Court File and Parties

Ontario Court of Justice

Date: 2019-05-09

Court File No.: Brampton 3111 998

Between:

Her Majesty the Queen

— and —

Jashandeep Bhandal

Before: Justice G.P. Renwick

Heard on: 02-03 May 2019

Reasons for Judgment released on: 09 May 2019

Counsel

R. Morrow — counsel for the Crown

A. Zaitsev — counsel for the defendant Jashandeep Bhandal

Ruling on Charter Application

RENWICK J.:

Introduction

[1] The Defendant is charged with having driven his car with an excess blood alcohol concentration under s. 253(1)(b) as that now-repealed section of the Criminal Code ("Code") existed on 21 October 2017.

[2] The parties agreed that the evidence taken on the trial could be applied to the Defendant's Charter Application for alleged violations of ss. 8, 9, 10(a) and 10(b) and both proceedings would occur simultaneously in a "blended voir-dire." At the conclusion of the prosecution's case, the Defendant called one police officer to give evidence on the Charter Application.

[3] I have been asked to give my ruling on the Charter Application as it may dispose of the matter without the need to rule on the Shaikh argument,[1] which would only be made if this Application is unsuccessful.

[4] The Defendant alleged in written form that his s. 10(a) Charter right had been violated, "when the Applicant was detained by the police, he was not advised immediately of the reason for his detention" (paragraph 3 of the Application: GROUNDS TO BE ARGUED IN SUPPORT OF THIS APPLICATION). In oral submissions, which were not opposed by the prosecutor, this ground was expanded to include the fact that the Defendant was not advised when brass knuckles were recovered from him that he was being detained also for that offence and he could be charged accordingly.

[5] The other (main) issue raised by this Charter Application is whether the arresting officer performed the roadside screening "forthwith" as required by s. 254(2)(b) of the Code.

The Evidence

[6] For the most part, the Defendant does not contest the prosecution's evidence of what took place during this investigation and arrest. Indeed, according to the Defendant, the prosecution's evidence supports a finding that the Defendant's Charter rights were violated. For this reason, I do not propose to recapitulate all of the evidence heard on this Application.

[7] Constable Nicholas Lumsden testified about his interactions with the Defendant on 21 October 2017. The officer received a radio call to investigate someone possibly driving impaired, slurring his words, and shouting at others in the parking lot of a local McDonald's restaurant. Within minutes, the officer arrived on scene and observed the subject motor vehicle, based on the description and license plate he had been given.

[8] The officer testified that he awaited until that vehicle left the line-up for the drive-through window and then parked near the officer's car. At this point, the officer moved his vehicle to block in that motor vehicle as a "pursuit prevention technique."

[9] Constable Lumsden testified that the driver and passenger, unprompted by the officer, got out of their vehicle. He instructed them to return to the vehicle and to place the keys on the dash. The driver, who was the Defendant, and the passenger complied.

[10] At 10:31:18 am on 02 May 2019 Constable Lumsden testified in chief:

Q: And what do you do after that?

A: So, I advised him the reason for the stop, and what lead me there today.

Q: What did you tell him about that?

A: Sorry?

Q: Well, what did you tell him?

A: Essentially, we received a complaint from one of the employees regarding, uh, the nature, what I mentioned earlier, the yelling, the odour of marihuana.

Q: And in terms of your own, viewpoint, in terms of how you're looking at this occurrence and this investigation what's the focal point, what are you?

A: It's obviously the impaired driving.

Q: So once you explain why you're there, what happens following that?

A: I asked him if he had been consuming any alcohol today, which he denied.

Q: Why did you ask that question?

A: It was the reason for my stop. Complaint of an impaired driver, with the marihuana. Interacting with him I did detect an odour of alcohol.

[11] This interaction occurred a minute or two after the officer arrived at that location at 2:39 am. The officer agreed in cross-examination that according to the print-out of his radio call he was with the Defendant's vehicle at 2:40:58 am.

