Court File and Parties

Court File No.: 17-15001484 Date: 2019-04-30 Ontario Court of Justice Toronto – Old City Hall

Between: Her Majesty the Queen — and — Kalie Dolbear

Before: Justice H. Pringle

Heard on: May 7-8, 2018, August 9, 2018, September 21, 2018, January 25, 2019 and March 29, 2019

Reasons for Judgment released on: April 30, 2019

Counsel:

• Marnie Goldenberg, counsel for the Crown
• Mayssia Elajami, counsel for the defendant

Judgment

PRINGLE J.:

The Defendant's Driving Behaviour

[1] A car, driving erratically along Lakeshore, caught the attention of Justin Perdue as he drove home from work one day. The first thing he noticed was the car's slow reaction to a changing traffic light near Fort York. This car, which had the green light, only proceeded through the intersection after someone honked at it.

[2] Mr. Perdue began to keep an eye on this car, a Hyundai, as it drove. It had trouble maintaining a consistent lane. At the next traffic light, this vehicle was slow to respond to the red light, and almost hit the rear of the car in front of it.

[3] Concerned, Mr. Perdue called 911 to report a suspected impaired driver. He followed this Hyundai from a safe distance, observing it continued to have trouble maintaining a lane. Traffic was heavy, given that it was about 5:30 p.m., yet other cars on Lakeshore seemed to give the Hyundai a wide berth.

[4] Reaching Lakeshore and Jameson, the Hyundai swerved to the left and hit a curb quite hard. Mr. Perdue noticed damage to the front driver's side quarter panel, inconsistent with where the car had just struck the curb. He kept watching and following.

[5] At the next red light, he stopped next to the Hyundai and looked inside. The defendant was in the driver's seat, and appeared to be asleep at the wheel. When the light turned green, she was slow to proceed through the intersection. Mr. Perdue pulled ahead of her, afraid to come too close to the car again because of, in his words, the "erratic" driving.

[6] Through his rear view mirror, Mr. Perdue saw a truck pull near the Hyundai. The two drivers seemed to communicate, and then both pulled over. As Mr. Perdue continued on his way, he saw the defendant step out and walk over to this truck.

[7] The truck's driver was Shahriar Ebrahimi-Nazari. He had been heading along Lakeshore to work when a car rear-ended his truck with moderate force. This other vehicle, driven by the defendant, did not stop after the accident. So he followed her, honking the whole time, until she waved him over. This gave Mr. Ebrahimi-Nazari the chance to observe the defendant's driving, which he also described as "erratic".

[8] Once out of her car, the defendant apologized, explaining that someone was chasing her. Mr. Ebrahimi-Nazari told her to wait for police and so she did.

Investigative Steps and Roadside Demands Made

[9] Moments later, at 5:40 p.m., PC Haroon and PC Papamanolis arrived on scene in response to Mr. Perdue's 911 call. They knew, from dispatch, that the driver was female, that the car was a Hyundai, and that it was currently stopped at the side of the road near Windermere Avenue. They had its licence plate number from Mr. Perdue. They knew the Hyundai had hit a curb, was frequently changing lanes, and appeared damaged. Mr. Perdue reported suspecting the driver was impaired.

[10] On scene, the officers saw a damaged car, with a matching licence plate, parked at the side of the road. The defendant was sitting in the passenger seat. A black pick-up truck was parked behind it. The officers split up to separately interview the drivers of each vehicle, these being Mr. Ebrahimi-Nazari and Ms. Dolbear.

[11] The defendant told Cst. Papamanolis that she had been in a collision, was at fault for it, and had apologized. When she stepped out of her vehicle, Cst. Papamanolis noticed she had problems standing and was leaning against the vehicle to keep balance. Her face looked tired. Her eyelids were "droopy", her pupils were dilated, and her speech was slow. Officer Papamanolis detected no smell of alcohol on her breath.

[12] Meanwhile, Mr. Ebrahimi-Nazari told Cst. Haroon that the defendant hit his truck and failed to stop. From a distance, Cst. Haroon assessed the defendant's appearance. She seemed to have been drinking, given a sluggish demeanour and an apparent lack of alertness. The officers decided to call for an approved screening device to be brought to the scene, out of an abundance of caution.

[13] Cst. Haroon then spoke with the defendant directly. She denied drinking any alcohol and did not smell of alcohol. But based on her sluggish demeanour, the accident, and the erratic driving reported by witnesses and in the text of the 911 call, he suspected she had alcohol in her body. He demanded she provide a breath sample into an approved screening device. The defendant understood.

[14] The officers and the defendant waited for the arrival of the approved screening device. As they did, Cst. Haroon continued to make observations of the defendant's physical demeanour. He noticed she had trouble standing on her own, needing to lean against the car or the concrete highway barriers. While her breath remained alcohol-free, Cst. Haroon detected a foul smell coming from her breath. He associated this odour, based on his policing experience, as being from a very dry mouth and common with drug users.

[15] The two talked a bit more. The defendant explained she had not slept in a while and had a sinus problem. She continued to deny alcohol use, but said she had taken ½ a Xanax pill 12 hours prior. Cst. Haroon knew this did not explain the demeanour he was seeing. He asked about the damage to her car, and the defendant acknowledged being in another accident earlier that same day. Police attending that earlier accident scene, she added, had required her to blow into an approved screening device.

[16] Based on this information and his continued observations of the defendant's physical demeanour, Cst. Haroon's suspicion about alcohol lessened. He began to re-evaluate all information he had received thus far, in order to assess other causes such as health concerns, exhaustion, or drug use.

[17] A friend of the defendant had arrived on scene, and Cst. Haroon spoke with her in an attempt to understand the defendant's demeanour better. He then spoke to the truck driver, Mr. Ebrahimi-Nazari, about the accident again. He re-read the text of the 911 call, which contained Mr. Perdue's real-time observations of the defendant's driving. Finally, he reviewed information about the other accident that the defendant had been in earlier.

[18] Meanwhile, Officer Papamanolis spoke with the defendant, who admitted she had consumed both Xanax and cocaine that day. It is unclear whether, at this juncture, Cst. Papamanolis told Cst. Haroon about this admission.

[19] After his review, Cst. Haroon's re-assessment ruled out both alcohol and health concerns as explanations for her driving and demeanour. Instead, he suspected the cause to be drug consumption. Because his suspicion, at this stage, fell short of reasonable grounds to arrest for impaired driving by drug, at 5:55 p.m., Cst. Haroon made a SFST (standard field sobriety test) demand. The defendant understood.

[20] The SFST demand permits three limited physical coordination tests, all of which are designed to assess impairment by drugs or alcohol. But Cst. Haroon was not SFST-trained. Shortly before 6:00 p.m., a request went out for an SFST-trained officer to attend.

[21] The officers and Ms. Dolbear continued to wait by the roadside, this time for the SFST-trained officer. Cst. Haroon used this time to explain the process to her. He did not, however, provide the defendant with her rights to counsel or a caution. Generically, Cst. Haroon asked if she wished to speak to "anyone" and the defendant declined.

