ONTARIO COURT OF JUSTICE

CITATION: R. v. Delgado, 2019 ONCJ 70

DATE: 2019 02 07

COURT FILE No.: Brampton 16-11152

BETWEEN:

HER MAJESTY THE QUEEN

— and —

ERICK DELGADO

Before Justice M.M. Rahman

Heard January 16 and 17, 2019

Reasons for Judgment released on February 7, 2019

John Kingdon...................................................... counsel for the Crown/respondent

Gagandeep Pannu......................... for Erick Delgado, the defendant/applicant

RAHMAN J.:

1. Overview

[1] On August 30, 2016, a concerned citizen, Carl Friday, called police to report a driver who almost struck his car. Mr. Friday was taking the exit from Highway 401 to Highway 410 when a silver Mazda MPV moved across three lanes of traffic and almost clipped the front end of his car. The applicant, Erick Delgado, was driving the MPV. Mr. Friday followed the car for some time, remaining on the phone with police to report where he was. Eventually, Peel Regional Police officers stopped the applicant’s car on McLaughlin Road in Brampton.

[2] Cst. Strauss approached the applicant’s car. He asked the applicant where he was coming from, and whether he had anything to drink. The applicant said that he was on his way home from Scarborough, and that he had two drinks when he was in Scarborough. The officer had the applicant get out of his car to conduct an approved screening device (ASD) test. As Cst. Strauss read the applicant the ASD demand, the applicant said that he wanted to call his lawyer, Vanessa Iglesias.

[3] After a few unsuccessful attempts, the applicant provided a suitable sample into the ASD. He failed. Cst. Strauss arrested the applicant for driving with excess blood alcohol (over 80). The applicant was taken to 22 Division where Intoxilyzer tests revealed his blood alcohol content was almost three times the legal limit. He was charged with driving over 80.

[4] The applicant applied to exclude the results of his breath samples and Intoxilyzer results under s. 24(2) of the Charter. The applicant argued that the police breached his s. 8 right to be secure against unreasonable search and seizure because Cst. Strauss lacked reasonable suspicion to conduct the ASD test, and because he lacked reasonable grounds to require Intoxilyzer tests. Further, the applicant argued that the police breached his s. 10(b) right to counsel because he was not permitted to contact counsel at the roadside before his ASD test; because the police violated his right to counsel of choice and misled him about not being able to contact someone to find out the name of a lawyer; and because the police did not give him a Prosper warning.

[5] These reasons explain why I find that the police did not breach the applicant’s rights under s. 8 but did breach his rights under s. 10(b) of the Charter. They also explain why I do not find that the admission of the evidence would bring the administration of justice into disrepute.

2. Section 8: Reasonable Suspicion

2.1. Facts

[6] Cst. Strauss responded to a call for a possible impaired driver at 10:51 pm on August 30, 2016. The dispatcher gave Cst. Strauss a description of the suspect car and its license plate number. Mr. Friday was following the car, and was asked to put his four-way lights on so that police could easily spot him and the suspect car. Cst. Strauss eventually spotted Mr. Friday and the applicant’s car going northbound on McLaughlin Rd. Because the applicant did not immediately stop his car, another officer responding to the call, Cst. Fletcher, pulled his car in front of the applicant’s so it would have to stop.

[7] Cst. Strauss approached the applicant’s car at about 11:03 pm. The applicant was alone in the car. The officer noticed that the applicant had a cell phone on his steering column, with a GPS program running. When Cst. Strauss asked the applicant where he was going, he replied that he was going home. The applicant did not know his address because he said he had just moved to Brampton. He explained he was coming from Scarborough and his girlfriend had texted him the address.

[8] After explaining why he had pulled over the applicant, Cst. Strauss asked whether he had any alcohol. The applicant responded that he had “two drinks back in Scarborough.” Cst. Strauss noticed that the applicant’s eyes were “watery” but that he did not smell any alcohol. Cst. Strauss testified that, based on the applicant’s admission that he had two drinks in Scarborough, he thought the applicant may have alcohol “in his system.” He decided to administer an ASD test.

2.2. Parties’ Positions

[9] Mr. Pannu, on behalf of the applicant, argued that Cst. Strauss lacked reasonable suspicion that his client had alcohol in his body. He argued that Cst. Strauss had no information about the timing of the applicant’s consumption and could not reasonably suspect that he had alcohol in his body. Without any other indicia of alcohol consumption or impairment, the officer’s suspicion could not have been reasonable.

