr. Russo of the reason for the stop. Sgt. Stitt did not realize his lapel microphone was not working until just before the trial when he reviewed the in-car camera video. If the microphone had been working this conversation between Sgt. Stitt and Mr. Russo would have been recorded. What is significant is that within two minutes of the traffic stop Sgt. Stitt requested Mr. Russo exit his car and asked him to perform two sobriety tests. This request in my view would have indicated very clearly to Mr. Russo the purpose of the traffic stop and I draw the reasonable inference Mr. Russo was fully aware of the reasons for the stop.

[39] Consequently, I find there was no breach of Mr. Russo's s. 10(a) Charter rights.

Section 10(b) — Right to Counsel

[40] Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477, [2009] O.J. No 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.

[41] In R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen, (1987), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.

[42] The Supreme Court of Canada has consistently held since R. v. Baig, [1987] 2 S.C.R. 537, that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, [2005] O.J. No. 754 (C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972 (C.A.), at para. 28.

[43] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27, the Supreme Court has also made it clear the implementational duties of the police flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens, supra, at para. 25.

[44] Mr. Russo bears the onus to satisfy me on a balance of probabilities that his right to counsel pursuant to s. 10(b) was breached.

[45] Mr. Pizzimenti argues Sgt. Stitt did not comply with the informational component of the right to counsel and thereby breached Mr. Russo's s. 10(b) Charter rights. He submits Sgt. Stitt did not provide the 1-800 number when he gave Mr. Russo the right to counsel and he did not tell Mr. Russo he could contact "any" lawyer. The defence argued further the police never provided a phone book at the police station for Mr. Russo to look up a lawyer to call and he submits the police automatically defaulted to duty counsel.

[46] On the audio portion of the in-car camera video Sgt. Stitt advised Mr. Russo he was under arrest for impaired driving and he had the right to retain and instruct counsel without delay, which meant he had the right to speak to a lawyer. Sgt. Stitt continued with the right to counsel after giving Mr. Russo the breath demand and caution by advising Mr. Russo if he did not have a lawyer there was a free duty counsel that is provided free of service that he could call from the police station. Once at the police station both the Staff Sgt. and Sgt. Stitt can be seen, on the booking video, pointing to a pre-printed form, in large letters, that was posted on the front of the booking desk. Sgt. Stitt testified Mr. Russo was asked to read aloud the beginning of the right to counsel and then read the remainder to himself. Sgt. Stitt testified the wording of this poster is identical to the right to counsel in the back of a police officer's notebook. When Mr. Russo was asked if he wanted to call a lawyer he advised he wanted to speak to duty counsel. Sgt. Stitt testified Mr. Russo never asked to speak to a specific lawyer and, if he had asked for a specific lawyer, Sgt. Stitt testified he would have looked up the lawyer's name in the directory or on the internet or taken the number from Mr. Russo, but that did not happen. Again, Mr. Russo did not testify on the Charter application respecting his right to counsel and whether he had in fact requested to speak to duty counsel or whether he wanted to speak to counsel of choice.

[47] In my view there is no obligation on the police to provide a phone book to a detainee who has not requested to speak to a specific lawyer or asked for a phone book to look up their lawyer's number. In this case Mr. Russo was provided all of the informational components of the right to counsel by Sgt. Stitt at the scene after the arrest and again at the police station when he was paraded. I find Mr. Russo took advantage of the free duty counsel to obtain legal advice and in fact spoke to duty counsel, Mark Lalonde, prior to providing two samples of his breath. The qualified breath technician, P.C. Newman testified she was aware Mr. Russo had spoken to duty counsel and Mr. Russo did not raise any concerns or complaints about the legal advice he was provided by duty counsel to P.C. Newman.

[48] Consequently, I find there is no breach of Mr. Russo's s. 10(b) Charter rights.

B. Did Sgt. Stitt contravene s. 254(2)(a) by not demanding Mr. Russo perform standard field sobriety tests (SFST) as mandated by the regulations?

[49] Section 254(2)(a) provides:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it is in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) To perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose;

[50] It was argued by Mr. Pizzimenti that Sgt. Stitt was not permitted to request Mr. Russo perform sobriety tests not in accordance with s. 254(2)(a) and the regulations, which were enacted in 2008. He argued it was manifest statutory non-compliance with the regulatory scheme, as well as the officer's lack of training to administer the SFST, which should lead to the exclusion of the two sobriety tests conduct by Sgt. Stitt at the scene. It was also the defence position even with the results of the two sobriety tests Sgt. Stitt did not have reasonable and probable grounds to arrest Mr. Russo. I will deal separately with this s. 8 Charter argument.

[51] During Mr. Pizzimenti's submissions I expressed my view that a police officer who has a reasonable suspicion a driver has alcohol in his system is not precluded from continuing his investigation into whether the driver's ability to operate a motor vehicle is impaired by the consumption of alcohol. To that end, a police officer could request a driver to exit his vehicle and observe his ability to stand and to walk or a police officer could request a driver exit his vehicle and perform coordination/sobriety tests. I inquired whether Mr. Pizzimenti had any precedents to support his position. He indicated he was unaware of any cases on point.

