Court File and Parties

Ontario Court of Justice

Date: 2019-07-10

Court File No.: Ottawa 17-A11844

Between:

Her Majesty the Queen

— and —

Sydney Ward

Before: Justice David Berg

Reasons for Judgment released on July 10, 2019

Counsel:

• Lindsay Little, counsel for the Crown
• Eric Granger, for the defendant

Judgment

Berg J.:

The Charge

[1] Sydney Ward stands charged that on or about the 10th day of July in the year 2017, he did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, operate a motor vehicle and thereby commit an offence under s. 253(1)(b) of the Criminal Code, contrary to s. 255(1) of the Criminal Code.

[2] The Crown has elected to proceed summarily. The trial proceeded before me in a blended manner, that is to say that the evidence is applicable on the Charter voir dire and the trial proper. Evidence was heard on November 7 and 8, 2018, and January 14, 2019 with submissions on later dates. I am now rendering my decision on the voir dire and my judgment on the trial.

The Evidence

[3] On the evening of July 10, 2017, Constable Cazares-Caucci, who at that time had been a member of the Ottawa Police Service for six and a half years, was on general patrol in an unmarked police vehicle in the south end of the city. At approximately 22:20 hrs., he came up behind the vehicle being driven by Mr. Ward stopped for a red light. When the light turned to green, the two cars continued southbound with the officer roughly five car lengths behind the defendant's red Pontiac Grand Prix. From his position, Mr. Cazares-Caucci made certain observations.

[4] First of all, he observed the Grand Prix to disobey a stop sign at an intersection. Then, he noticed that Mr. Ward was not maintaining a consistent speed. While the road was in a 60 kph zone, the Pontiac travelled at about 20 kph, then accelerated to 40 kph, stopped abruptly and turned left into a grocery store parking lot. Once in the parking lot, the officer noted that as Mr. Ward drove through it, he made exaggerated manoeuvres to the right of the speed bumps in order to go around them. Upon exiting the parking lot, Mr. Ward disobeyed the stop sign that governed entrance onto the municipal roadway. He thereupon turned right but did so not into the proper lane (i.e., he turned into the left lane). Mr. Ward then signalled his intention to turn left and did so. By this time, the constable had made a decision to investigate the driver based on his observations of erratic driving. He therefore turned on his emergency lights and siren. However, Mr. Ward did not stop and continued driving for roughly another one hundred and fifty metres until he reached what turned out to be the parking spot associated with his home. The officer stopped nearby, got out of the scout car, and approached the driver's side window of the Pontiac. He testified that Mr. Ward appeared to be surprised, indeed startled by his appearance beside him. This was at 22:23 hrs. Constable Cazares-Caucci noted that Mr. Ward was the only occupant of the car. He noticed that there was an odour consistent with that of an alcoholic beverage on Mr. Ward's breath. At 22:25 hrs., he read out the ASD demand.

[5] Prior to the arrival of the ASD, Mr. Ward remained outside of the scout car and was not handcuffed; there were no safety concerns. The constable initially testified during cross-examination that at that point, Mr. Ward was "to some degree detained" and that if he had attempted to leave, the officer would have stopped him. Yet, despite this, Mr. Cazares-Caucci went out of his way when responding to Mr. Granger's questions to avoid having to state clearly the obvious: that Mr. Ward was well and truly detained at that point. I will here cite but part of this exchange:

Q: And you agree somebody is detained at the point of time you're making an ASD demand and then administering the test?

A: In this case I was still investigating at that point. Had there been a concern raised to me by Mr. Ward, I would have proceeded by detaining him but such as in this case I read the demand he was – and it – and he agreed to accompany me for the demand and the events followed.

