Reasons for Judgment

Court Information

Ontario Court of Justice

Date: July 11, 2018

Between:

Her Majesty the Queen

— and —

Anthony Miller

Counsel

M. Gillen — Counsel for the Crown

E. Boeve — Counsel for the Defendant

Before: Felix J.

Table of Contents

I. Introduction

II. Reasonable Grounds for Arrest: Impaired Operation

III. Section 10(b) of the Charter: Rights to Counsel

IV. Trial Issues: Impaired Operation

V. Certificate of Analysis Issue

I. Introduction

[1] The defendant is charged with impaired driving and "Over 80". The matter proceeded by way of blended Charter application and trial. The defendant (as the applicant) sought exclusion of the breath test results based on asserted breaches of sections 8, 9, and 10(b) of the Charter.

[2] The applicant raised the following issues on the Charter application:

a. That the police lacked reasonable grounds for arrest concerning the impaired operation count and thereby violated sections 8 and 9 of the Charter; and,

b. That the police failed to provide a "Prosper warning" thereby violating section 10(b) of the Charter.

[3] The defendant raised the following trial-related issues:

a. That the prosecution had not proven the impaired operation count beyond a reasonable doubt; and

b. That the Certificate of Analysis was inadmissible because it did not specify a place where the samples were taken.

[4] The applicant has failed to establish a breach of sections 8 and 9 of the Charter. The applicant has established a breach of section 10(b) of the Charter. The applicant has not met the onus for a remedy pursuant to section 24(2) of the Charter. The Charter application is dismissed. The defendant is found guilty of both counts. A conditional stay is entered on the "Over 80" given the principles in R. v. Kienapple.

II. Reasonable Grounds for Arrest: Impaired Operation

A. Introduction

[5] The applicant has established that there was a warrantless seizure of breath samples in this case. As such, the burden is on the prosecution to show on a balance of probabilities that the seizure was reasonable: R. v. Haas. The applicant bears the onus on the dependent section 9 arbitrary detention complaint.

B. Position of the Applicant

[6] The applicant submits that the prosecution has not established that the arresting officer had reasonable grounds because of contradictions between the evidence of arresting officer PC Barnett and assisting officer PC Graff, the deficient detail provided by PC Barnett, and the short distance during which PC Barnett observed the applicant driving.

1. The Law: Reasonable Grounds

[7] The following legal references inform the analysis of reasonable grounds:

1. "Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not and indeed must not, devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer.": R. v. MacKenzie, 2013 SCC 50, at para. 73.

2. The assessment of reasonable grounds has both a subjective and objective component. The subjective component involves assessing whether the police officer honestly believed the subject committed an offence: R. v. Storrey, at para. 16; R. v. Canary, 2018 ONCA 304, at para. 21; and R. v. Scairagic, 2017 ONCA 91, at para. 16.

3. The objective component involves assessing whether or not the police officer's asserted honest, subjective belief is objectively reasonable based on the information known to the police officer at the time: Storrey, at para. 17; R. v. Notaro, 2018 ONCA 449, at para. 34; Canary, at para. 21; Scairagic, at para. 16; and R. v. Bush, 2010 ONCA 554, at para. 38.

4. The objective assessment involves asking whether a reasonable person, standing in the shoes of the police officer, would have believed that reasonable grounds existed to arrest: Storrey, at paras. 16-17; and R. v. Gundy, 2008 ONCA 284, at para. 42.

5. Imperative to the objective assessment is an appreciation of the police officer's training and experience: MacKenzie, at paras. 62-63; and R. v. Wu, 2015 ONCA 667, at paras. 51-52.

6. A police officer is entitled to draw inferences and deductions based on experience: R. v. Censoni, [2001] O.J. No. 5189, at para. 36.

7. The objective assessment requires a fact-based contextual analysis of the totality of circumstances, rather than parsing and dissecting the evidence piecemeal: MacKenzie, at para. 64; Bush, at paras. 54-55; R. v. Lawes, 2007 ONCA 10, at para. 4; and R. v. Williams, 2009 ONCA 35.

8. The assessment of reasonable grounds does not necessarily involve critiquing the quality of the investigation, the thoroughness of the investigation, or the range of subjective questions that guided the investigation: Notaro, at para. 34; and Bush, at para. 70.

9. Reasonable grounds do not require the police officer to establish a prima facie case or proof beyond a reasonable doubt but there must be more than mere suspicion: MacKenzie, at para. 60; Storrey, at para. 17; and Wu, at para. 49.

C. Factual Findings

[8] The applicant did not testify on the Charter application. The following factual findings are based on the two witnesses called by the respondent — PC Barnett and PC Graff:

1. Location

[9] The applicant was leaving a plaza shortly after 3:00 AM. This was a location where PC Barnett was aware a licensed establishment existed.

