ONTARIO COURT OF JUSTICE

CITATION: R. v. Yaw, 2019 ONCJ 90

DATE: 2019 02 05

COURT FILE No.: Espanola 16-0011

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHELLEY YAW

Before Justice V. Christie

Heard on August 3, 2018, December 17, 2018, January 24, 2019

Reasons for Judgment released on February 5, 2019

S. Baker................................................................................................. counsel for the Crown

G. Fournier........................................................... counsel for the defendant Shelley Yaw

CHRISTIE J.:

[1] Shelley Yaw is charged as follows:

On or about the 10th day of April, 2016 at the Township of Nairn-Hyman in the said region while her ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle contrary to section 253(1)(a) of the Criminal Code; and

On or about the 10th day of April, 2016 at the Township of Nairn-Hyman in the said region, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did have the care or control of a motor vehicle contrary to section 253(1)(b) of the Criminal Code

[2] The Crown elected to proceed summarily.

[3] Ms. Yaw brought an application for Charter relief pursuant to s. 24(2), alleging violations of ss. 8, 9, and 10(b) of the Charter. A voir dire was held during which a number of witnesses testified, including Ms. Yaw. The parties agreed that the court’s determination of the Charter issues will decide the outcome of this trial as it applies to count 2 – over 80. The parties also agreed that the court was permitted to use all of the evidence from the voir dire, except the evidence of Ms. Yaw, to make a determination on count 1 – impaired care or control.

FACTS

[4] A number of witnesses were called on the voir dire, including Constable Wendy Forcier and Constable John Dawson by the Crown, and Constable Melissa Rancourt and Shelley Yaw by the defence. Constable Rancourt was also re-called as reply evidence by the Crown.

Constable Wendy Forcier

[5] Constable Wendy Forcier was the arresting officer. She testified that she had been a constable with the Ontario Provincial Police for over 23 years and prior to that she had worked with Peel Regional Police. She agreed that she was trained on the importance of note-taking and that one could expect the relevant facts of this investigation to be found in her notes.

[6] On April 10, 2016, Constable Forcier was out on patrol, alone, westbound on Highway 17 in Nairn-Hyman in a marked police cruiser. She received a radio call at 9:36 p.m. from the police communication centre, which provided her with information that an employee of Jeremy’s Restaurant had called police to advise that a male and female with a 6 year old child had exited a vehicle, a Nissan Ultima registered to Chad Bowerman and were in the restaurant. The caller was concerned that the male and female with the child were under the influence of alcohol and further that the caller was concerned about them leaving the restaurant.

[7] Constable Forcier proceeded to the area to investigate. She arrived in the parking lot of Jeremy’s Restaurant at 9:42 p.m. There were two beige vehicles in the front main parking lot of that restaurant and she was trying to determine which vehicle was the one about which she had been advised. Constable Forcier saw a female coming out of Jeremy’s and the person was pointing to a vehicle, and she could read her lips as saying “that’s them there”.

[8] The vehicle was three parking spaces to the left of the front door. The parking lot was mostly bare, with some patches of snow. The vehicle was running, as the officer saw running lights on and exhaust coming from the tail pipe. Constable Forcier acknowledged that there was no mention of seeing exhaust in her notes. Constable Forcier was concerned that the vehicle was leaving the parking lot so she activated her emergency lights and siren. In cross-examination, she stated that she was three parking spaces away when she activated her lights and siren, she was approaching with caution and her rate of speed was not excessive. At that point, the vehicle’s reverse lights came on. Constable Forcier was not quite behind the vehicle but she was coming in that direction. At the point of the vehicle reversing, she was almost at the bumper. Constable Forcier was wondering why the occupants of the vehicle were not seeing her as they should have been able to see and hear her police cruiser, given the lights and siren. It was in the evening in the winter months. The emergency lights could be seen flashing in the sky and around the building. The officer was concerned that she was going to be “t-boned” by this vehicle. The vehicle continued reversing into her location. The officer reversed as she was worried about the impact to her vehicle.

[9] The vehicle then lurched, indicating to the officer that the driver had applied the brakes really hard, and then pulled forward into the parking space facing north. Constable Forcier then pulled up to block the vehicle from moving from the parking space. In cross-examination, Constable Forcier stated that the lights and siren were shut off at this point so that she could communicate with the occupants of the vehicle. She further clarified in cross-examination that her cruiser was in the drive path behind the vehicle, perpendicular to it. She estimated that from driver’s door to driver’s door it would have been approximately 5 to 10 feet.

[10] Constable Forcier then got out and approached the driver’s side of the vehicle. She could not see in because of the tint on the window. She knocked on the window. The window was then lowered half way down and the officer immediately smelled a strong odor of alcohol coming from the vehicle. There was a female in the driver’s seat, who was later identified as Shelley Yaw. She had glassy eyes. She was wearing a big black hoodie with something in the pouch of the hoodie. Constable Forcier recognized the passenger as Shane Yaw, who she knew as having had many dealings with police in the past which she understood were violent, however, she had never had any personal confrontations with him. In cross-examination, Constable Forcier explained that she considered there was a safety concern because of Shane Yaw’s presence and it elevated her awareness of the potential for scene violence.

[11] Constable Forcier asked the driver to turn off the car and step out of the vehicle. She wanted to confirm what was happening and to get more time with her to understand if she was actually under the influence. As Ms. Yaw was coming out of the car, she was telling the officer that her son, Benjamin, was in the back seat. In cross-examination, Constable Forcier agreed that Ms. Yaw was out of the vehicle moments after she knocked on the window. The officer acknowledged Shane Yaw as Shelley Yaw was exiting the vehicle, and noted that he had slurred words, glassy eyes, and was exhibiting signs of impairment. At this point, Constable Forcier, who was the only officer on scene, indicated that she was looking for weapons and doing a lot to maintain scene management.

[12] In cross-examination, Constable Forcier agreed that she did not observe any difficulties that Ms. Yaw had getting out of the vehicle. She was able to push the door open and exit. However, when the driver exited the vehicle, facing the officer, Constable Forcier observed that she was rolling up onto her toes as she was talking to her. In cross-examination, Constable Forcier stated that she did not appear to be anxious or nervous, rather, she was upset and disgruntled. The car door remained open and Ms. Yaw stood in the threshold of the door. As the officer was talking to her, she then began swaying and moving sideways toward the back of her car. Constable Forcier agreed that there was no reference to her losing her balance or swaying in that section of her notes, in fact it refers to her “edging” toward the back of the car. The officer was clearly smelling a strong odor of alcohol from her breath as she was talking about Benjamin in the car. In cross-examination, Constable Forcier stated that they were about two feet apart. The officer explained to Ms. Yaw how the complaint came to police, specifically that they were both seen in the restaurant with a young boy and that they appeared intoxicated and that she had been seen driving.

[13] According to Constable Forcier, Ms. Yaw then yelled at Shane Yaw, “See Shane, do you see what’s happening here”. In cross-examination, she explained that Ms. Yaw was moving into the open driver’s side door area at that time and Constable Forcier was trying to contain her by putting her arm out. There was no indication that Ms. Yaw was unsteady on her feet at this point. The officer became concerned for her own safety, thinking Shane Yaw was going to engage with her, and therefore wanted to get Shelley Yaw away from the car. The officer also wanted to observe her walk. Constable Forcier requested that Ms. Yaw speak with her by the cruiser away from the car and Ms. Yaw complied. Constable Forcier told Shane Yaw to stay in the passenger’s seat. The vehicle was still running.