[6] At the time that he made the demand, Constable Cazares-Caucci did not have an ASD with him. Therefore, he made a request on air by means of his portable radio for another officer to attend at his location with such a device. During examination in chief, he testified that he was advised that Constable Dubue, who was also patrolling the south end, would respond to the request. However, during cross-examination, he told me that he could not recall if he was told over the air that Dubue would be the responding officer or whether he merely learned that upon the arrival on scene of that officer. As he was not sitting inside his patrol vehicle, he would not have been able to see if anything had come in over the computer. He was unaware of from where Constable Dubue had to drive in order to deliver the ASD to him. Ultimately, he had to concede in cross-examination that he had not known how long it was going to take Constable Dubue to arrive on scene. Mr. Cazares-Caucci testified that at 22:31 hrs., Constable Dubue arrived with an ASD.

[7] During examination in chief, Mr. Cazares-Caucci told me that in his experience, it takes five to ten minutes for an ASD to arrive once the request has been made; it depends on the proximity of the transporting officer. It was his evidence that as a result of his experience, he essentially did not believe that there was going to be any unreasonable delay of time before the ASD was delivered to him. Ms. Little then quite properly asked him the following question to which, unfortunately, she received the following non-responsive answer:

Q: In the six minutes before the ASD arrived did you say anything to Mr. Ward?

A: Uhm, during that time, I uh as uh when I demonstrated uh the process – in demonstrating the process to Mr. Ward and then eventually having him uh provide a sample uh on his first attempt it appeared to me that there was a - an intentional uhm lack of – of – of uh sufficient breath blown in the device by Mr. Ward, and at that point in time when I had observed that I – I brought it to his attention that there is a potential for a refusal charge should he intentionally not provide a suitable sample into the device. Uhm, and after he provided on another attempt a suitable sample uhm, the device registered a fail uhm with uh and at that point in time uh I subsequently arrested him at 10:32 p.m. uh for having uh as I believed that he had operated a motor vehicle uhm with a blood alcohol content exceeding 80 milligrams per 100 millilitres of blood.

[8] Mr. Granger followed up on this point in cross-examination. Despite the fact that he had not known at the time how long it would take for the ASD to be delivered to him, and despite knowing that police officers are required to fulfill their constitutional obligation pursuant to section 10(b) upon arrest or detention, it was his evidence that:

[b]ecause it wasn't a lengthy period of time I didn't – I acted in good faith and I didn't think it was unreasonable not to give him the rights and caution upon at that moment. I was still in the process of investigating and I didn't perceive that it was a lengthy amount of time.

There then followed a series of questions predicated on a theoretical situation where Constable Cazares-Caucci actually had an ASD with him when he has detained a driver upon suspicion of impaired driving or a like charge. It became apparent to me that the constable was less than certain as to what his obligation would be in the theoretical situation posited by Mr. Granger. I say this despite the fact that he did eventually provide a clear and correct answer.

[9] It will be recalled that Constable Cazares-Caucci in cross-examination denied his evidence in chief that Mr. Ward had been detained from 22:25 to 22:31 hrs. based, it would seem, that the investigation had still been ongoing. Narrowing the focus to this time period, Mr. Granger asked the officer what investigative steps he had undertaken over the course of those six minutes. I heard the following response:

A: I can't say specifically what I did in between I just know I was with him interacting with him but I can't tell you what exactly I did a year ago if I didn't make a note of it and although I have an independent recollection I can't tell you for certain what exactly or specifically transpired between that time.

Q: And is the reason why you don't advise Mr. Ward of his rights to counsel between 22:25 and 22:31 because you're still investigating Mr. Ward at that point?

A: I was still in the process of investigation, yes, making observations.

Q: And is that reason why you don't advise Mr. Ward of his rights to counsel between 22:25 and 22:31 because you're still investigating?

A: I was still interacting with him and conducting my investigation and waiting for the ASD to arrive.

Q: And is the reason that you don't advise Mr. Ward of rights to counsel between 22:25 and 22:31 because you're still investigating Mr. Ward during that time period?

A: I'm still conducting the investigation at that point for sure.

Q: But is that the reason why you're not advising Mr. Ward of rights to counsel during that timeframe?

A: I'm still, investigating because I had a suspicion that he had alcohol in the body?