2. Operation of the Applicant's Vehicle

[10] PC Barnett testified that the applicant left the parking lot, proceeded northbound on Monarch Avenue towards the "T" intersection controlled by a stop sign at Hunt Street. This officer testified that the distance to the corner was approximately 150 metres yet she was unable to specify the length of time or distance spent in the southbound lanes. PC Graff testified that the applicant's vehicle entered Monarch Avenue close on the heels of another vehicle. PC Graff did not describe seeing the applicant's vehicle spending any significant portion of time in the southbound lanes before entering the northbound lane.

[11] PC Barnett testified that once within the northbound lane heading towards the stop sign the applicant's vehicle swerved within the lane in an odd but deliberate manner. This swerving went from the curbside to the centre of the roadway. PC Graff testified that the applicant's vehicle swerved more than once heading northbound and in doing so the driver's side tires crossed the centre line. Both PC Barnett and PC Graff testified that the applicant's vehicle did not come to a full stop at the stop sign controlling the "T" intersection where Monarch Avenue intersects Hunt Street running east and west. Instead, the vehicle slowed, then made a wide right turn into the westbound lane close to the curb before swerving back to the eastbound lane. PC Graff turned on the emergency equipment and very shortly thereafter the applicant's vehicle came to a stop on the side of the road.

3. Analysis of the Driving Evidence

[12] The applicant's submission that there were differences between the evidence of the two officers called by the prosecution in this case is accepted. Overall, the evidence of PC Barnett was not confident and precise when describing the movement of the applicant's vehicle. PC Graff's evidence was clear, precise, and detailed.

[13] PC Barnett was not precise about the distance over which she observed the applicant's vehicle. The photographic evidence adduced by the applicant concerning the short distance between the restaurant parking lot and the ultimate traffic stop is accepted. The distance between the restaurant parking lot exit and the corner of Hunt Street is found to be approximately 150 metres. The applicant's vehicle travelled approximately another 100 metres on Hunt Street before the traffic stop. Ultimately, PC Barnett acknowledged that this was a short distance.

[14] PC Barnett described the applicant's vehicle proceeding northbound in the southbound lanes on Monarch Avenue. This officer was unable to describe (or even estimate) the length of time or distance that the applicant's vehicle proceeded in the southbound lanes before moving into the northbound lanes. The applicant's vehicle would necessarily have been in the southbound lane for a period of time before moving to the northbound lane given the restaurant parking lot was on the west side of street. PC Graff did not testify that the applicant's vehicle proceeded northbound in the southbound lanes. The evidence of PC Graff is preferred. PC Barnett's evidence that the applicant's vehicle was notably present in the southbound lane for any significant length of time is not accepted.

[15] PC Barnett described the applicant's vehicle swerving as it proceeded northbound. PC Graff's evidence corroborates this observation. The evidence from both officers that the applicant's vehicle was swerving in the northbound lane is accepted. It is not found to be significant that PC Graff noted the driver's wheels crossing the middle marked line but PC Barnett did not note this. PC Barnett was a passenger in the police cruiser. PC Graff was the driver. PC Graff's ability to observe the driver's side wheels was better than PC Barnett's.

[16] PC Barnett testified that the applicant's vehicle slowed but did not stop for the stop sign at Hunt Street before executing a wide right turn proximate to the curb of the westbound lane on Hunt Street. PC Graff corroborates this observation. While PC Barnett did not testify about the Grey SUV directly in front of the applicant's vehicle observed by PC Graff, the applicant's vehicle executed this maneuver.

[17] PC Barnett testified that the applicant's vehicle stopped quickly upon activation of the emergency lights. PC Graff corroborates this observation. This observation is not found to be a notable indicia of impaired operation. Motorists may stop abruptly when notified to do so by the police. Nevertheless, this general observation is placed into the pot of considerations available to PC Barnett.

4. Observations of the Applicant

[18] PC Barnett testified that the applicant had bloodshot, glassy eyes and there was an odour of alcohol coming from the vehicle. This officer testified that the applicant fumbled with his wallet and ultimately dropped his wallet back into his lap when trying to grasp it. Further, his movements were very slow and deliberate. The applicant did not get out of the vehicle when told to do so and raised his voice. When he complied he stumbled such that PC Barnett had to grab his arm to prevent him from falling. Once out of the vehicle, PC Barnett could tell that the odour of alcohol was coming from his breath rather than the vehicle.