[12] I find as a fact that at 2:41 am, Constable Lumsden formed a suspicion that the Defendant had alcohol in his body while operating a motor vehicle, based upon the information that he had in the initial radio call and his own personal observations. However, the officer testified that he held off making a roadside screening demand into an Approved Screening Device ("ASD") at that moment for the following reasons:

• it was dark out; the artificial lighting was not good;
• he smelled alcohol on the driver's breath;
• the driver was "cocky" and "swearing at me;"
• when people are yelling and swearing it's unpredictable what can happen next;
• there were "two of them" in the vehicle;
• "he's much larger than me;"
• "I don't know what his reaction will be to the ASD demand;" and
• "my expectation was that my partner would arrive in minutes."

[13] There was no contest between the parties that Constable Brian Mortotsi arrived approximately one minute later, at 2:42 am.

[14] At that point, Constable Lumsden testified in chief that he had the Defendant exit his car "for the purpose of providing the ASD breath sample." However, as the Defendant got out of his car, the officer did not make an ASD demand right away. For "officer safety" he did a pat-down search of the Defendant. He first asked if the Defendant had anything that may prick the officer, or any weapons on him. The officer then described the pat-down process and how he felt a hard metal object in one of the Defendant's pockets. He removed the item, which turned out to be "brass knuckles." When first asked why he did this pat-down search testified at 10:45:40 am:

Q: Why is it you're performing the search, at that point?

A: So, again, before I go and put an ASD, like stand inches away from him and ask him to blow into an ASD, because we don't give them the ASD to hold in their possession, or anything like that. We always hold it for them. We demonstrate it to them, and we ask them to blow, into the machine. For example, I don't want to be in a situation where either I'm not focussed on his hands, because I'm focussed on the machine, or something in the parking lot. Essentially, just before I go up to him I want to make sure it's safe to do so.

Q: What relation did that have, if any, to his prior demeanor or conduct, when you were dealing with him?

A: Again, to me, his behaviour with the swearing and yelling, he's obviously not happy with police being there. He's not, again, like I mentioned before it's unpredictable. I believed him to be under the influence of alcohol. Experiences in the past that I've had, people can be unpredictable. If I tell him, "hey, you just failed the ASD, you're under arrest," I don't know what he's going to do. It's just all about officer safety at the end of the day, and I felt it was necessary for me. Him being a much larger person, his passenger. Not saying his passenger was difficult in any manner, but he did have a passenger with him. I just want to make sure the whole environment is safe before continuing my duties, and make sure it's safe for him, myself, the public.

[15] After completing the pat-down search, Officer Lumsden asked the Defendant to sit in the back of his police car, with the rear door open and the Defendant's legs hanging out. He made the ASD demand at 2:45 am, within four minutes of his suspicion of alcohol in the Defendant's body while driving.

[16] The Defendant failed the roadside screening and was arrested at 2:49 am. Officer Lumsden conducted a search incident to arrest and put the Defendant in handcuffs into the back of his police vehicle. Once the officer was seated in the front seat he retrieved his yellow notes, which contained the wording of the rights to counsel. He began to administer the rights to counsel at 2:54 am.

[17] The Defendant alleges that the officer violated ss. 10(a), 10(b), and s. 8 of the Charter by failing to tell the Defendant immediately what he was being investigated for, why he was being asked out of his car, that he could be charged for having brass knuckles, for not giving the ASD screening forthwith, and for delaying the provision of the rights to counsel while cuffing, searching, securing the Defendant's possessions, and lodging the Defendant into his police cruiser. The s. 9 Charter claim relates to the arrest subsequent to the ASD result and the eventual evidential breath sampling that took place.

