R. v. Brown

Court File and Parties

Court File No.: 18-IS29013
Date: April 11, 2020
Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Darin Joseph Brown

Before: Justice Susan C. MacLean

Heard on: October 8, 9, 10 and November 8, 2019

Judgment with Reasons to Follow: January 21, 2020

Reasons for Judgment Released: April 11, 2020

Counsel

David Morgan — Counsel for the Crown

Paul Affleck — for the Defendant Darin Brown

Overview of the Case

[1] At 11:30 a.m. on Monday June 25, 2018, Mark Morissette, a transport driver who had stopped for lunch, found Darin Brown sitting in the driver's seat of his motor vehicle stopped in the middle of the road on Fox Avenue in Oshawa. Mr. Brown appeared to be sleeping or passed out behind the wheel. The music on his car radio was blaring. Mr. Morissette was concerned so he called 9-1-1. An ambulance attended. P.C. Ryan Bandstra #2751, a Durham Regional Police Service (D.R.P.S.) officer, one of the officers who attended the scene, became the officer in charge of the investigation. He had been a police officer since September of 2017 working with a coach officer and on his own since January of 2018, so he was relatively inexperienced at the time of this investigation.

[2] Based on what he had been told and his own observations of Mr. Brown, P.C. Bandstra arrested Mr. Brown for drug impaired driving and placed him in his police cruiser. He also requested that a Drug Recognition Evaluator (D.R.E.) officer attend the scene to run tests to indicate the level of drug impairment, but he was advised that none was available that day. P.C. Bandstra then searched Mr. Brown's vehicle and located a small purse beside the driver's seat which amongst other items appeared to contain drugs which the officer believed might be crack Cocaine or "crystal meth". Continuity of these drugs was not in issue. These drugs were submitted to Health Canada for analysis. Exhibit 5 is the Certificate of Analyst from Health Canada dated May 8, 2019 indicating that the drugs analyzed as Methamphetamine rather than what the police suspected was Cocaine. The original information included a count of possession of Cocaine; however, the Crown withdrew that charge at trial, leaving only the drug impaired driving charge to be tried. It was an admitted fact that the registered owner of the vehicle was Laura Brown, who is Darin Brown's wife (see Exhibits 2 and 3). No photos were ever taken of the interior of the vehicle.

[3] Mr. Brown was advised at the scene and when paraded in front of St. Sgt. Elliott at the police station that he was being charged with a drug impaired driving offence. He was also eventually charged with possession of Cocaine, but was not informed of that offence before consulting duty counsel at the police station. Although P.C. Bandstra and St. Sgt. Elliott spoke with him about the drugs that had been found in his car, the first time he was made aware of being charged with a drug offence was hours later, when he was released from the police station.

[4] Following his arrest, P.C. Bandstra took Darin Brown to the Whitby police station. P.C. Bandstra tried again to obtain the assistance of a D.R.E. as he was driving back to the police station, but was told again that none was available. Once at the station, Mr. Brown was placed in a cell and eventually paraded before St. Sgt. Robert Elliott. St. Sgt. Elliott believed that recent amendments to the Criminal Code had come into effect permitting the police to demand a blood sample. These amendments in Part I of Bill C-46 had, in fact, come into force on Thursday, June 21, 2018, just 4 days prior to Mr. Brown's arrest on June 25th. St. Sgt. Elliott called the Durham Region Crown Attorney's office to obtain legal advice about the changes in the law, when they came into effect, and to seek assistance in formulating a proper blood demand. The legislative changes were so recent that the D.R.P.S. had not yet developed any protocols or a wording for a blood demand.

[5] During the parade, Mr. Brown asked to speak with duty counsel. That request was facilitated and Mr. Brown had a private conversation with duty counsel. While that call was taking place, St. Sgt. Elliott was obtaining the legal advice described above from the Crown Attorney's office. It was only after the call to duty counsel was completed, that Mr. Brown was informed he would be taken to a hospital for a blood sample to be taken by a medical professional, and a formal blood demand was read to him by P.C. Bandstra. He was told if he failed to comply, that he would be charged with Refuse. Mr. Brown was not given the opportunity to consult a lawyer again after the blood demand was read to him. The videotape of the parade and the subsequent blood demand were played as evidence during the trial.

[6] Mr. Brown was transported to Lakeridge Health Oshawa hospital for the blood samples to be taken. Initially the hospital was unwilling to take the samples, as they were unaware of the recent changes in the law and no protocols had been developed between the police and hospital yet. After a few hours of conversations back and forth between the police and the hospital, however, they agreed to take the samples, but only if Mr. Brown consented. When asked if he would consent, he verbally agreed and the samples were taken and turned over to P.C. Bandstra. A significant trial issue was the nature of the consent and the failure of the police to provide Mr. Brown with a further opportunity to consult counsel before consenting to the taking of his blood samples.

[7] P.C. Andrew Chmelowsky #3252 received Mr. Brown's blood samples (4 vials), from P.C. Bandstra at the hospital. He sealed the bag, kept the evidence in his custody and turned it directly over to Det. Cst. Janovitz #3434, who later delivered the blood to the Centre of Forensic Sciences (C.F.S.) for analysis. The continuity of the blood samples was in issue until later in the trial when it was conceded.

[8] Galiena Tse, a Toxicologist from the Centre of Forensic Sciences testified about the results of the analysis of Darin Brown's blood samples. There were 4 drugs found in his blood: Methamphetamine, Amphetamine (likely a metabolite), Methadone and Lorazepam. She testified about the effects that these drugs could have on an individual.

[9] The Defence elected to call no evidence on either the Charter Application or the Trial. At the completion of the evidence, the parties agreed to file written submissions on all issues. I thank Counsel for their very helpful work.

[10] The trial could not be completed on the original three days scheduled for it on October 8, 9 and 10, 2019, so the date of November 8, 2019 was added.

[11] Following the completion of the trial, the parties were asked to prepare written submissions and transcripts of all of the evidence were ordered. Unfortunately, Mr. Affleck became very ill with the flu in December 2019 and was therefore delayed in filing his submissions on time. In addition to this, I experienced a very serious back issue in late December, which prevented me from sitting and typing at a computer for any length of time and writing my Reasons. This lasted for a few weeks, which left me with insufficient time to complete my written Reasons for the Charter Ruling and for the final Judgment, although I did have sufficient time to thoroughly review the case and make the required decisions. On January 21, 2020, therefore, I informed the parties of my decisions for both, and advised that I would provide my written Reasons to follow. The parties were informed that I was granting the Charter Application and excluding the blood samples and their analysis by Ms. Tse, the Toxicologist from the Centre of Forensic Sciences. I also advised the parties that I was left with a reasonable doubt about whether Mr. Brown's ability to operate a motor vehicle was impaired by a drug and acquitted him.

[12] I had hoped to finalize and release my Reasons within one month of January 21, 2020, prior to commencing a two-month long armed robbery trial with 6 co-accused, which started at the beginning of February 2020. The completion of my written Reasons was delayed further, however, because after releasing my decision on January 21st I came across the very recent decision of the Ontario Court of Appeal in R. v. Tahmasebi, [2020] O.J. No. 333 decided on January 29, 2010, approximately one week after my decision was given. In fairness to both parties, and out of an abundance of caution, shortly after reading that decision, I contacted them by email through our judicial secretary, giving them an opportunity to make further written submissions on the impact of the Tahmasebi case on the Charter s. 10(b) issue of whether Mr. Brown had a right to further consultation with Counsel. I also invited the parties to make submissions as to whether I am functus given that I had acquitted Mr. Brown but had not yet delivered my Reasons. I asked for all submissions to be sent to my judicial secretary by February 12, 2020 at the latest, however, learned that Mr. Morgan was out of his office until February 18th. I therefore revised the due date to February 26, 2020 for the Crown.

[13] Mr. Affleck responded on February 11, 2020, taking the position that I am functus officio (citing R. v. Malicia, 2006 O.J. No. 3676 (O.C.A.), and R. v. Burke 2002 SCC 55, [2002] S.C.J. 56 (S.C.C.) given that I had already rendered my verdict. The Defence elected to make no submissions regarding the Tahmasebi case in the circumstances. I received no response from Mr. Morgan by February 26, 2020 so had my judicial secretary contact him again by email that day asking for a response on February 27, 2020. On February 27, 2020, I received the Crown's response sent late on the 26th. It was written by Mr. Paul Murray, Deputy Crown, rather than Mr. Morgan, who was the Crown at trial. Mr. Murray informed me that it is the Crown's position that my decision acquitting Mr. Brown on January 21, 2020 was a final ruling and that I am therefore, functus officio. They took the position that in these circumstances it would be inappropriate for the Crown to make further submissions. Mr. Murray also advised that the Crown had already initiated a Summary Conviction Appeal [prior to receiving these Reasons]. On February 27, 2020, I advised the parties through my judicial secretary that having now received the positions of both parties I could finalize my Reasons and would have them released within approximately one month. I could not finalize and release them immediately in light of my ongoing responsibilities to the legally complex two-month long trial which I had currently been dealing with. That trial had to be suddenly suspended in mid-March due to the Covid-19 Coronavirus Directive requiring all trial matters to be adjourned. Since then, there have been frequently evolving issues as our Court has been developing new policies and procedures (such as remote courts) to address the pandemic. I have been finalizing these Reasons while also reviewing the significant amount of information being sent out about the illness, and the protocols and procedures being put in place by the Ontario Court of Justice at provincial and local levels. This has delayed my completion of these Reasons for a few weeks.

[14] For the reasons articulated further below, I have determined that the facts of the Tahmasebi case are distinguishable from Mr. Brown's case, and therefore it would not have altered my Charter Ruling with respect to the police obligation to provide Darin Brown with a further opportunity to consult a lawyer. It is therefore, unnecessary for me to consider whether I am functus officio because of the fact that I have already acquitted Mr. Brown with these Reasons to follow.

[15] These are my Reasons for both the Charter Ruling and my final decision at Trial.

The Issues and Positions of the Parties

[16] In their written submissions the Defence and Crown fully set out the issues being raised and their respective positions. The issues raised on this trial are summarized as follows:

Issue 1: Section 10(a) Charter Breach — Failure to Inform of Possession Charge

Did the police breach s. 10(a) of the Charter by failing to inform Darin Brown that he was being charged with possession of Cocaine until he was released from the police station several hours after his arrest?

Defence Position: The police breached s. 10(a) by this failure.

Crown Position: Even though the police did not advise Mr. Brown of the possession charge until his release, he was aware of his jeopardy since he had been told that the police had found drugs in the vehicle; the possession charge did not amount to a new and more serious turn in the investigation.

Issue 2: Section 10(b) Charter Breach — Failure to Inform Before Consulting Counsel

Did the police breach s. 10(b) of the Charter by failing to inform Darin Brown that he was being charged with possession of Cocaine before he consulted duty counsel?

Defence Position: By failing to inform Mr. Brown of this offence he was not aware of the full extent of his jeopardy when he consulted duty counsel.

Crown Position: Since Mr. Brown knew that the drugs had been found in the vehicle which he was driving, that he had a full opportunity to consult with duty counsel about the potential of being charged with possession of drugs.

Issue 3: Section 10(b) Charter Breach — Failure to Provide Further Consultation After Blood Demand

Did the police breach s. 10(b) of the Charter by failing to provide Darin Brown with a further opportunity to consult counsel after a blood demand was made at the police station?

Defence Position: The police had a duty to provide Mr. Brown with a further opportunity to consult counsel when they decided to make a demand for samples of his blood.

Crown Position: Since Mr. Brown had already spoken with duty counsel and indicated he was satisfied with the call, the police had no further obligation to provide access to counsel and the demand for blood was not a new or non-routine procedure.

Issue 4: Section 10(b) Charter Breach — Failure to Provide Further Consultation at Hospital

Did the police breach s. 10(b) of the Charter by failing to provide Darin Brown with a further opportunity to consult counsel when the hospital refused to take blood samples without his consent and before Mr. Brown was asked to consent?

Defence Position: Given the hospital's position that they would not take Mr. Brown's blood samples unless he consented, the police should have given Mr. Brown the opportunity to consult counsel again to receive advice about whether he should consent or not.

Crown Position: There was no obligation on the police to provide Mr. Brown with a further opportunity to consult counsel while at the hospital before being asked to consent.

Issue 5: Section 8 Charter Breach — Unlawful Seizure Without Valid Consent

Did the police breach s. 8 of the Charter when they seized Darin Brown's blood samples at the police station without obtaining a valid consent from Mr. Brown?

Defence Position: Mr. Brown's "consent" to the taking of the blood samples at the police station was a completely invalid consent at law, and the Crown cannot prove on a balance of probabilities that it was a valid consent. This amounts to an unlawful seizure of his blood.

Crown Position: The consent given by Mr. Brown at the police station was still valid at the time the blood samples were received and he repeated his consent verbally. The hospital's internal requirements that Mr. Brown consent do not invalidate the seizure of the blood samples taken pursuant to a lawfully authorized blood demand.

Issue 6: Section 24(2) Charter Analysis — Exclusion of Evidence

If any breaches are found to have occurred, should the blood samples received from Darin Brown and the results of their analysis be excluded pursuant to s. 24(2) of the Charter?

Defence Position: Given the evolving nature of the breaches and their cumulative effect, the evidence of the blood samples should be excluded.

Crown Position: If any breaches are found to have occurred, they are not serious enough to warrant exclusion of the evidence.

Issue 7: Sufficiency of Evidence Without Blood Analysis

If the evidence of the analysis of the blood samples received from Darin Brown is excluded, is there still sufficient evidence to prove beyond a reasonable doubt that he had the care or control of a motor vehicle while his ability to do so was impaired by a drug?

Crown Position: Even if the Court excludes the blood analysis, there is still sufficient evidence proving drug impaired care or control beyond a reasonable doubt.

Defence Position: There is insufficient evidence of impairment in this case, and even if there is some evidence of physical symptoms, there is no proof beyond a reasonable doubt that any impairment is due to consumption of a drug.

Legislative Context

[17] Some of the important issues in this case turn on the fact that the blood demand was made pursuant to legislation that came into effect just days before Darin Brown's arrest on June 25, 2018. Bill C-46 received Assent on June 21, 2018. Prior to the amendment, a blood demand could only be made by a D.R.E. officer, following an evaluation. Commencing June 21, 2018 (up to December 17, 2018 when further amendments came into effect), the Criminal Code provision was revised to permit any police officer with the proper grounds to demand a sample of blood. Following June 21, 2018, the relevant section 254(3.1) read as follows (emphasis added):

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under paragraph 253(1)(a) as a result of the consumption of a drug or a combination of alcohol and a drug, or has committed an offence under subsection 253(3), the peace officer may, by demand made as soon as practicable, require the person

(a) To submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person's ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or

(b) to provide, as soon as practicable, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person's blood drug concentration, or the person's blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose.

[18] The new legislation in s. 254(4) also provided that the blood samples may only be taken by a qualified medical practitioner or qualified technician "who is satisfied that taking the samples would not endanger the person's life or health". This language is the same for the legislation prior to the amendments.

[19] Prior to the June 21, 2018 amendments, s. 254(2) permitted an officer with reasonable grounds with respect to alcohol or drugs, to make a demand for a person to provide breath samples or demand that they perform physical coordination tests. The only provision for a blood sample demand to be made for alcohol impaired situations was when a person was physically incapable of providing a breath sample or it would be impracticable to obtain a breath sample (see former section 254 (3)(1)(ii)). The former s. 254(3.1) also allowed an officer to make a demand for a drug recognition evaluator officer to evaluate the person. Under s. 254(3.4), where the D.R.E. had grounds based on their evaluation, they could demand either oral fluid or urine samples following the evaluation. Section 254(3.4)(b), allowed the D.R.E. to make a blood demand following an evaluation by the D.R.E., provided it would not put the person's health at risk as set out above in s. 254 (4).

[20] Although the Defence challenges whether the evidence is sufficient to amount to proof beyond a reasonable doubt that Darin Brown was impaired by a drug, there is no issue being raised about whether P.C. Bandstra had reasonable grounds to make the demand for the blood samples under the new amendments.

Evidence of Impairment by Drug and Grounds for Arrest

[21] Mark Morissette, a transport driver, was working on Monday, June 25, 2018, doing a regular run delivery. Around 11:30 a.m. he was on his way to have lunch at the McDonald's in the Walmart on Laval Drive in Oshawa. This is in the plaza just to the east of Fox Avenue, the street where he came across Darin Brown in his vehicle, a silver Saab with License Plate BELW053. It was an admitted fact that this is Mr. Brown's License Plate for the car registered in his wife's name.

[22] Mr. Morissette was travelling northbound on Fox where he would normally pull over to the right, park his transport vehicle and walk over to get lunch in the plaza. Mr. Brown's vehicle was parked and stopped in a live lane of traffic. Mr. Morissette believed it in a centre lane between the northbound and southbound lanes, although there is nowhere to turn from that lane. Another male who used a walker was also stopping to investigate what the problem was. Mr. Morissette parked his transport ahead of that other male, put his brakes on the tractor and exited. He spoke to the male with the walker briefly and then walked over to Mr. Brown's vehicle, after cautioning the older male to be careful where he walked in case Mr. Brown's vehicle moved and put his safety at risk.

[23] When Mr. Morissette approached Mr. Brown's vehicle, he heard that the music was on and was very loud. The vehicle was running and the hazard lights/4-way flashers were on. Mr. Brown was seated in the driver's seat with the chair in an upright position. He was laying back with his chin down and his eyes closed. Mr. Morissette identified Mr. Brown in court. Darin Brown was wearing a baseball cap, had red-reflective sunglasses on and appeared to be in his mid to late twenties. It was fairly evident to him that Mr. Brown was not conscious or aware, so he called 9-1-1. The 9-1-1 operator asked him to observe the driver and asked whether he was breathing. The 9-1-1 operator also asked if there were any signs of open liquor but he told them that he just noticed a Tim Horton's cup in the car. Mr. Morissette did not try to rouse or shake Mr. Brown in any way because he was concerned for his own safety. Mr. Morissette stayed close to his own vehicle, and advised the male with the walker to do so as well while waiting for the first responders. At no time did Mr. Brown wake up while they were waiting. A couple of cars came northbound and southbound and they waved them by and kept them moving.

[24] Mark Morissette was present when the police and ambulance arrived. He believes the ambulance and the police arrived within seconds of each other. He observed the first officer on scene reach into the car and try to rouse Mr. Brown, who appeared to wake up. Another cruiser arrived on scene. Mr. Morissette saw the police questioning Darin Brown briefly after removing him from his car but could not recall if it was one or more officers. Mr. Morissette remained with the male who had the walker, and they were about one and a half car lengths away from where the police were dealing with Mr. Brown.

[25] P.C. Bandstra was dispatched to the location where Mr. Brown's vehicle was stopped at approximately 11:35 a.m. He was a relatively new officer, having commenced his training in September of 2017. He had been on the road independently for approximately 6 months at the time of this incident. He had been an officer about 2 years by the time he testified. The nature of the call for was a car parked in the middle of the road at Fox Street and Laval, with the driver passed out. This hearsay is only relevant to the officer's grounds. P.C. Bandstra did not note the time that he arrived on scene, but he believes he arrived after another police unit and the ambulance. He parked his cruiser and exited. He observed Mr. Morissette's tractor trailer and the other male's sedan parked facing north.

