Court File and Parties

Ontario Court of Justice

Date: July 13, 2018

Court File No.: Ottawa 15-0174

Between:

Her Majesty the Queen

— and —

Ferid Retta

Before: Justice Jacqueline V. Loignon

Decision released on: July 13, 2018

Counsel:

Mr. J. Semenoff — counsel for the Crown

Mr. D. Anber — counsel for the defendant

Decision

LOIGNON J.:

[1] Charges and Issues

[1] The accused is charged with one count of refusing to provide an Intoxilyzer sample and one count of impaired operation of a motor vehicle contrary to sections 254(5) and 253 of the Criminal Code. The applicant has brought an application to exclude the evidence of his refusal as a result of several alleged Charter breaches. The allegations of breach include sections 7, 8, 9 and 10(b). The issues can be broken down into the following:

1. Was the ASD demand made forthwith?
2. Were the arrest and demand subsequent to the ASD fail made pursuant to reasonable and probable grounds?
3. Was there a valid waiver of section 10(b) rights to counsel?
4. Was there over-holding and therefore a section 9 breach?
5. In the event of a or several breaches, what is the appropriate remedy?

Issue 1: Was the ASD Demand Made Forthwith?

Facts

[2] Constable Connolly of the OPP was westbound on Highway 417 just at the Moodie/Eagleson exit when he saw a vehicle further ahead that seemed to be weaving. As he got closer, within six to eight car lengths of the vehicle, he found that indeed it was going left to right, right to left in its own lane. The movements were quite noticeable and as a result, he decided to stop the vehicle. He activated the lights on his marked cruiser, but the car did not stop, which the officer found odd as there were no other cars. After about 10 seconds it still did not slow down so the officer activated his siren to flag his intent. The driver pulled off to the side but was almost at the end of the off-ramp by then. Once engaged in the stop, he advised dispatch at 1:30 a.m.

[3] Cst. Connolly approached the car from the driver's side noting the lone occupant, namely the driver, Mr. Retta. He advised the driver of his observations about weaving, with which the driver disagreed. The officer detected the odour of alcohol on his breath and asked him if he had been drinking alcohol to which the applicant responded, "one beer". The officer asked the applicant for his driver's licence. Mr. Retta searched through a black wallet but did not find it. He was described by the officer as fumbling through papers and documents and then searching in the back seat, but still without success. Mr. Retta looked again in his wallet but to no avail. Ultimately, Cst. Connolly had the applicant step out of the car and accompany him to the cruiser, as he was requiring that he perform a breath test. He wanted to move the applicant to the cruiser for testing and for safety reasons did not wish to read the formal demand then and there. The officer was not 100% sure about what he said about requiring the tests but he did not read from the force-issued card. He did not record anything the applicant may have said, including any notation about the applicant understanding the demand. He agreed though that he had formed grounds to suspect that the applicant had alcohol in his body within a minute of speaking with him. In addition, any safety concerns he may have had reading the formal demand on the roadside were dealt with once the applicant was in the car.

[4] According to the officer, as the applicant stepped out of the car slowly, he lost his balance, the officer having to hold his arm to steady him as he walked. Cst. Connolly noted that the road was dry and that there was no reason for the loss of balance in that area. Once they reached the cruiser, the applicant was placed in the back seat. At that point, the officer asked for verbal identification, which was provided. The officer gave this information to dispatch so that it could be verified. The officer did not record the times for the exchanges with dispatch. According to Cst. Connolly, the driver had concerns about his wallet. The officer reassured him that he did indeed have it and had left it in the car. Mr. Retta disagreed with this, which led to the officer repeating his reassurances. Cst. Connolly thought that the applicant seemed confused. At 1:38 a.m. he read the applicant the Alcohol Screening Device demand from the force-issued card.

[5] During cross-examination, the dispatch tapes for this call were played for the officer. The first recording began at 1:27:58 a.m. with a plate query by the officer. The stop is recorded by dispatch as 1:28:01 a.m. He observed that the times were likely a few minutes off his own. When asked whether that corresponded more or less to the investigation times, the officer responded that it was an approximation. At another time he responded that the times were close. He never unequivocally agreed that the times recorded by the dispatch log corresponded to his own. He indeed testified that the times recorded by himself were from his watch. When asked if the applicant was seated in the cruiser by 1:33 a.m., the dispatch time of the exchanges concerning the spelling of the applicant's name, the officer could not say given the differences in the noted times as set out above. He in fact was of the view that things did not move that quickly. There is no evidence of any synchronization with dispatch or any other time piece. As a result, that there is a few minutes discrepancy is neither surprising nor suspect. It also means that for the sake of fairness, the same source must be used consistently.