[10] Crown counsel, Mr. Kingdon, argued that the applicant’s admission of having two drinks in Scarborough meets the threshold of reasonable suspicion. He argued that the circumstances here are indistinguishable from R. v. Singh,[^1] where Durno J. held that the officer could reasonably infer recent consumption from an admission by a driver that he had two drinks.

2.3. Analysis

[11] I agree with Mr. Kingdon that Cst. Strauss had sufficient grounds to make the ASD demand under s. 254(2) of the Criminal Code. Reasonable suspicion is not a high threshold. It requires only a reasonable possibility, rather than a reasonable probability.[^2] In assessing whether an officer has the requisite suspicion (or belief), a court must consider all facts known to the officer at the time he or she forms that suspicion. In the context of the grounds required under s. 254(2) “observations of overt indicia of impairment or consumption are not pre-requisites to making an ASD demand.”[^3]

[12] The basis for Cst. Strauss’ suspicion here is indistinguishable from the basis for the officer’s suspicion in Singh. In Singh, the driver admitted to the officer that he had two beers. He did not say when. Durno J. found that the officer was objectively entitled to infer that it would have been recent consumption.

[13] In the applicant’s case, Cst. Strauss knew that the applicant was coming from Scarborough and that he had two drinks when he was “back in Scarborough.” Cst. Strauss was entitled to reasonably infer that the applicant’s consumption was recent enough that there was a reasonable possibility he had alcohol in his body. Moreover, although Cst. Strauss did not mention it as the basis for his suspicion, he also knew that he was being dispatched for a possible impaired driver. While there may have been other explanations for the poor driving which prompted the call (as Cst. Strauss quite fairly acknowledged), it was another factor known to him that could have supported a reasonable suspicion.

3. Section 8: Reasonable Grounds to Arrest

3.1. Facts

[14] When Cst. Strauss received the ASD from his colleague, he was aware that his colleague had performed a self-test on the device before trying to administer tests on the applicant. The applicant made three unsuccessful attempts to provide a sample into the ASD. Cst. Strauss decided to demonstrate for the applicant how to properly blow into the machine to provide a sample. When Cst. Strauss blew into the machine, it registered a reading of 7 mg of alcohol in 100 ml of blood. Because Cst. Strauss had nothing to drink, he concluded that the result must have been caused by some residual alcohol in the device from the applicant blowing into it.

[15] After this demonstration, the officer again presented the device to the applicant to provide a sample. This time the applicant provided a suitable sample. The ASD registered a fail. Cst. Strauss explained that he knew the device was calibrated to register a fail when it detected 100 mg of alcohol in 100 ml of blood. He said that, based on the fail result, he had reasonable grounds to believe that the applicant had excess blood alcohol. He arrested the applicant for that offence and demanded that he provide breath samples into an Intoxilyzer.

[16] In cross-examination, Cst. Strauss explained that he checked the ASD manual after this incident and before this trial. He testified that the manual recommends a waiting period after someone blows into the device and registers a result. Cst. Strauss said that the wait times varied depending on the reading obtained. After registering a reading from 0 to 49 mg, the manual recommends waiting 0 to 40 seconds before performing the next test. After an alert the wait time is 40 to 80 seconds. After a fail, the wait time is 80 to 120 seconds. Cst. Strauss said that he was not concerned that the residual alcohol in the device from the three unsuccessful attempts would have affected the applicant’s ultimate “fail” result because “I don’t think the machine adds it up.”

3.2. Parties’ Positions

[17] Mr. Pannu argued that ASD “fail” result did not provide Cst. Strauss with reasonable grounds. He said that, once the officer’s self-test registered 7 mg, he ought to have waited before handing the device to the applicant to do what became the final test. Mr. Pannu argued that Cst. Strauss’ failure to wait the period required by the manual meant his belief could not have been objectively reasonable. Believing that residual alcohol had caused the incorrect self-test result, Cst. Strauss could not have reasonably relied on the applicant’s fail result.