[26] P.C. Bandstra also observed Darin Brown's motor vehicle stopped straddling the northbound and southbound lanes (not in a centre lane as Mr. Morissette described). He saw EMS attending to a male, (identified as Mr. Brown in court). Mr. Brown was leaning up against the driver's side door with his back on the vehicle. The officer suspected this male was the driver. P.C. Bandstra believed he was trying to determine if this was an impaired call, which is what it had been called in as. He also knew it could be a medical episode that would require EMS to transport the male to the hospital. He watched the paramedics assess Mr. Brown. The paramedics were not called as witnesses at trial, so I do not have the assistance of their observations of Mr. Brown.

[27] P.C. Bandstra said he was dealing with safety issues because of the vehicle parked in the middle of two live lanes of traffic. He observed that Mr. Brown's vehicle was still turned on and running. He shut the car off. He looked in to the van and found 2 child car seats strapped to the back bench of the van. He confirmed that there were no children or other persons present in the vehicle.

The Arrest and Charter Rights Provided at the Scene

[28] As indicated earlier, P.C. Bandstra had been told by the 9-1-1 dispatcher that the incident involved a car parked in the middle of the road at Fox Street and Laval, with the driver passed out. In formulating his grounds for arrest, P.C. Bandstra was also informed by Mark Morissette that he was the tractor trailer driver who had come across Darin Brown's motor vehicle. He told the officer that he saw the male sitting upright in the driver's seat with his head slouched forward in a sleeping position. The radio was blaring in the vehicle, and nobody else was present in the vehicle.

[29] P.C. Bandstra did not see if other officers interacted with Mr. Brown. He was observing Mr. Brown's behaviour as he was interacting with the paramedics. He believed EMS were completing their assessment and they informed the officer that Mr. Brown was medically cleared. By this point P.C. Bandstra was confident from his observations of Mr. Brown and the information he had received from Mr. Morissette that Darin Brown was the driver of the motor vehicle straddling both lanes. Mr. Brown identified himself as Darin Brown with an Ajax address.

[30] The officer observed that Mr. Brown had a difficult time standing and was resting his back against the panel of the driver's door. He could stand on his own but required the assistance of the vehicle to keep him in that spot. He had no injuries. The weather was clear and warm, the sun was out, it had not rained and the road was not wet. The road was flat and level.

[31] Mr. Brown was wearing black and red sports shoes, dark coloured wash jeans, a black t-shirt, a dark-coloured baseball hat and a pair of sunglasses. P.C. Bandstra requested that Mr. Brown remove his sunglasses, which he did. The officer was within 4 inches of Mr. Brown. P.C. Bandstra observed that Mr. Brown's pupils were pinpoint in nature. The officer knew that pupils exposed to bright light will normally contract. It was bright and light out so the officer assumed his pupils would contract, but after a number of seconds they did not return to their normal size and remained very pinpoint, very tight and very noticeable. The officer also noticed that Mr. Brown's eyes continued to shift back and forth rapidly. In re-examination the officer testified that when his sunglasses were removed Mr. Brown's pupils were pinpoint which would be expected, but that they would normally return to a normal size since he was wearing a hat with a brim covering his eyes. So, he continued to observe Mr. Brown's pupils.

[32] While I accept as reasonable the officer's evidence that he believed these observations of Mr. Brown's eyes to be symptoms of drug impairment, they go only to his grounds for the arrest, as no evidence was called at trial by an expert or D.R.E. to explain these observations as proof of impairment by drugs. The Crown never sought to qualify P.C. Bandstra as an expert in this area to allow me to rely on it for trial purposes. In cross-examination P.C. Bandstra testified that he had received some medical training as a police officer and he had also been a part-time firefighter for eight years during which he received emergency medical training that went beyond First Aid. He was taught about pupils in terms of medical episodes and impairment, and had dealt with instances of observing pupils in relation to heart attacks, strokes and medical diagnoses. The officer conceded that he is not an expert in this area and while having some experience looking at pupils, he had not been trained in how to go through tests to determine whether there is a drug in somebody's system, in the manner that D.R.E. officers are trained to make observations of a person's eyes (see transcript of October 9, 2019 at page 9 line 18 to page 11 line 5). For example, P.C. Bandstra agreed he did not know what type of drug the symptom of pinpoint pupils was connected to, but he had been trained it might be connected to drug use. As discussed later in these Reasons, the Crown never asked their expert Toxicologist what the significance of pinpoint pupils or rapid shifting of eyes means in relation to drug use.

[33] P.C. Bandstra testified that while he engaged in conversation with Mr. Brown that he was having a difficult time grasping what was going on, although he was able to respond to and answer questions. The officer did not note the specific questions he asked. The officer suspected Darin Brown was impaired and was trying to determine if he had consumed alcohol but he had no alcohol on his breath. When the officer asked Mr. Brown where he thought he was, he told the officer he was unable to recognize where he was and started to look around to try and find a bearing to indicate where he was [this statement goes only to grounds and not proof of the impaired driving since it is prior to being given his Rights to Counsel]. He stepped away from the vehicle in an attempt to walk down the street to try and find a road sign or some other indicator. As he walked away from his vehicle, he was unsteady on his feet. Mr. Brown also swayed while standing in one spot.

[34] Mr. Brown told P.C. Bandstra that he had been up all night with his kids and argued that was one of the reasons he appeared to be tired and for the situation. This statement, again, goes only to grounds, and Darin Brown did not testify at all so there is no evidence from the Defence on this issue for the trial. Having his own young children, the officer empathized with being up with children all night and waited for Mr. Brown to wake up. In spite of this explanation, however, P.C. Bandstra concluded that he had sufficient grounds to arrest Mr. Brown for impaired care or control of a motor vehicle. He advised that his grounds were based on all of the signs including: Mr. Brown relied on his vehicle for stability, his pupils were pinpoint, he swayed as he stood and was unsteady when he walked and he had been observed by Mr. Morissette in the condition he described over the wheel and in a live lane of traffic. The arrest for that offence took place at 11:53 a.m. and the officer informed Mr. Brown that he was being arrested for the offence of "impaired operation of a motor vehicle by drug" because he did not observe any signs of alcohol impairment. While Mr. Brown appeared to understand the officer couldn't be completely sure that he was "fully able to take in the whole totality at the time". In cross-examination P.C. Bandstra testified that he did not ask Mr. Brown to do any sobriety tests at the roadside because he believed he had enough grounds for the impairment arrest without them. He agreed that he had never dealt with Darin Brown before so didn't know how he normally appeared.

[35] Mr. Brown was placed in handcuffs and walked to the cruiser and placed in the back seat. As he walked there, he was having difficulty walking and maneuvering. At 11:55 a.m. the officer read him the Rights to Counsel and Caution from the rear of his notebook. P.C. Bandstra can't recall if he was seated in the cruiser while he did this or standing at the back door of the cruiser with the door opened beside where Mr. Brown was seated. At the beginning of the Caution, P.C. Bandstra told Mr. Brown he was "investigating him" for "impaired operation of a motor vehicle by drug". There is no issue being raised about the informational component of either apart from what he was told about the offence. Mr. Brown said he understood the Caution. When read the Rights to Counsel he was told, "I am arresting you for impaired operation of a motor vehicle by drug…". He said he understood. When asked if he wanted to call a lawyer Mr. Brown "wasn't giving a clear definition as to what he wanted". The officer noted that he said, "I think I should call a lawyer". The officer informed him that in order to afford him privacy in his call that he would be given that opportunity when he was taken to the Whitby police station. The officer knew Mr. Brown would be asked again by the parade Sergeant.

[36] P.C. Bandstra asked over dispatch for a Drug Recognition Evaluator (D.R.E.) officer to attend the scene since they are trained to run a series of tests that would indicate the level of impairment by a drug. The officer was informed that there was no D.R.E. working that day.

[37] P.C. Robinson and P.C. Waldman had also been present at the scene. P.C. Bandstra testified that he saw no other officer interact with Mr. Brown while at the scene. After Mr. Brown had been read his rights, P.C. Bandstra and P.C. Robinson went back to Mr. Brown's vehicle to search it incident to arrest based on the drug impairment.

[38] In Darin Brown's vehicle, P.C. Bandstra located a small purple and silver sparkled zippered pouch, like a child's purse. The purse was next to the driver's seat between the two front seats. He opened that pouch and found 2 syringes with orange caps covering the needles. They were loose in the purse. In addition to the two syringes there were two other packages in some sort of bags, one containing what the officer described as a "staired" or "starie" cup (a small well, almost like a spoon). The second package contained in the purse was a hard, white crystal-like substance which the officer believed was indicative of crack cocaine or "crystal meth". P.C. Bandstra seized the small purse. He and P.C. Robinson were searching the car together and looked in the back seat but nothing else was located.

[39] P.C. Bandstra had done a pat-down search of Mr. Brown before placing him in the cruiser but nothing was located. That search had been done for officer safety and the individual's safety, being in contact with drugs or anything that could harm.

[40] After searching the vehicle P.C. Bandstra returned to the cruiser. "For officer safety purposes as wall as informing Mr. Brown of what I had located, [I] informed him that the drugs were located and where they were located in the vehicle". He did not ask him any questions about the drugs, but noted that when he told Mr. Brown about the drugs that Mr. Brown's demeanour changed from being puzzled to being more concerned about what was going on. It is important to note that for the reasons described below, I find that P.C. Bandstra never at any point advised Mr. Brown before he consulted a lawyer that he was under arrest for any offence in relation to possession of the drugs.

[41] P.C. Robinson offered to deal with the towing of Mr. Brown's vehicle while P.C. Bandstra took Mr. Brown back to the Whitby police station. P.C. Bandstra left the scene at 12:05 p.m. to transport Darin Brown to 18 Division. For the second time P.C. Bandstra requested that a D.R.E. officer be obtained, but the situation had not changed and there was still none available. While transporting Mr. Brown he noticed in his rear-view mirror that Mr. Brown was squinting his eyes and keeping his eyes shut for lengthy periods of time. In the shady cruiser P.C. Bandstra noted this as a further sign of impairment. The officer took the most direct route and arrived back at the police station at 12:17 p.m.

The Right to Counsel Issues at the Whitby Police Station

[42] Once P.C. Bandstra arrived at 18 Division in Whitby at 12:17 p.m., Mr. Brown was placed in a cell and remained there until he was removed from the cell to be paraded at 12:29 p.m. before St. Sgt. Elliott.

[43] St. Sgt. Elliott was the officer in charge of the C Platoon at 18 Division in Whitby. One of his duties was to the officers he was supervising. St. Sgt. Elliott had been an officer with the D.R.P.S. for 21 years at the time he testified, and had been a Staff Sergeant for 9 years of that time. Before becoming a police officer, he had been an advanced care paramedic in Oshawa for Oshawa Ambulance and then subsequently Durham E.M.S. He had made no notes of his involvement in Mr. Brown's investigation at the time of the events, but testified that he had an independent recollection and could remember the events "quite vividly". At some later point he prepared a will-say which was provided to the Defence just a few weeks before the trial commenced. The video of Mr. Brown's parade and the subsequent blood demand capture some of his involvement on June 25, 2018, however there is no audiotape of his conversations with P.C. Bandstra when they were alone, since only those portions when Mr. Brown was present were being recorded. Both St. Sgt. Elliott and P.C. Bandstra had to testify from memory about their discussions with one another, since neither made any notes of these conversations at the time.

[44] St. Sgt. Elliott testified that he regularly monitors and uses his computer to read the calls which his officers are dealing with. On this date he was aware his officers had been dispatched to the call involving Mr. Brown. As it was happening, he was reading the call card on his computer. This officer was permitted to testify about hearsay matters, only with respect to the information he received and his next investigative steps, not for the truth of what he was told or read. The call came in for a vehicle parked in the middle of Fox Street in Oshawa. There was a lone occupant, the driver, who was passed out or asleep or unconscious behind the wheel. He was not awake and lucid. P.C. Bandstra had arrested that person who was Darin Brown for "impaired operation by drug". Mr. Brown was brought to the Whitby station to be paraded before St. Sgt. Elliott.

[45] The statements made by Mr. Brown to St. Sgt. Elliott and P.C. Bandstra during the parade are not admissible as proof at trial on the drug impaired driving charge as they were made preceding the exercise of his Rights to Counsel through his conversation with duty counsel (they are Charter protected). The conversation is very relevant, however, to the alleged Charter breaches. The video of the booking procedure and subsequent blood demand is contained in Exhibit 1.1 on the trial (the portions played at trial are noted on the transcripts below). As indicated, the audio was only being recorded during those portions when the booking Sergeant turned on the recording switch. Exhibit 1.2 is the transcript of the audio portions of the booking video.

[46] P.C. Bandstra confirmed that the video accurately depicts what transpired with Mr. Brown during the booking procedure. The small bag with the drugs is seen on the video where P.C. Bandstra places it inside Mr. Brown's hat which the officer has set down on the sergeant's booking desk. The video begins playing at 12:20 p.m., however the audio portion commences at approximately 12:29 p.m. when P.C. Bandstra has gone to bring Darin Brown out of his cell to be paraded. Prior to that St. Sgt. Elliott and P.C. Bandstra are seen speaking with one another at the parade desk near the booking screen. St. Sgt. Elliott said that P.C. Bandstra was giving him information such as the arrest time and incident number to complete the booking sheet on the computer. St. Sgt. Elliott could not recall any relevant discussion taking place when they moved off-screen and went to the report writing room.

[47] St. Sgt. Elliott testified he was aware that Mr. Brown had been arrested for "impaired operation of a motor vehicle by drug" and that there was no suspicion of alcohol. He knew that P.C. Bandstra, "had also located a quantity of drugs on the accused in his search subsequent to arrest… We believed that the powdery substance was Methamphetamine." (see transcript of October 10, 2019 at page 25 lines to 26). On the video St. Sgt. Elliott says the drugs were found in the vehicle, not on Mr. Brown. It is odd that St. Sgt. Elliott testified they believed the drugs to be Methamphetamine, when in fact Mr. Brown was eventually charged with and released that day on a possession charge in relation to Cocaine. Perhaps St. Sgt. Elliott was reconstructing his memory in light of the later analysis which showed the drugs to be Methamphetamine.

[48] St. Sgt. Elliott was also aware that there were no D.R.E. officers available at all that day in Durham Region with either the D.R.P.S. or the Ontario Provincial Police (O.P.P.) operating out of the Whitby station. The D.R.E. officers with the D.R.P.S. normally work out of the Traffic Unit located in the basement of the Whitby police station, the same Division where Mr. Brown was taken to be paraded. St. Sgt. Elliott was able to see that two calls had been made requesting a D.R.E. officer without success. A detailed review of the evidence about the failure of the police to advise Mr. Brown that he was being charged with possession of Cocaine before he spoke to a lawyer is set out below.

[49] Parts of the audio on the parade and blood demand videos were difficult to hear in court, so the Crown arranged later on for both transcripts to be prepared, which are of great assistance in making out what is said. Exhibit 1.2 is the complete transcript of the Booking Video which reads as follows:

Booking Video Transcript (Exhibit 1.2)

Subject Name: BROWN, Darren Joseph
Date: 25.06.2018
Start Time: 12:20:00 EST Stop Time: 13:14:20
Duration: 0:44:46.0
Location: 18 Division - Booking

Participants:

• Cell Sergeant (St. Sgt. Elliott): CS
• Darren Joseph BROWN: DB
• Police Officer (P.C. Bandstra): PO

Relevant conversation begins at 12:29:12

(Unintelligible noises and conversations heard throughout interview)

CS: Turn your radio down, please. (Pause) Hi. Uh, just come on up here, man. That's okay, you can go ahead and take his handcuffs off. Are they on?

PO: Yeah.

CS: Okay, well take 'em off. Um, everything's on audio and video in here, okay? Just to let you know, the camera is there, there's audio there. There's a camera right there. Okay? All this gets recorded. Um, what's your name?

DB: Darren BR…Joseph BROWN.

CS: Okay, Darren. I'm just gonna go over everything here. (Pause) Yeah, they'll be a little bit red. Hey, Darren, we'll go over everything. Um, have you been told why you've been arrested?

DB: Yes.

CS: Why were you arrested?

DB: Uh, for being under the influence.

CS: Yep. It's called Impaired Care and Control.

DB: Okay.

CS: And, and basically, it's, it's just that. The accusation is that you were in care and control of a motor vehicle and you were impaired by drug. 'Kay, I'm not asking you to agree or disagree. It's just, do you understand what that means?

DB: Yes.

CS: Okay. It's just the same as drunk driving except with drugs. Okay?

DB: 'Kay.

CS: So, you understand that?

DB: Yes.

CS: Okay. You know you can call a lawyer or Duty Counsel, if you want?

DB: Yes.

CS: Would you like to call a lawyer or Duty Counsel, at all?

DB: Yes.

CS: Okay. Who would you like to call?

DB: Uh, I, is there a list that I can pick from? I don't…

CS: So, I'll explain. So, um, lawyer, if you have a lawyer, that's one (1) thing. Just name that lawyer, we'll look him up. We could give you the phonebook if you wanted, you could look up a li…a list of lawyers. Um, Duty Counsel are lawyers that are paid for by the province of Ontario that you can talk to for for free, for free legal advice, in private, in that room, right there, if you wanna talk to them. Those are all your options for lawyers. Um, any, anything like that if you have, if there's a lawyer ya know, but you can't remember the name, just let us know who to call and we'll find out.

(Pause)

DB: Um. (Pause) I don't know if… if I get the, the Duty Counsel, can I switch afterwards?

CS: So, what we'll do…

DB: It's just like, would he be comin' down now, and…

CS: They won't come, no one's gonna come in here and see you, you can talk to them on the phone.

DB: Okay.

CS: 'Cause what's gonna happen here, we're gonna go through testing and stuff for, for the drugs, okay? Um, you have a chance to speak to the officer, if you want to, but that can be used against you in court.

DB: Mm hmm.

CS: Okay? It could be taken down in evidence, recorded and used against you. But, but, again, if you wanna talk to the officer, you'll, you fe…feel free. So, if you wanna talk to the lawyer and get advice from a lawyer, absolutely.

DB: Alright, yeah. Yeah, I dunno

CS: So, if, would you like to start with Duty Counsel? And, and then after that, find out if you're satisfied with that call or not.

DB: I think that'd be the best way to do that.

CS: Okay.

(Pause)

DB: I just wouldn't want something little that I said or did or…

CS: (Sniffs) Yep.

DB: …to incriminate myself, that's all.

CS: Okay. Yep, that's no problem. That's all your right to do, right? Ya know, you can…if you don't wanna talk, you don't have to talk. That's fine. Are you on any criminal charges right now?

DB: (Shakes head)

CS: Nope. For your own safety, while you're here, have you consumed any alcohol today?

DB: (Shakes head)

CS: Okay. And again, I know you're here for Impaired, but these questions, right now, are just to make sure that you're safe in these cells. I wanna make sure you didn't just chug a forty (40) pounder of vodka before you came in and I have to worry about your s…your, your health. You know what I'm sayin'? So, no alcohol. Any non-prescribed drugs?

DB: No.

CS: Okay. (Clears throat) Any illnesses? Do you have a cold, the flu, anything like that?

DB: (Shakes head)

(Pause)

CS: Any medical conditions? Heart problems, breathing problems, epilepsy, diabetes?

DB: Uh, medical plo…problems, no.

CS: Okay.

DB: Some physical ones

CS: Okay, what's your physical problems?

DB: Uh, my right A C L and my meniscus. Uh, my right hip and my left shoulder.

CS: Okay. Uh, how long, are these old injuries? Or?

DB: Uh, everything in the last seven (7) years.

CS: Okay. Have you had surgery on them or anything?

DB: Surgery on the, right hip, or right knee, left shoulder and scoped, uh, right hip.