[14] Ms. Yaw and Constable Forcier walked back toward the rear cruiser door. The Nissan Ultima was facing the restaurant and the front of the police cruiser was behind the Nissan, however, the driver’s door of the police cruiser was not blocked. There was enough space to get in and out of the police vehicle and enough space for a vehicle to pass between the cars. Ms. Yaw was on the officer’s left side. She was not happy and appeared reluctant, as if she did not want to go to the cruiser. Ms. Yaw stated “we just had something to eat”. According to Constable Forcier, Ms. Yaw “zig-zagged” for the entire walk toward the back of the police cruiser and was not balanced as she walked. In her notes, Constable Forcier agreed that she said “zig-zagged slightly”. Constable Forcier stated in cross-examination that the parking lot was bare in that location, although she agreed that there was probably ice. Constable Forcier was wearing police issued boots and Ms. Yaw was wearing running shoes. She did not see Ms. Yaw slip, she never had to catch her, and was not concerned about her falling. Ms. Yaw reached the cruiser rear door.

[15] By this point, Constable Forcier had formed the opinion, based on a constellation of things, that Ms. Yaw was impaired by alcohol at the time she was in care or control of the vehicle. She summarized her grounds as follows:

(1) She believed that Ms. Yaw had alcohol in her system within the preceding two hours, at a level that impaired her ability to drive a motor vehicle;

(2) She had just seen Ms. Yaw drive the motor vehicle;

(3) Ms. Yaw was not comprehending that there were lights and sirens and someone indicating her to stop, but rather drove her vehicle in reverse, coming to a lurching stop and then drove back into the parking area, leaving a gap in front of her car;

(4) Ms. Yaw had glassy eyes;

(5) There was a strong smell of alcohol on Ms. Yaw’s breath;

(6) Ms. Yaw was rolling up onto her toes;

(7) Ms. Yaw was stumbling or edging toward the back of her vehicle, as if she could balance;

(8) Ms. Yaw walked in a zig-zag pattern toward the rear of the police cruiser;

(9) Ms. Yaw slurred her words when talking about her son, Benjamin, and that they were just eating in the restaurant;

(10) Ms. Yaw was yelling at Shane Yaw in the vehicle;

(11) The manner in which Ms. Yaw was articulating what she was saying; and

(12) The information that she had received from the communication centre, that an employee had called and was concerned with the level of impairment of the person driving, and the employee then pointing out the car with such urgency when the officer arrived.

All of those things led the officer to believe that Ms. Yaw was impaired by alcohol when she had care or control of the vehicle. In cross-examination, Constable Forcier clarified that she took the information she had received from the communication centre into consideration, but she had to form her own opinion.

[16] Constable Forcier believed that she opened the rear door of the cruiser. At 9:46 p.m., Constable Forcier placed Shelley Yaw under arrest. They were at the back of the police cruiser and this occurred just before Ms. Yaw sat in the back seat. She did not hand cuff Ms. Yaw. After Constable Forcier placed Shelley Yaw under arrest, she was worried about what was on her person. She had bulky clothing and clearly something in her front pocket. Constable Forcier asked her specifically if she had any weapons. She said she had a wallet and cigarettes and pulled out the wallet. After Ms. Yaw was in the backseat of the cruiser with the door closed, Constable Forcier went around to the passenger side rear door and removed some items that were there, including two duty bags, an approved screening device, her patrol jacket and hat and pushed them into the front of the vehicle. Constable Forcier did not assist Ms. Yaw to get into the back of the cruiser and there was nothing noted as to any difficulties with her getting into the cruiser.

[17] With respect to the approved screening device, Constable Forcier did not feel it should have been used in these circumstances. She stated that, in her opinion, an approved screening device is a piece of equipment to help the officer get to the point of understanding the level of alcohol in a person’s system and to give grounds to go further with the breath demand. In the opinion of Constable Forcier, she already had sufficient grounds to believe Ms. Yaw was impaired.

[18] After Constable Forcier got into the driver’s seat of the police cruiser, she asked if Ms. Yaw had any identification on her, such as a driver’s licence. Ms. Yaw stated, “I don’t have my wallet on me, it’s in the car with my phone. I need my phone.” Meanwhile, Ms. Yaw had earlier removed the wallet from the pouch of her hoodie and it was in her hand. This was another indicia of impairment in the opinion of Constable Forcier. Constable Forcier stated to Ms. Yaw that her wallet was in her hand and asked her to check for her driver’s licence. Ms. Yaw fumbled in her wallet for her licence. In cross-examination, Constable Forcier confirmed that she did not see her pull her driver’s licence out of the wallet as she was seated in the front and Ms. Yaw was seated in the back behind her. Ms. Yaw then tried to pass the driver’s licence to Constable Forcier, but there was a plastic barrier with a small gap at the top and Ms. Yaw hit the barrier with the licence two or three times. This also added to the grounds the officer had to believe she was impaired. Constable Forcier directed her to push the licence through the small opening in the top of the window which she did and identified herself to the officer. The driver’s licence identified her as Shelley Yaw. In cross-examination, Constable Forcier recalled that the dome light was on in the vehicle because she was writing notes, however she made no notes of the fact that the lights were on.

[19] At 9:48 p.m., Constable Forcier read Ms. Yaw her rights to counsel and caution for impaired care or control. Ms. Yaw was asking questions about the approved screening device which was beside the officer on the front seat. Constable Forcier was continuing to try to read the rights to counsel and attempted to redirect the conversation back to that topic. Ms. Yaw continued asking questions about the approved screening device, as well as asking about her phone and her son and was interrupting the rights to counsel. Constable Forcier got to the point in the rights of discussing the duty counsel lawyer number. At that time, Constable Forcier saw Shane Yaw outside of the vehicle, on the passenger side, swaying. Constable Forcier was trying to keep an eye on him, while reading rights to counsel and Ms. Yaw was continuing to ask questions about her phone and son. Ms. Yaw asked the officer to write down the 1-800 number, which she did not do at that time, but told Ms. Yaw that she would be afforded a phone back at the detachment to make a call. During the discussions, Ms. Yaw made no admission of alcohol consumption and there was no evidence that she consumed alcohol in the restaurant.

[20] A black SUV then drove between the police vehicle and the subject vehicle. The driver indicated for the officer to roll down her window and said that “the guy over there is pissing on his car.” Constable Forcier was still trying to keep an eye on Shane Yaw. She continued with rights to counsel and asked Ms. Yaw if she understood, to which she replied “yep”. She could tell that Ms. Yaw was not happy. She asked Ms. Yaw if she wished to call a lawyer now, to which she responded “yep”. At 9:50 p.m., Constable Forcier continued with the rights to counsel. Constable Forcier asked if she had a lawyer or could she call her duty counsel back at the station. Ms. Yaw’s response was “I guess duty counsel”. Constable Forcier read the caution and asked if she understood and her response was “yep”. She then asked if she wished to say anything in answer to the charge and she said “not really” in a sarcastic, unhappy manner. Constable Forcier asked if she understood the caution and she said “yeah, yeah”, like the officer was irritating her. Also, at 9:50 p.m., Constable Forcier read the breath demand and asked if she understood and her response was “yep, where here?”, to which Constable Forcier explained that it would take place back at the detachment.

[21] At that point, Constable Forcier saw Shane Yaw coming from behind the vehicle approaching the police cruiser. He came right up to the officer’s widow. Constable Forcier was gesturing for Shane Yaw to get back into his car. She did not want to roll down the window as she felt there was a potential for him to do something. She rolled down her window a little and told him to go back to his seat in the car. She could smell his breath and he was showing signs that he was intoxicated. He did not comply. She made notes of what he was wearing and what was occurring. She then immediately requested back up as Shane Yaw was then trying to open the doors of the cruiser and the officer believed he was trying to get his sister out of the police cruiser. He was trying to open with such force that the car was shaking. Constable Forcier was making sure the doors were locked. She then grabbed the loud hailer and encouraged him to go back to his car. Shelley Yaw was yelling. It was chaotic.

