Court Information

Ontario Court of Justice

Date: December 14, 2018

Court File No.: 14-12773

Parties

Between:

Her Majesty the Queen

— AND —

Justin Ebrahim

Before: Justice P.T. O'Marra

Heard on: October 17 and 18, 2018

Reasons for Judgment released on: December 14, 2018

Counsel

John Kingdon — counsel for the Crown

Yaroslav Obouhov — for the defendant Justin Ebrahim

Introduction

[1] On October 6, 2014, the accused, Mr. Ebrahim was charged with the following offences:

(1) That he did while his ability to operate a motor vehicle was impaired by alcohol did have the care or control of a motor vehicle, contrary to section 253(1)(a) of the Criminal Code of Canada, and

(2) That he had consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did have the care or control of a motor vehicle, contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] A Notice of Application was filed for an order under section 24(2) of the Charter of Rights and Freedoms to exclude any and all evidence, including but limited to the certificate of the qualified technician and all utterances, as a result of an infringement of Mr. Ebrahim's right to consult with his counsel of choice, contrary to section 10(b) of the Charter.

[3] This matter proceeded by way of a blended voir dire. The Crown called the arresting officer Constable Dennis and the Qualified Breath Technician Constable Leamon. As part of the Crown's case, and on consent, a transcript of the testimony of Linda Hillier was filed. Ms. Hillier had previously testified at the original trial in this matter which ended in a mistrial. Mr. Ebrahim testified on both the voir dire and the trial proper. As the evidence developed I am left with the following issues to decide:

(1) Was Mr. Ebrahim's right to speak to his counsel of choice breached contrary to section 10(b) of the Charter?

(2) If a Charter violation has been established, whether the admission of the breath readings would bring the administration of justice into disrepute and therefore warrant exclusion under section 24(2) of the Charter?

(3) Has the crown proven beyond a reasonable doubt that Mr. Ebrahim was in care or control of the motor vehicle when he was arrested by Constable Dennis?

(4) If, the answer to question #3 is "yes", and the presumption has not been rebutted, has the Crown proved beyond a reasonable doubt that Mr. Ebrahim was impaired by alcohol?

An Overview of the Evidence

Linda Hillier's Evidence

[4] Linda Hillier had just picked up her daughter from her place of employment at Fran's restaurant in downtown Toronto. At approximately 12:30 am on October 6, 2014, she was driving westbound on the Gardiner Expressway towards her home. As she approached a construction area with lane reductions, she observed a motor vehicle (hereinafter referred to the "Rav") swerving between lanes the Rav approached from her rear. Ms. Hillier pulled to the side and allowed the Rav to pass. She continued to observe the Rav. As she was concerned that the driver was "drinking and driving", Ms. Hillier called 911. Rather than proceeding northbound on highway # 427 towards her home, Ms. Hillier continued to follow the Rav. The Rav exited at Dixie Road, turned right at The Queensway and suddenly pulled a U-turn and drove over the median. The Rav continued west on The Queensway and rolled through a red light at the intersection of Cawthra Road and the Queensway and came to a stop in the middle of the intersection. Suddenly, the Rav accelerated diagonally across the intersection, drove over the curb and into a small ditch. The Rav remained in the ditch for approximately 20-30 seconds before it accelerated again back on to The Queensway. After the Rav travelled a short distance, it turned right at Tedlo Street and parked in an industrial complex.

[5] Ms. Hillier drove past the parking lot and quickly turned around. She parked on the road and watched the parked Rav. She noticed that the Rav had backed into a parking spot.

[6] Ms. Hillier testified that she had no idea the number of people that were inside the Rav. Ms. Hillier conceded that her description of the driver was uncertain due to her limited ability to observe the driver while she was driving on the Gardner Expressway. Nevertheless, Ms. Hillier described the driver as "a gentleman….between 20 or something". Ms. Hillier testified to the following:

"It was hard to tell and it was very quick glance. So it wouldn't – I don' know how accurate I was and the I had said possible brown skin is what I assumed at the time….I mean I had a glimpse, but that was it. It was very quick glimpse and it was nighttime and from that- after he passed me I was forever behind that car."

[7] Ms. Hillier remained in her motor vehicle until Constable Dennis arrived. While she watched the Rav she never observed any person exit the Rav before the Constable arrived.

[8] In cross examination, Ms. Hillier testified that once the Rav parked, it only took her "seconds" to turn around and park her motor vehicle on the street to observe the Rav. She stated that she watched the Rav reverse into the spot. After she had returned "very quickly" the Rav had not moved from its original spot.