[18] Relying on R. v. Jennings,[^4] Mr. Kingdon argued that failure to follow the ASD manual does not necessarily undermine the officer’s reasonable belief that a driver is over 80. Mr. Kingdon also observed that there is no evidence about the effect of failing to follow the waiting period recommended by the manual. He said there is no evidence the lapse here is any worse, or should have any more impact on an officer’s grounds, than the three procedural errors in Jennings. Mr. Kingdon also argued that, even if the officer ought to have been concerned by the 7 mg result, because an ASD is calibrated to fail at 100 mg, an “extra” 7 mg (assuming it should be added) would not change the officer’s reasonable belief that the applicant was over 80.

3.3. Analysis

[19] I cannot agree with the applicant that Cst. Strauss lacked reasonable grounds. The officer’s reliance on the applicant registering a fail was reasonable. Before explaining why Cst. Strauss’ reliance on, the ASD fail was reasonable, I start with the legal basis he was required to have before arresting the applicant and making a breath demand.

[20] Reasonable grounds is not a high threshold. It does not require a preponderance of evidence or a prima facie case.[^5] Reasonable grounds requires only credibly-based probability, not credibility-based certainty. It is a reasonable belief.[^6] Reasonable grounds must be based on the totality of circumstances known to the officer at the time that the officer forms the grounds. An officer may also rely on hearsay information in forming reasonable grounds.[^7] Moreover, where the totality of circumstances yields more than one inference, an officer is not required to draw only an exculpatory or innocent inference even if one is available. A police officer may even form reasonable grounds on information that ultimately proves to be incorrect.

[21] The Court of Appeal’s decision in Jennings is simply an application of this well-known standard to drinking and driving cases. In Jennings, the Court of Appeal made it clear that the failure to follow a policy or practice manual does not automatically render reliance on ASD test results unreliable. While such a failure may provide some evidence that could undermine the reasonableness of the officer’s belief, such errors or omissions are not dispositive. The court held that “[i]t is necessary to take the further step and determine how or whether each of the specific failures identified undermine the reasonableness of the officer’s belief that the ASD was functioning properly.”[^8]

[22] Cst. Strauss received the device from Cst. Fletcher. He knew that officer performed a self-test. Cst. Strauss then gave the device to the applicant. The applicant blew some air into the machine causing it to register a blow interrupt. The officer then blew into the device himself causing the 7 mg reading to register. When he handed it back to the applicant, he knew that only Cst. Fletcher, the applicant, and himself had blown into the machine. It was reasonable for Cst. Strauss to think that, of the three of them, only the applicant had consumed alcohol. The officer also believed that, even if alcohol was left in the device, it would not add itself to the next test result. I have no evidence that such “adding up” would happen if an officer did not wait. Consequently, I cannot say that the failure to wait for the time set out in the manual would have affected the officer’s reasonable belief that the applicant was over 80.[^9]

4. Section 10(b): The Forthwith Issue

4.1. Facts

[23] As mentioned above, the applicant was pulled over at 11:03 pm. Cst. Strauss made the ASD demand at 11:07 pm. Because he did not have an ASD with him, Cst. Clark offered to drive to 22 Division to get one. That offer of assistance turned out to be unnecessary because Cst. Fletcher, who arrived on scene at 11:06 pm, had an ASD with him.

[24] After Cst. Strauss made the demand, the applicant declined to provide a sample. Cst. Strauss warned the applicant that he could be charged with refusing the ASD. The applicant asked Cst. Strauss if they could have someone pick up his car. He also said he wanted to call his lawyer, Vanessa Iglesias.

[25] Cst. Fletcher testified that he performed a self-test on the ASD at 11:14 pm. After testing the device, he walked to the rear of Cst. Strauss’ cruiser and handed his colleague the device.

[26] None of the officers had the precise time that they first started to have the applicant blow into the ASD. The applicant failed the ASD at 11:29 pm.

4.2. Parties’ Positions

[27] Mr. Pannu argued that the test was not conducted forthwith, and therefore his client had the right to consult counsel and to be informed of that right. He argued that, on the most favourable version of the evidence for the Crown, there was at least a delay of seven minutes between the demand (at 11:07 pm) and the readiness of the device (at 11:14 pm). Mr. Pannu argued that the delay was likely longer than this seven-minute period, but that it is impossible to be certain because none of the officers recorded the precise time that the applicant made his first few unsuccessful attempts.