[22] While waiting, the defendant's symptoms worsened. She seemed drunk. Her breath continued to emit this foul smell that Cst. Haroon associated with drug use. She appeared confused, had no ID on her and did not know where her driver's licence was. Her speech became increasingly slurred. Her eyelids drooped, and during conversation she appeared to focus out, as though she wanted to sleep. When not leaning against some object, the defendant had difficulty standing straight up.

The Defendant's Arrest

[23] Having watched these physical indicia grow, and given the reports of aberrant driving and two separate car accidents, Cst. Haroon now believed the defendant's driving ability was impaired by drug use. At 6:20 p.m., he arrested Ms. Dolbear for driving while her ability to do so was impaired by a drug. The defendant sighed upon arrest, saying, "I know".

[24] The defendant was advised of her right to retain and instruct counsel. When she asked if she wished to call a lawyer now, she invoked her right to counsel and replied, "Yes". Officer Haroon then read the DRE demand to Ms. Dolbear. She understood. She was cuffed, placed in the scout car's rear seat, and the car departed.

[25] Moments later, the SFST-trained officer arrived, but the defendant and the arresting officers were gone. This officer, Cst. Bullock, was told the defendant was en route to Traffic Services, and that his services as a DRE-trained officer would be required there. He departed.

[26] Meanwhile, Ms. Dolbear was being transported to Traffic Services. A scout car video of her transport was made part of the Crown's case. It corroborated the indicia described by Csts. Papamanolis and Haroon. On video, the defendant conversed with the officers, responsively, but slurring her words somewhat. Her eyes were heavy-lidded. At times, she had trouble sitting up straight, although her fine motor skills were sufficient to slip one hand out of her cuffs and scratch her nose. Ms. Dolbear fell into a deep sleep, so deep that the officers had great difficulty waking her up when they arrived at the station.

Waiver of Right to Counsel

[27] At 6:48 p.m., the parading process began. At the direction of the staff sergeant, Cst. Haroon read Ms. Dolbear the informational component of her right to counsel form a sign on the wall. The following exchange then transpired:

OFFICER: Do you understand?

DEFENDANT: Not totally.

OFFICER: Which part?

DEFENDANT: Just like the process, like everything right now.

OFFICER: No just from this part, which part did you not understand?

DEFENDANT: Cause like I don't have a lawyer so I would obviously contact…

OFFICER: (speaks over her) So this is the part that says if you are charged with an offence, you may call the Legal Aid plan…

DEFENDANT: Okay

OFFICER: …so that's in layman terms that's a free lawyer.

DEFENDANT: Okay.

OFFICER: Okay? So do you understand that part?

DEFENDANT: Yeah.

OFFICER: Do you wish to call a lawyer now?

DEFENDANT: (inaudible response)

OFFICER: We will provide that number, it's right here.

DEFENDANT: Okay.

OFFICER: Okay. So would you like to call a lawyer now, or do you wish to call a lawyer now?

DEFENDANT: Um sure I guess. (inaudible response) I've never done this before, I don't know what I'm doing.

OFFICER: Okay, I'll explain, we'll explain everything.

[28] The defendant was then booked. During this process, the booking sergeant advised her that she was not charged with anything right now, and that she was at the station for further testing. He also informed Ms. Dolbear that if she wants to call a lawyer, they can get her in touch with duty counsel which is free. To this, the defendant replied, "Okay".

[29] She was removed from the booking room moments before 7:00 p.m., and placed in an interview room. There, Cst. Haroon asked if Ms. Dolbear wanted her own lawyer or duty counsel, and explained in "layman" terms the "process" and free legal advice provided by the province. He also explained why she was at the police station and broke down what would happen from that point on.

[30] The gist of Ms. Dolbear's reply, after hearing this explanation, was that she did not want to talk to a lawyer. She wanted to get the test done and get on with her day. Cst. Papamanolis, who was present in the interview room as well, recalled the defendant declining counsel and saying something to the effect of wanting to finish up.

Drug Recognition Evaluation and Expert Opinion

[31] Cst. Bullock arrived at the station at 6:45 p.m. Shortly afterwards, he spoke to officers Haroon and Papamanolis, and globally learned their grounds for arrest were:

• Ms. Dolbear had been in a car accident and failed to stop;
• she had trouble standing and had to lean against her vehicle as a result;
• her breath smelled of drug use;
• her eyelids were "droopy" and her eyes dilated;
• her speech was slurred and her answers did not make sense;
• she had trouble producing identification;
• she admitted taking Xanax and cocaine at 5:30 in the morning.

This information provided Cst. Bullock with grounds to conduct a drug evaluation test. At 7:20 pm, the defendant was brought into the DRE room. Cst. Bullock asked if she wanted to speak to a lawyer, and the defendant said she did not.

[32] He then conducted a DRE evaluation of Ms. Dolbear, with all twelve steps explained to her during the process. The evaluating steps and results were:

• A visual check of her eyes, which were a "bit" dilated, and her pulse, which was normal;

• Three eye tests which showed:

  • (a) a lack of smooth pursuit (pupils tracking a moving object smoothly or not);
  • (b) the distinct and sustained nystagmus at maximum deviation (involuntary eye twitching/jerking while focusing on object held outwards);
  • (c) involuntary eye twitching/jerking when focusing on object held vertically), and;
  • (d) a lack of convergence (inability to cross eyes);

• The Divided Attention Tests, which showed:

  • (a) the defendant's internal clock, so to speak, was normal;
  • (b) a poor performance on the 'walk and turn' test, which assesses ability to follow simple but multi-faceted instructions;
  • (c) a poor performance on the "one-leg stand" test, which assesses balance and ability to follow simple but multi-faceted instructions;
  • (d) a good performance on the 'finger to nose' test, which assessed co-ordination and ability to follow instructions.

• A second pulse check, again in the normal range;

• A temperature check which was slightly below normal;

• A blood pressure check which was normal;

• Checks of her pupils in a dark room, which showed her pupils remaining slightly dilated in near total darkness, a normal pupil function when light was shined in the eyes, and a slow reaction to light;

• A visual check of her face, which showed her left nostril was a bit bloody, a white coating was visible on her tongue, and her lips were very dry.

• A muscle tone check which showed no physical signs of needle use and that her muscle tone was flaccid;

• A third pulse check showed the defendant's pulse remained normal range, and;

• The final stage, Interview Statements and Other Observations, which revealed the defendant to be cheerful and talkative, her speech slow and slurred but comprehensible, her tongue and lips remained dry, her face was flushed, and her eyelids "droopy". During this stage, the defendant admitted to taking ½ a Xanax earlier and to snorting "a few lines" of cocaine at 12:30 p.m.

[33] Overall, Cst. Bullock evaluated the defendant as being impaired, in his opinion, either by a CNS (Central Nervous System) depressant or a CNS stimulant. At 8:16 p.m. he demanded she provide a sample of her urine. This was provided by 8:20 p.m. and sealed for later analysis.