Constable Dennis's Evidence

[9] Constable Dennis was on uniform patrol. At approximately 12:46 am, he received a radio call to attend the area of Dixie Road and The Queensway to investigate a possible impaired driver operating a grey Rav. At 12:50 am, he received a further update that the Rav was parked at 2320 Tedlo Street.

[10] At 12:52 am, Constable Dennis arrived and he was waived down by Ms. Hillier. He found the Rav parked at the rear of a building. The engine was running and the headlights were on.

[11] At 12:54 am, Constable Dennis approached the Rav. He observed Mr. Ebrahim seated in the front driver's seat. A female was seated in the front passenger seat. Constable Dennis testified that she appeared to be asleep. Another male was seated in one of the rear passenger seats. When Constable Dennis spoke to Mr. Ebrahim, he detected a strong odour of alcohol on Mr. Ebrahim's breath and his eyes were "red-shot". Initially, when he spoke to Mr. Ebrahim, he received an incoming call on his "Blue Tooth" from within the Rav. Constable Dennis testified that it took Mr. Ebrahim several attempts to successfully press the reject button to stop the incoming call.

[12] At 12:54 am, Constable Dennis formed the requisite grounds to arrest Mr. Ebrahim for impaired driving. He escorted Mr. Ebrahim from his car to the cruiser.

[13] From 12:56 am until 1:02 am, Constable Dennis read the breath demand, the rights to counsel and cautions. When Constable Dennis asked Mr. Ebrahim if he wanted to call a lawyer at that time he responded "yup" and asked to speak to Bruce Daley.

[14] At 1:08 am, Constable Dennis left the scene with Mr. Ebrahim.

[15] At 1:16 am, they arrived at 12 Division.

[16] While Mr. Ebrahim was being processed, Constable Dennis located Mr. Daley's telephone number from the internet.

[17] At 1:30 am, Constable Dennis left a message on Mr. Daley's voice mail. Constable Dennis testified in examination in chief that since he was not able to immediately contact Mr. Daley, he called duty counsel. Constable Dennis testified that he asked Mr. Ebrahim if he would rather speak to duty counsel. However, in cross-examination he was uncertain if Mr. Ebrahim asked to speak to duty counsel or if he reminded Mr. Ebrahim that he could use duty counsel.

[18] At 1:36 am, Constable Dennis called duty counsel and left a message.

[19] At 1:38 am, duty counsel called back and Mr. Ebrahim spoke to duty counsel until 1:42 am. When Constable Dennis asked if he was satisfied with the conversation, Mr. Ebrahim responded that he was satisfied.

[20] At 1:46 am, Mr. Ebrahim was turned over to Constable Leamon for breath testing.

[21] At 2:00 am, Mr. Ebrahim provided his first sample of breath which betrayed a reading of 197 milligrams of alcohol in 100 millilitres of blood. At 2:22 am, Mr. Ebrahim's second test was taken which registered 200 milligrams of alcohol in 100 millilitres of blood.

[22] Mr. Daley did not call back before the testing commenced. In cross-examination Constable Dennis disagreed that after he left a message on Mr. Daley's voice mail that Mr. Ebrahim asked if he could call Mr. Daley again. If Mr. Ebrahim did make that request, Constable Dennis testified that he would have tried Mr. Daley a second time and would have made a notation in his duty book. In cross-examination he testified that he "did not recall" if he offered to call another lawyer, other than duty counsel, on behalf of Mr. Ebrahim. Constable Dennis testified that he felt that it was reasonable to wait for sixteen (16) minutes for counsel of choice to call back, especially when the detainee had already talked to duty counsel.

Constable Leamon's Evidence

[23] Constable Leamon's evidence was not challenged. He took breath samples and prepared the Certificate of Analysis. None of his evidence had any relevance on the issues that are before me.

Mr. Ebrahim's Evidence

[24] Mr. Ebrahim testified that earlier that evening he had joined two friends at Jack Astor's for drinks. One of his friends was Cassandra Toolsie. Over the course of the evening he consumed "a couple of rum and Cokes double shots…a couple of beers….a Tequila shot". He waited for his cousin Rita Gopaul to show up. However, he learned that she had returned home to Mississauga after her date. According to Mr. Ebrahim the plan was go to Ms. Gopaul's home at 3525 Kariya Drive and stay the night.

[25] Mr. Ebrahim testified that he felt that it was unsafe for him to drive his mother's brand new Rav to Ms. Gopaul's home. He enlisted the aid of Ms. Toolsie to drive the Rav. Ms. Toolsie was an inexperienced driver that only possessed a G-2 Class driver's licence. Nevertheless, Ms. Toolsie agreed to drive. However, since she was not familiar with the Rav's GPS, Mr. Ebrahim had to assist her in navigating to Ms. Gopaul's address by using his phone. Mr. Ebrahim testified that Ms. Toolsie was not familiar with the operation and the fittings of the Rav, and as such, this accounted for the erratic operation of the motor vehicle observed by Ms. Hillier.

