Court File and Parties

Court File No.: Brampton 15-6766 Date: November 19, 2018 Ontario Court of Justice

Between: Her Majesty the Queen — and — Davinder Brar

Before: Justice N. S. Kastner

Heard on: January 3, 4, 29, 2018

Written submissions and reply by counsel thereafter

Reasons for Judgment released on: November 19, 2018

Counsel:

• Daniella Portolese, counsel for the Crown/Respondent
• Alan Gold, counsel for the Defendant/Applicant

KASTNER, J.:

Overview

[1] This case primarily deals with the issue pursuant to the Canadian Charter of Rights and Freedoms (Charter) of whether the section 9 right of the Applicant, Mr. Brar, to be free from arbitrary detention was infringed when he was held in the division cells after he completed the required Intoxilyzer tests. Many cases have referred to this alleged breach as "overholding."

[2] The original application contained an allegation of infringements of sections 7 and 8 of the Charter, but Mr. Gold abandoned those at the outset of the trial.

[3] A brief overview of the background leading to the Applicant's detention is appropriate.

Background Facts

[4] Mr. Brar was operating a motor vehicle with no headlights at approximately 2:15 a.m. on May 31, 2015 when an officer noticed him and followed his vehicle, observing some driving infractions, weaving in and out of his marked lane.

[5] The officer conducted a traffic stop and noted an odour of an alcoholic beverage on his breath. Mr. Brar had three passengers, and he told the officer he was driving his friends to go get food.

[6] Mr. Brar denied drinking.

[7] The officer noted his face colour was apparently normal, his balance and walking sure, pupils normal and clothes orderly. He was cooperative and polite with some profanity.

[8] The officer had the requisite suspicion that Mr. Brar was operating a motor vehicle with alcohol in his body and he made an approved screening device demand. While making the demand, the defendant interrupted and said "I am fucked. I am going to fail." The officer asked to finish making the demand. Mr. Brar interrupted a second time to interject "I am fucked. Can you just suspend my license please? Help me out." The officer said he could not help him out, and finished the demand.

[9] At 2:20 a.m. the defendant provided a suitable sample into the approved screening device, an Alcotest 7410, and yielded a fail result, which indicated his blood alcohol concentration was greater than 100 milligrams of alcohol in 100 millilitres of blood.

[10] The officer then had reasonable and probable grounds that Mr. Brar's blood alcohol concentration exceeded the legal limit of 80 milligrams of alcohol in 100 millilitres of blood and arrested him for that offence.

[11] At 2:24 to 2:25 a.m., rights to counsel were read. Mr. Brar did not wish to call a lawyer.

[12] The breath demand was made at 2:25 a.m.

[13] At 2:30 a.m., the officer left for the police station, 12 Division in Mississauga, arriving at 2:40 a.m. There was a wait because other prisoners were in the cell area. Again Mr. Brar declined to call a lawyer.

[14] At 3:03 a.m., Mr. Brar was turned over to a qualified breath technician, Police Constable Scobie. The officer is very experienced, and had conducted 2,122 breath tests prior to the subject tests.

[15] Two suitable samples of his breath were analyzed, and at 3:08 a.m. the first breath reading result was 177 milligrams of alcohol in 100 millilitres of blood. At 3:31 a.m., the second breath reading result was 170 milligrams of alcohol in 100 millilitres of blood. Truncated, the readings were 170 and 170 milligrams of alcohol in 100 millilitres of blood.

[16] Constable Scobie noted the odour of alcohol present on Mr. Brar's breath, his face was flushed in the area of his cheeks, he had bloodshot watery eyes, his pupils were normal, and his speech seemed good. He was cooperative and polite.

[17] He formed the opinion that Mr. Brar's ability to operate a motor vehicle was impaired by the consumption of alcohol, and that the effects were slight.

[18] When testing was complete, Police Constable Orbegoso took Mr. Brar to the cell booking area, and served him the documents, the Notice of Intent to introduce evidence and the Certificate of the Qualified Technician at 3:41 a.m.

[19] The applicant provided his brother Ricky's phone number to the officer, which the officer called and no one answered. He tried once or twice.

[20] At 4:20 a.m., Police Constable Orbegoso attended the address of the registered owner of the vehicle, which was the defendant's father's home. He spoke to the father to advise of the seizure of the vehicle, and to advise that he was looking to get a hold of Ricky, and the father said he would try to call his son Ricky to pick up his son Davinder.

[21] The applicant's father said he was not willing to pick him up personally, but that "he would take care of it."

[22] He was advised that his son Davinder was being held at 12 Division Peel Regional Police. The officer did not recall if he told him his son was in the cells.

[23] Officer Orbegoso believed that someone from his family would pick up the defendant, as the intent was to release him when someone would pick him up.

[24] The officer was off shift at 6:00 a.m.

Issues

[25] The only issue argued was whether in all the circumstances, the police detaining the Applicant post-samples constituted a Charter violation, and if so, the effect of such an infringement on the admissibility of the breath sample evidence.

[26] Mr. Gold argued that Mr. Brar ought to have been released after his breath test, and his continued detention was in violation of s. 498 of the Code, and his s. 9 Charter rights. Inspector Ramore (then a Staff Sgt.) did not personally assess Mr. Brar to determine whether he was releasable, nor did she speak directly to the breath technician.

[27] Mr. Gold suggests that Mr. Brar had the ability to get home by either his brother picking him up, or in the alternative, that he had money to take a taxi. That is one of the factors to consider according to the summary conviction appeal in R. v. Price, 2010 ONSC 1898. In that case, Justice Durno listed a number of factors to consider on this very issue, and his decision informs the Peel Regional Police policy document the senior officer(s) referred to in this case.

[28] In support of his argument, Mr. Gold relied primarily on R. v. Lorenzo, 2016 ONCJ 434 and R. v. Rush, 2018 ONCJ 89 where, having found "overholding" breaches of the accused's s. 9 rights, the trial judges excluded the breath test results. Since the argument in this matter, my colleague Justice Jaffe did not follow this reasoning in R. v. Melo, 2018 ONCJ 292.

[29] As to remedy, Mr. Gold argued that as a result of Pino, the breath test results, while seized prior to the overholding s. 9 breach, were nonetheless "obtained in a manner" and ought to be excluded under s. 24(2). Alternatively, if I find that a s. 24(2) remedy is not available, he argues that a stay of proceedings should be entered under s. 24(1). He does not seek any other "appropriate and just" remedy.

[30] The Crown's submissions were mostly on the application of s. 24(2) to exclude breath test results in an overhold context. The Crown argued that I am bound by R. v. Cheema, 2018 ONSC 229, in which Barnes J. held that the requisite connection between the seizure of breath samples and the Charter breach was missing in the overhold context, and therefore a s. 24(2) remedy is unavailable. Barnes J. also held that on the record before him, there was an insufficient basis upon which to find a systemic problem of overholding by Peel Regional Police Service, and accordingly, he upheld the trial judge's refusal to stay proceedings under s. 24(1).

[31] Mr. Gold suggested that written argument be submitted on this issue, and the Crown agreed. The initial oral arguments were received before R. v. Jennings was released. Thereafter further submissions were made.

[32] The constitutional argument in this case is the sine qua non to a conviction. If there is no breach of section 9 of the Charter found, the evidence may establish the Applicant's guilt beyond a reasonable doubt.

[33] If the evidence is excluded, or a stay entered, the Crown would no longer have a reasonable prospect of conviction.

[34] The Court is indebted to both counsel for the thorough and insightful analysis submitted in writing and in oral submissions.

[35] I will not set out each argument made by the Applicant and Respondent in detail. All submissions have been considered. The written submissions supplement these reasons.

Issue 1: Arbitrary Detention

Facts

[36] In addition to the evidence received regarding the driving evidence, the Highway Traffic Act stop, and the initial involvement at the division, and in the breath room, evidence was called about the "after detention" or "overholding" in the 12 Division cells.

