Court File and Parties

Ontario Court of Justice

Date: 2018-02-16

Court File No.: Brampton 16-08694

Between:

Her Majesty the Queen

— and —

Iqbal Dhillon

Before: Justice I. Jaffe

Heard on: December 19, 2017

Reasons for Judgment released on: February 16, 2018

Counsel

I. Singh — counsel for the Crown

D. Locke — counsel for the accused Iqbal Dhillon

Judgment

JAFFE J.:

Introduction

[1] Mr. Dhillon is charged with driving with excess alcohol in his system, and impaired operation of a motor vehicle. Both charges were laid on July 4, 2016 when at 2 a.m. that morning, Mr. Dhillon crashed his Dodge Challenger through the brick and metal perimeter fence of Indarbaul Singh's family home.

[2] Mr. Dhillon has applied for Charter relief based on two alleged breaches of his rights. First he submits that police lacked sufficient grounds for his detention and thereby breached his s. 9 Charter rights. Mr. Dhillon argued that to the extent he felt compelled to provide information to police under the Highway Traffic Act, that information should in effect be excised from the grounds for his detention and arrest. On this point, Mr. Dhillon relies on R. v. Soules, 2011 ONCA 429, 273 C.C.C. (3d) 496, leave to appeal dismissed, [2011] S.C.C.A. No. 375. Without the compelled information, the grounds fall short of justifying Mr. Dhillon's detention and arrest.

[3] Secondly, regardless of what I will refer to as the Soules argument, the police breached Mr. Dhillon's s.10 (a) and (b) Charter rights by not immediately advising him of the basis for his detention and rights to counsel. The result of this delay is that Mr. Dhillon further incriminated himself by continuing to speak to the officers unaware of the legal implications for doing so.

[4] As to remedy, Mr. Dhillon is seeking the exclusion of his Intoxilyzer results under s. 24(2) of the Charter, thereby bringing an end to his "over 80" charge. While the Crown could still attempt to prove the impaired charge, it would have to do so without reliance on the breath results.

[5] The Charter voir dire and the trial proceeded in a blended fashion. The Crown called four witnesses – the homeowner Mr. Singh, and three police witnesses. The Crown also filed on consent, the written report of forensic toxicologist Mr. B Yen. Mr. Dhillon testified on the voir dire only.

Setting the Scene

[6] It is not in dispute that at approximately 2 a.m. on July 4, 2016, Mr. Dhillon crashed his car into the brick and metal perimeter wall of Indarbaul Singh's home located at 1 Julian Drive in Brampton. Mr. Singh was at home watching television when he heard a "big bang". He ran outside to see Mr. Dhillon exit his car in a panicked state, his car stuck halfway through Mr. Singh's wall. Mr. Dhillon appeared to be the car's only occupant. Mr. Singh's wife called the police and pending their arrival, Mr. Dhillon re-entered the driver's side of his car and attempted unsuccessfully, to move it.

[7] Mr. Singh acknowledged in cross-examination that when he first exited his home, he noticed a motorcycle, which Mr. Dhillon told him had cut him off. The motorcycle was only on scene for a few moments, then left. He also acknowledged that as he was speaking with Mr. Dhillon, he displayed no difficulty in talking or standing, though he was upset and panicking. Mr. Singh could not tell if Mr. Dhillon was "sober".

Evidence of Police Officers

[8] Sgt. MacDougal, a 20-year veteran of the Peel Regional Police Service (PRPS), was the first to arrive on scene. He had no notes about his arrival time, but upon reviewing the computer printout of the Event Chronology (i.e. ICAD report), he testified that he arrived on scene at 2:15 a.m. He subsequently modified his time of arrival to 2:07 a.m. upon further review of the ICAD printout.

[9] Upon arriving at the scene, Sgt. MacDougal immediately noticed a white Dodge Challenger which to him appeared to have gone over the curve, into a ditch, over an embankment and into the fence. The car was in the middle of the brick and metal fence, and bricks were "everywhere".

[10] The officer explained in cross-examination that he saw the owner of the property and two others standing apart from Mr. Dhillon. He approached Mr. Singh and asked him if Mr. Dhillon was the driver. Upon receiving an affirmative answer, the officer approached Mr. Dhillon, who at the time was standing amidst the wreckage. Sgt. MacDougal testified that he noticed a strong smell of beer on Mr. Dhillon's breath and he also noticed that his eyes were red. Mr. Dhillon advised the officer that he had been "racing a motorcycle" and he admitted to having consumed a "few beer". According to Sgt. MacDougal, Mr. Dhillon's comments were not given in response to questions by the officer, but rather "blurted out" by Mr. Dhillon.