Analysis

Section 10(a) of the Charter

[18] The section 10(a) complaint can be easily dismissed. I accept as a fact Constable Lumsden's evidence that the first thing he told the Defendant was the reason for his presence. Telling the Defendant that there had been a complaint about his behaviour and the smell of marihuana made it obvious to the Defendant that he was being investigated for possible drug possession and/or impairment while operating his car. This evidence was unrebutted and I accept it as true and accurate in all respects.

[19] The Defendant took issue with the officer's request to have him step out of his car without an explanation for the reason for this request. This submission fails for two reasons. As stated, it would have been obvious by the time of this request that the Defendant was being investigated in relation to the smell of marihuana, and his prior behaviour in the parking lot. By this point, the officer had also asked the Defendant if he had been drinking alcohol. In these circumstances, there is no substance to the complaint that the Defendant was not informed of the reason for being detained and investigated.

[20] Moreover, I accept the officer's evidence of his general practise, that he would usually tell a motorist about the ASD demand when he was asking the driver out of his car. I find that the officer probably followed his general practise on this night. This evidence was simple, believable, and unrebutted. However, the officer was candid that it was possible that he did not mention this. But, that alone does not satisfy me on a balance of probabilities that the Defendant was not made aware of the officer's intention to have him perform a roadside breath screening. Also, I was not referred to any authorities that suggest that s.10(a) compliance requires advising a detainee of every possible investigative step during a detention. Once it was made known that the officer was there to investigate a complaint involving the Defendant, the officer was not required to advise the Defendant why he was asking him to leave his vehicle.

[21] The Defendant also complains that when his brass knuckles were discovered, he was not told that he was now being detained for this offence. It matters not. Firstly, because the primary investigation was still underway; secondly, because this supplemental reason to detain the Defendant did not remove the officer's suspicion of drinking and driving; and thirdly, because the officer testified that the drink-drive investigation was "time sensitive." It made no sense to interrupt the primary investigation to advise the Defendant that he would also be detained and possibly charged for possessing a prohibited weapon. That investigation was clearly halted while the primary investigation continued.

[22] I accept that when the Defendant failed the ASD, he was immediately told of his jeopardy for both offences for which he was arrested. There was no evidence to the contrary and Constable Lumsden's evidence was completely compelling and credible in this area.

[23] For these reasons, I am not satisfied on a balance of probabilities that it was established on a preponderance of evidence that Constable Lumsden abrogated the Defendant's s. 10(a) right either initially, or as his investigation continued.

Section 8 of the Charter

[24] This aspect of the Defendant's Application relies on two distinct grounds:

i. The ASD was not administered "forthwith;" and

ii. A pat-down search was not justified and cannot form the basis to have delayed the roadside breath-screening.

As I will discuss below, I am not satisfied on a balance that the ASD demand made some four minutes after the officer formed a reasonable suspicion of an alcohol-driving offence was not "forthwith." If I am wrong, I find that the protective pat-down search conducted in this case was necessary, reasonable, and a complete justification for any delay in making the ASD demand.

[25] In R. v. Woods,[2] the Supreme Court discussed the meaning of "forthwith" in the context of a roadside detention and the withholding of Charter rights:

Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample "forthwith".

Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster.

The "forthwith" requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the "forthwith" requirement, this Court must bear in mind not only Parliament's choice of language, but also Parliament's intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

It is true, as I mentioned earlier, that "forthwith", in the context of s. 254(2) of the Criminal Code, may in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw.

The "forthwith" requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peace officer, and an immediate response by the person to whom that demand is addressed.[3]

Several observations follow.

[26] First, the Supreme Court in Woods did not rule out "unusual" circumstances which may attenuate the immediacy requirement of the ASD demand.[4]

[27] In this case, Constable Lumsden testified that he was concerned with his own safety given the poor lighting, the fact that he was outnumbered by the occupants of the Defendant's car, the size difference between him and the Defendant, the awareness that the Defendant had consumed alcohol, his knowledge that the Defendant had apparently been yelling before his arrival, the Defendant's cocky attitude and swearing at a police officer, and the belief that people under the influence of alcohol are unpredictable and likely to become uncooperative.

