R. v. Kiritpal

Date: June 19, 2019

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Devendradat Kiritpal

Before: Justice John North

Reasons for Judgment released on: June 19, 2019

Counsel

For the Crown: D. O'Connor and L. Vieira

For the Accused: M. Rombis

I. INTRODUCTION

[1] Devendradat Kiritpal is charged with impaired driving and operating a motor vehicle while his blood alcohol was over the legal limit ("over 80"). The offences are alleged to have occurred on June 30, 2013.

[2] The matter proceeded by way of a blended Charter application and trial.

[3] On the Charter application, the defence argued that breath samples provided by Mr. Kiritpal were obtained in a manner contrary to his rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. It was the position of the defence that Mr. Kiritpal's rights under ss. 8 and 9 were violated because the arresting officer did not have reasonable and probable grounds to either arrest the accused for impaired driving or to make an approved instrument breath sample demand pursuant to s. 254(3) of the Criminal Code. The defence also argued that Mr. Kiritpal's right to counsel of choice under s. 10(b) of the Charter had been infringed. As a result of the Charter violations, the defence argued that the breath samples should be excluded from evidence pursuant to s. 24(2) of the Charter.

[4] On the trial proper, the defence argued that the Crown failed to establish, beyond a reasonable doubt, that Mr. Kiritpal's ability to drive was impaired by alcohol.

[5] The Crown argued that there were no Charter violations, but if there were, the evidence should not be excluded under s. 24(2). The Crown argued that both counts had been proven beyond a reasonable doubt.

[6] Given the evidence and the positions of the parties, my decision on the Charter application will be dispositive of the over 80 count.

[7] After summarizing the evidence, I will address the following four issues:

1. Were Mr. Kiritpal's rights under ss. 8 and 9 of the Charter infringed because the arresting officer did not have reasonable and probable grounds to believe that Mr. Kiritpal's ability to operate a motor vehicle was impaired by alcohol?

2. Has Mr. Kiritpal established that his right, under s. 10(b) of the Charter, to speak with counsel of choice was infringed?

3. If a Charter infringement has been established, should the breath samples be excluded under s. 24(2) of the Charter?

4. Has the Crown established, beyond a reasonable doubt, that Mr. Kiritpal's ability to drive a motor vehicle was impaired by alcohol?

II. EVIDENCE

Evidence of Constable Anatol Goldlioust

[8] The Crown called one witness during the blended Charter application and trial: Constable Anatol Goldlioust. Constable Goldlioust was the police officer who arrested Mr. Kiritpal and made the breath demand. The defence called one witness: Mr. Kiritpal.

[9] Anatol Goldlioust is a constable with the Toronto Police. On June 30, 2013, he was working by himself in a marked police car. Early that morning, he was in the area of Spadina Avenue and College Street. There was an afterhours club called The Comfort Zone at that location. The Comfort Zone was known for drug use. Constable Goldlioust testified that The Comfort Zone did not have a liquor licence but testified, "that's not to say it's not consumed there."

[10] Shortly after 8:00 a.m., Constable Goldlioust watched Mr. Kiritpal leave The Comfort Zone. Mr. Kiritpal walked a short distance, looked at the officer, turned around and began to walk in the opposite direction. Not long after that, Mr. Kiritpal stopped and stood in one spot on College Street for about five minutes. Constable Goldlioust testified that Mr. Kiritpal was "not really doing much."

[11] Constable Goldlioust pulled his car up to where Mr. Kiritpal was standing. The officer lowered his front passenger window and asked Mr. Kiritpal how he was doing. Mr. Kiritpal told the officer that he was "good, just trying to get home." Mr. Kiritpal advised the officer that he had "a bit to drink" and that he lives far away. Constable Goldlioust asked if someone was going to pick him up. Mr. Kiritpal replied that he was waiting for a taxi. Prior to commencing his conversation, the officer saw several taxis drive past the accused on College Street. Mr. Kiritpal told the officer that he had received a ride into Toronto with some friends but that they left without him.

[12] Constable Goldlioust asked Mr. Kiritpal for his name. Mr. Kiritpal produced an Ontario driver's licence with the name Devendradat Kiritpal. Constable Goldlioust returned the driver's licence to Mr. Kiritpal and told him to take care. Mr. Kiritpal thanked Constable Goldlioust for not harassing him and shook the officer's hand. Constable Goldlioust drove away. Constable Goldlioust testified that during this encounter Mr. Kiritpal was not slurring his words and he provided responsive answers to the officer's questions.

[13] Constable Goldlioust testified that the reason he spoke to Mr. Kiritpal was, "to ensure that he was okay, because like I mentioned, the drug use of The Comfort Zone, sometimes people leave there and they're not really able to care for themselves."

[14] A few minutes later, Constable Goldlioust drove past the same location. He saw Mr. Kiritpal remove something from inside a green Honda that was parked across the street. Mr. Kiritpal placed an item into his right pocket and then he entered a nearby taxi. The taxi drove away with Mr. Kiritpal inside. Shortly thereafter, Constable Goldlioust determined that the green Honda was registered to "Mitraany Kiritpal."

[15] Constable Goldlioust testified that based on his previous conversation, in which Mr. Kiritpal "made it sound like he didn't really have a way to get home", the officer found it unusual to see Mr. Kiritpal retrieve something from a car.

[16] A short time later, Constable Goldlioust watched Mr. Kiritpal walk back into The Comfort Zone.

[17] Less than two hours later, and not far from The Comfort Zone, Constable Goldlioust saw the green Honda travelling westbound on College Street. The car was moving much slower than the rest of the traffic and the driver repeatedly applied the brakes for no apparent reason. Constable Goldlioust testified that, based on his training, these are potentially signs of impairment.

