CITATION: R. v. Coutts, 2019 ONCJ 123

DATE: March 4, 2019

COURT FILE No.: Toronto 17 – 55000868

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RORY ALEXANDER COUTTS

Before Justice Paul H. Reinhardt

Heard on 29, 30 October, 29, 30 November 2018 & 19 February 2019

Reasons for Judgment released on 4 March 2019

Victoria Nevin ............................................................................................................ for the Crown

Mark Hogan ............................................................................................................. for the accused

REINHARDT J.:

[1] Rory Alexander Coutts is charged that he did, on or about 22 March 2017, at the City of Toronto, in the Toronto Region:

(1) While his ability to operate a motor vehicle was impaired by alcohol, have the care or control of a motor vehicle and thereby commit an offence under Section 253, subsection (1), clause (a) of the Criminal Code of Canada; and further,

(2) Without reasonable excuse, refuse to comply with a demand made to him by a peace officer to provide such samples of breath as were necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood and thereby commit an offence under Section 254, subsection (5) of the Criminal Code of Canada.

[2] In this proceeding I heard evidence from:

(1) P. C. Adam Chaumont, Badge #9449;

(2) P. C. Iulian Andrici, Badge #8406;

Exhibits

[3] As part of the evidence, the following exhibits were filed:

(1A) Google Map Street Plan of the residential neighbourhood streets immediately south of the intersection of Bloor Street West and The East Mall, unmarked;

(1B) Google Map Street Plan of the residential neighbourhood streets immediately south of the intersection of Bloor Street West and The East Mall, marked by Constable Chaumont;

(2A) Google Map, “Street View” close-up of photograph of the intersection of Bloor Street West and The East Mall, unmarked;

(2B) Google Map, “Street View” close-up of photograph of the intersection of Bloor Street West and The East Mall, marked by Constable Chaumont;

(3A) Google Map, “Street View” close-up photograph of cross-walk at intersection of Bloor Street West and The East Mall, unmarked;

(3B) Google Map, “Street View” close-up photograph of cross-walk at intersection of Bloor Street West and the East Mall, marked by Constable Chaumont;

(A) Environment Canada Toronto North York Temperature Log for March 2017;

(4) Google Map Street Plan of the local roads south of the intersection of Bloor Street West and The East Mall, marked by Constable Chaumont (Photocopy of Exhibit 1);

(5) Photograph of Intersection of Bloor Street West and The East Mall

(6A) TPS Fleet 2221 Spread Sheet for 22 March 2017;

(6B) TPS Fleet 2221 Spread Sheet, for 22 March 2017, Digital CDROM;

(7) TPS DVD Compilation of In Car Camera & Breath Tech Video, 22 March 2017;

(8) Agreed Statement of Facts “Will Say” of Constable Joseph Cicchirillo;

[4] I have reviewed the evidence and concluded that the Crown has not proven Count 1, but has made out its case against Mr. Coutts to the Criminal standard, on Count 2. As a result, Count 1 is dismissed, and I have made a finding of guilt on Count 2. Let me explain how I have reached this result.

ISSUES IN DISPUTE

Defence

[5] In this proceeding, the defence submits that the Crown has not proven that Mr. Coutts ability to operate his motor vehicle was impaired.

[6] In addition, the defence has brought an Application under the Canadian Charter of Rights and Freedoms, alleging that during the police investigation, Mr. Coutts was denied his Charter-protected rights to be informed promptly of the reasons for his detention “(10 (a)”, and to retain and instruct counsel without delay, and to be informed of that right “(10 (b)”, as follows:

Section 10 (a)

The defence submits that during the first interaction with Mr. Coutts, between 2:52 & 2:55 A.M., Constable Chaumont had a suspicion that Mr. Coutts had alcohol in his body, but did not advise him until 3:07, some 12 to 15 minutes later, thus breaching Mr. Coutts’ 10(a) right;

Section 10 (b)

The defence submits there were three breaches of Mr. Coutts’ 10(b) rights:

(1) At 3:09, Constable Chaumont made a formal ASD Demand, a delay of 14 to 17 minutes, during which Mr. Coutts had ample opportunity to retain and instruct counsel;

(2) During the above time period, Mr. Coutts was not informed of his jeopardy or his right to instruct counsel without delay;

(3) Once Mr. Coutts was read his Charter-protected right to counsel, he advised Constable Chaumont he wished to contact an un-named female lawyer, and to do so, needed to call his parents to get her name and phone number;

However, he was not permitted to do so, rather, he was told by Constable Chaumont he would have an opportunity to do so, at the police station, an opportunity he was not, in fact given;

[7] The defence submits that the delays in providing Mr. Coutts with his Charter-protected rights cannot be justified by a legitimate concern for officer safety, at the roadside stop, as asserted by the Crown witness, Constable Chaumont.

[8] The defence finally submits, on all the circumstances, including not being promptly informed of his greater jeopardy and unjustified delays, Mr. Coutts was subject to an unlawful detention and an unlawful demand for his breath.

[9] The defence further submits that a review of the testimony of the Crown witness, Constable Chaumont, discloses a plethora of unreliable and implausible testimony that suggests fabrication in the Crown narrative.

[10] Thus, the defence submits that Constable Chaumont’s description of his observations and rationale for his actions, as set out above, are not believable and magnify the Charter breaches.

[11] Accordingly, the defence is seeking, pursuant to Section 24 (2) of the Charter, the exclusion of the evidence acquired after the denial of Mr. Coutts’s Charter-protected rights when he was being asked by the police breath technician to provide a sample of his breath into an approved instrument.

Crown

[12] The Crown resists the Charter application.

[13] The Crown submits that there have been no Charter breaches, but if there have been, the section 24(2) Remedy of exclusion of evidence should not be granted.

[14] The Crown submits that both Crown witnesses provided credible and reliable evidence.

[15] The Crown further submits that the trial evidence proves to the criminal standard that Mr. Coutts was guilty of both counts on which he was arraigned.

SUMMARY OF THE EVIDENCE

The Highway Traffic Stop

Constable Adam Chaumont

[16] Constable Chaumont testified with the assistance of a series of Google Map street plans and photographic images which became Exhibits in this proceeding. (See Exhibit List, above.)

[17] Constable Adam Chaumont testified that on 22 March 2017, he and his companion officer, Giuseppe Cicchirillo were in general patrol in the vicinity of Bloor Street West and The East Mall, driving eastbound, driving a marked police Ford Taurus.

[18] Constable Chaumont testified that he was driving the vehicle, and at 2:46 A.M. the police vehicle was stopped at the traffic lights, facing eastbound, in lane two of two lanes going east, when he observed a vehicle approaching at a high-rate of speed in lane one.