[22] Shane Yaw then got into the driver’s seat of the vehicle and Constable Forcier saw the brake lights engaged. She was concerned he was going to back into her cruiser. In cross-examination, she added that, at this point, she moved the police cruiser closer to the vehicle to block it from moving. Ms. Yaw was saying “my son is in the back, his name is Benjamin and he is 6 years old”. She also said she wanted her phone. Constable Forcier remained in the cruiser. Ms. Yaw told her that the vehicle was not her vehicle, it belonged to her ex, and she had swapped the vehicle so he could repair her vehicle in exchange for child support. Constable Forcier then saw the vehicle shifting. Shane Yaw had traversed to the passenger side and then the passenger door opened. Shane Yaw then got out and was weaving his way through the parking lot away from Constable Forcier. Constable Forcier broadcasted what was occurring on her police radio. She saw Shane Yaw fall a couple of times and then fall over a snow bank.

[23] Constable Forcier got out of the police cruiser to secure the young boy and turn off the vehicle. She told Shelley Yaw that she was going to get Benjamin and take him to one of the people in the restaurant and asked who could come and get him. Ms. Yaw stated that her mom was available to come and get her son, but she needed her phone as the number was on her phone. Constable Forcier went to the car to get the phone and secure the boy, however, the car was locked. She knocked on the car window, trying to get the young boy to come to the door. The passenger window was lowered by the boy and Constable Forcier was able to get in that way. Visible to the officer was an open 750 ml bottle of Gibson’s on the floor in the passenger area and a cup. She did not know how much was still in it but there was something in the bottle. Constable Forcier was unable to find this reference in her notes, however, in re-examination, she was referred to her will say statement which did include this reference to the Gibson bottle. Constable Forcier was looking for a key to the vehicle. She asked the boy how to shut the car off and he said there was a button that you push, which she tried but it did not work. She grabbed the boy and took him inside. The car was still running.

[24] As she was taking Benjamin into the restaurant, at 10:03 p.m., Constable Dawson and other local officers arrived.

[25] At 10:07 p.m., Constable Forcier went back to the cruiser to ask Ms. Yaw about a key fob and the location of the phone. At that time, Constable Forcier obtained some phone numbers from Ms. Yaw which she had in her memory. Constable Forcier asked the communication centre to make the call for someone to come and get the boy. At 10:13 p.m., Constable Forcier returned to the vehicle to try to turn it off. She found the key fob in the vehicle and turned off the car. She also found the phone.

[26] At 10:18 p.m., Constable Forcier had returned to the police cruiser and confirmed with Shelley Yaw that she was clear that her rights to counsel were given to her and that she wanted a lawyer and one would be called back at the detachment. The officer asked if she understood and she responded “yes”. The officer also confirmed that she had been given a caution and that she understood and she said “yes”. Constable Forcier indicated that they had been interrupted a few times so she just wanted to be sure that Ms. Yaw understood what was going on. She also confirmed with Ms. Yaw that she had been read the breath demand and that a sample would be taken at the detachment. She asked Ms. Yaw if she understood and she said “yes”

[27] Constable Forcier heard over the radio that Shane Yaw had been arrested.

[28] Someone came to get the boy around 10:20 p.m. A car approached with two females inside and a younger female came out of the passenger seat and started yelling and causing a scene. Constable Forcier believed it was a sister of Shelley Yaw.

[29] Constable Forcier left the scene with Ms. Yaw at 10:25 p.m. There was no notation before leaving the scene that she could smell alcohol in the cruiser. Constable Forcier took Ms. Yaw to the Espanola detachment at the Hwy 6 and 17 intersection. They arrived at the detachment at 10:41 p.m. There was no discussion on the way.

[30] At the detachment, Constable Forcier opened the door to the police cruiser to let Ms. Yaw out. She did not need any assistance exiting the cruiser. Constable Forcier walked into the cell area with Ms. Yaw and lodged her in cell number 3. Constable Forcier did not have any recollection or any notes of her demeanour changing. She did not note her abilities at that time, such as balance. In cross-examination, Constable Forcier testified that if there was a marked departure in her behaviour from what she had already noted, she would have written it in her notebook. Once she was lodged in the cell, Constable Forcier had Ms. Yaw remove some of her clothing. Ms. Yaw indicated that she needed to use the bathroom and she wanted a blanket.

[31] Shelley Yaw did not say anything about wanting to speak to any particular counsel. Constable Forcier called duty counsel at 10:58 p.m. and then waited for them to call back. At 11:05 p.m., duty counsel called back. There was difficulty for Constable Forcier obtaining the name of duty counsel as it was very hard to hear – the line was “staticky”. Constable Forcier indicated this to the man on the line. His name was eventually written down as Gary Johnstone, but at first it sounded like “Dary”. He became annoyed by Constable Forcier asking him to spell his name out. Duty counsel indicated that he could hear Constable Forcier fine but she could not hear him well. In cross-examination, Constable Forcier clarified that she could hear everything he was saying but there was static on the line. She agreed that she was concerned about the static on the line. Constable Forcier asked duty counsel if he could call back, however he just kept asking questions about the release plan. She stated her conversation was very short. Constable Forcier then transferred the phone to the south side cells and Constable Dawson would have picked up the phone and gave it to Ms. Yaw.

[32] Constable Forcier did not have any discussions with Ms. Yaw about the rights to counsel after that time. At 11:09 p.m., Constable Dawson came to where she was and she understood that the call was complete. Constable Forcier stated that she had a conversation with Constable Dawson and learned that Ms. Yaw had a hard time hearing duty counsel but was satisfied with the advice.

[33] Ms. Yaw was escorted by Constable Forcier to the breath technician at 11:20 p.m. for the first breath test. She made no note of Ms. Yaw being unsteady on her feet. She did not recall her staggering at the detachment. She was subsequently advised of the results of the breath test by Constable Rancourt. At 11:43 p.m., Constable Forcier escorted Ms. Yaw again, put her back in the cells, counted some money and advised her of the charge of over 80. Constable Forcier indicated that she was with Ms. Yaw after the call with duty counsel, and no concerns were raised by her about her rights to counsel.

Constable John Dawson

[34] Constable John Dawson testified that he had been a constable with the OPP for just over 15 years, and specifically with the Espanola detachment for 11 years. In April 2016, he was with the Espanola OPP performing general duties.

[35] On April 10, 2016, he received a radio call for officers to attend at Jeremy’s Restaurant in Nairn-Hyman. While he was enroute, he received further information from Constable Forcier who indicated that a male party had left the scene on foot and was heavily intoxicated. Constable Dawson arrived at Jeremy’s Restaurant. Constable Forcier was in the parking lot behind the subject vehicle. Constable Dawson did not pay too much attention to that as he went to locate the male who had left the area. He subsequently arrested Shane Yaw and transported him to the station. He arrived at the station at 10:39 p.m.

[36] Constable Dawson assisted with the duty counsel call. He was in the cell area and the call was transferred there for Ms. Yaw to speak to duty counsel. He handed her the telephone at 11:06 p.m. and closed the door. He remained out in the hallway. The call was complete at 11:09 p.m. He did not recall having any conversation with Constable Forcier prior to the call. Constable Dawson did not recall speaking to the person on the phone after the call was transferred, although he testified that he usually did and that he would normally tell them that he was handing the phone to someone else. He did not recall doing that on this occasion. He did not know the quality of the telephone line that night. He did not make note or recall whether he was aware of any issue with the phone prior to the call.

[37] Following the call with duty counsel, Constable Dawson asked Ms. Yaw if she was satisfied with the advice from duty counsel. According to Constable Dawson, Ms. Yaw stated that she had a hard time hearing the lawyer on the other end, and that the line was “staticky”. He agreed in cross-examination that this caused him concern. He asked if she wanted him to place another call to a lawyer. She said “no”. He then asked Ms. Yaw if she was satisfied with the advice she was given and she said “yes”. He recorded this conversation in his notes shortly after he was done with the call. He agreed that there was no reference in his notes to static on the line being reported by Shelley Yaw. He indicated that if she would have asked to speak to another lawyer, he would have placed another call and would have advised Constable Forcier of the request to make another call. He also would have tested the phone to see if there was static on the line. If she still had a hard time hearing the next lawyer, he would have tried to get another phone for her to use. In cross-examination, he stated that there were other phones in the detachment. He did not do any of those things in this case because Ms. Yaw said that she was satisfied with the advice given and made no further requests. He did not check the phone or call duty counsel back to see if there was static on the line. He had never encountered static on the line in the cell area before but had experienced this in the constable’s office. He was asked whether Ms. Yaw appeared to be unsure when she said that she was satisfied with the advice to which he responded that he did not make note of it but agreed it was possible.