[18] The driver of the green Honda pulled his car over to the side of the road as soon as the officer drove up behind him. Constable Goldlioust had not activated the emergency lights or siren. Constable Goldlioust pulled his police cruiser over to the side of the road behind the green Honda.

[19] Constable Goldlioust left his car and walked to the driver's side of the green Honda. The officer saw that Mr. Kiritpal was the driver of the green Honda. Constable Goldlioust began his conversation with Mr. Kiritpal by stating, "I thought you were going to take a taxi home." Mr. Kiritpal replied, "yeah, I am, that's why I stopped driving."

[20] While speaking with Mr. Kiritpal, Constable Goldlioust detected an odour of alcohol from the accused's breath and noticed that his eyes were red. Constable Goldlioust concluded that he had reasonable and probable grounds to believe that Mr. Kiritpal was driving while impaired by alcohol. At approximately 10:31 a.m., Constable Goldlioust arrested Mr. Kiritpal for impaired driving.

[21] Mr. Kiritpal was placed in the back of the officer's car. At approximately 10:34 a.m., he was advised of his rights to counsel. Constable Goldlioust asked the accused if he understood and Mr. Kiritpal confirmed that he did. The officer asked if the accused wanted to call a lawyer and Mr. Kiritpal responded, "sure."

[22] At 10:36 a.m., Constable Goldlioust made a formal demand that, pursuant to s. 254(3) of the Criminal Code, Mr. Kiritpal provide samples of his breath into an approved instrument.

[23] Constable Goldlioust called for another police car to attend the scene. While waiting for the arrival of the other police car, Constable Goldlioust searched in the area of the driver's seat of the green Honda. He located several ripped-up pieces of clear plastic wrapping near the centre console, which the officer testified were consistent with packaging of crack cocaine. In the driver-side door he found a large piece of foil and within it was an off-white substance, which looked like crack cocaine. Constable Goldlioust returned to his police car and advised Mr. Kiritpal that he was also under arrest for possession of crack cocaine for the purpose of trafficking. Later that morning, the officer determined that the substance initially believed to be crack cocaine was not a controlled substance. The officer did not lay a charge under the Controlled Drugs and Substances Act.

[24] At 10:55 a.m., Constable Goldlioust and Mr. Kiritpal left the scene in the officer's car. They arrived at the Toronto Police Traffic Services Unit at 11:03 a.m. While in the police sally-port, the officer opened the back door of the police car to let Mr. Kiritpal out. Constable Goldlioust testified that, "although I had smelled alcohol earlier on him, at this point when I opened the door, the smell was extremely strong, because it was in such a confined space, but as soon as I opened the door, the smell really hit a lot harder than it did before." Constable Goldlioust did not recall Mr. Kiritpal having any difficulties exiting the police car.

[25] At 11:07 a.m., Mr. Kiritpal was brought to the booking sergeant. Constable Goldlioust requested permission to conduct a strip search on Mr. Kiritpal as there was a concern about officer safety given Mr. Kiritpal's criminal record and because he wanted to ensure that Mr. Kiritpal did not have drugs on his person. Constable Goldlioust's request for a strip search was approved. Constable Goldlioust conducted the strip search in a private room and did not find any drugs or weapons.

[26] Constable Goldlioust took Mr. Kiritpal to another room. Mr. Kiritpal asked to speak with a specific lawyer - Bernard Shier.

[27] At 11:27 a.m., Constable Goldlioust located Mr. Shier's office phone number from what the officer believed to be "an official directory of practicing lawyers." Constable Goldlioust testified that police officers regularly obtain phone numbers for lawyers from this directory. The officer did not make a note of the phone number that was listed for Mr. Shier in this directory.

[28] Constable Goldlioust called the lawyer's phone number but it went straight to voice-mail. The officer left a message which included his name, Mr. Kiritpal's name and the phone number where they could be reached.

[29] Constable Goldlioust testified that he did not expect Mr. Shier to return the call because it was a Sunday on a long weekend. In Constable Goldlioust's experience, "it's very rare to have a lawyer call back under those circumstances."

[30] Constable Goldlioust testified that he did not recall seeing an after-hours phone number for Mr. Shier on the internet directory. He testified that he "would have tried any number that was listed there."

[31] After leaving the message for Mr. Shier, the officer approached Mr. Kiritpal "right away" and told him that he had left a message for his lawyer. Constable Goldlioust presented Mr. Kiritpal "with the option" of speaking with duty counsel until Mr. Shier called back. While Mr. Kiritpal had not asked to speak to duty counsel, he agreed to do so.

[32] Constable Goldlioust testified that if Mr. Shier had returned the call while Mr. Kiritpal was speaking with duty counsel, Mr. Kiritpal would have been permitted to speak with Mr. Shier.

[33] At 11:28 a.m., Constable Goldlioust called duty counsel and left a message.

[34] Constable Goldlioust initially rejected defence counsel's suggestion that one reason he provided Mr. Kiritpal with the option of speaking with duty counsel was because he was concerned about obtaining a breath sample within a two-hour period. Constable Goldlioust testified that when he provided Mr. Kiritpal with the option of speaking with duty counsel he "wasn't in big hurry" and he was not trying to rush the accused into getting a breath sample as they had another hour or so to before reaching the two-hour window. However, the officer conceded that the two-hour window was "on his mind".

[35] At 11:47 a.m., Constable Goldlioust left a second message for duty counsel. At 11:53 a.m., duty counsel returned the calls. Mr. Kiritpal was placed into a private room with a phone and had a conversation with duty counsel. This conversation ended at 12:05 p.m.

[36] At 12:05 p.m., Constable Goldlioust took Mr. Kiritpal to the breath room. Once in the breath room, Mr. Kiritpal was turned over to the breath technician, Constable Reimer.