[28] Mr. Kingdon countered that the seven-minute window is the only period of delay and does not mean the applicant should have been informed of and been able to consult counsel. He said it is apparent that Cst. Fletcher took the device to Cst. Strauss right after conducting the self-test at 11:14 pm and that the time between 11:14 pm and 11:29 pm was taken up trying to get a suitable sample from the applicant.

4.3. Analysis

[29] An ASD test must be administered within the so-called “forthwith window.” This is because a demand under s. 254(2) suspends a driver’s right to counsel. The length of this “forthwith window” is determined relative to the right to counsel. The question is whether there was a realistic opportunity for the detainee to consult counsel before being given the ASD and being required to provide a sample.[^10]

[30] Whether a detained driver has a realistic opportunity is a question of fact to be determined considering all of the circumstances of the case. In R. v. Gill,[^11] Durno J. set out the following non-exhaustive list of eight factors to consider whether a detained driver has a realistic opportunity to consult counsel:

i. the time the officer believed the ASD would arrive (R. v. George (2004), 2004 ONCA 6210, 187 C.C.C. (3d) 289 (Ont. C.A.);

ii. the time between the demand and the taking of the sample (Latour, supra);

iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka (2011), 2011 ONSC 405, 267 C.C.C. (3d) 81 (Ont. S.C.J.));

iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh (2005), 24 M.V.R. (5th) 19 (Ont. C.A.));

v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.));

vi. the actual time it took for the ASD to arrive (Latour, supra);

vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (Ont. S.C.J.); and

viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).

[31] In this case, I find the applicant did not have a realistic opportunity to consult counsel in the seven minutes between the demand and the availability of the ASD. Although the applicant spoke of wanting to call his lawyer, Vanessa Iglesias, and had a mobile phone with him, subsequent events demonstrate that he did not have a lawyer, let alone one he could contact at the roadside. I also note that the demand was made in the early hours of the morning. The chances of the applicant being able to get in touch with, and consult, counsel within a short period of time at the roadside were negligible. I am satisfied that the ASD test was conducted forthwith. There was no breach of the applicant’s s. 10(b) rights at the roadside.

5. Section 10(b): Implementational component and Prosper Breach

5.1. Facts

5.1.1. Events at the Roadside

[32] After failing the ASD, Cst. Strauss arrested the applicant for driving over 80 at 11:29 pm. The officer began advising the applicant of his right to counsel a minute later. Cst. Strauss explained that the applicant became somewhat uncooperative after being arrested.

[33] Cst. Strauss first told the applicant he had the right to retain and instruct counsel without delay. The applicant said that he did not understand. When Cst. Strauss asked the applicant what he had trouble understanding, the applicant responded “everything.” The applicant asked for his cell phone to allow him to record what the police were doing. He also accused the officers of profiling him. Cst. Strauss told the applicant he had the right to talk to a lawyer, just as the applicant had asked when being given the ASD demand. The applicant said “you guys aren’t going to let me go home, and so at this point I’m not going to say anything.”

[34] Cst. Strauss told the applicant that he had to explain his rights to him and had to make sure that the applicant understood. The applicant said, “you’re right I’m legit, now you’re just messing with minorities” Cst. Strauss let the applicant know that he had to protect his rights and ensure that he understood them. The applicant said, “Just tow the car to my house, you’re obligated to do that. I’m going to sue you, write that down.” The applicant then said, “You cops are just all corrupt. I want my lawyer.”

[35] Cst. Strauss went back to the beginning of the right to counsel sequence. He again told the applicant of his right to retain and instruct counsel without delay. The applicant responded, “I’m still clean, why don’t you just ask my partner my name.”

[36] Cst. Straus continued reading from his pre-printed notes to comply with the informational component of s. 10(b). He informed the applicant that he could contact any lawyer he wished in private. When asked if he understood, the applicant did not respond. He then told the applicant he had the right to free legal advice from a legal aid lawyer. The applicant again did not respond. Cst. Strauss then explained that the applicant could apply for legal aid should he be charged with an offence and asked the applicant if he understood. The applicant replied, “No you guys are just being racist.” Cst. Strauss asked the applicant what it was he did not understand. The applicant did not respond.