[37] Mr. Gold vigorously submits that the Court should not believe the testimony of the officers-in-charge of the station when they said they considered a number of factors in continuing the detention. He also submits that the lack of specific notes by the arresting officer on this issue diminishes his credibility on this issue.

[38] The testimony on this issue was provided primarily by the arresting officer Orbegoso, and two of the three officers in charge of 12 Division Peel Regional Police on early morning hours of May 31, 2015.

Police Constable Orbegoso

[39] Police Constable Orbegoso was the arresting officer. He followed the proper procedure in first forming a reasonable suspicion of alcohol in the defendant's body; then reasonable and probable grounds to believe his blood alcohol concentration exceeded the legal limit upon a fail result on the approved screening device; all protocol in providing right to counsel and attempting to facilitate it; the service of documents to inform the defendant of the case against him; lodging the defendant in a holding cell to await the decision of the Divisional Head of whether to release him; calling the brother of Mr. Brar at his request for a ride for him; and personally attending at the defendant's father's home at 4:20 a.m. to advise the registered owner, his father, of the situation including the fact the defendant wanted his brother Ricky to pick him up.

[40] Police Constable Orbegoso recalled he told the father that his son was at the police station, his vehicle had been towed, and that he was trying to get hold of his brother Ricky to pick him up. He did not recall whether he said the applicant was in a cell at the division. In cross-examination, the officer confirmed he was relying on his memory for details of the visit but he had checked his unit history which confirmed he went to the father's address.

[41] The officer testified in detail, and appeared to have a good memory of events. He is a relatively new officer, and likely had few cases under his belt at the time, making the early cases memorable. When he told the Crown about his efforts to reach the brother, she asked him to write a statement with details, which she disclosed to Mr. Gold before the trial. In all of the circumstances, the Court can rely on his evidence, although it is agreed it would be better practice for him to make notes of the calls he made on behalf of the Applicant, and the dealings with the registered owner of the vehicle.

[42] Police Constable Orbegoso went above and beyond the call of duty when he went to the family home and notified them that Mr. Brar was waiting for a ride home. He reasonably believed that his father was looking after it, and would ensure that he was picked up.

Inspector Ramore

[43] At the time of the incident Inspector Ramore was a Staff Sergeant, with 20 years' experience as at January 2018. She was in charge of 12 Division that night, working a 5:00 p.m. to 4:40 a.m. shift.

[44] She had some information in her notes, such as the time she logged Mr. Brar into the station at 3:03 a.m., but very little or no notes as to her decision to hold the Applicant pending someone picking him up, or until his blood alcohol concentration was lower.

[45] At 3:43 a.m. she was advised by the cell officer that his breath results were 177 milligrams of alcohol in 100 millilitres of blood at 3:08 a.m.; and 170 milligrams of alcohol in 100 millilitres of blood at 3:31 a.m.

[46] She said she considered his blood alcohol concentration, if someone responsible was there to pick him up, if he had a criminal record or outstanding charges, if he was charged with impaired, if his vehicle was impounded, his attitude and demeanour, and the fact he exhibited poor judgment in recently drinking and driving.

[47] Inspector Ramore considered his blood alcohol concentration and used a formula that "approximately 10-15 mg of alcohol would be decreased [sic] each hour."

[48] She was also aware the cell officer tried calling his brother, and received no answer.

[49] I note that the factors she referred to were delineated in a Peel Regional Police Policy directive updated in February 2015, although these factors were referenced almost five years earlier in the 2010 decision of Justice Durno in Price.

[50] She did not recall if she checked if the vehicle was impounded. She did not recall if Mr. Brar had a record or not. She said she would have checked. She did not recall if there were any outstanding charges, but she would have checked.

[51] She did not note factors favouring release, although she testified she would release as soon as practicable, and as soon as she thinks it is safe.

[52] In cross-examination she conceded that other officers had said Mr. Brar was cooperative and polite, exhibiting slight impairment, although she had not noted that.

[53] Officer Ramore had only two entries in her notes at 3:03 a.m. and 3:40 a.m. She also said she made notes on the prisoner log sheet, but the only notes on it were the blood alcohol concentration numbers.

[54] She also indicated release to a taxi would depend on the circumstances. She did not recall exploring that possibility with him.

[55] That officer was relieved at 4:40 a.m. by Sgt. Rowe, and it was her opinion at the time that Mr. Brar's blood alcohol concentration would have been 155 milligrams of alcohol in 100 millilitres of blood, and without someone there to pick him up, she was not comfortable having him leave.

[56] Sgt. Rowe was not called to testify, so there is no evidence relating to the time period between 4:40 a.m. and 7:00 a.m.

Sgt. Lang

[57] Sgt. Lang, an officer of 28 years' experience in January 2018, was acting Staff Sgt. at 12 Division Peel Regional Police that morning. He knows he was a little bit late, and believed he came in around 7:00 a.m. He had no recall of the exact time he started. It was not in his notes.

[58] He spoke to the Applicant shortly before his release, and after 9:00 a.m.

[59] He did not assess release of prisoners when he started his shift. He first went to usual morning meetings, dealt with issues with prisoners, booking other prisoners, "getting meals ready," and then he went to see all prisoners in the cell area.

[60] In cross-examination he had a note that at 9:20 a.m. he saw an intoxicated prisoner arrested under the Provincial Offences Act as a danger to himself and others.

[61] He saw the Applicant's reading of 177 and that he was lodged about 3:00 a.m. He figured out his blood alcohol concentration would drop about 15 milligrams of alcohol in 100 millilitres of blood per hour, as "a rule of thumb." That was not the only factor. He assessed his attitude and demeanour to see if he understood the forms to be released on, if a ride was available for him, and if he was on charge.

[62] Sgt. Lang had no notes of the factors he considered, but recalled them. When he testified, he also had the Peel Regional Police Policy Directive with him from Aug. 2016, which had replaced the Feb. 2015 predecessor. On the second day of cross-examination, he brought the earlier Policy Directive as well. He described the earlier directive as "much briefer."

[63] The 2015 directive speaks to "consider detaining," while the 2016 directive refers in more neutral language "whether to hold or release."

[64] Sgt. Lang said he was trained with the longer list of factors to consider whether to release or detain, as the later directive sets out.

[65] He did not remember details of his interaction with this prisoner at or after 9:00 a.m. If anything were odd or different he would note it, which he did not.

[66] He had no notes or recall of Mr. Brar asking for anything. He was not aware whether any family member was on the way for him.

[67] Mr. Brar was released at 9:45 a.m. on a Promise to Appear.

Mr. Brar

[68] Mr. Brar testified on the Charter voir dire only.

[69] At the time of the events, his occupation was driving a taxi at Pearson International Airport.

[70] He confirmed he was released on May 31, 2015 on a Promise to Appear, and took a taxi home, which he called on his cell phone.

[71] He described the conditions in the cell as pretty cold, with other people making noise in the night.

[72] No officer came to speak with him, but one officer was handing out breakfast and he asked if he could get some. He was told the individuals going to Court get breakfast, and he would be released and would not get some.

[73] He did not know of the efforts to reach his brother, but found out after he got home.

[74] In cross-examination, he did not ask for an update on the status of the call to his brother. He did not ask for anyone else to be called. He did not ask for a blanket.

[75] No further evidence was adduced by the Applicant, specifically from the father or brother of the defendant, nor any other family member available and willing to pick him up from the police station.

[76] Of course, on the trial on the merits, he bears no burden of proof, which rests on the Crown beyond a reasonable doubt. On this Charter application, however, he bears the burden of establishing an infringement on a balance of probabilities.