Q: And I appreciate that's why you say you're still investigating but is the fact you're still investigating between 22:25 and 22:31 the reason you don't advise Mr. Ward of his rights to counsel during that timeframe?

A: Yes.

[10] Mr. Granger returned to this point a little later in the cross-examination.

Q: And I take it, aside from the fact that you tell us that you were still investigating at that point there's nothing preventing you from advising Mr. Ward of rights to counsel between 22:25 and 22:31

A: Well, at that time I'm interacting with him, I'm also making observations and looking for evidence until the arrival of the ASD.

Q: But if you'd chosen to do so you could have stopped making observations and advise Mr. Ward of rights to counsel?

A: Well I was interacting with him and I was making observations and I was pre-occupied with that and also making sure that there was nothing, other extenuating like a medical circumstance or whatnot.

Q: But ultimately that was a choice that you made that you could continue to make observations and make sure there were no extenuating circumstances as opposed to advising Mr. Ward of rights to counsel between 22:25 and 22:31?

A: At that time I didn't provide him with the rights to counsel at that time. …There was nothing physical preventing me from advising him of his rights to counsel in that timeframe.

[11] I return now to the narrative. Constable Cazares-Caucci testified that "to the best of my memory", he remained with Mr. Ward and that at 22:31 hrs., he took possession of the ASD. He then tested it and demonstrated its use to Mr. Ward. Mr. Ward then provided a sample of his breath and the ASD registered a fail. The constable thereupon immediately placed him under arrest at 22:32 hrs. advising him of the reason therefore. He also provided him with "soft versions" of a primary caution and the rights to counsel; he had not informed Mr. Ward of his right to a lawyer prior to this point. He also searched Mr. Ward incident to the arrest. These actions took until 22:34 hrs.

[12] During the course of his examination in chief, it became clear that Constable Cazares-Caucci could not say when he had taken possession of the ASD, in other words, he did not recall when Constable Dubue arrived on scene. As we have seen, he had not made a note at the time to record that event. He initially testified that it was at 22:31 hrs. However, when I asked him to clarify that point as I was uncertain as to what his evidence was, given that he seemed to be suggesting at another point in his testimony that the ASD had arrived prior to 22:31 hrs., he did not answer my question directly. At the end of the day, I still cannot say with any sense of certainty when Mr. Cazares-Caucci took possession of the ASD.

[13] Mr. Cazares-Caucci explained to the Court that by "soft versions", he meant informal, not read from his duty book. As he stated, "I just verbally from the top of my head advised him that he had the right not to say anything and that whatever he would say would be documented and submitted as evidence and he had the right to a lawyer without delay". The officer testified that it is his common practice to give this advice informally to a person whom he has arrested or detained and then, later on, formally from his duty book. However, he allowed that he could not recall the exact wording that he used in providing the "soft versions" to Mr. Ward. He also testified that while he believed that Mr. Ward indicated that he understood, he had not recorded Mr. Ward's responses to the "soft version" in his notebook. However, it was the evidence of the constable that Mr. Ward did not indicate to him that he had misunderstood.

[14] I just wish to put the narrative on pause for a moment and make a couple of comments. First of all, on the basis of the evidence before me, this "soft version" of the rights to counsel is woefully lacking in the informational component of what is required pursuant to section 10(b) Charter; there is no reference, for example, to the legal aid option. Furthermore, it is a matter of simple logic that a lack of an indication of misunderstanding is not the same as an expression of understanding. Indeed, as pointed out by Lamer C.J. in R. v. Bartle, [1994] 3 S.C.R. 173 at page 204-05:

[t]he fact that a detainee merely indicates that he or she knows his or her rights will not, by itself, provide a reasonable basis for believing that the detainee in fact understands their full extent or the means by which they can be implemented.

In the context of a constitutionally mandated right, this is not a subtle point. I return once again to the narrative.