[19] PC Graff testified that the applicant refused to remove his cigarette and blew smoke in his face thereby providing him with the opportunity to detect both the smell of a cigarette and the smell of alcohol. PC Graff observed the applicant's brown eyes to be glossy and bloodshot. The applicant was leaning heavily to his left side and PC Graff grasped his arm so that he would not fall. The applicant was also leaning heavily to his right side and PC Barnett grabbed his arm and arrested him.

[20] There is no concern with minor differences in the way the officers described the applicant getting out of the vehicle. The cross-examination of PC Barnett around the production of the applicant's wallet is not concerning. PC Barnett described the applicant dropping his wallet into his lap. This evidence from PC Barnett is accepted. That the applicant produced his wallet from his pocket at the police station does not shatter this conclusion.

5. Finding: Reasonable Grounds

[21] The assessment of reasonable grounds is focused on the evidence of PC Barnett. The applicant chose not to provide any evidence on the application.

[22] The applicant left the parking lot of a licensed establishment in the early hours of the morning. His vehicle swerved for no apparent reason several times while proceeding northbound on Monarch Avenue. The applicant did not stop for a stop sign. He executed a wide right turn coming close to the curb for the opposite lane of travel. He displayed indicia consistent with the consumption of alcohol when investigated.

[23] While PC Barnett lacked precision at times, overall this officer was found to be earnest, honest, and fair. PC Barnett's assertion that she possessed subjective grounds to arrest the applicant for impaired operation is accepted. The asserted subjective grounds are objectively sustainable based on the evidence that is accepted. Even noting the short distance travelled, the cumulative observations were sufficient to support grounds.

[24] The sections 8 and 9 Charter applications are dismissed.

III. Section 10(b) of the Charter: Rights to Counsel

A. Applicant's Position

[25] The applicant asserted his right to speak to counsel of choice. The applicant asserts that the police violated section 10(b) by failing to provide a "Prosper warning" and failing to wait a reasonable period of time before continuing the investigation.

B. Factual Findings

[26] The applicant did not testify on the Charter application. The evidentiary record available includes the evidence of PC Barnett, PC Graff, and the video capture of the parade before S/Sgt Haight.

[27] The following findings are made:

1. PC Barnett told the applicant at the roadside that he was being stopped because of erratic driving;

2. PC Barnett provided rights to counsel at 3:12 AM upon the arrest of the applicant;

3. The applicant replied "Yup" which the Court interpreted as an affirmative assertion of wishing to contact a lawyer;

4. At 3:30 AM the applicant told the Staff Sergeant at parade that he had not been told the reason for his arrest and had not been read his rights to counsel;

5. PC Barnett's evidence that she told the applicant that he was being stopped because of his erratic driving and to investigate his sobriety is accepted, and in reply the applicant laughed at her (the applicant had a position on this issue on the trial but he was not called on the application);

6. During parade the applicant was again informed of his rights to counsel;

7. The applicant asserted a wish to speak to "Graham";

8. The applicant was provided his cellphone to assist him with locating the contact information for "Graham";

9. The police attempted to assist the applicant with the identity of "Graham" and even suggested the surname of a former criminal lawyer in the jurisdiction – Justice Graham Wakefield;

10. Initially the applicant was unable to provide the contact details for "Graham" except for a fax number;

11. Minutes later the applicant was provided with his cellphone again and he was able to provide the contact details for a Graham Rathwell;

12. At 3:33 AM PC Barnett received an email address for Graham Rathwell from the applicant's phone;

13. At 3:44 AM PC Barnett contacted the phone number provided and left a voicemail after an answering machine message;

14. PC Barnett could not recall the content of the answering machine message;

15. There was no return call;

16. At 3:53 AM PC Barnett contacted the phone number a second time and this time noted that the answering message indicated that someone would be present to return phone calls after 11:15 AM;

17. PC Barnett could not recall whether a firm name was provided in the message;

18. PC Barnett could not recall a name of a representative in the message;

19. PC Barnett did not agree that a "Ted Rathwell" was indicated in the voicemail message;

20. At 3:59 AM PC Barnett attempted to locate further information for Graham Rathwell on the "Law Society" website with no success;

21. At 3:59 AM PC Barnett attempted to locate Graham Rathwell on www.411.ca with no success;

22. At 4:02 AM PC Barnett relayed the outcome of the attempts to locate Graham Rathwell to the applicant including the fact that no one would be available to return his call until 11:15 AM according to the voicemail message;

23. At 4:02 AM PC Barnett asked the applicant if he had an alternative number or method to contact Graham Rathwell;

24. At 4:02 AM PC Barnett asked the applicant if he had another counsel of choice he wished to call;

25. The applicant did not request access to another counsel of choice stating that he "did not want to speak to anyone who did not know his life";

