Ontario Court of Justice

Date: September 17, 2019

Central East Region

Between:

HER MAJESTY THE QUEEN

— AND —

THAMIL UTHAYA-SHANGAR

Before: Justice F. Javed

Heard on: December 6, 2018, January 22, July 24, 2019

Reasons for Judgment released on: September 17, 2019

Counsel:

• N. Young, for the Crown
• M. Mirza, for the Applicant

I. INTRODUCTION

[1] Thamil "Selvi" Uthaya-Shangar, ("the Applicant"), is charged with the offence of having care or control of a motor vehicle while her blood-alcohol concentration ("BAC") exceeded 80mgs of alcohol in 100mls of blood contrary to s.253(1)(b) of the Criminal Code.

[2] On October 26, 2017, the Applicant was investigated by Police Constable Mike Fong ("PC Fong") of the Durham Regional Police Service ("DRPS") after some civilians complained of erratic driving. After failing an approved screening device test ("ASD test"), she was arrested and subsequently provided two samples of her breath in excess of the legal limit.

[3] At trial, the Applicant argued the police violated her rights under the Charter of Rights and Freedoms ("Charter"). In particular, the Applicant advanced arguments respecting violations of her rights under ss.8, 9, 10(a) and 10(b) of the Charter. As a remedy she seeks to exclude the evidence of the breath samples under s.24(2) of the Charter.

[4] The Crown called the investigating officer, PC Fong and relied on the parade room video (Exhibit 1), a Certificate of a Qualified Breath Technician, ("COQBT"), provisionally entered as Exhibit 2, and a portion of the breath room video as Exhibit 3.

[5] The Applicant testified on the Charter voir dire and also called evidence from officers who attended at the roadside, PC Hey and PC Li of the DRPS.

[6] The parties agreed to blend the evidence on the trial and Charter issues with respect to the Crown's witnesses and two police witnesses called by the defence. The Applicant's evidence only applied to the Charter voir dire.

[7] The case has a tortured history. The trial started before me on December 6, 2018. It was set to continue on December 7, 2018, but unfortunately Ms. Mirza was involved in a traffic accident and couldn't attend. The Applicant attended on her own and Crown counsel assisted in setting a new date with Ms. Mirza's calendar: January 22, 2019. The Applicant waived her s.11(b) Charter rights. The matter was adjourned to July 24, 2019 but did not finish. Given that the bulk of the last day was taken up with oral submissions, exercising my trial management powers, I advised the parties that the court would set a date for judgment and in the interim, invite written submissions. Both parties provided written submissions, which I have reviewed in consideration of my decision.

II. OVERVIEW OF REASONS

A. Issues

[8] The issues for the court to determine are as follows:

(1) Was there a violation of s.8 of the Charter by the alleged failure of PC Fong to not make an ASD demand forthwith?

(2) Was the Applicant arbitrarily detained within the meaning of s.9 of the Charter?

(3) Did PC Fong lawfully inform the Applicant of her reasons for detention and arrest within the meaning of s.10(a) of the Charter?

(4) Did PC Fong comply with his informational and implementational duties under s.10(b) of the Charter? Specifically, (i) did he provide her rights to counsel ("RTC") forthwith within the meaning of s.10(b), (ii) did he improperly deny her the ability to speak to her husband to facilitate her RTC and (iii) did the police improperly steer her to duty counsel by not providing her with the tools and information to access her RTC?

(5) If there were any proven Charter violations, has the Applicant satisfied her burden on a balance of probabilities to exclude the evidence under s.24(2) of the Charter?

(6) Has the Crown proven the offence beyond a reasonable doubt based on the admissible evidence?

B. The Onus

[9] The Crown must prove that the warrantless seizure of the Applicant's breath samples were lawful while the Applicant must prove a breach of her Charter rights under ss.10(a) and 10(b) and also that she's entitled to a remedy under s.24(2) on a balance of probabilities: R. v. Singh, 2007 SCC 48 at para. 8. In the context of an ASD demand, the Crown bears the onus of proving it was made forthwith: R. v. Haas (2005), 76 O.R. (3d) 737 (C.A.) at paras. 23-28. Where, as in this case, there is a corresponding s.10(b) forthwith complaint, there is recent appellate authority for the proposition that the Crown continues to bear the onus to justify the suspension of the s.10(b) right by proving whether there was reasonable opportunity to consult counsel. See R. v. Menezes, 2019 ONSC 4497 at paras. 23-26, per Schreck J. sitting as a Summary Conviction Appeal Court.

[10] There are some factual differences between the parties about some events. In a Charter voir dire, the reasonable doubt standard developed in R. v. W.D., [1991] 1 S.C.R. 742, does not apply where the Applicant bears the burden of proof on a balance of probabilities: R. v. Poole, 2015 BCCA 464, 330 CCC (3d) 281 at para. 51. Similarly the introduction of hearsay is permitted because a Charter voir dire is designed to establish "the state actor's mind and conduct, not the ultimate reliability of the evidence in determining the guilt of the accused": R. v. Paterson, 2017 SCC 15 at para. 20. I have kept these principles in mind while wading through the evidence.

C. Summary of Conclusions

[11] For reasons that follow, I have concluded that the Applicant's s.8 forthwith Charter argument succeeds in part, but all other Charter arguments fail. I have concluded that PC Fong did not make an ASD demand promptly resulting in a s.8 Charter violation and a corresponding violation of s.9. Specifically, there was a 3 minute delay in providing the ASD demand, which on this record, was left unexplained and therefore not promptly within the meaning of s.254(2)(b) of the Code. However, I disagree with the defence that this forthwith delay was longer at 8 minutes. In addition, I have also concluded that the Applicant otherwise provided her ASD sample forthwith and the Crown has met their onus to prove that the Applicant didn't have a reasonable opportunity to exercise her RTC after making the ASD demand and prior to taking the sample, thus, there was no corresponding s.10(b) violation. Despite finding the discrete ss.8/9 Charter violation, this misstep was inconsequential in the circumstances of this case as the Applicant hasn't met her burden to exclude the evidence under s.24(2).

[12] As for the other Charter arguments, they do not succeed. The Applicant was aware of her reasons for detention and arrest, she was properly afforded her RTC and invoked her RTC by choosing to speak with duty counsel, as she didn't have private counsel. Further, there was no legal obligation on the police to permit her to speak to her husband, which on this record establishes was to tend to her son, not exercise her RTC. The breath readings are therefore admissible at trial.

[13] I will start my discussion with some background facts then turn to the specific Charter complaints.

III. THE EVIDENCE

(A) The Driving

[14] PC Fong has been a police officer with the DRPS for 14 years. At the time of the incident he had been involved in approximately 42-56 drinking and driving investigations. He also has experience as a qualified breath technician (QBT). On October 26, 2017, he was working alone and operating a marked police cruiser.

[15] At approximately 12:16 am, he was dispatched to an impaired driver call at the Markham/Pickering town line and Taunton Rd. in the region of Durham. The call originally went to the OPP and provided a description of a blue Suberu motor vehicle with marker AHHJ449. He received information that the above vehicle was driving erratically on Hwy 407. The license plate was updated as AHHJ749. It was confirmed that this vehicle was a 2013 blue Hyundai (not Suberu) motor vehicle. There is no dispute that the Applicant was operating this motor vehicle.

[16] At 12:31 am, PC Fong learned that the vehicle was traveling eastbound on Kingston Rd. and Rotherglen Rd. He was situated at Taunton Rd. and Altona Rd. in Pickering and proceeded to the area. While en route, he was advised "the vehicle was all over the road" and traveling 60km/hour on Hwy 407. He also learned that another motorist had been following the vehicle from the Don Valley Parkway.

[17] At 12:39 am, PC Fong identified a blue motor vehicle with a female driver stopped on Lakeridge Rd. He made a u-turn and stopped directly behind the vehicle. He was satisfied it was a blue Hyundai. He waited for the traffic light to turn green and saw the vehicle travel northbound on Lakeridge Rd. at 80km/hour.