[37] Cst. Strauss then read the applicant the 1-800 number that would put him in contact with free legal advice from duty counsel. When asked if he understood, the applicant said he did not because he did not have it in writing or in his hand. Cst. Strauss then asked the applicant “do you wish to call a lawyer now?” The applicant responded, “I wish to keep my Fifth Amendment.” Cst. Strauss asked the applicant if he had a specific lawyer he wanted to contact. The applicant replied “no.”

[38] Cst. Strauss testified that it took from 11:30 until 11:46 to advise the applicant of s. 10(b) rights because the applicant was being difficult and giving non-responsive answers. Cst. Strauss said that he believed that the applicant understood his rights because of his mention of the Fifth Amendment.

5.1.2. Events at 22 Division

[39] Cst. Strauss arrived at 22 Division with the applicant at 11:54 pm. The booking process took until 12:16 am. Cst. Strauss said that he did not ask the applicant about duty counsel at that point. The officer explained that “because he had said no at the scene, I wouldn’t have asked him that at the station again.” The applicant was taken into the breath room at 12:16 am. The applicant was not given a chance to call counsel before being taken in the breath room.

[40] Unlike his attitude at the scene, the applicant appeared co-operative on the breath room video. Once in the breath room, the qualified technician, Cst. Passmore, confirmed with the applicant that he had been informed of his right to counsel at the scene. The applicant replied, “yes and I denied it, yes I understand.” When asked what he denied, the applicant said “counsel.”

[41] Cst. Passmore confirmed that the applicant had not spoken to a lawyer. Cst Passmore told the applicant that if he changed his mind at any time he could put the applicant in touch with duty counsel or his own lawyer. Cst Passmore then explained to the applicant that, because he was in his custody, he would re-read the applicant his rights. The officer asked the applicant to say whether he understood what was being read.

[42] Cst. Passmore then went through the usual sequence of statements explaining s. 10(b) to the applicant. The applicant said he understood he had the right to retain and instruct counsel without delay. When Cst. Passmore told the applicant he could call any lawyer he wished, the applicant said he wanted to talk to somebody even though it was not a lawyer. Cst. Passmore told the applicant that it had to be a lawyer that he called, and that “the only call you’re allowed to make when you get arrested is to a lawyer.” The applicant responded, “I don’t want to talk to nobody then.”

[43] Cst. Passmore then explained to the applicant he could get free advice from a legal aid lawyer in private and that, if charged, he could apply for legal aid. The applicant said he understood. When Cst. Passmore explained to the applicant that he could call a 1-800 number to be put in touch with free legal advice from duty counsel, the applicant again asked to be given the number in his hand. Cst. Passmore agreed he would do that once the applicant had left the room.

[44] Cst. Passmore then asked the applicant “do you wish to call a lawyer now?” The applicant responded, “I don’t have a lawyer, but I’d like to call somebody so then I can get picked up.” The applicant expressed concern that he would not be getting his car back. Cst. Passmore told the applicant they could deal with that issue later. The applicant said “I don’t want to talk to a lawyer, I just want to talk to somebody.” Cst. Passmore explained that he was not trying to pressure the applicant to speak to a lawyer, but that even if he didn’t know one, the police could put him in touch with a free one. The applicant agreed to speak to duty counsel.

[45] The applicant left the breath room to speak with duty counsel. Cst. Strauss said that the applicant spoke to duty counsel from 12:35 am to 12:40 am. When the applicant returned to the breath room, he told Cst. Passmore that he spoke with a legal aid lawyer and that he hung up on him. When the officer asked the applicant why, he answered, “not helping.” The applicant complained that the person he spoke to was “a junior” and that he needed “a senior.” When Cst. Passmore told the applicant that the person would not have been on the phone had he not been qualified to give advice, the applicant said, “he didn’t give me advice I wanted to hear and he’s not giving me advice, that’s why I said he’s a junior and not a senior.”

[46] Cst. Passmore then asked the applicant if he understood what the lawyer had told him. The applicant said he did not. When asked why he did not understand, the applicant replied, “because he couldn’t explain himself properly.” Cst. Strauss came back into the room and told the applicant that duty counsel believed that their call had been cut off. The applicant again replied, “he’s not explaining himself properly.” Cst. Passmore took the phone and explained to duty counsel what the applicant’s complaint was.