26. The applicant declined to speak to duty counsel;

27. At 4:05 AM the applicant used the washroom and was transferred to the breath technician for breath tests;

28. PC Barnett had heard the name Graham Rathwell before and believed that he was a paralegal;

29. PC Barnett did not tell the applicant that she believed Graham Rathwell to be a paralegal;

30. PC Barnett did not know if she became aware of the guidance provided by Prosper prior to this investigation or whether that knowledge was gleaned afterwards;

31. At the time of the investigation PC Barnett did not have a "Prosper Card", a police-issued card providing additional informational guidance to a detainee relevant to these circumstances. She received it after this investigation; and,

32. PC Barnett did not provide a "Prosper warning".

C. Analysis: Section 10(b) "Prosper Warning"

[28] The applicant submitted the following arguments:

1. That the fact that the applicant requested access to a paralegal should not impact the merits of the section 10(b) application;

2. That the police should have told the applicant that the person he wished to contact was not a lawyer; and,

3. That the police should have provided a "Prosper warning".

[29] The applicant has established, on a balance of probabilities, a breach of section 10 of the Charter.

[30] The police were obligated to inform the applicant of three important pieces of information.

[31] First, given PC Barnett had a subjective belief that the person sought by the applicant was not "counsel" but a paralegal, she was obligated to inform the applicant that she factually knew this to be true or reasonably believed this to be true. To be clear, this finding is limited to the peculiar facts in this case — a case where PC Barnett subjectively believed that the person sought was a paralegal. The police do not generally have an obligation to investigate the credentials or professional status of "counsel".

[32] Second, PC Barnett was obligated to inform the applicant that the section 10 Charter right pertained to legal advice from "counsel" (i.e. a lawyer, not a paralegal). Given she had subjective information that the person sought was not "counsel", she had an obligation to disclose that information to the applicant as part of her duty to facilitate access to "counsel". This would have prompted some clarification of the request from the applicant.

[33] Third, given the applicant had invoked the right to speak to counsel, PC Barnett was obligated to provide a "Prosper warning" before deeming the applicant to have waived his right to counsel. The applicant should have been told that the police were required to afford a reasonable opportunity for the applicant to speak to "counsel" and refrain from requiring the applicant's participation in an incriminating process.

1. The police were obligated to inform the applicant that Graham Rathwell was not "counsel".

[34] The purpose of section 10(b) is to ensure that detained persons know their right to counsel and are able to access counsel in circumstances where the deprivation of their liberty leaves them vulnerable to legal jeopardy: R. v. Suberu, 2009 SCC 33, at para. 40; and R. v. Willier, 2010 SCC 37, at para. 28.

[35] The applicant asserted a right to counsel. The applicant was diligent in exercising this right in that he provided the name of "counsel" and used his cellphone twice for the purpose of providing contact details to PC Barnett.

[36] The applicant did not squarely address by way of evidence whether Graham Rathwell was a lay person, a paralegal, or a lawyer. Nevertheless, both the applicant and respondent have proceeded on this application as if it was established that Graham Rathwell was, in fact, a paralegal. The court is prepared to proceed as if Graham Rathwell was a paralegal given the approach of counsel and particularly given the evidence of PC Barnett that she knew that he was a paralegal.

[37] There are three problems with the approach of PC Barnett:

1. PC Barnett subjectively believed that Graham Rathwell was a paralegal representative and not "counsel";

2. PC Barnett did not advise the applicant that Graham Rathwell was a paralegal; and,

3. A paralegal representative is not "counsel" as contemplated by section 10(b) of the Charter: See R. v. Randle, 2018 ONCJ 180; R. v. Bukin, 2018 ONCJ 137; R. v. Ma, [2017] O.J. No. 897 (C.J.); R. v. Mazzuchin, [2016] O.J. No. 371 (C.J.); and R. v. Deol, [2011] O.J. No. 3274 (C.J.).

[38] Since PC Barnett possessed the subjective knowledge that Graham Rathwell was not "counsel" she was obligated to tell the applicant this fact: (see a recent decision of Halikowski, J. in R. v. Wan, [2017] O.J. No. 4455 (C.J.), at para. 18.) PC Barnett had the obligation to facilitate the applicant's access to "counsel". By not providing him with information she knew, she failed to properly address this duty.

[39] PC Barnett understood that section 10(b) of the Charter required her to facilitate access to "counsel" yet she diligently facilitated access to a person she knew was a paralegal. On the peculiar facts in this case, PC Barnett believed that the person sought by the applicant was not "counsel". Yet, she looked on the law society website and 411.ca for further contact information. She communicated these efforts to the applicant. In doing so she risked perpetuating the false conception that she was facilitating access to "counsel" in the eyes of the applicant. That being said, there is no direct evidence that the applicant held this belief.