[18] PC Fong testified the vehicle was swerving and he saw the left tire of the vehicle cross the center lane marking on two occasions. He activated his emergency lights and the vehicle immediately pulled over to the right shoulder.

(B) The Traffic Stop

[19] Ms. Mirza conceded PC Fong had valid grounds for a traffic stop under the Highway Traffic Act. I agree. However, she argued PC Fong's evidence about the roadside investigation was not credible or reliable largely because his memo-book notes were sparse. On this issue, I disagree. I found PC Fong to be a credible witness who withstood a lengthy and at times, repetitive cross-examination. He did not buckle under scrutiny and was not internally inconsistent where his evidence was repeated.

[20] PC Fong testified he did not make fulsome memo-book notes of his interaction with the Applicant but did make a detailed arrest report at the police station at around 1:37 am, thus within one hour of the traffic stop. He was alone during the roadside interaction, thus did not have the opportunity to liaise with another officer to compare notes. The order of his note-taking is probably not ideal, but in the end, not unlawful: R. v. Machado, 2010 ONSC 277, [2010] O.J. No. 387 (S.C.J.), at paras. 121-122. He said he memorized times of key events, then recorded them in an arrest report (one hour later), then went back to fill in his memo-book notes. Ms. Mirza says this was unreasonable and the times he recorded were all estimates. I disagree. There is nothing about PC Fong's memory that caused me to question his timing of key events. Some police officers have better memories than others and some choose to jot down key times while others have the ability to remember them. While it's always a safer course of action to jot down details, especially timing of key events right away, the failure to do so isn't necessarily fatal. The law on note taking is clear: police notes are not meant as a substitute for evidence. They are meant as memory aids. Just because an event is not recorded doesn't mean it didn't happen. However, a significant omission may impact the credibility and reliability of an officer's testimony and the weight of that evidence depending on the circumstances. See R. v. Minhas, [2017] O.J. No. 1963 (Ont. Sup. Ct.) at paras. 24 to 26; R. v. Antoniak, [2007] O.J. No. 4816 (Ont. Sup. Ct.); R. v. Gill, [2015] O.J. No. 6787 (Ont. Sup. Ct.) at para. 46. As I will explain, there were no significant omissions of times or key events in this case.

(C) Timeline of Key Events

[21] I am satisfied PC Fong accurately memorized times of key events during the roadside interaction. I accept his explanation that given the circumstances, it was not practical for him to make contemporaneous notes at the roadside because it was dark with little lighting, he was working alone and was focused on making observations of impairment. He was not oblivious or careless about his duties as a police officer because there is no complaint that he didn't read the proper ASD demand, caution and RTC. All of this was done correctly. Moreover, his timing was confirmed, within close approximation, by other officers who arrived on scene, which included PC Hey and PC Li, both who testified for the defence. To a lesser degree, the sequence of events was confirmed by the Applicant's evidence as well. Considering the evidence as a whole, I make the following findings about the times of key events:

• 12:39 am – PC Fong follows Applicant's vehicle
• 12:41 am – Traffic stop
• 12:46 am – Reasonable suspicion formed
• 12:49 am – ASD demand read
• 12:51 am – ASD fail
• 12:53 am – Arrest and RTC
• 12:55 am – Caution and breath demand
• 1:41 am – First breath sample
• 2:04 am – Second breath sample

[22] Within this chronology of events, I will now consider the specific Charter arguments.

IV. ANALYSIS

(1) Did PC Fong make the ASD demand "forthwith" within the meaning of s.8 of the Charter?

(i) The Applicable Principles

On October 26, 2017, s. 254(2)(b) of the Code read as follows:

254 (2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[22] The forthwith requirement has two aspects. The first requires peace officers to make the demand promptly once an officer forms the reasonable suspicion the driver has alcohol in her body and second, the driver must provide the sample forthwith or immediately. The immediacy requirement is tempered with some flexibility where a short delay is reasonably necessary: R. v. Quansah (2012), 2012 ONCA 123, 286 CCC (3d) 307 (Ont. C.A.).

[23] In R. v. Woods, 2005 SCC 42, Justice Fish explained (at para. 29) that the forthwith requirement is inextricably linked to its constitutional integrity and addresses issues of unreasonable search and seizure, arbitrary detention and the infringement of the RTC, notwithstanding ss.8, 9 and 10 of the Charter. It is for this reason, a forthwith complaint is often framed as violation of ss.8, 9 or 10(b) and in some cases, all three Charter rights. Care must be taken not to conflate the arguments because in some cases, the violation will depend on different facts. See for example R. v. Yamka, [2011] O.J. No. 283 (Ont. Sup. Ct.). In this case, the Applicant has advanced all three Charter complaints related to the forthwith issue.

[24] In Quansah, supra the Court of Appeal provided a list of five factors that a court must consider in assessing the forthwith requirement (at paras. 45-49):

45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

[25] After Quansah, and especially in consideration of the fifth factor which engages the detainees RTC under s.10(b), other cases have added to the list of non-exhaustive factors that a court should consider. For example:

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

ii. the time between the demand and the taking of the sample;

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

vi. the actual time it took for the ASD to arrive;

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

viii. whether the detainee contacted counsel at the station after being arrested.

(ii) The Positions of the Parties

[26] Ms. Mirza's argument is that PC Fong did not make the ASD demand "forthwith" resulting in breaches of ss.8, 9 and 10(b). In support of this argument, she urges the court to find as a fact that PC Fong improperly delayed making the ASD demand by 8 minutes, because he did not have an ASD with him. A corollary of this argument is the submission that PC Fong actually formed reasonable suspicion sooner than his testimony in court.

[27] Mr. Young submits PC Fong made the ASD demand promptly after he developed reasonable suspicion and the Applicant provided a breath sample forthwith, thus there was no breach of ss.8/9 or s.10(b).

[28] I will address the ss.8/9 complaint together. I agree with the defence submission that PC Fong did not make the ASD demand promptly but I disagree with the defence as to when reasonable suspicion crystalized. I find that PC Fong's suspicion crystalized at 12:46 a.m., not 12:41 a.m. as urged by the defence. The evidence is clear that the ASD demand was made at 12:49 a.m., which leaves a gap of 3 minutes, as unexplained. This is sufficient to find a ss.8/9 Charter violation. However, as I will explain below, I find that the 2 minute delay (or 5 minutes if I am wrong, from 12:49 to 12:51, the time the sample was completed) was not sufficient for the Applicant to exercise her RTC, which invariably means the Crown has proven that the suspension of the RTC at the roadside was justified and there was no s.10(b) violation.

(iii) Evidence and Findings

[29] The Applicant testified on the Charter voir dire. She was 48 years old at the time and employed at the TD Bank. She had never been arrested before prior to this event. She stated she suffers from anxiety and depression. On the date in question, she drove her teenage son to a music concert at the Air Canada Centre, which I know to be in downtown Toronto. Around 5:45 p.m., she had one 9 ounce glass of red wine with dinner. During the concert, she had another glass of red wine at approximately 8:30-8:45 p.m. She wasn't sure about the quantity as the Air Canada Center poured the wine into a plastic cup. After the concert, she went with her son to a restaurant, Jack Astor's, until 12:00 a.m. She did not consume any alcohol at the restaurant.

[30] The Applicant lives in Markham, Ontario and took the DVP to Hwy 407 and got lost. She exited from Hwy 407 in the Durham region as she has a friend who lives in Ajax and knows her way home from her house. She didn't think she was driving poorly, stating she was simply lost.

[31] In cross-examination, the Applicant denied having a poor recollection of the events because she was impaired by alcohol. She denied weaving but did admit she might have driven over the center lane as there were very few lights on Hwy 407. I'm satisfied she was driving erratically based on the combination of her reported driving which was confirmed by PC Fong.