[6] After Cst. Connolly read the ASD demand at 1:38 a.m., there was a brief discussion with Mr. Retta who at first preferred not to blow and wanted to be brought back home. At 1:41 a.m. the officer demonstrated the ASD, providing his own sample, which registered 0. He changed the mouthpiece and at 1:42 a.m. gave the instrument to Mr. Retta. Mr. Retta attempted to give a sample but the instrument did not emit a tone. At 1:43 a.m., the officer asked the driver to attempt a second time but again there was no tone. At this point, because he was not sure if the issue was with the driver or the instrument, at 1:45 a.m. he shut it off and then re-started it. He attempted his own sample and received a reading of .8, which was incorrect. He deemed that the instrument was not working correctly.

[7] As Cst. Marko, a colleague of Cst. Connolly's, had pulled in behind him a few minutes before, Cst. Connolly asked him for his Alcotest. He did not have one but offered to retrieve one from the detachment, which was visible from where they were. At 1:45 a.m., Cst. Marko left to get another instrument. During this time, Cst. Connolly advised or updated the applicant about what was going on. He also retrieved the applicant's wallet to alleviate his concerns as well as to confirm his identity. Within a short period of time, Mr. Retta did indeed find his license, which was located in his pant pocket. At 1:54 a.m., Cst. Marko returned with an Alcotest. Cst. Connolly verified the instrument, demonstrated its use and gave a sample of his own breath directly into the machine. It registered 0, a result which he showed to the applicant. He then changed the mouthpiece. At 1:55 a.m., he had the applicant provide a suitable sample which registered a fail.

Analysis

[8] Counsel argues that in this case, there was a five to seven minute delay from the time the officer formed grounds to suspect the applicant was driving a vehicle under the influence of alcohol, and the time he read out the ASD demand, thereby violating the requirement in subsection 254(2) that the demand be made forthwith. Counsel also argues that the informal demand described by Cst. Connolly was not a valid demand and therefore ought not to be considered in the forthwith timeline. Counsel further takes issue with the total detention period of 26 minutes from the time of the stop to the test being administered (1:29-1:55 a.m.).

[9] The Crown argues that the defence cannot rely on times from two different time pieces without reconciling the discrepancies that are obvious. Crown further argues that the informal demand was a valid one and that the precise wording need not be dictated from the card. Overall, the officer gave sufficient information for the driver to understand what was being contemplated and why when he was told to exit the car. Concerning the delay while waiting for the second device, the Crown argues that there is no George issue as there was no reasonable opportunity to consult with counsel between Cst. Marko leaving for the station and returning with the device.

[10] It is well settled that "forthwith" connotes an element of immediacy, both in terms of the demand and compliance. It is this factor which allows the regime in subsection 254(2) to pass constitutional muster, otherwise the detention would be illegal; the search unreasonable; and the failure to give rights to counsel without delay would be a further violation of Charter rights (R. v. Quansah, 2012 ONCA 123).

[11] To determine whether a demand under subsection 254(2) has been made forthwith, the Court of Appeal gave the following guidance in Quansah at para 45-50 which I am summarizing:

• The analysis of the immediacy requirement must be done contextually;
• The immediacy requirement commences at the stage of reasonable suspicion;
• Though in unusual circumstances a more flexible interpretation may be given, the time must be no more than is reasonably necessary to enable the officer to discharge his or her duty;
• "Reasonably necessary" may arise where a delay is occasioned because the ASD is not immediately available, to ensure an accurate result, or due to articulated and legitimate safety concerns;
• Could police realistically have fulfilled their obligation to implement the detainee's section 10(b) rights before requiring the sample?

[12] Beginning with the "informal demand", I am not satisfied that when Cst. Connolly told the applicant to exit the car to come for testing that this was a sufficient demand in law. Because of the absence of a clear record as to what was said, it is impossible for me to determine whether the words sufficiently communicated to the applicant that he was going to have to provide a sample of his breath and to come with the officer for that purpose. (See R. v. Dumont, 2014 ONCJ 47 at para 15; R. v. Torsney, 2007 ONCA 67 at para 6-7.)