[37] Mr. Kiritpal provided two breath samples to Constable Reimer. The result from the first breath sample, which was taken at 12:16 p.m., was 110 milligrams of alcohol in 100 milliliters of blood. The second breath sample, which was taken at 12:38 p.m., was 90 milligrams of alcohol in 100 milliliters of blood. Mr. Kiritpal was then charged with operating a motor vehicle with a blood alcohol over the legal limit.

[38] Constable Goldlioust testified that while at the Traffic Services Unit Mr. Kiritpal's speech and motor skills were normal.

Evidence of Devendradat Kiritpal

[39] Mr. Kiritpal is 40 years old. At the time of the trial he was employed as a driver for a courier company. He also operated a small transport business.

[40] Mr. Kiritpal has a criminal record. In 2011, he was convicted of assault and failing to appear for court. In 2006, he was convicted of a firearm offence. In 2003, he was convicted of failing to comply with a probation order. In 2002, he was convicted of assault causing bodily harm and failing to comply with a recognizance. In 2001, he was convicted of assault. In 1998, he was convicted of aggravated assault. He testified that Mr. Shier represented him on most of those cases.

[41] In 2013, Mr. Kiritpal was living in Ajax. He testified that on June 29th, he and a friend were working on Mr. Kiritpal's truck in the west-end of Toronto. Afterwards, he drove downtown. His friend was with him. They arrived downtown at about midnight. He parked his car and they walked to a nearby bar, where Mr. Kiritpal had "maybe about two or three drinks." At around 3 a.m., he became separated from his friend.

[42] Mr. Kiritpal testified that he went to The Comfort Zone as it was the only place that he knew was open at that hour. He said that he went there to wait for his friend. Mr. Kiritpal testified that he did not drink any alcohol after arriving at The Comfort Zone and spent almost the entire night in this club.

[43] Mr. Kiritpal testified that when he was arrested by Constable Goldlioust, "I thought I was pretty sober."

[44] After he was advised of his rights to counsel, he told Constable Goldlioust that he would like to call his lawyer, Bernard Shier.

[45] Mr. Kiritpal believed that the officer "looked up" his lawyer's phone number. Mr. Kiritpal was told by the police that his lawyer "was not answering."

[46] Mr. Kiritpal testified that his lawyer's cell phone number was in the cell phone that the police seized from him when he was arrested. According to Mr. Kiritpal, he asked a police officer to get Mr. Shier's number from his seized cell phone and the officer responded that he was "going to look it up." When asked by Crown counsel in cross-examination which officer he spoke to about his cell phone, Mr. Kiritpal responded, "I asked one of the officers that was there."

[47] Mr. Kiritpal testified that he was told by an officer that he could "go with duty counsel – because I have to go for bail." Mr. Kiritpal agreed to speak with duty counsel. He did not speak with Mr. Shier while he was in custody.

[48] In cross-examination, Mr. Kiritpal agreed it was not surprising that Mr. Shier did not return the message as it was a long weekend and the officer only called the lawyer's office phone number. Mr. Kiritpal testified, "I probably could've gotten a hold of my lawyer with the cell phone number." He testified that in the past he was usually able to reach his lawyer by calling his cell phone number.

[49] In cross-examination, Mr. Kiritpal said it occurred to him that if he spoke with duty counsel he might "be on his way sooner."

[50] The video and audio recording of what occurred in the breath room was played during the accused's cross-examination. The recording shows that Mr. Kiritpal and Constable Goldlioust entered the room at 12:05 p.m. Constable Goldlioust remained in the room during the process. Less than a minute after Mr. Kiritpal entered the room, the following exchange occurred:

Reimer: Did you speak to a lawyer?

Kiritpal: Duty counsel.

Reimer: Satisfied with that?

Kiritpal: Yeah…not really but whatever. I didn't get to speak with my lawyer, but it's okay.

Reimer: Okay, what's the issue with that? What's going on?

Kiritpal: I would rather speak with my lawyer, you know what I mean? But whatever.

Reimer: Tell me what happened. Why didn't you speak with your own lawyer?

Kiritpal: Ahh, couldn't get a hold of him.

Reimer: So you asked the officer to speak with your own lawyer, did you give the officer…(interrupted)

Kiritpal: Yeah, he couldn't get a hold of him.

Reimer: Couldn't get a hold of him, okay. So, the officer did he offer you duty counsel or did you ask for duty counsel?

Kiritpal: No, I didn't ask for it but…

Reimer: He offered it?

Kiritpal: Yup.

Reimer: Did you accept it?

Kiritpal: Ahh, yep.

Reimer: Okay, you had a chance to speak with a lawyer.

Kiritpal: Duty counsel, yeah.

Reimer: Do you understand that you are here to give samples of your breath?

Kiritpal: Yeah.

Reimer: So if your lawyer ends up calling back there's no problems with you talking to him. Okay, even though you already talked to duty counsel.

Kiritpal: Ahh, yeah I'd like to speak with my lawyer if he calls.

Reimer: Yeah, if he calls back.

Kiritpal: Yeah.

Reimer: I'm assuming that there was a voice-mail left…

Kiritpal: Ahh, I have no clue.

Reimer: A voice-mail was …

Goldlioust: There was. There was.

Reimer: If he calls back, he calls back. In the meantime, you got a chance to at least speak with duty counsel. So it's not like you haven't spoken with anyone, right?

Kiritpal: Yeah, I spoke with duty counsel.

Reimer: It's better than nothing.

III. ISSUES

1) Were Mr. Kiritpal's rights under ss. 8 and 9 of the Charter infringed because the arresting officer did not have reasonable and probable grounds to believe that Mr. Kiritpal's ability to operate a motor vehicle was impaired by alcohol?