[26] Mr. Ebrahim testified that as Ms. Toolsie made the U-turn on The Queensway, the abrupt manoeuvre caused his take out container of poutine from Jack Astor's to spill all over himself and his mother's car. It also became apparent that they were lost. His cousin called and suggested that they park and either take an Uber or she would drive to them.

[27] Mr. Ebrahim testified that he directed Ms. Toolsie to park the Rav. The Rav's GPS was now functioning. Mr. Ebrahim was still on the phone with Ms. Gopaul and it was agreed that Ms. Gopaul would come and pick them up. Once Ms. Toolsie parked the Rav, according to Mr. Ebrahim, he jumped out of the front passenger seat to clean himself off. He told Ms. Toolsie to exit the Rav. He then sat in the driver's seat. He pushed back the driver's seat to clean up the vehicle. Since it was a cold night he closed the driver's door and kept the engine running.

[28] Mr. Ebrahim testified that approximately twelve (12) minutes passed before Constable Dennis arrived. He agreed that when he was speaking to Constable Dennis, Ms. Gopaul called.

[29] Mr. Ebrahim testified that he did not intend to drive the Rav that evening when he sat in the driver's seat. He testified that while the engine was running he could not accidently move the car. He would have to press a button to shift gears.

[30] With respect to his request to speak to Mr. Daley, Mr. Ebrahim agreed that he was aware that Constable Dennis left a message for Mr. Daley. However, immediately after the message was left, Mr. Ebrahim testified that duty counsel was already on the line ready to speak to him. Before he spoke to duty counsel, Mr. Ebrahim maintained that he asked Constable Dennis to call Mr. Daley again. Mr. Ebrahim testified that Constable Dennis said "we're not going to use police resources, however, I have Duty counsel on the phone, you could talk to them."

[31] Mr. Ebrahim testified that he wanted to speak to Mr. Daley and not duty counsel but felt that he had no other choice. Mr. Ebrahim testified that he had met Mr. Daley before when he represented a friend.

[32] Mr. Ebrahim's testified that his plan that evening was for Ms. Toolsie to park the car in a more obvious location and wait for his cousin to arrive. If his cousin did not show up he was prepared to abandon his mother's car and take an Uber to his cousin's home.

[33] In cross-examination, Mr. Ebrahim admitted that he had "concerns" about his ability to drive that evening. He testified that:

"In my head, I felt that I didn't need to drive a car, because I – I was more worried that the intoxication, so I said to myself no, I'm not going to drive a car."

[34] In cross-examination, Mr. Ebrahim felt that Ms. Toolsie's driving was "considerably good" in the area of the construction zone on the QEW. After they passed through the construction zone and picked up speed, he sensed that Ms. Toolsie was experiencing difficulty changing lanes. He testified that he did not feel that her driving was unsafe but he did take into consideration that they were lost and Ms. Toolsie was not familiar with the operation of the Rav.

[35] In cross-examination, Mr. Ebrahim stated that the Rav was parked in such a way that it was not visible from the road. When Mr. Ebrahim was pressed by the Crown about how his cousin would have been able to find his car, he stated that the Rav was in a laneway parked between two buildings and therefore, was visible.

[36] He testified in cross-examination that after he cleaned up the poutine he remained in the driver's seat to call his cousin. Since it was cold outside Mr. Ebrahim turned on the engine to activate the heating.

[37] With respect to the call to duty counsel, Mr. Ebrahim testified in cross-examination, that he witnessed Constable Dennis leave the message for Mr. Daley and then the officer asked him if he wanted to speak to duty counsel. He felt that he had no other choice and decided to speak to duty counsel. Mr. Ebrahim felt that duty counsel was on the telephone immediately waiting to speak to him. He testified that he only saw the officer make one call and that was to Mr. Daley. Mr. Ebrahim testified that there was no delay between the officer telling him that he left a voice message for Mr. Daley and to speaking to duty counsel. He disagreed with Constable Dennis's evidence that the eight (8) minute gap from 1:30 am to 1:38 am (which was the time when he left a message for Bruce Daley and the time when Duty counsel returned the message) was accurate. Mr. Ebrahim agreed that he was satisfied with the call to duty counsel when he was asked afterward by Constable Dennis.

Sykes Systems Services Corporation

[38] After Mr. Ebrahim completed his testimony, and no further evidence was tendered by the defence on the voir dire, I adjourned the proceedings to the next day to permit the Crown to call reply evidence.