[40] In the circumstance of this case PC Barnett should have told the applicant about her subjective belief that Graham Rathwell was a paralegal.

[41] PC Barnett should have informed the applicant that the police were obligated to put the applicant in contact with "counsel" not a paralegal.

[42] PC Barnett should have then clarified the request for a paralegal. Perhaps the applicant did not know that the person he sought was incompetent to provide legal advice to him. Perhaps the applicant knew that the person he sought to speak to was not competent to provide legal advice but knew someone who could perform such a service. Given the applicant did not testify, this is merely illustrative speculation. The core conclusion is the applicant should have been provided with relevant information known to PC Barnett. Important information necessary to the effective facilitation of his right to access counsel.

[43] In the court's view, this failure alone is a breach of section 10(b) of the Charter.

[44] In arriving at this conclusion a few issues are left unaddressed given the state of the record.

[45] First of all, the issue of whether PC Barnett was obligated to tell the applicant the additional information that a paralegal was not able to provide legal advice concerning the matters for which he had been arrested is left unaddressed. The record on this proceeding did not address this issue. PC Barnett was not asked if she was aware that a paralegal could not provide legal advice in the area of drinking and driving.

[46] Second, neither party addressed the deeper impact of PC Barnett's subjective belief that the applicant's "counsel of choice" was a paralegal. While PC Barnett understood that the person sought was a paralegal this does not necessarily imply that she knew that a paralegal could not act for the applicant. Neither side asked PC Barnett why she was diligently facilitating access to a paralegal. As a result the court must rely on its overall assessment of PC Barnett as a witness. PC Barnett was an officer with only three years' experience. Her efforts to facilitate contact with a paralegal were found to be earnest and sincere. Her efforts were not found to be a cynical approach to her section 10(b) obligations. The court does not believe that she diligently checked the law society website and 411.ca as a ploy designed to frustrate an applicant who had not been completely cooperative with her. Were this the case, a very serious breach of section 10(b) would be the result.

[47] Finally, the law is clear that police officers should permit detained persons to contact third parties (e.g. spouse, parent, friend) if the purpose is to facilitate access to counsel: R. v. Tremblay; and R. v. Kumarasamy, [2002] O.J. No. 303 (Ont. Sup. Ct.). While this obligation could extend to paralegals, the record on this application does not support a finding that the applicant requested access to a paralegal for the purpose of facilitating access to counsel of choice. The pragmatic reality is that PC Barnett diligently facilitated access to a paralegal for an undetermined purpose.

2. The police were required to provide a "Prosper" warning.

[48] PC Barnett's failure to advise the applicant that the person sought was a paralegal representative and not "counsel" was compounded by another breach of section 10(b) of the Charter – the failure to provide a "Prosper" warning.

[49] In Willier, at paragraphs 31-32 the Supreme Court of Canada explained when a "Prosper warning" was required:

31 The informational duty imposed on the police is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding: R. v. Evans. Additionally, there are specific, narrowly defined circumstances in which section 10(b) prescribes an additional informational obligation upon the police. In R. v. Prosper, Lamer C.J. described this additional informational duty, and the circumstances that trigger it, as follows (p. 274):

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

32 Thus, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, section 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to in this appeal as the duty to give a "Prosper warning", is warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the section 10(b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed. [Emphasis added]

[50] The applicant was reasonably diligent in asserting access to counsel of choice. When PC Barnett updated the applicant concerning her efforts she did not tell him that the police were obligated to provide a reasonable opportunity to consult with "counsel". This would have been an excellent time to point out her subjective belief that the person sought was a paralegal.

[51] In these circumstances, PC Barnett should have clarified the request for "counsel" and informed the applicant of the various options available. She asked if the applicant had "another lawyer that could be contacted on his behalf" rather than offering him access to other sources from which he could pick counsel of choice (e.g. telephone book; list of lawyers). This approach by PC Barnett was sincere but deficient.

[52] PC Barnett was also obligated to tell the applicant that the police were required to hold off continuing the investigation for a reasonable time period awaiting a return call from "counsel of choice". It would have also been helpful for PC Barnett to define what a "reasonable opportunity" was in context. The applicant should have been told that the police would wait a period of time for the return call but that a "reasonable opportunity" would not extend until after 11:15 AM when Graham Rathwell's office was available: see R. v. Fountain, 2017 ONCA 596, at paras. 32-34.

[53] The police thereafter enlisted participation of the applicant in the investigation by securing breath samples.

3. Waiver

[54] The respondent has not met the high standard for waiver: R. v. Bartle, at para. 18; and Willier, at paras. 31-32. The absent "Prosper warning" and the failure to tell the applicant that his counsel of choice was not "counsel" rendered any concept of waiver uninformed.