[28] There was no suggestion that Constable Lumsden was not aware of the requirements of the breath screening regime, or that he always searches detainees before ASD sampling. I accept his evidence that he had genuine concerns for his safety, and the safety of everyone present, when he conducted the pat-down search of the Defendant. I also find that this was an unusual circumstance. Although the Defendant was initially cooperative by returning to his vehicle and placing his car keys on his dash, his belligerent behaviour was unexpected and unusual. The Defendant's use of profanities within a moment of learning of the reason for the officer's presence foretold of a possibility of confrontation and violence. The officer would have been foolish to have ignored this obvious escalation of the interaction with an unknown suspect he had reason to believe was acting aggressively before his arrival.

[29] Second, at paragraph 42, the Supreme Court was clear that the timing of the ASD sampling was inextricably tied to the time required to observe a motorist's s. 10(b) right:

Thomsen was one of the early cases that dealt with constitutional concerns regarding roadside detention of motorists. The Court held that the absence of an opportunity to retain counsel violated s. 10(b) of the Charter, but was justified under s. 1 of the Charter as a reasonable limit prescribed by law. The "forthwith" requirement of s. 254(2) is in a sense a corollary of the fact that there is no opportunity for contact with counsel prior to compliance with the ASD demand.

This makes sense. In order for roadside sobriety checks to comply with the Charter, the process should take no more time than is reasonably necessary in the circumstances, and certainly less time than it would take to exercise one's s. 10(b) right to counsel.

[30] Here, four minutes were spent from the formation of the grounds and the time when the ASD demand was actually made and another two minutes until the ASD screening took place. There was no evidence that either the Defendant or the officer was in possession of a cellular telephone with which to facilitate contact with counsel. In fact, in this case, the Defendant had no counsel of choice that night and waited much more than six minutes to speak with an on-call duty counsel, back at the police station. Again, this suggests that there was no breach of the "forthwith" requirement.

[31] Third, the delay before administering the ASD demand was reasonable and brief, as was the ASD screening itself. The officer had an articulable basis to momentarily delay the ASD demand and he made sufficient haste to attain that end. Constable Lumsden formed his suspicion at about 2:41 am. By 2:42 am, Constable Mortotsi arrived and Constable Lumsden was prepared to continue his investigation. Officer Lumsden testified that he may have briefly advised his partner what was happening and then he asked the Defendant to step out of his car, he patted down the Defendant, he located what he thought was a weapon (which turned out to be a prohibited weapon), he escorted the Defendant to sit in the back of his police car, he retrieved his notebook for the wording of the ASD demand and he provided that at 2:45 am. Thereafter, he demonstrated the use of the device and administered the breath screening at 2:47 am. In all, about six minutes had elapsed from the formation of the grounds until the breath screening began. However, I did not understand the Defendant to challenge the two minutes it took to operate the ASD and demonstrate it from 2:45 am until 2:47 am, when the screening began. At issue is the four minutes it took to make the ASD demand after the grounds were formed.

[32] Undoubtedly, even had the officer not momentarily postponed the ASD screening for the arrival of Constable Mortotsi and to conduct a pat-down search, it would have taken him a couple of minutes to retrieve the wording to make the ASD demand, to demand a breath sample, and to have the Defendant accompany him for the required purpose. In terms of the Defendant's privacy and to control the environment in the event of a negative result, it is understandable to have moved the Defendant to the police car to complete the ASD process.

[33] When that two minutes is deducted from the overall delay, it leaves approximately two minutes for the impugned pat-down search. Part of that time entailed finding the Defendant in possession of a prohibited weapon. This certainly would have added time to the search and all the more reason to take enough time to ensure other weapons were not left undiscovered. All the same, there is no suggestion that the pat-down search was excessive or overly intrusive. The delay of about two minutes in administering the ASD demand was fleeting and focussed. In all of the circumstances faced by Constable Lumsden that night, I am satisfied that he complied with the immediacy requirement of s. 254(2) of the Code and I conclude that the warrantless seizure of the Defendant's breath while detained in the McDonald's parking lot was reasonable.