[32] Around 12:30 a.m., she recalled getting pulled over. PC Fong asked her to roll down her window but never told her why she was being pulled over. She recalled being asked where she was going and if she had anything to drink. She told PC Fong she was coming from downtown Toronto and drank 2 glasses of wine. She said the initial conversation took about "5-7 minutes". Afterwards, she was directed to step out of her car, and said this took another "5 minutes".

[33] PC Fong's evidence was similar although varied on the timing of events. At 12:41 a.m., PC Fong exited his cruiser and approached the driver's side window. He made a demand for documentation under the HTA. While the Applicant was searching for documents, he detected an odor of alcohol emanating from the vehicle. The Applicant was behind the wheel while her teenage son was in the passenger seat. She retrieved her driver's license, ownership and insurance within a "minute or so". PC Fong was satisfied with her identity and didn't have to check her documents in his cruiser.

[34] PC Fong testified after smelling alcohol in the vehicle, he wanted to isolate the smell of alcohol and determine if she was impaired. In particular, he wanted to determine if he had grounds to arrest her for impaired driving, given the complaints of erratic driving or simply grounds to administer an ASD. He stated the Applicant was very talkative and nervous because she was concerned about her son. The roadside conversation in the car took "about 5 minutes", where the Applicant admitted to consuming 2 glasses of wine. He asked her to step out of the vehicle so he could monitor "subject behavior". He did not have an ASD device with him but nor did he ask for one to be brought to the scene because he didn't know, at the time, if he would need it. Later on, other units arrived on scene, one of which was PC Li who had an ASD in her cruiser.

[35] In cross-examination, PC Fong was extensively challenged on whether he had developed reasonable suspicion during the roadside interaction before he asked the Applicant to step out of her vehicle. He said he did not as he was still developing grounds. It was put to him that the combination of the 911 call, his observations of her driving, the smell of alcohol in the car and her admission of alcohol consumption was sufficient to develop reasonable suspicion. He disagreed stating he wanted to conduct "a thorough investigation" before he decided what to do. In other words, he did not develop reasonable suspicion before he asked her to step outside. I accept this evidence.

[36] After the Applicant stepped out of her vehicle, he continued to talk to her and smelled alcohol emanating from her breath. He observed her balance and dexterity which appeared to be somewhat problematic, but not enough to form grounds to arrest her for impaired driving. In the end, he decided he only had grounds to make an ASD demand, which he did at 12:49 a.m.

[37] Ms. Mirza argued PC Fong actually developed reasonable suspicion at 12:41 a.m., thus approximately 2 minutes after he pulled her over, and his failure to administer the ASD until 12:49 a.m. (8 minutes later) was deliberate because he didn't have an ASD with him. PC Fong responded to this suggestion directly stating "Absolutely not". I accept this. I am buttressed in this finding because there's no evidence that PC Fong asked for an ASD to be brought to the scene at any point. The evidence establishes other units arrived on their own accord, one of which had an ASD, but this was not because PC Fong had asked for another police officer to bring one. It happened fortuitously. This simply means PC Fong did not make a tactical decision to delay administering the ASD demand because he didn't have an ASD with him.

(iv) The delay from 12:41 to 12:49 am – when did reasonable suspicion crystalize?

[38] Ms. Mirza argues the 8 minute delay from 12:41 to 12:49 am, did not comply with the forthwith requirement. I partially agree with this argument but for different reasons. In my view, the defence has misconstrued the factual (and therefore legal) evaluation of reasonable suspicion and how it fits into the forthwith analysis. Reasonable suspicion is developed by the investigating officer and considers the totality of the circumstances. For the defence position to have merit, I must find as a fact that PC Fong actually had the subjective belief, supported by objective facts that there was a reasonable suspicion that the Applicant was operating a motor vehicle with alcohol in her body, shortly after he pulled her over at 12:41 a.m. The problem with this argument is that it's contrary to the evidence of PC Fong who testified he developed reasonable suspicion later. The defence invites the court to impugn PC Fong's credibility on this issue and find he deliberately delayed administering the ASD demand. I do not accept this invitation.

[39] As a legal standard, reasonable suspicion considers the constellation of objectively discernable facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. The inquiry is fact based, flexible and grounded in common sense and practical, every day experience: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 25-35. In the context of ASD demands, reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime: R. v. Lindsay (1999), 134 C.C.C. (3d) 159 (C.A.) at para. 2. In addition, a police officer is entitled to rely on hearsay information in forming a reasonable suspicion for a screening device demand: R. v. Regan, [2005] O.J. No. 2355 (C.A.) at paras.12-23.

[40] Ms. Mirza cited a number of cases on reasonable suspicion, but respectfully, her reliance on them is misplaced. I have reviewed all the cases, which address circumstances in which there was a contest at trial and on appeal about whether the officer had developed sufficient grounds to make an ASD demand, resulting in a breach of s.8 of the Charter. Courts assessed the issue of what evidence is required to make a demand but not the issue here, which is a factual dispute about when PC Fong actually developed his grounds. In other words, there is no contest that PC Fong had grounds for an ASD demand but Ms. Mirza says this happened at 12:41 am which stands in contrast to the evidence of PC Fong who said it was 12:49 am.

[41] The defence argument fails because the factual record does not support it. In a forthwith analysis, the law is clear that the immediacy requirement starts at the stage of reasonable suspicion: R. v. MacMillan, 2013 ONCA 109, [2013] O.J. No. 727 at paras. 25-35; R. v. Stelmach, [2016] O.J. No. 7240 (Ont. Prov. Ct.) at para. 34. I find as a fact that PC Fong developed reasonable suspicion after his interaction with the Applicant at the back of her car, which was 5 minutes or so after the traffic stop. Stated differently, I find that he formed the subjective belief, which was supported by objective facts, at 12:46 am, that he had grounds for an ASD demand. This belief was not formed at 12:41 am because there is no evidence of this but nor was it formed at 12:49 am because the evidence as a whole points in a different direction. In cross-examination, both on the first and second dates of the proceedings, Ms. Mirza suggested to PC Fong, on several occasions, that he had enough grounds at or around 12:41 am for an ASD demand but he never accepted her suggestion. He was firm in his position that he was still investigating her and trying to determine what his grounds were. While another officer could have formed grounds at 12:41 am or shortly thereafter, that's not the issue before me. I have to assess PC Fong's evidence of when he actually formed his grounds because it was him who made the ASD demand, not somebody else. The issue is not when he ought to have formed grounds unless of course there is something in the record that undermines his testimony of when he actually came to this decision. For example, if PC Fong actually had grounds and communicated this to the Applicant but took additional time for some other purpose unrelated to sobriety, then perhaps the forthwith complaint might have merit. But that's not what happened here.

[42] Ms. Mirza argues PC Fong should have stopped investigating the Applicant after he received an affirmative answer to the consumption of alcohol, but that is not the law. Again, while an officer could have proceeded with an ASD demand after acquiring this information, one does not have to. An officer can continue to investigate sobriety and impairment to determine if one's belief supports suspicion enough for an ASD or something more, such as grounds for an arrest and an Intoxilyzer demand. There is no magic to how much time this can take because it's premised on the particular circumstances of the case and may be dependent on the officer's level of training and experience. A very experienced and confident officer may arrive at reasonable suspicion sooner than a less experienced officer who may take things a bit slower. In the end, it will depend on the circumstances of the case. In saying this, I am not saying PC Fong was not confident in his position. I accept he was trying to be thorough and careful because he clearly understood the legal jeopardy between the two different charges.