[19] Constable Chaumont testified that he could see the second vehicle approach through his rear-view mirror, and estimated the speed of the approaching vehicle at close to twice the posted speed limit of 50 KPM.

[20] Constable Chaumont testified that he next observed that the approaching vehicle changed lanes suddenly to be in lane two, approaching behind the police vehicle, and about thirty meters away, slow suddenly, in a “nose dive” motion suggesting a rapid application of the breaks, approximately thirty meters behind the police car.

[21] Constable Chaumont testified that as the traffic lights turned green he then began to advance through the intersection, while keeping his view in the rear-view mirror of the approaching car directly behind the police vehicle.

[22] Constable Chaumont testified that he observed the approaching vehicle veer south across the eastbound turning lane and make a sudden right hand turn southbound onto The East Mall.

[23] Constable Chaumont described the vehicle in question as a “Silver Sedan” and that the vehicle was travelling southbound vehicle was still moving very quickly, and continued southbound at a speed that appeared to the officer to be well above the posted 40 KPH speed limit as it entered a school traffic zone.

[24] Constable Chaumont testified that he executed a “U-Turn” and began to follow the silver sedan as it turned southbound, and then just before reaching the school property, made a quick left turn onto Redcar Avenue, without engaging the brake lights.

[25] Constable Chaumont testified that Redcar Avenue gives access to a residential neighbourhood, with a posted speed limit of 50 KPH, and he decided to cautiously pursue the silver sedan.

[26] Constable Chaumont testified that as he followed the silver sedan, it drove southbound on The East Mall, right or south onto Latton Road, left or eastbound onto Peterlee Avenue, left or north onto Cranston Road, then right or east onto Redcar Avenue.

[27] Constable Chaumont testified that, as he followed, in his police vehicle, he obeyed the residential neighbourhood stop sign at Peterlee Avenue, but noted that the silver sedan again went through a residential stop sign without stopping.

[28] Constable Chaumont testified that the silver sedan did appear to engage the brake lights as he came to the intersection of Cranston Road as it ends at the intersection with Redcar Avenue.

[29] Constable Chaumont testified that his escort, Constable Cicchirillo, at this juncture commenced an in-car computer CIPIC check on the car’s computer.

[30] Constable Chaumont testified that at 2:49 AM the silver sedan then turned right off of Cranston, or east again, back on to Redcar, and at a slow rate of speed, came to a stop in a cul-de-sac driveway at 57 Redcar Avenue.

[31] Constable Chaumont testified that, from his observations, the vehicle had driven in a complete circle in the residential neighbourhood streets directly adjacent to The East Mall and was now in a dead-end or cul-de-sac.

[32] Constable Chaumont stated that, in his view, the driver appeared to be lost.

[33] Constable Chaumont testified that he parked his vehicle a short distance behind the two-door-sedan, which he could clearly identify as a Pontiac G5, Licence plate BWWF832.

[34] Constable Chaumont testified that he and his partner did not immediately activate their roof lights or get out of their vehicle and approach the silver sedan.

[35] Constable Chaumont testified that he and his partner rather decided to wait for the results of the in-car computer CIPC check, which they initiated while following the silver sedan on Cranston Road.

[36] Constable Chaumont testified that while they were sitting in their vehicle the CIPC Report came back with the information that the registered owner of the silver sedan was Rory Coutts, and he was before the courts, facing charges of assault resist arrest, threatening death and weapons dangerous.

[37] Constable Chaumont testified that at 2:52 AM, three minutes after parking behind the Coutts vehicle, he decided to make a police traffic stop.

[38] Constable Chaumont testified that, as a result, he activated his roof lights and he and his escort got out of their vehicle and walked towards the silver sedan, with Constable Chaumont approaching the driver’s side, and Constable Cicchirillo moving to the passenger side.

[39] Constable Chaumont testified that the details of what happened next was captured by his in-car video camera, and audio recorder. (See Exhibit 7)

[40] At this juncture, the Crown played a portion of the visual and audio recording of the traffic stop, commencing at 2:52:10.

[41] The DVD recording depicts Constable Chaumont approaching the driver Mr. Coutts, who remains in the driver’s seat.

[42] Constable Chaumont can be heard on the recording to say to the driver:

How’s it going man?

What’s up?

Bit of odd driving there, eh… you’re in the left turn lane, then you pull in behind me, then you turn right, then you’re speeding on the side streets.

Can you give me your licence, ownership and insurance, please?

So why here?

How much did you have to drink?

You are having a hard time finding your documents…

Thank you!

Is this your car?

Are you the registered owner?

Sit tight, stay in your car, O.K.?

[43] Again, referring to his notes, Constable Chaumont testified that, at this time, he was able to identify the driver as the accused, Rory Coutts, born 20 February 1992.

The Drinking & Driving Investigation

[44] Constable Chaumont testified that the driver, Mr. Coutts, was polite and cooperative throughout the roadside encounter.

[45] Constable Chaumont testified that the driver told him that he had consumed one beer.

[46] Constable Chaumont testified that he observed that the driver’s eyes were more than bloodshot, they were very, very red.

[47] Constable Chaumont testified that there was a passenger in the car, and a smell of alcohol coming from the car, but he did not initially know if the odour was emanating from Mr. Coutts or the passenger.

[48] Constable Chaumont testified that Mr. Coutts passed him his licence but struggled to find his other driving papers; Car ownership and insurance.

[49] Constable Chaumont testified that he made two additional demands of Mr. Coutts to produce these documents, but Mr. Coutts was never able to comply.

[50] Constable Chaumont testified that Mr. Coutts was speaking with a slight lisp, and with, what the officer described as a “numb tongue”.

[51] Constable Chaumont testified that, based on his observations, he believed that Mr. Coutts sobriety was an issue, but didn’t want to pull him out of the car, and, in his words, he was concerned that the Highway Traffic road stop could “go south” quickly, and he decided to not at this time do further investigation of Mr. Coutts.

[52] Constable Chaumont testified that, because of the CPIC information, he decided to proceed very cautiously, and chose to, as he put it, “freeze the scene”, rather than investigate Mr. Coutts further, at least until he could call for “back-up” officers to attend at the scene.

[53] Constable Chaumont testified that, for these reasons, at 2:55 A.M. he ended his questioning of Mr. Coutts, and returned to his police scout car.

[54] Constable Chaumont testified that when he and Constable Cicchirillo returned to the scout car they requested for back-up to attend on scene.

[55] Constable Chaumont testified that at approximately 3:04 A.M. he spoke to officers who have arrived on scene.