[34] Dr. Daryl Mayers testified about the urine test results. He was qualified, on consent, as an expert in the area of absorption, distribution, and elimination of alcohol, drugs and poisons in the human body; the effects of alcohol, drugs and poisons in the human body; the analysis of alcohol, drugs and poisons in biological samples; and the pharmacological and toxicological effects of alcohol, drugs and poisons on the central nervous system and on the ability to operate a motor vehicle. His qualifications and evidence were unchallenged.

[35] The defendant's urine sample results tested positive for exposure to:

• Xanax, a CNS depressant which can make a person tired, drowsy, sedated, and can impair judgment by slowing down the brain's ability to process information;
• Diphenhydramine, an antihistamine used for allergies and, as another CNS depressant, can cause some sedation;
• Ephedrine, a stimulant which is a decongestant;
• Cocaine, a CNS stimulant which can focus alertness on simple tasks, but does not assist in complex driving tasks and does not "cancel out" the effects of CNS depressants;
• MDMA, which is a stimulant with hallucinogenic effects that can lead to impulsive, risk-taking behaviour and a diminished ability to focus on tasks.

[36] All of these drugs, if they were present in significant concentrations of Ms. Dolbear's blood while she was driving, could cause impairment in Dr. Mayers' opinion. These drugs could cause unsteadiness, lack of co-ordination, and slurred speech. Presence of such outward signs can evidence an excess of tolerance level and supports a conclusion of impairment.

[37] In addition, he added, after cocaine has been metabolized and the drug is out of the body, a "crash" phase can occur which mimicks the effects of a CNS depressant. In his opinion, the ability of a person, who is truly in this 'crash' phase directly attributable to drugs, to operate a motor vehicle will be impaired. Pupils expand, vision can be blurred, alertness will be affected, and extreme fatigue may ensue. It was not unheard of, Dr. Mayers added, to have people in this state fall asleep at the wheel.

Assessment of the Crown Witnesses

[38] The testimony of both civilians and the police officers were not substantively challenged in cross-examination. I agree with this assessment. Both officers presented as both credible and, with a few non-material exceptions, reliable. So, too, were the DRE evaluator and Dr. Mayers. Justin Perdue was careful, consistent, and detailed. Shahriar Ebrahimi-Nazari did not have a strong memory of events, and needed his memory refreshed. However, I accept his testimony about the accident and the defendant's erratic driving. No defence evidence was called on either voir dire or at trial.

[39] The question is not which version of evidence I believe, but what conclusions should be drawn from largely uncontested facts. I describe the facts as "largely uncontested" because in arguing about waiver of counsel, Ms. Elajami noted that police notes on this issue were sparse when compared to their viva voce testimony, and questioned the validity of their recall. Clearly, I must engage in a fact-finding exercise in deciding whether the Crown has discharged their burden to prove waiver of counsel. In addition, the booking room video was difficult to hear, and I have made findings of fact as to what was said.

[40] No defence evidence was called on either voir dire or trial. Ms. Elajami, on behalf of Ms. Dolbear, argued several Charter breaches.

Analysis of the Charter Issues

[41] Turning to the Charter arguments advanced, the defendant argues:

(i) The arresting officer did not have reasonable suspicion to make the approved screening device demand;

(ii) The arresting officer did not have reasonable suspicion to make the SFST demand;

(iii) The SFST testing was not conducted forthwith, causing the demand to fall outside the statutory regime and breaching s. 8 and s. 10(b);

(iv) The defendant was not advised of various changes in the investigation's focus, breaching her rights under s. 10(a);

(v) The defendant was arbitrarily detained contrary to s. 9, and, finally;

(vi) At the station, the defendant did not provide an informed and unequivocal waiver of her right to retain and instruct counsel.

[42] In assessing these arguments, I have found the times of relevant events to be:

• 5:40 p.m. police arrive on scene;
• 5:45 p.m. the approved screening device demand is read;
• 5:55 p.m. the SFST demand is made;
• 6:20 p.m. the defendant is arrested for impaired driving;
• 6:20 p.m. rights to counsel are read for the first time and the defendant says she wishes to speak to a lawyer;
• 6:21 p.m. DRE demand is made;
• 6:30 p.m. the scout car leaves the roadside scene;
• 6:41 p.m. the scout car arrives at the station;
• 6:48 p.m. the defendant is led to the booking sergeant;
• 7:00 p.m. the defendant is in the interview room, where after a conversation with Cst. Haroon she declines to contact counsel, and;
• 7:20 p.m. the defendant is brought to the DRE officer and the evaluation process begins.

(i) Reasonable Suspicion for the Approved Screening Device Demand

[43] Cst. Haroon had reasonable suspicion to make the approved screening device demand. While investigating the accident and impaired driving complaint, he observed the defendant's physical appearance and behaviour. He also, permissibly, relied on hearsay information from speaking with Mr. Perdue, from the text of the 911 call, and from Mr. Ebrahimi-Nazari's interview.

[44] Using these sources of information, Cst. Haroon knew:

• Ms. Dolbear's demeanour was sluggish, lethargic, and appeared consistent with someone who had been drinking alcohol;
• Mr. Perdue had observed the defendant driving erratically along Lakeshore;
• Mr. Perdue had observed the defendant's car hit a curb while driving;
• The defendant's licence plate matched the licence plate reported by Mr. Perdue as belonging to a suspected impaired driver;
• The defendant had, very recently, rear-ended Mr. Ebrahimi-Nazari's truck with some force;
• The defendant failed to stop after rear-ending this truck;
• Mr. Ebrahimi-Nazari had to follow the defendant's car, for some distance, honking all the while, before she pulled over;
• While following her, Mr. Ebrahimi-Nazari observed the defendant's driving to be erratic, and;
• There was damage visible on the defendant's car, inconsistent with rear-ending Mr. Ebrahimi-Nazari's truck.

[45] To justify an approved screening device demand, the officer need only suspect that the driver has alcohol in their body. This is not a high threshold. The smell of alcohol on a detainee is not a prerequisite to holding that suspicion reasonably. The enumerated factors, above, cumulatively provide an objectively reasonably basis for that suspicion. The physical indicia and her driving behaviour reasonably supported an inference of alcohol consumption, even absent the smell of alcohol. The approved screening device demand was properly based.

[46] The ASD demand was made as soon as that reasonable suspicion formed. Cst. Haroon arrived on scene at 5:40 p.m., to investigate Mr. Perdue's complaint of an impaired driver. He knew the substance of this complaint from the text of the call. He issued the approved screening device demand at 5:45 p.m. In that five minute time period, he made visual observations of the defendant from a distance and he interviewed Mr. Ebrahimi-Nazari about the accident.

[47] After this interview, Cst. Haroon had reasonable suspicion of alcohol consumption. He approached the defendant and issued the approved screening device demand immediately. It was made forthwith. The evidence does not suggest any other conclusion.