[15] Constable Cazares-Caucci testified that he did provide Mr. Ward with formal versions of the cautions and the rights to counsel from his duty book and that he recorded Mr. Ward's responses during that process. This more formal process occurred, if I understood correctly, at 22:34 hrs. Mr. Ward indicated at this point that he wished to speak to counsel. Then, at 22:37 hrs., the officer read out the breath demand. At approximately 22:41 hrs., Mr. Ward asked the officer to notify his wife about what was going on. Mr. Cazares-Caucci agreed to do so and went and spoke to her at the house less than twenty-five feet away. He agreed with Mr. Granger's suggestion that he could have asked Constable Dubue to speak to Mr. Ward's spouse. However, he did that favour personally. He testified that it would have taken him about a minute to do so. He could not recall having attended to any other task during the period from 22:37 to 22:52 hrs.

[16] At 22:52 hrs., Constable Cazares-Caucci began to transport Mr. Ward to the police station, arriving there at 23:02 hrs. Mr. Ward was then processed whereupon he indicated that he wished to consult a particular lawyer. He was placed in a private room at 23:17 hrs. and the contact was facilitated. Due to a technical problem, the officer had to re-establish contact with counsel at 23:26 hrs. At 23:31 hrs., Mr. Ward knocked on the door to the private room indicating that his call was complete. The constable testified that he could not take Mr. Ward out of that room immediately due to another prisoner being processed.

[17] At 23:42 hrs. Constable Cazares-Caucci briefed the qualified breath technician, Constable Dunn. The briefing was over at 23:50 hrs. Mr. Cazares-Caucci testified that he had not met with Constable Dunn earlier because he thought it was reasonable for him to monitor Mr. Ward in the private room, especially since the cell block sergeant was busy processing another prisoner. At 23:51 hrs., Mr. Ward advised Constable Cazares-Caucci that he needed to use the toilet and so the officer made the necessary arrangements in order that Mr. Ward be allowed to do so. Then, at 23:54 hrs., he transferred Mr. Ward to the custody of Constable Dunn. He later regained custody of the defendant from that officer.

[18] The only other witness called by the Crown was the qualified breath technician, Constable Dunn. The blood alcohol readings from the two samples of breath taken from Mr. Ward at 23:59 and 00:22 hrs were 154 and 140 milligrams of alcohol in 100 millilitres of blood respectively. He returned Mr. Ward to Constable Cazares-Caucci's custody at 00:28 hrs.

[19] It was this officer's testimony that he believes that he would have been ready to be briefed by Constable Cazares-Caucci by the time that Mr. Ward began his phone call with the lawyer. However, he could not say when he so informed this colleague.

[20] No evidence was called by the defence on either the voir dire or the trial proper.

"As Soon as is Practicable"

[21] Mr. Ward argues that the Crown has not proven the case against him based on his submission that the breath samples were not taken by the qualified breath technician "as soon as practicable". Should I find that to be the case, the Crown would not be able to rely on the so-called "presumption of identity" and that in the circumstances of this case, there would be no proof of Mr. Ward's blood alcohol level at the time of the alleged offence. The defence points to two discrete periods of time that, it is submitted, are problematic either individually or collectively. The first period is from 22:37 to 22:52 hrs. when Mr. Ward was still at the roadside. The other period of time is from 23:31 to 23:51 hrs. while he was at the police station.

[22] I note the summary in R. v. Moerman, 2013 ONSC 5620:

[12] The provision of the Criminal Code offers the Crown the benefit of being able to prove the blood alcohol concentration of an accused person at the time of the alleged offence without the need to call a toxicologist to provide an opinion relating the blood alcohol concentration at the time of testing back to the projected blood alcohol concentration at the time of driving. As this evidentiary presumption is of potentially great benefit to the Crown, in order for it to apply, all of the preconditions to the applicability of the presumption (including the requirement that the samples be obtained "as soon as practicable") must be proven by the Crown on evidence beyond a reasonable doubt. In other words, strict compliance with the presumption by the Crown is required in order for it to operate to the disadvantage of the accused. Any doubt whether the breath samples were obtained as soon as practicable must be resolved in favour of the accused. (R. v. Walker, [2006] O.J. No. 2679 at para. 2 (S.C.J.); R. v. Schouten, [2002] O.J. No. 4777 at para. 8 (S.C.J.))