[56] Constable Chaumont testified that he then returned to the accused’s vehicle, and indicated to Mr. Coutts at 3:07 A.M. that he would be making a roadside approved screening device (“ASD”) breath demand.

[57] Constable Chaumont testified that he asked Mr. Coutts to step out of his vehicle.

[58] Constable Chaumont testified that Mr. Coutts had no difficulty getting out of his vehicle.

[59] Constable Chaumont testified that Mr. Coutts walked normally to the scout car, and didn’t exhibit any typical signs of impairment.

[60] Constable Chaumont testified that he then explained to Mr. Coutts how to provide a roadside breath sample.

[61] Constable Chaumont testified that at 3:09 A.M. he made a formal ASD demand.

[62] Constable Chaumont testified that Mr. Coutts made his first attempt to provide a roadside sample at 3:11 A.M.

[63] Constable Chaumont testified that at 3:13 A.M. Mr. Coutts provided a suitable sample, which resulted in a “FAIL”.

[64] Constable Chaumont testified that at 3:13 A.M. he placed Mr. Coutts under arrest for impaired operation.

[65] Constable Chaumont testified that, when at 3:13 A.M. he placed Mr. Coutts under arrest for impaired operation, he meant to say “over 80”, and later corrected himself.

[66] Constable Chaumont testified that he then conducted a pat-down search of Mr. Coutts and asked whether he had a lawyer.

[67] Constable Chaumont testified that at 3:18 A.M. he read Mr. Coutts his rights to counsel.

[68] Constable Chaumont testified that this delay of the Charter subsection 10(b) Caution was due to the fact he was searching Mr. Coutts.

[69] Constable Chaumont testified that at approximately this time he corrected himself and advised Mr. Coutts he was under arrest for “over 80”.

[70] Constable Chaumont testified that Mr. Coutts indicated that he wished to contact a female lawyer but did not know her name.

[71] Constable Chaumont testified that Mr. Coutts indicated that he could call his parents and get the phone number.

[72] Constable Chaumont testified that he advised Mr. Coutts that he would have reasonable access to the telephone at the station.

[73] Constable Chaumont testified that at 3:20 A.M. he read Mr. Coutts an approved instrument demand.

[74] Constable Chaumont testified that Mr. Coutts indicated that he understood.

[75] Constable Chaumont testified that at 3:23 he departed with Mr. Coutts in his custody to Traffic Services, 9 Hanna Avenue in downtown Toronto, the location of the nearest Qualified Breath Technician, and arrived at 3:42 A.M., with no stops on the way.

[76] Constable Chaumont testified that at 3:44 Mr. Coutts was paraded and later, at 4:02 there was a second conversation with respect to rights to counsel.

[77] Constable Chaumont testified that Mr. Coutts now indicated that he no longer wished to call his parents as he did not want to wake them up.

[78] Constable Chaumont testified that at 4:02 A.M. Mr. Coutts, as a consequence, indicated that he now prepared to speak to duty counsel.

[79] Constable Chaumont testified that at 4:05 A.M. he escorted Mr. Coutts to the bathroom and at 4:11, Mr. Coutts was escorted back to the interview area, where he was placed into the secure police phone booth and spoke to Duty Counsel J. Murphy from 4:12 to 4:15 A.M.

[80] Constable Chaumont testified that at 4:19 A.M. the qualified breath technician, Constable Iulian Andrici was ready to test Mr. Coutts, and he escorted Mr. Coutts to the breath tech room at Traffic Services.

Constable Iulian Andrici

[81] Constable Iulian Andrici is a sixteen-year veteran, having served as a qualified breath technician for eleven years, and conducted more than 1000 breath tests.

[82] Constable Andrici testified that on 22 March 2017, he was working in the capacity of a breath technician at Traffic Services, 9 Hanna Street in downtown Toronto.

[83] Constable Andrici testified that at 3:15 A.M. he tested the Intoxilizer 8000C and after both calibration, serial testing and a self-test was satisfied that the machine was in good working order.

[84] Constable Andrici testified that at 4:19 A.M. Mr. Coutts was brought into the breath room by Constable Chaumont who briefly advised him of the circumstances of the arrest and the fact that in the initial roadside investigation, Mr. Coutts had registered a “fail” on his ASD test.

[85] As part of the Crown evidence in this proceeding, the Breath Tet Room Video footage of Constable Andrici’s administration of the Intoxilizer to Mr. Coutts. (See Exhibit 7).

[86] At each attempt, Constable Andrici would instruct Mr. Coutts to make a tight seal around the mouthpiece and to blow continuously into the machine with a steady flow of air to activate the machine’s sound that indicated sufficient air was being provided by the test subject.

[87] Constable Andrici testified and the video footage confirm that on each occasion when Mr. Coutts was asked by the officer to blow into the mouthpiece, air was escaping from Mr. Coutts mouth, with the result that the machine was not receiving a sufficient quantity of Mr. Coutts’ breath.

[88] This was apparent in a number of ways, both from the Exhibit 7 footage and from Constable Andrici’s elaboration of what happened in his court testimony.

[89] Constable Andrici testified that he could observe that Mr. Coutts, on each attempt, was placing the mouthpiece at the corner of his mouth, not wrapping his lips around the mouthpiece in such a way as to create a seal.

[90] Constable Andrici testified that, as a result, he could hear and feel air escaping from Mr. Coutts mouth.

[91] Constable Andrici testified that this was also confirmed by the fact that the instrument did not maintain a characteristic sound or tone that indicates the sufficiency of the air pressure and continuous volume of air being provided.

[92] Constable Andrici testified and the Exhibit 7 footage played in court confirmed that after a number of failed attempts at providing a suitable breath sample, Constable Andrici cautioned Mr. Coutts that if he did not blow into the machine properly, and provide a suitable sample, he would be charged with failure to provide a breath sample, which was, itself, a criminal offence.

[93] Exhibit 7 discloses a series of unsuccessful attempts by Mr. Coutts.

[94] The Exhibit shows Mr. Coutts asserting he is trying to blow into the machine, but not activating or maintaining a suitable pressure or continual quantity of air into the machine to maintain the machine “tone” and produce a suitable sample.

[95] The exhibit shows Mr. Coutts, after Constable Andrici’s fourth caution, being told by the officer that he is not following the officer’s instructions because he is not wrapping his lips tightly around the mouthpiece.

[96] Mr. Coutts can be seen and heard at this juncture to state to the officer that he “doesn’t understand what the officer is trying to say” and that he is “trying to do it”.

[97] Constable Andrici then says to Mr. Coutts, at this juncture: “You are not, you are just saying that”, at which point he again reviews with Mr. Coutts the mechanics of providing a seal with his lips so as to provide sufficient air into the approved instrument.