(ii) Reasonable Suspicion for the Standard Field Sobriety Test Demand

[48] After making the ASD demand, Cst. Haroon waited from 5:45 pm to 5:55 pm for the device to be brought. He continued to re-assess his suspicion during those ten minutes. The defendant's sluggishness remained constant. She had trouble standing on her own. She denied drinking and her breath did not smell of alcohol. It did have a foul odour that Cst. Haroon associated with drug use.

[49] Ms. Dolbear admitted consuming a small amount of Xanax, albeit hours prior. She admitted being in another car accident, earlier that day, where she had to blow into an approved screening device. It was a logical inference that, because she was still driving, she passed.

[50] Cst. Haroon spoke with the defendant's friend, attempting to understand her physical indicia. He interviewed the truck driver again. He read the contents of Mr. Perdue's 911 call again. He reviewed a report about the defendant's car accident earlier.

[51] Based on all information received, plus her physical demeanour, the officer ruled out both health concerns and alcohol consumption as explanations. He properly called the approved screening device off. His suspicion had developed that the defendant's impairment arose from drug consumption. At 5:55 p.m., Cst. Haroon made an SFST demand.

[52] The defendant challenges the reasonableness of this suspicion. I find Cst. Haroon's suspicion of drug consumption was well founded and objectively reasonable. The factors in paragraph 44 support this conclusion as well. More particularly,

• the defendant had been in two car accidents on the same day, the first which seemed to rule out alcohol;
• after the accident with Mr. Ebrahimi-Nazari, Mr. Perdue saw her driving erratically along Lakeshore;
• at one point, Justin Perdue saw her car swerve and hit the curb;
• her erratic driving was consistent over time and distance;
• once she was out of her car, Ms. Dolbear exhibited significant physical indicia of impairment;
• she admitted to some consumption of Xanax, albeit to a small amount 12 hours earlier, and;
• a foul smell emanated from her breath, which Cst. Haroon associated with drug use based on his policing experience.

[53] Combined together, these factors easily met the low requisite threshold. An SFST demand, being the equivalent of an approved screening device demand, only requires reasonable grounds to suspect that a person has either alcohol or a drug in their body and has driven in the past three hours. Like the requirement for an approved screening device demand, it is consumption of alcohol or drug that is the subject matter of suspicion. It is not whether the defendant has committed a criminal offence.

[54] A factor like the scent of the defendant's breath, standing alone, would likely be of little value. But it does play a proper role in my cumulative assessment. Cst. Haroon suspected Ms. Dolbear had a drug in her body, and the above factors amply justify his suspicion as reasonable. Also, the SFST demand was made immediately after he developed this suspicion, meeting the "forthwith" requirement.

(iii) The SFST Demand, Conducting the Test "Forthwith", and s. 10(b)

[55] While waiting for an SFST-trained officer to arrive, Cst. Haroon did not inform the defendant about her constitutional right to retain and instruct counsel. He did not provide her with an opportunity to call counsel. No doubt this was because he knew that a detainee's s. 10(b) rights are suspended following an SFST demand. However, the constitutional validity of that suspension has limits. When I considered all the circumstances, I found those limits were exceeded here.

[56] The legislation and jurisprudence governing ASD samples apply to SFST tests. As per s. 254(2), an approved screening device sample must be produced "forthwith" after the demand. The time between demand and test must be limited, to ensure that a person's s. 10(b) rights are suspended only as necessary.

[57] The question of whether suspension of s. 10(b) rights is justified or constitutionally violative is answered by R. v. Quansah, 2012 ONCA 123. Quansah says that forthwith does not mean immediately, or without delay, or within a reasonable time. The issue requires a flexible approach. Thus 'forthwith' means, as per Quansah at paragraph 53, "no more than the time that is reasonably necessary to enable the officer to do his duty …. between the stop and the providing of the sample" on the facts of each case.

[58] All circumstances must be considered, and these five factors must be balanced:

• First, the analysis of the forthwith or immediacy requirement must always be done contextually. Court must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

• Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the state of reasonable suspicion.

• Third, 'forthwith' connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

• Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate approved screening device test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

• Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the 'forthwith' criterion is not met.

[59] In the case at bar, Cst. Haroon was not attending to public safety related duties. He was simply waiting, along with the defendant, for an SFST-trained officer to attend. This is akin to waiting for an approved screening device to be brought. It is a perfectly-legitimate reason for delay.

[60] The SFST officer did not arrive until after Cst. Haroon had formed reasonable grounds for an impaired arrest. Twenty-five minutes passed between the SFST demand and the moment Cst. Haroon reached reasonable and probable grounds. This twenty-five minute delay was prefaced by a ten-minute delay spent waiting for an ASD. In my opinion, I must consider this entire thirty-five minute timeframe in assessing the s. 10(b) argument. From 5:45 p.m., Cst. Haroon suspected the defendant had either alcohol or a drug in her body. It is academic, from a 10(b) perspective, which substance he suspected it was.

[61] Even though the officer was right to revise his demand for an ASD to an SFST when his suspicion shifted, the defendant's s. 10(b) rights had already been suspended for ten minutes. Cst. Haroon should have been mindful of that, as they waited for the SFST officer for another twenty-five minutes.

[62] In all the circumstances, I cannot call this thirty-five minute time period reasonably necessary. On a balance of probabilities, I find it was not. Cst. Haroon was attending to no duty other than waiting with the defendant. Other officers on scene were attending to traffic safety concerns. Unlike the defendant in R. v. Imrie, 2017 ONCJ 383, Ms. Dolbear had been entirely co-operative and was not a safety concern. The officer should have informed Ms. Dolbear of her right to retain and instruct counsel. More specifically, I agree with Imrie, and McLean J.'s conclusion on this point. Rights to counsel should have been read once the officer realized the SFST officer's arrival was, or would be, unduly delayed.

[63] Unlike the facts of Imrie, however, in Ms. Dolbear's case I find that police could have realistically implemented her right to counsel in this thirty-five minute timeframe. Here I have considered and applied R. v. George. It was not the middle of the night, but 6 p.m. on a weekday. 24-hour duty counsel advice was, of course, available if she wished it.

[64] I also find that Ms. Dolbear was in possession of a cell phone that she could have used to contact counsel at the roadside, if she wished. The most reasonable inference to be drawn from Ms. Dolbear's friend appearing on scene was that Ms. Dolbear called her there. Indeed, in today's day and age, it would be more unusual for the defendant to not be in possession of a cell phone than in possession of one.

[65] Accordingly, I find that Ms. Dolbear's section 10(b) rights were breached in the officer's failure to inform her of her right to counsel. The SFST demand fell outside the legislative scheme.

[66] However, I did not find any consequential s. 8 or s. 9 breach. Before an SFST-trained officer could arrive, Cst. Haroon's suspicion had grown to reasonable and probable grounds to arrest. No SFST testing was ever done. Nothing was conscripted from Ms. Dolbear during this waiting period. Her admissions, to drug use and another accident, were made before the SFST demand and only admissible to support grounds. The officers were engaged in an H.T.A. accident investigation in any event, which kept Ms. Dolbear on scene.