[47] Cst. Passmore then explained to the applicant that the same duty counsel was willing to speak to the applicant again. Cst. Passmore also offered to call the 1-800 number again and try to get a different duty counsel lawyer. The applicant then muttered some expletives about the breathalyzer and said, “I just want to get out of here man.” Cst. Passmore again asked if the applicant wished to speak to the same lawyer again. The applicant responded, “no because he’s a junior.” Cst. Passmore then tried to re-assure the applicant that the duty counsel lawyer would not have been speaking to him if he did not know what he was talking about. Cst Passmore then confirmed that he did not want to speak to duty counsel. The applicant said he did not.

[48] The applicant told the officers that, “My question to him too is whether you guys can take me closer to Scarborough.” Cst Passmore explained that the applicant did not have to disclose the conversation he had with counsel. Cst. Passmore then finished reading the secondary caution to the applicant. After reading the caution, Cst. Passmore started the breath testing procedure.

5.2. Parties’ Positions

[49] Mr. Pannu argued that the applicant invoked his right to counsel at the roadside after being arrested when he told Cst. Strauss, “I just want to call my lawyer” and asked for the 1-800 number to be written down. Mr. Pannu said that the police breached s. 10(b) in three ways, although he focused his argument on the third of these submissions.

[50] First, he alleged that the police breached his client’s s. 10(b) rights by not putting him in touch with counsel when he arrived at the station. Second, he argued that the police misled the applicant when they told him he could only call a lawyer, because that ruled out the applicant being able to call someone to find out the name or number of a lawyer. Finally, he said that the police breached the applicant’s s. 10(b) rights by not giving him a Prosper[^12] warning after his call with duty counsel, when he declined.

[51] Mr. Kingdon argued that the applicant did not trigger his right to consult counsel at the roadside. Rather, considering the whole interaction with Cst. Strauss, and the applicant’s own breath room statement that he had “denied counsel,” the applicant did not trigger the police’s implementational duties until he agreed to speak to duty counsel after Cst. Passmore advised him of his s. 10(b) rights.

[52] Further, Mr. Kingdon said that this is not a situation where Prosper applied. Mr. Kingdon urged the court to find that the applicant’s only real alternative here was to speak to duty counsel and, that when the applicant declined Cst. Passmore’s offer to call the duty counsel number again to find a different lawyer, he had exhausted his reasonable opportunity to consult counsel.

5.3. Analysis

5.3.1. Triggering the Right to Consult Counsel

[53] I will first deal with the issue of when the applicant triggered his right to counsel. I agree with Mr. Kingdon that the applicant did not invoke his right to counsel until Cst. Passmore advised him of his right to counsel in the breath room. Although the applicant did say he wanted to talk to his lawyer when Cst. Strauss was initially reading him his s. 10(b) rights, Cst. Strauss re-started the recitation of the s. 10(b) rights because of the applicant’s non-responsiveness, belligerence, and claim that he did not understand.

[54] When I consider the entire interaction, it is apparent that the applicant did not invoke his right to counsel when asked by Cst. Strauss whether he wish to call a lawyer. Indeed, the applicant’s initial comment to Cst. Passmore in the breath room that he had denied his right to counsel and that he understood it, confirms that it was neither his intention nor desire to call a lawyer before he arrived in the breath room. Therefore, I find that the applicant did not trigger his right to consult counsel before arriving at the police division.

5.3.2. Counsel of Choice and Alleged Misleading Statements

[55] I cannot accept the applicant’s argument that the police interfered with his right to counsel of choice, and mis-informed him of his s. 10(b) right, by telling him he could not call a third party, non-lawyer. Cst. Passmore did not mislead the applicant or otherwise interfere with his right to counsel of choice by telling him that he could only call a lawyer. There is no evidence that the applicant wanted to call a third party to get the name and number of a lawyer. Indeed, the applicant’s stated reason for wanting to call somebody was for a ride. Cst. Passmore’s comment was in response to the applicant saying that he wanted to call somebody, other than a lawyer, to get a ride.

[56] Mr. Pannu relied on this court’s decisions in R. v. Maciel[^13] and R. v. Mattie[^14] in support of his position that the police ought to have done more in this case. Both of those cases deal with very different situations. In both cases, the issue was whether the police made adequate efforts to put the detained driver in touch with counsel of choice. In both cases, the detained driver asked for a specific lawyer by name. In both cases, the court ultimately concluded that the police were not diligent in their efforts to put the detained driver in touch with a specific, named lawyer.