[38] Constable Dawson did not recall speaking to Constable Forcier about rights to counsel being provided. He also did not recall whether he relayed what Ms. Yaw had reported to him after the call was finished.

[39] Constable Dawson made no notes or observations of Shelley Yaw regarding indicia of impairment. However, his involvement with her that night was brief and lasted about 3 minutes when he was helping her with her call to duty counsel. Shelley Yaw was calm and was not upset with him or at least she did not display any outward hostility. He did not recall her being anxious and again described her as calm.

Constable Melissa Rancourt

[40] Constable Melissa Rancourt was called by the defence on the voir dire. She testified that she had been a police officer for 20 years and that she had been with the Espanola Police Service for the previous 8 years. She had been a certified breath technician for approximately 10 years at the time of her testimony.

[41] She was on duty on April 10, 2016 and assisted with locating and apprehending Shane Yaw. Her only involvement with Shelley Yaw was back at the detachment where she administered the breath tests.

[42] The breath tests were administered at 11:23 p.m. and the result was 129 mg of alcohol in 100 ml of blood. The second test was administered at 11:46 p.m. and the result was 122 mg of alcohol in 100 ml of blood.

[43] Constable Rancourt did not note any observations of Ms. Yaw. Normally, this is something she would do as the breath technician, however, she stated that this situation was chaotic as she was dealing with two separate persons, Shane Yaw and Shelley Yaw. The situation did not allow her to do an alcohol influence report as she alternated doing tests between the two of them and therefore there was no time in between. She did not recall any indicia of impairment from Ms. Yaw, which was also consistent with what can be observed on the video of the breath room, which was marked as Exhibit 1. The breath room video was video only, no audio.

Shelley Yaw

[44] Shelley Yaw testified that, on April 10, 2016, she attended at the Jeremy’s Restaurant in Nairn-Hyman on Highway 17. She was accompanied by her brother, Shane Yaw and her young son, Benjamin. Before going there, she testified that she had spent a couple of hours with her brother at her home where they talked and consumed a few drinks. She stated that when her brother arrived, he had already been drinking. At her house, Shane Yaw had a few beers and she had a couple of coolers. Ms. Yaw then got a call from her ex and then Ms. Yaw and her brother went to meet him in Nairn and switched vehicles so that he could work on her van and he gave her his car to use. Ms. Yaw also picked up Benjamin, her son, from her ex. Ms. Yaw, her brother and Benjamin then stopped at Jeremy’s Restaurant to have something to eat. The vehicle they took to Jeremy’s belonged to her ex and she had never driven that car prior to that day. She indicated that she did not know that the bottle of Gibson was in the car. She was not sure if Shane was drinking that bottle.

[45] Ms. Yaw, her brother, and her son were at Jeremy’s for 30 to 45 minutes. In cross-examination, she agreed that her brother was intoxicated. After consuming their meal, she paid. They went out and got into the vehicle. She got into the driver’s side and her brother got into the passenger’s side. Her son was in the back. She was gathering her thoughts and looking at the vehicle. She then saw a lady in the entranceway of the restaurant pointing at the window. In cross-examination, she confirmed that the person was pointing in the direction of the police officer and then in her direction. She looked in her rear view mirror or side mirror and could see a police vehicle behind her, parked perpendicular, not in an actual parking spot. Ms. Yaw admitted in cross-examination that she was nervous. Ms. Yaw stated that she did not reverse the vehicle at all.

[46] The police officer came to the driver’s side door of Ms. Yaw’s car, and asked her to roll down her window. Ms. Yaw was not entirely familiar with the car and was struggling to get the window down and could only get it partially down. The officer then asked her to exit the car and she did. Ms. Yaw left the door open and side-stepped away from the door. Ms. Yaw said she was not losing balance, rather she stepped to the side, more toward the back door, just to move out of the way of the door. The officer then saw Ms. Yaw’s brother. Out of nervousness, Ms. Yaw rocked on her feet. The officer told her there was a complaint of them smelling like alcohol. Ms. Yaw agreed that she leaned in and said to her brother, “I don’t know what’s happening but there’s a police officer here”. Ms. Yaw, eventually, agreed in cross-examination that it was possible that she would have the smell of alcohol on her breath given that she had been drinking. Ms. Yaw stepped back and shut the door. The officer asked Ms. Yaw to follow her. The cruiser was approximately 10-15 steps from her vehicle.

[47] Ms. Yaw said she did not zig-zag as she walked to the cruiser, but that it was icy and snowy at the time, so she went around the muddy, slushy area, in a half circle to the back of the car. Ms. Yaw testified that she was wearing running shoes and a hoodie. The officer did a straight line to the back of her police vehicle. Ms. Yaw agreed that she did not walk to the police cruiser in a straight line. Ms. Yaw followed the officer to the rear driver’s door, which the officer opened. Ms. Yaw climbed in willingly and the officer shut the door. The officer then went around to the other side and took some stuff out of the car. Ms. Yaw did not really pay attention but thought it was a coat. Ms. Yaw stated that it was dark. The officer got into the front seat and shoved the things she removed from the back onto her front passenger seat.

[48] The officer then went over the complaint received and stated that she was placing Ms. Yaw under arrest. Ms. Yaw mentioned the breathalyzer to the officer. She explained that she thought if she was accused of something that she would have to take a breathalyzer to actually tell whether she was drinking or not. In cross-examination, Ms. Yaw agreed that she was asking to do the roadside test. She agreed that she felt that test should have been done, she knew she could speak up for her rights, and that she did so on more than one occasion.

[49] Ms. Yaw testified that she initiated the conversation about a lawyer and inquired as to whether she would get a phone call. They talked about duty counsel and the officer gave her a number to which she responded that she would not remember that and asked the officer to write it down. In cross-examination, Ms. Yaw agreed that Constable Forcier provided her rights to counsel in the back of the cruiser. Ms. Yaw’s brother then came to the police car driver’s door and was knocking on it. The officer was yelling at Shane Yaw to go back to the car and sit down. Mr. Yaw then did try to open Ms. Yaw’s door. The officer was getting nervous. Ms. Yaw stated that she had a number of things going through her mind at the time, including the fact that she was being arrested, her brother was in a borrowed car, and her son was in the back seat. The officer was asking for her driver’s licence, which she got out of her wallet. In cross-examination, Ms. Yaw admitted that she had initially forgotten that her wallet was in her pocket. She also agreed that she had a hard time getting the driver’s licence to the officer. She stated that she asked the officer to turn on the lights and then she saw where the slot was in the partition which was not where she expected. She admitted that she hit the partition with her licence before finding the slot. Ms. Yaw then gave the driver’s licence to the officer. She then asked the officer to turn the light off in the car as she was embarrassed.

[50] At this point, Ms. Yaw described things as chaotic. The officer was asking her questions, like what was she doing there. Ms. Yaw was asking for her phone. The officer was also keeping her eye on Shane Yaw, because by this time he had climbed into the driver’s side of the vehicle. Ms. Yaw stated that Shane Yaw did actually back up the vehicle but stated that she had not backed up the vehicle at all. The officer then drove ahead even more to cut him off. Mr. Yaw then moved from the driver’s side of the car to the passenger side of the car and got out of the vehicle. The officer was still watching Shane Yaw. She then moved her police vehicle back and was calling for back up.