[11] Sgt. MacDougal testified that he placed Mr. Dhillon under arrest for impaired operation of a motor vehicle, handcuffed him, and put him in his cruiser. He did not read him rights to counsel, but instead inspected the scene to ensure there were no injured persons. There was still steam emanating from the car, and to the officer, it appeared to be a dangerous scene. He explained that he was the only officer on scene at that time, and his priority was to ensure no one required medical attention. Once he placed Mr. Dhillon into the rear of his car, he had no further dealings with him. Shortly afterwards, P.C. Gill arrived on scene and took custody of Mr. Dhillon. By reference to the ICAD, Sgt. MacDougal estimated that Mr. Dhillon was in the back seat of his cruiser for approximately 2 minutes before P.C. Gill took over.

[12] Asked in cross-examination to articulate his grounds for arresting Mr. Dhillon, Sgt. MacDougal explained that the arrest was based on the fact Mr. Dhillon identified himself, he had slurred speech, his eyes were red and he smelled alcohol on his breath. He did not note that Mr. Dhillon was unsteady on his feet.

[13] P.C. Gill testified that when he arrived on scene, Mr. Dhillon was already in the rear seat of Sgt. MacDougal's police car. Though he made no notation about his arrival time, according to ICAD, he arrived on scene at 2:09 a.m.

[14] Initially in his evidence, P.C. Gill testified that he was given the "grounds for arrest" by Sgt. MacDougal when he first arrived, though he could not recall the specific grounds and he made no notes of them. He subsequently clarified in cross-examination that he was simply told by Sgt. MacDougal that the sergeant had someone in custody, that he was drunk and that he was in the rear of the cruiser. The sergeant did not itemize the grounds for his arrest. In re-examination, P.C. Gill explained that Sgt. MacDougal advised him that he had a person under arrest for impaired operation, and that he was in the rear of the cruiser.

[15] P.C. Gill also agreed under cross-examination, that Sgt. MacDougal did not tell him that Mr. Dhillon was the driver of the car, and that P.C. Gill assumed that to be the case. His assumption was in part based on what was broadcast over the radio, namely that a vehicle drove into a fence, and the driver was out of the car. As well, Mr. Dhillon told P.C. Gill that he had been trying to swerve around two motor cycles.

[16] He explained in-chief that once he placed Mr. Dhillon under arrest and was providing him with rights to counsel, he observed signs of impairment. In cross-examination, P.C. Gill testified that once Mr. Dhillon began talking to him in response to the rights to counsel, he started forming his own grounds to believe Mr. Dhillon was impaired.

[17] P.C. Gill explained that after he placed Mr. Dhillon under arrest for impaired driving, he reported to the dispatcher at 2:12 a.m. and then placed Mr. Dhillon in the rear of his cruiser. At 2:14 a.m., P.C. Gill provided Mr. Dhillon with rights to counsel and at 2:18 a.m. he made a breath demand.

[18] Asked why he issued a breath demand, P.C. Gill replied that he could smell alcohol on Mr. Dhillon's breath, his speech was slurred, his eyes were red rimmed and blood shot and they were very watery. P.C. Gill further explained that Mr. Dhillon had difficulty with his balance as he was being escorted to the officer's cruiser and though he was cooperative, he was swearing.

[19] At 2:56 a.m. while being processed by the booking sergeant, P.C. Gill asked Mr. Dhillon if he wished to "call a lawyer now" and Mr. Dhillon declined. At 3:00 a.m., P.C. Gill provided the breath technician with his grounds and at 3:05 a.m., turned over Mr. Dhillon to the breath technician. P.C. Gill remained in the breath room during the breath tests and at 3:56 a.m. again took custody of Mr. Dhillon and at 4:00 a.m., after serving him with documents, lodged him in the holding cell.

The Breath Test

[20] The video recording of Mr. Dhillon was played in court, and entered as an exhibit. Throughout his interaction with P.C. Pallett, the qualified breath technician, Mr. Dhillon continually expressed a desire to speak with the police to tell them what happened and he expressly declined the opportunity to speak with a lawyer.

[21] After numerous failed attempts at providing a suitable sample—which P.C. Pallett and P.C. Gill believed were feigned—two suitable samples were obtained. At 3:27 a.m. Mr. Dhillon's blood alcohol level was 150 milligrams of alcohol in 100 millilitres of blood, and at 3:50 a.m., it was 140 milligrams.

Iqbal Dhillon's Evidence on the Voir Dire

[22] Mr. Dhillon testified on the Charter voir dire only. He is a 21 year old York University student studying law and society. He explained to the court that on the night in question, he was heading eastbound on Castlemore Road and as he was approaching Julian Drive, he saw the headlights of two motorcycles. When the motorcycles turned left in front of Mr. Dhillon, one of them cut him off, causing him to slam on the brakes, and skid diagonally into Mr. Singh's fence.