[13] With respect to the issue of delay, as noted above, the applicant cannot on the one hand ask that the times from the dispatch logs be used and by the same token refer to the officer's notes of times from his watch when there is no evidence of their synchronism. The officer never agreed with the times suggested to him by counsel for the applicant and always pointed to them being off, though not necessarily by much. As a result, though I can work from the 1:38 a.m. time for the formal reading of the demand, I cannot in all fairness use the suggested 1:29 a.m. from the dispatch log for the timing of reasonable suspicion. According to the officer he was at the car at 1:30 a.m. Within a few minutes he acknowledged reasonable suspicion and had the applicant exit the vehicle. This places the formation of grounds at 1:32-33 a.m. approximately. The demand was made 5-6 minutes later, once in the cruiser.

[14] The officer testified, and I accept his evidence on this point, that he moved the applicant to the cruiser for the sake of officer safety given the time of night and being unwilling to take out his notebook then and there. I do not view this to be unreasonable given the time of night and their location, which was at the bottom of a Queensway exit. There was again some delay as the officer attempted to identify the applicant given his inability to locate any identification including his driver's licence. I also note during this interval there was a discussion with the applicant, who was concerned about his wallet and had to be repeatedly reassured that it was in his vehicle. On the issue of attempting to identify the applicant, this was not an unwarranted step in violation of the forthwith requirement. (R. v. Rutherford, 2014 SKPC 73 at 31-35; R. v. Muirhead, 2008 ABQB 169 at para 14; R. v. Kachamarchyk, 1995 ABCA 155 at para 17.) Given what was transpiring throughout this time, including dealing with the applicant himself, I am of the view that the demand was made in accordance with the forthwith requirement.

[15] With respect to the argument that the taking of the sample was not forthwith, the issue was the malfunctioning device. It was entirely proper to delay taking the sample until a properly functioning one was available. Any reliance on the readings from a malfunctioning device would have attracted the argument that no faith could be placed on the results given the previous erroneous readings. Given that the officer could see the detachment from where he was, he was confident that Cst. Marko would retrieve another device in very short order, which was the case. As to rights to counsel, there is no evidence that the officer would have realistically fulfilled his obligation to implement the section 10(b) rights in the 5-6 minute delay. In all of the circumstances, despite the overall delay in collecting the sample, I am satisfied that it was done forthwith.

Issue 2: Were the Arrest and Demand Subsequent to the ASD Fail Made Pursuant to Reasonable and Probable Grounds?

Facts

[16] Rather than repeating the facts already set out above in relation to the ASD testing, I will simply add the following additional relevant facts. When asked about the meaning of a "fail", Cst. Connolly stated that it meant that the applicant had alcohol in his body over a certain limit. He adverted to the device's calibration to fail at a reading of .100 or more than the limit of .08. He also added that the device emits a certain tone when it registers a fail, which it made in this case.

Analysis

[17] The argument from counsel on this point relates to the officer's reliance on the fail result and his belief as to the proper calibration and functioning of the device. In other words, in order to rely on the fail result as the basis for the arrest and demand, the Crown must demonstrate that the officer had a reasonable belief that the ASD was properly calibrated and in working order. In the absence of this, he did not have the requisite basis to make the arrest and subsequent demand. In response to this argument, the Crown argues that there is circumstantial evidence of the belief which may be inferred from the failure of the previous device and the subsequent successful testing on the second one.

[18] To begin with, the Crown need not show that the ASD was in fact calibrated or in good working order but rather that the officer had objectively reasonable grounds for believing this (R. v. Topaltsis; more recently, in R. v. Beharriell, 2014 OINSC 1100). The Summary Conviction Appeal Court dealt with this issue and at para 56 set out a summary of the applicable principles. The most relevant ones for this application are the following:

(iii) police officers may, but are not required to, rely on 'fail' readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand;

(iv) police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary;

(v) in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail' reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand;

(vi) a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used, the results will be unreliable;

(vii) whether an officer had that reasonable belief can be established by direct or circumstantial evidence; and

(viii) there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly.

[19] The Crown must show that the investigating officer reasonably believed the fail result was reliable and objectively, would a reasonable person with the same knowledge as the officer conclude the fail was a reliable result.

[20] Clearly, Cst. Connolly believed that the second ASD was properly working and that the fail result was reliable as he arrested the applicant on that basis. There is evidence, and from there, are available inferences to support this objectively based on:

• his observations and actions with the previous faulty ASD including the absence of a tone, the second self-test and conclusion that there may be a problem with it;
• the accurate self-test with the new one, the continued use of the new one;
• his understanding on the functioning of the machine including its calibration to fail at .100;
• the emitting of a tone when a fail is registered with the second device.