CS: Okay. How long ago was that? Or they just scoped and then scoped on your knee and stuff?

DB: On, scope on the, the hip? Or…

CS: Yeah, yeah. The hip, sorry.

DB: Uh, say, two (2) years ago.

CS: Okay. (Pause) You, right knee and hip, right? And left shoulder?

DB: Correct.

(Pause)

CS: (Clears throat) Are they bothering you right now?

DB: Pardon?

CS: Are those injuries bothering you right now?

DB: Yeah.

CS: Okay. Do you have pain with them every day?

DB: (Nods head)

CS: Okay. Are you on any medication for them?

DB: No. That's what I'm gettin' off.

CS: Okay. (Pause) Do you have any fresh injuries or is there anything else I need to know?

DB: Any, any, what?

CS: Do you have any fresh injuries or is there anything else you think I need to know?

DB: Uh, yeah, I just got bit by a Rottweiler on the weekend.

CS: O kay.

DB: On my right hand.

CS: And is there anything else I need to know?

DB: Uh, I'm on antibiotics for that. Um, gave me a tetanus shot, antibiotics shot. And, uh, big horse pills, as well, for seven (7)…

CS: Yeah.

DB: For seven (7) days.

CS: Yeah, okay.

DB: but I have to see the psychiatrist for the mental part of it.

CS: Okay. Um, how, how is that? Are you having any, is there any problems today? Like, do you have any, today, how are you feelin'?

DB: Not bad.

CS: I'm just, what I'm, what I'm askin', I don't wanna pry too much in your safe…or in your, in your history and stuff. I wanna make sure you're safe while you're here. That's all I'm asking. When it comes to drugs or alcohol, and when it comes to your state of mind, how you're feelin' right now. I mean, a lot ah people don't necessarily come to the police station, under arrest, and feel good about it. But if you're having problems already, I wanna, I wanna see how you're doing. That's all I wanna check on. And if you're gonna be alright while you're here. Any thoughts? (Pause) You sure?

DB: (Nods head)

CS: Okay. (Pause) Um, so, the officers recovered some narcotics from your vehicle.

[NOTE: While asking this question, St. Sgt. Elliott is seen on the video holding up the small purse with the drugs seized by P.C. Bandstra from the vehicle driven by Darin Brown]

Do you have any more on your person?

DB: (Shakes head no)

CS: 'Kay. (Pause) So, what has to happen is my partner will place a call to Duty Counsel, they call back. And then when they call back, we'll put you in contact with them. Okay? And then we'll talk after that. (Pause) And while you're, while you're here, if you need to use the washroom or get a drink of water, just let us know, there's one here and you can use one in private, okay?

DB: A glass of water would be great.

CS: I mean, we just got a fountain. I'll, I'll go see if we have any bottled water. How's that? That alright?

DB: Okay.

CS: Alright. I'll check that ____ first. Anything else? Anything you need to…

DB: (Shakes head)

CS: Okay.

Relevant conversation ends at 12:37:19

[Emphasis added]

[50] The parade finished at 12:37 p.m. At 12:30 p.m. the call was made to duty counsel and a message left by P.C. Bandstra on the answering service. P.C. Bandstra testified in cross-examination that Duty Counsel was advised that Mr. Brown was under arrest for "impaired by drug". At 12:40 p.m. Duty Counsel D. Paul returned the call and was transferred to the cell area for Mr. Brown to speak with them in privacy in a cell designed for that purpose. Mr. Brown remained in a holding cell in between the time that the parade video ended and when he was brought out to speak to duty counsel.

[51] The video shows that immediately upon Darin Brown exiting the privacy room after his consultation with duty counsel was completed, a blood demand was made to him by P.C. Bandstra. Mr. Brown had been arrested at 11:53 hours and the blood demand was made at 13:15 hours, just over 1 hour and 20 minutes later. P.C. Bandstra testified that this was the first blood demand that he had ever made. He had not made a blood demand under this new legislation before this. He was not aware of whether there was a new directive or policy put in place by the Durham Regional Police Service regarding the new legislation that had just come in. Exhibit 1.3 is a transcript of the blood demand video and interaction that took place. It reads as follows:

Blood Demand Video Transcript (Exhibit 1.3)

Subject Name: BROWN, Darren Joseph
Date: 25.06.2018
Start Time: 13:12:00 EST Stop Time: 13:14:20
Duration: 02:20.0
Location: 18 Division - Booking

Participants:

• Cell Sergeant (St. Sgt. Elliott): CS
• Darren Joseph BROWN: DB
• Police Officer (P.C. Bandstra): PO

Relevant conversation starts at 13:12:17

(Unintelligible noises and conversations heard throughout interview)

CS: O kay, uh, so you talked to Duty Counsel, right?

DB: Yes.

CS: You satisfied with that now?

DB: Yes.

CS: Okay. So, um, what's gonna happen, the officer's gonna read a Demand here. The law changed, like, in the past few days. So, these officer…officer's just gonna read you a Demand here, on audio and video. Okay?

PO: Kay? I demand that you provide such samples of your blood, in the opinion of the qualified medical practitioner or qualified technician are necessary to determine the concentration, if any, of drugs in your blood. And that you accompany for this purpose now. The blood samples will only be taken under the direction of a qualified medical practitioner and if the qualified medical practitioner is satisfied that the taking of the samples will not endanger your life or health. Do you understand?

DB: Yes.

PO: 'Kay.

CS: Okay, so, so what that means, the law's changed, so, because we're trying to combat Impaired Driving by Drug now, what's gonna happen is he's made a Lawful Demand and we're gonna take you to the hospital and a medical, a qualified medical technician will draw your blood and we're gonna take a sample of that for the testing of drugs, presence of drugs in your blood. Okay? Do you understand all that?

DB: Yes.

CS: Okay. So, will you, you'll accompany the officer? If you don't, you'll be charged with Refuse and that's a criminal charge and it's right in the section of impaired driving, okay?

DB: Yeah.

CS: I just wanna make sure you understand everything 'cause this is all new to us, as well. So, and again, you get a qualified medical practitioner, your safety's paramount, so, you know, if a qualified medical practitioner thought there was any safety concerns, then they won't draw your blood. So, you'll, you understand all of this?

DB: Yes, I do.

CS: Okay. So, the officer will pick you up and we'll go from there.

DB: Okay.

CS: Alright?

PO: Okay? So, just take a seat in here for now…

Relevant conversation ends at 13:14:07

[Emphasis added]

[52] P.C. Bandstra agreed that at the time Mr. Brown was put in touch with duty counsel that no demand of any sort had been made of him before the consultation took place. No breath demand had been made because there were no signs of alcohol impairment and thus no grounds for that demand. No D.R.E. demand had been made because no D.R.E. officer was available that day. Most importantly, no blood demand had been made yet. (See transcript of October 8, 2019 at page 125 lines 21 to page 126 line 10). In cross-examination P.C. Bandstra agreed that in normal circumstances a breath demand or demand for Standard Field Sobriety Tests would be made at the roadside before a person under arrest consulted with their lawyer, unlike in this case where the blood demand was made after consulting duty counsel and over 1 hour and 20 minutes after the arrest (as distinguished from the forthwith requirements for breath demands in alcohol impaired cases). When asked about this issue in cross-examination P.C. Bandstra testified in part as follows (see transcript of October 9, 2019 at page 24 line 25 to page 25 line 14):

Q. …If you make a demand that he provide a sample of breath or blood, he needs advice on what to do going forward, correct?

… [long pause by the officer before answering]

A. In normal circumstances, he would have been read the demand prior to speaking to duty counsel. This was, in my opinion, an abnormal circumstance. This is not typical. I had no – I was unaware of this law, this was something that Staff Sergeant Elliott came to – to fall under doing some research which I was not – did not have time to do. That hospital wasn't aware – there's a lot of unknowns and questions that were going in and that's – that's where the delay occurred.

MR. AFFLECK: Q. If it was unknown to you, did you expect that it would be known to Mr. Brown, the change in the law – you couldn't have expected that, right?

A. That's correct.

[Emphasis added]

[53] St. Sgt. Elliott similarly agreed that when a person is arrested for impaired by drug that there are different types of demands that could be made. One demand would be to submit to a Drug Recognition Evaluator examination. Another would be a blood demand. The officer agreed that if Mr. Brown refused to comply with the demand for blood samples he could be charged with refusal. St. Sgt. Elliott agreed that at the time Mr. Brown spoke with duty counsel he was not told he would be subject to either a demand for examination by a D.R.E. or for a blood sample. He agreed that normally a person would speak to a lawyer after a demand had been made, so that they could get legal advice about whether or not to comply with the demand. He agreed that in some circumstances a person might also need legal advice before consenting to the giving of a bodily sample. When asked in cross-examination about his understanding of the purpose of legal advice in relation to a demand would be, and whether Mr. Brown should have been put in touch with counsel again, St. Sgt. Elliott testified as follows (see transcript of November 8, 2019 at page 7 lines 6 to 27; and page 8 line 25 to page 11 line 3):

Q. So, to your knowledge then, just to sum up, at the time the demand was made, you had not told him that he was going to be charged with possession of a drug, correct?

A. I did not.

Q. And he did not know, to your knowledge, what sort of demand was going to be made of him before he spoke to duty counsel?

A. He didn't - he did not, from my perspective.

Q. And you would agree with me that the purpose of the right to counsel is so that an individual can get meaningful legal advice, when a demand is made that they comply with police direction?

A. Only if they want that.

Q. So your position is, they only get the right to speak to counsel after a demand is made if they want to speak to counsel?

A. In this case, sir, it's my opinion that I fully explained everything to Mr. Brown. He understood his jeopardy and he consented to the blood demand.

Q. That he consented to the blood demand?

A. He consented to the - to have the blood drawn by way of demand.

Q. Okay. So, when you say you were there when he consented, you mean you were there when he appeared to understand the demand made of him? [as seen on the video]

A. Yes, sir. I was in the cells. He appeared to understand the demand and comply with that lawful demand.

Q. There was no wording, that you knew of on the date that the demand was made, to actually formulate that demand, correct?

A. That is correct.

Q. In fact, to your knowledge, and I'm going to be really up front about this, and we have talked a lot about it, so that's when asked question, that's something that was actually formulated by a lawyer for the Crown Attorney, in consultation with you, over the phone in the moment, right?

A. Correct, we did the best we could.

Q. Right. No, I understand. But even the Crown didn't know what the correct wording would be. He formulated - formulated it along, in consultation with - with yourself, right?

A. Well, I can't testify as to what he did or did not know, as far as - as a demand, sir.

Q. Sure.

A. Only our - our discussion about it.

Q. It was formulated between the two of you over the phone, and then read out to Mr. Brown?

A. That is correct.

Q. Okay. And that was because you needed some advice from a Crown lawyer about how to make the demand, it being so new?

A. I would - I would agree with that.

Q. Okay. And that still didn't, you would agree with me, cause you to say to Mr. Brown, "I'm going to call duty counsel again for you. We made this new demand. Let's just call duty counsel again for you and get some legal advice on it." You didn't do that?

A. No, I did not.

Q. You would agree with me that that would have been possible?

A. If he asked for it, yes.

Q. Your position is, he would have to ask for it for you to do it?

A. No, that's - my position is, in the circumstances, sir, I explained everything to him. He understood it and he complied with the demand. There was no further jeopardy. He did not make any requests either.

Q. Correct. But you didn't advise him that he had a - I know you didn't think he did - he had a right to, but you didn't advise him that he had a right to speak to counsel again, right?

A. Because I didn't think he did.

Q. All right. And so, you were basically relying on him approaching you to say, "I would like to speak to duty counsel again"? That's what you were - only in that circumstance would you have given him a right to consult with duty counsel again. Does that sum up what your...

A. If his jeopardy had changed or if there was confusion as to the lawful demand, then that was a different discussion, but we did not have that. I made the lawful demand. He understood and he complied with the demand. He had already spoken with duty counsel and I was satisfied with that.

Q. And again, I - I try not to beat dead things, but here I go; up to that point of the demand being made, he had already spoken to counsel, right?

A. Yes.

Q. And when he spoke to counsel, there had been no demand made at all, for anything from him?

A. At that point, yes.

Q. Not a drug recognition examiner examination, right?

A. That's right.

Q. And not blood, right?

A. That's correct.

[Emphasis added]

[54] St. Sgt. Elliott had also testified earlier that based on his dealings with Mr. Brown at the time the blood demand was read that he "absolutely without a doubt understood what P.C. Bandstra had read to him and my explanation of it" and that he was consenting to the taking of his blood (see transcript of October 10, 2019 at page 40 line 24 to page 41 line 1).

[55] It is of concern that St. Sgt. Elliott appeared to have little insight into the fact that even though he believed he had explained what was going to happen to Mr. Brown, that Mr. Brown might need independent legal advice about whether to comply with the blood demand. St. Sgt. Elliott appeared to believe that what he had said to Mr. Brown was sufficient, without regard to the purposes of consulting counsel [see the detailed discussion about these purposes below under the topic of the Right to Further Consultation with Counsel]. A review of the Exhibit 1.3 transcript set out fully in paragraph 51 above, shows that Mr. Brown was acknowledging he understood the demand, the consequences of a refusal, and the procedures which would be followed to take the blood samples. At no point did he indicate he was consenting to what was to take place. It is of concern that St. Sgt. Elliott interpreted Darin Brown's acquiescence to and compliance with the blood demand to amount to consent to blood samples being taken.

[56] It is very important to the issues on the Charter application that I have concluded that the police were contemplating demanding a blood sample before the parade in front of St. Sgt. Elliott, but never informed Mr. Brown of this before he consulted with duty counsel. The evidence is a bit inconsistent on when the decision to make a blood demand first arose, but it was finalized while Mr. Brown was still consulting duty counsel.

[57] P.C. Bandstra testified in examination-in-chief that when he spoke to St. Sgt. Elliott before the parade took place with Mr. Brown, he told P.C. Bandstra that the law had changed regarding blood demands. P.C. Bandstra did not know when the law had changed. At page 83 of the October 8, 2019 transcript at lines 2 to 5, P.C. Bandstra testifies, "So, just for the record, when I'll proceed to speak to St. Sgt. Elliott. It was brought to my attention that the legislation had recently changed in relation to the blood demand or drug-related impairments." At line 10 he clarifies that this took place before the parade. P.C. Bandstra testifies further at lines 23 to 25 that before the parade St. Sgt. Elliott had already been in the process of figuring out what was going to happen with the investigation where no D.R.E. was available. He informed P.C. Bandstra that the law had recently changed within the past 3 or 4 days of Mr. Brown's arrest. He told P.C. Bandstra that the procedure was that where a D.R.E. was not available, a blood demand would be made and the blood would be drawn by a qualified medical practitioner or if the person refused to have a blood sample taken, they would be charged with an offence of refusing. During his evidence in examination-in-chief it appeared that all of this conversation took place before Mr. Brown was paraded. None of this conversation was recorded because the audio remained in the turned off position for the video until Mr. Brown was paraded. At page 89 of the transcript P.C. Bandstra was asked further questions about his conversation with St. Sgt. Elliott before the parade. He testified that there was no discussion by either of them that the blood demand should be read to Mr. Brown before he spoke to a lawyer.

[58] In cross-examination P.C. Bandstra was very unclear about the exact timing of the discussion with St. Sgt. Elliott, and he had made no note of when it was determined that a blood demand was going to be made (See transcript of October 8, 2019 at page 115 line 27 to page 117 line 13). P.C. Bandstra made no note of the time at which it was decided that a blood demand would be made to Mr. Brown. He also made no note of when that decision was made in relation to Mr. Brown's call with duty counsel. P.C. Bandstra at this point in his evidence believed it was a decision made while Darin Brown was speaking with duty counsel, not after he spoke with duty counsel (see transcript of October 8, 2019 at page 124 lines 5 to 24). In cross-examination he testified that he did not think of knocking on the door to advise Mr. Brown that a blood demand was going to be made because of respecting his rights to consult a lawyer in privacy. He had never seen any officer interrupt a call with a lawyer. See transcript of October 8, 2019 at page 118 lines 17 to page 120 line 26 which reads in part:

Q. So, it would have been very possible to simply knock on the door and say, Mr. Brown, you're on the phone to duty counsel, something you got to know here. We're making a demand you supply a blood sample. That could have been done, right?

A. I have never done that myself due to privacy concerns. That was just, I've never done that.

Q. So, you could have knocked on the door, without opening it up, right. I'm just asking, not if you had done it before, if you could have. You could have knocked on the door, right, without opening it?

A. Physically yes, I could have. Yes, however it's, I've never done it, it's to me duty counsel is a conversation, a private conversation between the individual and counsel in this, and to disrupt that conversation. I've, I've never done, that's....

Q. That's because of an ongoing concern for the rights of the accused, I'm taking it. That you wouldn't want to interrupt this private conversation?

A. That's correct.

Q. So, in equal measure, you would want to make sure, out of an abundance of caution, about the rights of the accused, that Mr. Brown was able to discuss with his lawyer the fact that the police are demanding that he supply a sample of his blood, right?

A. As he, as he had just spoken to duty counsel it was not something that I'd considered at that time, no.

[59] When St. Sgt. Elliott testified, he described the setup for the privacy room in the Whitby police station. There is a smaller cubicle totally enclosed with a door, which is inside a holding cell with a door which is locked when someone is consulting a lawyer. He explained that to get the attention of a person who was consulting a lawyer by phone inside the privacy cubicle, it would require unlocking the outer cell door after knocking on it to get the attention of the person in the inner room. The officer would then announce that they should stop speaking with the lawyer so that nothing could be overheard and then also knocking on the inner door to the cubicle to interrupt a call in-progress. St. Sgt. Elliott had only done this once in his career when a call seemed to be taking an unusually long time on an impaired case. On that occasion, once he knocked on the second door, he learned that the call had, in fact, finished quite some time before. I accept that it would be highly unusual for the police to interrupt a private call with a lawyer for any reason.

[60] St. Sgt. Elliott described P.C. Bandstra as "a very astute officer" who likes to be thorough. While Mr. Brown was consulting with duty counsel, P.C. Bandstra had gone to St. Sgt. Elliott's office to discuss the fact that there had been no alcohol demand and no D.R.E. officers available and he wanted to discuss what they should do in the circumstances where they simply had the opinion of an officer about physical impairment without any evidence to back it up. St. Sgt. Elliott testified that they could have had Mr. Brown do several sobriety tests at the police station such as walking down the middle of the big yellow line seen on the floor in the parade video. He said they did not do this because he knew the law was changing regarding impaired situations.

[61] St. Sgt. Elliott testified that when dealing with Mr. Brown's matter, he believed that new amendments were coming into effect but didn't know when they would be coming into force, so he consulted with the Durham Region Crown Attorney's office. He dealt briefly with Assistant Crown Attorney, Deanna Bronowicki, who referred the officer to David Parke, an Assistant Crown Attorney who has specialized expertise in this legal area. Mr. Parke had been involved in this legislative change with the Federal government.

[62] Before calling the Crown, St. Sgt. Elliott already knew that D.R.E. officers and regular officers were going to be given certain powers, including having the ability to make a demand for blood in certain circumstances. St. Sgt. Elliott said he tried to read legal updates sent to the police by the Crown Attorney's office every week or two. He testified, "It's a very convoluted section of the Criminal Code, many moving parts, but, for a police officer on the road, I knew that at some point they would be able to make a blood demand" (see transcript of October 10, 2019 at page 33 lines 12 to 30). The officer searched the internet and found Bill C-46 which contained the amendments.