[98] Again, following these instructions from the officer, Mr. Coutts starts to blow into the machine in the same manner as before, and Constable Andrici tells him: “I can hear air escaping, you are blowing on the outside”.

[99] The exhibit shows this pattern of insufficient blowing by Mr. Coutts continuing, and finally Constable Andrici can be seen to provide Mr. Coutts with a final caution.

[100] The exhibit shows Mr. Coutts again blowing air to the side, the machine does not register a continuous tone, and Mr. Coutts is advised by Constable Andrici that he will be charged with the offence of “failure or refusal to comply with a demand”.

LEGAL FRAMEWORK

The Relevant Statutory Provisions

Criminal Code Provisions

253. Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person's ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person's blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

254. (1) In this section and sections 255 to 258,

"approved instrument" means an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person and is approved as suitable for the purposes of section 258 by order of the Attorney General of Canada;

"approved screening device" means a device of a kind that is designed to ascertain the presence of alcohol in the blood of a per-son and that is approved for the purposes of this section by order of the Attorney General of Canada;

(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle or vessel or operating or assisting in the operation of an aircraft or of railway equipment or who has the care or control of a motor vehicle, vessel or aircraft or of railway equipment, whether it is in motion or not, has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken.

(3) Where a peace officer believes on reasonable and probable grounds that a person is committing, or at any time within the preceding two hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person to provide then or as soon thereafter as is practicable.

(a) such samples of the person's breath as in the opinion of a qualified technician are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

(Emphasis added)

Charter of Rights and Freedoms

Legal Rights

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental jus tice.

Search or seizure

8. Everyone has the right to be secure against unreasonable search or seizure.

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

(Emphasis added)

Case Law

General Principles under Sections 254(2) & (3)

Section 254(2)(b) Reasonable Suspicion

[101] The test for an “Approved Screening Device” (“ASD”) demand is the suspicion that a person has alcohol in their body, and has operated a motor vehicle within the preceding three hours. (See R. v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870, (Ont. C. of A.))

[102] The standard of reasonable suspicion concerns possibilities, not probabilities. (See R. v. Schouten, 2016 ONCA 872, [2016] O.J. No. 5908, (Ont. C. of A.))

Section 254(3)(a)

[103] The requirement of reasonable and probable grounds for an arrest and subsequent breath demand is both a statutory and constitutional requirement for a valid search. Reasonable and probable grounds for arrest and subsequent breath demand is not an onerous test. The satisfaction of this test is essential to protect the privacy rights of anyone who might be subject to a warrantless search and seizure by the police. (See R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. 35)

[104] The court must be satisfied that the officer had both objective and subjective grounds to make a breath demand under Section 254(3) of the Criminal Code. (See Shepherd, above)

Charter 10(a) & 10(b) Compliance

[105] The citizen must be advised of his Section 10(a) rights upon his detention.

[106] Section 10(b) places three duties on the police: the duty to inform detainees of the right to counsel, the duty to provide them with a reasonable opportunity to exercise the right, and the duty to curtail questioning until that reasonable opportunity has been exercised. The first duty is an informational one. The second and third are implementational duties that are triggered only if a detainee expresses the wish to exercise the right to counsel. (See R. v. Bartle, 1994 CanLII 64 (SCC), [1994] S.C.J. 74)

[107] In R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37, the Supreme Court of Canada heard two “drinking & driving” appeals which engaged Charter compliance with the Section 10 informational requirements during roadside detentions. In each case the accused failed roadside testing, but were detained for the purposes of Section 10, before being arrested, and neither were fully advised of their right to counsel until after their arrest.

[108] In both cases, the trial judges held that the accused’s rights to counsel under s. 10(b) were infringed while they were detained, the infringement of 10(b) was unjustified, the evidence was excluded under s. 24(2) and the accused were acquitted.

[109] In each case, the Court of Appeal in Manitoba overturned the acquittals and ordered new trials. The Court of Appeal held that s. 10(b) of the Charter had been breached, that the limit on the right to counsel was not prescribed by law, but that the evidence should be admitted under s. 24(2).

[110] At the Supreme Court of Canada, the majority agreed, and upheld the Courts below order for a new trial in each case. The Supreme Court majority confirmed that the right to counsel was triggered when O and E were detained before their arrests. However, the majority concluded that the accused’s Section 10 (b) right to counsel was not absolute, but rather, subject to section 1 “reasonable limits” that are prescribed by law and are demonstrably justified in a free and democratic society.

[111] Madam Justice Louise Charron, speaking for the majority, at paragraphs 101, 103 & 104, explained the Court’s reasons for not always excluding such evidence:

101 In the present case, as the Court of Appeal found, although the evidence is conscriptive, the breach does not warrant exclusion of the evidence. The Charter rights at stake are important, but not every Charter breach rises to the same level of seriousness and requires the same kind of remedy, especially the exclusion of evidence. Courts must carefully review the circumstances and nature of the infringement.

103 Although I have found a Charter breach, it is clear from the evidence that Mr. Orbanski did receive some information. In a very broad sense, some of the duties imposed on the police officer were met. Mr. Orbanski appears to have been given incomplete information about his own rights, but he understood what they were and declined to exercise them.

104 As a result, I do not think that the breach went to the fairness of the trial. It was a minor infringement of an admittedly important Charter right. It did not warrant the exclusion of the evidence. I would find that in these circumstances, to exclude the evidence would bring the administration of justice into disrepute.

(Emphasis added)

The S. 10(a) Informational Requirement at Roadside

[112] In a recent case, R. v. Meuller, [2018] O.J. No. 2284, my colleague, Justice P.A. Schreck, sitting as a trial judge, heard a case which engages the requirement to advise the detained driver the reason for a highway traffic stop.

[113] In Meuller, the appellant, Paul Mueller, was detained by a police officer responding to a radio call about a possible impaired driver. The trial record was unclear as to what, if anything, the officer had told the appellant about the reasons for his detention. At his trial on drinking and driving charges, the appellant alleged that his s. 10(a) Charter rights were violated. The trial judge concluded that the circumstances were such that the appellant would have been aware of the reasons for his detention, so there was no violation.

[114] Justice Schreck rejected the trial judge’s “awareness” reasoning, and the “awareness” reasoning in another similar case, R. v. Kumarasamy, [2011] O.J. No. 2114, and concluded that the Crown cannot ask the court to focus on what an accused person might have known about his circumstances, but rather, what the police officer did to bring to the driver’s attention the reason for the stop and the detention thereafter.

[115] Thus Justice Schreck concluded that the Canadian jurisprudence, as applied to this factual circumstance, requires the Crown to prove that the police complied with s. 10(a) by advising the driver promptly of the reasons for the continued detention at the roadside, prior to the arrest.