[52] During argument on the impaired driving charge Mr. Pizzimenti referred me to R. v. Milne, [1996] O.J. No. 1728 (C.A.), at para. 49, which held when a police officer performs sobriety tests or coordination tests at the roadside, the test observations are inadmissible as evidence against the accused on the impaired charge. I expressed my view that this decision supported my earlier comments that a police officer could continue his investigation of a driver for impaired operation by requesting the driver perform coordination or sobriety tests without infringing s. 254(2)(a).

[53] A short time after the case was adjourned for judgment Mr. Pizzimenti forwarded a recent decision of Justice Lack in R. v. Campbell, [2015] O.J. No. 5914 (S.C.), a Summary Conviction Appeal judgment which deals specifically with the issue raised by Mr. Pizzimenti. I would like to express my appreciation to Mr. Pizzimenti in providing this Superior Court decision to me, which decision is binding upon me.

[54] In allowing the Crown appeal and registering a conviction on the over 80 charge Justice Lack held at paras. 14-22:

14 The trial judge found that the approach set out in s. 254(2) of the Criminal Code was mandated by law and regulation. His view was that the officer acted improperly in not proceeding under s. 254(2). In my view, he was in error.

15 In 2008, s. 254(2) of the Criminal Code was amended to give police officers the power to demand standard field sobriety tests.

16 Prior to the 2008 amendment, which added the standard field sobriety tests to s. 254, the issue arose whether an officer stopping a vehicle under s. 30a, now s.48(1) of the Highway Traffic Act had authority to ask the driver to perform a sobriety test. Section 30a provided that a police officer may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under s. 254 of the Criminal Code - an ALERT demand. Of course, the section of the Highway Traffic Act in effect today, s. 48(1), is essentially the same as s. 30a was at the time. In R. v. Saunders, [1988] O.J. No. 397, the Ontario Court of Appeal ruled that an officer stopping a vehicle under s. 30a had authority to conduct a sobriety test.

17 In a later decision, R. v. Smith, [1996] O.J. No. 372, the Ontario Court of Appeal ruled that the authority to conduct a sobriety test existed even when the officer already had grounds to demand an ALERT test.

18 Later in R. v. Orbanski, 2005 SCC 37, [2005] S.C.J. No. 37 the Supreme Court of Canada found that the section implicitly gave, and again we are talking about s. 30a now s. 48(1) of the Highway Traffic Act, a police officer stopping a vehicle to check on driver sobriety the power to require the driver to take reasonable and necessary steps to facilitate the determination.

19 Those were the powers that a police officer had prior to the amendments of 2008. There is nothing in the amendment to take them away. As Perell, J. noted recently, albeit a civil case, Freedman v. Cooper, (2005) 2015 ONSC 1373, 124 O.R. (3d) 793 (S.C.O.): "It is presumed that legislation preserves rather than changes the common law. It is presumed that the legislator will not change the common law without expressing its intentions to do so with irresistible clearness."

20 Section 254(2), on a plain reading, is permissive, not mandatory, contrary to what the trial judge said. It simply gives an officer another tool he may use. In the present case the arresting officer did not invoke the section. He did not make a demand under s. 254(2) for Mr. Campbell to perform one or more of the standard field sobriety tests. He took a different approach, and I might add an approach that was more favourable to the accused because it was not a demand.

21 In my view, the 2008 amendments did not alter the Highway Traffic Act or the common law powers of a police officer to determine whether a demand can be made under the Criminal Code.

22 For these reasons I find that the trial judge erred in finding that the officer acted improperly in not proceeding under s. 254(2) of the Criminal Code.

23 In conclusion, in my view, Mr. Campbell's Charter rights were not breached. The officer was entitled to consider the results of the field sobriety test in formulating his grounds. The arresting officer's subjective belief in his grounds for arrest were accepted. The objective basis was rejected. The arresting officer testified that he came to his determination of reasonable and probable grounds on the totality of the evidence.

[55] I agree with Justice Lack's analysis and I find Sgt. Stitt did not breach Mr. Russo's s. 8 Charter rights by performing the two sobriety tests. Sgt. Stitt was entitled to request Mr. Russo perform the two sobriety tests he testified he regularly employed when investigating a driver for impaired operation. Sgt. Stitt further testified if Mr. Russo had refused he would have made an approved screening demand pursuant to s. 254(2)(b), as he had already formed a reasonable suspicion Mr. Russo had alcohol in his body from detecting the odour of alcohol on Mr. Russo's breath.

[56] As I indicated above, a police officer who has stopped a driver because of suspicion their ability to operate a motor vehicle was impaired by alcohol does not have to suspend their investigation once they form a reasonable suspicion the driver has alcohol in their body. The officer is entitled to continue their investigation into whether the driver's ability to operate the motor vehicle is impaired by alcohol by asking the person to exit the vehicle and observing the way they get out of their car and how they walk or how their balance is or by asking the driver to perform sobriety tests.