[51] A black truck came between the two vehicles and said that there was a guy peeing on his own car, referring to Ms. Yaw’s brother. Ms. Yaw then saw her brother walking away. She was worried that her phone and her son were in the car and was starting to get “hysterical”. The vehicle was running, as she could see the exhaust fumes. Ms. Yaw was worried and concerned. Other officers arrived at the scene. She stated that the main focus for the officers was on her brother.

[52] Ms. Yaw agreed that Constable Forcier’s evidence was somewhat consistent with what she remembered happening.

[53] Ms. Yaw stated that they headed toward the police detachment. She did not recall any conversation along the way, but when they arrived at the detachment, she stated that she had a clear recollection. Constable Forcier backed up in the parking lot of the OPP detachment. The officer opened the door and Ms. Yaw hopped out. She did not require any assistance to get out of the car. Ms. Yaw shut the door herself. Her brother was there and he was yelling. Ms. Yaw asked the officer if she wanted her to go talk to him to assure him everything would be fine. The officer said “no, come with me”. Ms. Yaw followed the officer into the detachment. The officer walked ahead of her and told her where to turn. The officer told Ms. Yaw to take the string out of her hoodie and to remove her shoes. Ms. Yaw was searched. She had a ziplock bag of change and other money which was turned over to police. Ms. Yaw was concerned about what Mr. Yaw may have had on his person given his reputation. Ms. Yaw was placed in a cell. She then asked to go to the washroom, but she was told that she had to do that in the cell. The officer gave her a blanket to cover herself for privacy.

[54] Ms. Yaw agreed that Constable Forcier had given her rights to counsel and that she understood her rights to counsel. She did not recall how it got to the point of the call with the lawyer. She did remember receiving the phone call and Constable Dawson passing the phone receiver through the cell. In cross-examination, Ms. Yaw agreed that when Constable Dawson handed her the phone, he explained that he was going to be stepping out so that she could have a conversation in private with a lawyer. She understood that this was her opportunity to speak to a lawyer. She recalled talking to duty counsel, although she said “I could not hear for the life of me” as the line was very “staticky”. She kept asking duty counsel to repeat himself. She was trying to turn away and talk because she could see the officer standing just down the hall, 15 or 20 steps away. She was trying to take the phone and talk with him privately, but the cord only went so far. She was somewhat concerned about people hearing her conversation. Ms. Yaw testified that she and duty counsel talked for a few moments - maybe 5 or 10 minutes. Ms. Yaw described the nature of the conversation with the lawyer. She advised duty counsel of what she was arrested for and that they wanted her to do a breathalyzer. However, she stated that she struggled with hearing what he was saying. She would ask him to repeat. She then stated that she just gave up. She did not know if he could hear her because she could not hear him. When asked whether the lawyer gave advice, she said “he may have but it was so difficult with hearing that I was like ‘OK, thank you for your time’”.

[55] The officer started walking toward her and she said she was done. She gave the phone back and told him it was very difficult to hear because of static. She did not recall him saying she could make another phone call. If she knew that was an option, she would have made another call. She assumed that she was entitled to one phone call and that was it, based on American television shows. She had never been in trouble before and was never arrested before. The officer asked if she was satisfied and she said “I guess so”. When asked why she said “I guess so,” she said she did not realize she could request another phone call. She agreed in cross-examination that the police never suggested that she was only entitled to make one call. Ms. Yaw agreed that she had no problem earlier asking Constable Forcier to give her the approved screening device at the roadside. In fact, she agreed that she was comfortable enough to ask her twice. When asked why she did not say “no” when the officer asked if she was satisfied, she stated, “well I guess I could have but I just went with ‘I guess so’. It was just the first thing that came to my mind, like ‘I guess so’”. She agreed that she did not say anything further to Constable Dawson or Constable Forcier.

[56] Ms. Yaw testified that Constable Dawson did not indicate anything else to her after she said “I guess so”. He took the phone and walked away. She laid down for a bit in her cell. She believed that Constable Forcier may have walked her to Constable Rancourt for the breathalyzer. Ms. Yaw agreed in cross-examination that she ultimately did blow over the legal limit.

[57] When it was suggested to Ms. Yaw that she had not said anything to anyone else about problems with the call with duty counsel, she agreed that she had not said anything to anyone else. Then, Ms. Yaw added that she may have mentioned it to Constable Rancourt but that Constable Rancourt did not suggest that she could do anything else either.

[58] Ms. Yaw would not agree that she drank “more than a little bit” that night, even though her readings were 120 mg of alcohol in 100 ml of blood.

Constable Melissa Rancourt

[59] Constable Melissa Rancourt was re-called in reply.

[60] She stated that prior to the breath samples being taken, she would generally receive grounds from the investigating officer, however, in this case she was familiar with the grounds because she was involved in the original investigation. She would then confirm whether the person has had an opportunity to speak with counsel if they wish to speak to counsel. Once she encounters the accused, she introduces herself, explains the purpose of the person seeing her, explains that it is being video and audio recorded and explains the breath test procedures. She agreed that she took these steps in this case.

[61] Constable Rancourt agreed that if Ms. Yaw expressed any dissatisfaction with the procedure she would have noted it. Ms. Yaw did not express any concerns about legal counsel or the procedure itself. Constable Rancourt did not recall discussing the rights to counsel she received, however she was aware that Ms. Yaw was in contact with counsel. Generally, she would not ask the detainee about the quality of the advice that they received, in order to respect privilege. Ms. Yaw did not say anything about being dissatisfied with the advice that she received. Ms. Yaw did not say that the phone was “staticky”. If she had said there was a difficulty, Constable Rancourt stated that she would have addressed this with the investigating officer and would have indicated that there seemed to be a deficiency with the rights to counsel. Constable Rancourt testified that this has occurred before on more than one occasion.

POSITION OF THE PARTIES

[62] Ms. Yaw alleges violations of ss. 8, 9 and 10(b) of the Charter. In summary, Ms. Yaw submitted that the arresting officer, Constable Forcier, did not have the requisite reasonable and probable grounds to make the arrest, to make the breath demand and ultimately to have breath samples taken. She argued that this results in a violation of s. 8 of the Charter and amounts to an unreasonable search and seizure. It is also argued that s. 9 of the Charter was violated and that the detention was arbitrary given the lack of reasonable and probable grounds. Ultimately, Ms. Yaw argued that given these Charter violations, the samples of her breath that were obtained should be excluded pursuant to s. 24(2) of the Charter.

[63] Ms. Yaw also argued that her s. 10(b) Charter rights were violated. She acknowledged having been advised of her rights to counsel and that she was put in touch with duty counsel, however, the phone line was very “staticky”, making it very difficult for her to hear, and therefore, the police failed in the implementational component of rights to counsel. Ms. Yaw submitted that this violation should also result in the exclusion of evidence obtained from her, the samples of her breath, pursuant to s. 24(2) of the Charter.

[64] Ms. Yaw conceded that the court’s decision on these Charter issues would dictate the result on the trial proper. In other words, if the breath tests are excluded, there must be an acquittal on the charge of over 80. If the breath tests are admitted, there must be a conviction on the charge of over 80.

[65] With respect to the charge of impaired care or control of a motor vehicle, Ms. Yaw submitted that there is simply not sufficient evidence of impairment to result in a conviction on this charge. Ms. Yaw agreed that the court is permitted to consider the evidence of the officers as it relates to the charge of impaired care or control, however, the court is not permitted to consider the evidence of Ms. Yaw as this evidence was presented for the purposes of the voir dire only.

[66] The Crown’s position is that there were no Charter violations in this case. There were ample pieces of evidence to provide the officer with reasonable and probable grounds, both as testified to by the officer as well as from Ms. Yaw herself. While Ms. Yaw may have explanations for some of her behaviour, the officer would not have known those explanations at the time and she was entitled to rely on the observations and information she had at the scene. Therefore, the Crown argued that there was no violation of s. 8 or 9 due to the fact that reasonable and probable grounds existed.