[39] The following day, and on consent, the Crown filed an email from Riad Bacchus the Director of the Legal Assistance Division at Sykes Systems Services Corporation, the company that manages the telephone Duty counsel program. The email confirmed that at 1:33 am, Constable Dennis placed a call to Duty counsel. At 1:38 am, Duty counsel called back. Mr. Ebrahim completed his call at 1:41 am.

A) The Charter Application: Was there a breach of section 10(b)?

[40] Counsel alleged that Constable Dennis had a duty to inform Mr. Ebrahim that he had the right to wait a reasonable amount of time for his counsel of choice to call back. Counsel argued that the officer was too quick to resort to the duty counsel option and therefore, abrogated Mr. Ebrahim's right to speak to his counsel of choice.

[41] Mr. Ebrahim bears the onus to prove this breach on a balance of probabilities. If the breach is made out, any evidence arising is still admissible unless it is demonstrated that the admission of the breath test results into the evidence could bring the administration of justice into disrepute.

[42] There were really only the following factual disputes between the parties: Whether or not the Mr. Ebrahim asked Constable Dennis to call Mr. Daley a second time? What time did Constable Dennis call Duty counsel? However, the resolution of these particular factual disputes is not dispositive of the issue of whether the counsel of choice right was infringed.

[43] I was provided with the decision of R. v. Vernon, 2015 ONSC 3943, and the Court of Appeal's endorsement dismissing the Crown's appeal. See: R. v. Vernon, 2016 O.J. No. 1383. The facts are similar to the case at bar. In fact the time lines are virtually the same. Justice Ellies dismissed the Crown appeal and found that the trial judge did not err in holding that the police ought to have advised that the accused had the right to wait a reasonable amount of time for his counsel of choice to call back.

[44] The Crown cited the decision in R. v. Littleford, to support the Crown's submission that since Mr. Ebrahim had already spoken to duty counsel and was not dissatisfied afterwards, there was no breach.

[45] The Crown has also provided the decision of R. v. Shoker, 2016 O.J. No. 4563 (S.C.J.). In this case the accused wish to speak to his counsel of choice. At 11:32 pm, a voice mail message was left by the arresting officer. The accused asked that the officer try a second time and if counsel did not answer, the accused stated that he would be satisfied with speaking with duty counsel. He tried a second time unsuccessfully to reach counsel. At 11:35 pm, the officer called duty counsel. The accused spoke to duty counsel. At no point did the accused express any dissatisfaction with his conversation with duty counsel or the legal advice that he received. Justice Woollcombe found that the trial judge did not commit an error in concluding that there was no section 10(b) breach. Since the accused agreed to speak to duty counsel if his counsel could not be reached, and did speak to counsel, Justice Woollcombe held that "this is a critical fact that distinguishes the case from Vernon and Kumararsamy". Relying on a number of authorities, her Honour noted that the question to ask is not whether the police could have done more? She found the critical difficulty in the appeal was that the trial judge found that "if Mr. Singh (counsel) could not be reached, he was agreeable to speaking with duty counsel".

[46] Justice Woollcombe found that after the police have facilitated access to counsel of choice, nothing precludes the police from asking whether the accused would be prepared to speak with duty counsel if counsel of choice cannot be reached. If the police ask the question and the accused appears agreeable, police are not required to hold off trying to call duty counsel. (See: Shoker, supra. para. 70)

[47] Furthermore, if the accused chose not to express dissatisfaction, leaving the police with the impression that the accused was content to speak to duty counsel and with the conversation, the police should not be faulted for not waiting for counsel to call back as the police are not "mind-readers". (See: Shoker, supra. para. 71)

[48] In R. v. Vernon, supra. Justice Gillies disagreed that there was a positive obligation on the accused to express dissatisfaction with the advice of duty counsel or to continue to request an opportunity to speak with counsel of choice in order to establish a breach under section 10(b). In fact, Justice Gillies stated that it would be improper to impose such an obligation where the validity of a waiver of the right was in issue. Citing R v. Willier, 2010 SCC 37, where it was held that the accused had chosen to speak to another counsel rather than waive his right to counsel of choice, the onus falls on the Crown to establish a valid waiver. To do otherwise, according to Justice Gillies would be to reverse the onus that the Crown must bear. Instead the evidence of the failure to complain or not asking again to speak to counsel of choice is evidence that can be considered on the issue of waiver. (See: Vernon, supra. para. 44)

[49] In R. v. Vernon, supra the Ontario Court of Appeal released its endorsement on March 11, 2016 and stated the following citing its decision in R v Traicheff, 2010 ONCA 851:

The Crown asks this court to grant leave on the basis that it raises important questions about a detainee's obligation of diligence in a s. 10(b) Charter application.