[23] The leading case on this issue is Regina v. Vanderbruggen, [2006] O.J. No. 1138, by means of which the Ontario Court of Appeal provided clear guidance:

[12] That leaves the question that is at the heart of this appeal—the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances [citations omitted] There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. [citations omitted]

[13] In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.[citations omitted]

[16] To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

[24] This was summarized by Paciocco J. [as he then was] at paragraph 54 of R. v. Ruck, 2013 ONCJ 527: "[i]n effect, the judge should assess the overall delay, including periods of inordinate or unexplained delay, to determine whether in all of the circumstances the samples were taken "within a reasonably prompt time under the circumstances".

[25] It will be remembered that Constable Cazares-Caucci placed Mr. Ward under arrest at 22:32 hrs. He then provided him with a soft caution and non-standard rights to counsel. This was followed by a search incident to arrest. Then at 22:34 hrs., the officer read out the standard caution and rights. Finally, the breath demand was read to Mr. Ward at 22:37 hrs. We are now at the beginning of the first period that is objected to by the defence.

[26] From the officer's evidence, I learned that at 22:41 hrs., Mr. Ward made an utterance to him. Then, it seems that they engaged in some sort of conversation which concluded with Mr. Ward asking the constable to speak with his wife who was in the house. Mr. Cazares-Caucci agreed to do this and walked over the few steps to the nearby house and advised the lady in question of what had transpired. The conversation between the police officer and the defendant's wife was not lengthy. In cross examination, he accepted the defence suggestion that it could have taken as little as a minute but he could not be sure at this far remove in time. He has no recollection of what was going on at the scene from after he spoke with Mr. Ward's wife until he started driving his prisoner to the police station at 22:52 hrs.

[27] After arriving at the station, Mr. Ward was processed and then assisted in speaking to the lawyer of his choice. He advised Constable Cazares-Caucci at 23:31 hrs. that he had completed his consultation with the lawyer. The defence submits that the next twenty minute period is also objectionable.

[28] It was not clear to me from the officer's evidence as to where he was during the time that Mr. Ward was making the call to the lawyer. It seems that Constable Cazares-Caucci had to assist Mr. Ward at 23:26 hrs. in re-contacting his lawyer when, due to a technical problem, contact was lost. The first call commenced at 23:17 hrs. If I understood his evidence correctly, he was notified by the cell block sergeant that there was a problem with the call. Thus it would seem that at least initially, he was not near the room from where Mr. Ward was making that call. Once the call had been completed, the officer could not immediately move Mr. Ward to a holding cell as there was another prisoner being processed nearby. He could finally go and brief the qualified breath technician at 23:42 hrs. He did not fully explain, at least to my satisfaction, why he did not brief Constable Dunn right after he put had Mr. Ward into the room with the telephone especially as it would seem he was not near that room at least during the initial telephone call. That briefing eventually took eight minutes. Then, at 23:51 hrs., Mr. Ward advised Constable Cazares-Caucci that he needed to use the toilet.

[29] I have not been provided with any real explanation for the delay that occurred between 22:42 hrs. (or thereabouts) and 22:52 hrs. as well as that between 23:17 hrs. and 23:26 hrs. However, I am mindful of the lack of any requirement that the Crown call evidence to account for "every minute between the time of arrest and the administration of the first test, rather than focusing on whether the police had acted reasonably, and expeditiously, in all the circumstances" (R. v. Seed, [1998] O.J. No. 4362 at paragraph 7 (C.A.); see, too, for example, R. v. Cambrin, [1982] B.C.J. No. 1989 (C.A.)). When looking at the entirety of the two periods complained of both individually and together, I do not conclude that the police acted in an unreasonable fashion. It is to be remembered that the test is not whether the police could have administered the first test earlier; there is no race to the finish line.