[43] The cases presented to me are not helpful in resolving this factual dispute. For example, in Quansah, the roadside delay was 17 minutes, which was upheld by the Court of Appeal as forthwith. In R. v. David, [2017] O.J. No. 4760, my colleague Justice Felix found as a fact that the officer formed reasonable suspicion but delayed it by 2 minutes and didn't explain the delay. That was sufficient to find a s.8 Charter violation. Again, that is not the case here because there is no evidence that PC Fong deliberately delayed the ASD demand after arriving at reasonable suspicion. Similarly in Yamka, the officer delayed making the demand for 10 minutes and testified he had plenty of opportunity to make the demand earlier, which clearly went to his subjective belief at the time. Again, that's not the case here because PC Fong said he was still investigating her right up until the time of his demand. He wanted to be thorough and make the right demand. There's no reasonable inference that supports a theory of deliberately delaying the demand. Despite Ms. Mirza's valiant effort to shake PC Fong on this issue, he was clear he did not have reasonable suspicion until later. One exchange will highlight this point:

Q. Okay. But you understand that the charge or signs of impairment is different than over 80?

A. But at that time, I didn't make that determination.

Q. Okay. So in order – so your evidence is that after she had admitted to consuming alcohol, you smell alcohol in the interior, you get calls of not – impaired driver, you see erratic driving, you still don't believe that she's impaired or she has alcohol in her system?

A. My job is to conduct a thorough investigation. So me asking the client to exit the vehicle to see if she's stumbling, is she wobbling, is she unsteady on her feet; these are all part of my investigation.

Q. Okay. So you're trying to get additional grounds than the ones you already have?

A. No, I'm furthering, furthering my investigation to, to determine impairment.

Q. Okay. But you understand – what you do you understand the ASD demand is made for?

A. Well, there's two different charges.

Q. Correct. And you only charged her with over 80, correct?

A. After my observations at the roadside, I make that determination that – like you said, I have a suspicion but I don't have enough grounds for impairment, so I ordered the ASD demand. I read her the ASD demand at the roadside.

[44] There is simply no merit to the argument that PC Fong delayed the ASD demand because he didn't have an ASD with him. Apart from the fact that he didn't ask for one to be brought to the scene, the law also doesn't require an officer to have an ASD on her person when the demand is made. See for example, R. v. Walsh, [2019] OJ No. 1859 (Ont. Sup. Ct.) at para. 26 per Justice Code. This is a case where there was fortuitous compliance, which is permitted by law: R. v. Latour, [1997] OJ No. 2445 (C.A.) at para. 31.

[45] Given my finding of 12:46 am as the time when suspicion crystalized, I do not accept PC Fong's evidence that he formed his belief at 12:49 am, which was the time of the ASD demand. His evidence about the circumstances of acquiring the ASD is important to this issue. He testified he did not ask for an ASD to be brought to the scene because he wasn't sure he needed one, which implies he hadn't settled on reasonable suspicion. He testified he approached PC Hey when he arrived on scene. He was clear about when this happened - at 12:46 a.m. – and asked him if he had an ASD. This is confirmed by the evidence of PC Hey who testified after he arrived on scene, he saw PC Fong speaking with the Applicant and within "a minute or so", he approached him and asked for an ASD. He told him he didn't have one. In my view, this evidence establishes that PC Fong had the requisite reasonable suspicion when he asked PC Hey for an ASD. Otherwise, there would be no reason to ask for the device if his intention was not to have the Applicant use it. I find this happened at 12:46 a.m., not 12:49 a.m.

[46] PC Li testified she arrived at 12:47 a.m. and saw PC Fong escorting the Applicant to his cruiser, which I infer was to prepare for her for the ASD test. This is further proof he formed reasonable suspicion, around this time and not later. She was asked by PC Hey, not PC Fong, if she had an ASD and she told PC Hey she did. She gave PC Fong the device and saw him prepare it and ultimately administer the test. I find the delivery of the ASD happened at 12:47 a.m., which means, it wasn't at 12:49 am as PC Fong said, which was the time of the ASD demand. I should add that the defence does not take any issue with the actual breath testing or the reliability of the ultimate "fail".

[47] In summary, I find as a fact that PC Fong had reasonable suspicion at 12:46 a.m. when he approached PC Hey, not 12:49 a.m. The ASD demand was made at 12:49 a.m., and the sample was taken at 12:51 am, which means there was a gap of 3 minutes, which were left unexplained. I do not know what happened during these 3 minutes (12:46-12:49 am) and PC Fong's recollection was not reliable. I'm satisfied the Applicant has proven her Charter rights were probably violated when she wasn't read the ASD demand promptly upon forming reasonable suspicion. Invariably, this means the Applicant's detention at the roadside was prolonged for as much as 3 minutes resulting in a corresponding s.9 violation. Much depends on the actual timing of events which in this case I have gleaned from a consideration of the evidence as a whole. It may be that the delay was shorter (but not longer) and was for a good reason such as dealing with the Applicant's son. It would have been better if the exact times were recorded at the scene but that's not the evidence. Since there is no explanation of the delay, this results in a ss.8/9 violation.

[48] Where I part with Ms. Mirza's argument is her submission based on what PC Fong should have done as opposed to what he did do (which I have addressed above). To repeat, the defence position is that PC Fong should have formed reasonable suspicion "forthwith" and his failure to do so meant his ASD demand was not made forthwith. As stated above, this misconceives the forthwith issue. Stated simply, an officer has to make the ASD demand promptly after forming reasonable suspicion, while a detainee has to provide a breath sample forthwith. This legal proposition comes directly from Quansah, where the Court of Appeal stated at para. 25: "[S]ection 254(2) does not explicitly require that the police officer's demand be made forthwith, rather, it only specifically requires that the motorist provide a breath sample "forthwith". The Court of Appeal went on to note that it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body, citing R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.) at para. 5. At para. 28, the court added: "Consequently, if the circumstances dictate that a 'short delay' is necessary for the officer to obtain an accurate result, the officer is justified in delaying either the making of the demand or the administration of the test after the demand: see Pierman, at para. 21". In my view, the initial 5 minutes or so that were spent at the roadside were justified as a short delay because PC Fong was acquiring grounds to either make an ASD demand or an Intoxilyzer demand: Woods, supra; R. v. Wade, 2019 ONSC 2552 (Ont. Sup Ct.).

[49] Furthermore, in Quansah, supra, the Court of Appeal provided examples of short delays at the roadside, which are permissible (at para. 40):

40 In R. v. Fildan (2009), 69 C.R. (6th) 65 (Ont. S.C.), several additional examples are recited where, despite a short delay, the immediacy requirement would be met. At para. 39, Hill J. describes three of them:

(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand (R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.) at para. 19, 27, 57) or

(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed - with confidence that only one drink was consumed, the constable may direct the motorist on his or her way: (Megahy, at para. 17-8), or

(3) Where legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediate communication of a formed intention to demand and undertake ASD testing.

[50] In this case, the 5 minutes or so at the roadside was a short delay and was reasonable because PC Fong was attempting to make the right demand. Moreover, this purpose is borne out by the record, which goes to the honesty of PC Fong's state of mind. In other words, he didn't say he was forming grounds but the evidence proves he was actually doing something else. Nor is this a case where the investigating officer took an inordinate amount of time to acquire grounds as a ruse for something else. While one's constitutional rights are suspended at the roadside during this exchange, the s.1 limitation is premised on the reality that none of the evidence that is acquired during this period can be used to prove one's guilt. It only goes to an officer's grounds. In my view, the 5 minutes at the roadside (12:41-12:46 am) was lawful and did not amount to a ss.8/9 violation. Viewed contextually, the 5 minutes also involved dealing with the Applicant's concern about her son who was in the front seat, which prolonged the roadside investigation.

(v) The delay from 12:46 to 12:49 am – was there compliance with the forthwith standard for s.8 and s.10(b) purposes?