The Law

[51] Section 8 of the Charter provides that, "everyone has the right to be secure against unreasonable search or seizure."

[52] The taking of a breath sample is a seizure for the purpose of s. 8 of the Charter: R. v. Haas (2005), 76 O.R. (3d) 737 (Ont. C.A.) at para. 23, leave to appeal dismissed on December 15, 2005.

[53] Section 9 of the Charter provides that "everyone has the right not to be arbitrarily detained or imprisoned." As Paciocco J.A. notes in R. v. Gerson-Foster, 2019 ONCA 405, at para. 74, "[t]he arbitrariness of a detention turns on its legality." A lawful detention is not arbitrary unless the law authorizing the detention is arbitrary: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54.

[54] Ordinarily, a Charter claimant has the burden, on a balance of probabilities, to demonstrate a breach. However, the Crown has the onus, on a balance of probabilities, to establish that a warrantless search or seizure was reasonable: R. v. Haas (2005), 76 O.R. (3d) 737 (Ont. C.A.) at paras. 23-39, leave to appeal dismissed on December 15, 2005. See also: R. v. Bush, 2010 ONCA 554, at para. 13.

[55] As Mr. Kiritpal brought both ss. 8 and 9 claims, and since the Crown is seeking to rebut the presumption that the warrantless searches were lawful, the Crown has the "burden on both of the overlapping ss. 8 and 9 claims and must prove that the arrest was legal": Gerson-Foster, at para. 75.

[56] The determination of whether Mr. Kiritpal's rights under ss. 8 or 9 of the Charter were violated turns on the essentially the same question. The issue is whether Constable Goldlioust had reasonable and probable grounds to believe that Mr. Kiritpal had committed the offence of impaired driving: R. v. Hurdon, 2018 ONCJ 667, at para. 20.

[57] If Constable Goldlioust lacked reasonable and probable grounds to arrest Mr. Kiritpal for impaired driving, the arrest would have been unlawful and contrary to s. 9 of the Charter: Grant, at paras. 54-55. The absence of reasonable and probable grounds would also mean that the demand for a breath sample was made without lawful authority and, consequently, the seizure of the breath samples would be in violation of s. 8 of the Charter: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 13.

[58] Reasonable and probable grounds "does not amount to proof beyond a reasonable doubt" and does not require proof on a balance of probabilities or even a prima facie case: Bush, at para. 37; R. v. Canary, 2018 ONCA 304, at para. 23.

[59] The test is met where, based on all of the circumstances known to the officer, "reasonable probability" or "reasonable belief" replaces suspicion: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166; R. v. St. Clair, 2018 ONSC 5173, at para. 48. Reasonable grounds is about probabilities, not mere suspicion or possibility: R. v. Williams, 2018 ONSC 3654, at para. 108.

[60] Whether reasonable and probable grounds exist is a "fact-based exercise dependent upon all of the circumstances of the case": Bush, at para. 54.

[61] Determining whether sufficient grounds exist to justify an exercise of police powers calls for an application of "[c]ommon sense, flexibility, and practical everyday experience" and is not a "scientific or metaphysical exercise": R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73; R. v. Canary, 2018 ONCA 304, at para. 22; Williams, at para. 108.

[62] There are subjective and objective components to the reasonable and probable grounds requirement: Gerson-Foster, at paras. 77-79.

[63] The subjective component, "…requires the officer to have an honest belief the suspect committed the offence": Bush, at para 38; Canary, at para. 21.

[64] The objective component, "is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest": Bush, at para 38. In other words, the officer's subjective belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: Canary, at para. 2l; Gerson-Foster, at para. 78.

[65] In assessing the totality of circumstances, a court must not look at the officer's grounds in isolation. Instead, as Fairburn J.A. concluded in Canary, at para. 30, the correct approach to assess the objective reasonableness of an arresting officer's subjective belief is as follows:

"Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable".

[66] The reasonable and probable grounds standard as applied to impaired driving requires an officer to have an honest belief, which is objectively reasonable, that an accused was operating a motor vehicle while his or her ability to drive was even slightly impaired by the consumption of alcohol: Bush, at para. 48. In Bush, at para. 47, Durno J. sitting ad hoc, addressed what is meant by a "slight impairment to drive":

"Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting in perception or field of vision, reaction or response time, judgment and regard for rules of the road."

[67] The reasonable and probable grounds standard, in the context of a breath demand, is "not an onerous one" and must not "be inflated to the context of testing trial evidence": Bush, para. 46; R. v. Censoni, [2001] O.J. No. 5189, at para. 43 (ON SC); R. v. Wang, 2010 ONCA 435, at para. 17. However, the standard must not "be so diluted as to threaten individual freedom": Bush, at para. 46.

Analysis

[68] Constable Goldlioust subjectively believed that he had reasonable and probable grounds to both arrest Mr. Kiritpal for impaired driving and make a demand for an approved instrument breath sample.

[69] Based on the following facts that were known to Constable Goldlioust at the time of the arrest, I conclude that the officer's subjective belief was objectively reasonable:

• Mr. Kiritpal had admitted to the officer that he had been drinking alcohol.
• After admitting that he had been drinking alcohol, Mr. Kiritpal told the officer that he was going to take a taxi home.
• Mr. Kiritpal was driving his car much slower than the other vehicles on the street. Based on his training, Constable Goldlioust knew this could be an indicator for impaired driving.
• Mr. Kiritpal repeatedly hit the vehicle's brake lights for no apparent reason. Based on his training, Constable Goldlioust knew this could be an indicator for impaired driving.
• There was a smell of alcohol from Mr. Kiritpal's breath.
• Mr. Kiritpal's eyes were red.
• Mr. Kiritpal abruptly pulled his car over to the side of the road when Constable Goldlioust, who was driving a marked police car, approached the accused's vehicle from the rear.