[116] Justice Schreck states at paragraphs 22 to 25, and 29:

22 In my view, the fact that the accused knew why he was being detained is relevant insofar as it allows for an evaluation of the adequacy of what he was told by the police. However, the police must tell him something. I must respectfully disagree with the statement in Kumarasamy at para. 52 that there can be compliance with s. 10(a) in a situation where the officer says nothing.

23 My conclusion that s. 10(a) requires the police to tell the detainee something about why he was being detained is supported in the Supreme Court of Canada caselaw. It will be recalled that in Evans, the Court stated (at p. 888) that "[t]he question is whether what the accused was told . . . was sufficient to permit him to make a reasonable decision" about how to exercise his options. This implies that the accused must be told something. Indeed, in that case the accused was told that the police viewed him as having "possibly being the person who committed that crime that night that we were discussing" (at p. 881). Similarly, in R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, the police officer had told that the accused that he was "being detained for investigation into the death of your daughter" (at para. 8).

24 None of these cases suggest that the police need not make any effort to advise a detainee of the reasons for his detention if the detainee would be able to surmise the reasons by himself. Rather, they state that the adequacy of what the police told the detainee can be evaluated by having regard to the circumstances. If what the police told the detainee, when considered in the all of the circumstances, would have led the detainee to subjectively appreciate the reasons for his de-tention, then s. 10(a) will have been complied with.

25 Of all of the obligations that the Charter imposes on police officers, s. 10(a) must surely be among the least onerous. In my view, it is far easier to require police officers to briefly advise those they detain of the reasons for detention than it is for courts to attempt to ascertain after the fact what the detainee would have inferred from the circumstances.

29 I recognize that the right to counsel guaranteed by s. 10(b) of the Charter is suspended in the context of roadside stops: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3. However, there is no similar suspension of s. 10(a). While it is true that affording a detainee his s. 10(a) rights in this situation will not assist him in exercising his right to counsel in a meaningful way, in my view this makes the need to comply with s. 10(a) more, rather than less, important. Absent ac-cess to counsel, the detainee is wholly reliant on the police to provide him with the information he requires to be able to make informed choices, as was pointed out by Stribopoulos J. in R. v. Evans, 2015 ONCJ 305, 21 C.R. (7th) 133, at para. 49:

In such situations, knowing why one has been detained will undoubtedly assist the affected individual to make a more informed decision in terms of how to respond. For example, a detained motorist who knows that they are suspected of impaired driving may decide to refrain from making an incriminating admission or participating in physical sobriety tests.

[117] Justice Schreck summarises the applicable principles in 10 (a) at paragraph 33 of his reasons:

Summary of Applicable Principles

33 Based on the foregoing review, in my view an evaluation of a claim of a s. 10(a) Charter violation requires consideration of the following:

(1) Did the police impart information to the accused as to the reasons for his detention?

(2) If so, was the information imparted by the police, when considered in all of the circumstances, sufficient to allow the accused to understand why he was being detained and the extent of his jeopardy such that he is able to make meaningful decisions about whether to submit to the detention and whether and how to ex-ercise his right to counsel?

(3) In considering this question, a court should not assume that the accused had engaged in the wrongdoing for which he is being investigated.

The ASD Demand & Appropriate Reasons to Suspend the S. 10 (b) “Right to Counsel”

[118] In his reasons in R. v. Davloor, [2018] O.J. No. 757, Justice S.S. Nakatsura discussed the immediacy requirement for the ASD Demand in the context of the s. 10(b) “Right to Counsel”, and the analysis of the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779.

[119] At paragraph 15, Justice Nakatsura states:

15 The requirement that the demand be made promptly by the officer once they form reasonable suspicion that the driver has alcohol in their body makes sense. Unless there is some valid reason why not, the demand can be made easily and quickly upon the officer having formed reasonable suspicion. Further, by giving such a demand promptly, the motorist is promptly made aware of the true reason for their continuing detention. Finally, if police officers are permitted to give the demand at a time of their choosing, especially in cases where an ASD device is not immediately at hand, it skews the analysis of whether the forthwith requirement has been met. For instance, if permitted to give the demand at the time the ASD arrives on scene rather than at the formulation of reasonable suspicion, the demand and response would always appear to have been made promptly relative to each other.

[120] Justice Nakatsura next summarizes the factors the court must assess:

16 In answering the question of whether the demand was made promptly upon the formulation of reasonable suspicion, it is helpful to assess:

• When was the reasonable suspicion formed?

• When was the ASD demand made?

• How long was the intervening period of time between the two?

• What were the police doing during this time and was the conduct reasonable in the circumstances?

[121] After quickly summarising his thinking on the four points above, Justice Nakatsura next describes situations in which delay may not be justified:

If the time period is longer, the police must explain why other duties or circumstances reasonably delayed the giving of the ASD demand once reasonable suspicion was formed. The assessment of whether this is reasonable should take into account the objectives of the legislation which balances the needs of law enforcement and civil liberties. In some cases, the reasonableness of the delay may be clear. For example, if an officer arrives at an accident scene where the safety of the public is of the utmost importance, taking steps to ensure this rather than giving a prompt demand would make the ensuing delay reasonably necessary. In other cases, where there is police indifference to their obligations, negligence, or a deliberate delay in giving the ASD demand in order to frustrate the objectives of the legislation, the demand will not have been given promptly. As the case law recognizes, there is no inflexible time limit that must invariably be met by the police.

That all said, it is my view, the fact that an ASD is not immediately at hand cannot be a valid reason for delaying the ASD demand. Once reasonable suspicion is formed, then an ASD demand should be given regardless of whether the officer needs to wait for its arrival. It may be a factor to consider in determining whether the immediacy of the response, the testing, has been met, but it cannot on its own delay justifying the giving of the demand. (Emphasis added)

Officer Safety

[122] In R. v. Kerr, [2010] O.J. No. 2222, Justice M. Green of this court heard evidence that the defendant, Tanya Kerr, was pulled over for a speeding investigation in Toronto just after 2am on 28 April 2009. She was subsequently charged with operating a motor vehicle while her blood alcohol concentration (BAC) was in excess of the legal limit. The defendant admitted to the officers that she had consumed alcohol at a bar prior to being pulled over. At 2:12 the investigating officer formed a reasonable suspicion that the driver had alcohol in her system. However, the officer delayed making the s. 254(2) ASD demand for reasons of “officer safety” to permit her partner to deal with the three other occupants in the vehicle. At 2:18 A.M. he demand was made and at 2:22 A.M. the driver registered a “fail”. At 2:27 A.M. the driver was arrested for “Over 80” and read her rights to counsel.