[51] However, I arrive at the opposite conclusion for the additional 3 minutes between 12:46 and 12:49 am, which PC Fong said was the actual time of his ASD demand. Applying the five Quansah factors, and considering the circumstances contextually, there was simply no explanation for this additional delay. PC Fong didn't have an ASD, didn't ask for one to be brought and only acquired one fortuitously from PC Li around 12:47 am. It's unclear what happened at the roadside from 12:46 to 12:49 a.m. I have a suspicion that these 3 minutes might have been spent dealing with the Applicant's son but the Crown did not call Sgt. Waters, thus I would be speculating on this issue. There is no reason why the ASD demand wasn't read at 12:46 am. This resulted in a ss.8/9 Charter violation.

[52] With respect to the s.10(b) forthwith complaint, the decision in Menezes holds that the Crown bears the onus to prove the suspension of the RTC was justified. In this case, the Applicant was initially detained at 12:41 am, where the suspension of RTC is constitutionally justified under s.1. At 12:46 am, reasonable suspicion was crystalized and at 12:49 am, the ASD demand was read. At 12:51 am, the ASD test was complete, which leaves a period of 2 minutes to assess if it was realistic for the Applicant to exercise her RTC. For purposes of this discussion, I am prepared to assume that this period was actually 5 minutes based on my findings. In either case, I'm satisfied the Crown has met their onus to prove PC Fong did not have to administer RTC. I arrive at this conclusion based on a fact specific analysis of the entire circumstances. In addition to considering the factors cited at paragraph 25, I find that it was unreasonable for the Applicant to exercise her RTC at the roadside and receive legal advice within this time frame: R. v. Torsney, 2007 ONCA 67, [2007] OJ NO. 355 (CA). Even with a longer forthwith window at 5 minutes, (not 2 minutes), and the presence of a cell phone, the Applicant did not have legal counsel, was insistent on speaking to her husband (not counsel) for support, and ultimately spoke to duty counsel without complaint at the police station. Ms. Mirza's argument stresses that PC Fong didn't ask for an ASD, which means he didn't know when it would arrive, thus it was incumbent on him to administer RTC. While in other cases, this might have merit, the timely appearance of the ASD at the roadside was fortuitous. In Latour, supra, Justice Charron reminded that "compliance is compliance, whether fortuitous or otherwise". If I am wrong about this issue, it is not sufficient to justify the remedy of excluding the evidence given the evidence on the RTC issues. I will now turn to the s.10(a) complaint.

(2) Did PC Fong lawfully inform the Applicant of her reasons for detention and arrest within the meaning of s.10(a) of the Charter?

(i) The Applicable Principles

[53] Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons for the detention and or arrest. In R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279 (C.A.), Justice Paciocco writing for the Court of Appeal explained at para. 63 that breaches of s.10(a) can be "temporal" or "informational". "A temporal breach occurs if an arrested or detained person is not promptly informed of the reasons for their detention. An "informational" breach arises if the reasons for their detention are not adequately communicated.

(ii) The Positions of the Parties

[54] The parties did not cite Roberts, which is binding authority and must guide my analysis. Ms. Mirza focused her argument on the "informational" breach arguing that PC Fong never told the Applicant why she was being detained.

[55] Mr. Young argues that context is important and when viewed as a whole, PC Fong intimated to the Applicant and she understood the reasons for her detention – and it was timely.

[56] While Ms. Mirza did specifically argue there was also a "temporal" breach, I have considered both issues in fairness to the Applicant. However, in my view, neither complaint succeeds.

[57] In Roberts, supra, at para. 78, Justice Paciocco explained:

Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Evans, [1991] 1 S.C.R. 869, at pp. 886-88; and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at paragraphs 16-22. Put more purposively: "The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest", or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paragraph 125.

(iii) Evidence and Findings

[58] The Applicant testified in chief after she was pulled over, she asked PC Fong the reasons for being pulled over but he did not answer. She said she was confused at the time but continued to answer PC Fong's questions which included questions about her whereabouts and whether she consumed alcohol. After "approximately 10 minutes", she was asked to step out of her vehicle and escorted to the back of her vehicle. At this point, she testified:

A. So after me asking him why I'm pulled over, he did ask me and he's like "We've got several phone calls in regards to your erratic driving".

[59] In cross-examination, she testified she knew she was being questioned about her driving pattern and alcohol consumption but it did not tweak to her that she was involved in a drinking and driving investigation. She explained that several years ago, she had been stopped during a RIDE stop but never asked if she had anything to drink. She said PC Fong never told her about the reason for her stop until much later on.

[60] PC Fong's testified in chief, he didn't have a specific recollection of what he told the Applicant "word for word" but recalled he explained to her the reasons why she was stopped, which included the observations of several witnesses who saw her driving behavior. When asked when he conveyed this information to the Applicant, he was unsure. In cross-examination, he confirmed that it was common practice for him to tell a detainee why she has been detained, and it was possible he did so in this case at the back of her car.

[61] Based on the evidence as a whole, I find PC Fong told the Applicant the reasons for her detention while at the back of her car which was after the 5 minutes had elapsed, which was the time of her detention. The Applicant would have known from the first roadside conversation that PC Fong was asking about her whereabouts and specifically if she had consumed alcohol. Moreover, the evidence establishes the Applicant specifically asked why she was being pulled over and PC Fong responded, due to alleged poor driving. This interaction is a window into her state of mind. On the facts of this case, I find that it was not necessary for the Applicant to have been told explicitly of the precise charge being investigated as she would have known it was for the possibility of driving while drunk: R. v. Gardiner, [2018] O.J. No. 3404 (C.A.) at para. 26; R. v. Kumarasamy, 2011 ONSC 1385; R. v. Borer, 2015 ONSC 4592. There is nothing in the record that negatively impacted on the Applicant's ability to make a reasoned decision to exercise her RTC. As I will discuss below, the Applicant's focus at the roadside was to get assistance from her husband, not to exercise her RTC. On this basis, there was no informational breach.

[62] As for an alleged temporal breach, while not argued, I do not find a temporal breach because the record is bare on whether the Applicant was "detained" within the meaning of the law. I would have to assume that the Applicant was "detained" at the point when she was asked to accompany PC Fong to the back of her car. She never said she felt detained, physically or psychologically. As observed by Paciocco J. in Roberts, supra at para. 67, "this [was] one of those interactions between the police and members of the public, 'even for investigative purposes', that does not constitute a detention within the meaning of the Charter: R. v. Suberu, 2009 SCC 33 at para. 3. On this basis, there is no temporal breach either.

[63] If I am wrong in my assessment of the temporal breach, based on the inference that a reasonable person might feel deprived of her liberty when asked to accompany a police officer, this would amount to a "notional" breach of one's rights which on its own or in combination with a notional 3 minute delay in administering the ASD demand does not meet the onus required to exclude breath samples under s.24(2). As I will explain, the Applicant was concerned about her son at the roadside, not exercising her RTC. This is especially true in this case because the Applicant did not raise a free-standing temporal complaint styled under s.10(a), so the s.24(2) record is scant.

[64] For the above reasons, the s.10(a) complaints are dismissed. I will now turn to the s.10(b) complaints.

(3) Did PC Fong comply with his informational and implementational duties under s.10(b) of the Charter?

(i) The Positions of the Parties

[65] Ms. Mirza advanced separate arguments under s.10(b) of the Charter. First, she argued the police did not comply with their informational duties because they failed to ensure the Applicant properly understood her RTC as she was confused. Second, the police failed in their implementational duties by (i) not permitting her to consult her husband to assist in securing her counsel of choice and (ii) by not providing her with the tools and information to choose her RTC of choice, which resulted in steering her to duty counsel.

[66] Mr. Young submits there was no s.10(b) violation on any basis. He argued the Applicant was not confused about her RTC which is evident from her roadside interaction and observations on the parade video. Moreover, there was no duty on the police to permit consultation with her husband with whom she wanted to speak to for support, not to assist her in implementing her RTC. Finally, the Applicant wasn't steered to duty counsel as she chose duty counsel on her own.