[57] The only time the officer is required to comply with the standard field sobriety tests, set out in the regulations, is if they intend to make a demand under s. 254(2)(a). If a driver refuses to perform the SFST the police officer can charge the driver with the offence of refusing to perform SFST pursuant to s. 254(5). Sgt. Stitt would not have been able to charge Mr. Russo under s. 254(5) if Mr. Russo had refused to perform the finger to nose test or the heel-to-toe test.

[58] Consequently, I do not accept the defence argument the results of the two sobriety tests should be excluded because Sgt. Stitt did not comply with the statutory scheme set out in s. 254(2)(a) and the regulations relating to SFST. There is no Charter breach in respect of Sgt. Stitt requesting Mr. Russo perform the two sobriety tests and his consideration of the results of those two tests in addition to his other observations to assist in his formulating reasonable and probable grounds to arrest Mr. Russo for impaired operation.

C. Did Sgt. Stitt have reasonable and probable grounds to arrest Mr. Russo for impaired driving and thereby make a demand for breath samples pursuant to s. 254(3)?

[59] Mr. Pizzimenti also argued Sgt. Stitt did not have reasonable and probable grounds to arrest Mr. Russo for impaired driving and therefore breached Mr. Russo's s. 8 Charter rights. This requires an assessment as to whether Sgt. Stitt's observations provided both subjective and objective grounds for the arrest.

[60] In Regina v. Censoni, [2001] O.J. No. 5189 (S.C.), Justice Hill stated in paras. 35, 43:

35 In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3 per curiam. The existence of a "constellation of objectively discernible facts," spoken of by Doherty J.A. in Regina v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: Regina v. Hall, supra at 74-75. In Storrey v. The Queen, supra at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed. This was the approach followed in Regina v. Hall, supra at 77 and to this end, in R. v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.) at 168-9, the court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief.

43 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicial reflection. [Emphasis added] This undoubtedly led McFadyen J.A. in Regina v. McClelland, supra at 517 to observe:

It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable.

[61] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, Durno J., delivering the judgment of the Ontario Court of Appeal, summarized the proper approach to be taken by trial judges in assessing whether the necessary reasonable and probable grounds exist. In R. v. Suntharalingham, O.J. No. 5145 (S.C.), Campbell J. summarized this approach as follows in para. 21:

(1) The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R v. Baron (1993), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom." See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43.

(3) There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.); Affirmed:, [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; R. v. Censoni, at para. 47; R. v. Wang, at para. 17.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection." Yet it is "neither necessary nor desirable" to conduct an impaired driving trial as if it were a "threshold exercise in determining whether the officer's belief was reasonable." See: R. v. Bush, at para. 55. See also: R. v. McClelland (1995), 1995 ABCA 199, 165 A.R. 332 (C.A.); R. v. Jacques, [1996] 3 S.C.R. 12, at para. 23; R. v. Censoni, at para. 43.

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: R. v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: R. v. Censoni, at para. 36-37.

[62] It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable.

[63] In R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490, at paras. 17, 20 & 21, the Ontario Court of Appeal, relying on R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 made the following observations concerning the forming of reasonable and probable grounds by a police officer:

…where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd, [1994] 2 S.C.R. 478.

[64] In the present case, Sgt. Stitt relied on the following observations and information known to him in determining his subjective belief he had reasonable and probable grounds.

1. Mr. Russo swerved within his lane on two occasions;

2. Mr. Russo's speed fluctuated between 40 to 72 km/hr in a 50 km/hr zone;

3. Mr. Russo's speech was slurred when Sgt. Stitt spoke to him at the driver's door;

4. Sgt. Stitt detected a strong odour of alcohol coming from Mr. Russo's mouth when he spoke;

5. Sgt. Stitt's observations of the two sobriety/coordination tests he had Mr. Russo perform; namely a finger-to-nose test and walking heel-to-toe on a straight line on the pavement, Sgt. Stitt testified Mr. Russo did poorly on both tests.

[65] I find Sgt. Stitt had a subjective honest belief which was objectively based on reasonable and probable grounds to arrest Mr. Russo for impaired operation and demand he provide a suitable sample of his breath pursuant to s. 254(3) of the Criminal Code.

[66] It is my view, having regard to the above observations and information, a reasonable person, standing in the shoes of Sgt. Stitt, would believe reasonable and probable grounds existed to arrest Mr. Russo for the offence of impaired operation of a motor vehicle as a result of his consumption of alcohol.

[67] Consequently, the Charter application pursuant to s. 8 is dismissed.