[23] One of the motorcyclists remained on scene momentarily to ensure Mr. Dhillon was alright, but apparently told Mr. Dhillon that he couldn't stay if the police were on their way. Mr. Dhillon exited his vehicle and he estimated the police arrived within 15-20 minutes. Mr. Dhillon explained that he remained on the scene following the crash because he believed it was his legal obligation to do so. He further explained that he felt obligated to speak to Sgt. MacDougal when he arrived on scene and tell him what happened. He believed this obligation stemmed from the "Ontario traffic law". He was of the belief that it was the law to remain on scene if an accident exceeded a certain amount of damage.

[24] Mr. Dhillon answered Sgt. MacDougal's questions. He identified himself as the driver and told the sergeant that he had consumed a "couple of beers." The officer then placed him in handcuffs and put him in the rear of his police car. Mr. Dhillon estimated that he was in the rear of the cruiser on his own for approximately 5-10 minutes, at which point Sgt. MacDougal re-entered the car and began asking him what happened. Mr. Dhillon provided information to Sgt. MacDougal in fact he explained he was "trying to tell anyone who would listen". It was at this time that Mr. Dhillon observed the second officer, P.C. Gill arrive on scene. P.C. Gill took him from the back of the sergeant's vehicle and switched handcuffs. Mr. Dhillon proceeded to tell P.C. Gill what had happened but P.C. Gill told him not to say anything and cautioned him that anything he did say could be used in evidence.

[25] In cross-examination, Mr. Dhillon agreed when he got into his car that night, he knew he had consumed too much alcohol to drive, and he was impaired.

ICAD Report

[26] The ICAD report (bearing the title "event chronology"), was relied upon by Sgt. MacDougal in his evidence to establish relevant times, such as the time he was first dispatched and the time he arrived on scene. P.C. Gill similarly relied on the report to establish his arrival time at the scene. Neither officer had made note of their arrival times in their notebooks. The ICAD report was entered as exhibit #5 on the voir dire although counsel for Mr. Dhillon, argued that the report itself was hearsay and the times reflected on it could not be considered in evidence.

[27] The Crown took the position that the report ought to be admissible to establish the arrival times of both officers, or at a minimum, the officers could refer to the report to refresh their memories.

[28] Sgt. MacDougal explained that when information is provided to a dispatcher or entered into the police computer (such as arrival onto a scene), the information is time stamped. Sgt. MacDougal testified that at while information can be added to the report, once recorded, the timestamps cannot be altered.

[29] P.C. Gill was also asked about ICAD. He explained that calls to which officers are dispatched are assigned event numbers, and any details concerning a particular event are recorded on the ICAD document. When an officer arrives on scene, he or she can push a button in the police car, and the time is stamped on the record. When they speak to the dispatcher over the air, information and times are recorded on ICAD. When P.C. Gill inserts times into his notes, he refers to the ICAD report because in his words "it is the most accurate time". P.C. Gill compared the ICAD report in this case to his notes, and confirmed it to be accurate.

Were the officers entitled to refresh their memories concerning times by reference to the ICAD reports?

[30] As in most Charter applications, in deciding the Charter complaints in this case, times are important. The question is whether Sgt. MacDougal and P.C. Gill could refer to the ICAD report to refresh their memories concerning the time of their arrival on the scene. Neither made a note in their note books about their arrival times, but each gave evidence concerning the manner by which their arrival times were recorded on the ICAD document.

[31] Every day, in every courthouse, officers refer to their notes to refresh their memories concerning times. Their ability to do so usually follows a series of questions relating to the authorship of the notes, the contemporaneity of the notes, and whether the witness retains some independent recollection of the events in question. A witness can however, refresh their memory from any number of sources, regardless of authorship or contemporaneity. Even a document which is otherwise inadmissible in evidence can be used to refresh a witness' memory: R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535.

[32] The reality is, specific times noted in an officer's notebook are often made by reference to other sources, such as the notes of the central note taker in the surveillance context, or the ICAD report, which according to P.C. Gill, represents the most accurate recording of time. In this case, had the officers included their arrival times in their notes, there likely would have been no opposition to either of them giving evidence about those times. In my view, there is no principled basis for disallowing the officers' reference to the very document from which they most likely would have referred had they inserted arrival times in their notes.

[33] The question is whether it matters that the officers may not have been able to recall with exactitude, the time of their arrival at the scene. The series of questions typically posed to a witness as a condition precedent to being granted permission to refer to their notes, represents an amalgam of sorts—combining the requisite conditions for reviving memory with those relating to the admissibility of past recollection recorded.

[34] This recognizes another reality. Does an officer ever truly remember the exact time he or she arrived at a scene, or conferred rights to counsel? Even an officer who retains a crystal clear recollection of the events in question, can not without some assistance, reasonably be expected to recall right down to the minute, the timing of events. However, the questions posed at the outset of their evidence give the court some assurance that at the time the notes were made, the information was fresh in the officer's mind, and was accurately recorded. While these conditions are not necessary components of a "reviving" document, they are conditions precedent to the admission of a document as past recollection recorded. In other words, the bases are covered. If the officer does not have an independent recollection of the exact times, at least the court is assured they have been recorded reliably.