In our view, this case does not raise those questions. On the findings of the trial judge -- ratified by the summary conviction appeal judge -- the police officer failed to satisfy his obligations to afford Mr. Vernon (the detainee) not only a reasonable opportunity to contact counsel of his choice but also to facilitate that contact: see Traicheff, 2010 ONCA 851, at paras. 2-3.

In light of those failings, it is unsurprising that the trial judge accepted Mr. Vernon's evidence that he felt he had no choice but to speak with duty counsel.

[50] I respectfully disagree with the Crown's submission that the endorsement simply means that the threshold in R. v. R.R., 2008 ONCA 497, has not been met. In my view, it was an approval of the findings of fact by the trial judge and the principles enunciated in the summary conviction judgment in Vernon and originally stated in Traiceff, supra.

[51] In my view, the distinction in the Littleford case from the facts of this case is that the accused in Littleford did not testify in the voir dire unlike Mr. Ebrahim. Given the speed at which events moved that evening, I believe and accept Mr. Ebrahim's evidence on this point that he felt that he had no choice but to speak with duty counsel. I am not entirely satisfied that he asked Constable Dennis to call Mr. Daley a second time. Although Constable Dennis did not recall if he did ask as he did not record it in his notes, I accept the Constable's evidence on this point that if Mr. Ebrahim did ask for him to call again, he would have done so.

[52] However, I reject Mr. Ebrahim's testimony that after the message was left for Mr. Daley, duty counsel was on the line literally waiting to speak to him. The time that Constable Dennis placed the call to duty counsel was either 1:33 am or 1:36 am, which was approximately three (3) – six (6) minutes after the message was left for Mr. Daley. The email from Sykes Services was irrefutable and entirely corroborated Constable Dennis's evidence on this point.

[53] Nevertheless, resolving the conflicts in evidence is not dispositive of the issue of whether there was a section 10(b) breach. I find that the officer should have advised Mr. Ebrahim that he did have the right to wait for his counsel to call back. I also see no reason why Constable Dennis could not have placed a second call on Mr. Ebrahim's behalf. There was no urgency that required Mr. Ebrahim to give up on waiting for his counsel of choice to return the message. Only three (3) to six (6) minutes had passed before duty counsel was contacted. Furthermore, the arrest of Mr. Ebrahim was only 44 minutes old when Constable Dennis advised Mr. Ebrahim that duty counsel was on the phone. In my view, Constable Dennis had ample time before the two-hour time period set out in section 258(1)(c)(ii) of the Criminal Code elapsed at the moment in time he told Mr. Ebrahim that duty counsel was on the phone.

[54] The Supreme Court in R. v. Prosper, has also explained the urgency in displacing the right to consult counsel should not rise in drinking and driving cases because of the passage of time may jeopardize the Crown's reliance on the two hour statutory presumption found in subsection 258(1)(c)(ii) of the Criminal Code. The Crown is still entitled to call expert evidence to relate back the blood alcohol level to the time of driving.

[55] The police do not have to exhaust all reasonable possibilities to fulfill their corresponding duty to facilitate contact with counsel. (See: R. v. Winterfield, 2010 ONSC 1288 at para. 62) However, in this case, as in Vernon, Constable Dennis should have done more. Constable Dennis did nothing apart from leaving a message on Mr. Daley's voice message system and then "defaulted to duty counsel". (See: Vernon, supra. para. 48) I agree with Justice Gillies opinion, by doing so, that was not enough.

[56] The proper approach to facilitating access to counsel was outlined in Traicheff, supra. The Court of Appeal at para. 2 agreed with the following comments from the trial judge who found a section 10(b) breach:

Appropriately the police should advise the detainee after waiting a reasonable period {italics are mine} of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.

[57] In my view, Constable Dennis defaulted to duty counsel, instead of waiting a reasonable period of time for counsel of his choice to call back. Constable Dennis felt that in light of the fact that Mr. Ebrahim had already spoken to duty counsel, sixteen (16) minutes was a reasonable period of time for counsel to call back. However, the point that I believe Constable Dennis overlooked, was that he only waited 3 – 6 minutes for counsel to call back. In my view, that was not a reasonable period of time to wait. I find that Constable Dennis failed to facilitate contact with Mr. Ebrahim's counsel of choice.

B) Section 24(2) of the Charter

[58] I must now consider whether or not the breath samples regarding Mr. Ebrahim should be included or excluded from the trial under section 24(2) of the Charter. In doing so, I must keep in mind the long term effect the inclusion or exclusion of this evidence will have on society's confidence in the criminal justice system. I must carefully examine the analytical framework as set out in R. v. Grant, 2009 SCC 32, having regard to three factors:

1. The seriousness of the Charter infringing conduct.
2. The impact on Mr. Ebrahim's Charter protected interests.
3. Society's interest in the adjudication of the case on its merits.