[21] As a result, I find that Cst. Connolly had the requisite belief to rely on the fail and therefore that the arrest and subsequent demand were made on reasonable probable grounds.

Issue 3: Was There a Valid Waiver of Section 10(b) Rights to Counsel?

Facts

[22] Following the fail result, Cst. Connolly arrested Mr. Retta for operating a vehicle with more than 80 milligrams of alcohol in his body. He went on to read rights to counsel from his force-issued card. He asked Mr. Retta if he understood, and his response was yes. When he asked if Mr. Retta wanted to speak with a lawyer, the response was yes once again. At 1:58 a.m., Cst. Connolly read the police caution, which the applicant said he understood. It was the same result when he read the secondary caution. At 1:59 a.m., Cst. Connolly read the breath demand. The applicant's recorded response was, "Ya".

[23] The applicant was removed from the car, searched, and handcuffed. Any items found were returned to the applicant's pockets. Subsequent to arrangements being made for testing and towing, the officer left for the detachment at 2:12 a.m. The officer and applicant arrived there at 2:13 a.m.

[24] Once at the station, the applicant was given the opportunity to speak with a lawyer. According to the officer, he declined the offer.

[25] When filling in the details on this point, the officer's evidence became very confusing and it became apparent that the officer's notebook had been modified at some unknown time for some unknown reason. The modified notebook entries related to the attempts made by the officer to have the applicant speak with counsel and his subsequent waiver of rights to counsel.

[26] According to his evidence in chief, the officer brought the applicant to an interview room and at 2:17 a.m. re-read rights to counsel from a sheet on the wall again, as Mr. Retta had originally said he wanted to speak to counsel. According to Cst. Connolly's viva voce evidence, at 2:15 a.m. the applicant declined to speak to counsel which of course makes no sense. The officer said that at the time he corrected his notes, stroking off 2:17 a.m. and marking 2:15 a.m. According to the officer, the response to that second offer of rights to counsel was, "No man". There was a notebook entry at 2:16 a.m. but it is unknown what that was. According to the officer, subsequent to this he made a third attempt to communicate rights to counsel but had no notes of what he said or the response. In the officer's mind the applicant had again declined to speak with a lawyer. At this point the officer concluded that the applicant had changed his mind. The officer was unaware whether the detachment had a waiver of counsel form. In any event, none was completed. None of the conversations on this topic were captured on video. The officer was unfamiliar with the name Prosper and had never heard of a Prosper warning.

[27] When questioned in chief about the change to his notes – namely the change in times, stroking out 2:17 a.m. and noting 2:15 a.m., the officer testified that he made the change immediately and initialled his notes. When beginning his evidence, Cst. Connolly testified that there had been no additions, deletions or changes to his notes since making them. During cross-examination, this issue was more fully canvassed and it became obvious that the change to the notes had to have been done some time later as the copies of his notes that were disclosed bore no modifications. Cst. Connolly could not account for when or why the changes to his notes were made. He could not locate a late entry explaining the change nor did he follow OPP procedure in completing a late entry and advising his supervisor of the error and changes to his notes.

Analysis

[28] If a detainee indicates a desire to exercise his or her right to counsel, the police are obligated under section 10(b) of the Charter to (1) provide the detainee a reasonable opportunity to exercise the right to retain and instruct counsel without delay, and (2) refrain from attempting to elicit evidence from the detainee until he or she has had a reasonable opportunity to retain and instruct counsel (except in cases of urgency or danger). (See R. v. Manninen; R. v. Ross.)

[29] When it comes to a detainee waiving rights to counsel after having previously asserted the desire to speak with counsel, the Crown has the burden of establishing that there has been a clear indication of change of mind and that this change is unequivocal. (R. v. Prosper at para 44.) I paraphrase the following from Prosper at paragraph 44: The waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. The standard required for an effective waiver of the right to counsel is very high. A person who waives a right must know what he or she is giving up if the waiver is to be valid. All of this having been said, the right to counsel guaranteed under section 10(b) must not be turned into an obligation on detainees to seek the advice of a lawyer.