[123] Justice Green found that the 254(2) ASD demand was not made forthwith, and further, could not be justified, objectively, on the basis of “officer safety”.

[124] Justice Green stated at paragraphs 21& 22 of his reasons:

21 I have no difficulty finding that the demand here was not made forthwith. Rather than immediately, it was not first made until some six minutes after PC Tristao both formed the reasonable suspicion contained in s. 254(2) and determined that she intended to make the demand. There were no circumstances - at least none either expressed or otherwise evident - giving rise to a concern that a deferral of the roadside testing was essential to the integrity of the sampling process. Nor did accidents or emergencies legitimately detract the officer's attention. The only proffered reason for the delay was Tristao's personal practice of prioritizing a generalized concern for "officer safety" over the requirements of a statutory provision which has been construed in terms of immediacy so as to maintain constitutional grace.

22 Although rare, there may well be situations where immediacy may have to yield to legitimate concerns for public or officer safety. Such claim, however, cannot be indiscriminately or universally invoked so as to pre-empt constitutional compliance. Nor does the application of such exception fall to the subjective sensibility of each officer. There must be some objectively ascertainable foundation for such departure from a statutory imperative to avoid constitutional protections being held hostage to the unreviewable whim of law enforcement officers.

Impairment

[125] In R. v. Stellato, 1993 CanLII 3375 (ON CA), [1993] O. J. No. 18, (Ont. C. of A.), the issue to be decided was whether the trial judge had erred where the trial judge found that the accused was impaired, where the impairment was not a “marked departure” from normal driving behaviour. Justice Jean-Marc Labrosse, speaking for the court, stated:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (Emphasis added)

In the present case, the trial judge applied the correct test for impairment. There was sufficient evidence adduced at trial from which he could find that the Crown had proved, beyond a reasonable doubt, that the appellant's ability to operate a motor vehicle was impaired by alcohol at the material time. Consequently, the Summary Conviction Appeal court did not err in dismissing the appellant's appeal.

Analysis of the Evidence in Support of Count 1

Count 1 – The Allegation of “Impaired Driving”

[126] The only Crown witness to address Count 1, the allegation of the driving while impaired, was Constable Chaumont. (See paragraphs 42 to 77 of these reasons).

[127] In his testimony Constable Chaumont testified to potential hazardous road conditions and erratic driving that the officers were able to observe during the entire course of their attempted surreptitious following of Mr. Coutts vehicle, from their initial observations on Bloor Street West, to Mr. Coutts’ driving in the residential neighbourhood south of Bloor, up until the roadside stop and investigation of Mr. Coutts when his vehicle was parked in a cul-de-sac driveway at 57 Redcar Avenue.

[128] Mr. Hogan, in cross-examination, produced documentary material (See Exhibits A, 4, 5, 6 & 7) which, in my view, raised doubt as to Constable Chaumont’s observation’s and memory, to the extent that I am unable to conclude much from his testimony regarding Mr. Coutts’s manner of driving.

[129] After a review of the cross-examination of Constable Chaumont’s testimony about his own speeds, and his ability and opportunity to observe Mr. Coutts’ driving, I am not convinced of the accuracy of Constable Chaumont’s detailed descriptions of Mr. Coutts’ driving in his testimony before me.

[130] I am satisfied that he had grounds for a HWT Act roadside stop, based on his initial, very early observations on Bloor Street West, but that is about all I take from his extended testimony of his observations, while both vehicles were in the residential streets south of Bloor Street.

[131] I also find that these observations, because of their questionable reliability, don’t assist in an evaluation of “impairment.”

[132] Constable Chaumont testified that after all the observations he made of the driving, and after speaking to Mr. Coutts and observing his behaviour during a considerable period of time between 2:46 A.M. and 3:13 A.M. at which time he advised Mr. Coutts he was being arrested, he mistakenly told Mr. Coutts he was being arrested for “impaired driving”, and approximately five minutes later “corrected himself” and advised Mr. Coutts he was being arrested for “over 80”.

[133] In my view, this admitted confusion by Constable Chaumont as to the appropriate grounds to arrest Mr. Coutts are confirmed by the inadequacy of the Crown’s evidence as to the constituent elements of the offence of “impaired driving”.

[134] Constable Chaumont’s initial observations of Mr. Coutts’ driving on Bloor Street West did raise legitimate HWT concerns.

[135] Although Mr. Coutts failed the ASD at roadside, Constable Chaumont testified that Mr. Coutts had no difficulty getting out of his vehicle, walked normally to the scout car and didn’t exhibit typical signs of impairment.

[136] Constable Chaumont did testify to other matters, such as Mr. Coutts’ production of his HWA documents, and his manner of speaking, and his assertions that Mr. Coutts ended up driving “in a circle” through the residential streets south of Bloor, and “appeared to be lost”.

[137] However, none of those observations, in my view, provide a sufficient basis for a finding of impairment.

[138] In my view, on all the evidence, Count 1 has not been proven beyond a reasonable doubt.

Analysis of the evidence in support of Count 2

Count 2 – The Allegation of “Refusal to Comply with Breath Demand”

[139] Subject to the granting of a Charter remedy, the defence does not dispute the evidence of Constable Andrici, the Traffic Service’s breath technician as to Mr. Coutts’s responses to the request that he blow into the approved instrument.

[140] In my view the testimony of Constable Andrici provides ample evidence to make a finding against Mr. Coutts on Count 2, if the Charter application is unsuccessful.

The Charter Application

[141] I must now consider the defence submission that this court exclude that evidence, based upon the alleged breaches of his client’s Charter-protected rights under Sections 8, 10(a) and 10(b).

[142] In my view, the interdependent police obligations when searching a suspect in the “drinking & driving” context, flowing from these three sections and the provisions of Criminal Code Section 254 (2) may be summarized as follows:

(1) When a person is detained by the police, the peace officer must inform the person promptly of the reason therefore (R. v. Mueller, [2018] O.J. No. 2284, paragraph 3);

(2) In the drinking and driving context, once an officer has “reasonable suspicion that a detained motorist has alcohol in his system, must be made aware that the investigation has become criminal, rather than simply a matter of the Highway Traffic Act (R. v. Mueller, [2018] O.J. No. 2284, paragraph 27), R. v. Cole, 2017 ONCJ 83, [2017] O.J. No. 977);

(3) Section 254(2) of the Criminal Code provides that if a peace officer has “reasonable suspicion” that the person has alcohol in their body, they may require the driver to provide forthwith a sample of breath into an ASD (R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779);

(4) This requires the peace officer to make the demand immediately, subject to reasonable necessities to enable the officer to properly discharge their duty (R. v. Davloor, [2018 O.J. No. 757, paragraph 16);

(5) Section 10(b) requires that, on arrest or detention the detained driver has the right to retain and instruct counsel “without delay” (R. v. Soomal [2014] O.J. No. 2160, paragraph 38);

(6) This Section 10 (b) requirement requires the detained driver to be provided a reasonable opportunity to make contact with the lawyer of their choice (R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at p. 191);

(7) This 10 (b) requirement also requires the detainee to act diligently in seeking to exercise the right to contact counsel (R. v. Ali 2018 ONCJ 203, [2018] O.J. No. 1662, paragraph 55);

[143] In this investigation, the officer’s testimony was that he observed driving infractions throughout the time he followed Mr. Coutts vehicle south of the Bloor Street West traffic light.