(i) The seriousness of the Charter infringing conduct

[59] I have concluded that the infringement of the Mr. Ebrahim's section 10(b) right to counsel of his choice was a serious violation. I am mindful that Mr. Ebrahim did speak to duty counsel and he did not complain about the nature or the quality of the legal advice he did receive from duty counsel. He did provide two samples of his breath as the law required. In light of this, the impact of the violation was not as high as in other cases. However, Constable Dennis's failure to comply with the implementational component of the right to counsel of choice deprived Mr. Ebrahim from making an informed choice. He had met Mr. Daley in the past and apparently had some degree of confidence in his skill as a defence counsel.

[60] I cannot conclude that Constable Dennis deliberately set out to violate Mr. Ebrahim's right to counsel of choice. It may have been a good faith based error, which is defined to mean where the police make an honest and reasonable error regarding the scope of their legal authority. However, I cannot accept both that Constable Dennis committed an honest and reasonable error, rather I believed that he acted in ignorance of the law on counsel of choice. But, even if I am wrong in my assessment of what constitutes good faith, the Supreme Court made it clear in Grant, supra at para. 76 that "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". As Justice Stribopoulos stated in R, v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789 para. 54, while citing the Supreme Court in Grant, supra at para. 133 "[t]his is because the police are rightly expected to know what the law is". (See also R. v. Romaniuk, 2017 O.J. No. 1735.)

[61] In drinking and driving cases there is often an emphasis on the concept of "time is of the essence". In other words, the police are trained to understand the importance of the two hour time limit in section 258(1)(c)(ii) of Criminal Code. In my view, Constable Dennis is no different. However, the right to speak to one's counsel of choice within a reasonable period of time should not be abrogated or displaced by a statutory presumption that can be remedied by the Crown calling expert evidence regarding the blood alcohol concentration at the time of driving. This factor favours exclusion of the breath readings.

(ii) The impact on Mr. Ebrahim's Charter-protected interests

[62] The Crown submitted that the impact of the breach had minimal impact on Mr. Ebrahim's Charter-protected interests since he spoke to duty counsel before he provided samples of his breath. The Crown submits that Mr. Ebrahim seemed to have followed duty counsel's advice. However, in my view that does not end the inquiry.

[63] The Supreme Court of Canada reaffirmed its importance of the right to counsel in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. At paragraph 40, the Court explained that it exists to:

Ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.

Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

[64] The impact of unlawfully seized breath samples due to a section 8 violation is minimally intrusive and its impact on the privacy and dignity of the individual is negligible. (See: R. v. Jennings, 2018 ONCA 260). Furthermore, in a section 10(b) breach the nexus between the breach and the collection of evidence can be negated by the 'Charter-compliant' consultation with counsel. (See: R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (C.A.) para 69 and 77-78). Mr. Ebrahim did consult with duty counsel and presumably received and followed the advice of duty counsel. However, I have found that Mr. Ebrahim felt that he had no choice but to speak to duty counsel. This had a significant impact.

[65] In a constitutional democracy, the right to counsel is innately valuable. Counsel is the accused's ally in any contest between the individual and the forces of the state. In particular, the right to counsel is fundamental in preserving the right against self-incrimination. Legal advice in drinking and driving cases should never be perfunctory. There may be occasions where counsel has grounds to believe the demand (or compliance) was not as soon as practicable; or lacked sufficient grounds. The advice of counsel might play a pivotal role in the accused's decision on whether or not to comply with a statutorily compelled search, in which the accused is forced to participate in his own incrimination.

[66] In my view, the right to counsel should not be treated or restricted to an automatic message in which duty counsel says "you must sufficiently blow twice directly into the device, but don't do physicals and don't answer questions." While the second branch should no longer be considered an automatic ground for exclusion since the taking of breath samples is minimally intrusive, self-conscription is still a relevant factor in second branch/Grant analysis.

[67] As I stated above, as a result of the infringements of his right to counsel, Mr. Ebrahim was deprived of his freedom of choice and ended up being compelled to speak to a lawyer he did not wish to speak to. The impact on Mr. Ebrahim's Charter-protected rights was relatively serious. This favours exclusion.

(iii) Society's interest in the adjudication of the case on its merits

[68] The Third branch that I must consider is society's interest in the adjudication of the case on its merits.

[69] The relevant inquiry at this stage is whether the truth-seeking function of the trial process would be better served by the admission or exclusion of the evidence. The seriousness of the case, the reliability of the evidence and its importance to the prosecution are important factors.

[70] In R. v. Bernshaw, the Supreme Court of Canada highlighted the serious nature and potential consequences of impaired driving.