[30] Here, there was an affirmative response at the roadside to the question of whether the applicant wished to speak with a lawyer. As a result, it falls to the Crown to demonstrate that any waiver of rights to counsel was voluntary, informed and unequivocal. The evidentiary record on this point can only be described as murky. Cst. Connolly's evidence in relation to the issue of rights to counsel was difficult to follow, unclear as to what was said by way of explanation by himself and any responses by the applicant, as well as being marred by an after-the-fact alteration. While I am not prepared to find that there were any mala fides given how obvious the fact of the change was, notwithstanding, Cst. Connolly's credibility on this point is completely compromised. As a result, I cannot accept his evidence and find it to be unreliable and unworthy of belief. Accordingly, there is insufficient evidence to establish waiver, and I must therefore find that there was a breach of the applicant's right to counsel.

Issue 4: Was There Over-Holding and Therefore a Section 9 Breach?

Facts

[31] On this issue, Cst. Connolly testified that he told the applicant he would be released once the paperwork was completed and someone could come and pick him up. Mr. Retta gave him a name and number for someone who could pick him up and a voicemail was left. When told of the results of the first call, Mr. Retta gave another number, with the same result. Cst. Connolly offered to drive him to a residence of his choice since he seemed to be nearby, given he had been exiting at Eagleson, Cst. Connolly and a colleague left the station with the applicant after the required paperwork was served on him. Once in the area of Klondike, Mr. Retta asked the officers to drop him off at a Shell station. Cst. Connolly testified that given the amount of time he had now spent with the applicant, he was concerned with his level of intoxication, lack of judgment and therefore safety. According to Cst. Connolly, they told Mr. Retta that they had to drop him off in someone's, anyone's, care. At this point, Mr. Retta gave them an address and they drove him there.

[32] Cst. Connolly testified that as they were removing him from the police car, once Mr. Retta realized that the officers would accompany him to the door, he refused to exit. Words were exchanged, including that he did not live there and did not want to go. It was clear that Mr. Retta was unhappy. This exchange fueled Cst. Connolly's concerns about the applicant's judgment and it being impaired by alcohol. After a few minutes of refusing to provide an address, Mr. Retta was warned that the only other option would be to return him to the cells. According to Cst. Connolly, Mr. Retta seemed agreeable and relieved with that option. At 4:22 a.m., the officers returned to the station and at 4:24 a.m., the applicant was lodged in the same cell as he was previously held. Cst. Connolly was advised that Mr. Retta was released at about 7:00 a.m. Cst. Connolly testified that for his safety and the safety of others, Mr. Retta could not simply be released on his own but had to be released into someone else's care. This was based on the nature of the charges and the behaviour exhibited which, according to the officer, became more concerning as time wore on as evidenced by a more pronounced smell of alcohol and Mr. Retta's poor judgment. Had someone taken responsibility for him, Mr. Retta would have been free to leave police custody.

[33] During cross-examination, the officer disputed any notion that he did not feel that the applicant was impaired simply because a charge of impaired driving had not been laid. To the contrary, he said, based on the entirety of his interaction, he was of the view that the applicant was indeed impaired by alcohol. He did however admit that by the time they left the station there were no more physical coordination issues.

[34] Sgt. Birmingham was the breath technician that evening. He noted the following signs of impairment when he dealt with the applicant: the odour of alcohol; slightly slurred speech; glassy eyes; seeming confused walking from the breath room to the cell, in that he went straight instead of turning despite direction; and slight sideways swaying. In terms of the slurring, the officer testified that he was not incoherent, that he could understand the applicant and overall, he found the applicant to be polite, despite him not doing the test. Sgt. Birmingham was also the officer in charge that night and he was not comfortable releasing the applicant without conditions because of his confusion; the odour of alcohol; the failed roadside, meaning that he was over 100mg of alcohol in 100ml of blood at least. As a result, for his own safety, Mr. Retta had to be held until he sobered up, unless another person could take him. Since there were no actual readings in this case to assist with elimination, the officer based the detention on the ASD calibration of 100, deciding to hold him for a few hours and then re-assess.

Analysis

[35] The time-period involved in the over-holding argument is from 4:24-7:00 a.m. or two hours and thirty-six minutes. It is of course acknowledged that Mr. Retta spent from 1:30-7:00 a.m. in police custody from the time of the initial traffic stop to his release.