[55] The applicant's statement that "he did not want to speak to anyone who did not know him" cannot be the final statement on the issue of waiver when the statement was made without important information integral to the exercise of the rights conferred by section 10 of the Charter.

[56] The failure of the applicant to access another counsel of choice is also irreparably linked to this lack of information. PC Barnett did not offer the applicant alternative means to access counsel but limited her inquiry to whether the applicant had another counsel in mind that he wished to contact. A "Prosper" warning would have ensured that the applicant was aware that his failed efforts to contact "counsel" did not expunge his right to counsel as an integral piece of an informed waiver: Willier, at para. 38.

[57] The purpose of the "Prosper warning" was to furnish the applicant with important information. The purpose of telling the applicant that the person he sought was not a lawyer was important to the exercise of his rights.

[58] The applicant's actions have to be viewed in context. His position that he only wanted to talk to someone who knew his life was uninformed by the content of a "Prosper warning" and important information possessed by PC Barnett.

D. Section 24(2) Analysis

[59] The applicant seeks the exclusion of breath samples obtained in violation of section 10(b) of the Charter. The applicant must establish on a balance of probabilities that: (1) the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and (2) the admission of the evidence would bring the administration of justice into disrepute: R. v. Pino, 2016 ONCA 389, at para. 36. It is questionable whether the applicant has established that his breath samples were "obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter" notwithstanding the section 10(b) breach in this case: R. v. Boutros, 2018 ONCA 375, at para. 17.

[60] The applicant must establish that there is a temporal, contextual, or causal connection between the breach and the impugned evidence: Boutros, at para. 17.

[61] The applicant has not testified on the application.

[62] There is a temporal connection — the breach and the breath readings occurred on the same evening within the same hour. That temporal connection would be a feature in every breath sample case. While a causal relationship is not a condition precedent to a section 24(2) Charter remedy, the "nature and extent" of any causal relationship is still important: R. v. Mack, 2014 SCC 58, at paras. 38-42.

[63] The meaningful impact of the breach is unknown. The applicant's position was that he did not want to speak to anyone who did not know his life. Was this position ill-informed? What consequences flowed from the section 10 breach from the perspective of the applicant? What was his subjective state of mind?

[64] On the record presented, the section 24(2) application would be dismissed based on insufficient nexus between the impugned conduct and the breath samples and the paucity of evidence supporting any causal relationship between the section 10(b) breach and the breath samples. The other components of the section 24(2) analysis are addressed in case there has been an error.

[65] The three factors set out by the Supreme Court of Canada are: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach or breaches on the Charter-protected interests of the accused; and (3) the societal interest in an adjudication of the case on its merits.

1. Seriousness of the Charter-infringing state conduct

[66] The applicant asserted his constitutional right to counsel. PC Barnett subjectively knew that the person sought by the applicant was not "counsel" and failed to advise him of this state of knowledge. The officer did not clarify the applicant's request for counsel and thereafter diligently facilitated access to a paralegal representative. While PC Barnett was not obligated to comment or critique the applicant's request, there was an obligation to clarify the request.

[67] The record is silent concerning PC Barnett's subjective belief about the implications of her subjective knowledge that Graham Rathwell was a paralegal. While it is clear that a paralegal could not provide legal advice on the charges (see section 802.1 of the Criminal Code), PC Barnett was not asked whether she knew a paralegal could not act for the applicant. As such, there is no evidence either way on this point. It is important that PC Barnett took well-meaning steps to search for Graham Rathwell. It is important that she reported these efforts to the applicant. It is important that she asked the applicant about other contact numbers and whether he wished to access another counsel of choice.

[68] The court is satisfied that PC Barnett's actions overall show that she facilitated access to a paralegal because she believed that this was the appropriate step to take. PC Barnett did not disregard or disparage the applicant's wish to speak to a paralegal. She did not mistreat the applicant notwithstanding his lack of cooperation with her at times. She acted as if he requested access to legal counsel. Police officers should be encouraged to respect and facilitate access to counsel — whether directly or via third parties.

[69] The court believes that PC Barnett did not understand that "counsel" meant a lawyer. The court is not certain that she understood that the Criminal Code limited the ability for paralegal representatives to provide legal advice in drinking and driving matters. Finally, while technically, section 10(b) does not support access to a paralegal, having viewed that request as equivalent to legal counsel, PC Barnett should have provided a "Prosper warning".

[70] In this context the conduct of PC Barnett is characterized as understandable. In these peculiar and technical circumstances the breach is characterized as inadvertent and fueled by ignorance rather than blatant disregard for Charter values. Nevertheless, reasonable persons would expect a police officer to know how to address a request for a paralegal or other third party. Reasonable persons would expect PC Barnett to have sought guidance from more experienced officers who were available if she was unsure.