[67] I agree with the Crown's position. In my view, the Applicant hasn't met her onus under s.10(b) and there are no proven Charter violations.

(ii) General Principles

[68] Section 10(b) of the Charter provides that everyone has a right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. Section 10(b) imposes certain duties on the police and the detainee. The Supreme Court summarized the obligations on the police in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29:

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

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

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

[69] The first duty requires the police to provide sufficient information to the detainee whereas the other two duties require the police to assist the detainee if she decides to exercise her RTC. Cases have referred to these as the "informational" and "implementational" duties. In 2010, in a trilogy of cases, the Supreme Court recognized that the two duties often overlap. In other words, the scope of the information and assistance required will depend on the circumstances of the case: Willier, supra, R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 and R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402.

[70] The law also imposes a duty on the detainee to exercise the right with reasonable diligence. A detainee has a RTC of choice but the provision does not guarantee the RTC of choice at all times: R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (SCC) at para. 16. A detainee has the right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time, the detainee should be expected to exercise the right by calling another lawyer, including duty counsel: R. v. Ross (1989), 46 CCC (3d) 129 (SCC) at 135; R. v. Richfield, [2003] O.J. No. 3230 (Ont. C.A.). The law is also clear that the police must hold off from attempting to elicit evidence from a detainee until she has been afforded a reasonable opportunity to exercise her RTC: R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.); R. v. Prospser (1994), 92 C.C.C. (3d) 353 (S.C.C.); R. v. Traicheff, 2010 ONCA 851, aff'g [2008] OJ No. 4361 (SCJ), aff'g 2007 ONCJ 564.

(iii) Communicating and Understanding RTC

[71] Ms. Mirza argued the police failed in the informational duties because it was clear that the Applicant did not understand her RTC.

[72] Mr. Young responds that the Applicant understood her RTC and there were no "special circumstances" that required the police to act differently.

[73] In R. v. Devries, 2009 ONCA 477 at para. 22 Doherty J.A held as follows:

The informational component of s. 10(b) has two parts. The first is apparent in the language of the section, while the second is a product of the jurisprudence. Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. In R. v. Brydges, [1990] 1 S.C.R. 190, [1990] S.C.J. No. 8, at p. 206 S.C.R., the Supreme Court of Canada extended the informational component of s. 10(b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid.

[74] In this case, the Applicant agreed PC Fong read her RTC from his notebook at 12:53 a.m. I am satisfied that PC Fong communicated the full gamut of RTC to the Applicant. The issue for me to decide is whether the Applicant understood them or if there were "special circumstances" that required the police to take further steps to ascertain she understood her RTC: R. v. Shmoel, [1998] O.J. No. 2233 at para. 8; R. v. Colak, [2006] O.J. No. 4953.

[75] The Applicant testified PC Fong read her RTC at the roadside "a few times" but she told him "I don't know what all this means". She acknowledged PC Fong clarified the RTC and in layman's terms asked: "Do you have a lawyer?" She responded "No". PC Fong then explained duty counsel as a "free lawyer". Despite this clarification, she maintained she was confused as she was focused on her son and didn't understand what the RTC meant.

[76] I reject the Applicant's evidence on this point because it is internally inconsistent. I find it's clear she understood her RTC because she told the police she didn't have her own lawyer and chose to speak with duty counsel, which she knew was a free lawyer. I have assessed her in court testimony against her conduct in the booking video and breath room video. She presented as nervous but not confused. She appropriately responded to the questions posed by the booking Sergeant and the breath technician. She was not confused on video.

[77] I find that the Applicant's the confusion did not undermine her understanding of RTC and whether she should exercise it, which is the purpose of the right. In my view, the Applicant was confused because, at the time, she didn't know what to do about being arrested but did know about her RTC. In cross-examination, she said:

Q. Yes, and then once he cuffed you, he would have read you your rights to counsel right?

A. Yes.

Q. Now, I can read you the rights to counsel like I did with the demand but would you agree with me there's nothing in the words that you wouldn't understand?

A. Can I just say something? Now I understand what it means because I've been through all this. Going through all this right from last year, and understanding it and talking to my lawyer, I do understand it now but at that time, in my state of confusion, I did not understand those terms. Like "duty counsel" was new to me. I have never been there, never done that. Choose a lawyer, yes, when he explained it, then I understood.

The Applicant clearly understood the terms associated with RTC once they were explained to her, which was at the roadside. She answered the questions posed to her by stating she didn't have a lawyer and chose duty counsel because this was a free lawyer. Her actions at the time are inconsistent with her position she didn't understand her rights, where one might have expected inaction or words to connote lack of comprehension.

[78] The Applicant also testified she "wasn't really listening". I don't accept this either, because it is contradicted by other evidence which proves she was listening and answering PC Fong's questions. For example, she confirmed PC Fong went over RTC a number of times in layman's terms, he explained the term "duty counsel" as a free lawyer and her option of calling any lawyer of her choice or duty counsel. When asked if she understood after all of this was conveyed to her, she said "Okay" but later said she did understand. The evidence was:

Q. He would have asked you, "Do you understand?" at the end just to make sure you understood and you would have told him you understood.

A. Yes

[79] I find the Applicant clearly understood her RTC at the time, including the important aspect of choosing her own lawyer or duty counsel. While she may have a better understanding of what she could have done differently back then, that is the byproduct of time and reflection. For example, she clearly chose to speak with duty counsel which today may not have been the same choice, but that doesn't mean her Charter rights were violated. It's unclear what else the police could have done in this case. This is not a case where the Applicant didn't exercise her RTC at all - she did exercise it, but now says it was the wrong decision. On this record, that's not a valid Charter complaint. I will now consider if there were any special circumstances that arose in the case.

[80] In R. v. Barros Da-Silva, [2011] OJ No. 3794 (Ont. Sup. Ct.), Justice Tulloch (as he then was, now a member of the Ontario Court of Appeal) provided a helpful summary of the legal principles on this issue at paras. 28-30. I will not repeat them here but the salient point is that "special circumstances" arise when there are some objective indicia that an accused person's comprehension of the English language may be limited for various reasons.

[81] In this case, there were no special circumstances that arose. The Applicant was well versed in English and understood the language without issue. The roadside conversation was fluid and clear. I am buttressed in this finding based on my review of the parade room video. There, the Applicant did not appear confused and there were no linguistic issues at all. There's no other objective factors that point to incomprehension.

[82] For the above reasons, there was no violation of s.10(b) on this basis. I will now turn to the next argument involving access to her husband.

(iv) Third Party Contact

[83] Ms. Mirza submits there was a Charter violation because the police, and in particular, PC Fong, did not permit the Applicant to speak to her husband at any point during the investigation to assist her in implementing her RTC.

[84] Mr. Young responds the Applicant's evidence on this point should be rejected or alternatively, even if she did ask to speak to her husband, it was for support, not to exercise her RTC. I agree with the latter response.

[85] In R. v. Kumarasamy [2002] O.J. No. 202 (Ont. Sup. Ct.), Justice Durno sitting as a Summary Conviction Appeal Court held at para. 25:

25 In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice. (my emphasis)

[86] The principle in Kumarasamy is well settled. The law requires that when a detainee makes a request to contact a third party in order to make contact with a specific counsel, the police are required to provide the detainee with a reasonable opportunity to consult with counsel of choice: R. v. Mumtaz 2019 ONSC 468, and R. v. Cheema, 2018 ONSC 229 at para. 31.

[87] In my view, the defence argument fails because I find the Applicant requested to speak with her husband, not because she needed assistance in exercising her RTC but because she needed his assistance in making sure her son was okay. There was no legal obligation on the police to assist in this regard.