[63] After speaking with the Crown, St. Sgt. Elliott believed that the new amendments were in force one business day before Mr. Brown was arrested on Monday June 25, 2018. St. Sgt. Elliott testified that it was while Mr. Brown was in the cell and while he was consulting with duty counsel, that he was consulting with the Durham Crown's office to obtain advice. He described the advice he received from Assistant Crown Attorney David Parke and how the blood demand was formulated (see transcript of October 10, 2019 on page 34 line 12 to page 36 line 30):

Q. And what did you learn when you spoke to the Crown's office?

A. I learned the law had changed, I believe it was one business day prior. It was now Monday, June 25th at noon hour when this was occurring and it was my understanding that the law came into force -- the new legislation, Your Honour, came into force the previous Friday, I believe it was.

Q. Okay.

A. So, one business day before this occurred. I was advised that the law was now in force, the police could lawfully make a demand for blood and get that blood drawn but I also know that no police services in Canada --and I'll only speak to Durham, but there was no policies, no procedures, nobody was prepared for this. Nobody even knew about the changes in the policing world, in Durham Regional Police specifically, Your Honour. So, I spoke to the Crown. I said, "Well, we have no demand to make. There's nothing crafted for this."

Q. Well, let me stop you there because wasn't -- I mean, blood demands were possible before this. Was there not a standard blood demand?

A. There was a standard blood demand and it was for alcohol impairment or drug -- where somebody could not proceed with -- with the breath test due to injuries or medical conditions, then the police could make a lawful demand...

Q. Okay.

A. ...for blood. So...

Q. But there wasn't a lawful demand specific -- was there a lawful demand specific to the circumstances that you were facing on this day?

A. I -- I eventually discovered that there was a lawful demand to be made that day.

Q. And in terms of the wording of that demand, was that already -- like, I -- I -- we heard -- saw on the video that P.C. Bandstra read something out of his book.

A. Yes.

Q. Was that something that was just preprinted and already in his book that day?

A. It would have been part of a demand, probably part of the alcohol demand combined with the -- with that blood demand, the qualified medical practitioner aspect. We just had to craft something so that Mr. Brown was given the proper -- proper demand for that blood and there was nothing at that time in any police notebook. There was nothing that had been crafted. There was no communication from my police department or from the Crown Attorney's office indicating, "The law just changed. Here's a new demand." All this was brand new and we did the best we could under the circumstances.

Q. Your conversation with the Crown, was that over the phone? Was it via e-mail? How did you receive this information?

A. It was over the phone.

Q. Okay. Did you receive any specific information about the law either in writing or from over the phone?

A. I did. I received over the phone the advice that the law had changed. The -- the Assistant Crown Attorney I spoke with was fortunate enough he had sat -- he -- on this justice committee when the law was changing so he -- we were able to discuss that. So, he was -- he had the knowledge. Even a lot of the other Crowns did not have the knowledge.

Q. And I'll just skip this. I spoke to this Crown Attorney yesterday and told him this would come up and he was okay with it. Who is the Crown that you spoke to?

A. It was David Parke.

Q. Thank you. So, you received this information and, based on this information you received that you could make a lawful blood demand, what did you decide to do at that point?

A. We crafted a demand that sounded like a good lawful demand. The Crown approved. Constable Bandstra read the demand forthwith to the accused as soon as we knew that we could do that and he was subsequently taken to the hospital to have the blood drawn.

Q. And this -- in terms of speaking to the Crown and the crafting of the demand, was this all -- did this occur before P.C. Bandstra arrived with Mr. Brown to that station or was this while Mr. Brown was temporarily back in the cell and then speaking to duty counsel?

A. It was while Mr. Brown was at the station and between the time he was in the cell and -- and speaking with duty counsel.

[Emphasis added]

[64] It appears from St. Sgt. Elliott's evidence that he would have known before Mr. Brown was actually put in touch with duty counsel that the police were considering making a demand for samples of his blood. P.C. Bandstra similarly testified that he believed St. Sgt. Elliott had been consulting someone and obtaining advice about what the next steps were going to be before the blood demand was made (see transcript of October 9, 2019 at page 19 line 30 to page 21 line 9). He said he didn't know, however, who St. Sgt. Elliott was consulting with.

[65] St. Sgt. Elliott also testified that in addition to speaking to Assistant Crown Attorney, David Parke, on the telephone, that Mr. Parke also emailed him specific sections of the law so that the officer could satisfy himself as to when the law had changed. The officer said he read it thoroughly and determined that the law had changed effective the Friday immediately preceding June 25, 2018. Exhibit 7 is a copy of some email correspondence between the officer and Crown's office. Mr. Parke emailed St. Sgt. Elliott at 1:54 p.m. on June 25, 2018 with a copy of Bill C-46 attached. There was no substantive legal advice contained in the emails. The advice that St. Sgt. Elliott obtained from Mr. Parke was given only over the telephone. While there is some lack of clarity in St. Sgt. Elliott's evidence it appears that the telephone calls were taking place while Mr. Brown was speaking with duty counsel. The advice included crafting a correct wording for the blood demand (see cross-examination in transcript of November 8, 2019 at page 9 at lines 2 to 25).

[66] On October 10, 2019 at trial, Mr. Morgan on behalf of the Crown initially advised that there was no privilege being asserted with respect to the discussions which took place between the Durham Region Crown's office and St. Sgt. Elliott. The emails in Exhibit 7 were then disclosed to Defence Counsel and they were entered as an exhibit. The Defence then sought a "will say" from David Parke about those discussions, following which Mr. Morgan consulted his colleague. Mr. Morgan then reversed his position and stated that the Crown was now asserting privilege regarding the telephone conversations which took place between St. Sgt. Elliott and Mr. Parke. By the time the trial resumed on November 8, 2019, St. Sgt. Elliott had been given an opportunity to seek legal advice from the D.R.P.S. in-house lawyer and advised the Court during his continuing evidence that privilege was not being claimed by the police (see transcript of November 8, 2019 at page 1 line 24 to page 2 line 10). Mr. Parke was not called as a witness (nor was it necessary to do so).

[67] What asked what his memory of the conversations with Mr. Parke were, St. Sgt. Elliott gave the following evidence (see transcript of October 10, 2019 at page 48 lines 2 to 32):

Q. …with respect to your phone call when you got in touch with Mr. Parke, what was your conversation to the best of your recollection?

A. My conversation with Mr. Parke was I informed him of the exact circumstances we were in, that there were no DREs available in the region, alcohol was not involved, we had good signs of physical impairment and I -- I said to him, "I know we can do further signs of sobriety on video, on audio in the cells if we -- if it's required, but I know that the law is changing and when does it come into force?" And he informed me that it came into force -- I think it was assented to on the Thursday. Thank you. And I think it came into force on the Friday and this was now the Monday, the 25th. So assented to on the 21st, came into force on the 22nd and this was now the morning of the 25th. So...

Q. And -- oh, sorry. Continue if there's anything else.

A. And then I said, "Is there anything else -- is there anything else we can do?" and he -- he informed me that the law was in force. He informed me we could do a blood demand. I said there was no direction right now to -- to myself or the police service to my knowledge on this legislative change and how, like, any blood demand now with new legislation. We crafted verbally over the phone what he felt would be applicable, a lawful demand and that's the demand that we heard Constable Bandstra reading to Mr. Brown on the last video we saw.

Q. Okay. Is there any other -- anything else in the conversation that you can recall that occurred while you were consulting with Mr. Parke?

A. No, I -- I don't think so.

[68] St. Sgt. Elliott testified that when he spoke with Mr. Parke, they had a conversation about what the options were including that the police could make a blood demand. He testified that he did not discuss with Mr. Parke or any other Crown whether the police should re-administer the Rights to Counsel (see transcript of November 8, 2019 at page 3 lines 18 to 26).

[69] In his original parade video (see transcript of Exhibit 1.2 in paragraph 49 above), Darin Brown had asked St. Sgt. Elliott, "If I get duty counsel can I switch afterwards?" and agreed with the suggestion that he start with duty counsel and then the police would find out if he was satisfied. After the call with duty counsel St. Sgt. Elliott confirmed that Mr. Brown had spoken with duty counsel (see transcript of Exhibit 1.3 in paragraph 51 above) and asked, "You satisfied with that now?" to which Mr. Brown said, "Yes". It is very important to note that this was asked of him before he was told that the law had recently changed, following which the blood demand was read to him, and he was told that if he didn't comply with the Demand he could be charged with Refuse. He was never asked after the blood demand was read to him whether he was still satisfied with his call to duty counsel or given the opportunity to call a lawyer of his choice to seek advice about these new issues being raised with him for the very first time.

[70] In examination-in-chief St. Sgt. Elliott was asked whether any thought was given to having Mr. Brown re-consult counsel after the blood demand was read to him and before he was taken to the hospital for the blood samples to be taken. He said he did not, giving the following explanation (see transcript of October 10, 2019 at page 36 line30 to page 37 line 11):

Q. Okay. And I know from impaired investigations that typically the demand for someone to provide a sample of their breath is made before they speak to counsel so they know what they're -- what they're -- what they're facing, but this was done -- this blood demand was done, as we know from the video, after he spoke to counsel. Was there any thought of having him re-consult counsel before taking him for -- to the hospital for the.....

A. No. I spoke with Mr. Brown on the video, as you saw. We went over it. I told him exactly what was going to happen. I told him it was a lawful demand. I told him what the jeopardy was should he refuse and he -- he acquiesced. He was -- he seemed fine with that. He did not ask for counsel at any point, so...

[71] It is clear from the totality of St. Sgt. Elliott's and P.C. Bandstra's evidence that they never turned their minds to whether Darin Brown should be given a further opportunity to consult counsel after the blood demand was made. It is also clear from St. Sgt. Elliott's evidence that he did not believe that the police had any obligation to offer Darin Brown the opportunity to consult with a lawyer again once the blood demand was made, since he had already spoken to duty counsel and didn't ask to speak to counsel again. This was in spite of the fact that the police themselves sought legal advice on how to proceed with the investigation including the crafting of the wording for the blood demand. I conclude that this amounted to a breach of Darin Brown's s. 10(b) rights to counsel for the reasons set out below under the heading dealing with the right to further consultation with counsel.

The Failure of the Police to Inform Mr. Brown of the Possession of Drugs Charge and the Impact on Charter Sections 10(a) and (b)

[72] As described above, Mr. Brown was arrested for drug impaired driving at 11:53 hours and placed in the police cruiser. Shortly after that his vehicle was searched and drugs were located in a small purse beside the driver's seat. The officer suspected the drugs were Cocaine or "crystal meth". Until an admission was made by the Crown late in P.C. Bandstra's evidence, one of the focused issues in this case was whether Mr. Brown was ever informed that he was being arrested for or charged with possession of those drugs before he consulted a lawyer.

[73] P.C. Bandstra agreed in cross-examination that when he reports to the Staff Sergeant in charge of the station before the parade, part of his duty is to advise him of all of the offences with which the accused person is charged. When it was suggested to him that he never told St. Sgt. Elliott that Mr. Brown was being charged with possession of Cocaine, the officer disagreed (See transcript of October 8, 2019 at page 126 lines 23 to page 127 line 3). When the parade video was played to him, however, P.C. Bandstra agreed that on the video St. Sgt. Elliott only refers to the drug impaired driving charge, but points out that there was reference to drugs being found in the vehicle and we see that St. Sgt. Elliott holds up the small purse with drugs. He agreed after watching the entire video that St. Sgt. Elliott never refers to a charge involving possession of drugs. P.C. Bandstra agreed that one of the purposes of parading a person before a Staff Sergeant is to advise them of the charges they are facing. St. Sgt. Elliott also testified that when booking Mr. Brown, he was going over his constitutional rights and making sure he understood why he was under arrest and why he was at the police station.

[74] It is important to note that in spite of St. Sgt. Elliott being aware that drugs were found in the vehicle and having the drugs in the purse sitting on the parade desk, he never informs Mr. Brown before he consults duty counsel that he would be charged with an offence in relation to that. So, it appears to have been overlooked by both officers. St. Sgt. Elliott agreed in his evidence that he did not recall having a conversation with Mr. Brown where he was informed about the drug charge. So, while Mr. Brown was aware that drugs had been found in his vehicle, he was never specifically informed of the jeopardy he was facing with respect to criminal charges for possession of drugs before consulting a lawyer.

[75] At the very end of the examination-in-chief P.C. Bandstra confirmed that Mr. Brown was arrested for "impaired by a drug". When asked in a very leading question if he was arrested for the "Cocaine" as well, the officer testified, "I did not note my exact wording for that", but claimed that it would have taken place when he returned to the cruiser after locating the drugs in Mr. Brown's car. When asked if it was done at the same time as the arrest for the impaired by drug, P.C. Bandstra said, "I did not note that, but that would have taken place at that time." [Emphasis added] (See transcript of October 8, 2019 at page 105 line 24 to page 106 line 9). The fact that the officer has no notes to this effect, and used the language "would have" caused me to have very real concerns about the reliability of his memory regarding this evidence when I heard it. It was also inconsistent with the parade video (see transcript above) during which St. Sgt. Elliott makes no reference to that charge at all. St. Sgt. Elliott simply refers to the narcotics found in the vehicle by holding up the small purse and asking whether Mr. Brown had any more on his person (the answer was no).

[76] P.C. Bandstra has specific notes that at 11:53 hours Mr. Brown was arrested for impaired care or control of a motor vehicle. There is no notation in his typed incident report of any arrest for any further offence. Mr. Brown was notified of his Rights to Counsel at 11:55 hours. After this, P.C. Bandstra and P.C. Robinson returned to Mr. Brown's vehicle and located the drugs in the purple and silver sparkled zippered pouch next to the driver's seat. At no point in the officer's notes does it indicate that Mr. Brown was arrested for another offence or re-arrested or that he was being charged with a further offence. There was no re-reading of the Right to Counsel after the drugs were found.

[77] While the witness was excused from the courtroom following examination-in-chief, the Crown fairly conceded that it was impossible for P.C. Bandstra to have informed Darin Brown that he was being arrested for possession of drugs at the same time he was arrested for impaired by a drug, because Mr. Brown was arrested for the drug impaired driving charge before Mr. Brown's vehicle was searched and the drugs were located. In cross-examination the officer agreed that Mr. Brown could not have been informed of both charges at the same time but said he advised Mr. Brown he had "found the drugs" after returning to the cruiser following the search of his car.

[78] P.C. Bandstra did not note which officer called duty counsel but he believes he did. He did not note what he told duty counsel the charges were and did not note that he told duty counsel that Mr. Brown was being charged with possession of Cocaine. In cross-examination, he testified as follows (see transcript of October 8, 2019 at page 110 lines 18 to 27):

Q. I'm going to suggest, Sir, that you simply never told Mr. Brown that he was being charged with possession of cocaine until he was released?

A. I did not note, and I cannot recall my exact wording, no.

Q. Are you at least conceding, Sir, that it's quite possible you never told him that he was also being charged with possession of cocaine until he was released? Is that possible?

A. As I did not note it, it is possible.

P.C. Bandstra repeated this later in cross-examination at page 117 lines 14 to 29.

[79] On October 9, 2019, part way through the cross-examination of P.C. Bandstra (and while he was excused from the courtroom), the Crown conceded that Darin Brown was not informed of the possession of drugs charge before speaking with duty counsel. At that time the parties placed an Admitted Fact before me, that Mr. Brown was informed of this charge at the time of his release on a Promise to Appear. While it was not made an exhibit or viewed by me, the lawyers advised that the videotape of Mr. Brown's release provides clear evidence that Mr. Brown was advised of the drug charge at that time. The relevant time frame in issue, of course, is what Mr. Brown was told before he consulted duty counsel, not at the time of his release.

[80] From the totality of this evidence and the admissions made part way through the trial, I accept that Mr. Brown was never informed that he was being arrested for possession of drugs before speaking with duty counsel.

Analysis of Sections 10(a) and 10(b) Issues

[81] Sections 10(a) and 10(b) of the Charter states that everyone on arrest or detention has the right "(a) to be informed promptly of the reasons therefor" and "(b) to retain and instruct counsel without delay and to be informed of that right".

[82] The Supreme Court of Canada discusses the purposes of the s. 10(b) Rights to Counsel in R. v. Sinclair, 2010 SCC 35, [2010] S.C. J. No. 35 (S.C.C.) at paragraphs 23 to 32 (see a fuller discussion of this below under the heading, "The Right to Further Consultation with Counsel"). The Supreme Court clearly articulates that the purpose of s. 10(b) is to provide a person who is detained or arrest with the opportunity to obtain legal advice which is relevant to his legal situation. This includes the person understanding whether to cooperate with the police or not in their investigation. Sinclair is a police interrogation case, so the Supreme Court described that the rights are "to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed". They state that, "An important purpose of legal advice is to inform the accused about his right to choose whether to cooperate with the police investigation and how to exercise it". An informed decision about whether to cooperate with the police during a custodial interrogation is based on access to legal advice with respect to the situation he is facing.

[83] The importance of a detainee understanding the jeopardy he is facing before consulting a lawyer is dealt with by the Supreme Court in paragraph 51 of Sinclair under the heading "Change in Jeopardy":

2. Change in Jeopardy

51 The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation. [See R. v. Evans, [1991] 1 S.C.R. 869; and R. v. Black, [1989] 2 S.C.R. 138]

[84] In these circumstances, I find that the Defence has not established on a balance of probabilities that there was a breach of Mr. Brown's section 10(a) and (b) Charter rights because of the failure to inform him of the possession of drugs charge before he consulted with duty counsel. I find there was no need to provide Mr. Brown with a further opportunity to consult counsel in relation to the drug charge. Since Mr. Brown had been told at the scene and again at the police station that the police had found drugs in his vehicle, and this occurred before he consulted with duty counsel, I accept the Crown's submission that the possession of drugs charge "did not amount to a new and more serious turn in the investigation". Mr. Brown was aware he was charged with drug impaired driving and knew about the police finding the drugs in his vehicle at the time he spoke to duty counsel. So, he was aware of some jeopardy with respect to the drugs. The Crown persuasively argues in paragraph 9 of their written submissions that, '"The Applicant was aware of the jeopardy he faced before speaking to duty counsel who could have told him that since police had found what they suspected to be drugs in his car, that he could be charged with a possession of narcotic in addition to the impaired care or control charge that he already knew about". I should not speculate on what advice duty counsel would have given; however, it is reasonable to consider that the advice would likely include issues relating to the finding of the drugs and his right to remain silent with respect to the drugs. From the parade video transcript, it is clear that Mr. Brown was already alive to the issue of not making incriminating statements before he spoke with Duty Counsel.

[85] The fact that the police failed to advise Mr. Brown of the drug possession charge is a factor, however, to be considered when addressing the cumulative seriousness of the police conduct under s. 24(2) of the Charter in relation to other breaches which occurred.

[86] Before leaving this area regarding the drug charge, I must comment on the importance of this evidence to my assessment of P.C. Bandstra as a witness. The fact that P.C. Bandstra was clearly mistaken about this issue, and was wiling to adopt a suggestion by the Crown (in a leading question), to then claim that Mr. Brown was told about the possession of Cocaine charge at the scene, gives me great concern about his ability to accurately recall things, and his general reliability, if not his credibility, as a witness. I must consider this when assessing his evidence as a whole.

Darin Brown's "Consent" to the Taking of Blood Samples at the Lakeridge Health Oshawa Hospital and the Charter s. 8 Issues

[87] Following the blood demand at the police station, at 13:23 hours, P.C. Bandstra informed Mr. Brown that he would be taken to the Lakeridge Health Oshawa Hospital for the blood sample to be taken by a qualified medical practitioner. P.C. Bandstra transported him there. St. Sgt. Elliott never attended the hospital but spoke to hospital personnel by telephone as issues arose with the taking of the blood samples.