[144] During this stage of the investigation, the police followed the Coutts’ vehicle, but did not activate their siren or lights, or require Mr. Coutts to pull over.

[145] As a result, the initial roadside encounter between the officers and Mr. Coutts occurred much later, and was captured on the officers’ in-car video camera, and the footage was placed in evidence in Exhibit 7.

[146] The testimony of Constable Chaumont is that during his initial contact with Mr. Coutts, at the roadside, between 2:52 and 2:55 A.M. he formed the requisite suspicion that Mr. Coutts had alcohol in his body, and decided that he was going to make a roadside ASD demand.

[147] He also testified, and Exhibit 7 confirms, that during this initial roadside interview, Mr. Coutts was polite, cooperative and compliant.

[148] However, rather than make the demand, he was concerned about Mr. Coutts’ outstanding charges and he and Constable Cicchirillo left Mr. Coutts sitting in his vehicle and returned to his scout car, where he and Constable Cicchirillo requested that back-up officers be directed to come to the scene.

[149] Constable Chaumont testified that at 3:04 back-up officers arrived at the scene, along with an ASD device and after briefing them, at 3:07 he returned to Mr. Coutts’ vehicle, and gave Mr. Coutts a roadside ASD demand.

[150] At 3:13 Mr. Coutts provided a suitable sample and registered a “Fail”.

[151] At 3:13 Constable Chaumont mistakenly advised Mr. Coutts he was under arrest for impaired operation.

[152] At 3:18 Constable Chaumont corrected himself, and told Mr. Coutts he was under arrest for “Over 80”, read him his right to counsel, and at 3:20, an approved instrument demand.

[153] Constable Chaumont testified that Mr. Coutts told him at this time that he wished to speak to a specific female lawyer, but would need to call his parents to get her name and number.

[154] Constable Chaumont specifically told him that he would have to wait until he was taken to traffic services, top make a phone call.

254 Requirement that ASD Demand made “forthwith” and that the officers comply with the Charter-protected 10(a) and (b) rights

[155] In my view, at 2:55, when Constable Chaumont instructed Mr. Coutts to “sit tight” and stay in his car, he was detained and should have been informed promptly of the reason for that detention.

[156] I further find that the formal ASD demand at 3:09 AM was not made “forthwith”.

[157] In addition, the Charter 10(b) Caution at 3:18 AM was not made “without delay”.

[158] Finally, I find that, given the time period between 2:55 AM and 3:18 AM, there would have been an opportunity for Mr. Coutts to call his parents and thus possibly discover the name of and speak with his counsel of choice, at the roadside, but the officers did not permit him to do so, thus breaching second part of his Charter 10(b) right to retain and instruct counsel “without delay”.

Officer Safety & A Reasonable Opportunity to Consult Lawyer of Choice

[159] The caselaw make’s clear that “officer safety” cannot be used as an “indiscriminate” excuse to avoid constitutional compliance. (See R. v. Kerr, cited above.)

[160] In the case at bar, the officer’s had discovered that Mr. Coutts had charges before the court of Assault resist arrest, Threatening Death and Weapons Dangerous, before they approached his vehicle.

[161] Thus, this meant the officers stated concern for officer safety was not indiscriminate.

[162] However, the officers failed to consider or weigh all the factors at their disposal, once they spoke to Mr. Coutts.

[163] During their initial interview with him, he was calm, polite, and compliant.

[164] As evident both from the police video, and the testimony of Constable Chaumont, there was nothing menacing about Mr. Coutts’ behaviour, at roadside.

[165] Thus, I find, on the facts in this case, that “officer safety” as a reasonable factor to consider, was engaged.

[166] However, I also find, after a review of all the facts, including Mr. Coutts compliant behaviour, “officer safety” was not a reasonable justification for the failure to make the ASD demand at 2:55.

[167] When the HWT stop resulted in a suspicion of a possible Criminal Code offence, his potential legal jeopardy was greater.

[168] In my view, there were no exigent circumstances that would have not permitted the roadside ASD demand and the informational content of Sections 10 (a) to have been given.

[169] I also find that when Mr. Coutts was arrested and cautioned at 3:18, and indicated his wish to speak to his parents and establish the contact information of a “female lawyer” the arresting officers did not assist Mr. Coutts in reaching this female lawyer at the roadside.

[170] Mr. Coutts was simply advised that he would have an opportunity to use a phone to call his parents at the station.

[171] If Mr. Coutts had been cautioned at 2:55, when Constable Chaumont testified he had a suspicion that Mr. Coutts had alcohol in his body, and permitted to call his parents, he might have had an opportunity to reach this lawyer.

Was the failure of the police to permit him to call his parents at the roadside cured by his speaking to duty counsel at Traffic Services?

[172] Constable Chaumont testified that at 3:23 he departed with Mr. Coutts in his custody to Traffic Services, 9 Hanna Avenue in downtown Toronto, the location of the nearest Qualified Breath Technician, and arrived at 3:42 A.M., with no stops on the way.

[173] Mr. Coutts was paraded at 3:44.

[174] Constable Chaumont testified that Mr. Coutts again was advised that he had a right to consult a lawyer, and Mr. Coutts told him that he no longer wished to speak to his parents because of the late hour.

[175] Constable Chaumont testified that at this time Mr. Coutts was offered the assistance of duty counsel, and agreed to do so.

[176] As a result Mr. Coutts spoke to Duty Counsel J. Murphy from 4:12 to 4:15.

[177] The defence submits that essentially, this series of events resulted in a denial to Mr. Coutts right to consult “counsel of choice”.

[178] The defence submits that although Mr. Coutts was told he would be given an opportunity to use a phone at the station, the police did not, in fact, cause that to happen.

[179] The defence further submits that a number of things could have been done differently at this juncture: Mr. Coutts could have been simply permitted to use the phone to call his parents, or further steps could have been taken to locate the “female lawyer” by use of phone books or the internet.