[35] So it would seem that the accepted practice of allowing officers to refresh their memories from their notes, particularly as they relate to times, has been woven from the threads of two regimes—past recollection recorded and present memory revived.

[36] In this case, I find the officer's appropriately refreshed their memories by reference to the ICAD report. I have come to this conclusion for the following reasons:

• Both officers clearly had independent recollections of the events in question;
• The time stamps on the ICAD were generated by the officers themselves;
• P.C. Gill compared the ICAD to his notes and determined the ICAD was accurate;
• There was independent verification of the general accuracy of the ICAD timestamps, such as through the evidence of the homeowner who testified his wife called the police at around 2 a.m., the times on the breath room video, and from the other times actually noted in the officers' notes.

Section 9: Was Mr. Dhillon's detention lawful?

[37] In this case, Sgt. MacDougal testified that he had reasonable grounds to believe that Mr. Dhillon's ability to operate his car was impaired by alcohol. As articulated in his evidence, the grounds for arresting Mr. Dhillon were as follows:

• Mr. Dhillon identified himself as the driver;
• His speech appeared slurred;
• His eyes were red; and
• The smell of alcohol emanated from his breath.

[38] Context is crucial to an assessment of grounds. In this case, the sergeant's grounds to arrest were formulated shortly after arriving at the collision scene. Steam was still emanating from the severely damaged vehicle which had crashed through a residential fence at 2 a.m., and inside of which was a can of beer.

[39] Sgt. MacDougal's grounds to arrest included Mr. Dhillon's comments to the officer that he had been driving the crashed car. Mr. Dhillon also told the officer that he had consumed a "few beer", though the officer did not include this comment in his itemization of grounds at trial.

[40] Relying on Soules, counsel for Mr. Dhillon argues that his admissions to the officer should be excluded from my assessment of the officer's grounds because at the time they were made, Mr. Dhillon honestly believed he was statutorily compelled to provide information to the sergeant by virtue of s. 199(1) of the HTA. Allowing the police and Crown to consider his admissions as grounds for his detention and arrest, would violate his s. 7 Charter rights against self-incrimination.

[41] The Crown argues that Soules, has been effectively overruled by the recent Supreme Court's decision R. v. Paterson, [2017] SCC 15. In any event, even if Soules remains good law, the Crown argues that Mr. Dhillon has failed to establish that the statements he made to the officer constituted a report within the meaning of the HTA, or that he honestly and reasonably believed he was compelled by the statute to provide information to Sgt. MacDougal.

[42] In Paterson, the Court unanimously held that the confessions rule does not apply to statements tendered in the context of a Charter voir dire. In a footnote, Brown J. writing for the majority on the s. 24(2) issue, makes the following comment about Soules and its prohibition against using compelled statements to formulate grounds: "Without commenting on the correctness of Soules, I observe that Orbanski's direction that the police may rely upon roadside statements for the purpose I have described was categorical."

[43] I do not need to determine whether the footnoted comment in Paterson, overrules a unanimous decision of the Ontario Court of Appeal, because in this case, I find that Mr. Dhillon's utterances to Sgt. MacDougal were not compelled.

[44] Section 199(1) of the HTA, obligates every person who was in charge of a motor vehicle and who was directly or indirectly involved in an accident which caused injury or property damage in excess of $1,000 to "report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident…"

[45] Though there was no monetary value assigned to the property damage, it is clear that the damage to Mr. Singh's fence and to Mr. Dhillon's vehicle was extensive, and likely exceeded $1,000. It is safe therefore to assume that the HTA would have compelled Mr. Dhillon to report the accident.

[46] However, a finding that the Mr. Dhillon would have been under a statutory obligation to make a police report does not end the inquiry. An accused seeking a Charter remedy on the basis that Crown use of compelled information violates his s. 7 rights, must also establish on a balance of probabilities, that at the time he made the report to the police, he did so on the basis of an "honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given": R. v. White, [1999] 2 S.C.R. 417 at para. 75. In other words, Mr. Dhillon must also establish that his brief exchange with Sgt. MacDougal when the sergeant first arrived on scene constituted a "report", and that he made the report honestly and reasonably believing he had no choice.

[47] In R. v. Parol, 2011 ONCJ 292, [2011] O.J. No. 2641, Duncan J. concluded that an exchange similar to the one in this case, was not a "report", within the meaning of the HTA. In that case, a police officer who arrived on scene following an accident learned from the accused that he had been the driver of the car and had been drinking. In finding that this did not constitute a report, Duncan J. held as follows:

[13] It seems to me that it would be a stretch beyond the breaking point to consider this exchange as the making of a report within the meaning of the statute. It does not fit the ordinary meaning of the word or the concept of reporting. The Court in White made the distinction between the making of a report pursuant to statute and "ordinary police investigation". Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a "report" then the "dividing line" drawn by the Court in White would be completely obliterated.