[34] This does not end the matter. I must consider the Defendant's supplementary claim that the officer lacked a sufficient basis in law for a protective pat-down search.

[35] The Defendant argued that the Supreme Court decision in R. v. MacDonald[5] is dispositive of this issue in his favour. In that case, our highest court determined that safety searches, like the one performed on the Defendant prior to the roadside screening, require reasonable grounds to believe that there is an imminent threat to public safety.

[36] During submissions, I asked counsel for the Defendant if the difference between the majority and minority judgments was really about nomenclature rather than substance. In that case, it was contended by the minority that Justice LeBel, for the majority, had created a new test for safety searches predicated upon the probable ground standard. Justices Moldaver and Wagner (as His Lordship then was) for the minority agreed with the outcome of the appeal and all other aspects of the majority decision, but took issue with the apparent modification of the test for protective pat-down searches, first recognized by the Supreme Court in R. v. Mann, 2004 SCC 52. Understandably, counsel was somewhat non-committal on this difference of opinion. A review of MacDonald should elucidate the appropriate test to be applied in this case.

[37] In MacDonald, the court discussed the legality of protective searches and re-stated the test from its earlier decision:

In Mann, Iacobucci J. accepted the need for a general police power to conduct pat-down searches, but solely in appropriate circumstances. He was mindful of the risks of abuse of such a power, as he observed that "[s]uch a search power does not exist as a matter of course: the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk" (para. 40).[6]

[38] The majority also held that safety searches are a "reactionary measure" taken "in response to dangerous situations" that require "quick action guided by on-the-spot observations."[7]

[39] The court re-iterated three factors to determine whether a given safety search was reasonably necessary, and therefore justifiable:

i. The importance of the duty to the public good;

ii. The necessity of the interference with individual liberty for the performance of the duty; and

iii. The extent of the interference with individual liberty.[8]

I will consider each of these factors in light of the evidence heard on this Application, in turn.

[40] In submissions, counsel for the Defendant conceded that the first consideration was met in this case. I also accept that Constable Lumsden was genuinely involved in responding to a complaint made to the police about someone possibly intoxicated, in a car, shouting at people at a McDonald's parking lot. His investigation of the Defendant as a motorist was warranted and responsive. It did not stray into an unfocussed inquiry into unrelated concerns. I find that the officer's duty to investigate what was reported as a possible drug impaired driver was of significant importance to the safety of the public present in that parking lot that night. On this factor, the words of Justice LeBel apply:

No one can reasonably dispute that the duty to protect life and safety is of the utmost importance to the public good and that, in some circumstances, some interference with individual liberty is necessary to carry out that duty.[9]

[41] The second factor speaks to the necessity of the state interference with the individual's autonomy, liberty, or security of the person. Was a pat-down search reasonably necessary for the performance of the officer's duty? It cannot be overstated that police officers perform a difficult and at times dangerous duty. But this is no surprise, neither to the reader, nor to police officers. A generalised suspicion of danger premised on a hunch or intuition can never serve as a proxy for objectively reasonable concerns for officer or public safety.[10] Legitimate safety concerns, however, are an appropriate reason to delay the breath screening procedure.[11]

[42] In this case, Officer Lumsden was dealing with a motorist and his passenger, late at night. He observed that the driver had the odour of alcohol on his breath, but the driver denied having consumed alcohol. The officer was aware that a McDonald's employee had complained to the police that the Defendant was possibly impaired and he was yelling at people. With his own observations he was aware that the Defendant had consumed alcohol, he was operating a motor vehicle, he was swearing at the officer and unhappy about his presence, and the officer would be in close proximity to the Defendant, someone significantly larger than him, to perform the breath screening.