[70] These facts, when viewed through the eyes of a reasonable person with the knowledge, training and experience as Constable Goldlioust establish that there were reasonable and probable grounds to believe that Mr. Kiritpal's ability to drive was impaired by the consumption of alcohol.

[71] Mr. Kiritpal's arrest for impaired driving and the demand for a breath sample were lawful. The applications pursuant to ss. 8 and 9 of the Charter are dismissed.

2) Has Mr. Kiritpal established that his right, under s. 10(b) of the Charter, to speak with counsel of choice was infringed?

Introduction

[72] The defence argued that Mr. Kiritpal's right to speak with his counsel of choice was infringed because the police failed to wait a reasonable time for Mr. Kiritpal's lawyer to call back. The defence suggested that Mr. Kiritpal was effectively funneled to duty counsel. Mr. Kiritpal's testimony that he told a police officer that his seized cell phone contained Mr. Shier's contact information raises the issue of the adequacy of the steps taken by police to facilitate his request to speak with counsel of choice.

[73] Crown counsel argued that the accused's rights under s. 10(b) were not violated. The Crown argued that the police waited a reasonable amount of time for Mr. Shier to return the message. The Crown denied the suggestion that the accused was funneled to duty counsel. The Crown argued that by contacting duty counsel Constable Goldlioust was attempting to facilitate the accused's rights to counsel. The Crown noted that Mr. Kiritpal chose to speak to duty counsel and asserted that the accused told the police that he was satisfied with his consultation with duty counsel.

The Law

[74] Section 10(b) of the Charter provides that, "everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."

[75] An accused person has the evidentiary burden, on a balance of probabilities, to establish that his or her s. 10(b) rights were infringed: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 at para. 30.

[76] In R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192, Lamer C.J.C. concluded that s. 10(b) imposes the following duties on the police after arresting or detaining a person:

"(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)."

[77] The right to contact and speak with counsel of choice is a component of a detainee's s. 10(b) rights: R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 24 and 35.

[78] Where a detainee elects to exercise his or her right to counsel by speaking with a specific lawyer, "s. 10(b) entitles him or her to a reasonable opportunity to contact chosen counsel": McCrimmon, at para. 17. If counsel of choice is not immediately available, an accused person has "the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond": Willier, at para. 35; McCrimmon, at para. 17.

[79] Section 10(b) imposes a duty on the police to afford a detainee a reasonable opportunity to contact counsel of choice and to facilitate that contact: Willier, at para. 41. When a detainee asserts the right to counsel of choice, police are under a duty to facilitate contact with counsel at the first reasonable opportunity: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 24-25; R. v. Maciel, 2016 ONCJ 563, at para. 37. However, as Pringle J. recently observed in R. v. Vandermeer, 2019 ONCJ 256, at para. 31:

"…the right to counsel of choice is not absolute. There are limits to the implementational duty police bear. For example, a detainee must be reasonably diligent about exercising their right to counsel."

[80] If counsel of choice cannot be available within a reasonable period of time, "detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended": Willier, at para. 35; McCrimmon, at para. 17.

[81] Whether a detainee has been reasonably diligent in the exercise of his or her s. 10(b) rights or has waited a reasonable amount of time for their lawyer of choice to respond will depend on the particular circumstances of a case: Willier, at paras. 33 and 35. The analysis must be informed by the purpose of the guarantee as the "right to counsel upon arrest or detention is intended to provide detainees with immediate legal advice on his or her rights and obligations under the law, mainly regarding the right to remain silent": McCrimmon, at para. 17.

[82] In R. v. Winterfield, 2010 ONSC 1288, at para. 65, Durno J. concluded that there is no authority that supports the position that police are required to exhaust all reasonable means for a detainee to speak with counsel of choice and that the test is "[n]ot whether the officer did everything he could have done to facilitate contact with counsel." Instead, Durno J. concluded that an "officer is to facilitate contact with counsel by taking steps to ensure a reasonable opportunity to contact counsel." See also R. v. Vernon, 2015 ONSC 3943, at para. 48, leave to appeal denied 2016 ONCA 211; R. v. Wijesuriya, [2019] O.J. No. 2252 (O.C.J.), at para. 11.

[83] The question of what steps the police must take to satisfy their implementational obligation to facilitate a detainee's request to speak with counsel of choice has been the subject of a number of recent decisions of this Court: R. v. Maciel, 2016 ONCJ 563; R. v. Marwan Elaraby, an unreported decision released by the Ontario Court of Justice, on February 19, 2019, per Jaffe, J.; R. v. Shariq, 2018 ONCJ 340, at para. 10; R. v. Ali, 2018 ONCJ 203; R. v. Middleton, 2018 ONCJ 387; R. v. Mattie, 2018 ONCJ 907.

[84] These cases reveal that it is the practice of some police services in Ontario to make telephone calls to counsel on behalf of detainees who have asked to speak with a specific lawyer. Detainees are often not provided access to a phone book, the internet or a phone for the purpose of locating counsel's contact information. Instead, the police assume the responsibility of contacting counsel on behalf of the detainees. That is what happened in the case at bar.