[48] I similarly find that Mr. Dhillon's admission to Sgt. MacDougal that he was the driver of the vehicle was not in the nature of a report. At the time the question was posed, the officer had just arrived on scene. Mr. Dhillon and Mr. Singh were both standing amidst the debris of the accident—Mr. Dhillon next the driver's door of his Dodge Challenger. Sgt. MacDougal was simply attempting to confirm what I believe would have become fairly obvious within seconds—namely that Mr. Dhillon had been the driver of the Dodge Challenger.

[49] Nor have I been persuaded that Mr. Dhillon's admission was the byproduct of a reasonable and honestly held belief that he was statutorily obligated to provide such information to the officer. When asked by his counsel on the voir dire why he waited on scene immediately after the collision, Mr. Dhillon offered this explanation:

I believe I waited on scene is because I was involved in a car accident and that car accident exceeded a certain amount of damage both to my property and the property owners, so my obligation at that point is to stay on scene of the accident.

[50] The fact is, Mr. Dhillon had little choice but to remain on the scene in light of his car being completely incapacitated by the collision – a reality which came to light when Mr. Dhillon, against the advice of the homeowner, unsuccessfully attempted to move his vehicle. These facts afford an alternate explanation as to why Mr. Dhillon may have remained on scene.

[51] It is clear that Mr. Dhillon provided inaccurate information to the police, both at the scene and in the breath room, about the amount of alcohol he had consumed before driving. In fact, even after he was advised of his breath readings, Mr. Dhillon maintained he had only consumed 2-3 beer. He acknowledged in his cross-examination, this was not accurate. Viewed in context, it appears to me that Mr. Dhillon's provision of information and misinformation to the police following his accident was motivated more by a desire to ameliorate the situation for himself, than by a sincere sense of statutory obligation.

[52] Even if it could be said that Mr. Dhillon's admission to Sgt. MacDougal was compelled and excluded from consideration, I would nonetheless find that the officer's grounds were sufficient to arrest him for impaired operation of a motor vehicle. The test is whether objectively, Sgt. MacDougal had reasonable and probable grounds to believe Mr. Dhillon's ability to drive was even slightly impaired by the consumption of alcohol: R. v. Bush, at para. 48; R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd, [1994] 2 S.C.R. 478

[53] The grounds that remain once Mr. Dhillon's admissions are disregarded, would be the smell of alcohol on the breath of a man with red eyes, standing next to the driver's side of a vehicle, which had just left the road, careened over an embankment and into a fence. Add the can of beer observed in the vehicle, and in my view, those grounds objectively support the sergeant's belief that Mr. Dhillon had been driving while his ability to do so was impaired by alcohol.

[54] Mr. Dhillon has failed to persuade me on a balance of probabilities that Sgt. MacDougal lacked sufficient grounds to detain and arrest him. Accordingly, his s.9 application is dismissed.

Section 10: Were Mr. Dhillon's s. 10(a) and (b) Charter rights breached?

[55] Counsel for Mr. Dhillon argued that there was an unjustifiable delay between Mr. Dhillon's arrest, and the provision of his s. 10 rights. The Crown counters that the delay in providing rights to counsel and cautions was reasonably justified by the circumstances.

[56] Section 10(a) of the Charter, guarantees everyone the right to be advised promptly, in clear and simple language, of the reason for his or her detention. R. v. Evans (1991), 63 C.C.C. (3d) 289 at p. 302; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. Police compliance with s. 10(a) will turn not only on the words used by the detaining officers, but also on the particular context in which the detention arose. The question will be whether, in the circumstances, the accused reasonably understood the basis for his detention: Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 (C.A.), at para. 16; R. v. Kumarasamy, 2011 ONSC 1385, at para. 46; R. v. Knight, [2017] O.J. No. 5625 (C.J.), at para. 15.

[57] Sgt. MacDougal's steadfastly maintained that when he arrested Mr. Dhillon and placed him in the back of his police car, he advised him he was under arrest for "impaired operation". His evidence in this regard was challenged only in cross-examination, and not by contrary evidence. Mr. Dhillon testified that after he was "arrested" he was placed in the back of the cruiser, though he made no mention of the words used by the officer in placing him under arrest. I accept the sergeant's evidence that he advised Mr. Dhillon he was being arrested for "impaired operation". Under the circumstances, even in his emotional state, impaired as it may have been by alcohol or trauma, it would have been clear to Mr. Dhillon that his arrest was related to his impaired operation of his Dodge Challenger. I find no breach of Mr. Dhillon's s.10(a) right.