D. Were Mr. Russo's s. 9 Charter rights breached?

[68] It is clear that Mr. Russo was detained after his second reading was obtained at 3:48 a.m. until he was released at 10:00 a.m. on a Promise to Appear. It is also clear from the evidence that a shift change occurred at approximately 4:30 a.m. when both Sgt. Stitt and the Staff Sgt. in charge of the police station went off shift. Sgt. Stitt testified the new Staff Sgt., who came on duty at 4:30 a.m., would have released Mr. Russo as the officer in charge of the police station. Exhibit 6 indicates Mr. Russo's wife was originally advised to come to the police station at 5:30 a.m. to pick up her husband; however Staff Sgt. Lambert advised P.C. Guidon to call Mrs. Russo and advise her not to attend at 5:30 a.m. as Mr. Russo was not going to be released until later in the morning. He was not released until 10:00 a.m. according to the Promise to Appear.

[69] No explanation was provided in the Agreed Statement of Facts as to why Staff Sgt. Lambert decided not to release Mr. Russo at 5:30 a.m. Mr. Russo was held for a further four and a half hours beyond the original time set for his release.

[70] Section 9 of the Charter guarantees that everyone has the right to be free from arbitrary detention. The burden is upon the applicant to present a prima facie case that calls for an answer by the Crown. The length of the detention itself may establish a prima facie case where the duration is considerable: R. v. Iseler (2004), 190 C.C.C. (3d) 11 (C.A.) at para. 22.

[71] The Court of Appeal, in R. v. Iseler, supra, held that in a case where a person was detained for 11 hours after his breath tests were completed, with no assessment by the officer in charge of the station as to when the accused could properly be released, his detention was arbitrary and a breach of s. 9 of the Charter. However, the Court upheld the lower courts' refusal to order a stay. Armstrong J.A. held:

While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence."

[72] Section 498(1.1) of the Criminal Code states that:

The officer in charge or peace officer shall not release a person ... if the officer in charge or peace officer believes, on reasonable grounds,

(a) That it is necessary in the public interest the person be detained in custody ... having regard to all of the circumstances including the need to

(i) Establish the identity of the person

(ii) Secure or preserve evidence of or relating to the offence

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

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

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

[73] Section 498 mandates the release of an arrested person as soon as practicable unless it is believed on reasonable grounds that it is necessary in the public interest that the person be detained to prevent the continuation or repetition of the offence or the commission of another offence. (See s. 498(1) and (1.1)(a)(iii)) Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released: R. v. Sapusak, [1998] O.J. No. 3299, supra.; R. v. Coulter, [2000] O.J. No. 3452 (C.J.), affirmed [2001] O.J. No. 5608 (S.C.); R. v. Padda, [2003] O.J. No. 5502 (C.J.); R. v. Gaudette, [2005] O.J. No. 2399 (C.J.), reversed for other reasons, [2006] O.J. No. 3732 (S.C.); R. v. Kisil, 2009 ONCJ 424, [2009] O.J. No. 3821 (C.J.); and R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No. 6001 (C.J.); R. v. Key [2011] O.J. No. 5972 (C.J.) and R. v. Baxter, [2012] O.J. No. 796 (C.J).

[74] In this case Mr. Russo had been identified; there was no issue in regard to the securing or preserving of evidence that would have justified his continued detention and similarly, no issue in regard to ensuring the safety or security of any victim or witness. There was no belief by any police officer that Mr. Russo would not attend court as required. Initially the new Staff Sgt. had instructed P.C. Guidon to arrange for Mr. Russo to be picked up by his wife at 5:30 a.m. This decision was changed and Mr. Russo was not released until 10:00 a.m. No explanation was provided for this further delay of four and a half hours. The delay after the second breath reading is approximately six hours before Mr. Russo was released.

[75] In R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.), Justice Durno considered an appeal of a trial judge's decision, who found a breach of s. 9 of the Charter after the accused was detained for approximately 6 ½ hours after the second breath reading. In that case, the releasing police officer did not consider alternatives to detention and allowed the breath readings to foreclose consideration of any other circumstances. The officer focused exclusively on the accused's breath readings. The trial judge found there was a breach of s. 9 but did not order a stay as he was of the view that the "over-holding" was a "minor wrong".

[76] Justice Durno, in his usual thorough analysis, held that where an officer focuses on the blood/alcohol level as the sole determinant as to whether to release an accused, this is too narrow a focus and will result in a breach of s. 9. Justice Durno held, at para. 93:

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

[77] No explanation is provided for why Mr. Russo was not released to his wife at 5:30 a.m. In many of the reported cases, officers in charge of the station have exercised their discretion not to release an accused pursuant to s. 498(1.1) of the Criminal Code because of the level of the accuseds' breath readings and estimated the time of release based on an accepted rate of elimination (see R. v. Paszczenko and R. v. Lima 2010 ONCA 615, [2010] O.J. No. 3974 (C.A.), at para. 61). I do not know why Mr. Russo's detention was continued as no evidence was called by the Crown as to the reasons why Staff Sgt. Lambert did not release Mr. Russo.