[36] An applicant person's right not to be arbitrarily detained may be violated where, in the impaired driving context, consideration is not given to their release following completion of the breath testing. R. v. Sapusak, [1998] O.J. No. 4148 and R. v. Iseler are examples of the Ontario Court of Appeal's views on over-holding. In the former case, no breach was found, while in the latter, the cavalier disregard by custodial officials of their obligations and the applicant's circumstances resulted in a breach. More recently, the summary conviction appeal court found a breach in R. v. Price, 2010 ONSC 1898, where custodial officials limited their consideration to the breath readings rather than the readings combined with the statutory factors prescribed in section 498 of the Criminal Code and the applicant's circumstances, including his wife's availability to attend and pick him up.

[37] Section 498 of the Code requires that individuals arrested without a warrant be released as soon as practicable. The exceptions to this requirement are where the officer in charge believes on reasonable grounds that the person will fail to appear in court, or it is necessary in the public interest to detain. The "public interest" in this context includes the need to establish the identity of the person, secure or preserve evidence of or relating to the offence, prevent the continuation or repetition of the offence or the commission of another offence, or ensure the safety or security of any victim of or witness to the offence. "Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released" (R. v. Steele, 2013 ONCJ 248 at para 35). Looking to the level of intoxication of a detainee is a reasonable component of when to release a detainee (Steele para 36).

[38] The Court observed that custodial officials may ultimately decide to detain because of the blood alcohol readings; however, in order to meet their Charter obligations, they must nonetheless turn their minds to alternatives to detention (Price, ibid).

[39] In this case the custodial officials turned their minds to alternatives to detention, indeed, they tried to contact someone to come and pick up the applicant but without success. Thereafter they offered to drive him home – which the applicant agreed to. It was not unreasonable for the officers to wish to ensure the applicant's safety by having someone take responsibility for him. Indeed, they knew that he was at least over 100mg as he had blown a fail. In the officer's perception, the applicant's refusal to provide an address made no sense as it served only to prolong the detention. They did not view his thinking as clear as he preferred returning to the station as opposed to providing an address. Sgt. Birmingham, who also dealt with the applicant that night, was not comfortable releasing the applicant without conditions because of his confusion, the odour of alcohol, the failed roadside meaning that he was over 100mg of alcohol in 100ml of blood at least. As a result, for his own safety he had to be held until he sobered up unless another person could take him.

[40] In the above circumstances, though the applicant was perhaps of the view that he ought to have been allowed to find his own way home, there existed a subjective basis for the officers to believe that the applicant presented a risk to himself or others and given the behaviour, readings and indicia observed throughout the evening, this was objectively reasonable. There is therefore no over-holding and no breach of section 9 of the Charter.

Section 24(2) Analysis

[41] Having found a breach of the right to counsel at the station, the next consideration is whether the refusal to provide a breath sample ought to be excluded. In terms of the seriousness of the breach of Charter protected interest, though rights to counsel were provided at the roadside, the absence of any waiver of these at the station is a serious breach. The applicant never did speak with counsel and therefore received no advice. What compounds this breach is the quality of the evidence in relation to this issue. But for the inadvertent discovery of the change to the notes, the Court would have been left with the impression that there was but a minimal correction to the times made contemporaneously to rights to counsel. However, it is unknown when the change was actually made, perhaps weeks or months after the fact. In addition to this, the officer's notes on any of the conversations with the applicant concerning his understanding of his right and what he was potentially giving up were all but absent. These factors in my view increase the seriousness of the breach.

[42] Also relevant to the seriousness of the breach is the apparent lack of awareness of the full extent of police obligations with respect to waiver. This is not a new area, and though the officer may not have been aware of case names, he also was not fully aware of his obligations such as documenting his conversation with the applicant to establish a fully informed waiver. The lack of novelty to the area of law and the conduct exhibited favour exclusion of the evidence.

[43] The impact of the breach on the applicant was significant since, as stated above, he did not receive any advice and ultimately refused to provide a sample – thus making out the offence with which he was charged. As a result, I would describe the impact as high and favouring exclusion.

[44] With respect to society's interest in the adjudication of the case on its merits, this is a drinking and driving prosecution and is of course of particular societal interest. The refusal exists as a result of the breach. Excluding the refusal will gut the Crown case on this count. Given the circumstances and balancing all of the different factors, I am of the view that a reasonably informed person would be shocked were I to admit the refusal in the circumstances of this case where rights were violated and there was questionable behaviour on the part of the police.

[45] The evidence of the refusal will be excluded.

Released: July 13, 2018

Signed: Justice Jacqueline V. Loignon