Peel Regional Police Policy Directives

[77] Three separate Peel Regional Police Policy Directives related to the duties of the Divisional Head to ensure an Accused is not unreasonably detained after breath tests are performed, were referred to in the evidence of the officers-in-charge of the division that evening. They are marked letters Exhibits B through D.

[78] The offence date in this case is May 31, 2015. Exhibit C is effective June 10, 2014, to be re-evaluated in April 2015. Exhibit D is effective Feb. 10, 2015, to be re-evaluated that April. Exhibit B is effective Aug. 23, 2016, to be re-evaluated in April 2017. It appears these directives are generally re-evaluated on an annual basis, or sooner. The Court was not provided with any such directive for the period of April 2015 through to Aug. 23, 2016, which is at the time of this alleged offence.

[79] In Section AD of the earliest directive issued about a year before this offence date, sections 2 and 3 read as follows:

2. The Divisional Head shall ensure that the accused is not unreasonably detained after the required Breath tests are performed, or they may be expected to articulate why the accused was not immediately released after the Breath tests were completed. [emphasis in the original]

3. Officers shall consider detaining an accused when:

(a) breath test results are in excess of the legal limit upon release;

(b) due to impairment, the accused is unable to understand release paper work; and,

(c) there are no friends or family available to pick up the accused.

Note: Officers shall note the names of friends and/or family that were called to pick up the accused.

[80] In February 2015, the same section, part 3, is updated to read as follows:

3. Officers shall use the following factors when deciding whether to hold or release an accused, including:

(a) the accused's blood alcohol level;

(b) was the accused charged with impaired operation;

(c) his or her level of comprehension ie. release documents;

(d) was the accused prohibited by Statute from driving a motor vehicle (the Administrative License Suspension);

(e) was the accused's vehicle impounded;

(f) was there a responsible person available to pick up the accused (although the officer-in-charge has no authority to bind the responsible person as a surety would be bound);

(g) does the accused have a criminal record and if so, its contents;

(h) does the accused have outstanding charges;

(i) his or her attitude/demeanour; and

(j) consider that by drinking and driving the accused has exhibited poor judgment.

NOTE: Failure to use the factors listed in Section AD.3 (a-k) of this directive, or other case specific facts, could result in negative consequences to the criminal case. Please refer to Superior Court ruling R. v. Price April 14, 2010.

[81] The revised Section AD.3 is similarly worded in the 2017 update.

Section 498 of the Criminal Code

[82] The recent decision of the Supreme Court of Canada in R. v. Antic is a clear affirmation of the principle of the presumption of innocence, restrained detention on articulated grounds, and the right to reasonable bail. It serves as a reminder to officers-in-charge at police divisions, and of course to the Courts, of these important constitutional safeguards.

[83] As set out by Jaffe, J. in R. v. Melo:

This Charter application brings into play the statutory provisions of s. 9 of the Charter and s.498 of the Criminal Code. Section 9 of the Charter guarantees everyone the right to be free from arbitrary detention.

Section 498(1) mandates the release of an individual who has been arrested without a warrant, as soon as practicable. However, s. 498(1.1)(a) and (b) require the police to keep the person detained where the officer-in-charge reasonably believes that a) the individual's detention is necessary in the public interest (which includes safety concerns) or b) that the person will fail to attend court if released from custody.

If a detention has been authorized by law, including s. 498(1.1), it follows that it in addressing an "overholding" complaint, the Court should examine the basis for the accused's detention and determine whether the officer-in-charge was acting in compliance with s. 498(1.1).

[84] Section 498 reads as follows:

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable, [emphasis added]

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to:

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

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

(iv) ensure the safety and security of any victim of or witness to the offence, or

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

(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1). R.S., c.C-34, s. 453; R.S., c. 2 (2nd Supp.), s. 5; R.S.C. 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30.

[85] Although Antic had not yet been released at the time of the alleged offence, the Criminal Code provision was.

[86] Mr. Gold argues that the police paid lip service only to their Directives, and did not implement them in this case. He further says that credibility issues diminish the reliability of the police evidence.

[87] Ms. Portolese, for the Crown, submits that the officers did everything they were supposed to do, and more.

Early Appellate Decisions on Overholding

[88] I agree with Durno J.'s careful summary of the earlier appellate decisions (and some Ontario Court of Justice decisions) in this area in Price:

The starting point for assessing overholding case is the cases in which the Court of Appeal has dealt with similar situations. In R. v. Iseler (2004), 190 C.C.C. (3d) 11, the accused was arrested, processed for impaired care or control and held for over eleven hours in Ottawa Police cells. His last breath test was completed at 4:49 a.m. He was released at 4:01 p.m. The accused felt ill in the cells and on two occasions unsuccessfully tried to get officers' attention because there was no toilet paper in the cell. He had virtually no contact with any police officer. About 3:00 p.m. an officer walked by his cell and threw him a submarine sandwich. While he had enough money to take a cab home, his wife was at home and prepared to come and get him.

The staff sergeant testified that as a matter of policy persons charged with impaired driving and related offences were released according to their level of sobriety with officers relying on the "rule of thumb" elimination rate of 15 milligrams of alcohol per hour. He was unable to say if any such assessment was done of Iseler. The Court of Appeal concluded it would appear no assessment was made until Iseler's release at 4:01 p.m. It was on that basis that the Court of Appeal found there was a s. 9 breach.

Iseler had presented a prima face case of arbitrary detention that called for some answer by the Crown, particularly in light of the fact the Crown indicated they would rely on the cellblock officer's evidence. When he was called, he was of no assistance.

However, despite the breach a stay of proceedings was not an appropriate remedy. While the police conduct was inexcusable, it was important to note that the breach occurred after the offence and had nothing to do with the investigation and gathering of evidence against Iseler. It did not impact on trial fairness. There was no temporal or causal connection between the breach and the obtaining of the evidence. The Court concluded it was not one of the clearest of cases warranting a stay.

In R. v. Sapusak, [1998] O.J. No. 4148 the Court of Appeal upheld the decision of Thomas J., reported at [1998] O.J. No. 3299, where His Honour found no breach of s. 9 and refused to stay the proceedings where an accused blew 130 and was held for 7 hours. He was held so that his blood alcohol level would be below 50 upon release. The officer in charge testified that it was his decision to wait 6 or 7 hours so that the accused's blood alcohol level would be below 50 milligrams of alcohol in 100 millilitres of blood.

In Mangat, an accused who was not charged with drinking and driving offences was held at the police station for over 24 hours contrary to s. 503 of the Criminal Code. The trial judge ordered a stay of proceedings. In setting aside the stay and ordering a new trial, the Court of Appeal held that there was no possibility the officer's conduct would affect trial fairness. In granting the stay, the trial judge failed to address the fundamental issue, whether the prejudice caused by the breach of the s. 9 rights would be manifested, perpetuated or aggravated through the conduct of the trial or its outcome. The trial judge made no findings a stay was necessary to address systemic issues relating to the officer's conduct; nor did she explain why the lesser remedy of excluding the respondent's statement would not be adequate. The issue was not punishment of the police. Rather, it was whether the prejudice caused by the breach of the s. 9 rights could be adequately addressed by a lesser remedy than a stay.

A distinction appears to have been drawn in the cases where the officer-in-charge who made the decision to detain after the breath samples were provided, testified and gave his or her reasons for detaining the accused and those where no evidence was called on the issue. Where no evidence was led as to the reason for the detention in the specific case, a breach was found.

The decision of Wein J. in R. v. Patterson, (September 2, 2004); Orangeville, (S.C.J.), would appear to fall into the latter category where the officer-in-charge was not called. Her Honour upheld the stay but noted that she might not have reached the same decision had she been the trial judge.

In Iseler, the Court of Appeal found there was no individual assessment made of the appellant's condition. While the Court found there was a breach, the proceedings were not stayed.