[71] I am also mindful of the fact that the seriousness of the offence ought not to take on disproportionate significance. (See R. v. Harrison, 2009 SCC 34.)

[72] The breath samples are reliable, and no argument was made to the contrary.

[73] They are also of central importance to the Crown's case.

[74] This factor weighs in favour of admission. However, having considered these factors, I have come to the conclusion that the evidence must be excluded in order to best serve the long-term repute of the administration of justice. While the public clearly has an interest in drunk driving prosecutions being resolved on their merits, I believe that a reasonable and informed member of that same public also has an interest in ensuring that these prosecutions are fair and that the police live up to what is expected of them under the Charter.

[75] As a result, the results of the breath samples are excluded and charge of 'over 80' is dismissed.

C) Care or Control

[76] Mr. Ebrahim was occupying the driver's seat of the Rav when Constable Dennis arrived on scene. In these circumstances, the presumption in s. 258(1)(a) of the Criminal Code applies. Mr. Ebrahim is deemed to have had the care and control of the vehicle unless he establishes that he did not occupy the driver's seat "for the purpose of setting the vehicle . . . in motion."

[77] Counsel submitted that Mr. Ebrahim has rebutted the presumption that he was not intending to drive the Rav the moment he sat in the driver's seat, as he had two alternative plans. Firstly, he was waiting for his cousin to pick up both he and his friends. Secondly, if his cousin did not show up, Mr. Ebrahim testified that he was going to hire an Uber driver to drive the group to his cousin's home. Counsel further argued that if I find that Mr. Ebrahim had a reasonable plan, then I have to assess whether or not there was a realistic risk of danger that Mr. Ebrahim could inadvertently put his mother's car in motion.

[78] On the other hand, the Crown submitted that Mr. Ebrahim has not rebutted the presumption. The plan proposed was never finalized and even on Mr. Ebrahim's version of the events there was nothing preventing him from putting the vehicle in motion.

[79] The onus is on Mr. Ebrahim on a balance of probabilities to establish he did not occupy the seat for the purpose of setting the vehicle in motion, the relevant time is when an accused begins to occupy the driver's seat not when the police arrive. See R. v. Amyotte, 2009 O.J. No. 5122 (Ont. S.C.), para. 102 and R. v. Whyte, 42 C.C.C. (3d) 97 (S.C.C.)

[80] Mr. Ebrahim testified that Ms. Toolsie was driving erratically and became lost. When Ms. Toolsie made a U-Turn on The Queensway, the Jack Astor's poutine sitting on his lap, flew off and made a mess. After she parked the Rav, they switched seats in order for Mr. Ebrahim to clean up the mess. He positioned himself in the driver's seat and was content to wait in the Rav until his cousin arrived. If his cousin did not show up, Mr. Ebrahim would call an Uber.

[81] Mr. Ebrahim's evidence was problematic on several levels. Firstly, I do not accept that his plans to be rescued from a running motor vehicle had even been finalized. His cousin called Mr. Ebrahim in the presence of Constable Dennis. Therefore, there was every chance that whatever was planned out had not been completed or could have changed. It seemed absurd that Mr. Ebrahim did not call a taxi or an Uber at all. It defied common sense that he and his friends would sit in an empty parking lot several kilometres from his cousin's home and not call one.

[82] Furthermore, I agree with the Crown's submission that even if the plan had been finalized there was a realistic risk that Mr. Ebrahim would drive the Rav from the laneway to a more discernible location, for his cousin to spot or if he needed to leave his mother's car in the industrial unit parking lot overnight.

[83] I find that Mr. Ebrahim was the operator of the Rav that evening and not Ms. Toolsie. He was found in the driver seat of his mother's car that was running. He had a connection to the Rav. I find that there were aspects of Ms. Hillier's evidence that corroborated that Mr. Ebrahim was the driver of the Rav. Ms. Hillier was an independent witness. I acknowledge that Ms. Hillier only had a brief glimpse of the driver. However, at page 12 of the transcript of her evidence she described the driver as a "….gentleman. I put him between 20 and something". This evidence standing alone would be not be determinative of the issue nor would it convince me beyond a reasonable doubt that Mr. Ebrahim was the driver. However, the mere fact that Ms. Hillier identified the driver as male and not a female with shoulder length hair, which Mr. Ebrahim suggested was the person that drove the Rav at the time, was evidence that was fervently inconsistent with Mr. Ebrahim's testimony.