[67] I considered whether Cst. Haroon's observations of Ms. Dolbear's growing impairment indicia, while waiting for the SFST officer, breached s. 8. Given the Court of Appeal's decision of R. v. Milne, 90 O.A.C. 348, as long as the SFST demand was validly based, Cst. Haroon's visual observations remain substantively admissible. Paragraphs 40-41 of Milne forecloses exclusion of Cst. Haroon's visual observations:

I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. Counsel for the appellant took no issue with this differentiation. Indeed, he conceded in argument that such evidence, obtained indirectly through observation, would be admissible at trial. This distinction accords with the principles outlined by Lamer J. (as he then was) in R. v. Ross, [1989] 1 S.C.R. 3 at p. 17, 46 C.C.C. (3d) 129 at p. 140. In a case turning on identification, Lamer J. drew a distinction between physical evidence resulting from mere observation, and physical evidence "that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial", such as the line-up evidence in question: see also R. v. S.(R.J.), [1995] 1 S.C.R. 451 at pp. 555 and 560, 96 C.C.C.(3d) 1 at pp. 76-77 and 80, per Iacobucci J.

(iv) and (v) Arbitrary Detention and Right to be Informed

[68] Neither s. 9 nor s. 10(a) were breached in this case. Ms. Dolbear was not, at any point, arbitrarily detained. From the start, she was the subject of an impaired driving complaint. The H.T.A. and common law both permit police to stop drivers and make observations and inquiries relevant to impairment. Even absent the impaired driving investigation, Ms. Dolbear was the subject of a recent car accident and had allegedly failed to stop after that accident. There was a valid H.T.A. investigation ongoing.

[69] There was a myriad of articulable reasons for police to investigate Ms. Dolbear. There were grounds to support her detention, grounds for the demands made by police, and ample grounds for her arrest. Although there was some delay in waiting for an ASD and a SFST-trained officer, this did not render the defendant's detention arbitrary.

[70] Turning to the s. 10(a) issue, Ms. Dolbear was adequately advised of the reason for her detention, including the shift in investigative focus from alcohol to drug impairment. No issue was taken with the wording of either the ASD demand or the SFST demand. Both were the standard demands read from Cst. Haroon's memobook. I find the content of each demand made it clear why Ms. Dolbear was detained: see R. v. Pomroy, 2015 ONSC 2923. In addition, Cst. Haroon explained the SFST process to Ms. Dolbear, while waiting for Cst. Bullock to arrive. The reason for each stage of her detention must have been palpably obvious to her.

(vi) Waiver of Right to Counsel at Station

[71] The evidence salient to this s. 10(b) Charter argument was:

• The defendant was properly given information about right to counsel at the roadside;
• The defendant immediately invoked her right to counsel at the roadside;
• During booking, police read the defendant her rights to counsel again and asked, again, if she wanted to call a lawyer;
• The defendant exhibited obvious confusion about how to implement her right and ultimately replied, "Sure, I guess";
• Officer Haroon took the defendant to an interview room where, in an unrecorded conversation in "layperson" terms, he explained the process, duty counsel access, and the reason why she was at the police station;
• Ms. Dolbear changed her mind about speaking with a lawyer, saying she just wanted to get the test done and move on with her day, and;
• She reiterated this change of mind with the DRE officer.

The Parties' Positions on Waiver:

[72] When Ms. Dolbear invoked her right to speak with counsel, police were obliged to "hold off" from using her as an evidentiary source. As per R. v. Fountain, 2017 ONCA 596 at para. 42, this "holding off" obligation can only end by two means:

The law knows of but two ways that the constitutional right of a detainee to consult counsel without delay can be lost – through a lack of reasonable diligence in exercising that right and through waiver.

[73] Here, the defence argued that Ms. Dolbear's waiver of the right to retain and instruct counsel was not proven to be informed and unequivocal. The Crown argued to the contrary. Both parties agree that the burden to prove a "free, clear, and voluntary change of mind made by someone who knew what they were giving up" rests on the Crown: see Fountain, at para. 27.

[74] In the case at bar, I was grateful to receive further submissions on whether proof of an informed waiver required a Prosper warning. Ms. Elajami submitted that the factual trigger, upon which police are required to give a warning connected to the end of the 'holding off' period, was met here. This factual trigger is, as per paragraph 43 of R. v. Prosper:

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

[75] Ms. Elajami argued that a Prosper warning was required in this case. Relying on the Court of Appeal decision in R. v. Fountain and R. v. Bailey, 2018 ONCJ 266, she submitted that the trigger for Prosper warnings was not confined to cases of failed due diligence. There need only be the invocation of the right to counsel coupled with an apparent change of mind on that issue, before the need for a Prosper warning is established. Clearly, she argued, both criteria were met here: Ms. Dolbear asked to speak with a lawyer when she was first advised of her right to do so, and she changed her mind, in some fashion, later in the interview room.

[76] Ms. Goldenberg argued that Prosper warnings are only required in a single, fact-specific situation: the detainee must have changed their mind about speaking with counsel after diligent attempts to reach counsel have been frustrated. Any other change of mind, not prefaced by frustrated but diligent attempts, does not trigger the need for a Prosper warning. This submission was rooted in paragraph 32 of the Supreme Court of Canada decision of R. v. Willier, 2010 SCC 37:

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

[77] Similarly, the Court of Appeal in Fountain at para. 27 described Prosper warnings as "needed only if 'a detainee has asserted the right [to counsel] and then apparently change[s] his mind' after reasonable efforts to contact counsel have been frustrated: R. v. Smith and Stacey, 44 O.R. (3d) 373 (C.A.), at p. 384."

[78] The Crown submitted Ms. Dolbear does not fall into the factual category of being "diligent but unsuccessful in contacting counsel" and thus Prosper does not apply. In other words, the Prosper trigger only goes off for those who change their mind after trying but failing to obtain legal advice.

Waiver and the Prosper Question:

[79] There is appellate authority to support this limited factual application of Prosper. In R. v. Wong, 2017 ONSC 2070, the appellant invoked his right to speak with counsel and then, at the station, declined the opportunity to do so. No one arranged for him to speak with counsel prior to that change of mind. The trial judge found the accused could not be categorized as a detainee who was "diligent but unsuccessful in contacting counsel" and, therefore, Prosper did not apply.

[80] The summary conviction appeal court agreed. While noting that Prosper does describe the duty to warn as being triggered by the assertion of right to counsel, followed by a change of mind, this interpretation of Prosper failed to take into account the entire context of that decision. At paragraph 30, the court held "the trial judge did not err in law in declining to extend Prosper to circumstances such as the present in which the detainee changes his mind but has not made any effort to contact counsel before doing so".

[81] As a summary conviction appeal ruling, the Wong decision is binding upon me. But so, too, is R. v. Smith and Stacey which was relied upon in both Willier and Fountain. In Smith, before questioning the appellant, police asked if he wanted to speak to a lawyer. He did. The officer said he had to stop the interview in order to call counsel for him. The appellant then changed his mind about speaking to a lawyer. On these facts, there were no attempts, failed or otherwise, to contact counsel. The appellant's change of mind occurred only moments after he invoked his right to talk with a lawyer. He had not waived his right to counsel after diligent but failed in his attempts to exercise it.