The appellant also relied on the judgment in R. v. Tikaram, 2008 ONCJ 124, [2008] O.J. No. 1086 (C.J.) where the accused with a blood alcohol level over 200 milligrams of alcohol in 100 millilitres of blood was held in police custody for just under 12 hours and strip searched because he would not sign the release papers on the advice of duty counsel. It was the policy of the Toronto Police Service that anyone who would not sign their release papers would be held in custody. This was despite s. 501(4) of the Criminal Code that provided the accused should be requested to sign the release papers, not that he or she must sign before being released. Indeed, s. 501(4) implicitly contemplates releasing persons who do not sign their release orders.

The arresting officer believed Tikaram was sober enough to be released and that there were no safety concerns justifying his continued detention. The officer-in-charge who made the decision to detain had contact with the accused that was captured on video. He confirmed Tikaram's identity and explained the charges to him. The officer-in-charge said he was detaining Tikaram because he was not fit to release at that time and he did not believe he understood the release. The trial judge found that there was no evidentiary basis for either conclusion. The trial judge stayed the proceedings on the basis of the breach of s. 9.

Tikaram is distinguishable from this case. Tikaram was subjected to a strip search. He was detained not because of his blood alcohol level or state of sobriety. Rather, the decision to detain was based on a policy that was in conflict with the explicit words in the Criminal Code. As the trial judge noted, a second call to duty counsel would have cleared up the confusion. The trial judge also rejected the officer in charge's evidence regarding the reasons he refused to release Tikaram.

Finally, in regards to the appellant's cases, in R. v. Longfield, (December 27, 2007), Brampton, (O.C.J.), a stay was ordered in an overholding case without a strip search. I am not persuaded the case is of much assistance to the appellant. Despite being decided three years after Iseler, neither Iseler, Sapusak, nor Mangat are referred to by the trial judge, and it is not apparent any of those cases were brought to the court's attention.

Having reviewed the authorities relied upon, I am not persuaded the trial judge erred. His Honour concluded there was a breach of s. 9. While he was not required to do so, considering Iseler and Sapusak, there was evidence upon which the trial judge could find there was a breach of s. 9. His Honour then examined whether a stay was the appropriate remedy and concluded that it was not. He did not regard the breach as serious. That was a finding open to His Honour.

The trial judge also found that the decision to hold the appellant was based on relevant and proper considerations. It was legally wanting only because it was focused too narrowly. The officer did not consider alternatives to detention and permitted the blood alcohol level to foreclose consideration of any other circumstances. These were findings open to the trial judge.

In Cross, Langdon J. found the Peel Police policy served the public interest well. It was reasonable, providing both general guidelines and flexibility. It appears that since Cross the policy has become more stringent and less flexible. The releasing officer in this case believed the holding was a general practice. Accordingly, the only basis for release appears to be the blood alcohol level of the accused.

While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances …It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus …

As the Court of Appeal did in Iseler, the trial judge properly considered that the breach occurred after the commission of the offence and the gathering of evidence. It was not related to the offence or evidence gathering. In the circumstances, the overholding should not result in a stay of proceedings. That was a conclusion open to His Honour.

The Price Decision

[89] Both counsel and the Peel Regional Police Directives refer to the 2010 decision of Justice Durno in R. v. Price, in which the Court agreed with the trial judge that basing a decision to hold or release an accused based solely on the basis of his blood alcohol readings is too narrow a focus. Durno J. concluded that while the readings should be considered by the officer-in-charge in exercising his or her authority under s.498 (1.1) of the Criminal Code, numerous other factors should also be considered.

[90] Justice Durno set out a non-exhaustive list of factors to consider:

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

[91] These factors inform the Peel Police Directives in Appendix A. The issue in this case is not so much whether the Peel Regional Police Service has procedures that comply with this objective analysis. Rather it is whether that is being implemented in individual cases brought to the attention of the Court.

[92] Of note, in a later Summary Conviction Appeal, Heeney RSJ revisited the issue of whether reliance on high blood alcohol concentration levels on their own could constitute a sufficient basis for an accused's detention. He found that Sapusak was "clear and binding authority for the proposition that detaining an individual for his own protection for 6 to 7 hours, based solely on readings of 130 mg. does not constitute arbitrary detention". Heeney RSJ concluded that reliance on Price, in light of the binding appellate authority in Sapusak, amounted to reversible error.

[93] It appears that the issue of Sapusak being an endorsement, and not a full decision of the Ontario Court of Appeal, was not argued in Kavanagh. Mr. Gold makes this very distinction in argument.

Other Recent Cases

[94] In written reply, Mr. Gold further relies on the decision of R. v. Rush 2018 ONCJ 89. In that case from North Bay, the arresting officer turned the accused over to the Intoxilyzer technician at 11:53 p.m., and did not deal with him thereafter until 12:30 p.m. the next day. The arresting officer was the supervising officer on duty that evening. He determined that the accused had "reasonably elevated readings," was travelling from Ottawa to Winnipeg, and had no friends or family in the area or no place to stay in the area if he was released. He made the decision that Mr. Rush be kept in the cells until he sobered up to be released by the day shift at 7:00 a.m. He believed the day shift supervisor had this information relayed to him.

[95] Documents were served upon Mr. Rush at 4:41 a.m. His opinion was that Mr. Rush was still under the influence at that time, and would remain in custody "for his safety." Perron J. found that the matter was serious, particularly as there were two Charter breaches, of both s.8 for the search of his backpack when being processed, and the s.9 breach.

[96] Evidence was excluded, following Lorenzo.

[97] The recent decision of Melo from Peel Region and the appeal in Larocque are also discussed in these reasons.

Was there a breach of the Charter section 9 for the detention in the cells?

[98] I am bound by the decision in Price, and will consider all of the circumstances objectively to determine whether the Applicant has established on a balance of probabilities that his s. 9 Charter right was infringed.

[99] The total time Mr. Brar was held in the division cells after the Intoxilyzer tests was just over six hours, from 3:31 a.m. to 9:35 a.m.

[100] The post-samples detention duration can be divided into three discrete times: the time immediately following the tests and supervised by Inspector Ramore; the time supervised by a second Staff Sergeant Rowe, who did not testify on the Charter hearing; and the time supervised by Staff Sergeant Lang.

[101] During any of those discrete time intervals, a previously lawful and reasoned detention can become arbitrary. Detention post-arrest must be considered both with a large picture viewpoint, and with segmental analyses. This is accomplished on a case-by-case basis.

[102] A recent decision, although with respect to search, provides a helpful consideration of the temporality of Charter breaches. In R. v. Villaroman, 2018 ABCA 220, (June 21, 2018), the Alberta Court of Appeal noted at paragraphs 11 and 12 that:

11. As Hoy ACJO noted in Garcia-Machado, "it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken": para 45. The post-seizure detention regime set out in sections 489.1 and 490 of the Criminal Code reflects Parliament's goal of ensuring that police officers may only detain items with judicial oversight. It also ensures that police officers keep seized items for prolonged periods only when charges have been laid, or alternatively, where there is a procedural mechanism for the owner of the seized item to seek its return. Complying with the reporting requirements of section 489.1 is the "gateway to all of these protections": Garcia-Machado at para 55. We agree that the failure to comply with section 489.1 "will result in a Charter breach where the accused had an ongoing residual privacy interest and rendered the continuing detention unreasonable": Craig at para 182. [my emphasis added]

12. Some courts have suggested that a police officer's failure to comply with the requirements of section 489.1 of the Code does not always violate section 8 of the Charter, particularly in circumstances where police seized an item under the authority of a search warrant: see Craig at paras 172-176. We need not decide this point because, in this case, there was no such prior judicial authorization for the officer's initial seizure of the computer. In such circumstances, compliance with section 489.1 becomes particularly important. We are satisfied that, on these facts, the investigating officer's failure to comply with section 489.1, and the resulting failure to obtain judicial authorization to detain the computer, rendered the seizure of the device unlawful, and therefore violated section 8 of the Charter.