[88] At 13:35 hours P.C. Bandstra left the Whitby police station with Mr. Brown and he was transported to the hospital in Oshawa. They arrived there at 13:35 hours. Once they arrived at the hospital the officer observed that Mr. Brown was having a difficult time with his eyes opening and closing and squinting. Also, as he was escorting Mr. Brown into the emergency area there is a slight incline to the emergency room doors. While the officer had no difficulty maneuvering on the incline, he said that Mr. Brown appeared to have a difficult time walking.

[89] Once they arrived in the emergency department, Mr. Brown was placed in a special orange chair in front of the nursing station. This chair is designated for those who are brought into the police station by Durham Regional Police officers. At 14:30 hours (almost one hour after he was brought in), "Dr. MacKinnom met with Mr. Brown and nurses ordered the blood work for Mr. Brown". (See transcript of October 8, 2019 at page 93 lines 27 to 29). The evidence of what occurred at this time is confusing in light of other evidence from the officer described below.

[90] P.C. Bandstra testified that part of the delay in dealing with Mr. Brown was that the charge nurse was having a difficult time understanding exactly what was going on because it was so new and she hadn't heard of it before. P.C. Bandstra was trying to explain it to her. She was trying to figure out from the hospital standpoint what they were about to do and appeared to consult with a doctor or someone in charge. P.C. Bandstra testified, "I kind of got a half an answer as they weren't sure what they could do" (transcript of October 8, 2019 page 94 lines 18 to 22). So, P.C. Bandstra called St. Sgt. Elliott and put him through to the charge nurse, and they had a number of conversations back and forth, including that the hospital would have to consult with higher levels of authority. P.C. Bandstra also believed that the doctor was also transferred to St. Sgt. Elliott in the ongoing dialogue that was taking place between the police and the hospital about whether they would collect the blood sample from Mr. Brown.

[91] In cross-examination P.C. Bandstra testified that he wasn't surprised that the hospital was unwilling to take a blood sample from Mr. Brown because it was all new to everybody. He said both agencies (police and hospital) showed a lot of patience to try and make it work and make sure that Mr. Brown's best interests were on the forefront. In addition to being patient there were a lot of consultations between both sides which took a lot of time.

[92] P.C. Bandstra testified, "So, during this time, significant amount of time, they ordered the bloodwork, but the doctor had stated that Mr. Brown needed to consent in order for the blood to be drawn, due to his comfortability [sic] with the situation and how new…" At no point did the hospital agree to draw Mr. Brown's blood without his consent. They specifically requested that Mr. Brown give his consent (see Transcript of October 8, 2019 at page 96 line 25 to page 97 line 6 and page 113 lines 7 to 13).

[93] As indicated earlier, St. Sgt. Elliott did not attend the hospital in person, but had telephone conversations with staff from the hospital. A very significant discussion took place with the doctor which he described in his evidence (see transcript of October 10, 2019 at page 37 line 19 to page 38 line 32):

A. Constable Bandstra transported him to Lake Ridge Health Oshawa to have a sample of his blood taken.

Q. And did you go to Lake Ridge Health Oshawa as well?

A. I did not.

Q. Did you have any further involvement in this case other than -- after that point, after P.C. Bandstra had left?

A. I did. I -- Constable Bandstra did call me from the hospital. He was having a problem with the doctor, the attending physician and I did speak with the attending physician on the phone.

Q. And what was the -- before getting into what you spoke to the doctor about, what did P.C. Bandstra tell you was going on at the hospital?

A. He said that the doctor was refusing to draw the blood and that he was speaking to Mr. Brown, telling Mr. Brown he didn't have to do what the police were telling him he had to do.

Q. Okay. So once that was relayed by P.C. Bandstra to you, I understand you then spoke to the doctor.

A. I did speak with the doctor.

Q. And what was the content of that conversation?

A. I told the doctor that the law had just changed, it had changed the previous Friday. We weren't aware of the changes, the police service. Durham Regional Police were not aware of the changes. I understand that the hospital would not have been aware of the changes. I understand that his legal department, the doctor's legal department at Lake Ridge Health would probably get together at some point with the police. They would draw up something -- come up with a memorandum of understanding. I said, "None of that has occurred. This is new to all of us. I understand if you are uncomfortable drawing the blood. I can appreciate the fact if you don't draw the blood," but, as far as advising Mr. Brown he didn't have to do it, I informed the physician he needs to practice medicine, not law and that if he actually gives Mr. Brown that advice and Mr. Brown refuses, Mr. Brown will be charged with refusing to provide the sample and I would be consulting with the Crown's office to have the doctor charged with obstruct police and nonetheless, there was a potential the doctor could be called as a witness at this trial.

Q. What happened with the conversation after you told the doctor that?

A. He promptly hung up on me.

Q. Okay. So, did you have any further involvement in the interaction at the hospital or in this case at any point after that?

A. I did not.

[Emphasis added]

[94] Later in examination-in-chief St. Sgt. Elliott expanded upon his dealings with the doctor (see transcript of October 10, 2019 at page 49 lines 12 to 26):

Q. And I -- I just from your earlier evidence understand there was some disagreement with the doctor as to whether or not the blood demand could be made. Did you follow up with the Crown's office at that point, just to see if it could be done?

A. No. No, I did not. I was already -- I already knew it could be done and I just needed to speak with the doctor so that he had an understanding of what he was doing when he was giving legal advice to the accused.

Q. Thank you.

A. And I also -- I'm sorry. I also wanted to ensure, like let the doctor know that I'm okay with the fact if he did not want to draw the blood because he wasn't aware of the legislative changes and there was no policies with the hospital, so I wouldn't hold that against him.

[95] In cross-examination, St. Sgt. Elliott testified that when he became aware that the doctor was refusing to take the blood sample, it did not cause him to think that Darin Brown should be given an opportunity to re-consult with counsel. P.C. Bandstra never testified that he was aware of the details of the conversation that had taken place between St. Sgt. Elliott and the attending physician.

[96] P.C. Bandstra testified that it took from 13:35 to 16:03 hours to work out the situation with the hospital and "at 16:03 hours Mr. Brown consented to a blood sample". He was asked by the nurse practitioner who was drawing the blood, Jody Reid, "if that's okay, to which he agreed that that was appropriate" (see Transcript of October 8, 2019 at page 95 lines 11 to 13 and page 97 lines 4 to 18).

[97] In cross-examination P.C. Bandstra was asked why he would be "fine" with Darin Brown giving a verbal consent for his blood to be taken, in light of the officer's claim that Mr. Brown was still impaired at the hospital and confused about where he was. He did not answer that question, but explained his position as follows (see transcript of October 8, 2019 at page 121 line 10 to page 122 line 8; and page 123 line 10 to page 124 line 6):

Q. But, you're fine with him giving a verbal consent to the hospital, is that fair?

A. See at this time I was notified that the law had change.

Q. Right.

A. The law had changed, the law was the law at the time. We had confirmation that it was in fact in place. The consent, the consent would have, was a, we afforded that to him. If he had refused, refused the blood sample, he would have been charged on the refuse.

Q. But, if he had refused to consent verbally, you would have charged him with refusing?

A. So....

Q. Am I understanding that correctly?

A. That's correct.

Q. So, in other words, there's a legal consequence for him deciding not to consent to this sample? You'd agree with that right? There's a legal consequence?

A. That's correct, yes.

Q. And, that may be something, legal consequences, that a person needs to speak to a lawyer about, isn't that correct?

A. He had spoken to duty counsel, and for that reason it was not reoffered to him.

Q. Okay.

A. Nor did he ask for it.

Q. No, no, I appreciate that, and believe me, nobody's saying he asked to speak to a lawyer again, okay. If you think I'm going there, I'm not.

MR. AFFLECK: Q. It's not as if when Mr. Brown spoke to duty counsel, he knew that there was going to be a demand that he consent to a blood sample, correct?

A. No, he was not informed of that, no.

Q. Yet we see right on the video, which was played when you were, obviously you recall when you were testified in-chief, the one calling it the second video. And, you see Staff Sergeant Elliott explained that, well the laws recently changed, it's new to us as well, right?

A. That's correct.

Q. So, if it's new to the officers, right, it's reasonable to expect it's new to Mr. Brown, right?

A. Sorry, the law would be new to Mr. Brown?

Q. Right, if the officer's....

A. That's correct, yes, that's correct, yes.

Q. Okay. And, we know that Mr. Brown has had no chance to speak to the duty counsel lawyer about this new procedure, because he hasn't been told that he's going to be subject to this new procedure, right?

A. He was, he would have been notified via the answering service, that he was being charged with impaired care and control by drug.

Q. Right, but nobody could possibly [have] informed the duty counsel answering service that they were also had made a demand that he give a sample of his blood, because he hadn't been told yet, right?

A. That's correct, yes.

[Emphasis added]

[98] There was no evidence placed before me as to what was said to Mr. Brown before he consented to having the hospital take the blood samples, or what form of consent was given, other than P.C. Bandstra's evidence in cross-examination that Mr. Brown gave a "verbal consent" that was not recorded (See transcript of October 8, 2019 at page 113 lines 7 to 19). Apart from P.C. Bandstra's evidence I have no evidence as to whether the hospital required him to sign any medical consent forms or if it was just a consent given verbally to the hospital staff. There is no evidence that Mr. Brown was ever informed of the hospital's reluctance to take the blood samples, or that the doctor was threatened with being charged criminally if he gave any advice to Mr. Brown about the consent issue, before he was asked by the hospital to "consent" to the taking of the blood samples. There is no admissible evidence that he was told by anyone that he could refuse to provide his medical consent to the hospital (there is only hearsay evidence when St. Sgt. Elliott testified about the advice the doctor supposedly gave to Mr. Brown). He was never offered the opportunity to obtain legal advice about the consent issue.

Analysis of Section 8 Charter Issue

[99] Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search and seizure". It has long been established that seizures of bodily substances, such as the blood samples in this case are subject to s. 8 scrutiny.

[100] There is no evidence in this case of any R. v. Wills, [1992] O.J. No. 294 (O.C.A.) type of consent being obtained from Mr. Brown before he gave his medical consent to the hospital to draw his blood. In fact, he had been told earlier at the police station that if he did not provide a blood sample he would be criminally charged with refusal. When he testified, P.C. Bandstra said he was unfamiliar with the Wills case. The officer agreed that no written consent was obtained from Mr. Brown.

[101] In Wills, the Ontario Court of Appeal was dealing with a "consent" seizure of a breath sample. In reviewing the issue of consent, the Court addressed some very important principles as set out in paragraphs 43 and following:

43 There is no doubt that Mr. Wills agreed to the taking of the sample. The question is, was his consent an effective one or was it vitiated by non-disclosure or innocent misrepresentation of material facts?

44 Certain underlying values give definition to the concept of consent in the present context. Members of the community are encouraged to co-operate with the police. Co-operative policing will often be less intrusive and more effective than confrontational policing. Co-operation also manifests the joint commitment that the community and the police have to the effective enforcement of the laws of the community. Co-operation must, however, be distinguished from mere acquiescence in or compliance with a police request. True co-operation connotes a decision to allow the police to do something which they could not otherwise do. Acquiescence and compliance signal only a failure to object; they do not constitute consent.

46 The danger to constitutionally protected individual rights implicit in the equating of consent with acquiescence or compliance is self-evident and does not require detailed elaboration. When the police rely on the consent of an individual as their authority for taking something, care must be taken to ensure that the consent was real. Otherwise consent becomes a euphemism for failure to object or resist, and an inducement to the police to circumvent established limitations on their investigative powers by reliance on uninformed and sometimes situationally compelled acquiescence in or compliance with police requests: see Police Powers: Search and Seizure in Criminal Law Enforcement (Ottawa: Law Reform Commission of Canada Working Paper 30, 1983), at pp. 158-63.

48 When one consents to the police taking something that they otherwise have no right to take, one relinquishes one's right to be left alone by the state and removes the reasonableness barrier imposed by s. 8 of the Charter. The force of the consent given must be commensurate with the significant effect which it produces.

49 The Supreme Court of Canada has applied a stringent waiver test where the Crown contends that an accused has yielded a constitutional right in the course of a police investigation. According to that doctrine the onus is on the Crown to demonstrate that the accused decided to relinquish his or her constitutional right with full knowledge of the existence of the right and an appreciation of the consequence of waiving that right: R. v. Clarkson, [1986] 1 S.C.R. 383, 25 C.C.C. (3d) 207 at pp. 394-95 S.C.R., pp. 217-19 C.C.C.; R. v. Manninen, [1987] 1 S.C.R. 1233, 34 C.C.C. (3d) 385, at p. 1244 S.C.R., p. 393 C.C.C.; R. v. Turpin, supra, at pp. 1315-16 S.C.R., pp. 22-23 C.C.C.; R. v. Askov, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449, at pp. 1228-29 S.C.R., pp. 481-82 C.C.C.; R. v. Hebert, [1990] 2 S.C.R. 151, 57 C.C.C. (3d) 1, per McLachlin J. at pp. 183-84 S.C.R., pp. 40-41 C.C.C., per Sopinka J. at 203-04 S.C.R., pp. 16-18 C.C.C.; R. v. Smith, [1991] 1 S.C.R. 714, 63 C.C.C. (3d) 313, at pp. 724-30 S.C.R., pp. 320-25 C.C.C. None of these cases involved s. 8 of the Charter, although they did pertain to a number of different constitutional rights engaged during the criminal process, e.g., ss. 7, 7(b), 11(b), 11(f).

50 The high waiver standard established in these cases is predicated on the need to ensure the fair treatment of individuals who come in contact with the police throughout the criminal process. That process includes the trial and the investigative stage. In fact, it is probably more important to insist on a high waiver standard in the investigative stage where there is no neutral judicial arbiter or structured setting to control the process, and sometimes no counsel to advise the individual of his or her rights.

51 The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another. Knowledge of the various options and an appreciation of the potential consequences of the choice made are essential to the making of a valid and effective choice.

87 If the police rely exclusively on consent to justify a seizure, and if that consent is found to be invalid, then the reasonableness of the seizure must be addressed from the premise that the seizure was not authorized by law unless the prosecution can point to some other statutory or common law basis for the seizure.

[Emphasis added]

[102] In written submissions, Defence Counsel made the following submissions with respect to the taking of Mr. Brown's blood samples at the hospital and why this amounted to an unlawful seizure pursuant to s. 8 of the Charter:

30. Section 320.28(2)(b) [sic] of the Criminal Code of Canada allows a police officer with the required grounds to demand that a person provide blood samples to a qualified medical practitioner. In this case, the qualified medical practitioner refused to draw blood. Therefore, the Crown must rely on the consent allegedly given by the Applicant to the blood technician in order to have the results of the analyses of the blood given into evidence.

31. The Applicant submits that the blood technician was effectively acting as the agent for the police in taking the sample. The Court should evaluate the consent given in this case as if it was given by the Applicant to the police. Effectively, the taking of the blood sample amounted to a warrantless seizure of blood.

32. The Crown bears the onus in law to show that the police obtained a valid consent. The test is that in the Ontario Court of Appeal judgment in R. v. Wills.

33. In R. v. Wills, supra, the Court looked at five factors to determine whether a person has consented to what would otherwise be a warrantless seizure: (a) there was a consent, [express] or implied; (b) the giver of the consent had the authority to give the consent in question; (c) the consent was voluntary in the sense that that word is used in Goldman, supra, and was not the product of police oppression, coercion or external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; (d) the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; (e) the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and (f) the giver of the consent was aware of the consequences of giving the consent.

34. The Applicant submits that the consent in this case was not voluntary. The police had told him that, if he were to refuse to give his blood, he would be charged with refuse. He apparently consented to the technician taking his blood, but had also been charged with refuse if he did not give his blood.

35. The Applicant submits that the Crown cannot prove, on a balance of probabilities that the Applicant provided a valid consent. In fact, he was not able to refuse to give the sample. In a situation where he could not refuse to give the sample, it cannot be that he consented to give the sample. In the circumstances this amounted to an unlawful seizure under s. 8 of the Charter.

[103] In the Crown's written submissions, it is argued that the demand for blood pursuant to the new s. 254(3.1)(b) was lawful. The Crown argues that when the demand was read to Mr. Brown at the police station, he "consented". It is submitted that "the hospital's requirement that the applicant consent again while at the hospital, to having a sample of his blood taken did not invalidate the blood demand pursuant to s. 254(3.1) given at the police station". The hospital was unaware that the law had changed and refused to draw blood until the Applicant consented. The Crown submits that the hospital's decision to refuse to draw blood was an internal hospital decision not relevant to the validity of the original blood demand. As indicated elsewhere, the Defence does not challenge that P.C. Bandstra had the requisite grounds to make the demand. The Crown summarized the grounds which P.C. Bandstra had to make the lawful demand as follows:

27. The demand was lawful according to the newly enacted provisions of the Criminal Code:

• Mr. Morissette and another witness found the Applicant in his car in a live lane of traffic at 11:30 a.m.
• P.C. Bandstra arrested the Applicant at 11:53 a.m. after forming reasonable grounds to believe that he had the care or control of a motor vehicle while his ability to operate it was impaired by a drug
• The Applicant was provided his rights to counsel under s. 10 and indicated he was satisfied with his consultation with counsel before the blood was drawn
• The blood demand was only read when police determined there was no D.R.E. officer available
• P.C. Bandstra began reading the blood demand to the Applicant at 1:12:30 p.m.
• The demand included a caveat that the blood would only be drawn by a medical practitioner if it would not cause Mr. Brown's death or be detrimental to his health
• The blood demand was not made after the hospital had already drawn blood as occurred in R. v. Taylor, 2014 SCC 50, 2014 S.C.C. 50 at paragraph 12

[104] I have already reviewed in detail earlier in these reasons the transcript of what happened at the police station when the blood demand was made and concluded that Mr. Brown's cooperation amounted to acquiescence rather than consent. The same applies to the consent given at the hospital. As discussed in Wills, supra, at paragraph 44 "Acquiescence and compliance signal only a failure to object; they do not constitute consent."

[105] Pursuant to paragraph 87 in Wills, in assessing the reasonableness of the seizure of Mr. Brown's blood samples, I must consider that the police were not relying on his consent exclusively when seizing the blood. They were acting under the statutory authority of the Criminal Code section 254(3.1)(a), providing for the seizure of this type of evidence in drug impaired driving investigations.

[106] While I agree that the hospital's decision to refuse to draw blood did not alter the validity of the original blood demand, the analysis does not end there. By requiring Mr. Brown to give his medical consent to the taking of the blood samples, it imported a factor not contemplated by the Criminal Code. It is clear that the law preceding and following the amendments was that blood samples could only be taken if the medical experts were satisfied that it would not endanger Mr. Brown's life or health. There is no evidence that the hospital was concerned about this. The other qualification is that the demand must be for blood samples, "that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person's blood drug concentration". This latter requirement speaks only to the type of samples that are to be taken. I have no evidence from the doctor or qualified technician about why the hospital was refusing to take Mr. Brown's blood samples without his consent. Since the legislation was so new, it may have been out of concern for the hospital's liability, but I am not permitted to speculate as to the reasons why. What remains, however, is that Mr. Brown was now faced with a choice he did not have earlier. When first read the blood demand, he knew he would be charged if he refused. The hospital's position, imported a choice into a situation where one was not legally available under the Criminal Code. As indicated, P.C. Bandstra said he would have charged Mr. Brown with refusal if he had not given the hospital his consent to the taking of the blood. This made the situation legally complex, and one which required legal advice (which will be discussed thoroughly under the sub-heading below regarding further consultation with counsel).