[82] Yet in Smith the Court of Appeal did not excuse the police from the requirement to provide the appellant with a Prosper warning. Instead, Rosenberg J.A. held at paras. 25 and 26, the police had complied with their additional informational obligation:

The facts of this case are different [from Prosper]. The appellant had not attempted to reach counsel and been unsuccessful. Only a very short period, perhaps seconds, intervened between the time the appellant was fully informed of his right to counsel and when he changed his mind. The information about the right to counsel included the information that he had the right to telephone any lawyer he wished or obtain free advice from a legal aid lawyer "right now". The appellant was also repeatedly informed of the obligation on the police to cease the interview if he wanted to speak to a lawyer. In my view, in the circumstances, the police adequately complied with the Prosper informational obligations. The information actually provided to the appellant only seconds before his change of mind would have ensured that the appellant knew what it was that he was actually giving up. Moreover, after the appellant changed his mind Gauthier specifically again asked the appellant if he wished to call a lawyer "now". Prosper instructs the courts to be sensitive to the rights of an accused who it is alleged has waived his rights. On the other hand, the courts are not required to adopt a wholly mechanistic and artificial approach to the s. 10(b) rights. The circumstances of a detainee who has repeatedly attempted to access counsel and been frustrated in that attempt over a significant period is entirely different from this case. Here we have an accused who changed his mind without making any attempt to be reasonably diligent and whom the judge has found to be "eager to broadcast" his story. [emphasis mine]

[83] Despite the factual differences between Smith and Prosper, in Smith police were still required to comply with Prosper in some form. Prosper simply requires that information be given to an accused, so that they understand the ramifications of waiver. There was no breach in Smith, not because of the factual difference between that and Prosper, but because police told the accused they would have to stop the interview if he wanted to speak to counsel. This complied with what Prosper would require in that case.

[84] Similar application of Prosper was found in MacDonnell J.'s summary conviction appeal ruling in R. v. Lobo, 2015 ONSC 6673. This case bore some factual similarity to Ms. Dolbear's case. At the station, the accused had asked to speak with counsel and then appeared uncertain about what to do. Given this uncertainty, the arresting officer made the decision to call duty counsel. While waiting for a call back, the accused knocked on the door and told the officer "she just wanted to get on with it". Duty counsel then called, but the accused declined the call.

[85] The trial judge had found proof of a clear, unequivocal waiver. MacDonnell, J. agreed, finding police had substantively complied with Prosper. At paragraph 13, he held:

The obligations imposed by Prosper are not to be interpreted in a mechanistic or artificial fashion: R. v. Smith and Stacey [cite omitted] at paragraph 26 (Ont. C.A.). When the appellant told Norman that she no longer wished to speak to counsel, he made it clear to her that the breath testing process could wait until she had the opportunity to speak to duty counsel. Subsequently, when duty counsel did call, while the appellant was walking to the breath room, Norman told her that she could speak to duty counsel "right now". While he did not say explicitly that the police were under an obligation to delay the taking of breath samples, it was manifest that they would do so if she wished to exercise her right to counsel. That is, it was implicit in what Norman said that her right to speak to duty counsel would take precedence over the breath testing process. That is substantially what Prosper required the police to convey to the appellant. In my opinion, the requirements of Prosper were met in this case. [emphasis mine]

[86] I confess to some difficulty in reconciling aspects of Fountain and Willier with the results in Smith and Lobo. The language used, and the results in both Smith and Lobo suggested, to me, that Prosper warnings are not restricted to the 'duly diligent but failed' circumstance. I note, as did Harpur J. in R. v. Bailey, that a paragraph in Prosper which suggests a limited factual application is immediately followed by a more general description of what triggers the need for a Prosper warning. That trigger is not described as being linked to failed due diligence.

[87] Moreover, the facts in Fountain and Prosper actually involved an accused who declined counsel after trying and failing to reach one. In Willier, the accused failed to reach counsel of choice and opted to speak to a different lawyer. Waiver of counsel was not engaged in that case, as the appellant had relinquished nothing. At paragraph 39, the majority held the requirement of a Prosper warning was not engaged because:

The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another.

Purposive Approach to Prosper Warnings:

[88] To resolve this question, I relied upon the Supreme Court's intent in Prosper. This intent was to "ensure that the right to counsel is not too easily waived" and that an accused who waives that right knows "what it was that he [is] giving up: R. v. Smith at paras. 24 and 26. The animating principle underlying Prosper was "to ensure that an apparent waiver of the detainee's rights under s. 10(b) is a real waiver – made clearly and unequivocally, with full knowledge of the detainee's s. 10(b) rights: Prosper, at pp. 274-275; Smith, at pp. 382-383.

[89] In my opinion, a restrictive factual application of Prosper is inconsistent with the intent and purpose underlying that decision. I find agreement for this conclusion in Fountain, which interpreted and applied Prosper, purposively, albeit on the issue of a change in mind.

Application of Prosper to the Case at Bar:

[90] In the case at bar, the Crown's restrictive interpretation of Prosper would mean Ms. Dolbear, who:

• invoked the right to immediately speak with counsel upon arrest;
• invoked it again, albeit in equivocal language, during booking;
• expressed obvious confusion during booking about how to implement that right;
• was not given any meaningful opportunity to speak with counsel, but instead had her rights re-explained to her in some form of "layperson" language, and then;
• declined to speak with counsel within moments of that re-explanation;

was not entitled to receive a Prosper warning because on her facts, she did not try and fail to contact counsel.

[91] Respectfully, I cannot agree. To begin with, any requirement that a person be duly diligent in order to receive a Prosper warning must be coupled with having had a reasonable opportunity to contact counsel. As the Alberta Court of Appeal stated in R. v. Luong, 2000 ABCA 301 at para. 12:

Once a detainee asserts his or her right to counsel and is duly diligent in exercising it, (having been afforded a reasonable opportunity to exercise it), if the detainee indicates that he or she has changed his or her mind and no longer wants legal advice, the Crown is required to prove a valid waiver of the right to counsel. In such a case, state authorities have an additional informational obligation to 'tell the detainee of his or her right to a reasonably opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity' (sometimes referred to as a 'Prosper warning'). R. v. Prosper, supra, at 378-79. Absent such a warning, an infringement is made out. [emphasis mine]

[92] Here, within moments of expressing the wish to speak to counsel, and then expressing confusion on how to do that, Ms. Dolbear changed her mind and declined counsel. The Crown is correct that, factually and technically, there was no evidence of failed due diligence here. But I cannot fathom how I call Ms. Dolbear's waiver to be informed, when no one fully explained all the ramifications of her waiver. This result would be entirely inconsistent with the purpose and intent in Prosper.