[103] Similarly, I am satisfied that the arresting officer fully complied with his duties on arrest, and delivered the Applicant to the cells officer, to be later released by the officer in charge of the station at some later point. Further, Police Constable Orbegoso went above the requirements of his duties by not only calling the defendant's brother, at his request, and trying to leave a voicemail message; but also attending at the defendant's father's home at 4:20 a.m. and providing the father with the information he required as registered owner and by advising him of the location of the defendant's detention, and the fact that he wanted his brother to pick him up. Mr. Brar's father left the officer with the impression that he "would take care of it."

[104] During the first period of Mr. Brar's detention after the second breath sample at 3:31 a.m., the qualified technician was not ready with the documentation until after 3:36 a.m., a reasonable amount of time to print, compare and sign the certificate of analyst, and the notice of intent, among the documents needed. Those same documents were served by the arresting officer at 3:41 a.m. Thereafter he made the phone call to the applicant's brother, either one or two times. There was no answer.

[105] Police Constable Orbegoso made other efforts to have Mr. Brar released to a responsible person. At 4:20 a.m., he was at his father's home and Mr. Brar's father said he would try to call his other son Ricky to pick him up, and that he would "take care of it." Although he did not note all the details, he had checked his unit history and confirmed he attended that address at that time. All of his evidence was detailed, and the investigative notes were complete. He was a good witness, possessed a good memory, and is an earnest officer. He was only an officer a little more than a year at the time of the arrest, and his early arrests would be memorable to him. I accept Officer Orbegoso's evidence.

[106] Thus, the first hour of detention post samples is completely reasonable, as the police were awaiting a family member to arrive to pick Mr. Brar up. The next half hour or more would be a reasonable period of time to wait for Mr. Brar's ride. Section 9 of the Charter was not infringed up until this point of time, despite the officer in charge of the station, then Staff Sgt. Ramore's rather vague notes of her interaction with the prisoner. By this point of time, she was off shift.

Was the period of time after 5:00 a.m. arbitrary detention?

[107] The Court is left with no evidence at all for the time period of 5:00 a.m. to 7:00 a.m.

[108] Sgt Lang came to work "approximately 7:00 a.m."

[109] Sgt. Lang's evidence at best disclosed a benign negligent regard for his duty as officer in charge of the station to see the prisoner(s) in the cells as soon as practicable and to apply the proper s. 498 Criminal Code considerations in determining release or detention. The Sgt. does not even have a note of his arrival time at work, and estimates that it was approximately 7:00 a.m. On his evidence at its highest, he let about two hours pass before he even got around to his duties regarding prisoners being detained in the division cells. Under his supervision, Mr. Brar was never fed breakfast, although he was held while others received it, hours before his release.

[110] The Crown points out that blood alcohol concentration alone, after an objective consideration of all the factors, can be given primary weight in balancing all of the circumstances.

[111] I cannot find in these circumstances that such an objective consideration was necessarily met in this case.

[112] If I err in discrete considerations of each time period of detention, and look at the whole period of detention post-samples, I find the infringement which occurred in the last three to five hours of the detention rendering it arbitrary was somewhat attenuated by all the efforts made at the front end to try to get a family member to pick him up. Nonetheless, such a detention without any articulated basis for doing so in the face of factors favouring release is capricious, arbitrary and contrary to the legislative intent of s. 498 of the Criminal Code.

[113] After careful consideration of all of the objective factors in applying the law respecting release or detention at the post-investigative stage, I find that there were no primary ground concerns. The Applicant lived and worked locally, had no criminal record, and was capable of understanding terms of release on a promise to appear, which was his form of release eventually. He showed no gross signs of impairment and was not charged with the offence of impaired driving. Moreover, any public safety or secondary ground concerns, if any, were addressed by the mandatory ADLS (Automatic Driver Licence Suspension) for 90 days. The Applicant's s. 9 Charter right is infringed or denied in these circumstances.

Issue 2: Charter s. 24(2)

[114] Before embarking on the Grant analysis, the Court must first determine if it can be said that the arbitrary deprivation of liberty post evidence gathering can render that earlier evidence potentially excluded from the case because of police conduct at a later stage.

"Obtained in a manner"

[115] The wording of the Charter speaks to "evidence obtained in a manner" that infringed or denied any Charter right.

[116] It has been seen that earlier appellate authority such as Iseler and Sapusak found no connection between the gathering of the evidence of breath tests, and the later breach. Mr. Gold argued that the Pino case changed the landscape on this issue, allowing for a more generous approach, considering a connection can be causal, temporal or contextual.

R. v. Pino, 2016 ONCA 389

[117] It is argued that the Pino decision explains the approach one should take in determining whether the evidence in the individual case was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, and whether that evidence should be excluded in all the circumstances, where its admission would bring the administration of justice into disrepute.

[118] Justice Laskin outlined that:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

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

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

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

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

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

[119] Mr. Gold submits that the overholding in the cell is part of the entire chain of events, and part of the same transaction. The Applicant would not have been in the cell but for his investigation after a traffic stop. The Crown submits these are discrete events.

[120] I find that although the breach occurred after the evidence was obtained, it has some causal and contextual connection to the breach. Temporality is lost as the breach occurs hours after the samples are obtained. The question is whether this connection is too remote or too tenuous.

[121] Since Pino, the Ontario Court of Appeal revisits this issue in other cases not involving drink/drive situations. In R. v. Rover, 2018 ONCA 745, Justice Doherty writes that:

While there was no causal connection between the discovery of the drugs and the s. 10(b) breach, there was a close temporal connection. The parties acknowledge that the connection is sufficient to engage s. 24(2): see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561.

The exclusionary rule in s. 24(2) operates on the assumption that the routine admission of constitutionally tainted evidence must have a long-term negative effect on the repute of the administration of criminal justice. As explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 70:

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

The rationale for the exclusionary rule identified in Grant, as applied in these circumstances, requires a consideration of the long-term impact on the reputation of the administration of justice caused by the admission of evidence obtained in an investigation conducted under a police practice that inevitably and routinely denies detained persons their constitutional right to access counsel. The systemic nature of the violation plays a central role in assessing its long-term impact on the proper administration of justice.

The three-pronged line of inquiry under s. 24(2) established in Grant is well-known. A court looks to the seriousness of the Charter-infringing state conduct, the impact of that conduct on the Charter-protected interests of the accused, and society's interest in an adjudication on the merits: Grant, at paras. 72-86. The first two factors, taken in combination, represent the case for exclusion. The third provides the counterbalance favouring admission of the evidence.

[122] The right to counsel violation constitutes such a serious violation that exclusion may be justified.

R. v. Cheema, 2018 ONSC 229

[123] The trial Court found a s.9 Charter breach by overholding the accused in the division cells, but declined to stay the proceedings, instead fashioning a sentence remedy.

[124] On appeal, Barnes J. found:

Demonstrating that evidence was obtained in a manner that infringed a Charter right is a condition precedent to any consideration for a remedy under s. 24(2) of the Charter: R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561 at paras. 34 - 36. Section 24(2) states:

Where, in proceedings under subsection(1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

As noted, in practical terms, the facts in Iseler are most similar, if not identical, to the facts in this case. The Court of Appeal in Iseler, at para. 31, concluded that on those facts, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence." The trial judge was bound by the decision of the Ontario Court of Appeal in Iseler.

The trial judge did not have the benefit of the more recent Ontario Court of Appeal decision in Pino at the time he prepared his reasons. The Appellant submits that on the basis of the principles set out in Pino, the trial judge should have considered the alternative remedy of exclusion of the evidence under s. 24(2) of the Charter to remedy the s. 9 Charter breach.