[78] In all of the circumstances I find there was a breach of Mr. Russo's s. 9 Charter rights, although in my view it is close to the line given the existing case law relating to the length of time Mr. Russo was held after the second breath sample was taken and his eventual release. I note his breath readings were in excess of twice the legal limit. I do not know why Staff Sgt. Lambert instructed Mrs. Russo her husband could not be released at 5:30 a.m. and would be released later in the morning. It would be speculation for me to suggest reasons why Staff Sgt. Lambert did not release Mr. Russo when he originally had instructed P.C. Guidon to do so. I am completely in the dark as to the reasons, if any; Mr. Russo was not released for approximately six hours after his second breath reading was obtained. In those circumstances this is precisely what Justice Durno indicates would lead to a breach of s. 9 of the Charter and, consequently, I find Mr. Russo was arbitrarily detained.

1. Should the breath readings be excluded pursuant to s. 24(2)?

[79] In determining whether evidence should be excluded under s. 24(2) of the Charter, the court must be satisfied (i) that "the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter;" and (ii) that the admission of the evidence in the proceedings would bring the administration of justice into disrepute: R. v. Strachan, [1988] 2 S.C.R. 980. What constitutes "in a manner that infringed or denied" has been the subject of relatively recent analysis in R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (C.A.). There, Watt, J.A., for the unanimous court, stated the following:

71 Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, an infringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was "obtained in a manner" that infringed or denied the accused's Charter right or freedom. This latter requirement insists that there be a nexus, expressed in the language "obtained in a manner" in s. 24(2), between the infringement and the evidence proposed for admission. In the absence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issue must be resolved otherwise.

72 To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis: Simon, at para. 69. Courts have adopted a purposive and generous approach to the nexus requirement: Wittwer, [2008 SCC 33, [2008] 2 S.C.R. 235], at para. 21. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para. 21; R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1005. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, causal, or the three in combination: Plaha, [(2004), 188 C.C.C. (3d) 289 (Ont. C.A.)], at para. 45; Wittwer, at para. 21; and R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40. Remote or tenuous connections fall short of establishing the necessary nexus: Goldhart, at para. 40; Plaha, at para. 45; and Wittwer, at para. 21.

73 As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to make out the nexus requirement under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha, at para. 49. [Emphasis added]

[80] The onus is on the defence to establish on a balance of probabilities that the evidence proposed to be admitted into evidence was "obtained in a manner" that infringed or denied the accused's Charter rights. In Manchulenko, supra, the Court of Appeal held there must be a nexus between the infringement and the collection of the evidence to be admitted. To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis. In R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21, the Supreme Court held in dealing with a Charter breach relating to the obtaining of a statement:

In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three": R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely "remote" or "tenuous" will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45. [Emphasis added]

[81] Recently the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389, [2016] O.J. No. 2656 (C.A.), dealt with whether Charter breaches that occur after the obtaining of evidence meet the "obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter" requirement in s. 24(2) of the Charter. Laskin J.A., for the Court, held that in an appropriate case a court could exclude evidence because of a Charter breach occurring after the evidence was discovered or obtained.

[82] The facts as found by the trial judge in R. v. Pino involved the police conducting surveillance of a house that Ms. Pino exited carrying a box and placing it into the trunk of a motor vehicle. She was followed to another address where she met a man, who took over driving the motor vehicle with Ms. Pino as a passenger. The police decided to arrest Ms. Pino and a traffic stop using a uniformed officer and marked cruiser occurred. Another unmarked police car driven by an undercover police officer, who was masked, pulled in front of the car Ms. Pino was in. This officer, dressed in black, wearing a balaclava, armed with a handgun and wearing a police vest with "Police" on it, exited this car. The handgun was pointed at Ms. Pino. Ms. Pino was arrested, handcuffed and made to sit on the curb while a search was conducted of her car, including the trunk where a box was found containing 50 marihuana "clone" plants. The trial judge found the masked take-down of Ms. Pino at gunpoint to be unreasonable as there was no justification for it and further found the search of the vehicle to be unreasonable, contrary to s. 8 of the Charter.

[83] In addition the trial judge in Pino found two breaches of s. 10(b): the police failed to accurately inform Ms. Pino of her s. 10(b) rights; and the police failed to facilitate her access to counsel without delay. Ms. Pino was not permitted to contact or speak to a lawyer until after the execution of a search warrant at the house she was observed exiting, which was approximately three hours after the search warrant was executed and approximately five and a half hours after her arrest. Upon execution of the search warrant a large marihuana grow operation was discovered. The Charter breaches were further compounded by the finding of the trial judge that the police officers either lied or were dishonest during their testimony. Although the trial judge found the Charter breaches he did not exclude the marihuana discovered in the trunk or in the house because of what he viewed as "clear and binding authority prohibiting courts in Ontario from excluding evidence discovered before a Charter breach has occurred," relying on R. v. LaChappelle (2007), 2007 ONCA 655, 226 C.C.C. (3d) 518 (Ont. C.A.) and R. v. Strachan, supra.