[93] The defendant was not given a reasonable opportunity to call counsel at the roadside, after being informed of her rights. At the station, she was confused about how to implement her right to speak to counsel, which she had clearly invoked upon arrest and repeated in the booking room. Taking her into the interview room to ostensibly explain the process instead led to a quick reversal of her earlier decision. Ms. Dolbear was just as vulnerable to making an uninformed decision as the 'duly diligent but failed' detainee. I see no principled reason why Prosper would not apply.

[94] I have, therefore, concluded that some form of a Prosper warning was necessary to prove a fully informed waiver here. There was no evidence of same. I am not satisfied that the defendant understood the extent of what she was giving up when she changed her mind. She needed to understand that she had had, and was surrendering by waiver, the right to be unavailable to police as a source of evidence. There is no evidence that police gave her any information that, in any form, would equate to a Prosper warning. Indeed, there is no evidence that police ever provided her with a standard caution. I find her waiver was not proven to be an informed one, and that s. 10(b) was breached.

Proof of Waiver Absent the Prosper Issue:

[95] Even if I am incorrect in my application of Prosper, and it only applies in the singular factual circumstance where evidence establishes failed due diligence, I would remain entirely unsatisfied on the question of a clear, unequivocal, and informed waiver. The burden rests on the Crown to establish proof of waiver.

[96] The evidence proffered in support of this came from Cst. Haroon, as witnessed by Cst. Papamanolis. Cst. Haroon testified that, in this unrecorded conversation, he asked Ms. Dolbear if she wanted her own lawyer or duty counsel and explained, in "layman" terms the process and the free legal advice provided by the province. He also explained why she was at the police station and broke down what would happen from that point on.

[97] After hearing this layperson explanation, Ms. Dolbear then said she did not want to talk to a lawyer. She just wanted to get the test done and move on with her day. Accordingly, she passed on speaking with either a lawyer of choice or duty counsel. Cst. Papamanolis testified that, in the interview room, his partner asked Ms. Dolbear if she wanted to speak to a lawyer and declined, stating she just wanted to finish up. Cst. Haroon took sparse notes of this conversation, and could describe it only in generalities. As a result, I have no idea what he actually said to Ms. Dolbear. I have no idea what "layperson" explanation he gave to her.

[98] Ms. Dolbear, having twice admitted to drug use before her purported waiver, may not have understood those admissions were not substantively admissible against her. There was no evidence that any officer explained the harm of making more admissions to police, from this point on. I am confident that, at no time during his interaction with the defendant, did Cst. Haroon caution her about her right to silence and consequences of speaking to police.

[99] The apparent brevity of this conversation leading to her change of mind was of concern. I was also concerned, as police should have been, that the purported waiver was prefaced by equivocation and confusion during the parade process. I was most concerned that the change of mind was ultimately rooted in the desire to get out of police detention faster.

[100] I recognize the defendant did not testify on the voir dire. But the burden of proof, when the issue is waiver, rests on the Crown. It cannot and should not be easily discharged. Here, the Crown did not satisfy the burden of proving a clear, unequivocal, informed waiver. Absent the Prosper issue I would still, therefore, find s. 10(b) breached.

Remedy for the Breaches

[101] Moving to section 24(2), which is governed by the Grant test of whether or not admission of evidence would bring the administration of justice into disrepute. Three categories inform this analysis:

• Seriousness of the Charter-infringing State Conduct
• Impact on the Charter-protected Interests of the Accused
• Society's Interest in an Adjudication on the Merits.

[102] There are two breaches to assess under this rubric: the roadside right to counsel breach and the waiver of counsel.

[103] Beginning with seriousness, I would not find the roadside breach, alone, to be particularly serious. At some point, Cst. Haroon should have realized the SFST-related delay would permit access to counsel. It is noteworthy, however, that the defendant's right to counsel were legitimately suspended to begin with. No doubt Cst. Haroon was operating on the belief that they remained legitimately suspended, and this underlay his failure to advise of rights to counsel and implement them if requested.

[104] In addition, while I have found that limit exceeded here, this is an extraordinarily difficult line in the sand for police to draw. There are a myriad of individual factors that can apply, such as the roadside safety conditions, whether other officers are there to assist, the behaviour of the detainee, and the expected delay period. I agree, as per Imrie, that it is prudent for police to read rights to counsel upon learning some delay will be necessary. But there is no precise formula for police to apply in this scenario, and this must mitigate seriousness to some extent.

[105] The waiver of counsel breach is of a far different nature. It is quite serious. Ms. Dolbear was asked at the roadside if she wanted to call a lawyer now and she said yes. She was not given an opportunity to speak with one then. Instead, at booking, she was given the informational component again. She was then asked, again, if she wanted to call a lawyer. She again replied in the affirmative, saying, "Sure, I guess". At this point, the defendant expressed confusion about how to implement her right to counsel. She expressly told police she was confused. These circumstances cried out for a cautious approach to what was to happen next.

[106] What happened next was Ms. Dolbear waiving her constitutionally-protected right to counsel. The nature of the right waived, to begin with, aggravates seriousness here. The right to counsel is a lifeline for persons under state detention. She surrendered this right without being fully informed of the ramifications of doing so. More particularly, this uninformed decision made Ms. Dolbear immediately available as an evidentiary source. This included not just complying with DRE physical testing, but also answering incriminating questions about drug consumption.

[107] I was also concerned that the defendant waived this fundamental right to "get on with her day" and get out of the police station faster. This should have raised red flags, in terms of ensuring waiver was informed and properly based. Apparently, it did not. Although each and every officer treated Ms. Dolbear with respect, and I cannot find any bad faith or malicious intent, I still must concluded this breach was most serious. This conclusion is affirmed when combined with the earlier, less serious, roadside breach.

[108] The impact of both breaches is significant and weighs in favour of exclusion. She invoked her wish to speak to counsel the moment she was informed of her right to do so. No one ever implemented her right to speak to counsel. It could have been done at the roadside, given the lengthy delay and the availability of a cell phone. It also could have been implemented at the station.

[109] Instead of telling the booking sergeant that Ms. Dolbear had asked to speak with a lawyer and starting the implementation process, police asked the question of Ms. Dolbear again, as though she had not already answered it. Ms. Dolbear was confused, seemed to lack knowledge about the process, and was most vulnerable given the lack of control over calling a lawyer herself.

[110] Whether or not she spoke to counsel, Ms. Dolbear would have been required to comply with the authorized DRE demand. But she was not required to answer incriminating questions as part of that process. Her admissions to cocaine and Xanax use were incriminating and formed part of the DRE officer's ultimate conclusion on impairment. The drug recognition evaluation and the urine sample process are more intrusive than blowing air into a tube twice. The impact of the breach here was significant.

[111] Finally, societal interest in adjudication on the merits is strong and weighs in favour of evidence admission. The urine test results are fairly reliable in terms of proving consumption of the substances found, even though they cannot conclusively prove impairment. Driving while impaired, by drugs or alcohol, is a grave offence which can lead to tragic consequences.