[57] The diligence requirement referred to in Maciel and Mattie does not require the police to take the further step of ensuring that a detainee’s request to speak to a non-lawyer is for the purpose of finding out the number of a lawyer. There is no obligation on the police to question detainees further when they ask to speak to a third party about why they want to speak to that person. Nor are the police required to assume that a detainee wants to call a third party for that purpose. As Barnes J. held in R. v. Cheema “when a detainee does not tell the police the reason why he or she wishes to speak to a third party, there is no obligation on the police to determine why the detainee made such a request.”[^15]

[58] In this case, apart from a mention of a person named Vanessa Iglesias when the applicant was initially being given the ASD demand, there is no suggestion that there was a certain lawyer the applicant wanted to call. Indeed, his own comment in the breath testing room was that he did not have his own lawyer. Moreover, the applicant said that he wanted to call someone to arrange for a ride. There was simply nothing that the applicant said that would have alerted police that he wanted to call someone to get the name of a lawyer.

5.3.3. The Prosper Issue

[59] After a detainee invokes his or her right to counsel, the police are required to hold off questioning and performing investigative procedures, such as Intoxilyzer tests. There are only three circumstances that will bring that holding off period to an end, and allow police to continue using a detainee as a source of evidence. First, if the detainee has a consultation with counsel. Second, if the detainee is not reasonably diligent in exercising the reasonable opportunity to consult counsel. Finally, if the detainee changes his or her mind and waives the right to contact counsel.

[60] In that final circumstance, the police are required to give the detainee a Prosper warning. That warning explains to detainees what they give up by waiving their right to counsel. The Prosper warning is required to ensure that detainees who waive their right to counsel are making an informed waiver. The Supreme Court described this “additional informational obligation,” and when it is triggered, as follows:

I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, the police are required to tell the detainee of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.[^16]

[61] I agree with Mr. Pannu that, in these circumstances, the police ought to have given the applicant a Prosper warning. After speaking with duty counsel, the applicant told the police that he was not satisfied with the consultation, including the fact that he did not understand the advice he had been given. The applicant then said he did not wish to speak to a different duty counsel lawyer again. The police knew that the applicant was dissatisfied with the advice he received and that he may not have understood it. He had not fully exercised his reasonable opportunity to consult counsel. By refusing the police’s offer to call another duty counsel lawyer, after he had made it know he was dissatisfied with his first call to duty counsel, the applicant changed his mind and effectively waived his s. 10(b) right. The police ought to have provided the Prosper warning to ensure that the applicant was making a fully informed waiver. By not doing so, they breached his rights under s. 10(b).

6. Section 24(2)

[62] Having found a breach of the applicant’s s. 10(b) rights, I must apply the three-step inquiry in R. v. Grant[^17] to determine if the evidence ought to be excluded.

6.1. First Step of Grant: Seriousness of the Breach

[63] On the first step of the Grant inquiry, there are two competing circumstances here.

[64] On the one hand, the police did not know what a Prosper warning was. They were unaware that if a detainee first invokes the right to counsel and then changes his or her mind that they are required to do anything more. Ignorance of Charter standards makes the breach here more serious.[^18] That is especially so because Prosper is not a new case. It has been the law for almost a quarter century.

[65] On the other hand, the police here did not act in a way that suggested a neglect of the applicant’s right to counsel. Indeed, the applicant seemed disinterested in calling a lawyer when he first entered the breath room. He was pre-occupied with calling someone to pick him up. Cst. Passmore patiently explained s. 10(b) to the applicant and made sure that the applicant understood that he could speak to a free lawyer. Also, Cst. Strauss took pains to ensure that the applicant understood his right to counsel after arresting him. This is not a case where the police were indifferent to the applicant exercising his right to counsel.

[66] Although it is a close case, because the police’s ignorance of the need for a Prosper warning led to the breach, I find that the first stage of the Grant inquiry does favour exclusion, though not strongly.

6.2. Second Step of Grant: Impact of Charter-Protected Interests

[67] On the second step of the Grant inquiry, I find that the Prosper breach here only had a minimal impact on the applicant’s Charter-protected interests. I am mindful of the importance of the right to counsel. I recognize that an uninformed waiver can have a very serious impact on a claimant’s Charter-protected interests.[^19] However, in the circumstances of this case, I am satisfied that the applicant would not have acted differently had he been given a Prosper warning.