[84] After reviewing the jurisprudence, Laskin J.A. held Strachan did not "expressly consider and reject the proposition that evidence obtained before a Charter breach could not be excluded under s. 24(2)." He found the facts in LaChappelle were very different from the facts in Pino. Justice Rosenberg, in LaChappelle, relied on Strachan to hold that evidence seized by the police before an alleged Charter violation could not be excluded under s. 24(2). However, as Justice Laskin points out, Justice Rosenberg, in LaChappelle, held there was no factual or temporal connection between the breach and the obtaining of the evidence. The alleged Charter breach, a s. 10(b) violation occasioned by duty counsel providing inadequate advice to the accused, occurred after the blood samples had been taken for medical purposes only and consequently, were not even part of the same transaction. The police attended the hospital at a later time with a search warrant to seize any remaining blood samples. In those circumstances, Justice Laskin held "LaChappelle did not stand for the sweeping proposition that a Charter breach after the evidence has been discovered can never meet the 'obtained in a manner' requirement in s. 24(2)" (at para. 68).

[85] Justice Laskin held, based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

1. The approach should be generous, consistent with the purpose of s. 24(2)

2. The court should consider the entire "chain of events" between the accused and the police

3. The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

4. The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections

5. But the connection cannot be either too tenuous or remote.

[86] Justice Laskin found "the marihuana seized from the trunk of Ms. Pino's car and all three Charter breaches were part of the same transaction. He found that transaction or common link between the evidence and the breaches was Ms. Pino's arrest" (at para. 73). He also found the connection between the evidence and the breaches was both temporal and contextual and was neither too tenuous nor too remote. He concluded that the marihuana was "obtained in a manner" that breached Ms. Pino's s. 8 and s. 10(b) rights. Consequently, on the facts in Pino, Justice Laskin found the trial judge should have considered whether the evidence should be excluded pursuant to s. 24(2) as it had been "obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter."

[87] In the case at bar, I find there is no temporal or contextual connection between the taking of the two breath samples and the s. 9 Charter breach of "overholding." Mr. Russo was initially stopped by Sgt. Stitt for a Highway Traffic Act infraction. As a result of detecting an odour of alcohol on Mr. Russo's breath and believing Mr. Russo's speech was slurred Sgt. Stitt requested Mr. Russo exit his car to perform two sobriety tests to determine whether there were reasonable and probable grounds to arrest Mr. Russo for impaired driving. Mr. Russo was arrested for impaired driving after doing poorly on the sobriety tests and a demand was made for breath samples. He was brought to the police station for that purpose and provided two breath samples: 169 mg of alcohol in 100 ml of blood and 161 mg of alcohol in 100 ml of blood. I find there is no temporal or contextual connection between the evidence obtained and the s. 9 Charter breach.

[88] In R. v. Iseler, supra, at para. 31, Armstrong J.A. held:

While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence." [Emphasis added]

[89] Consequently, I find that the breach of Mr. Russo's right not to be arbitrarily detained cannot be seen as part of the same transaction or course of conduct by which his breath readings were obtained as there is no temporal or contextual connection between the evidence obtained and the s. 9 Charter breach. Further, it is my view any connection between the evidence and the s. 9 Charter breach is too tenuous and too remote. Section 24(2) of the Charter, in my view, is not applicable. This is not one of the "appropriate cases" referred to by Justice Laskin, where a court can exclude evidence even if the Charter breach occurs after the evidence is discovered or obtained by the police.

2. Should the Over 80 charge be stayed pursuant to s. 24(1)?

[90] It is my view, given that the s. 9 breach occurred after the collection of the breath samples, the only possible remedy available to the defence is that of a stay of proceedings pursuant to s. 24(1).

[91] In Iseler, supra, the Court of Appeal found that holding Mr. Iseler for 11 hours where there was no assessment by the officer in charge of the station as to when Mr. Iseler could properly be released, in those circumstances his detention was arbitrary and a breach of s. 9 of the Charter. The breach, however, was entirely post-offence and had nothing to do with the investigation and the gathering of evidence against Mr. Iseler. Armstrong J.A. cited Sapusak where the officer had made an assessment of the accused and determined that he could be released when his blood/alcohol was below 50 mgs. In Iseler there was no assessment and he was held until his blood/alcohol level would have been near zero. Consequently, his s. 9 Charter right not to be arbitrarily detained was infringed. Despite this breach, the Court of Appeal held that a stay pursuant to s. 24(1) of the Charter was not the appropriate remedy.

[92] The defence argues the over 80 charge should be stayed pursuant to s. 24(1) because of the s. 9 Charter breach. In my view, the defence position is fully answered by R. v. Sapusak, supra, and R. v. Iseler, supra. In Sapusak, the Court of Appeal found that, considering the high readings, the police were justified in detaining the accused for his own protection. The readings in Sapusak were 130 mgs of alcohol in 100 ml of blood, which are considerably less than in Mr. Russo's case. Even if the Court had concluded that the detention was arbitrary, the Court held there was no justification for excluding the breath readings as there was no temporal or causal connection between the breach and the obtaining of the evidence and that a stay of proceedings was not appropriate as it was not one of the clearest of cases.