In Pino, the police received a tip about a marijuana grow operation. They set up surveillance on the target residence. They observed Ms. Pino leave the residence, place a box in the trunk of a vehicle, and drive away. Ms. Pino was stopped by masked police officers at gunpoint. Police searched the trunk of her vehicle incident to the arrest, and found 50 marijuana plants. The police arrested Ms. Pino. The arresting officer had difficulty recalling what he told Ms. Pino in regard to her rights to counsel. The police delayed Ms. Pino's access to a lawyer for nearly five and a half hours after arrest, during which she was held in a jail cell. The police explained that the delay was to prevent her from making a phone call that would compromise the execution of the search warrant at the residence under surveillance: Pino at paras. 8-33.

The trial judge found that the police had reasonable and probable grounds to arrest Ms. Pino, however, breached her s. 8 rights because the masked take down at gunpoint was unreasonable: Pino at paras. 23-25. The police breached both the informational and implementation components of Ms. Pino's rights to counsel after the discovery of the marijuana. The Court of Appeal had to decide whether the trial judge "erred in law by holding that the Charter breaches after the discovery of the challenged evidence [marijuana] [could not] meet the 'obtained in a manner' requirement in section 24(2) [of the Charter]": Pino at paras. 45, 48.

At para. 72 of Pino, the Court of Appeal adopted a purposive approach to the "evidence obtained in a manner" analysis. Under this approach five considerations apply:

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

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

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

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

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

Under this analytical approach, the court concluded that the breaches of Ms. Pino's ss. 8 and 10(b) rights were neither too tenuous nor remote because they occurred relatively close in time and the s. 8 and s.10(b) breaches arose from the circumstances of Ms. Pino's arrest. There was a contextual connection because the s. 10(b) breaches formed part of the context in which the s. 8 breach occurred. Therefore, the "evidence", the marijuana, was obtained in a manner that breached Ms. Pino's s.8 and 10(b) rights": Pino at para. 74-78.

The facts in Pino are vastly different from those in Iseler. The Court in Pino did not refer to its decision in Iseler. It did not overrule the decision in Iseler. The facts in Iseler are similar to the facts in this case. The facts in Pino are completely different. The trial judge was bound by the decision in Iseler. Based on Iseler, the trial judge was correct to conclude that there was no temporal or causal connection between the breach and the obtaining of the evidence and therefore s. 24(2) of the Charter does not apply (at paras. 61 to 68).

[125] The Crown submits that the Court is bound by the Summary Conviction Appeal decision of Cheema.

[126] Mr. Gold says that Cheema is wrongly decided, and I ought not to follow it.

[127] The Applicant argues that the comments in Cheema about Pino are obiter dicta in that appeal, since the trial judgment predates Pino. The question squarely before Barnes, J. was not whether there was a contextual, or otherwise, connection between the taking of the breath samples and the overholding of the detainee in the cells.

[128] To the extent that the Court in Iseler did not consider whether s. 24(2) was an available remedy, Mr. Gold confines the ratio in Iseler to the request for a s. 24(1) remedy.

[129] He also notes that Sapusak is a one paragraph endorsement from 1998 that ought not to be relied on for the principles indicated in Iseler.

[130] Despite Mr. Gold's very able argument to the contrary, all the appellate decisions at the summary conviction level are consistent, and accord with the decision of Barnes, J.

[131] This Court is bound by the Cheema decision from Peel Region, and if not, by other cases on Summary Conviction Appeal which are binding on the Court.

R. v. Larocque, 2018 ONSC 6475

[132] The Larocque decision was released on Oct. 28, 2018, after the argument in this case, but I feel it important to include as it is a recent Summary Conviction Appeal on this issue.

[133] Justice Kurke begins with the proposition that Section 9 of the Charter sets out that "[e]veryone has the right not to be arbitrarily detained or imprisoned." The appellant bears the onus of establishing a breach of the s. 9 right: R. v. Burns, [2000] O.J. No. 1743 (Sup. Ct.), at paras. 5-13; R. v. Iseler, [2004] O.J. No. 4332 (C.A.), at paras. 22-23. He then sets out in paragraph 45:

In the context of impaired driving cases, high blood alcohol concentrations alone can constitute a sufficient reason for continued detention, so as to render such detention lawful and not arbitrary, so long as an assessment is made of the particular accused, and other available options are considered: R. v. Sapusak, [1998] O.J. No. 4148 (C.A.); R. v. Kavanagh, [2017] O.J. No. 430 (Sup. Ct.), at paras. 36-43; R. v. Waisanen, 2015 ONSC 5823, at paras. 12, 23; Iseler, at para. 18; R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (Sup. Ct.), at para. 93.

[134] Larocque is different from this case because the officer made observations consistent with impairment by alcohol during breath testing; the breath results were more elevated at 220 and 210 milligrams of alcohol per 100 millilitres of blood; the accused refused to sign documents at 4:26 a.m.; and the officers told the accused he would be held until sober so that he would understand the conditions of release.

[135] The arresting officer next had dealings with the appellant at 6:25 a.m., when he was noted to be definitely awake and alert, though still not minded to sign any documents.

[136] Mr. Larocque was released before an officer in charge at 12:10 p.m. He did not testify on the Charter s. 9 application, and offered no evidence on the overholding issue.

[137] In the circumstances of that case, the evidence relied upon by the trial judge was found to be largely hearsay. Csts. Kiviaho and MacRae testified about what they heard the acting staff sergeant's views to be, and Cst. Kiviaho reported those views to the appellant. Both officers testified that the decision to hold the appellant belonged to another, and not to them.

[138] As such, Kurke, J. found that reliance by the trial judge on that hearsay evidence for its truth constitutes error. The trial judge's finding that there was "uncontroverted evidence" that the "delayed release was to ensure the [appellant] was sober enough to be released" cannot be supported by such evidence. On allegations of overholding, the actual decision-maker should be called: R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (Sup. Ct.), at paras. 77-79, 83-84.

[139] The Court emphasized that there was evidence that at the point that the appellant was first lodged in cells, his blood alcohol concentration was roughly two and one half times the legal limit. No evidence was presented on behalf of the appellant that other options were available to him short of spending time in a police cell to sleep off his intoxication.

[140] In Larocque, the appeal court found a breach of s. 9 of the Charter:

By 6:25, however, the situation was different. The appellant was definitely awake and alert, according to Cst. Kiviaho, who made no other observations that signalled any need to detain the appellant into the early afternoon, other than the continuing refusal of the appellant to sign documents. And on that score, it should also be noted that the refusal to sign even a recognizance presented by a peace officer or an officer in charge does not constitute grounds to detain: Criminal Code, s. 501(4).

At least from 6:25 a.m. onwards, the reliance on the refusal to sign, in the circumstances of an individual about whom no other explanation was offered in evidence for the continuing detention, must constitute an arbitrary detention. There was in evidence nothing to justify nearly six more hours of detention, and no evidence of an individualized assessment by anyone with the authority to release the appellant.

[141] The trial judge was found to have erred in concluding that a breach of s. 9 of the Charter had not been made out in the circumstances of that case (see para.50 to 52).

[142] The Court however found that the evidence ought not to be excluded pursuant to s. 24(2) of the Charter, and that a stay was not the appropriate remedy considering s. 24(1) of the Charter.

[143] The Court concluded that:

Were the requested relief pursuant to s. 24(1), some remedy short of a stay could be crafted: R. v. Waisanen, 2015 ONSC 5823, at paras. 34-35; Price, at paras. 96-98; R. v. Coyle, [2013] O.J. No. 5104 (Sup. Ct.), at para. 82. However, pursuant to s. 24(2) of the Charter, the binding authority of Sapusak and Iseler still guides the analysis, and the request to exclude the breath readings and the evidence that hinges on them, must be dismissed.