[85] In Maciel, at para. 42, Stribopoulos J. concluded that where the police assume the responsibility of contacting counsel of choice on behalf of a detainee, it is for the courts to assess the adequacy of those efforts. Stribopoulos J. concluded, at para. 43, that where police take on this function on behalf of the detainee, they assume an obligation to do so with reasonable diligence. At para. 47, Stribopoulos J. set out a list of steps that should be taken by police, at a minimum, to obtain counsel's contact information to ensure that the reasonable diligence standard has been met. These steps include:

• Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact.
• Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer's number stored on such a device.
• Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these.
• Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada's Paralegal and Lawyer Directory.
• Using any available conventional paper-based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

[86] In Shariq, at para. 10, Duncan J. stated that while he tended to agree with the Maciel approach, he was "not sure that the Court of Appeal does." Duncan J. cited two decisions of the Ontario Court of Appeal which involved "perfunctory attempts by police to reach counsel of choice", and in both cases the Court found no violation of the appellants' s. 10(b) rights.

[87] In R. v. Solomon, 2018 ONCJ 891, at para. 15, Duncan J. concluded that:

"Where a detainee has indicated his desire to speak to counsel, the police have a duty to assist him by providing the information necessary for him to attempt to contact counsel and making reasonable efforts to facilitate his doing so. In cases of counsel of choice where attempts to contact counsel have been unsuccessful, the sufficiency of police efforts must be assessed. However, the test is not whether the police could have done more; the test is whether what they did provided a reasonable opportunity to the detainee to contact counsel. There are no hard and fast rules as to what is required. Each case is fact specific. Cases such as R. v. Maciel, that provide helpful suggestions as to steps that can be taken by police should not be read as mandating those steps in every case." (emphasis added; citations removed).

[88] In R. v. Sivalingam, 2019 ONCJ 239, at para. 40, Schwarzl J. concluded that "[w]here the police assist the detainee or control the means of exercising his rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if he was implementing his rights on his own." Schwarzl J. was also of the view, at paras. 41-42, that, "[t]he test is not whether the police could or should have done more, but rather whether the police provided the detainee with the necessary information and assistance to allow him to exercise his rights." Finally, Schwarzl J. concluded at para. 45 that, "[u]nless the detainee expresses to the police dissatisfaction with the legal advice received, he is not entitled to Charter relief."

Analysis

[89] In my view, the police efforts to facilitate the accused's desire to speak to counsel of choice in this case fell short of what is required by s. 10(b). They failed to provide the necessary assistance to allow Mr. Kiritpal to exercise his s. 10(b) rights.

[90] The police knew that Mr. Kiritpal wanted to speak with Mr. Shier.

[91] On balance, I accept Mr. Kiritpal's testimony that after he was arrested he told one of the police officers that Mr. Shier's contact information was on the cell phone that the police seized from him. Mr. Shier had represented Mr. Kiritpal on many occasions. Mr. Kiritpal testified that in the past he had been able to contact his lawyer by calling his cell phone.

[92] The police assumed the responsibility of contacting counsel on behalf of Mr. Kiritpal. Constable Goldlioust controlled the means of access to counsel. After obtaining a phone number on the internet, Constable Goldlioust left one message on Mr. Shier's office voice-mail. Constable Goldlioust knew that it was very unlikely that Mr. Shier would respond to a message left on his office voice-mail as it was a long weekend. After leaving the voice-mail message, Constable Goldlioust took no further steps to facilitate Mr. Kiritpal's request to speak with Mr. Shier.

[93] There were a number of other steps that the police could have taken to assist Mr. Kiritpal to speak with Mr. Shier: Maciel, at para. 47. While the police are not required to take all possible steps to satisfy this burden, in the circumstances of this case, they were required to do more than they did. At the very least, they should have retrieved Mr. Kiritpal's cell phone and allowed him to find his lawyer's phone number on this device: Middleton, at paras. 61-62.

[94] By not allowing Mr. Kiritpal to use his cell phone to find his lawyer's phone number the police did not satisfy their duty to reasonably facilitate the accused's request to speak to counsel: Middleton, at para. 60.

[95] The related issue is whether the police waited a reasonable period of time for counsel of choice to return the call. I conclude that they did not. What will qualify as a reasonable period of time depends on a number of factors including the urgency of the investigation: Willier, at para. 35. The potential inability of the Crown in drinking and driving cases to rely on the two-hour presumption in s. 258(1)(c)(ii) of the Code does not, by itself, give rise to a level of urgency that displaces the right to consult with counsel of choice: Maciel, at para. 38.

[96] Further, an assessment of whether the police in this case waited a reasonable period of time must take into account that the police did not properly facilitate the accused's request to speak to counsel of choice. In my view, given that the police should have taken additional steps to properly facilitate the accused's request to speak to counsel of choice, the 49 minutes between the message left by the officer for Mr. Shier and the first breath sample was not a reasonable period of time to wait for counsel to return the call.

[97] Finally, in assessing whether there was a s. 10(b) breach, it is worth remembering that while Mr. Kiritpal was in the breath room, he told the police that he was not completely satisfied with his consultation with duty counsel but then added that it was "okay".

[98] In my view, since his request to have access to his cell phone to call his lawyer was ignored and given that even in the breath room he continued to express a desire to speak with Mr. Shier, I find that Mr. Kiritpal was reasonably diligent in asserting his right to speak with counsel of choice.

3) If a Charter infringement has been established, should the breath samples be excluded under s. 24(2) of the Charter?

Introduction

[99] Having found that Mr. Kiritpal's s. 10(b) rights were violated, I turn to the question of whether the breath samples should be excluded under s. 24(2) of the Charter.

[100] The party seeking to have evidence excluded under s. 24(2) bears the burden of proving that its admission would bring the administration of justice into disrepute: R. v. Fearon, [2014] S.C.R. 621, at para. 89; R. v. Sandhu, 2011 ONCA 124, at para. 42; R. v. Lenhardt, 2019 ONCA 416, at paras. 11-12.

[101] A court's s. 24(2) analysis must consider the long-term impact of the admission or exclusion of evidence on the administration of justice: Grant, at para. 68; R. v. Le, 2019 SCC 34, at para. 140.