[107] I accept the Defence position that once the doctor refused to take the blood samples at the hospital, the police were no longer acting solely under the statutory authority permitting them to demand blood samples from Mr. Brown. I accept that the blood technician became an agent of the police in the gathering of this evidence. That blood technician would not take the samples without Mr. Brown's consent, consent which is not required under the Criminal Code. The law of consent is thereby imported into the analysis.

[108] As correctly stated in paragraph 33 of the Defence submissions, the Court of Appeal in Wills set out the six criteria for the Crown to establish on a balance of probabilities that a person has consented to what would otherwise be an unauthorized search or seizure (see paragraph 69 of Wills). In this case, Mr. Brown gave his consent verbally to the blood technician and he clearly had the authority to give his consent. He knew the nature of to police conduct to which he was consenting, that is, the taking of his blood for a drug impaired driving charge. It would be reasonable to assume Mr. Brown would be aware that the potential consequences of giving the blood samples included that it could help the police prove the drug impaired driving offence.

[109] There are issues, however with the other two Wills factors in this case. The third factor requires the consent to be voluntary. I accept that Mr. Brown's consent was not the product of police oppression or coercion. It cannot be said, however, that it was not, "the product of…other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested". St. Sgt. Elliott clearly told Mr. Brown at the police station that if he did not comply with the blood demand that he would be charged with the criminal offence of refusal. This effectively removed any choice about whether to comply with the demand without being charged. Further, the fifth Wills factor requires that the person be informed of their right to refuse to consent. In this case there was never any point at which Mr. Brown was told he did not have to provide the blood samples if he did not wish to. Being told he could be charged with refusal if he didn't consent was the very opposite to being told he could refuse to consent. I also consider the fact that the consent was obtained without access to counsel for additional legal advice about whether to consent (which will be discussed in detail below). I find on these facts that the police did not obtain a valid consent from Darin Brown.

[110] In this case, therefore, I find that the seizure of the blood samples from Mr. Brown amounted to an unlawful warrantless seizure. I find that the Crown has not proven on a balance of probabilities that Darin Brown provided a valid consent to the taking of his blood. I find that the seizure of the blood samples in the circumstances of this case, therefore, to be unreasonable in spite of the original blood demand itself being lawful. I conclude that Darin Brown's s. 8 rights were breached by the taking of the blood samples.

Continuity of the Blood Samples, Evidence of Impairment at the Hospital and Release from the Police Station

[111] The continuity of the blood samples received from Darin Brown at the hospital was in issue until after Galiena Tse, the Toxicologist from the Centre of Forensic Sciences testified, so the trial included a fair bit evidence about this issue. Once Defence Counsel, Mr. Affleck, had the opportunity to speak with her, he conceded that there was no longer any issue about the continuity of the blood samples. Based on the evidence presented to me and this concession, I accept that there were no issues or problems with the continuity of the blood samples in this case. I will summarize the continuity evidence placed before me.

[112] P.C. Bandstra observed the blood being drawn into the appropriate vials. He never lost sight of the blood sample and had continuity of it. After the officer received it at 16:11 hours, arrangements were made for another officer to come and take carriage of the blood sample and then take it to the next step. A procedure had been put in place between St. Sgt. Elliott and P.C. Chmelowsky to take the blood sample. P.C. Chmelowsky received the blood from P.C. Bandstra at 16:22 hours and placed it into a cooler. P.C. Bandstra cannot remember if he kept the blood in a cooler or bag before that and cannot remember if he placed a police tag on the vial, but he saw P.C. Chmelowsky place the blood samples in the cooler. P.C. Bandstra does not know what tag or seal numbers were eventually put on the blood vials and he did not place any seals on himself.

[113] P.C. Andrew Chmelowsky #3252 testified that on June 25, 2018 he was directed by St. Sgt. Elliott to attend the Lakeridge Health Oshawa to take continuity of the blood samples received from Mr. Brown. He arrived there at 16:20 hours and received 4 sealed vials of blood in a transparent bag from P.C. Bandstra. He did not note if there were seal numbers on the vials and if there were any, he did not make note of those numbers. P.C. Chmelowsky sealed the bag the vials were in with seal number A237619 and placed it in a foam cooler. He then contacted Det. Cst. Bennett of the Forensic Identification Services to ensure he handled the blood samples correctly. After attending the Whitby station to complete the required submissions forms, he was then directed to attend the Forensic Identification Services Unit in Bowmanville and at 19:57 hours he turned the blood samples over directly to a member of that unit, Det. Cst. Mark Janovitz #3434. P.C. Chmelowsky was present when another officer entered the items into the electronic property log. Forensic Identification Services would enter the property number for these items.

[114] Det. Cst. Janovitz confirmed that he received the vials of blood from P.C. Chmelowsky on June 25, 2018 at 19:57 hours. The evidence was sealed when he received it. All evidence received by forensic officers must be sealed. After receiving the evidence, at 20:05 hours he left the Forensic Identification Services Unit to transport the blood samples to the C.F.S. along with other exhibits he was taking there for other cases. He testified that a property tag number is allocated automatically by their computer system when an item of property is entered into the D.R.P.S. property database. In this case the property tag number was 18130722A-1. This number represents the year, the incident number for the case and the property item number. While the property tag number never changes for the entire time the item is property with the D.R.P.S. until the property is returned, disposed of or destroyed. A seal number, however, would change as seals are broken for examination or analysis of the exhibits or for them to be photographed and then new seals are placed on those exhibits and the numbers noted. Since he did not have any interaction with the seal on the bag (he did not break it), Det. Cst. Janovitz did not make a note of it in this case. Once he arrived at the C.F.S., Det. Cst. Janovitz utilized their locker system for receiving items, and placed the blood samples into locker R1, which is a refrigerated locker. He then turned the latch to lock it. Once locked it cannot be opened from the officer's side, it can only be opened by personnel from the C.F.S. on the opposite side of the locker, in a room which the police officers do not have access to.

[115] Exhibit 6 is the C.F.S. Case Submission Form, which was filed on consent. It lists the four vials of blood seized from Darin Brown on June 25, 2018. I note that the incident number is 2018-130733 which is different than the last two digits provided by Det. Cst. Janovitz (the property tag number referred to 130722).

[116] With respect to any statements made by Mr. Brown following his conversation with duty counsel, P.C. Bandstra testified that the only officers who had any direct interactions with Darin Brown were St. Sgt. Elliott and himself. P.C. Bandstra said that he never threatened Mr. Brown or promised him anything or offered him any inducements. He never saw St. Sgt. Elliott do that to Mr. Brown either. P.C. Bandstra could not remember if Mr. Brown was ever given the bottle of water that St. Sgt. Elliott said would be provided during the parade video. The Crown is seeking to rely on only those statements made to the police after he consulted with duty counsel, however I note that there was no admission of drug consumption. The Crown relies on some of the statements, however, as relevant to proof of impairment by a drug, reflecting his condition at the time he made those comments.

[117] P.C. Bandstra provided additional evidence regarding the level of impairment displayed while Mr. Brown was at the hospital. The officer testified that during the hours that Mr. Brown was waiting in the chair for the blood sample to be taken, that he continued to have difficulty with the light and keeping himself awake. His head would bob and he's wake himself up. He would then look around. At one point, Mr. Brown said, "I'm just pretending to be asleep. I do this a lot when I close my eyes and that, and people think that I'm sleeping, but really I'm listening to what they are saying". At one point, Mr. Brown said, "Where are we?" and when P.C. Bandstra informed him that they were at Lakeridge Health Oshawa Mr. Brown responded, "Oh really" as in he wasn't sure where he was. (See transcript of October 8, 2019 at page 95 line 25 to page 96 line 22).

[118] After the blood samples were received from Mr. Brown at the hospital, they were given by P.C. Bandstra to P.C. Chmelowsky as described elsewhere. Once that was completed, at 16:28 hours P.C. Bandstra escorted Darin Brown back to the police cruiser and transported him back to 18 Division in Whitby to complete the remainder of the paperwork. They arrived there at approximately 16:41 hours. P.C. Bandstra observed that Mr. Brown continued to have a difficult time staying awake, stating, "I'm not tired, I'm okay, thanks." (See transcript of October 8, 2019 at page 100 lines 19 to 22).

[119] Upon their return, Mr. Brown was placed into a cell at 18 Division and then at 18:03 hours he was released on a Promise to Appear by Acting Staff Sergeant Thomson. Mr. Brown was asleep at the time he was going to be released so P.C. Bandstra had to wake him up. The officer had noted at some time earlier that Mr. Brown was doing a little bit better and improving slightly in his impairment. By the time he escorted him to the front door of the police station P.C. Bandstra observed that "he still had elements of impairment, difficult time balancing, and just slight disorientation" and as he walked away from the station, he had a "slight sway in his step". As he exited the police station he asked, "so what exactly am I being charged for?", in spite of having been told repeatedly before that. So, the officer said he explained the entire situation again in detail. (See transcript of October 8, 2019 at page 102 lines 1 to 28). I note that the officer did not provide any detail in his evidence of specifically what Mr. Brown was told.

The Evidence of the Toxicologist, Ms. Galiena Tse

[120] Galiena Tse is a Forensic Scientist working as a Toxicologist at the Centre of Forensic Sciences. She has been a Forensic Scientist since 2008. Prior to that she was a Forensic Technologist analyzing samples in the laboratory which she had done commencing in 2002. No issue was taken with her qualifications as set out in her Curriculum Vitae which is attached to her report, both of which are filed as Exhibit 4. Exhibit 6, which is the Centre of Forensic Sciences' Case Submission Form for the hospital blood samples seized was filed on consent.

[121] Ms. Tse analyzed and assigned further analyses on two of the four blood samples received from Darin Brown to test for the presence of drugs including alcohol. She did not find any alcohol in the blood. She did, however, find other drugs to be present. Drug testing on two of the hospital blood samples found the following blood drug concentrations to be present or not detected as listed in Exhibit 4:

• Methamphetamine 0.20 mg/L
• Amphetamine 0.06 mg/L
• Methadone 0.20 mg/L
• Lorazepam 27ng/mL
• Ethanol [Alcohol] not detected
• Cocaine not detected
• Benzoylecgonine not detected
• Tetrahydrocannabinol not detected
• Carboxy-tetrahydrocannabinol not detected
• Gamma-hydroxybutyrate not detected

[122] Ms. Tse explained the measurements. For example, with respect to the Methamphetamine, it was found at a concentration of 0.20 milligrams per litre of blood. The measurement for the Lorazepam was a concentration of 27 nanograms per millilitre of blood. Ms. Tse explained that the concentrations that these drugs were detected at reflect the levels that they were at when the blood samples were taken from Mr. Brown in the hospital. P.C. Bandstra testified that this took place at 16:03 hours on the date of the arrest, approximately 4.5 hours after Mr. Brown came into contact with the police.

[123] With respect to the Methamphetamine, Ms. Tse testified that it is a central nervous system stimulant drug that is used recreationally. It is not available as a prescription in Canada, so she described it as "a drug of abuse". It was her expert opinion that the concentration detected in this case is reflective of recreational use. She described that the effects of Methamphetamine in general may include euphoria, excitation and increased risk-taking behaviour. She advised that the Amphetamine could be a metabolite of the Methamphetamine. Amphetamine is a drug that is available by prescription to treat Attention Deficit Hyperactivity Disorder as well as some sleep conditions. It may also, however, be a by-product or metabolite of the Methamphetamine as the body breaks down or metabolizes the Methamphetamine. Ms. Tse expressed the opinion that while it is possible that the Amphetamine here was due to a prescription, it is more likely a metabolite due to the use of Methamphetamine, since in this case there is a high concentration of Methamphetamine compared to the low concentration of Amphetamine.

[124] When asked about what the drug concentrations would have been 4.5 hours earlier, Ms. Tse testified that provided there was no additional drug consumption between the time of the incident and the time the blood was collected that it is likely they would have been higher. She added, however, that it is more difficult to do a readback to determine what the concentration would have been earlier for drugs than for alcohol. This is because drug elimination is more unique with a lot more variability in the population. Ms. Tse also testified that these drugs would impair someone compared to someone in a drug-free state.

[125] Ms. Tse explained that Methamphetamine and Amphetamine are central nervous system stimulants with slightly different effects than Methadone and Lorazepam, which generally have a more sedating effect on an individual. Someone who takes a central nervous system stimulant will initially feel a lot of energy and be euphoric. This will be short-lasting, however, and eventually when these effects subside or wear off, they will undergo a crash phase. At that point the person will feel extreme sedation or exhaustion, which is as a result of the drugs' effects subsiding. If combined with other central nervous system depressants, such as Lorazepam, the effect is additive so the person will feel more sedation.

[126] With respect to Methadone, Ms. Tse explained that it is a drug prescribed for the treatment of opioid addiction or to deal with chronic pain. If someone is taking it as prescribed and the patient is well-managed at that dose, they could become tolerant to the sedating effects of Methadone. If the person missed a dose ant took more than what they are used to, or their prescription has been changed they might not be tolerant to that amount of Methadone. Ms. Tse could not comment on whether Mr. Brown was on a proper dose of Methadone or tolerant to it. She testified in cross-examination that she had no information to assist with whether or not Mr. Brown had any sort of tolerance to any of the drugs found in his blood.

[127] Lorazepam is a drug that is Benzodiazepine, which is a central nervous system depressant, primarily used for the treatment of anxiety. The concentration detected in Mr. Brown's blood sample is within the therapeutic range.

[128] When asked if the effects of the two stimulants and two depressants would cancel each other out, Ms. Tse said they would not. She explained that the effects of the drugs would be very dependant on when the drugs were taken and how much was consumed.

[129] When asked if Darin Brown's ability to drive would have been impaired by the drugs found in his system, even if he had a high tolerance to them, Ms. Tse answered as follows (see transcript of October 9, 2019 at page 58 line 23 to page 59 line 9):

A. Well, it is possible for someone to gain a tolerance to methadone, if they're on a strict dosing regimen and they're following it and they're not missing any doses, it's possible for an individual to develop tolerance to the sedating effects and studies have found that it may not necessarily impact their ability to operate a motor vehicle. However, when you combine that with other drugs, that individual should also be tolerant to the Lorazepam at that particular concentration in conjunction with the methadone as well as the methamphetamine and the amphetamine, so that would mean that that individual would have to routinely have this mixture at amount of drugs in their system on a routine basis for them to be tolerant.

[130] Ms. Tse testified that she had been sent a brief case synopsis and was asked if she could make any additional comments from that about whether Mr. Brown was impaired when the police came upon him on the road. Her evidence was as follows (see transcript of examination-in-chief October 9, 2019 at page 59 lines 15 to 25; and cross-examination at page 61 line 18 to page 62 line 5):

[In Examination-in-Chief]

Q. So, based on the synopsis that you received, can you make any additional comments as to whether or not Mr. Brown was impaired when police came across him on the road?

A. Well, if someone is unrousable, it might possibly – like, it's likely that it could be drug induced … The concentrations and the detection of the drugs that we found – it is consistent with the synopsis, but at the same time I can't discount other reasons why someone may not be rousable.

[In Cross-Examination]

Q. And I think your opinion was that if the person is roused – had to be roused, it's likely drug induced, but you can't discount other causes, is that – that's fair?

A. Yes. So, my – sorry, my synopsis – if I can just review it .... It just says that the individual has been passed out in the middle of the roadway. Essentially, that's about all that's given to me. So, passed out can mean a variety of things ...

Q. Right.

A. ... so, my opinion is limited. Based upon just the review of the results, it is possible that an individual could be undergoing a crash phase of methamphetamine use and with the presence of the methadone and the Lorazepam in their system, it might make them more difficult to rouse or for them to be awake.

Q. Is it possible for a person to be not in the crash phase of methamphetamine, but also be so tired that they're just passed out due to effects of just exhaustion, not to effects of the combination of drugs that you found?

A. That's possible, yes.

[Emphasis added]

[131] Apart from Mr. Brown being "unrousable" and passed out in the middle of the roadway, there was no other evidence placed before me as to whether the synopsis disclosed any other symptoms to Ms. Tse. She was never asked by the Crown in examination-in-chief to comment on any of Darin Brown's other symptoms as described by P.C. Bandstra which he said he observed at the roadside, police station and in the hospital. She was not asked to express any opinion about whether Darin Brown's other behaviour claimed to be observed by the police was consistent with the consumption of Methamphetamine or any other drug.

[132] It is very important to note that the Crown also specifically failed to asked the Toxicologist, Ms. Tse, anything at all about what the significance is of pinpoint pupils in a case of drug impaired driving. Neither did he ask her what the significance is of Mr. Brown's eyes continuing to shift back and forth rapidly. These questions could easily have been asked. There was no Drug Recognition Evaluator D.R.E. officer in this case to provide this type of evidence. I have heard substantial evidence from a toxicologist and a D.R.E. officer in another case that these type of rapid eye movements [such as nystagmus] and pinpoint pupils may indicate impairment by the consumption of drugs such as narcotic analgesics and central nervous system depressants: see R. v. Imrie [2017] O.J. No. 3014, at paragraphs 140 to 149, 183, 189-196 and 216 to 224. In Darin Brown's case, however, I cannot take judicial notice of this, since that sort of evidence was never placed before me. So, while I have considered those observations of Mr. Brown's eyes as relevant to the reasonableness of P.C. Bandstra's grounds to arrest, I cannot rely on them for proof of impairment by a drug.

[133] In cross-examination Ms. Tse agreed that a person could develop a tolerance to Methadone, Lorazepam and Amphetamine, but explained that it is more complicated with Methamphetamine (see transcript of October 9, 2019 page 60 line 12 to page 61 line 12):

Q. Okay. And what about methamphetamine?

A. Well, methamphetamine, it's a little bit more complicated in that it's a powerful central nervous system stimulant...

Q. Right.

A. ...and what happens is that the individual after taking methamphetamine can feel energized and with the energy, there comes the feeling of euphoria and that can lead to increased risk-taking with respect to the operation of a motor vehicle. So, that might mean that they're going to be more likely to speed or make an unsafe lane change, for example, because of the effect of the methamphetamine has on their system. As a stimulant effect wears off though and how long that individual is going to stay in that stimulant phase, is going to be dependent on how much methamphetamine they're taking...

Q. Right.

A. ...and how frequently they're taking it. Because if you take repeated doses of the methamphetamine, you can maintain your stimulant effects. But as you get higher, so-to-speak, so will the – the depressant effects or the crash phase that will follow after the methamphetamine...

A. So, while you can become tolerant to some of the effects of the methamphetamine, ultimately that individual I would except to undergo a crash phase, eventually, where they would be – they would succumb to the exhaustion...and such.

[134] Ms. Tse agreed with the suggestion put to her in cross-examination that the use of Standard Field Sobriety Tests might shed better light on whether or not drugs were involved when a person is found in this state and provide a lot of information about whether an individual is impaired by drugs or alcohol. She added that bringing an individual to a hospital to be evaluated by medical personnel can also provide information. It should be noted that the Crown called no evidence from any hospital personnel about Mr. Brown's condition when they dealt with him. While this type of evidence is not required, it might have assisted the Crown's case. Ms. Tse explained that for drugs it is more difficult and complex than alcohol to assess a person's impairment because it depends on tolerance and when the last doses were administered. She agreed that with the concentrations of drugs detected in Mr. Brown's blood, and the information in the synopsis, she could not rule out that Mr. Brown could be displaying that behaviour simply because of exhaustion.