[43] In the circumstances, I find that this factor militates in favour of requiring a pat-down search. Again, the Defendant's behaviour (his cocky behaviour, swearing, and his lie about not having consumed alcohol) was a somewhat unusual, perhaps overblown, reaction to the officer's stated presence. One would think that most people in a similar position would demand less attention from a police officer than the Defendant sought by swearing at him. This unusual behaviour required the officer to satisfy himself that it would be safe to be in close quarters with this obviously irritated and unpredictable individual.

[44] The final factor, the extent of the interference, was minimal. This was also conceded during submissions under the second branch of the Grant analysis of s. 24(2) of the Charter.[12] When I deduct the time it would have taken to have the Defendant accompany the officer to perform the ASD screening, the interference lasted two minutes and involved a cursory touching of the outside of the Defendant's pockets by the officer.

[45] All three factors point toward a finding that Officer Lumsden's pat-down search of the Defendant was reasonably necessary, minimally intrusive, and aimed at the significant goal of public and officer safety.

[46] Before leaving this part of the analysis, in light of the Defendant's reliance on MacDonald, I feel compelled to situate the officer's conduct on the ladder of proof.

[47] At the bottom of the ladder is the first rung, bald suspicion. Like the theoretical top rung, which I will describe shortly, this is not a standard recognized in criminal law. State actors who employ bald suspicion as a basis for authority to interfere with an individual's autonomy, privacy, or bodily integrity can never be justified. Bald suspicion and its close cousin, prejudice, should be avoided as it is an inappropriate step on the ladder of proof.

[48] The next rung of the ladder is reasonable suspicion (also known as reasonable grounds to suspect or articulable cause[13]). This step occupies the first legitimate step of state action. As is obvious in the case at bar, reasonable suspicion is the standard for roadside breath screening and other judicially authorized investigative steps.[14] This standard imports the possibility of criminality and it is a fairly low threshold of proof. However, like the next rung, reasonable suspicion requires a subjective belief that is objectively reasonable.[15]

[49] The third rung up the ladder of proof is the standard of probable cause: reasonable grounds to believe. This is the most worn and relied upon rung of the ladder of proof. It grounds the basis for most judicially authorized searches and warranted and warrantless arrests. It denotes the probability of discovering criminality and is a higher threshold of proof than reasonable suspicion.

[50] Proof on a balance of probabilities or proof on a preponderance is the next rung up the ladder. It is the standard for the admissibility of evidence (except confessions) and civil liability.

[51] The ladder of proof should actually have a large gap between the civil standard and the next rung, proof beyond a reasonable doubt.[16] This rung would be the last rung used by our system of justice. While theoretically there exists a top rung for proof to an absolute certainty, our criminal law knows no such height.

[52] The language of the Supreme Court in Mann and MacDonald is clear that protective pat-down searches require "reasonable grounds to believe" that the officer's or another's safety is "at risk."[17]

[53] Although the phrase "reasonable grounds to believe" usually means reasonable and probable grounds and a level of belief beyond mere suspicion, in this context, public safety as opposed to evidence gathering, it is more likely than not that the phrase is synonymous with reasonable grounds to suspect. The phrase "at risk" imports a level of possibility rather than probability, which also favours the lower forensic threshold. If the standard for protective searches required credibly based probability the Supreme Court may well have required reasonable grounds to believe the officer's or another's safety was threatened or imperiled, rather than simply "at risk."

[54] Applying this understanding to the facts of this case, I find that Constable Lumsden had a subjective belief that his safety was at risk. His belief was objectively reasonable for these reasons:

i. The Defendant had been reported to have acted irrationally – yelling at people in a parking lot, while possibly under the influence of marihuana;

ii. The Defendant was suspected of operating a vehicle while impaired;

iii. The Defendant was not forthcoming about having consumed alcohol, when it was obvious that he had; and

iv. The Defendant was cocky and swore at the officer for no apparent reason.