Grant Analysis

[144] By way of remedy for the breach of s. 9 of the Charter, the Applicant seeks the exclusion of the breath samples and the results of their analysis, pursuant to s. 24(2) of the Charter.

[145] Section 24(2) of the Charter provides:

Where…a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[146] Once the Court has found a connection between the evidence obtained and the breach of a Charter right, it must engage in a Grant analysis, to determine whether that evidence should be excluded from the trial.

[147] The Applicant focused on the decision of Hawke J. in Lorenzo, where Her Honour excluded the evidence of the breath results on a Grant analysis. This decision predated some of the Summary Conviction Appeal decisions that have reached a contrary result.

[148] In reply argument, Mr. Gold also relies on the decision of R. v. Rush, which followed Lorenzo. There were two Charter breaches in that case.

[149] There may be some circumstances where the overholding breach is part of a pattern of constitutional infringements relating to an applicant, such the examples of an unlawful arrest, a violation of the right to counsel, or a strip search. In such cases, the context of these violations may be inextricably wound up with the later treatment in the cells.

[150] The instant case is one where the police made great efforts to make sure the Applicant's brother got the message to pick Mr. Brar up from the police station. It is not unreasonable to allow that at that time of day, between 3:30 a.m. and approximately 9:00 a.m. (when he was assessed in the cell), that a family member was sleeping or otherwise unavailable.

[151] The evidence of the Applicant does not indicate any active requests by him for anything, other than breakfast.

[152] This is not a case, like some others, where someone was at the police station waiting, and was rebuffed. No one attended to pick him up.

[153] I conclude by indicating that the circumstances of this case do not differ significantly from other binding decisions which consider that the Pino breaches were of a different kind than anything in the context of routine drinking and driving cases.

[154] Even with a generous approach to consideration of the "obtained in a manner" requirement, these binding decisions suggest that "there is no genuine connection" between the driving stop, the breath samples that were obtained from the Applicant and analyzed, and the breach that followed.

[155] Any contextual connection on these facts in this case is remote and tenuous.

[156] In the result, I am bound to follow that the s.9 Charter breach in this case, which occurred several hours after the evidence was lawfully obtained, was not obtained in a manner that infringed or denied any Charter right.

[157] It is therefore unnecessary to engage in the Grant analysis.

[158] In the event that I am in error, and it can be found that the evidence of the breath results was obtained causally, temporally and/or contextually to the breach of s. 9 of the Charter here, the following applies.

Seriousness of the Breach

[159] Mr. Brar's liberty is taken from him when under arrest and detention. This is always something to be taken seriously. The initial detention is authorized by law, and covers the time period up to the completion of the Intoxilyzer tests and the paperwork served upon him.

[160] The bona fide efforts made by the arresting officer to contact Mr. Brar's brother on his behalf attenuates the later lack of proactive effort by other officers to some extent.

[161] The breach is serious when a routine drinking and driving investigation deprives someone of their liberty for a number of hours with no explanation. In this case, the first Staff Sgt. did a rough calculation that the Applicant's blood alcohol concentration would still be approximately 155 milligrams of alcohol in 100 millilitres of blood when she went off shift, and no one had arrived to pick him up. She felt it reasonable to await either a responsible person, or a lower blood alcohol concentration.

[162] The Crown did not call the second officer-in-charge of the station, and one cannot assess whether the decision for continued detention was reasonable. The third officer-in–charge failed to apply the Police Directive with reason for over two hours after he arrived for duty. This makes the breach serious, and favours the exclusion of evidence.

Impact of the Charter-infringing conduct

[163] The impact of the Charter-infringing conduct on trial fairness is minimal at best. The evidence gathering is long complete at this stage, with all due regard for constitutional safeguards.

[164] The recent Ontario Court of Appeal case, R. v. Jennings, speaks to the collection of breath samples, the minimal intrusion involved, and their impact on trial fairness:

Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, where Watt J.A. refers to "the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness" (at para. 100) and, citing Grant at para. 111, says that "as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted."

Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant, at para. 111."

[165] This factor favours the inclusion of the evidence.

Societal Interest

[166] It is trite to say that societal interest favours the inclusion of breath results in these types of prosecution. The evidence is both reliable and necessary in the case for the Crown.

Balancing

[167] Real and reliable evidence is not always included when considering whether its admission brings or tends to bring the administration of justice into disrepute. I am mindful of the decision of R. v. Szilagyi, 2018 ONCA 695, where the first and second factor favoured exclusion, and the third factor favoured inclusion:

While the third factor favours admission, at least of the drugs and cash, this court has now recognized that "[i]f the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215 (S.C.C.), at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (S.C.C.), at paras. 98-112": McGuffie, at para. 63.

While the evidence that was seized is real evidence that is reliable, a proper balancing of the Grant factors requires exclusion of the evidence in order to uphold the repute of the administration of justice (paras. 81 to 82).

[168] The balancing of the above factors favours inclusion of the evidence in these circumstances. The breach is not so egregious or demonstrably systemic in nature that only the exclusion of the evidence can bring home the message to the police to comply with the reasonable bail provision in the Charter of Rights and Freedoms, and the dicta in the Antic decision.

Issue 3: Charter s. 24(1)

[169] Section 24(1) of the Canadian Charter of Rights and Freedoms reads as follows:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

[170] Mr. Gold requests that if the Court does not grant a remedy pursuant to s. 24(2) of the Charter, that the Court find that a stay of proceedings should be granted as a "just and appropriate" remedy further to s. 24(1) of the Charter.

[171] The first officer Police Constable Orbegoso, at the request of Mr. Brar, made a telephone call or two to the Applicant's brother Ricky Brar, and left no message, because voicemail was unavailable.

[172] He actively pursued his task to contact the brother by informing the Applicant's father personally about his desire to have Ricky pick him up at the station. The officer reasonably assumed the family had the information and ability to follow through.

[173] The officers-in-charge of the station made no further efforts in the next five hours or so, through two shift changes.

[174] In this case, the Applicant has demonstrated some lassitude and complaisance on the part of the officers-in-charge of the police station. They did not make notes for the most part, and those made referred to other prisoners, or were sparse, indicating the breath sample results and no more.

[175] The Applicant has failed to demonstrate any overt acts of indifference in the decision to detain him whilst his blood alcohol concentration was almost twice the legal limit. Their conduct must be examined on an objective basis, and based on reason. They certainly could have made better notes. They could have assessed whether he could be released on his own to get a taxi when no one came to the station by 4:30 a.m.

[176] Durno J. has held that there is no obligation on the police to find a ride for a detainee in such circumstances and arrange transportation.

[177] The appeals on the overholding issue suggest that a stay would rarely be an appropriate remedy for a breach which occurs long after the evidence is lawfully obtained where there are not multiple Charter breaches, and the issue is not found to be systemic in nature.

[178] Goldstein J. in one of these Summary Conviction Appeals indicated as follows:

Even if the Appellant were able to establish a s. 9 violation, it almost certainly would not have resulted in a stay of proceedings: Iseler, supra; R. v. Kavanagh, 2017 ONSC 637; R. v. Coyle, 2013 ONSC 6925.

[179] He further summarized the distinction between the Pino case and these cases by pointing out that in Pino, "the breach involved a 'high-risk' takedown at gunpoint and police officers lying to the court, which was obviously highly egregious and in no way similar to the alleged breach in this case" (at para. 42).

[180] Is the breach herein systemic in nature? Several cases referred to by Mr. Gold have found overholding in Peel after obtaining Breathalyzer or Intoxilyzer results. Each case must be considered individually on its own merits.

[181] In the trial decision in Cheema, Schreck J. found that the applicant had failed to establish on that record that such an issue was systemic. He declined to issue a stay of proceedings. Barnes J. agreed on the appeal.