[67] With respect to any violation of s. 10(b), the Crown submitted that Ms. Yaw was not duly diligent in exercising her rights. When she advised Constable Dawson that the line was “staticky” and it was difficult to hear, Constable Dawson asked her whether she wished to call another lawyer. Ms. Yaw’s response was “no”. Further, Constable Dawson asked if she was satisfied with the advice she received and she said either “yes” or “I guess so”. It would have been clear to the officer at that point that Ms. Yaw was satisfied with the implementation of the rights to counsel. There is nothing more that the officer was required to do at that time. Therefore, the Crown argued that there was no violation of s. 10(b) of the Charter.

[68] With respect to the charge of impaired care or control, the Crown argued that there was ample evidence in this case that is proven beyond a reasonable doubt. The Crown pointed to the evidence of driving, difficulties with coordination, slurred speech, red glossy eyes, difficulty with comprehension, difficulty passing her licence through a partition, and not realizing that she had her wallet on her person. The Crown submitted that the evidence of impairment need not be a marked departure but rather can be anything from slight to great.

ANALYSIS

Sections 8 and 9 of the Charter – Reasonable and Probable Grounds

[69] The determination of the alleged Charter violations pursuant to s. 8 and s. 9 both turn on the question of whether the officer had reasonable and probable grounds.

[70] Where evidence is obtained as a result of a warrantless search or seizure, the onus is on the Crown to show that the search or seizure was reasonable. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable. The only question in this case is whether the arresting officer complied with the statutory preconditions for a valid breath demand, specifically whether the officer had reasonable and probable grounds.

[71] With respect to the alleged s. 9 Charter violation, the onus remains on the defence to demonstrate that the detention was arbitrary. However, again, the determination of whether the detention was arbitrary depends on whether the officer had reasonable and probable grounds.

[72] There is both a subjective and objective component to reasonable and probable grounds. The officer must have an actual or honest belief that the person committed the offence, and the opinion must be supported by objective facts. The determination of whether reasonable and probable grounds exist is a fact-based inquiry grounded in the circumstances of the case. The absence of certain indicia does not necessarily undermine reasonable and probable grounds. R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254 at para. 48; R. v. Bush, 2010 ONCA 554, para. 38, 55, 56; R. v. Rhyason, 2009 SCC 39, para. 19

[73] It is the totality of the circumstances that must be considered in deciding whether the officer had reasonable grounds to make the breath demand. As stated in R. v. Shepherd, 2009 SCC 35, para. 23, “it is important to note that the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving "over 80" before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation.”

[74] In R. v. Wang, 2010 ONCA 435, the Court of Appeal discussed how trial judges should approach the analysis of whether reasonable and probable grounds exist. The Court stated:

17 In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd 1994 94 (SCC), [1994] 2 S.C.R. 478.

[75] In other words, extreme intoxication is not required. Slight impairment to drive relates to a reduced ability to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road.

[76] In R. v. Bush, 2010 ONCA 554, the court stated:

[60] There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds. There is no requirement that a roadside sample be taken. The ASD provides evidence of the blood alcohol concentration in the suspect's blood, not evidence of impairment. The trial judge correctly found that if the officer subjectively and objectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadside screening provisions was irrelevant. If the officer's belief failed to meet the requisite standard, there was a s. 8 Charter violation.

[61] A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officer had 18 years' experience. The trial judge was entitled to take into consideration that experience and training in assessing whether he objectively had reasonable and probable grounds: Censoni, at paras. 36 and 37. In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay: R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, [1989] S.C.J. No. 118, at pp. 1167 S.C.R. and 1168 S.C.R., Costello; R. v. Lewis (1998), 1998 7116 (ON CA), 38 O.R. (3d) 540, [1998] O.J. No. 376 (C.A.), at paras. 15 and 16; Censoni, at para. 57.

[66] In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: Shepherd, at para. 23. That the officer turned out to be under a misapprehension is not determinative: Censoni, at para. 35. The important fact is not whether the officer's belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, 1990 ABCA 170, [1990] A.J. No. 418, 107 A.R. 102 (C.A.).

[70] The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual.

[77] Given that this is a warrantless seizure of Ms. Yaw’s breath, the onus is on the Crown to prove that the seizure is reasonable. Therefore, it is for the Crown to prove that the officer has reasonable and probable grounds. On the alleged s. 9 violation, Ms. Yaw has the burden of proving the violation on a balance of probabilities. However, as previously stated, the determining factor in this case is still whether or not the officer had reasonable and probable grounds.

[78] It is the view of this court that Constable Forcier had reasonable and probable grounds in this case. Even if this court were to question the credibility or reliability of Constable Forcier, there were many indicia that were admitted to by Shelley Yaw. This would include:

(1) Rolling up onto her toes when she came out of the vehicle.

(2) Stepping to the side after she was out of the vehicle.

(3) Walking toward the back of the police cruiser in a manner other than a straight path

(4) Speaking to her brother, Shane Yaw, as the officer was attempting to speak to her outside the vehicle.

(5) Her admission that she would, possibly, have alcohol on her breath given that she had been drinking.

All of these indicia were, of course, followed by the difficulties Ms. Yaw had with retrieving her wallet and in attempting to pass her driver’s licence through the partition in the police vehicle. Alternate explanations provided after the fact for the behaviour which might be construed as indicia of impairment do not change the fact that the officer had an actual and honest belief that the person committed the offence and that the opinion was supported by the objective facts. Also, the fact that the person does not exhibit constant signs of impairment throughout the entirety of the interaction, or does not display every indicia of impairment that a person could possibly conceive of, does not change the fact that some indicia of impairment were present which led the officer to have an actual and honest belief that the person committed the offence and that the opinion was supported by the objective facts.

[79] It is the view of this court that the factors admitted to by Ms. Yaw would be sufficient to provide Constable Forcier with reasonable and probable grounds.

[80] Further, Constable Forcier referred to other indicia of impairment being present, which this court does accept:

(1) She saw the vehicle start to back up but then lurched, as if someone had applied the brakes hard. The driver did not appear to appreciate that there was a police cruiser very close behind her with lights and siren on. The vehicle then pulled back into the parking spot leaving a gap in the front of the car.

(2) The glassy eyes

(3) The strong smell of alcohol on her breath

(4) Stumbling or edging toward the back like she could not balance.

(5) Her slurred words when talking about her son Benjamin and that they were just eating in the restaurant

(6) The information that she had received from the communication centre, that an employee had called and was concerned with the level of impairment of the person driving, the person then pointing out the car with such urgency when the officer arrived.

Constable Forcier believed, based on a constellation of factors, that Ms. Yaw had alcohol within her system at a level that impaired her ability to drive a motor vehicle. Constable Forcier had actually witnessed Ms. Yaw drive a motor vehicle by backing up in the parking lot.

[81] Ms. Yaw denied that she started to back the vehicle up. This court does not accept this evidence. Ms. Yaw, Shane Yaw, and Benjamin were all seated in the vehicle. Ms. Yaw admitted that someone came to the entranceway of the restaurant and was pointing in the direction of the officer and then in her direction. Ms. Yaw never mentioned seeing or hearing lights and siren. It only makes sense that she would have been proceeding to leave the parking lot. Further, given Ms. Yaw’s admission of alcohol consumption it makes sense that she would have had glassy eyes, a strong smell of alcohol on her breath, difficulty balancing and slurred speech.

[82] The defence submitted that Constable Forcier’s evidence should be questioned given the fact that certain events were not recorded in her notes and given that during her testimony she relied on her notes extensively. Neither of these things lead this court to question the reliability or credibility of Constable Forcier. Constable Forcier was dealing with a dynamic scene during her investigation of these matters. It is understandable that some things might not have been noted by her. With respect to her reliance on her notes during her testimony, quite frankly, this court does not agree with this assessment of her evidence. Constable Forcier appeared to recall a great deal of detail about this matter despite the fact that it was a very long time ago. Her reference to her notes often came at a point where she had already recalled some detail but wanted to be careful about her evidence to ensure that her memories were accurate.