[180] Thus, the defence submits, Mr. Coutts speaking to duty counsel at 4:05 did not cure the 10(b) problem.

[181] On the facts of this case, I do not agree.

[182] In my view, the officers initially created unnecessary delays at roadside in providing Mr. Coutts the informational components of Section 10.

[183] But I find that, in the end, he was provided with a reasonable opportunity to make contact with the lawyer of his choice.

[184] I further accept the officer’s testimony that he agreed to speak to duty counsel, and did not further pursue his request for a specific lawyer.

[185] I accept the Crown submission that because Mr. Coutts was unable to “name” the lawyer, it would be extremely speculative to suggest, as the defence does, that a phone call to his parents, or the use of a phone book or the internet would have located the “female lawyer”.

[186] I find that Mr. Coutts was offered and accepted the opportunity to speak to Duty Counsel.

[187] Thus, in my view, he did not “diligently” pursue the “lawyer of choice” option, which is a factor highlighted in the reported cases.

[188] As a result, I find that the defence has not established on a balance of probabilities that that Mr. Coutts Charter-protected rights under 10 (b) were breached.

[189] However, I do find Mr. Coutts Sections 8, 10(a) Charter-protected rights to know the reason for his continued detention at roadside have been breached, following the reasoning of Justice Schreck in R. v. Meuller, paragraphs 22, 25, 29 & 33.

Remedies

Should the Evidence of Mr. Coutts Refusal to Provide a Breath Sample Be Excluded Under s. 24(2) of the Charter?

[190] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out the criteria for exclusion of evidence:

(1) The seriousness of the Charter violation;

(2) The significance of the impact of the Charter violation; and

(3) The societal interest in having the case adjudicated on its merits.

Seriousness of the Breach

[191] In R. v. Orbanski, Justice Charron stated, speaking of a 10(b) Right to Counsel breach:

101 In the present case, as the Court of Appeal found, although the evidence is conscriptive, the breach does not warrant exclusion of the evidence. The Charter rights at stake are important, but not every Charter breach rises to the same level of seriousness and requires the same kind of remedy, especially the exclusion of evidence. Courts must carefully review the circumstances and nature of the infringement.

[192] As Justice Charron emphasises in her judgment, at paragraph 104, “significance” as understood in the cases following Grant, is a reference to the impact of the Charter breach on trial fairness.

[193] In R. v. Meuller, Justice Schreck stated, speaking of a 10(a) breach on the facts of that case, which involved findings by the trial judge of additional section 8 & 9 breaches:

With respect to the first factor in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the seriousness of the breach, the trial judge found that there was no deliberate misconduct by the police and that any errors they made with respect to the decision to arrest the appellant or the timing of the breath demand were made in good faith.

[194] There are two ways by which the seriousness of the Charter violation may increase, in addition to the impact on trial fairness:

(1) First, the individual actions of the police officers actually responsible for the constitutional misconduct may be considered more serious because they evidence a wilful or reckless disregard for the Charter;

(2) Second, institutional failings which contributed to the officers' constitutional misconduct may also render the Charter violation more serious.

[195] The defence submits that Constable Chaumont’s testimony showed a willingness to mislead the court regarding a number of factors, including the weather conditions, his ability to observe Mr. Coutts, and Mr. Coutts conduct in agreeing to speak to duty counsel.

[196] I have already found that Constable Chaumont was not a reliable witness regarding a portion of the crucial early stages of the investigation, when the police were driving some considerable distance behind the Coutts’ vehicle.

[197] However, Constable Chaumont was also a witness who was candid in his testimony, and openly acknowledged his own mistakes, on more than one aspect of his conduct of the investigation.

[198] In my view, the police had sufficient HTA reasons to make a roadside stop and investigation once they observed the initial driving on Bloor Street.

[199] In my view, all the other observations of driving Chaumont claimed to have made, prior to the roadside investigation at 57 Redcar Avenue, were superfluous, and did not have any impact on trial fairness.

[200] Finally, I am not prepared to conclude that his testimony, as a whole, was a deliberate attempt to mislead this court on material matters.

[201] As a result, in my view, Constable Chaumont’s testimony does not, in my view, increase the seriousness of the Charter breaches.

[202] Mr. Coutts was provided the opportunity to speak to duty counsel, and exercised that right.

[203] Thus, this makes the Charter breach less serious. (See R. v. Littleford 2001 CanLII 8559 (ON CA), [2001] O. J. No. 2437 (Ont. C. of A.)

The seriousness of the impact of the Charter violation for the accused

[204] In Meuller, Justice Schreck concluded that the enumerated Charter breaches did not warrant exclusion of the evidence.

[205] Justice Schreck stated:

38 With respect to the second Grant factor, the trial judge found that the Charter breaches had had only a minimal impact on the applicant's Charter-protected interests. I come to the same conclusion with respect to the s. 10(a) breach. While the applicant was not initially advised of the reasons for his detention, he was advised soon afterwards, at the time of his arrest. No utterances or observations made by the police during the interim were used to incriminate him.

39 With respect to the third Grant factor, as the trial judge observed, this almost always favours inclusion in drinking and driving cases.

40 The real issue is whether the increase in the seriousness of the breach that results from the fact that there were three rather than two Charter breaches tips the balance in favour of exclusion. In my view, it does not. While the degree of seriousness of is increased, this is still not a case involving an intentional or flagrant disregard of the Charter and the second and third Grant factors do not favour exclusion. A balancing of all three factors leads to the conclusion that admitting the evidence would not bring the administration of justice into disrepute.

[206] In a similar manner, I have come to the same conclusion with respect to the Charter breaches in this case.

[207] Mr. Coutts was not initially advised of the reasons for his detention, but he was advised soon afterwards, at the time of his arrest.

[208] No utterances or observations made by the police during the interim between the officers’ initial investigation, and the arrival of the ASD, the ASD caution and the administration of the ASD were used to incriminate him.

The Societal Interest in having the case adjudicated on its merits

[209] As noted above this factor almost always favours inclusion in the drinking and driving context, and on the facts before me in this case, I find that this factor favours inclusion.

[210] On reviewing the Grant factors, I cannot conclude that the Charter breaches herein went to the fairness of the trial, and thus do not warrant the exclusion of the evidence of Mr. Coutts’ refusal to provide a breath sample into an approved instrument, at Traffic Services.

[211] I therefore find that to exclude the evidence, would bring the administration of justice into disrepute.

Conclusion

[212] As a result, Count 1 will be dismissed, and Mr. Coutts will be found guilty of Count 2.

Released: 4 March 2019

Signed: “Justice Paul H. Reinhardt”