[102] Section 24(2) is "premised on the assumption that there must be a long-term negative impact on the administration of justice if criminal courts routinely accept and use evidence gathered in violation of the legal rights enshrined in the Charter": R. v. McGuffie, 2016 ONCA 365, at para. 60. See also Le, at para. 140.

[103] A court must consider each of the three lines of inquiry in Grant to determine whether the admission of the evidence obtained in a manner that infringed the accused's Charter rights would bring the administration of justice into disrepute. Ultimately, a court must decide whether "a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute": Grant, at para. 68.

The Seriousness of the Charter-Infringing State Conduct

[104] The first branch of the Grant test involves an assessment of the seriousness of the state conduct that led to the infringement: Grant, at para. 74.

[105] Seriousness is a variable, not a constant: R. v. Mahmood, [2011] ONCA 693, at para. 122. Police conduct "can run the gamut from blameless conduct, through negligent conduct to conduct demonstrating a blatant disregard for Charter rights": R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 23. In assessing the seriousness of the Charter-infringing state conduct, a court must "situate that conduct on a scale of culpability": R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para 43; Le at para. 143.

[106] The more serious or deliberate the state conduct that resulted in a Charter violation, the greater the need for a court to dissociate itself from that conduct by excluding evidence connected to that misconduct: Grant, at para. 72; R. v. Cote, 2011 SCC 46, at para. 47.

[107] A finding of willful or flagrant disregard of the Charter will increase the seriousness of the conduct. A pattern of Charter-infringing behavior by the police will aggravate the seriousness of the conduct: Grant, at para. 75. On the other hand, inadvertent, technical or minor violations have less of an impact upon the reputation of the administration of justice: Le, at para. 143.

[108] Good faith on the part of the police will reduce the need for the court to disassociate itself from the police conduct: Paterson, at para 44. The absence of bad faith does not amount to a finding of good faith: Le, at para. 147.

[109] In this case, I am satisfied that the police did not deliberately set out to violate Mr. Kiritpal's right to counsel of choice. The police made some effort to contact the accused's counsel of choice and also ensured that the accused spoke to duty counsel.

[110] A good faith claim must be rejected where it is based upon ignorance of established legal norms with which police officers should be familiar or an unreasonable application of established legal standards: Paterson, at para 44; U.S. v. Talashkova, 2014 ONCA 74, at para. 10. Ignorance of Charter standards or negligence in meeting Charter standards cannot be equated with good faith: Grant, at para. 75. Le, at para. 143. However, Charter-infringing police conduct that is the product of a mistaken understanding of the law where the law is unsettled is considered less serious: R. v. Saeed, 2016 SCC 24, at para. 126.

[111] While the requirement that police must facilitate an accused's request to speak to counsel of choice is not a new development in Canadian law, what the police must do to discharge that obligation is not entirely settled: Shariq, at para.10. However, in my view, the police in this case should have known that they were required to do more than they did to satisfy their obligations under s. 10(b) of the Charter. At the very least, the police were required to allow Mr. Kiritpal to obtain his lawyer's contact information from his cell phone.

[112] I cannot find that the s. 10(b) violation was committed in good faith. In short, neither a good faith nor a bad faith finding would be appropriate.

[113] In Middleton, at para. 78, Parry J. found that the police conduct in that case was "extremely serious." That conclusion was, in part, the product of a finding that the police ignored the accused's request for his cell phone, which contained contact information for a criminal lawyer.

[114] In this case, while the Charter-infringing conduct falls towards the more serious end of the spectrum, it was not at the most extreme end. The breach was sufficiently serious to favour exclusion.

The Impact of the Breach on the Charter Protected Interests of the Accused

[115] On the second Grant line of inquiry, a court is required to assess the "seriousness of the impact of the Charter breach on the Charter-protected interests of the accused": Grant, at para 76.

[116] The impact of a constitutional infringement on an accused's Charter-protected interest is a variable. Charter violations range from technical to highly intrusive: Le, at para. 151; Grant, at para. 76. The more serious the violation on the protected interests of the accused, the greater the risk that the administration of justice will be brought into disrepute: Grant, at para 76.

[117] A court must consider the extent to which the breach actually undermined the interests protected by the right infringed: Grant, at para. 76; Le, at para. 151.

[118] In Willier, at para. 28, the Court described the interests protected by s. 10(b) as follows:

"…s. 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage."

[119] In R. v. Ali, 2018 ONCJ 203, at paras. 76-77, Burstein J. considered the interests protected by the right to counsel of choice. At para. 76, Burstein J. concluded that:

"The opportunity to control the choice of legal advisor fosters trust in the advice received by the detainee. If a detainee lacks trust in the lawyer with whom they were allowed to consult, that detainee may not trust what the lawyer tells them about their rights and obligations, the very purpose of the rights enshrined in s. 10(b) of the Charter."

[120] In this case, the decision by the police to not allow Mr. Kiritpal to have access to his cell phone denied him an opportunity to speak with his counsel of choice.

[121] The impact of the breach in this case is somewhat attenuated by the fact that Mr. Kiritpal received legal advice from duty counsel: R. v. Piacampo, 2017 ONCJ 423, at para. 23. In Shariq, at para. 21, Duncan J. concluded:

"In the breath tech situation, the practical impact of lost opportunity to consult with counsel of choice is near non-existent where duty counsel, trained and specialized in exactly this area, is available: see R. v. Wilding, 2007 ONCA 853, [2007] O.J. 4776 (C.A.)"

[122] There is no basis to conclude that duty counsel provided the accused with flawed legal advice. Having said that, as Parry J. concluded in Middleton, at para. 80, the law does not permit speculation as to what advice an accused might have received if he or she had received legal advice from counsel of choice.