[112] I have considered the fact that exclusion of evidence obtained at the station, both the statements and the urine analysis, is not fatal to the prosecution. The Crown argued proof of impairment was made out, even absent this evidence. But still, in all the circumstances the societal interest still supports admitting the evidence.

[113] Weighing and balancing all the Grant factors, and considering the Court of Appeal's decision in R. v. McGuffie, 2016 ONCA 365 at para. 63, I have concluded the only appropriate remedy for these breaches is to exclude the evidence. More specifically, the urine sample results are excluded. The incriminating statements made at the police station are excluded. The opinion of the DRE officer, which was based on the physical DRE testing and the incriminating statements, must also be excluded. The long-term impact on the administration of justice requires no less.

Application of Admissible Evidence to the Burden of Proof

[114] Ms. Dolbear is charged with driving while impaired by drug. Proof of impaired driving is made out if the evidence establishes, beyond a reasonable doubt, any degree of impairment, caused by alcohol or drug and ranging from slight to great, of the accused's ability to operate a motor vehicle: see R. v. Stellato, 1993 ONCA 3375 at para. 13 and R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (A.C.A.); leave refused 106 C.C.C. (3d) vi.

[115] "Slight" impairment means, as per Hill J. in R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), "…a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like." Drug consumption need not be the sole reason cause in order to ground a finding of guilt for impaired driving by drug. It need only be a contributing factor to overall impairment, even if factors such as fatigue also play a role: see R. v. Bartello, [1997] O.J. No. 2226.

[116] Imrie describes the mens rea for drug-impaired driving as divided in two parts. First, the voluntary consumption of a drug must be established. Secondly, there must be knowledge of, or reckless indifference to the fact that driving ability could be impaired. Proof of the actus reus creates a rebuttable presumption of mens rea. This presumption could be rebutted by, for example, evidence of involuntary drug consumption, or of unexpected side effects of a drug.

[117] In assessing the case to determine if proof beyond a reasonable doubt was made out, I obviously cannot utilize the evidence I excluded. I have not utilized the statements made by Ms. Dolbear during the roadside detention, which were admissible only for assessing grounds. Accordingly, I cannot and did not make substantive use of admissions to cocaine and Xanax use. In addition, the Crown properly foreclosed any reliance on a purported drug baggie seen in Ms. Dolbear's car.

[118] Observations made by police of Ms. Dolbear are substantively admissible, as long as they do not involve any conscripted evidence. So, for example, the observation of an unsteady gait while walking would be admissible, unless the detainee had been requested to walk there so that the officer could assess gait. Similarly, an officer detecting the smell of alcohol on someone's breath would be substantively admissible, but the smell of alcohol detected because an officer directed the detainee to blow in their face would not.

[119] This difference was recently re-affirmed by the Court of Appeal in R. v. Roberts, 2018 ONCA 411 at paras. 93-94:

In Ontario, the leading decision is R. v. Brode, 2012 ONCA 140, 109 O.R. (3d) 481. In Brode, this court held that if an officer directs a motorist to get out of their vehicle as a sobriety test, the observations cannot be admitted at trial to prove impairment. If an officer directs a motorist to get out of the car not as a sobriety test, but to facilitate further investigation, including gathering other information about sobriety through questioning once the driver is outside of the car, observations made of the motorist while exiting the car are admissible at trial to prove impairment. In Brode, even though Mr. Brode was being directed out of the car so that his sobriety could be observed once out of the car, since it had not been established that Mr. Brode was directed to exit his car so that his manner of exiting the car could be used as a sobriety test, evidence that he stumbled when doing so was admissible as proof of his impairment. In Visser, at para. 68, the court was critical of the reasoning in Brode, calling it a "distinction without a difference." To be sure, the rule in Brode invites a narrow line to be drawn. The approach in Brode, however, is arguably in keeping with the admonition in Milne, at para. 40, and Orbanski, at para. 58, that the restriction on admissibility "applies only to evidence obtained from compelled direct participation by the motorist in roadside tests." It does not apply to observations made by an officer while carrying out other duties including observations of "unsteadiness of gait upon the driver exiting the vehicle".

[120] In adjudicating the merits of this case, therefore, I can and must consider:

• The testimony of Justin Perdue;
• The testimony of Mr. Ebrahimi-Nazari;
• Non-conscripted observations made of Ms. Dolbear's behavior by officers Haroon and Papamanolis;
• Ms. Dolbear's demeanour in the scout car, and;
• Dr. Mayers' opinion evidence with respect to the physical side effects of certain drugs.

As stated above, the testimony of the civilian witnesses and police witnesses was not substantively challenged in cross-examination. I have accepted the testimony of each witness as both true and accurate. There were no material inconsistencies established. Each witness was forthright in their evidence and about any limitations to their ability to perceive events.

[121] The available evidentiary record conclusively established Ms. Dolbear's erratic driving over time and over distance, her repeatedly slow reaction to the changing of traffic lights from red to green, and that she appeared asleep at the wheel at one point. It proved she swerved to the left and hit the curb quite hard. She was slow to respond to a red light, almost hitting the car in front of her. The evidence proved she rear-ended the back of Mr. Ebrahimi-Nazari's truck, with some force, and that she failed to stop after causing this accident.

[122] The evidence also conclusively established that, during the roadside investigation, Ms. Dolbear's eyelids were 'droopy', her pupils were dilated at one point, her speech was slow, she had problems standing up on her own without recourse to leaning on something, she lacked alertness, and she had a foul smell on her breath which one officer associated, based on past experience, with the dry mouth of drug users. As the investigation continued, she appeared 'drunk', her speech became increasingly slurred, the balance difficulties were continuous, and during conversation she appeared to 'focus out' as though she wanted to fall asleep.

[123] The scout car video both corroborated the officers' testimony and was independent evidence of the defendant's demeanour. Her eyes were heavy-lidded, she had trouble sitting up straight, and she fell into a deep sleep from which it was hard for her to wake.

[124] All of this physical observations echoed, quite strongly, Dr. Mayers' unchallenged evidence of physical symptoms experienced during a cocaine 'crash'. The physical indicia witnessed by the officers and the driving witnessed by the civilians specifically matched Dr. Mayers' opinion evidence about side effects of cocaine, CNS depressants, and MDMA. Presence of such outward signs can evidence an excess of tolerance level and supports a conclusion of impairment.

[125] Based on all these factors, which I have assessed cumulatively, I am quite satisfied the Crown has met its burden of proof beyond a reasonable doubt. Put otherwise, no reasonable doubt was raised when I considered the evidence. I could find no reasonably-based alternative conclusion. I am satisfied Ms. Dolbear was driving her car that day, that her driving ability was markedly impaired, and that the voluntary consumption of a drug was at least a contributing factor to that impairment. She may well have been extremely exhausted, but there can be no doubt that drug consumption meaningfully contributed to her overall impairment.

[126] As a result, I must find Ms. Dolbear guilty of driving while her ability to do so was impaired by a drug.

Released: April 30, 2019

Signed: Justice H. Pringle