[55] I find that once Officer Mortotsi arrived on scene it was no longer the case that Constable Lumsden could reasonably have feared for his safety on the basis that there were two men in the Defendant's vehicle. However, the Defendant's significant size advantage was still a valid consideration in view of the fact that the ASD testing would put the officer in a potentially compromised position. In light of the Defendant's unusual behaviours (both before and during the officer's presence) a cautious approach by Constable Lumsden was necessary and reasonable in the circumstances.

[56] The officer's decision to pat-down the Defendant finds support in the majority decision in Mann:

Police officers face any number of risks every day in the carrying out of their policing function, and are entitled to go about their work secure in the knowledge that risks are minimized to the greatest extent possible. As noted by L'Heureux-Dubé J. in Cloutier, supra, at p. 185, a frisk search is a "relatively non-intrusive procedure", the duration of which is "only a few seconds". Where an officer has reasonable grounds to believe that his or her safety is at risk, the officer may engage in a protective pat-down search of the detained individual. The search must be grounded in objectively discernible facts to prevent "fishing expeditions" on the basis of irrelevant or discriminatory factors.[18]

[57] The pat-down search was preceded by the officer asking the Defendant if he had anything that might prick the officer, or any weapons, and although the evidence did not establish whether or not the Defendant answered, the question also demonstrated the officer's genuinely held safety concerns.

[58] Before moving to the next part of the Defendant's Application, I wish to address the argument that the officer was ignorant of his authority because at one point he testified under cross-examination that he did not require any grounds to conduct a pat-down search of someone during an investigative detention. The following evidence, given under cross-examination, was heard at 12:14:00 pm on 02 May 2019:

Q: So, is it your understanding then, that you don't need reasonable and probable grounds to pat somebody down?

A: If I've detained somebody. So, he's being detained for the purposes of providing a sample.

Q: And that in your mind gives you the authority to pat him down.

A: Correct.

[59] While I agree with counsel that it appears that the officer is completely mistaken about the authority of police to conduct a pat-down search of suspects who are under an investigative detention, I also agree with the prosecutor that this seems to take the officer's words out of context. Firstly, the question was asked with respect to the requirement of reasonable and probable grounds. That is potentially misleading because that is the standard for arrest rather than the lower threshold of reasonable suspicion of crime which suffices for an investigative detention. Secondly, this is not what grounded the officer's actions on the night in question. So, although the officer may be mistaken on his understanding of the law, if that is actually what this answer indicates, to some extent it is beside the point. On this occasion the officer conducted a pat-down search not because he believed he had an unlimited authority in the circumstances of an investigative detention, but because he believed it was necessary for his own safety.

[60] Again, a reference to the officer's words during cross-examination at 12:10:55 pm is probative:

Q: So, again, other than the fact that he may be cocky with you, because to use your language he wasn't happy that police were there, again you had no, absolutely no safety concerns, that you can articulate.

A: How you're referring to, them, sure. But in my world, in my line of work, I like to err on the side of caution. I wanna be safe and I've given, multiple, not multiple examples, but, based on experience, anything can happen. Impaired people or intoxicated people are more likely to be uncooperative. I don't want to be put in a situation where something can happen to me, to him, to a member of the public. He's much larger than me, okay. That is why I did what I did.

[61] I do not find on a balance of probabilities that the brief pat-down search was a violation of the Defendant's right to be free from unreasonable search and seizure. On this basis, I dismiss the Defendant's s. 8 Charter claim.

Section 10(b) of the Charter

[62] This claim relied on the fact that Constable Lumsden candidly admitted that he did not advise the Defendant of his rights to counsel immediately upon finding a prohibited weapon (brass knuckles). In doing so, Constable Lumsden demonstrated a keen awareness of the temporal limits of a drink-driving investigation. He chose not to provide the rights to counsel but rather he continued the investigation underway, because the excess blood alcohol investigation was "time sensitive."