(v) Evidence and Analysis

[88] The Applicant testified she was adamant about speaking with her husband and repeated this desire several times. PC Fong testified she never asked about speaking to her husband. Based on the evidence as a whole, I do not accept the evidence of PC Fong. Again, he did not make any notes at the roadside but when I consider all the evidence and what happened at the roadside and the booking video, I find the Applicant did ask to speak to her husband. However, this finding is inconsequential because I have no hesitation in concluding the request was for support, and in particular, over concern for her son – not to exercise her RTC.

[89] Moreover, the reason never changed as the investigation evolved. In chief, the Applicant testified she asked to speak with her husband when PC Fong asked her to exit from her vehicle. The evidence was:

Q. Why did you ask him to call your husband?

A. Of course for my son and for myself as well, just to let him know what's going on because I was already – I was just scared or nervous.

Q. And when you asked to speak with your husband, what did the officer say?

A. That's when he didn't say anything. He said we'll be taking care of – we'll be looking at your son. That's what they said at that time.

[90] As the roadside investigation continued, she repeated her request to speak with her husband because her son "was nervous and in tears". She told her son not to worry as she would call her husband. I accept that the Applicant asked to speak to her husband, at least twice, at the side of the road but find this was clearly because she was concerned about her son. It was not because she was focused on exercising her RTC. This would have been apparent to PC Fong based on the Applicant's evidence that he tried to comfort her that the police would tend to her son. Indeed, Sgt. Waters arrived on scene shortly thereafter and ultimately transported her son to the police station. Sgt. Waters did not testify, but I draw the inference that he attended for this purpose.

[91] The Applicant testified after she was arrested, she asked to speak with her husband again. On the voir dire, she was asked why she wanted to speak with her husband after she was arrested. She said:

A. "Because he could help me in – like I've – I've never been in this situation and I thought "okay if I tell him, he probably" I mean, he'd be able to help me with somebody he knows because he works in the corporate world, and I didn't know anyone. So, I said, "you know, something like that" but I just needed to talk to him and tell him what's going on with me that night or with us."

[92] While the Applicant testified she believed her husband would be able to help her with somebody he knows, she did not say he would be able to assist her with getting in touch with counsel. The right in s.10(b) is designed to facilitate one's right to counsel, not a person who may be able to assist a detainee in some other way: R. v. Crossman, [1991] B.C.J. No. 729 (C.A.); R. v. Deol, [2011] O.J. No. 3274 (O.C.J.) at para. 29. There's no evidence that the Applicant's husband is a lawyer thus "counsel" for purposes of s.2 of the Code. In any event, the Applicant's husband did not testify, thus the record is bare on the scope of his potential assistance as a third party. For example, I don't know if there's a lawyer in the family or one readily accessible that would have been available if he was called. I would be speculating on this point. It's clear that the Applicant was focused on talking to her husband to assist her son and getting general assistance on what to do, not exercise her RTC, as she didn't have a lawyer.

[93] This position also did not change during her stay in police custody. When the Applicant arrived at the police station, she was read her RTC by the booking Sergeant. The issue of calling her husband came up again. The evidence was as follows:

Q. Okay, Now, do you know what else the female had – a female officer behind the desk, the sergeant what else she asked you?

A. She had asked me if I wanted to call any – about the duty counsel. She did say that's a free – "if you don't have a lawyer, that's a free lawyer that we would provide to you". I said, "Yes, that's something Officer Fong has already explained to me". And then the next thing is "Is there anybody else that you would like to call?". I said, "My husband, when I said that, she said "yes, he has already been contacted to get your son"

[94] If there was any confusion about her reason to call her husband, she clarified by adding the following:

"I did say that's my main concern as my whole worry was about my son. That was mainly my concern. I'm like – just I wanted him to be home safe or with my husband I would have also – but I felt like "We'll we've taken care of your son. Your husband is here to pick up your son" so I thought okay, I couldn't ask for anything else".

Implicit in this evidence is the Applicant's state of mind at the time. She was clearly focused on her son, which is not meant to be critical. Any parent would be concerned but this doesn't mean the police violated her Charter rights. When the Applicant was told her husband had been contacted for that purpose, she did not say, she still needed his assistance in getting a lawyer. In my view, it was perfectly reasonable for the police to act on the assumption that the request for her husband was always to tend to her son because all of the evidence points in this direction. In the end, there is evidence that the Applicant's husband did attend at the station to pick up their son. There's no evidence that the Applicant, at this time, repeated her desire to speak with her husband who was now accessible for the purpose of exercising her RTC. In the end, her concern was and remained with her son, which is entirely understandable but doesn't mean her Charter rights were violated.

[95] For these reasons, I do not find a s.10(b) violation on this basis.

(vi) Rights to Counsel: Steering to Duty Counsel

[96] Ms. Mirza's next argument is that the police failed in their implementational duties by steering the Applicant to duty counsel. She relied on the cases of R. v. Ali, 2018 ONCJ 203, [2018] OJ No. 1662 and R. v. Manuel, [2018] OJ No. 2955 to advance the proposition that where a detainee does not have a specific lawyer, the police have a duty to provide the detainee with both the knowledge and use of tools, such as a telephone book, to find her own lawyer before referring her to duty counsel.

[97] There are some cases that have held that a failure by the police to do this is called "steering" or "funneling" to duty counsel and is unconstitutional. In R. v. Henry, [2019] O.J. No. 3347 Justice Silverstein considered a similar argument and took an inventory of the cases from the Ontario Court of Justice (apart from Ali and Manuel) that have supported this interpretation: R. v. Sakharevych, 2017 ONCJ 669; R. v. Middleton, 2018 ONCJ 387; R. v. Della-Vedova, [2018] O.J. No. 1596; R. v. Ferose, 2018 ONCJ 305; R. v. McFadden, 2016 ONCJ 777 and R. v Vlasic, [2016] O.J. No.6892.

[98] While I find the reasoning of my colleagues highly persuasive, I must be guided by binding authority. In R. v. Sivalingam [2019] OJ No. 1975 (Ont. Ct. J.) Schwarzl J. reviewed the binding authority on point and stated as follows:

46 In the summary conviction appeal of R. v. Ferose, 2019 ONSC 1052, [2019] O.J. No. 845 (S.C.J.) at ¶ 73 the Court provided a helpful digest on this issue:

In accordance with the reasoning of the Court of Appeal for Ontario in R. v. Richfield, 178 C.C.C. (3d) 23 (Ont. C.A.), R. v. Littleford, 86 C.R.R. (2d) 148 (Ont. C.A.), and the decisions of Charney J. in R. v. Hudson, 2016 ONSC 5582, Fragomeni J. in R. v. Zoghaib, 69 W.C.B. (2d) 166, affirmed [2006] O.J. No. 1023 (Ont. C.A.) and Durno J. in R. v. Antoninas, 2014 ONSC 4220, 323 C.R.R. (2d) 1, where a detainee:

(a) does not request specific counsel and/or such specific counsel is unavailable;

(b) is afforded an opportunity to speak to specific counsel and/or duty counsel (if specific counsel not requested and/or not available) in a private setting;

(c) does not express any complaint or raise any issue as to the advice provided either after speaking to counsel or at any later date including the voir dire;

(d) does not claim any harm/prejudice as a result of the advice provided,

it is unlikely that any breach of the detainee's s. 10(b) interests will be found, and if any such breach is found, the impact of such breach will be minimal.

[99] In Henry, Justice Silverstein summarized the law at para. 63:

In other words, the law in Ontario is that the police, when they first arrest an accused, satisfy their informational Charter obligations if they tell the accused exactly what the police told the accused in Zoghaib. Put another way, there is no obligation to inform an arrestee, when first arrested, that he has the right to access resources to help him choose counsel. However, an obligation to provide this latter information may nonetheless arise over the course of their dealings with the arrestee thereafter.

(vii) Evidence and Analysis

[100] The Applicant testified when she was arrested, she told PC Fong she didn't have her own lawyer after he explained RTC to her. She repeated this to other officers. She believed her only options after being advised of her RTC included her own lawyer and a free lawyer (duty counsel). Had she been provided other options, she said "I'm sure I would have looked for someone to assist me" but she did not explain what this meant. In fairness to her, she wasn't asked.