[84] I also reject Mr. Ebrahim's evidence on the basis of his description of Ms. Toolsie's manner of driving that evening. In my opinion, Ms. Hillier's lengthy and detailed description of the driving contradicted Mr. Ebrahim's version of the events. Ms. Hillier's description of the driving was frightening. She described swerving between lanes and inconsistent speeds. After the Rav exited the highway and in the City of Mississauga, the Rav was observed to drive erratically. Ms. Hillier observed the Rav stop in the middle of an intersection and drove through a ditch. Mr. Ebrahim's testimony omitted this kind of hazardous driving. Ms. Hillier considered the manner in which the Rav was operated as dangerous. She also assumed that the driver was intoxicated. Mr. Ebrahim's testimony regarding the manner of the driving was that of an inexperienced driver who was unfamiliar with the mechanical fittings of his mother's car, and who was receiving driving directions from the passenger. In my opinion, Ms. Hillier's description of the driving was not consistent with an unfamiliar and inexperienced driver who was lost or unfamiliar with her surroundings.

[85] Another problem that I had with Mr. Ebrahim's evidence was his description of what had occurred when the Rav was parked. Again, his version of the story was inconsistent with Ms. Hillier's observations. Ms. Hillier was unclear in her evidence if she actually witnessed the Rav reverse into a parking spot in the industrial unit. However, her evidence was that she completed a U-Turn after she passed the parked Rav and returned immediately. She testified that this only took her "seconds". Once Ms. Hillier parked she never took her eyes off the Rav. In my opinion, I doubt very much that when Ms. Hillier completed the U-Turn that gave Mr. Ebrahim a sufficient window of opportunity for the events which Mr. Ebrahim described to have taken place. I have serious reservations that during that moment Mr. Ebrahim and his passenger exited the Rav, Mr. Ebrahim re-entered the driver's seat and cleaned up the spilt poutine which was all over the front interior of the car. Above and beyond the high improbability that this had occurred, Ms. Hillier testified that no one ever exited the Rav when it was parked.

[86] I should point out that even if I accepted Mr. Ebrahim's version that he had no intention to drive and there was no realistic risk of danger that the vehicle could be set in motion, in my view, a finding of care and control could have been established since there was evidence of recent driving. (See: R. v. Schwandt, 2010 ONSC 1383, [2010] O.J. No. 998 (S.C.J.) at para. 28; R. v. Bernatsky, 2007 O.J. No. 4787 (C.J.) at para. 12.)

[87] I find that Mr. Ebrahim's story was not credible. It did not have the ring of truth and made very little sense. His story did not stand up to the uncontradicted and independent evidence of Ms. Hillier. Even if I accepted Mr. Ebrahim's explanation or reason to occupy the driver's seat, that would not have rebutted the presumption. I found his alternative plan to be picked up by his cousin or an Uber driver unconvincing.

[88] I, therefore, conclude that in the circumstances of this case, the presumption in section 258(1)(a) of the Criminal Code has not been rebutted and there was a realistic risk of danger that the vehicle would be set in motion. As a result, the Crown has proven that Mr. Ebrahim was in care and control of the Rav.

D) Impairment by alcohol

[89] The Crown bears the onus in establishing that Mr. Ebrahim was impaired by alcohol when he was in care and control of the Rav. Impairment is generally understood as meaning that an individual's judgment is altered and his or her physical abilities, such as coordination or reaction time, are reduced. Evidence which establishes any degree of impairment from slight to great is sufficient to establish this element of the offence. (See: R. v. Stellato, 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478.)

[90] In my view, the evidence establishes beyond a reasonable doubt that Mr. Ebrahim's was in care and control of the Rav while his ability to operate the Rav was impaired. In so concluding, I note the following:

(i) Mr. Ebrahim admitted that he consumed a "couple of rum and Coke's double shots….a couple of beers…a Tequila shot at Jack Astor's that evening.

(ii) In the context of whether Mr. Ebrahim felt safe to drive that night, he stated that "I felt that I didn't need to drive a car, because I -- I was more worried that the intoxication, so I said to myself no, I am not going to drive a car".

(iii) Constable Dennis observed that Mr. Ebrahim had a strong odour of an alcoholic beverage on his breath and he had "red-shot" eyes. Which I took to mean either red eyes or blood shot eyes.

(iv) Mr. Ebrahim had difficulty turning off the Blue Tooth inside of the Rav when he was speaking to Constable Dennis. He made several unsuccessful attempts.

(v) Ms. Hillier's observations of the atrocious driving was equally consistent with an impaired driver.

E) Conclusion

[91] I am satisfied beyond a reasonable doubt that Mr. Ebrahim while his ability to operate a motor vehicle was impaired by alcohol, and did have care and control of a motor vehicle.

F) Disposition

[92] For the foregoing reasons there will be a finding of guilt on count #1.

Released: December 14, 2018

Signed: Justice P.T. O'Marra