[83] Clearly, there were plenty of indicia relied upon by Constable Forcier to form her grounds. The officer had reasonable and probable grounds to arrest Ms. Yaw, to detain Ms. Yaw and to make the breath demand of Ms. Yaw. The taking of breath samples from Ms. Yaw was completely permissible. There was no violation of s. 8 or 9 of the Charter.

Rights to Counsel

[84] The case of R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, discussed the duty of the police as being informational and implementational. The Supreme Court stated in part as follows:

21 In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before the advent of the Charter. In Brownridge v. The Queen, 1972 17 (SCC), [1972] S.C.R. 926, a case decided under the Canadian Bill of Rights, Laskin J., as he then was, wrote at pp. 952-53:

The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him upon his request to use the telephone for that purpose if one is available.

The duty to facilitate contact with counsel has been consistently acknowledged under s. 10(b) of the Charter by the lower courts: R. v. Nelson (1982), 1982 3760 (MB QB), 3 C.C.C. (3d) 147 (Man. Q.B.); R. v. Anderson (1984), 1984 2197 (ON CA), 10 C.C.C. (3d) 417 (Ont. C.A.); R. v. Dombrowski (1985), 1985 182 (SK CA), 18 C.C.C. (3d) 164 (Sask. C.A.), and the Ontario Court of Appeal in this case. In Dombrowski, the Court held that, where a telephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until arrival at the police station.…..

23 Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it. For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence. I discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 624:

I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.

[85] When a detainee indicates a desire to exercise his or her right to counsel, the state is required to provide a reasonable opportunity to do so and state agents must refrain from eliciting incriminatory evidence from the detainee until there has been a reasonable opportunity to reach counsel. What constitutes a reasonable opportunity will depend on all of the surrounding circumstances. R. v. Prosper (1994), 1994 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.), p. 375

[86] In R. v. Brydges (1990), 1990 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.), the court stated in part as follows:

13 …….Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty then, on the police to facilitate contact with counsel….

[87] The determination of whether the police provided a detainee with his or her right to counsel, including the information required to assist in exercising the rights to counsel and facilitated contact, is fact specific in the circumstances of each case. The court must also consider whether the detainee has been diligent in exercising the rights to counsel.

[88] In the case of R. v. Tremblay, 1987 28 (SCC), [1987] 2 S.C.R. 435, the Supreme Court of Canada considered s. 10(b) of the Charter in the context of an accused person who was given rights to counsel, but rather than call counsel, he chose to call his wife to ask her to contact a lawyer. The police did not wait for the information to be received but rather proceeded to take the first sample as soon as his call with his wife had ended. Ultimately in Tremblay, the court found a violation but did not exclude the evidence pursuant to s. 24(2) as the hastiness of the police was provoked by the accused’s behaviour, including obstructing the investigation and it appeared that he was stalling. The Court made the following comments about the required diligence on the part of the accused / detainee:

9 Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath. While this is not the case here, the accused's conduct was, to some degree, misleading in that regard. While the police's hastiness does not change the fact that the detainee's right to counsel was violated, the reasons therefor make it understandable and are relevant when one addresses the s. 24(2) issue. In my view the admission of the evidence obtained would not, having regard to all of the circumstances, bring the administration of justice into disrepute.

[89] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the police informed Mr. Willier of his rights to counsel and facilitated a brief telephone call with duty counsel. When offered another opportunity to speak with counsel the next day, he made an unsuccessful attempt to call a specific lawyer. When he was told the lawyer was unlikely to call back before his office reopened the next day and was reminded of the availability of duty counsel, Mr. Willier opted to speak to duty counsel. He said he was satisfied with the advice of counsel The court stated:

41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27, there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.

42 As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier's legal advice.

[90] Circumstances do, sometimes, arise that require the police to facilitate further consultation with counsel. However, in R. v. Sinclair, 2010 SCC 35, the court was somewhat restrictive as to when these situations arise:

49 The police, of course, are at liberty to facilitate any number of further consultations with counsel. In some circumstances, the interrogator may even consider it a useful technique to reassure the detainee that further access to counsel will be available if needed. For example, in the companion case of R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, a skilled interrogator commenced the interview by making it clear to the detainee that he would be free at any time during the interview to stop and call a lawyer. The question here is when a further consultation is required under s. 10(b) of the Charter. For the purpose of providing guidance to investigating police officers, it is helpful to indicate situations in which it appears clear that a second consultation with counsel is so required. The categories are not closed. However, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.

57 As we see it, an approach which would require that questioning be suspended pending a reasonable opportunity to consult further with counsel whenever there is "objective support" to think that the detainee may require further legal advice is not sufficiently connected to the purpose of ensuring that the detainee remains properly advised about how to exercise his or her rights. It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee's decision to cooperate with the police or not is informed as well as free. ….

[91] Specifically with respect to hearing difficulties or problems with the call to counsel itself, this court has considered a number of cases.

[92] In R. v. Gocek, 2005 ONCJ 537, Justice Dawson considered the context of rights to counsel in a scenario where Mr. Gocek was arrested and given his rights to counsel in English, but at the station, Mr. Gocek, who speaks Polish, spoke to a Polish speaking lawyer. There were also hearing difficulties. The court stated:

70 I am satisfied on the balance of probabilities that Mr. Gocek had problems hearing the lawyer on the phone. The call was short, under two minutes duration. He expressed a concern prior to going into the room and he was told "to try". In the circumstance of this particular case where he had obviously indicated a hearing problem, when he had indicated a difficulty using the phone, which I find he did indicate and where he was told to "try", I am not prepared to find that there was a lack of due diligence in bringing to the officer's attention any difficulties he had on the phone. The police in these circumstances did not take sufficient steps as referred to in Regina v. Bartle to ensure that his rights to counsel had been complied with. No one asked him if he had been able to communicate with the lawyer.

The Court found a breach of s. 10(b) of the Charter and the breath readings were excluded pursuant to s. 24(2).

[93] Also, in R. v. Malette, [2014] O.J. No. 967 (C.J.), the court was dealing with rights to counsel in the context of a hearing impairment. The police attempted to assist the accused in speaking with duty counsel four separate times. The accused continued to bring these hearing difficulties to the attention of the police and said he could not hear duty counsel. The police concluded that Mr. Malette was pretending not to be able to hear. The police were concerned about losing evidence if they did not proceed with the investigation and so they proceeded with the breath tests. The court stated:

29 I find on the balance of probabilities that the accused has established that he has a moderate to profound hearing loss in both of his ears such that he could not hear the duty counsel on the various phones provided to him for the purposes of seeking legal advice. I further find that the accused as a result, did not have a proper conversation with legal counsel prior to being required to provide suitable breath samples to a qualified technician in an approved instrument.

30 I acknowledge that Sergeant McDonald in particular, attempted to accommodate the accused in getting legal advice but that he was unaware as to the capabilities of the various phones in the Petawawa Detachment and was unaware as to whether or not there was any other hearing impaired equipment that could assist a hearing impaired individual in circumstances such as the accused before the court. I also find that this problem was systemic in the Petawawa Detachment of the Ontario Provincial Police because none of the officers were aware if the Petawawa Detachment had any equipment to assist hearing impaired individuals. I also find that there was not a defined protocol in these circumstances in view of the fact that the officers were not aware of other technologies such as TTY phones or stand alone computers that could be used to communicate with duty counsel.

31 I further find that the accused did not at any point in time waive his right to speak with legal counsel prior to providing his breath samples.

The Court found a breach of s. 10(b) of the Charter and the breath readings were excluded pursuant to s. 24(2).