The Alleged Breach of Mr. Ward's Charter Protected Rights

[30] It is the position of Mr. Ward that Constable Cazares-Caucci breached his section 10(b) Charter rights when he failed to advise Mr. Ward of his rights to counsel, failed to provide him with an opportunity to consult with counsel, and failed to consider whether there would be a reasonable opportunity for Mr. Ward to consult with counsel all prior to the arrival of the ASD at the location where Mr. Ward was detained. It is argued that this resulted in an unreasonable search contrary to section 8 Charter and an arbitrary detention contrary to sections 7 and 9 Charter. In this context, it is argued, the admission of evidence obtained following these violations would bring the administration of justice into disrepute and, therefore, that the evidence in question should be excluded pursuant to section 24(2) Charter.

[31] The Crown responds that it is accepted law that section 10(b) Charter rights are temporarily suspended at the roadside for the purpose of administering an ASD and that short delays are tolerated when an ASD needs to be brought to the scene. The Crown submits that there was no breach of Mr. Ward's rights.

[32] Given the evidence reviewed earlier, I must first determine at what point Mr. Ward was detained by Constable Cazares-Caucci. Despite that officer's seeming attempt to obfuscate this issue by categorizing Mr. Ward's status during the time period from the making of the ASD demand at 22:25 hrs. until the arrival of the ASD as "to some degree detained", it is clear on the facts before me that the detention commenced with the ASD demand. Mr. Cazares-Caucci testified that he would have prevented Mr. Ward from leaving if he had attempted to do so. I find, therefore, that Mr. Ward was detained starting at 22:25 hrs. The fact that Mr. Ward complied with the officer's direction to accompany him over to the patrol car does not, in the context of the investigation, suggest to me anything more than Mr. Ward quite properly acquiescing to that detention.

[33] I wish now to address the issue of the time that the ASD arrived on scene. As will be remembered, Constable Cazares-Caucci's evidence on this point was somewhat vague. He initially testified that the ASD arrived at 22:31 hrs. However, he later testified that he had not noted down the time that that device had been delivered by Constable Dubue. The best he could say was that he was using it by 22:31 hrs. To assume an earlier arrival would be both speculative and arbitrary.

[34] To state the obvious, Constable Cazares-Caucci should have recorded the time of the arrival of the ASD on scene. The fact that he did not suggests to me that he was not aware of the constitutional significance of the interim between the making of an ASD demand and the arrival of that device at the location of the investigation. I note that the evidentiary record indicates that this officer had been in the Ottawa Police Service for some six and a half years at the time and has been involved in many similar investigations.

[35] The topic of note taking brings us to another problem. It was the evidence of Constable Cazares-Caucci that at 22:32 hrs., upon the registering of a 'fail' on the ASD, he placed Mr. Ward under arrest and advised why. He thereupon provided his prisoner with a "soft caution and rights to counsel". This was not read out from his notebook, he delivered it from memory. He did not record what he said, and while he could not remember the exact wording of what he told Mr. Ward, it did contain, it would seem, some reference to the right to a lawyer without delay.

[36] It was not explained to me why the officer provided only a soft version of the section 10(b) rights to counsel. It was not explained to me why he did not record this caution and any responses from Mr. Ward in his note book. I have already commented on the difference between an absence of an indication of not understanding and a positive indication of comprehension.

[37] Constable Cazares-Caucci properly provided Mr. Ward with the formal rights to counsel at 22:34 hrs. It seems that he read out the rights from a card in his duty book. He recorded Mr. Ward's responses. As we have seen, Mr. Ward indicated that he indeed wished to speak to counsel.