[182] To be sure, other Peel cases have found overholding over the years. One must consider before concluding that systemic proportions are endemic, the sheer volume of cases in this jurisdiction by thousands of officers. The fact that some cases of mistaken or wilful overholding took place in individual circumstances may be more anecdotal, in the face of many cases in which the police act correctly.

[183] The record in this case does not establish a systemic issue on a balance of probabilities.

[184] Of note, the decision of Hawke, J. in R. v. Lorenzo involves the same two officers-in-charge who testified in this case, in the same division, in the same month and year of May 2015. The facts were significantly different however. In that case, the accused was held for six hours after her breath test. She testified that she was cold during her detention and her requests for toilet paper were ignored. Her boyfriend testified that he attended the police station to pick her up, and was told she was not ready.

[185] Her Honour's decision could not have been conveyed to those officers before they dealt with Mr. Brar, in order to put them or others on some notice of the "negative consequences" to their decision-making.

[186] In this case, the Court has the Police Directives in place at the time which carefully go through the factors the officer-in-charge must address in determining release or detention following the taking of breath tests. This directive has had improvements implemented over time, based on current law. They demonstrate a systemic approach to reflect the proper principles. Failure to comply could result in charges under the Police Act.

[187] Of course, the police need not just have such directives in place. They must apply them, and not resort to the old "rule of thumb" approach alone to calculate when one's blood alcohol concentration would reach acceptable levels before considering release.

[188] Mr. Gold lists other Peel cases in his submissions where breaches were found. I have read these decisions, and they are factually distinct from this case.

[189] In the recent decision of R. v. Melo, Jaffe J. distinguished both Lorenzo and Rush (North Bay). Ms. Melo was taken to the Airport Division in Peel, a different division. Jaffe J. found that the officers were not indifferent toward Ms. Melo. They discussed means to get her home and asked her if she had anyone available to pick her up or if she had money. She had neither, and the decision to wait for her husband and her credit cards was "an eminently reasonable solution under the circumstances."

[190] The Melo decision demonstrates detailed and proper considerations by another Staff Sgt. in Peel, applying the Police Directive in a reasonable manner.

[191] As the Crown submitted, the issue is not punishment of the police. "Rather it is whether the prejudice caused by the breach of the s.9 rights could be adequately addressed by a lesser remedy than a stay": see R. v. Price, Durno J. at para 82.

Conclusion

[192] Mr. Brar is alleged to have committed the offence of driving while his blood alcohol concentration was in excess of 80 milligrams of alcohol in 100 millilitres of blood.

[193] His arrest and detention for the purpose of the provision of two samples of his breath was reasonable, and lawful as the officer in charge, Police Constable Orbegoso, complied with all statutory and common law duties upon him.

[194] It was only after the breath samples were taken, with results almost twice the legal limit, that the issue litigated here arose.

[195] The Court finds a breach of s.9 of the Charter, when the final officer-in-charge at 12 Division, Peel Regional Police, failed to promptly assess his prisoner pursuant with the Police Services' own Directives and the Criminal Code as soon as was practicable.

[196] The evidence of the Intoxilyzer samples provided by law to the qualified technician just over six hours earlier were not directly connected to the later breach, and such a connection was tenuous on any causal, temporal or contextual analysis. They were remote in time to the gathering of the evidence. The evidence was thus not "obtained in a manner" that infringed a right.

[197] A balancing of the factors in s. 24(2) of the Charter results in the inclusion of the breath sample results.

[198] This is not one of the clearest of cases justifying a stay of proceedings pursuant to s. 24(1) of the Charter.

[199] Although the Crown submitted that this Court could fashion a remedy on sentencing, similar to that of Justice Schreck in Cheema, Mr. Gold in his written reply, submitted that the Crown's position presupposes guilt, and he has not been found guilty on the trial proper.

[200] The breath sample results will be admitted in evidence, subject to any further evidence and/or submissions on the trial proper.

[201] It is only if the Court finds guilt beyond a reasonable doubt on the trial on the merits that counsel may choose to make submissions as to any other "appropriate and just remedy" for the Court to consider at that time.

Released: November 19, 2018

Justice N. S. Kastner

APPENDIX A

EXHIBIT D

Replaces I-B-712 (F) 2014/06/10

Effective Date 2015/02/10

Next Scheduled Re-evaluation April 2015

AD. Lodging of the Accused

1. If an accused has to be lodged in the cells, every effort shall be made to have the accused lodged in the Divisional cells where the breath test was administered, regardless of the Divisional area in which the arrest was made.

2. The Divisional Head shall ensure that the accused is not unreasonably detained after the required Breath tests are performed, or they may be expected to articulate why the accused was not immediately released after the Breath tests were completed.

3. Officers shall use the following factors when deciding whether to hold or release an accused, including:

(a) the accused's blood alcohol level;

(b) was the accused charged with impaired operation;

(c) his or her level of comprehension ie: release documents;

(d) was the accused prohibited by Statute from driving a motor vehicle (the Administrative License Suspension);

(e) was the accused's vehicle impounded;

(f) was there a responsible person available to pick up the accused (although the office-in-charge has no authority to bind the responsible person as a surety would be bound);

(g) does the accused have a criminal record and if so, its contents;

(h) does the accused have outstanding charges;

(i) his or her attitude/demeanor; and;

(j) consider that by drinking and driving the accused has recently exhibited poor judgment.

NOTE: Failure to use the factors listed in section AD. 3. (a – k) of this directive, or other case-specific facts, could result in negative consequences to the criminal case. Please refer to Superior Court ruling R. v. Price April 14, 2010.

4. Officers shall note the name of friends and/family that were contacted to pick up the accused and the result.

EXHIBIT C

Replaces I-B-712 (F) 2013/08/22

Effective Date 2015/06/10

Next Scheduled Re-evaluation April 2015

AD. Lodging of the Accused

1. If an accused has to be lodged in the cells, every effort shall be made to have the accused lodged in the Divisional cells where the breath test was administered, regardless of the Divisional area in which the arrest was made.

2. The Divisional Head shall ensure that the accused is not unreasonably detained after the required Breath tests are performed, or they may be expected to articulate why the accused was not immediately released after the Breath tests were completed.

3. Officers shall consider detaining an accused when:

(a) breath test results are in excess of the legal limit upon release;

(b) due to impairment, the accused is unable to understand release paper work; and

(c) there are no friends or family available to pick up the accused.

Note: Officers shall note the names of friends and/or family that were called to pick up the accused.

EXHIBIT B

Replaces I-B-712 (F) 2015/02/10

Effective Date 2016/08/23

Next Scheduled Re-evaluation April 2017

1. If an accused has to be lodged in the cells, every effort shall be made to have the accused lodged in the Divisional cells where the breath test was administered, regardless of the Divisional area in which the arrest was made.

2. The Divisional Head shall ensure that the accused is not unreasonably detained after the required Breath tests are performed, or they may be expected to articulate why the accused was not immediately released after the Breath tests were completed.

3. Officers shall use the following factors when deciding whether to hold or release an accused, including:

(a) the accused's blood alcohol level;

(b) was the accused charged with impaired operation;

(c) his or her level of comprehension ie: release documents;

(d) was the accused prohibited by Statute from driving a motor vehicle (the Administrative License Suspension);

(e) was the accused's vehicle impounded;

(f) was there a responsible person available to pick up the accused (although the office-in-charge has no authority to bind the responsible person as a surety would be bound);

(g) does the accused have a criminal record and if so, its contents;

(h) does the accused have outstanding charges;

(i) his or her attitude/demeanor; and;

(j) consider that by drinking and driving the accused has recently exhibited poor judgment.

NOTE: Failure to use the factors listed in section AD. 3. (a – k) of this directive, or other case-specific facts, could result in negative consequences to the criminal case. Please refer to Superior Court ruling R. v. Price April 14, 2010.

4. Officers shall note the name of friends and/family that were contacted to pick up the accused and the result.