[135] Exhibit 5 was filed on consent after Ms. Tse testified. It is a Health Canada Certificate of Analyst indicating that the drugs found in the small purse seized from Mr. Brown's vehicle were not Cocaine, but rather, "Schedule 1 18. Methamphetamine (N, a-dimethylbenzeneethanamine)". At the beginning of the trial the Defence conceded that continuity of the drugs seized from the vehicle was not in issue.

[136] For the Reasons articulated below, I am excluding the evidence of Mr. Brown's blood samples and their analysis pursuant to s. 24(2) of the Charter. That means there is no direct evidence that Mr. Brown had any drugs in his system at the time that the police interacted with him. While this is not required in law to prove drug impaired driving, it is one factor to consider in the circumstantial case. There is still circumstantial evidence, however, that Mr. Brown had access to Methamphetamine within arm's reach in his car. In considering whether Mr. Brown was impaired due to consumption of a drug or drugs, I can still rely on the evidence of Ms. Tse with respect to the effects of the consumption of a drug such as Methamphetamine. I cannot, however, rely on her evidence about the combined effect of consuming Methamphetamine with the other drugs found in the blood samples, apart from general descriptions of the effects of central nervous system stimulants. I note that the Crown did not ask any questions of Ms. Tse about whether the consumption of Methamphetamine alone would have caused Mr. Brown's ability to operate a motor vehicle to be impaired.

The Right to Further Consultation with Counsel

[137] As indicated earlier, an important focused issue with respect to Mr. Brown's s.10(b) Right to Counsel is whether he had a right to further consultation with duty counsel once the blood demand was made at the police station, and again at the hospital when he was asked to give his medical consent when providing a blood sample.

[138] The Supreme Court of Canada's decision in R. v. Sinclair, 2010 SCC 35, [2010] S.C. J. No. 35 (S.C.C.) addresses the issue of when the police must provide a person under arrest or detention with a further opportunity to consult a lawyer during the course of an interrogation when they have already consulted one at the outset of his or her detention. In that case the s. 10(b) informational and implementational rights had been fully complied with and the accused, Mr. Sinclair, had consulted his lawyer of choice twice. He appeared to be fully aware of his right to remain silent during the police interrogation. The Court concluded that there were no changed circumstances requiring renewed consultation with a lawyer so there was no s. 10(b) breach and the statements made by Sinclair were properly admissible. The Reasons for the majority were delivered by Chief Justice McLachlan and Justice Charron. In deciding this issue, the Court gave guidance about the circumstances in which a further consultation with counsel should be afforded at paragraphs 1 to 3:

1 This appeal and its companion cases are about the nature and limits of the right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. The issue is whether a detainee who has been properly accorded his or her s. 10(b) rights at the outset of the detention has the constitutional right to further consultations with counsel during the course of the interrogation.

2 We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.

3 In this case, the test for a second legal consultation is not met. Before the interview took place, Mr. Sinclair was advised of his right to counsel and twice spoke with counsel of his choice. At the beginning of the interview, he said to the officer that he had been told about some of the devices the police might use to obtain information from him, including lying to him, and that he had been advised not to discuss anything important with anyone. Later in the course of the interview, the police repeatedly confirmed that it was his choice whether he wished to speak with them or not. There were no changed circumstances requiring renewed consultation with a lawyer. We therefore conclude that breach of the right to counsel under s. 10(b) of the Charter has not been established, and would dismiss the appeal.

[Emphasis added]

[139] The Supreme Court in Sinclair considered the very important purposes of s. 10(b) in paragraphs 23 to 32:

B. The Purpose of Section 10(b) of the Charter

23 We conclude that the language of s. 10(b) does not resolve the issue before us. A deeper purposive analysis is required.

24 The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not.

25 The purpose of s. 10(b) of the Charter and its relationship with the right to silence under s. 7 were stated by McLachlin J. (as she then was) in R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77. These rights combine to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed:

Section 7 confers on the detained person the right to choose whether to speak to the authorities or to remain silent. Section 10(b) requires that he be advised of his right to consult counsel and permitted to do so without delay.

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. ... Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

The guarantee of the right to consult counsel confirms that the essence of the right is the accused's freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel. [Emphasis added.]

26 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": R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee's decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice.

27 Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee's rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55.

28 Once informed of his right to consult counsel, the detainee may waive the right, deciding not to avail himself of the opportunity to consult that has been provided. The right to choose whether to cooperate with the police, the basic purpose of s. 10(b) has been respected in the event of a valid waiver, and there is consequently no breach.

29 The s. 10(b) right to consult and retain counsel and to be advised of that right supports the broader s. 7 right to silence. However, it is not to be confused with the right to silence. An important purpose of legal advice is to inform the accused about his right to choose whether to cooperate with the police investigation and how to exercise it. Section 10(b) is a specific right directed at one aspect of protecting the right to silence -- the opportunity to secure legal assistance. A given case may raise both s. 10(b) and s. 7 issues. Where it is alleged under s. 7 and the confessions rule that a statement is involuntary because of denial of the right to consult counsel, the factual underpinning of the two inquiries may overlap: Singh. Yet they remain distinct inquiries. The fact that the police complied with s. 10(b) does not mean that a statement is voluntary under the confessions rule. Conversely, the fact that a statement is made voluntarily does not rule out breach of s. 10(b). It follows that Singh, which was concerned with the s. 7 right to silence, does not resolve the issue on this appeal.

30 Mr. Sinclair argues that the purpose of s. 10(b) is broader than this. In his view, accepted by our colleagues LeBel and Fish JJ., the purpose of s. 10(b) is to advise the detainee how to deal with police questions. The detainee, it is argued, is in the power of the police. The purpose of s. 10(b) is to restore a power-balance between the detainee and the police in the coercive atmosphere of the police investigation. On this view, the purpose of the right is not so much informational as protective.

31 We cannot accept this view of the purpose of s. 10(b). As will be discussed more fully below, this view of s. 10(b) goes against 25 years of jurisprudence defining s. 10(b) in terms of the right to consult counsel to obtain information and advice immediately upon detention, but not as providing ongoing legal assistance during the course of the interview that follows, regardless of the circumstances.

32 We conclude that in the context of a custodial interrogation, the purpose of s. 10(b) is to support the detainee's right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult counsel.

[Emphasis added]

[140] Further, the decision in Sinclair addresses the issue of the right to re-consult Counsel, under sub-heading D, commencing at paragraph 43, where the court considers circumstances in which there has been "a material change" in the detainee's situation after the initial consultation with a lawyer.

43 The authorities suggest that normally, s. 10(b) affords the detainee a single consultation with a lawyer. However, they also recognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, as discussed more fully below, generally involve a material change in the detainee's situation after the initial consultation.

46 This Court has not definitively pronounced itself on the matter, although it has recognized the need for a second opportunity to consult counsel in situations where changed circumstances make this necessary: see Evans; R. v. Burlingham, [1995] 2 S.C.R. 206; Black; R. v. Prosper, [1994] 3 S.C.R. 236. We now turn to these cases.

47 Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.

48 The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate.

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, 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.

1. New Procedures Involving the Detainee

50 The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R v. Ross, [1989] 1 S.C.R. 3.

2. Change in Jeopardy

51 The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation. See Evans and Black.

3. Reason to Question the Detainee's Understanding of his Section 10(b) Right

52 If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10(b) is fulfilled: Prosper. More broadly, this may be taken to suggest that circumstances that indicate that the detainee may not have understood the initial s. 10(b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer. Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, it has been found necessary to give the detainee a further right to consult counsel. See Burlingham.

(c) The General Principle Emerging from the Cases

53 The general principle underlying the cases discussed above is this: where a detainee has already retained legal advice, the implementational duty on the police under s. 10(b) includes an obligation to provide the detainee with a reasonable opportunity to consult counsel again where a change of circumstances makes this necessary to fulfill the purpose of s. 10(b) of the Charter of providing the detainee with legal advice on his choice of whether to cooperate with the police investigation or decline to do so.

54 The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation.

55 The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

[Emphasis added]

[141] In R. v. Taylor, 2014 SCC 50, 2014 S.C.J. 50 (S.C.C.), the Supreme Court of Canada found that there had been breaches of the s. 10(b) right to counsel and excluded evidence of blood samples in a case involving alcohol based Impaired Causing Bodily Harm. Although the accused had requested to speak to a lawyer, the police never made any efforts to facilitate access to counsel at the hospital. The Court found a breach of the duty to facilitate the request to speak to counsel without delay. That case is different from Mr. Brown's case, because Mr. Brown had access to Duty Counsel at the police station before being taken to the hospital for blood samples to be collected. In Taylor, blood samples had been taken for hospital purposes and then a blood demand was made by the police and additional blood samples were collected (the Crown conceded a breach with respect to the latter samples). The police later obtained a warrant for the hospital blood samples. In addressing these issues, the Supreme Court reviews the purpose of the right to counsel:

21 The purpose of the s. 10(b) right 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": Manninen, at pp. 1242-43. The right to retain and instruct counsel is also "meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination": R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy "is able to make a choice to speak to the police investigators that is both free and informed": R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25.

[Emphasis added]

[142] It is very clear from a reading of both Sinclair and Taylor, that a very important aspect of the s. 10(b) right to counsel is to allow a detainee to decide whether to cooperate with the police or not. The police are to refrain from gathering or eliciting evidence from a detainee until he has had a reasonable opportunity to consult a lawyer: see R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192, citing R. v. Manninen, [1987] 1 S.C.R. 1233 at pp. 1241-42. In this case, Darin Brown, should have had the opportunity to speak with a lawyer to obtain advice about whether to consent to giving his blood at the hospital. By consenting to the taking of his blood, Mr. Brown was agreeing to the gathering of evidence which could incriminate him on the drug impaired driving charge.

[143] R. v. Budarick, [2016] O.J. No. 3167 (Ont.S.C.) is a summary conviction appeal which dealt with the right to further consultation with counsel in the context of an alcohol impaired driving case involving a blood sample. Justice Woollcombe found that in the circumstances of that case the police did not have to provide Mr. Budarick with a second opportunity to consult with counsel after the blood demand was made.

[144] At a roadside stop for speeding, Mr. Budarick showed significant symptoms of being impaired by alcohol and he was arrested for impaired driving and a breath demand was made. When given his rights to counsel he requested to speak to duty counsel. While he was being searched, he complained of chest pains so the police called an ambulance. While waiting for an ambulance he was having difficulty breathing and was gasping for air. He exhibited several symptoms of being in medical distress so he was taken by ambulance to a hospital where he was seen by nurses and a doctor. His condition worsened at the hospital. A Qualified Breath Technician set up the Intoxilyzer while waiting for a call back from duty counsel who had been informed that they were at hospital in an emergency department. When duty counsel returned the call, the officer informed duty counsel that Mr. Budarick was under arrest for impaired driving and that a breath demand had been made. Given the medical symptoms that Mr. Budarick was exhibiting, the Qualified Breath Technician had concerns that he would not be able to provide a suitable breath sample. While Mr. Budarick was on the phone with duty counsel a decision was made to make a blood demand. One minute after the call with duty counsel was completed, a blood demand was made to Mr. Budarick. Since the officer did not believe that his situation or jeopardy had changed, she did not provide him with another opportunity to consult counsel after the blood demand. She did not think of telling duty counsel of her plan to make a blood demand even though Mr. Budarick was still on the phone consulting duty counsel. When explaining to Mr. Budarick why she was demanding a blood sample instead of a breath sample, Mr. Budarick said he was consenting to his blood being drawn but did not consent to the police seizing the blood that had already been taken by the hospital. Blood samples were then taken.

[145] One of the issues on the Budarick appeal is not relevant to this case, that is, whether the officer had the proper grounds to make a blood demand. The Court upheld the trial judge's findings that the officer did, and dismissed that ground of appeal. The analysis of the issue that is relevant to Mr. Brown's case is whether the police should have offered Mr. Budarick a further opportunity to consult with counsel after making the blood demand (see paragraphs 66 to 90 of Budarick). The Court upheld the trial judge's decision that the progress of the impaired driving investigation from a breath testing procedure to a demand for a blood sample was not the sort of non-routine procedure described in Sinclair, supra, which would require Mr. Budarick to be given a further opportunity to consult with counsel. Applying Sinclair, supra, the Court held that the blood demand was not the sort of new development which meant that the initial legal advice from duty counsel was no longer sufficient or correct, and therefore the police did not have to provide Mr. Budarick with a second opportunity to consult with counsel after they made the blood demand. In coming to this conclusion, the Court considered the following factors in Mr. Budarick's case:

85 Mr. Budarick was not an average person detained for impaired driving. He complained of chest pains and displayed real difficulties in breathing and speaking. He was gasping for air. He was taken to the closest hospital by ambulance and was treated in the emergency unit.

86 By the time he spoke with counsel, Mr. Budarick had been in the emergency unit for over an hour and continued to exhibit these symptoms. Duty counsel was told that he was in hospital and that he was displaying chest pains. One must presume that Mr. Budarick raised his physical concerns with duty counsel during their conversation between 11:44 and 12:02. In my view, a competent counsel would have explained to Mr. Budarick the nature of the breath demand that had been made, the consequences of a refusal to provide a breath sample and the possibility of the police, in these circumstances, deciding to make a blood demand.

87 While the appellant submits that it is speculative to assume that duty counsel's advice covered this area, like the trial judge, I think that any competent counsel in this case would have covered the blood demand possibility in legal advice provided to Mr. Budarick. Like in Fogarty, there no evidence was adduced to suggest that the advice Mr. Budarick received from duty counsel was anything less than competent.

88 In the circumstances in this case, I agree with the trial judge's conclusion that the blood demand does not fall into the category on non-routine procedures discussed in Sinclair. Effectively, the blood demand was a continuation of the routine that would be expected to follow a breath demand, when the circumstances are such that, because of a medical condition, the detainee cannot be expected to provide a suitable breath sample.

89 Furthermore, I am mindful of the need to consider the appellant's argument in light of the purposes of s. 10(b) as described in Sinclair. To use the language of that case, I do not think that the blood demand, in this context, amounted to such a change in circumstances or new development that the initial advice from duty counsel was no longer sufficient or correct. There is no evidence to support this position and all of the circumstances do not lead me to view the blood demand as such here.

90 I must emphasize that there would have been nothing wrong with the police providing Mr. Budarick with a further opportunity to consult with counsel. And, I can certainly imagine circumstances in which they would be required to do so. But, on the evidence before me, there is nothing about the making of the blood demand in this context that so changed the appellant's situation that a further opportunity to consult with counsel was required.

[Emphasis added]

[146] The facts in Budarick, are distinguishable in some respects from the situation that Darin Brown found himself in. First of all, it was important to that decision that Mr. Budarick was already in the hospital when he spoke to duty counsel and was experiencing medical distress to the point that the Court found it reasonable to anticipate he might be required to provide a blood sample. It would be expected that the legal advice provided would include a discussion about the breath demand, the consequences of refusing, and the possibility of a blood demand. The blood demand was seen as a continuation of the routine that would be expected to follow in this type of investigation. The police had already made a breath demand before the accused spoke to Duty Counsel. The legislation providing for these steps progressing from a breath sample to a blood sample where the medical circumstances required it in an alcohol impaired driving case had been in place for some time and the law well established.

[147] After I had already made my Charter decisions in Mr. Brown's case and advised the parties of the result on January 21, 2020, the O.C.A. addressed the issue of a person's s. 10(b) right to further consultation with Counsel in R. v. Tahmasebi, [2020] O.J. No. 333 (O.C.A.) on January 29, 2020. Since this case has some similarities to Mr. Brown's case, it is important to review it in detail. For the reasons indicated below, there are issues and facts in Darin Brown's case which I conclude are distinguishable from the Tahmasebi case.

[148] In Tahmasebi, the Appellant was convicted by Justice Bourque of impaired driving causing bodily harm and refusal to comply with a demand for a urine sample. On appeal, one of the grounds which he argued was that his s. 10(b) rights were violated when he was denied the opportunity to re-consult with a lawyer. Subsequent to his arrest for dangerous driving and impaired driving causing bodily harm he had consulted with duty counsel. Following that, the police made demands for a drug evaluation and then a urine sample. It was argued that following those demands he should have been afforded another opportunity to consult a lawyer. It is important to examine the facts in that case for purposes of comparison to the case of Darin Brown before me. The factual background is set out in paragraphs 5 to 11 of Tahmasebi:

5 On April 19, 2016, the appellant drove his car onto a stranger's driveway, stopped there, and remained in the car. The homeowner called the police. Two officers attended the scene, one shortly after the other - P.C. Finley and P.C. Paolucci.

6 After P.C. Finley knocked on the driver side window of the appellant's car several times, the appellant rolled it down. He appeared to be confused and drowsy. P.C. Finley asked the appellant where he was going; he answered that he lived close by and was just taking a nap. P.C. Finley returned to his cruiser, which was stopped behind the appellant's car, intending to turn on its video camera to do an impaired driving investigation. The appellant's car rolled backwards while P.C. Finley was behind it, pinning him against his cruiser and injuring him.

7 The appellant was arrested on the scene and charged with dangerous driving causing bodily harm. He was placed in the back of a police cruiser and read his rights, including his right to counsel under s. 10(b) of the Charter. At the time, as recorded on the cruiser's in-car camera, the appellant said he understood his rights, asked to speak to a lawyer, and explained in his own words the meaning of the caution he had received.

8 At the police station, the appellant told the Staff Sergeant that he was taking an opioid analgesic. The appellant was charged with impaired driving causing bodily harm and re-read his rights to counsel. P.C. Paolucci then called duty counsel and told him the appellant faced dangerous driving and impaired driving charges. The appellant spoke to duty counsel for approximately 8 minutes.

9 A police drug recognition expert ("DRE Officer") spoke to the appellant, made a drug evaluation demand (the "DRE demand"), and asked the appellant if he understood it. The appellant responded "[y]es, totally".

10 The DRE Officer asked the appellant if he had spoken to counsel; when the appellant said no, the DRE Officer said he had observed the appellant on the phone speaking to duty counsel. The appellant responded "[o]h, that was a lawyer?" and then confirmed speaking to him. The DRE Officer then proceeded to conduct the drug evaluation.

11 After the DRE Officer determined that the appellant's ability to drive was impaired by drugs, he demanded that the appellant provide a urine sample. The DRE Officer explained the demand to the appellant and warned him that failure to provide a urine sample would result in another charge. The appellant asked to speak to a lawyer again, but the DRE Officer responded that the appellant had already spoken to a lawyer, who had been advised that the appellant was being charged with impaired driving, and he was not required to provide him with another consultation. The appellant ultimately refused to comply with the urine sample demand. He was charged with refusal to provide a urine sample when he knew or ought to have known that his operation of a motor vehicle caused an accident that resulted in bodily harm to another person.

[149] The issue on appeal was whether the D.R.E. demand and/or the urine sample demand triggered the right to re-consult counsel. The Court of Appeal in Tahmasebi, reviews the law as set out in Sinclair, supra, with respect to when a s. 10(b) right to a second consultation with counsel arises at paragraphs 19 to 22:

19 Section 10(b) of the Charter states that upon arrest or detention, everyone has the right to "retain and instruct counsel without delay and to be informed of that right". Its purpose is "to support the detainee's right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult counsel": R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 32.

20 While "normally, s. 10(b) affords the detainee a single consultation with a lawyer...in some circumstances, a further opportunity to consult a lawyer may be constitutionally required": at para. 43. A request to re-consult with counsel is not in itself sufficient. "What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not": at para. 65.