[38] I wish to make it clear that I believe Mr. Cazares-Caucci when he testified that he provided the soft versions at 22:32 hrs. My following comments are not to be taken as a criticism of the officer's credibility. First of all, I do not understand why the officer only provided a soft version of the rights to counsel. The reading of the standard version, read from his duty book, would probably only have taken a few seconds more if that. Secondly, on the basis of his own evidence, the soft version of the rights to counsel was not adequate. It has long been settled law in Canada that upon arrest or detention, police officers must provide an accused with his or her rights to counsel and as part of doing so inform that person about the free legal aid duty counsel service available to them in their need (see R. v. Brydges, [1990] 1 S.C.R. 190, R. v. Bartle, [1994] 3 S.C.R. 173). The fact that the officer himself provided Mr. Ward with the standard version two minutes later only underlines how inadequate this soft version was even in the mind of the officer. Finally, I fail to understand why the initial exchange was not recorded by the officer.

[39] This is not the manner in which a citizen's constitutional rights are to be treated. Charter rights are not mere hurdles to be treated in a cavalier fashion. With all due respect to the officer, I find that what he did at 22:32 hrs. was not appropriate: the informational component was inadequate; he did not record the responses. As a result, I find that Mr. Ward was provided with his section 10(b) Charter rights only at 22:34 hrs.

[40] The law is well established that where an officer makes a demand for a roadside breath sample:

[27] … the driver is detained and his or her s. 10 rights under the Charter are prima facie triggered. However, if the demand is validly made pursuant to s. 254(2) of the Criminal Code in that it is made "forthwith", the police officer need not advise the detainee of his or her s. 10(b) rights because, although s. 254(2) violates s. 10(b), it is a reasonable limit prescribed by law and justified under section 1 of the Charter. See R. v. Thomsen (1988), 40 C.C.C. (3d) 411 (S.C.C.).

[28] It is also accepted that if a roadside demand is made and a sample is not provided "forthwith" because the approved screening device is not readily available, the demand is not valid and does not justify a failure to provide s. 10(b) rights. See R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.).

R. v. George, [2004] O.J. No. 3287 (C.A.)

[41] Thus, where an officer must await the arrival of an ASD, the section 1 Charter justification for suspending the rights to counsel is no longer operant and rights to counsel must be given without any further delay (see, too, for example, R. v. Najm, [2006] O.J. No. 2348 (C.A.), R. v. Quansah, 2012 ONCA 123). Yet Constable Cazares-Caucci did not provide Mr. Ward with his rights to counsel until 22:34 hrs. What would he have done if the officer had informed him of his rights? The evidence is that when he was informed properly of his rights, he indicated that he wished to speak to counsel. When offered to the opportunity to do so at the police station, he indicated that he wished to contact a specific lawyer and was assisted in doing so. This suggests most strongly that had he been advised of his rights to counsel at 22:25 hrs., he would have indeed indicated the same desire.

[42] I will not engage in any further analysis of what could have occurred if Mr. Ward had been advised of his section 10(b) rights prior to the arrival of the ASD on scene. In other words, I am not deciding this matter on the basis of whether Mr. Ward would have had a realistic opportunity to consult with counsel. The Charter has been the law since 1982. The informational component of s. 10(b) was clarified by the Supreme Court in 1990. In 1991, the Supreme Court of Canada discussed section 10(b) Charter in the context of the delayed arrival of a roadside screening device (R. v. Grant (1991), 67 C.C.C. (3d) 268). My point here is that the application of section 10(b) Charter to investigations such as the one that Constable Cazares-Caucci was engaged in on July 10, 2017 had long been settled by appellate authority. The constitutional context was hardly novel. Yet, this experienced officer did not provide Mr. Ward with his rights to counsel from 22:25 to 22:34 hrs. At 22:25 hrs., he was not aware of how long it would take for an ASD to be brought to his location. It was his evidence that it usually took five to ten minutes and that that would not be an unreasonable period to wait. This of course ignores the issue that during that wait, there is no longer any justification in not providing the accused with his rights to counsel. That this officer was not aware of this issue is apparent from his failure to note in his duty book the time that the ASD arrived on scene. Mr. Ward was detained and the investigation was effectively stalled until the ASD arrived. There were no safety concerns or, quite frankly, anything else that required the immediate attention of the officer for more than a few seconds. Then, after Mr. Ward provided a sample of his breath into the ASD, for reasons that are not at all clear, the constable seems to have made passing reference to the right to counsel without fulfilling his constitutional duty. He did not even record the contents of that exchange with Mr. Ward in his notebook.