[93] A judicial stay of proceedings is an exceptional remedy that is reserved for the clearest of cases. The leading authorities are generally recognized as R. v. O'Connor, [1995] 4 S.C.R. 411, Canada (M.C.I.) v. Tobiass, [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. The principles that emerge from these three cases have very recently been summarized by the Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, at para. 57:

(1)...... There are two categories of cases that may attract a stay of proceedings. The first category implicates the fairness of an individual's trial resulting from state misconduct. The second involves a residual category unrelated to the fairness of the trial, but involves state conduct that contravenes fundamental notions of justice, which undermines the integrity of the judicial process.

(2)...... In considering whether to grant a stay of proceedings under either of the above categories, the following criteria must be satisfied:

(i) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice; and

(ii) no other remedy is reasonably capable of removing that prejudice.

(3)...... In cases in either of the above categories where there remains some uncertainty as to whether the abuse is sufficiently serious to create the prejudice to warrant a stay, there is a third criterion that the court may consider - the balancing of the interests in granting a stay against society's interest in having a trial on the merits.

See also R. c. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309 (also referred to as R. v. Babos), which has further addressed a stay pursuant to s. 24(1) of the Charter. Justice Campbell in R. v. Waisanen, [2015] O.J. No. 4835, at paras. 29-33 and 36-38, has succinctly summarized the highlights in R. v. Babos and I adopt his comments.

[94] The claim before me clearly falls within the "residual category" of cases that may attract the remedy of a judicial stay. The defence concedes this. In such cases, as said by the Supreme Court in an oft-quoted passage from Tobiass, supra, at para. 91 (and re-affirmed in Regan, supra, at para. 55),

The mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings. For a stay of proceedings to be appropriate in a case falling into the residual category, it must appear that the state misconduct is likely to continue in the future or that the carrying forward of the prosecution will offend society's sense of justice.

[95] As restated by the Court of Appeal in Zarinchang, supra, at para. 58, the concern is "not ... about continuing prejudice to the applicant by proceeding with the prosecution" but, "[r]ather, ... for the integrity of the justice system."

[96] Importantly, the Court of Appeal continues at para. 60:

However, the "residual category" is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits?

[97] Accordingly, the Court notes, at para. 60, judges hearing residual category applications, as here, "will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion." This balancing, the Court then explains, commands regard for

... the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.

[98] In my view, a proper balancing of these factors militates against the remedy of a stay of proceedings. There is a strong public interest in having drinking-and-driving offences resolved on their merits. Although I have found Mr. Russo's s. 9 Charter rights were breached, one cannot ignore the fact that the breach occurred after the commission of the offence and the gathering of evidence. It was in no way related to the offence or evidence gathering. In those circumstances, in my opinion, the over-holding should not result in a stay of proceedings. This is not the clearest of cases that would justify a stay of proceedings pursuant to s. 24(1) of the Charter.

E. Were the two breath samples taken as soon as practical, pursuant to s. 258(1)(c)(ii)?

[99] Section 258(1)(c)(ii) provides a number of preconditions to the admissibility of the breath tests results, namely that each sample be taken "as soon as practicable" after the time when the offence is alleged to have been committed.

[100] The leading Ontario Court of Appeal decision on this issue is the decision of R. v. Vanderbruggen, [2006] O.J. No. 1138. The judgment of the Court is written by Justice Rosenberg. In paragraph 12 Justice Rosenberg held:

That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. (citations omitted) There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. [Emphasis added]

[101] In deciding whether the breath tests were taken as soon as practicable trial judges should look at the entire chain of events, bearing in mind that the Criminal Code permits an outside limit of three hours from the time of the offence to the taking of the first test. While the Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody (see Vanderbruggen, supra, at para. 13).

[102] Mr. Pizzimenti argues there is an unexplained delay between 2:38 a.m., when duty counsel called back, and the first breath sample, which was taken at 3:24 a.m. He also points to a further unexplained delay of 24 minutes between the two breath samples. Mr. Pizzimenti submits the Crown has not complied with the "as soon as practical" requirement in s. 258(1)(c)(ii).

[103] There can be no doubt some time elapsed from the time duty counsel called back and Mr. Russo was brought to the private room to speak to duty counsel in private, as well as time for Mr. Russo to consult with duty counsel. Sgt. Stitt did not contact duty counsel for Mr. Russo; he testified P.C. Milen performed this task. It is impossible for me to establish any definitive amount of time that Mr. Russo used to exercise his constitutional right to speak to a lawyer. In my view the police were acting reasonably in contacting duty counsel, advising duty counsel, who returned the call, what the circumstances were surrounding Mr. Russo's arrest for impaired driving, getting Mr. Russo from the cell where he was lodged and bringing him to the private room, allowing Mr. Russo an opportunity to speak with duty counsel and then returning him to his cell to await the qualified breath technician advising she was ready to obtain breath samples from Mr. Russo. All of these things would have taken some period of time.