[58] Section 10 (b) obligates the police to provide a detainee with rights to counsel "without delay". In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, the Supreme Court expanded on the meaning of "without delay", and made it clear it means immediately. This immediacy requirement is subject only to concerns for officer or public safety.

[59] There is no doubt here that Sgt. MacDougal did not immediately provide Mr. Dhillon with his rights to counsel. I find that Sgt. MacDougal arrived at the scene at 2:07 a.m. and shortly thereafter, Mr. Dhillon was placed in his police car. P.C. Gill arrived two minutes later at 2:09 a.m., and provided Mr. Dhillon with his rights to counsel at 2:14 a.m.

[60] Mr. Locke argued that P.C. Gill began the arrest process from scratch, and based his arrest on the grounds which he (P.C. Gill) formulated in his dealings with Mr. Dhillon. As such, P.C. Gill's grounds were formed at a time during which Mr. Dhillon was under arrest, but prior to being given rights to counsel. These unconstitutionally obtained grounds not only supported P.C. Gill's decision to arrest, but also his breath demand.

[61] In my view it does not matter that P.C. Gill started the arrest process again. Nor does it matter that Sgt. MacDougal had not given P.C. Gill the specific grounds in support of Mr. Dhillon's arrest. It is settled law that the police officer who must have reasonable grounds for an arrest is the officer who makes the decision to arrest: R. v. Debot, [1989] 2 S.C.R. 1140, at para. 50. P.C. Gill, was entitled to assume that the officer directing the arrest, in this case Sgt. MacDougal, had the requisite grounds to do so.

[62] Regardless of who formed the grounds, who made the arrest, or who gave Mr. Dhillon his rights to counsel, the Court's focus must remain on the time that elapsed between Mr. Dhillon's initial arrest and the furnishing of his s.10 (b) rights. In this case, that time is 6-7 minutes. The question is whether that delay is justifiable under the circumstances?

[63] Mr. Locke argued that the real reasons Sgt. MacDougal did not confer rights to counsel was because as road sergeant, he did not want to become deeply involved in the arrest, and he was not intending to question Mr. Dhillon. Neither of these reasons of course, would justify a delay in giving rights to counsel. However, Sgt. MacDougal testified that he was concerned for the wellbeing of other possible victims of the crash. Mr. Dhillon's comments to the sergeant about a motorcyclist raised the possibility that there were others in the vicinity of the accident who were possibly injured. The officer's concerns were, in my view, completely reasonable.

[64] Sgt. MacDougal was the only police officer on site. While it is true that the reading of rights to counsel is not a time-consuming endeavour, the process can be prolonged depending on the answers given or clarifications sought. Under these unique circumstances, I do not think it was unreasonable for Sgt. MacDougal to prioritize the search for possible victims of the accident, especially with the knowledge that other officers were en route and could take over the arrest.

[65] Mr. Lock urges me to disbelieve Sgt. MacDougal's evidence that public safety was his primary concern. He points to the fact that when P.C. Gill arrived on scene, the sergeant was not actively searching the crash site, but was standing next to his police cruiser. The sergeant's location in that one moment in time, does not provide insight into what he was doing prior to P.C. Gill's arrival, and does not lead me to reject his evidence. I did note that the sergeant appeared defensive in cross-examination, but I nonetheless accept his evidence that in the minutes prior to P.C. Gill's arrival, his foremost concern was to ascertain if others had been implicated in the crash.

[66] However, P.C. Gill arrived on scene at 2:09 a.m. and Mr. Dhillon waited another five minutes, handcuffed in the back seat of the sergeant's car, before being given rights to counsel. I agree with Mr. Locke that when P.C. Gill arrived on scene, his first order of business ought to have been to provide Mr. Dhillon with his rights to counsel. The switching of the handcuffs, the transferring to his police car, the reporting to dispatch, could have all have been done after Mr. Dhillon had been given his rights. While I find that concerns for public safety justified the initial delay in conferring rights to counsel, find there was no such justification for a further delay of five minutes once P.C. Gill arrived on scene. Accordingly, I find that Mr. Dhillon's s. 10(b) rights were violated.

Section 8: Was the s. 254(3) breath demand lawful?

[67] Though the applicant seeking Charter relief bears the burden of demonstrating a breach, where evidence was obtained without a warrant, the burden is on the Crown to demonstrate the reasonableness of the seizure. The first step is to demonstrate that the seizure was authorized by law: R. v. Collins, [1987] 1 S.C.R. 265.

[68] The law authorizing the seizure of Mr. Dhillon's breath samples is s. 254(3) of the Code, which provides as follows:

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

(a) to provide, as soon as practicable,

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

[69] Mr. Locke argued that the grounds supporting P.C. Gill's breath demand consisted of self-incriminating comments made by Mr. Dhillon while he was detained but before he had received rights to counsel. P.C. Gill's grounds for the demand were in turn, shared with the qualified breath technician P.C. Pallet, who issued his breath demand based on the tainted grounds. Once Mr. Dhillon's self-incriminating utterances are removed from consideration, the grounds for both breath demands fall short of justifying a s. 254(3) demand.