[71] The analysis of this factor favours exclusion.

2. Impact on the Charter-protected interests of the accused

[72] The impact on the applicant ranges from unknown to minimal given the record in this case.

[73] First of all, although PC Barnett breached section 10 of the Charter by not providing a "Prosper warning", this finding is mitigated to some degree by the fact that a reasonable length of time had passed. The applicant used his cellphone to provide the contact details for his representative at approximately 3:30 AM and following. At 3:44 AM PC Barnett made the first call. At 3:53 AM the second call was made. The voicemail advised that no one would be available to return calls until after 11:15 AM. No after-hours phone number was provided. At 4:02 AM PC Barnett properly asked the applicant if he had alternative contact information for his representative or if he had an additional number for counsel of choice. It was not unreasonable for PC Barnett to suggest or raise the issue of duty counsel at this point. She had left a voicemail message. She also noted that no one would call back until after 11:15 AM.

[74] Second, there is no insight into the subjective views of the applicant that night. The applicant was uncooperative at times with the police officers. He blew smoke in the face of PC Graff. He refused to get out of the vehicle at first. He was also very tired. There is no information as to the applicant's state of mind grappling with the issue of access to counsel. It is not known if the applicant thought Graham Rathwell was legal counsel. It is not known if the applicant knew that he was a paralegal and he wanted to speak with him in any event. It is not known if the purpose was to obtain a referral to a lawyer within Graham Rathwell's firm. There is simply no evidence about the applicant's purpose in seeking to speak with Graham Rathwell.

[75] Finally, importantly, it is not known what the applicant meant by stating that he did not wish to speak to anyone who did not know his life. It is not known if this meant Graham Rathwell was the only person he would agree to speak to. It is not known if he was simply expressing his frustration with the police approach that night.

[76] In Bartle, at paragraphs 52-53 Lamer C.J.C explained that in cases where there has been a breach of section 10(b) when addressing the section 24(2) analysis the Crown bears the burden of establishing on a balance of probabilities that the applicant would not have acted any differently had his section 10(b) rights been fully respected and that the evidence would have been obtained irrespective of the breach: See also R. v. Harper, at paras. 16-17.

[77] Of course, the applicant was not a compellable witness for the respondent Crown on the application. The applicant did not testify on the application and explain or amplify his position on the night in question. As a result the court is left at a loss as to what his approach would have been had he been properly informed. The court is not entitled to theorize or speculate as to the applicant's evidence. The approach of the applicant on the night in question is not susceptible to reasonable inference. The court is not entitled to assume he would have contacted a lawyer any more than it could assume that he was simply being obstinate.

[78] The court is required to evaluate the record placed before it. The core of the analysis under this factor concerns the impact on the rights of the applicant. This is a heightened concern because the applicant did not speak to counsel prior to providing breath samples. The court is not able to conclude that the applicant's approach would have necessarily been different in the absence of evidence on point.

[79] Given the record produced, the respondent has demonstrated on a balance of probabilities that even if PC Barnett had properly addressed the informational component the applicant's approach would not have been different.

[80] In this case the respondent has discharged this burden because of the absence of evidence from the applicant on the application.

[81] Finally, the comprehensive guidance of the Ontario Court of Appeal in R. v. Jennings, 2018 ONCA 260, at paragraphs 27-32, supports the finding that the breath sample regime is a minimally intrusive process. The Court addressed the analysis in R. v. Au-Yeung, 2010 ONSC 2292, explicitly and directly. There is no reason to distinguish that aspect of Jennings based on whether section 10(b) or section 8 of the Charter is being litigated.

[82] In the court's respectful view the impact on the applicant's Charter-protected rights is negligible. This factor favours inclusion.

3. The societal interest in adjudication on the merits

[83] The societal interest in the effective prosecution of drinking and driving cases combined with the highly reliable breath samples, necessary to the prosecution case, favours admission: R. v. Harrison, 2009 SCC 34, at paras. 33-34.

4. Balancing

[84] Balancing all of the considerations the long term repute of the criminal justice system is better served by the admission of the evidence.

IV. Trial Issues: Impaired Operation

[85] The defendant submits that the prosecution has not proven impaired operation beyond a reasonable doubt.

A. Evidence of the Defendant

[86] The defendant was called as a witness on the trial proper. The principles outlined in W.(D). v. The Queen and the criminal burden of proof have been applied. The defendant testified that he was a manager of a local food and catering business. His busy day began at 5:30 AM or 6:30 AM and involved coordinating large catering events. One of the catering events was at the restaurant on Monarch referred to in the evidence.