[104] P.C. Newman testified she received notification of an individual being arrested for impaired driving and being brought to the police station to provide breath samples. She was returning to the police station when she received the notification from dispatch. She testified she performed a diagnostic test, a calibration test and a self-test to determine when the Intoxilyzer 8000C was ready to receive breath samples. The defence did not raise any issues with respect to the operation of the approved instrument or P.C. Newman's steps in preparing it. In fact, the accuracy of the two breath readings was not contested by the defence. I have no doubt P.C. Newman was receiving Sgt. Stitt's grounds to arrest Mr. Russo, preparing her paperwork, including the Alcohol Influence Report, entering information pertaining to Mr. Russo's case into the Intoxilyzer and then preparing the instrument to be ready to receive breath samples from Mr. Russo. This would have occurred during the time prior to Mr. Russo being brought to the breath room at 3:10 a.m. and 3:24 a.m. when the first sample was received. In my view it would be particularly unfair to consider the time between 3:10 a.m. and 3:24 a.m. as being an unexplained delay when it was agreed by the defence there were no issues concerning the operation of the Intoxilyzer 8000C.

[105] P.C. Newman testified she performed the various required tests when Mr. Russo was present, including her self-test, and then read the breath demand to Mr. Russo at 3:19 a.m. She testified between the two breath tests she asked Mr. Russo a series of pre-printed questions from the Alcohol Influence Report, which Mr. Russo answered. The cross-examination of Mr. Russo focused on P.C. Newman's observations of Mr. Russo in terms of his speech, his eyes, his face, clothing and his walking. No questions were put to her respecting the timing of the first breath sample. In cross-examination she testified she did not see any reason why he could not be released by the officer in charge of the station.

[106] In R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (C.A.), the Court of Appeal for Ontario specifically rejected the reasoning contained in a line of cases that applied an earlier endorsement of the Court in R. v. Bulger, [1997] O.J. No. 2283 as requiring a separate analysis of the period between samples. The Court held in Singh, supra, that its earlier decision in Vanderbruggen was the controlling authority, regardless of which period of delay is under consideration. A trial judge should examine the entire chain of events, keeping in mind first of all that the Criminal Code permits an outside limit of three hours prior to the first sample. It is also not necessary for the Crown to call evidence to explain every minute that an accused is in custody. The touchstone is whether the police acted reasonably.

[107] Here, Mr. Russo was arrested at 2:05:45 a.m. and the first breath test was received at 3:24 a.m. This is approximately one hour and eighteen minutes from the arrest to the first breath sample being received into an approved instrument. In my view this period of time was reasonably prompt in the circumstances. In R. v. Price, supra, at paras. 14-19, Justice Durno held trial judges can properly take judicial notice of the procedures that routinely take place at the police station in drinking and driving cases. I have reviewed above a number of procedures that were described by P.C. Newman and others that could reasonably have occurred respecting the police implementing Mr. Russo's request to speak to duty counsel, after the booking procedure. As Justice Durno observes in Price, "I appreciate no fixed times can be assigned to these events, but that is not what Vanderbruggen requires" (at para. 18).

[108] Consequently, I find the breath samples were taken as soon as practical in the circumstances of this case. The total elapsed time between arrest and the first sample is less than one half of the time permitted by the Criminal Code for reliance on the provisions of s. 258(1)(c). As a result, this argument fails as well.

Conclusion re Over 80 Charge

[109] Given my rulings on the Charter applications and the "as soon as practical" argument, the two breath samples obtained by P.C. Newman, the qualified breath technician, are admitted into evidence and there will be a finding of guilt and a conviction will be registered.

Impaired Driving Charge

[110] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, (1993), 78 C.C.C. (3d) 380, affirmed, [1994] 2 S.C.R. 478; Graat v. The Queen (1982), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[111] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

…[Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[112] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, "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."

[113] In my view the Crown has not proven the charge of impaired driving beyond a reasonable doubt. As previously referred to above, in R. v. Milne, supra, the Ontario Court of Appeal held where an investigating officer has a motorist perform sobriety tests to determine whether there are reasonable and probable grounds to arrest the individual for impaired driving, the results of those sobriety tests cannot be used by the trial judge in assessing whether the Crown has proved the impaired driving charge beyond a reasonable doubt.

[114] In this case the only evidence of impairment remaining is Sgt. Stitt's observations of Mr. Russo's driving before he made the traffic stop, coupled with his observations of detecting an odour of alcohol coming from Mr. Russo's mouth and the fact he believed Mr. Russo's speech was slurred. Mr. Russo had no difficulty providing his documents upon request. According to Sgt. Stitt, Mr. Russo did not appear to have difficulty putting on his shoes at the side of his car after he exited it. Further, from the booking video Mr. Russo does not appear to have any difficulty standing or walking or removing his belt. He is not swaying when he is standing. He is able to sit and stand when requested. P.C. Newman only noted the odour of alcohol, eyes were watery, glassy and his full face was flushed or red. She did not observe any slurring of his words or any difficulty walking or sitting.

[115] Considering the totality of the evidence relating to the issue of impairment I am not able to conclude the Crown has proven that charge beyond a reasonable doubt. Therefore, the impaired driving charge is dismissed.

Released: October 13, 2016

Signed: Justice Peter C. West