[70] It would seem that unlike an arrest where an officer is entitled to act simply at the direction of the officer who formed the grounds, the officer who makes a demand under s.254(3) must have personally formed the grounds: R. v. Pavel, [1989] No. 2307 (CA); J. F. Kenkel J., Impaired Driving in Canada, The Charter Cases 3rd ed. (Toronto: LexiNexis, 2017) at. p. 157. However, s. 254(3) does not require the police to issue more than one demand. Once issued, a valid demand continues until the samples are taken: F. Kenkel J., Impaired Driving in Canada, The Charter Cases 3rd ed. (Toronto: LexiNexis, 2017) at. p. 9.

[71] Having previously found that Mr. Dhillon's s.10 (b) rights were violated by delay, I have considered P.C. Gill's grounds for issuing the s.254 (3) demand without regard to any statement or utterances made by Mr. Dhillon. These grounds included the following information received by P.C. Gill, together with his personal observations:

(i) He received information over the radio that a vehicle had driven into a yard;

(ii) When he arrived on scene minutes later, he observed only Sgt. MacDougal (who was standing outside of his police car) and Mr. Dhillon, who was sitting in its back seat;

(iii) He was advised by Sgt. MacDougal that Mr. Dhillon was in the back of his cruiser and was "drunk";

(iv) He was instructed by the sergeant to take over custody of Mr. Dhillon;

(v) He personally detected a heavy odour of alcohol on Mr. Dhillon's breath;

(vi) He observed Mr. Dhillon's watery and bloodshot eyes;

(vii) Mr. Dhillon appeared to "sway" while walking

[72] Viewed cumulatively and through the lens of common sense, I find that these grounds provided an objectively reasonable basis for P.C. Gill's belief that Mr. Dhillon had, within the preceding three hours, committed, an offence under s. 253 as a result of the consumption of alcohol.

[73] Dealing next with the timing of the demand, Mr. Dhillon was arrested shortly after Sgt. MacDougal arrived on scene at 2:07 a.m. P.C. Gill issued the breath demand eleven minutes later at 2:18 a.m. The phrase "as soon as practicable" does not import an immediacy requirement, but rather has been judicially interpreted as meaning "within a reasonably prompt time under the circumstances": R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.), at para. 12.

[74] While I have found that rights to counsel were not furnished immediately as is required by s.10(b), I find that in the circumstances of this case, where the initial arresting officer was engaged in ensuring public safety following a serious motor vehicle accident, P.C. Gill's breath demand was made as soon as soon as practicable. As such, the officer's demand was lawful, and the seizure of the breath samples was authorized by law.

Section 24(2): Should the breath test results be excluded?

[75] Despite the breach of Mr. Dhillon's 10(b) rights, a contextual consideration of the three lines of inquiry in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, leads to the admission of the Mr. Dhillon's breath test results.

Seriousness of the Charter infringing State Conduct

[76] Police conduct which results in Charter violations runs along a continuum, with willful or egregious disregard for Charter rights on the one end, and minor breaches committed in good faith on the other. The more wilful or deliberate the state conduct, the greater the Court's need will be to disassociate itself from the conduct: Grant, at paras. 72 and 74. In this case, I would plot the police conduct towards the minor end of the spectrum. There was no serious misconduct by the police in this case, nor can I find that the delay in administering the rights was a result of systemic indifference towards Charter protected rights.

[77] To borrow the phrase used by Felix J. in R. v. Campbell, an unreported decision dated July 4, 2017, the informational component of Mr. Dhillon's 10(b) rights was delayed but not denied. Part of the delay can be explained by P.C. Gill's decision to formally arrest Mr. Dhillon again, after Sgt. MacDougal had already done so. Mr. Dhillon was already under arrest and awaited only his rights to counsel. While it was unnecessary to arrest Mr. Dhillon a second time, it cannot be said that P.C. Gill was acting in bad faith or indifference. Arguably, quite the opposite.

The Impact of the Charter Violation on the Accused

[78] The delay in this case was very brief, lasting only a few minutes. Significantly however, once Mr. Dhillon was advised of his s. 10(b) rights, he declined the offer to call counsel. Not once, but at three separate times in the course of his detention (at the scene, upon arrival at the station, and in the breath room), Mr. Dhillon declined the opportunity to call a lawyer. In fact at the commencement of his breath test, Mr. Dhillon was asked no fewer than three times if he wished to call a lawyer, and he declined each time.