[101] PC Fong testified the Applicant was told at the roadside of her RTC and given the option of choosing her own lawyer and told him she didn't have one. In the end, she chose duty counsel and ultimately received legal advice from duty counsel. She did not complain about the advice.

[102] In my view, this Charter argument fails because I find the Applicant was told how to invoke her RTC and chose duty counsel. The Applicant testified she didn't have a lawyer at the time and didn't know of one. I reject her evidence that PC Fong didn't tell her she could choose her own lawyer. I find he did when he read her RTC at the roadside and then explained them to her in layman's terms. She was paying attention because she told him she didn't have a lawyer. The Applicant repeated she didn't have a lawyer to other police officers.

[103] Moreover, there is nothing in the record that changed her decision to speak with duty counsel. After speaking with duty counsel, the QBT asked her if she was satisfied with her advice from duty counsel. She testified she said "yes" because she didn't think she had any other options. She explained she felt upset and overwhelmed. While I accept she might have been upset, this was not because of the advice she received, it was because of the arrest, which involved putting her son through a very difficult ordeal.

[104] In R. v. Owens, 2015 ONCA 652, the Ontario Court of Appeal stated that the obligations on the police to assist a detainee in implementing their RTC are not absolute. Absent invocation of the right to counsel and reasonable diligence by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise or will be suspended: Sinclair, supra at para. 27.

[105] Respectfully, if the Applicant was confused and dissatisfied, it was incumbent on her to say something. While a complaint of dissatisfaction can also be advanced on the voir dire, it is belied by her actions at the time. She didn't show she was dissatisfied, confused, upset or overwhelmed. She chose to say and do nothing. She did not at this point, ask to speak with her husband to get assistance with counsel. In hindsight, this might have been a mistake, legally speaking, but it is not a basis to find a Charter violation. In Zohaib, the Court of Appeal held in their endorsement at para. 1 the following which applies here:

On the findings of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known to the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s.10(b) of the Charter.

[106] Mr. Young cited the decision in R. v. Ruscica, [2019] OJ No. 2021, which did not adopt Ali and Manuel. Ms. Mirza says Ruscica does not apply to this case. I disagree. It is on point and binding. In Ruscica, the detainee didn't ask for a specific lawyer and argued he was steered to duty counsel even though unlike this case, he didn't ask for duty counsel. The trial judge found no s.10(b) violation which was upheld on appeal, where it was concluded he was not improperly steered to duty counsel. In this case, the Applicant didn't ask to speak to a specific lawyer but did ask to speak with duty counsel. There can be no steering in these circumstances.

[107] For these reasons, this s.10(b) argument also fails.

[108] I will now turn to s.24(2) of the Charter.

(e) If there were any proven Charter violations, has the Applicant satisfied her burden to exclude the evidence under s.24(2) of the Charter?

[109] Having found a breach of the Applicant's rights under ss.8/9 based on the 3 minute delay in not administering the ASD demand promptly, I will consider whether the Applicant has met her onus to exclude the evidence. I will do so on the assumption as well that I have erred on the 10(b) component of this same complaint.

[110] The legal test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, 245 C.C.C. (3d) 1. The Applicant must prove on a balance of probabilities the evidence sought to be excluded was obtained in a manner that infringed a Charter right and the admission of the evidence would bring the administration of justice into disrepute.

[111] The consideration of whether the admission of the evidence would bring the administration of justice into disrepute requires a consideration and balancing of the following factors:

(i) The seriousness of the Charter-infringing state conduct;

(ii) The impact of the breach on the Charter-protected interests of the accused; and

(iii) Society's interest in an adjudication on the merits.

(i) The seriousness of the Charter-infringing state conduct:

[112] In the first prong, police conduct must be placed along a spectrum of conduct from minor or inadvertent violations to willful disregard for an accused's Charter rights: R. v. Marakah, 2017 SCC 59 at para. 61. Mr. Young says if there were any errors by PC Fong, they were made in good faith because there was no tactical or logical advantage gained by waiting until the ASD arrived before administering the demand. I agree.

[113] In R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, Brown J. stated (at para. 44) that for errors to be considered to have been made in good faith, they must be reasonable. When the overall circumstances are assessed as a whole, PC Fong was acting reasonably when he was accumulating grounds to administer an Intoxilyzer demand. He did not jump to an arrest, which would have been unreasonable. There's no evidence that he subjected the Applicant to any further testing or gathered more evidence during the 3 minute window when he didn't have an ASD and should have administered the demand, because I don't know what happened during this window. I'm mindful of the context involving a teenage son, a concerned mother and the obvious reality that the car would be towed. While I don't have specific evidence this time was spent dealing with her son, I accept she was a talkative detainee and nervous. She was clearly worried about her son which she made clear to PC Fong during the initial interaction. Moreover, the ASD was administered within 2 minutes of the demand, which mitigates the seriousness of the breach as well. Overall, the testing was timely as it would have taken some time to set up the device, explain its use and administer it. Moreover, there is no evidence of any systemic failings on part of the police or a broader pattern of Charter violations. See for example, Walsh, supra at paras. 31-32. The failure to be prompt with the demand was at best a technical problem, at worst, careless. This factor weighs in favor of inclusion of the evidence.

(ii) The impact of the breach on the Charter protected interests of the accused

[114] With respect to the impact of the breach, the purpose of the forthwith requirement is to minimize one's suspension of Charter rights at the roadside, which are otherwise justified by s.1 of the Charter. The overall time between the traffic stop and ASD test was 10 minutes. This is not an unreasonable amount of time when considered in context. Moreover, the time between the ASD demand and successful sample was 2 minutes, thus clearly "forthwith" within the meaning of the law. The first breath sample was taken within one hour of the traffic stop and the breath testing proceeded expeditiously. And, in the end, the Applicant was never charged with impaired driving which inures to her benefit. It simply means the extra time taken by PC Fong at the roadside was fair to her Charter interests. It did not defeat them. The unexplained 3 minute delay should have been avoided but it had a minimal impact on the Applicant's interests: R. v. Jennings, 2018 ONCA at paras. 27-32; Walsh, supra at para. 36. Again, the Applicant's focus was on her son, not exercising her RTC. This factor weighs in favor of inclusion, not exclusion of the evidence as well.

(iii) Society's interest in an adjudication on the merits:

[115] In most drinking and driving cases, the evidence of breath samples is reliable evidence and is indispensable to the Crown's case. Society has a strong interest in adjudicating a case on its merits and this factor favors inclusion of the evidence as well.

[116] All Grant factors pull in favour of inclusion of the evidence: R. v. McGuffie (2016), 2016 ONCA 365, 336, C.C.C. (3d) 486 at para. 63 (Ont. C.A.) Accordingly, the s.24(2) application is dismissed and the evidence of the breath samples are admissible. The COQBT is no longer provisional and can be marked as Exhibit 2 in the blended hearing.

V. CONCLUSION

(f) Has the Crown proven the elements of the offence beyond a reasonable doubt?

[117] Ms. Mirza did not raise any other complaints with the admissible evidence, which in my view, having considered the record as a whole, proves the offence beyond a reasonable doubt. The breath testing was correctly done and produced reliable breath samples, both of which exceeded the legal limit, registering readings of 140 mgs and 130 mgs of alcohol in 100mls of blood.

[118] Accordingly, there will be a finding of guilt.

[119] I would like to thank counsel for their written materials.

Released: September 17, 2019

Signed: "Mr. Justice F. Javed"

Footnote

[1] Section 254 has been replaced with s.320.27 of the Code, which doesn't require grounds for an ASD demand provided the officer is in possession of an ASD. This matter arose prior to the Bill C-46 amendments, thus s. 254 remained the operative statute.