[123] In any event, it is clear that as a result of the s. 10(b) violation Mr. Kiritpal lost the opportunity to speak to counsel of choice: Middleton, at para. 80.

[124] In my view, the actual impact of the s. 10(b) violation on the accused's Charter protected interests in this case was not insignificant. This tends to favour exclusion of the evidence.

Society's Interest in the Adjudication of the Case on its Merits

[125] The third line of the Grant inquiry requires an assessment of the societal interest in the adjudication of the case on its merits.

[126] In R. v. McGuffie, 2016 ONCA 356, at para. 63, Doherty J.A. described the practical impact of the third Grant inquiry as follows:

"…the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence." [citations removed]

[127] The reliability and importance of the evidence are two important factors at this stage. However, the third Grant inquiry, "cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown's case": Le, at para. 142 [emphasis in original].

[128] On the third Grant line of inquiry, a court may consider the seriousness of an alleged offence. However, the seriousness of an offence is a consideration that can cut both ways in a s. 24(2) analysis: Grant, at para. 84. The seriousness of an offence must not take on disproportionate significance in the analysis: Harrison, at para. 34.

[129] The breath sample evidence in this case is crucial to the prosecution of the "over 80" charge. This evidence is reliable. There is a "strong societal interest in dealing with drinking and driving cases on their merits": Sivalingam, at para. 64.

[130] The third Grant factor in this case favours admission of the evidence.

Would the Admission of the Evidence Bring the Administration of Justice Into Disrepute?

[131] After considering all three lines of inquiry mandated by Grant, a trial judge must determine, on balance, whether the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute: Grant, at paras. 85-86. There is no rule on how the balance is to be struck: Grant, at para. 86.

[132] In this case, having regard to the seriousness of the state infringing conduct and the actual impact on Mr. Kiritpal's right to counsel of choice, I have concluded that the admission of the breath samples would bring the administration of justice into disrepute.

4) Has the Crown Established, Beyond a Reasonable Doubt, that Mr. Kiritpal's Ability to Drive a Motor Vehicle was Impaired by Alcohol?

[133] To prove the impaired driving charge, the Crown must establish beyond a reasonable doubt that Mr. Kiritpal's ability to operate a motor vehicle was impaired – even slightly – by alcohol at the time he was driving his car: R. v. Stellato (1993), 78 O.R. (3d) 380; aff'd (1994), 90 C.C.C. (3d) 160 (S.C.C.).

[134] In R. v. Andrews, 1996 ABCA 23, at para. 23, the Court concluded:

"Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise."

[135] As I have already concluded, Constable Goldlioust had reasonable and probable grounds to believe that Mr. Kiritpal had been driving while impaired by alcohol. However, I am not satisfied beyond a reasonable doubt that Mr. Kiritpal is guilty of impaired driving. The evidence regarding Mr. Kiritpal's driving only established a slight deviation from normal conduct. The video from the breath room reveals that Mr. Kiritpal provided responsive answers to the officer's questions. While Mr. Kiritpal was at the Traffic Services Unit, he did not slur his words.

[136] In the end, I am not sure that Mr. Kiritpal's ability to drive was impaired by alcohol.

IV. CONCLUSION

[137] As previously stated, the admissibility of the breath sample evidence was the only issue on the "over 80" charge.

[138] For the reasons given, Mr. Kiritpal is found not guilty of both counts.

NORTH J.

Footnotes

[1] In his Notice of Application, counsel for Mr. Kiritpal stated that the defence would be seeking an order staying the proceedings or, in the alternative, an order excluding the evidence. However, at the end of the blended hearing, defence counsel did not make any arguments in support of an order to stay the proceedings. In any event, after considering all of the evidence and the submissions of counsel, I see no basis for a stay of proceedings.

[2] On December 18, 2018, Bill C-46 came into force. On that date, ss. 249 to 261 of the Criminal Code were repealed and replaced by the new Part VIII.1, "Offences Relating to Conveyances". A determination of whether the demand for approved instrument breath samples from the accused in this case was lawful must be made based on the since-repealed s. 254(3) of the Criminal Code.

[3] In his Form 1 Application, defence counsel took the position that Mr. Kiritpal's rights under s. 8 of the Charter had been violated as a result of the strip search. However, counsel abandoned that argument. Mr. Kiritpal did not assert that his rights under any Charter provision were violated as a result of the strip search.

[4] The evidence regarding the "two-hour window" related to the presumption of identity set out in s. 258(1)(c) of the Criminal Code. This provision was repealed in December, 2018. There have been a number of recent cases on the issue of whether the presumption of identity contained in the since repealed s. 258 provision continues to apply to prosecutions in transitional cases. As Latimer J. recently noted in R. v. McAlorum, 2019 ONCJ 259, at para. 3, different members of this court have come to different conclusions on this issue. In this case, defence counsel never suggested that the presumption of identity does not apply in this trial.

[5] Mr. Shier did not respond to the message that Constable Goldlioust left on his office voice-mail.

[6] Although not specifically cited by Constable Goldlioust as one of the factors that he took into account when deciding that there were reasonable and probable grounds to arrest Mr. Kiritpal for impaired driving, objectively, the accused's response to Constable Goldlioust's observation that the accused had previously told him that he was going to take a taxi home ("Yeah, I am, that's why I stopped driving") provides additional support to the conclusion that there were reasonable and probable grounds.

[7] See also Solomon, at para. 18, in which Duncan J. concluded that "[e]ven if the police efforts fell short of being reasonable, the defendant's acceptance of duty counsel either negates a finding of breach of mitigates the seriousness of it thereby tending to favour admission of the evidence." Contra: Ali, at paras. 74-77.

[8] See also: Le, at para. 141.