[94] In R. v. Yousufi, [2017] O.J. No. 6868 (C.J.), Justice West was dealing with s. 10(b) in the context of an accused who had difficulty with the English language. The court stated in part:

67 Further, the onus is on Mr. Yousufi to satisfy the court of the breach of his s. 10(b) Charter rights. If Mr. Davoudi wanted to demonstrate there were problems with the interpretation of Duty Counsel’s legal advice by the Farsi interpreter that Duty Counsel utilized, in my view it was incumbent on Mr. Davoudi to address this issue by leading evidence from the Duty Counsel or the interpreter, particularly where Mr. Yousufi advised the Qualified Breath Technician, P.C. Sebaaly and P.C. Kendelati that he was satisfied with the advice he received from Duty Counsel and made no complaint about being unable to hear the interpreter’s translation.

68 Mr. Yousufi was afforded his right to counsel before the first breath test was started. At no time did Mr. Yousufi express he was not satisfied with the legal advice he had received from Duty Counsel and he never requested to speak to another lawyer. This was a particularly significant piece of evidence as it relates directly to whether there was a breach of s. 10(b) of the Charter in terms of whether Mr. Yousufi was dissatisfied with the legal advice he was provided by Duty Counsel. In R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37, at para. 41 and 42, the Supreme Court of Canada held where there was no complaint by a detainee as to the legal advice provided, the police were entitled to assume the accused was satisfied and to continue with their investigation, in this case, the obtaining of breath samples.

69 In the facts of this case, Mr. Yousufi was directly asked by P.C. Sebaaly if he was satisfied with the legal advice provided by Duty Counsel and he indicated he was. P.C. Sebaaly was entitled to rely on that answer and proceed with his investigation.

The Court found no violation of s. 10(b) in these circumstances.

[95] Finally, in R. v. Granda, [2018] O.J. No. 2177, Bliss J. was considering a scenario in which duty counsel hung up on the accused person. The court stated as follows:

41 In the breath room Mr. Granda told Cst. Pinho that duty counsel hung up on him. He was then asked by Cst. Pinho if he wanted to have duty counsel called back. He did not. He was asked if he was satisfied with the phone call but instead asked "do I have a choice?" and volunteered that duty counsel told him to "take the test blah blah blah". Mr. Granda was not provided with other options nor did he provide any himself.

42 Charter rights are not absolute. As the Supreme Court wrote in R. v. Tremblay (1987), 1987 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.) "the right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, then the correlative duties on the police are suspended."

43 Police made considerable efforts to facilitate contact with counsel of choice. Even though Mr. Granda was not happy with duty counsel hanging up on him, he had been provided with advice which he volunteered to the breath technician. He did not want to speak with duty counsel again. The officer's considerable, albeit unsuccessful, efforts to contact counsel of choice for Mr. Granda, in combination with Mr. Granda's consultation with duty counsel and failing to request to speak with either duty counsel again or a different counsel, was facilitating, not denying, the exercise of his s.10(b) rights.

44 In R. v. Willier 2010 SCC 37, [2010] S.C.J. No. 37 at para. 42, the Court wrote that "s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them; however, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview."

45 In the circumstances before me, Mr. Granda was able to consult with counsel. He may have been dissatisfied with the manner of the advice, but that does not make the advice he received inadequate. Unlike the case in R. v. Czorny 1996 8165 (ON SC), [1996] O.J. No. 3410 (O.C.G.D.) that the defence urges me to follow, there was no evidence that whatever advice Mr. Granda received was deficient. As a result, I do not find that Mr. Granda has established on a balance of probabilities that he suffered any breach of his s.10(b) right to counsel of choice or find any basis to conclude that whatever advice he did receive was inadequate.

The Court found no violation of s. 10(b) for these reasons, however, found that s. 10(b) had been breached due to the fact that the conversation with counsel was not private.

[96] Rights to counsel are intended to place the detainee in a position in which they are able to make a meaningful choice as to whether to cooperate with the police investigation. The detainee, however, has an obligation to advise police if there has been some problem or difficulty with the implementational component of the rights to counsel. The police cannot be put in the position of having to interrogate the person about the adequacy of the discussion with duty counsel. This would undermine the required privacy that the detainee is entitled to when exercising their rights to counsel. In the absence of objective indication that something more is needed to fulfill the implementational component, the police should not be required to provide further consultation with counsel.

[97] In the case at bar, Ms. Yaw was not duly diligent about exercising her rights to counsel. Even though the phone was “staticky”, Ms. Yaw proceeded to have a conversation with duty counsel for 5 minutes or, possibly, more, according to her own evidence. After the phone call was completed, Ms. Yaw advised Constable Dawson that the phone was “staticky” and that she had difficulty hearing. However, according to Constable Dawson, when he asked Ms. Yaw if she wanted to call another lawyer, her answer was “no”. Ms. Yaw did not recall the officer saying this to her and, in fact, stated that if she knew she could make another call, she would have made another call. This court does not accept Ms. Yaw’s evidence on this point. Given Ms. Yaw’s demeanour with the police officers that night, it would appear that she had no problem speaking up for herself and or speaking her mind in front of the police, given the following:

(1) She asked Constable Forcier on at least two occasions about the administering of the roadside screening device because she felt the test should be administered if she was being accused of doing something wrong.

(2) She attempted to have a conversation with Shane Yaw when Constable Forcier was speaking to her outside of the car. It would appear that she was trying to get Shane Yaw involved in her interactions with the police.

(3) She asked to use the bathroom and asked for a blanket.

(4) She told the police that the line was “staticky”.

(5) Ms. Yaw did acknowledge being asked by Constable Dawson whether she was satisfied with the advice that she received and, according to Ms. Yaw, her response was “I guess so”.

(6) When asked why she did not say “no” when the officer asked if she was satisfied, she stated, “well I guess I could have but I just went with ‘I guess so’. It was just the first thing that came to my mind, like ‘I guess so’”. Being that it was the first thing that came to her mind, it would suggest that Ms. Yaw was satisfied with the call.

(7) When it was suggested to Ms. Yaw that she had not said anything to anyone else about problems with the call with duty counsel, she agreed that she had not said anything to anyone else. Then, Ms. Yaw added that she may have mentioned it to Constable Rancourt but that Constable Rancourt did not suggest that she could do anything else either. This suggestion was not put to Constable Rancourt when she initially testified on the voir dire, but when she was recalled in reply, Constable Rancourt clearly stated that Ms. Yaw had not raised any concerns with her at all. This court does not accept that Shelley Yaw raised any concern with Constable Rancourt. Ms. Yaw was inconsistent and uncertain on this point. Constable Rancourt was clear that no such concerns were raised with her.

Given all of these factors, this court finds that if Ms. Yaw had truly not been satisfied with her call to duty counsel, she would have said so.

[98] Ms. Yaw had an obligation to advise police that she was not satisfied with the call. Even according to Ms. Yaw’s own evidence, she did not do that. When asked whether she was satisfied and she responded “I guess so”, Ms. Yaw was signalling to Constable Dawson that she was satisfied with the call. Constable Dawson cannot be expected to question Ms. Yaw further about the adequacy of the discussion, as he would have been violating the privacy of that discussion. Constable Dawson was made aware that there was static on the line, he made appropriate inquiries of Ms. Yaw to determine if further consultation with counsel was required in order to satisfy the implementational component, and Ms. Yaw, by her response, suggested to Constable Dawson that nothing more was required. Nothing more can be expected of Constable Dawson.

[99] In all of the circumstances, Shelly Yaw has not established on a balance of probabilities that she suffered any breach of her section 10(b) Charter rights.

CONCLUSION

[100] Given that this court has found no violation of s. 8, 9 or 10(b) of the Charter, and based on the concession by counsel that this would dictate the result in this trial, Ms. Yaw is found guilty of having over 80 mg of alcohol in 100 ml of blood while having care or control of a motor vehicle. Given the finding of guilt on count 2, pursuant to Kienapple, count 1 will be stayed.

Released: February 5, 2019

Signed: Justice V. Christie