[68] First, I consider the applicant’s initial disinterest in speaking to counsel. The applicant did not trigger his right to counsel until he was in the breath room. Even then, his agreement to contact counsel came in the form of saying “sure” when Cst. Passmore asked him if he wanted to speak to duty counsel. And that “sure” came only after a lengthy exchange.

[69] Second, I consider the applicant’s demeanour after he had spoken to duty counsel. The applicant simply wanted to get out of the police division. I doubt that a Prosper warning here would have had any effect on his decision to go ahead with the testing. In fact, I am satisfied that the evidence shows the applicant would not have acted any differently had the police advised him of their duty to hold off further. That one piece of advice would likely not have changed his opinion that he did not want to make another call to duty counsel.

[70] Consequently, I find that the second step of the Grant inquiry favours admission of the evidence.

6.3. Third Step of Grant: Society’s Interest in Adjudication on the Merits

[71] Finally, the third step of the Grant inquiry also favours admission. The evidence of the breath samples is reliable evidence. Without that evidence, the prosecution on the over 80 charge would fail.

6.4. Balancing the Three Steps

[72] Balancing the factors favouring exclusion and admission, I find that the applicant has not shown that admission of the evidence would bring the administration of justice into disrepute. Although the first step of the Grant inquiry favours exclusion, I cannot find that it does so strongly enough to overcome the other two steps’ pull towards admission. In short, I cannot find that the police’s conduct in this case was so serious that it overpowers the other two factors to warrant exclusion. I recognize that balancing the three steps of the Grant inquiry does not involve merely tallying up whether a majority of the steps favour admission or exclusion.[^20] But in this case, I found that the first step was a close call and did not strongly favour exclusion. Because the second two steps both favour admission, I am not satisfied that I should exclude the evidence.

7. Conclusion

[73] The application to exclude evidence is dismissed. Because the admissibility of the evidence was the only issue at trial, I find the defendant guilty of driving over 80.

Released: February 7, 2018

Justice M.M. Rahman

[^1]: R. v. Singh, [2006] O.J. No. 5133 (Sup. Ct.). [^2]: R. v. Chehil, 2013 SCC 49 at para. 27. [^3]: Singh, supra, at para. 14. [^4]: R. v. Jennings, 2018 ONCA 260. [^5]: R. v. Shepherd, 2009 SCC 35 at para. 23. [^6]: R. v. Debot, [1989] 2 S.C.R. at p. 1166. [^7]: Debot, supra, at pp. 1169 to 1170. [^8]: Jennings, supra, at para. 17. [^9]: I also note that the waiting time recommended after a 7 mg reading is 0-40 seconds. That means even if Cst. Strauss waited only a few seconds to hand the applicant the ASD after performing the self-test, he would have been complying with the manual. [^10]: R. v. Gill, 2011 ONSC 4728, at para. 31; R. v. Torsney, 2007 ONCA 67. [^11]: Gill, supra at para. 32. [^12]: R. v. Prosper, 1994 SCC 65, [1994] 3 S.C.R. 236. [^13]: R. v. Maciel, 2016 ONCJ 563. [^14]: R. v. Mattie, 2018 ONCJ 907. [^15]: R. v. Cheema, 2018 ONSC 229; see also R. v. Mumtaz, 2019 ONSC 468 at para. 39, “before the police are required to facilitate the implementation of that right, the obligation has been, consistently, on the detainee to explain to police why he or she wishes to speak to a third party.” [^16]: Prosper, supra at p. 274 [^17]: R. v. Grant, 2009 SCC 32. [^18]: Grant, supra at para 75 “ignorance of Charter standards must not be rewarded or encouraged”. [^19]: See for example R. v. Fountain, 2017 ONCA 596 at paras. 67-68. [^20]: Grant, supra at para. 86: “No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.” See also R. v. Mathebharan, 2019 ONCJ 20 at para. 29: "a section 24(2) analysis is qualitative, not quantitative; the three Grant factors are meant to ensure that all relevant features of a case are considered before admissibility is determined. It is not a 2 vs. 1 analysis."