[63] This evidence supports my view that Constable Lumsden acted with appropriate dispatch in administering the ASD procedure and this was an acceptable reason for the delay of the Defendant's s. 10(b) rights in relation to a secondary investigation of possessing a prohibited weapon. I am fortified in this view given the dearth of evidence that Constable Lumsden had made any decision to charge the Defendant with a weapons offence, nor had this secondary investigation resulted in an arrest at that time. When the brass knuckles were discovered the Defendant was merely being detained on the suspicion of having an excess blood alcohol concentration, which justified the suspension of his s. 10(b) Charter rights.

[64] This claim also begs the question whether the less intrusive ASD procedure should have given way to the arrest, rights to counsel, and a much more intrusive search incident to arrest that the Defendant suggests, and what prejudice is suffered because this did not happen. When an officer chooses a legitimate investigative step which is less intrusive than an arrest and the attendant consequences which he otherwise is authorised to perform I do not accept that the Defendant is prejudiced in any way. An example may prove the point.

[65] If the Defendant had passed the breath screening and the officer returned to the issue of the brass knuckles, he would still be entitled to arrest the Defendant to pursue that investigation, or he could hold-off arresting the Defendant in order to determine if there was a justification or excuse in law obviating the need for an arrest.

[66] Regardless of what otherwise might have happened, Constable Lumsden was aware of the exigencies of the excess blood alcohol concentration investigation and I do not fault him for momentarily halting the secondary weapons investigation on that basis.

Section 9 of the Charter

[67] This claim was advanced on the basis that the ASD screening did not occur within the temporal limits imposed by s. 254(2)(b) of the Code. If the breath screening were not authorized by law, the results would not have provided probable cause for an arrest and an evidential breath sample demand and there would undoubtedly have been an unjustified arbitrary detention by the arrest and removal of the Defendant to the police station for further investigation. Given the analysis above, it is unnecessary to decide this part of the Application.

Conclusion

[68] The Defendant has failed to satisfy me on a balance of probabilities that his Charter rights were violated during his investigation by Constable Lumsden. Accordingly, the Application for the exclusion of the evidential breath testing results is dismissed.

Released: 09 May 2019

Justice G. Paul Renwick

Footnotes

[1] The Defendant intends to challenge the survivability of the presumption of identity following recent amendments to the Criminal Code. See R. v. Shaikh, 2019 ONCJ 157.

[2] 2005 SCC 42.

[3] Woods, supra, at paras. 14, 15, 29, 43, and 44.

[4] Ibid., at para. 43.

[5] 2014 SCC 3.

[6] MacDonald, supra, at para. 31.

[7] Ibid., at para. 32.

[8] Ibid., at para. 37.

[9] MacDonald, supra, at para. 39.

[10] See MacDonald, supra, at para. 41: "As the Court stated in Mann, a search cannot be justified on the basis of a vague concern for safety. Rather, for a safety search to be lawful, the officer must act on 'reasonable and specific inferences drawn from the known facts of the situation' (Mann, at para. 41)."

[11] See R. v. Quansah, 2012 ONCA 123, at paras. 40 and 48.

[12] R. v. Grant, 2009 SCC 32, at paras. 76-78.

[13] R. v. Mann, 2004 SCC 52, at paras. 27 and 30-32.

[14] Warrants for preservation orders (s. 487.013), tracking devices (s. 492.1), and transmission data recorders (s.492.2) are just three of the many similar orders authorized on "reasonable grounds to suspect."

[15] Mann, supra, at para. 27.

[16] The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities: R. v. Starr, 2000 SCC 40, at para. 242.

[17] Mann, supra, at paras. 40, 43, and 45, and MacDonald, supra, at paras. 31, 41, 43, 44, and 49.

[18] Mann, supra, at para. 43.