[87] There were three core features of the defendant's evidence relevant to the impaired operation count: alcohol consumption, a busy work day, and extreme tiredness.

[88] With respect to alcohol consumption the defendant testified that he consumed some rum. He did not describe the quantities of rum he consumed. He could not be precise concerning the timing of consumption. He was not asked what type of rum he consumed or the alcohol content. In an impaired operation trial obviously the quantities and types of alcohol consumed is important. The defendant's evidence was vague with respect to alcohol consumption.

[89] The defendant was able to describe in detail his busy work day and the multitude of tasks he was required to perform. The court accepts that he worked a long and busy work day. The court believes his evidence in this regard.

[90] The defendant also testified to being tired. The court believes his evidence. Further support for this proposition is the evidence of the defendant falling asleep in the cruiser, appearing to sleep at the police station, and the fact that the investigation occurred between 3 AM and 5 AM.

B. Evidence of the Prosecution

[91] The findings and analysis provided earlier in this judgment when the sections 8 and 9 Charter issues were addressed are adopted.

[92] In addition, the evidence from PC Graff is accepted that the defendant walked with slow deliberate steps back to the police cruiser notwithstanding he was wearing properly-tied shoes on a flat surface, the defendant had difficulty getting into the cruiser, and there was a strong odour of alcohol permeating the interior of the cruiser. There was no challenge to this evidence and as previously indicated PC Graff was a very clear and precise witness.

C. Analysis

[93] The defence position is that the defendant was extremely tired due to his work duties throughout the day and that the Court should have a doubt that alcohol consumption had an impact on the operation of the defendant's vehicle. Defence counsel submitted that when there is a combination of fatigue and alcohol consumption the operable legal test is whether the alcohol was a "triggering event" or "reasonable cause" to the operation of the vehicle because the "contributing factor" test sets the bar too low.

[94] Defence counsel's submission in this regard cannot be accepted. The submission that the operable test is a "triggering event" or "reasonable cause" as submitted by defence counsel is rejected. The alcohol consumption was a "contributing factor" to the defendant's impairment and this is the proper approach based on guidance from the Ontario Court of Appeal and several binding summary conviction appeal decisions: (see generally R. v. Bartello, [1997] O.J. No. 2226 (Ont. CA); R. v. Jin, 2018 ONSC 2898; R. v. Deighan, 2017 ONSC 1220; R. v. Dewey, 2016 ONSC 7536; R. v. Kraus, 2015 ONSC 4346; R. v. Murray, 2011 ONSC 2739; R. v. Sarosi, [2009] O.J. No. 590 (Ont. Sup. Ct.); R. v. Cosentino, [2008] O.J. No. 5263 (Ont. Sup. Ct.); R. v. Pena, [2008] O.J. No. 95 (Ont. Supt. Ct.); and R. v. Caldwell, [2006] O.J. No. 3280 (Ont. Supt. Ct.)). In sum, the driving evidence from PC Graff and PC Barnett that is accepted has been set out earlier in this judgment. The indicia of alcohol consumption have been outlined. The defendant admitted consuming alcohol. There is no minimum timeframe associated with this offence. Notwithstanding the short duration of driving the police observed unusual indicia of driving. The weaving in the northbound lane on Monarch, running the stop sign, and making the wide right turn are not accepted as actions related to lighting a cigarette.

[95] This record establishes guilt beyond a reasonable doubt to the standard dictated by R. v. Stellato, aff'd .

V. Certificate of Analysis Issue

[96] The defendant objected to the admission of the Certificate of Analysis on the basis that the Certificate said "19 division" in the space noted for the place where the samples were obtained. Defence counsel argued that this was insufficient to prove compliance with section 258(1)(g) of the Criminal Code which mandates evidence of the "time and place of each sample".

[97] The reasoning of Javed J. in R. v. Holland, 2017 ONCJ 948, at paragraphs 85-104 is adopted. Judicial notice is taken that 19 division is located at a Durham Regional Police station. The locations and names of police stations in the jurisdiction are heard about every single day. Separate and apart from the limits of judicial notice, evidence was heard at trial that the defendant was arrested by Durham Regional Police officers and he was taken to 19 division Durham Regional Police. A video of the parade before S/Sgt Haight at 19 division was seen and is filed as an exhibit. The court is satisfied that 19 division is a "place" satisfactorily identified for the purposes of this trial.

[98] Finally, defence counsel did not cite any prejudice to the defence case as a result of this circumstance. He further acknowledged that there were no disclosure requests or requests for further particulars associated with this issue. Finally defence counsel acknowledged that the alleged deficient place did not impair the preparation of the defence generally (for example, in seeking a sample of the alcohol standard solution).

Released: July 11, 2018

Signed: "Justice M.S. Felix"