[43] Constable Cazares-Caucci did ultimately provide Mr. Ward formally with his rights to counsel and did properly record that particular exchange. However, that exercise should have been conducted at or close to 22:25 hrs. The lack of adherence to constitutional standards here resulted in a breach of Mr. Ward's section 10(b) rights.

The 24(2) Charter Analysis

[44] Having found that Mr. Ward's rights pursuant to Section 10(b) Charter were violated, I must turn now to the issue of what is the appropriate remedy. Mr. Ward seeks the exclusion of the breath samples pursuant to Section 24(2) Charter. I must determine whether, on a balance of probabilities, and having regard to all the circumstances, the admission of this evidence would bring the administration of justice into disrepute.

[45] The Supreme Court of Canada has provided guidance to trial judges when faced with this type of analysis. In R. v. Grant, 2009 SCC 32, it held that three factors are to be examined. First of all, the trial judge must determine the level of seriousness of the Charter-infringing state conduct. Secondly, the impact on the Charter-protected interests of the accused must be taken into account. Thirdly, there must be a determination of the level of society's interest in the adjudication of the matter on its merits. The process is then completed by a weighing of these three factors.

The Level of Seriousness of the Breaches

[46] The failure to provide Mr. Ward with his section 10(b) Charter rights during the six minute period from the making of the breath demand until the arrival of the ASD on scene, while not insignificant, cannot be characterized as a serious breach in and of itself in the context of this case. However, the general lack of adherence to constitutional standards displayed by the officer as evidenced by his seeming ignorance of the requirement to provide the rights to counsel without delay when he is unable to take the roadside breath sample immediately, his use of an inadequate "soft version" of those rights, as well as his failure to record that exchange with Mr. Ward, is significantly aggravating.

[47] I think that it is important here to recall the discussion in Grant with respect to this factor.

[72] The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[73] This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

[74] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[75] Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: [citations omitted] "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [citations omitted] Willful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[48] The Charter is not new law and the duties inherent in section 10(b) have been incumbent upon police officers for a long time now. Indifference or ignorance of the Charter amongst members of the law enforcement community is to be discouraged. I find that this was a serious violation of Mr. Ward's rights.

Impact on the Charter-Protected Interests of the Accused

[49] The failure by the police to comply with section 10(b) Charter is more than a mere technical breach of Mr. Ward's rights. In the context of this case, Mr. Ward should have been provided with his rights to counsel at or very soon after 22:25 hrs. That he was not certainly renders his continued detention and what flows from that detention suspect.

The Level of Society's Interest in the Adjudication of the Matter on Its Merits

[50] Society has an interest in the adjudication on the merits of most of the cases that come before the courts. That cases where it is alleged that the driver of a motor vehicle was under the influence of alcohol are of interest to Canadian society cannot be doubted. However, in the case of Mr. Ward, I note that there was no accident nor was he even charged with impaired driving.

[51] The exclusion of the breath sample readings would serve to frustrate the societal interest. The readings are both important to the Crown case and reliable.

The Weighing of These Three Factors

[52] I must now determine whether, on the balance of probabilities, the admission of the evidence obtained by means of this Charter breach would bring the administration of justice into disrepute. I find that the seriousness of this breach is of such weight that by itself, it requires that the Court dissociate itself from the actions of the police.

[53] The breath readings will be excluded.

Conclusion

[54] As a result of my having excluded the breath readings, the Crown is no longer in a position to prove the charge against Mr. Ward. Therefore, I dismiss the allegations that he was operating the motor vehicle with a blood/alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

Released: July 10, 2019

Signed: Justice David Berg