[79] Mr. Lock argued that by the time the police got around to furnishing rights to counsel, the "damage had already been done", in that Mr. Dhillon had already verbally incriminated himself. Having watched the breath room video, and having heard the evidence of the officers, my impression of Mr. Dhillon is that he was eager to talk to the officers from the start, and there was little that could have been done to stop him. I doubt the brief delay in administering Mr. Dhillon's rights had any bearing on his decisions to continue talking to the police, and to forgo legal advice. I find the breach had a very minimal impact on Mr. Dhillon's Charter protected interests.

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

[80] Under this line of inquiry, the focus is on whether the truth-seeking function of this trial would be better served by admission of the evidence, or by its exclusion: Grant, at para. 79. It is beyond dispute that the evidence sought to be excluded is "important" to the trial in this case. The Intoxilyzer results are in fact crucial to the Crown's case on the over 80 charge, and provide material evidence in proof of the impaired charged.

[81] The evidence is also reliable, which is an important factor in the 24(2) analysis: Grant, at para. 81. Generally speaking, the reliability of bodily sample evidence, such as breath samples, will favour admission under this third line of inquiry: Grant, at para. 110. In this case, there was no deliberate disregard for Mr. Dhillon's Charter rights, and the actual impact of the breach was breach was minimal. Under the circumstances, I find that the truth-seeking function of the criminal trial process would be better served by the admission of the breath test results, rather than by their exclusion.

[82] In my assessment, all three lines of inquiry favour the admission of the evidence, and accordingly, I conclude that the admission of Mr. Dhillon's breath test results, would not bring the administration of justice into disrepute. Mr. Dhillon's application to exclude the evidence is dismissed.

Rulings on the Charges

[83] With respect to both the over 80 charge and the impaired operation charge, the Crown is required to prove beyond a reasonable doubt that Mr. Dhillon was operating the Dodge Challenger at the time of the offence. I find that this essential element has been easily proven. I accept Mr. Singh's evidence that he rushed out of his home upon hearing the crash and observed Mr. Dhillon exiting the Dodge Challenger. But for a motorcyclist who was on the scene for a brief moment, there was no else in the vicinity. Moreover, while waiting for the police to arrive, Mr. Dhillon entered the driver's seat of the Challenger, and attempted to move it. The only logical inference is that he was the driver of the vehicle, a fact which I find has been proven beyond a reasonable doubt.

[84] Having ruled that the Intoxilyzer results are admissible, I find that the Crown has proven beyond a reasonable doubt that at the time Mr. Dhillon was driving, namely at approximately 2 a.m. on July 4, 2016, Mr. Dhillon's blood alcohol levels exceeded the legal limit. Accordingly, I find him guilty on the "over 80" charge.

[85] Turning now the impaired charge, the Crown must also prove that while operating his motor vehicle, Mr. Dhillon's ability to do so was impaired by alcohol. No particular level of impairment need be established, rather the offence will be made out if the Crown proves any degree of impairment, from slight to great: R. v. Bush, [2010] O.J. No. 3453, 2010 ONCA 554 at para. 48; R. v. Stelatto at para. 14.

[86] There has been no explanation given at trial for the crash. I cannot assume that speed was a factor. Mr. Singh testified that when the car came through his fence, it made a "loud bang" and sounded like an "airplane crash". I believe I can reasonably infer from this evidence, and from the damage caused to the car and the fence, that Mr. Dhillon was not driving slowly. However, in the absence of other evidence, it would be unsafe to conclude that he was travelling at an excessive rate of speed.

[87] Nor do I have before me any evidence concerning the conditions of the road. The accident is unexplained and standing alone, an unexplained collision does not prove impairment: R. v. Cassleman, 2014 ONCJ 48, at para. 84. However, there is other circumstantial evidence of impairment:

• Police officers detected the odour of alcohol emanating from his breath shortly after the crash;
• Mr. Dhillon had consumed no alcohol in the time period between the crash and his arrest;
• His eyes were watery and bloodshot;
• Approximately one hour later, the breath technician also observed indicia of impairment such as the odour of alcohol, watery blood shot eyes, and flushed nose and cheeks;
• Mr. Dhillon's blood alcohol level was significantly elevated at the time of his breath test (i.e. his truncated readings were 150 and 140 millilitres of alcohol in a 100 milligrams of blood); and
• According the report of Mr. B. Yen, Forensic Toxicologist, Mr. Dhillon's blood alcohol level at the time of the accident would have been in the range of 140-175 milligrams of alcohol in 100 milligrams of blood.

[88] While none of the above indicium standing alone would prove an impaired ability to drive, viewed cumulatively, the evidence has convinced me beyond a reasonable doubt that Mr. Dhillon's ability to operate the Dodge Challenger had been impaired by alcohol at the time he crashed into Mr. Singh's fence. Accordingly I find him guilty of on the impaired charge.

Released: February 16, 2018

Justice I. Jaffe

Footnote

[1] Highway Traffic Act, regulation 596, R.R.O. 1990, s. 11.