21 In Sinclair, the majority described three situations in which a second consultation with counsel would be constitutionally required. The first is where, after the initial consultation, non-routine procedures are proposed by the police (such as participating in a line-up or submitting to a polygraph) that do not generally fall within the expectation of the advising lawyer at the time of the initial consultation: at para. 50. The second is where, after an initial consultation "tailored to the situation as the detainee and his lawyer then understand it" based on what they were told as to the reasons for the detention, "the investigation takes a new and more serious turn" making the advice inadequate in light of "the actual situation, or jeopardy, the detainee faces": at para. 51. The third is where the circumstances indicate that the detainee did not understand his right to counsel, or if police undermined the legal advice received by the detainee "distorting or nullifying it": at para. 52. In each such situation a further opportunity to consult with counsel is necessary to fulfill the purpose of s. 10(b): at para. 49.

22 As pointed out in Sinclair, these three situations do not exhaust the categories of circumstances in which a right to re-consult may arise. Additional categories may be developed where a change in circumstances makes a second consultation necessary to ensure that the purpose of s. 10(b) is achieved: at paras. 49 and 53-54.

[Emphasis added]

[150] In Tahmasebi the Court of Appeal found that the first category in Sinclair did not apply and explained the reasons for this in paragraphs 24 to 30:

(i) The First Category in Sinclair Does Not Apply

24 The first category in Sinclair does not apply because what occurred after the appellant was charged with impaired driving causing bodily harm and had his initial consultation with duty counsel -- namely the DRE demand and, based on the result of the drug evaluation, the urine sample demand - were procedures that were "within the expectation of the advising lawyer at the time of the initial consultation": at para. 50. The procedures of a DRE demand and urine sample demand and the offence of impaired driving are integrally related. The procedures would be within the expectation of a lawyer advising a person charged with impairing driving. As the trial judge stated, "the advice given by counsel clearly should anticipate these probable outcomes": at para. 71.

25 At the relevant time, the Code specified procedures for the investigation of whether the offence of impaired driving under s. 253(1)(a) of the Code had occurred and specified consequences to those procedures. 2 The police were entitled to demand that a person submit to an evaluation by a DRE Officer, if there were reasonable and probable grounds to believe the offence of impaired driving had been committed: s. 254(3.1). If, on completion of the evaluation, the DRE Officer had reasonable grounds to believe that the person's ability to operate a motor vehicle was impaired by drug or alcohol, the DRE Officer could demand a sample of either oral fluid or urine: s. 254(3.4)(a). Failure to comply with either demand was an offence: s. 254(5).

26 The statutory relationship between the procedures of a DRE demand and a urine sample demand on the one hand, and the offence of impaired driving on the other, does not permit the conclusion that the procedures fall outside the expectation of a lawyer advising a person who has been arrested or detained on a charge of impaired driving. That such demands might be made, and their consequences, would fall directly within the expected topics of advice counsel would give a person charged with impaired driving.

27 In R. v. Fogarty, 2015 NSCA 6, 320 C.C.C. (3d) 348, the Nova Scotia Court of Appeal rejected an argument that a person who had spoken to counsel after receiving a DRE demand was entitled to re-consult counsel before deciding whether to comply with a fluids sample demand. The court stressed the relationship between the DRE demand and fluids sample demand procedures, inferring from that relationship that counsel would have been expected to advise about both in the consultation that did occur. At paras. 47-48, the court stated:

Sinclair, para. 50, says that "[n]on-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation". In my view, a blood demand under s. 254(3.4) would occupy the expectation of the advising lawyer during the DRE consultation under s. 254(3.1). The point of the DRE is to determine whether to demand a fluids sample. That is clear from s. 254(3.4): "If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle ... is impaired by a drug ... the evaluating officer may ... demand" a sample of saliva, urine or blood.

The DRE and blood demand are not disjunctive investigative techniques. Rather, the DRE culminates in the fluids demand. That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4), with which competent counsel would be familiar. During the DRE consultation with the client, competent counsel would expect that a failed DRE likely would trigger a demand for blood, urine or saliva, and would advise the client respecting that eventuality.

28 In R. v. Wilkinson, 2014 ONCJ 515, 319 C.R.R. (2d) 327, the accused was arrested on a charge of impaired driving, read a breath demand, and advised of her right to counsel. After she declined to speak to counsel, a breath test was conducted. The police then made a DRE demand and conducted a drug evaluation resulting in a request for a urine sample. The accused was not re-advised of a right to counsel before the DRE demand or drug evaluation. The trial judge rejected the argument that the accused should have been re-advised of s. 10(b) rights before the drug evaluation and that therefore her s. 10(b) rights were infringed, relying on the relationship between the offence of impaired driving and the procedures the Code enacted to investigate that offence. At para. 14, the court said:

I do not regard the progress from alcohol-related breath testing to the DRE process within the same investigation for impaired driving as being a transition to a "non-routine procedure" as described in Sinclair. The issue as contemplated by the Supreme Court of Canada requires that the accused face a significantly changed set of circumstances then that which existed at the time of the initial advice of her right to consult counsel.

29 There is no issue in this case of any variance between legal advice competent counsel would be expected to provide to a person detained on a charge of impaired driving, and the actual advice the appellant received. In Sinclair, at para. 57, the majority stated: "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". In this case, there was no evidence as to the content of the actual advice the appellant received. The appellant must accept the assumption that the legal advice he received was, in its context, sufficient and correct.

30 Thus, there is no basis here to reach the conclusion that the initial advice the appellant received, after being charged with impaired driving, was not sufficient and correct to address the foreseeable consequences of that charge, namely a DRE demand and depending upon its result, an oral fluid or urine sample demand. There was, to use the words of Fogarty, a "linear progression" from one to the other, a progression expressly contemplated by the Code. What occurred here, after the initial advice of counsel, was neither the result of changed circumstances or new developments. The procedures undertaken by the police were not, viewed in the context of an impaired driving investigation, non-routine such as to fall outside of what would be expected to be covered by the initial advice the appellant received.

[Emphasis added]

[151] At paragraphs 31 to 37 of Tahmasebi, the Court of Appeal concludes that the second and third categories did not apply. They declined to accept the appellant's argument that the risk of being charged with refusal for non-compliance with a D.R.E. or urine sample demand does not change the jeopardy faced by a detainee which would warrant the right to consult a lawyer again. With respect to the change in jeopardy issue the following analysis applies to Mr. Brown's case:

33 The change in jeopardy that Sinclair posits as giving rise to a right to re-consult occurs where, after the initial consultation, an investigation has taken "a new and more serious turn as events unfold": at para. 51. Since the initial advice is expected to have been "tailored to the situation as the detainee and his lawyer then understand it", such a "turn" must be one that takes matters beyond that situation and the expectations it gave rise to: at para. 51.

34 Determining whether such a "turn" has occurred requires a comparison between, on the one hand, the situation and jeopardy that counsel and the detainee would understand at the time of their initial consultation, and on the other hand, the situation and jeopardy that has arisen as a result of subsequent events. A "change in jeopardy will require an accused to be provided an additional opportunity to consult counsel, where there is either 'a discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence that that contemplated at the time of the warning.'": R. v. Guthrie, 2016 ONCA 466 at para. 11 (internal citations omitted).

35 The consequences of foreseeable investigative procedures in an impaired driving investigation -- the prospect that compliance with either a DRE demand or oral fluid or urine sample demand may yield evidence that incriminates the accused and that non-compliance may be an offence - is not a new jeopardy arising from a new and more serious turn of events. It is not a discrete change in the purpose of the impaired driving investigation to an offence not contemplated at the time the appellant exercised his right to counsel. Just as the procedures themselves are foreseeable at the time of the initial consultation, the jeopardy arising from them is also foreseeable and within the expected subject matter of the initial consultation.

Application of the Law Regarding the Right to Further Consultation with Counsel to Darin Brown's Case

[152] Applying the analysis in the above cases with respect to the second Sinclair category to the Darin Brown's case, I conclude that there was no change in jeopardy for Mr. Brown when the blood demand was made to him because it relates to an investigation of the same drug impaired driving charge about which he spoke to duty counsel. There is no evidence that Mr. Brown may not have understood the initial advice he received or that the police undermined any advice which was given to him (the third Sinclair category).

[153] This case does have a separate factor from the blood demand, that brings the second Sinclair category into play, however, because of the police failure to inform him that he was being arrested for or charged with the offence of possession of Cocaine before he consulted duty counsel. I have already addressed this issue under a separate heading above and concluded this aspect of the police conduct does not amount to a breach of s. 10(a) or (b).

[154] In Tahmasebi, at paragraph 21 the Court discusses the second Sinclair category, which is where, after an initial consultation "tailored to the situation as the detainee and his lawyer then understand it" based on what they were told as to the reasons for the detention, "the investigation takes a new and more serious turn" making the advice inadequate in light of "the actual situation, or jeopardy, the detainee faces". While being charged with an additional offence would change the jeopardy that Mr. Brown was facing, the initial consultation with duty counsel should have included advice about the drugs located in the vehicle. As stated elsewhere, while this failure to inform Mr. Brown of the drug charge may not amount to a s. 10(b) breach it should be considered with respect to the cumulative effect of the Charter breaches in this case for purposes of the s. 24(2) analysis.

[155] I have concluded that Darin Brown's case does fit within the first category in Sinclair, supra. The facts in this case are very unusual because the ability of the police to make a blood demand in drug related cases where no D.R.E. was available had been brought into place just days before due to the Bill C-46 legislative amendments. The situation was so novel for the police that their police service had no protocols in place and had not developed any wording for a blood sample demand. These officers had to seek legal advice about whether the legislation was already in effect, and with putting together the proper wording for a blood demand. They had to be referred by one Assistant Crown Attorney to another who had specialized expertise in this area, to obtain that legal advice. This is distinguishable from the facts in Tahmasebi, where the statutory relationship between an impaired driving offence and the procedures of a D.R.E. demand and a urine sample demand were well established. In those circumstances it would be expected that a lawyer advising a person under arrest for impaired driving would cover topics such as the demands that might be made and their consequences.

[156] As in the case of Tahmasebi, supra, I have no evidence in this case as to whether the duty counsel whom Mr. Brown consulted was familiar with this change in the law. Mr. Brown, as is his right, elected to call no evidence and did not waive solicitor-client privilege, so I have no information as to what advice he did in fact receive. I cannot speculate as to what legal advice duty counsel may have given Mr. Brown. In Tahmasebi, the Court of Appeal stated that, where there is no evidence of the actual advice received, "The appellant must accept the assumption that the legal advice he received was, in its context, sufficient and correct" (at paragraph 29). The issue in the case before me, however, is that the context included a fact situation in which the legislation was so new.

[157] In paragraph 22 of his written submissions, Mr. Affleck for the Defence refers to s. 320.14(4) as the relevant provision for the offence in this case, however, a review of Bill C-46 shows that the relevant provision for drug impaired driving was still s. 253(1)(a) at the time of this alleged offence. It is confusing because section 320.14 does appear in Part 2 of Bill C-46, while s. 253 appears in Part 1. In this case the information reads that Darin Brown "on or about the 25th day of June in the year 2018 at the City of Oshawa in the Central East Region did, while his ability to operate a motor vehicle was impaired by a drug, have the care or control of a motor vehicle and thereby commit an offence under Section 253(1), clause (a) of the Criminal Code". Mr. Brown is not charged under s. 320.14. The Crown's responding written submissions are silent on the issue raised by the Defence with respect to whether s. 320.14(4) applies to this situation.

[158] Prior to the June 21, 2018 amendments, the relevant portions of section 253 read as follows:

Operation while Impaired

253 (1) Every one commits an offence who operates a motor vehicle…or had the care or control of a motor vehicle…,

(a) While the person's ability to operate the vehicle…is impaired by alcohol or a drug.

[159] These parts of s. 253 were not changed by Bill C-46, however, the Bill amended s. 253 by adding the following subsections after subsection (2) (only those portions relevant to this case are set out below):

Operation while impaired – blood drug concentration

(3) Subject to subsection (4), everyone commits an offence who has within two hours after ceasing to operate a motor vehicle…or after ceasing to have the care or control of a motor vehicle…

(a) A blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation;

(b) A blood drug concentration that is equal to or exceeds the blood drug concentration for the drug that is prescribed by regulation and that is less than the concentration prescribed for the purposes of paragraph (a); or

(4) No person commits an offence under subsection (3) if

(a) they consumed the drug …after ceasing to operate…or have the care or control of a motor vehicle…; and

(b) after ceasing the activities described in paragraph (a) they had no reasonable expectation that they would be required to provide a sample of a bodily substance.

[160] Bill C-46 also added a new s. 253.1 authorizing the Governor in Council to make regulations prescribing the blood drug concentration for a drug for purposes of sections 253(3)(a) and (b). The Defence refers in written submissions to Regulation SOR/2018-148, section 2 which specifies the drug blood concentrations which apply " for the purposes of s. 320.14(4)" of the Code, [which in fact applies to later amendments].

[161] It is important to note that as of the date of the alleged offence against Darin Brown, that it appears from the Justice Laws website that no Regulations were yet in effect. The relevant Blood Drug Concentration Regulations SOR (Statutory Orders and Regulations) 2018-148 came into effect on June 26, 2018 and remained in effect until December 17, 2018 when the Criminal Code was amended again in this area (see: https://laws-lois.justice.gc.ca/eng/regulations/SOR-2018-148/20180626/P1TT3xt3.html). So, this Regulation came into effect one day after Mr. Brown was charged. There appear to be no earlier versions. A later version came into effect on December 18, 2018.

[162] Regulation SOR 2018-148 sets out that, for the purpose of s. 253(3)(a), the prescribed blood drug concentrations for each drug are: THC: 5 ng/mL of blood; LSD: any detectable level; Psilocybin: any detectable level; Psilocin: any detectable level; PCP: any detectable level; 6-Monoacetylmorphone: any detectable level; Ketamine: any detectable level; Cocaine: any detectable level; GHB: 5 mg/L of blood; and Methamphetamine: any detectable level. Section 3 of the Regulation also specified that the allowed combination of alcohol and THC is 50 mg of alcohol per 100 mL of blood with only 2.5 ng of THC per mL of blood.

[163] It is important to repeat that Mr. Brown was not charged under s. 253(3)(a), but rather, s. 253(1)(a). The Defence, however, made the following written submission concerning the effect that the Regulations would have on Mr. Brown's right to further consultation with counsel:

25. Liability for impaired by drug differs according to the drug allegedly consumed, as set out in Regulation SOR/2018-148. When the Applicant first spoke to duty counsel, he did not even know that he was being charged with possession of a drug. He did not know that the police would be demanding that he provide a sample of his blood. This fact magnifies the significance of the police not informing the Applicant that he was being charged with possession of a drug. The combined effect of the charge of possession of a drug, and the differential liabilities as set out in the Regulation was a circumstance that called out for a re-consultation with counsel. The failure to provide this opportunity amounted to a breach of s. 10(b) of the Charter.

[164] This difficulty with sorting out which Criminal Code provisions and Regulations were in effect at the time Darin Brown was charged demonstrates the need for legal expertise in order to give proper advice to Darin Brown about which provisions applied to his situation.

[165] Unlike in the Budarick case, supra, there had been no demand of any sort made by the police to Mr. Brown before he consulted Duty Counsel, and the type of blood demand involved was entirely new and based on very recent legislative changes. The review of the appellate cases above indicate that they turn on what would be expected to be the routine procedures in any alcohol or drug impaired driving investigation. A blood demand is not considered to be a non-routine procedure in some of these cases. Also, these cases do not turn on whether a demand had already been made to the accused yet, but rather, on what demands could be anticipated by counsel to be made in this type of a case. These cases demonstrate that a competent counsel would be expected to give advice about those demands which could be made and the consequences of a refusal. So, the only distinguishing feature in this case, was the newness of the legislation. It is these unique circumstances which causes me to conclude that Darin Brown should have been offered the opportunity to consult counsel after the blood demand was read to him, because it was not a routine procedure at that time.

[166] I do not think it is reasonable to expect the police to have interrupted Mr. Brown's call with Duty Counsel to advise him of the blood demand as that would run the risk of breaching the privacy requirements of s. 10(b). In light of their own confusion about the state of the law and the need to consult a Crown with special expertise, however, the police should have afforded Mr. Brown a similar opportunity to obtain further legal advice. When initially paraded before St. Sgt. Elliott, Mr. Brown had raised the possibility of wishing to speak with private counsel after consulting duty counsel. The police never clarified with Mr. Brown if he still wished to do this. St. Sgt. Elliott relies on the fact that Mr. Brown agreed he was satisfied with duty counsel, but ignores the significant fact that Mr. Brown was asked this question before the blood demand was made, and before the procedures and consequences of refusing were explained to him. The police should have asked Mr. Brown after making the blood demand, etc. if he was still satisfied with his call with duty counsel. Otherwise, the reliance by the police on his satisfaction with the advice received from duty counsel is undermined.

[167] Even if I am mistaken that the police should have provided Mr. Brown with a further opportunity to consult a lawyer at the police station after the blood demand was made, I find that there was a material change in Mr. Brown's situation when the doctor at the hospital refused to take a blood sample without Mr. Brown's consent, which would appear to be a medical consent. Since the legislation was so new, there were no protocols in place between the hospital and the police service to deal with the taking of blood samples. This in itself was a non-routine situation for all parties involved.

[168] I find it could not have been reasonably anticipated by duty counsel, while Mr. Brown was still at the police station (and he had not yet been told by the police that he would be taken to the hospital for blood samples), that the hospital would refuse to take Mr. Brown's blood samples without his consent. Even if it could be assumed that competent counsel would know of the recent legislative changes and anticipate a blood demand being made where no D.R.E. officer was available, the later development of the hospital requiring consent could not be forecast. While competent counsel would be expected to advise someone in Mr. Brown's situation (a drug impaired driving charge) of the consequences of refusing any demand (D.R.E. demand, Standard Field Sobriety Tests demand, or demand for urine or blood), the hospital's position could not be foreseen. This was a material change in circumstances from the status of the investigation when Mr. Brown was still at the police station. The hospital's position to require Mr. Brown's consent was not a routine procedure that counsel should be expected to predict.

[169] I have already discussed in detail above my finding that that no lawful consent was obtained from Mr. Brown with respect to the taking of the blood samples. Mr. Brown was never advised of the Wills information that would be required for it to amount to a fully informed consent to the seizure of his blood. There is no evidence that Mr. Brown was informed by the police at any time that there had been a change in circumstances given that the doctor would not take the blood sample without his medical consent, or that the doctor had been threatened with criminal consequences for giving him advice about whether to comply with the blood demand. There is a significant gap in the evidence about what discussions took place between Mr. Brown and the hospital before he gave his consent. A competent lawyer would have been able to give Mr. Brown advice about what his choices were with respect to what the hospital was telling him, in the context of a blood demand made by the police and the consequences of refusing to provide blood samples.

[170] Even though it was the hospital personnel who were requiring Darin Brown's consent rather than the police, the hospital staff were acting at the request of the police in taking the blood samples. They gathered this evidence solely for the police. There was no medical need for the hospital to take Mr. Brown's blood samples; they were taken for police investigative purposes alone. While the police were acting pursuant to a lawful demand, they ended up relying on Mr. Brown's consent in order to be able to seize his blood samples, because the samples would not have been taken without that consent. Since, "an important purpose of legal advice is to inform the accused about his right to choose whether to cooperate with the police investigation and how to exercise it" i.e. "whether to cooperate with the police investigation or decline to do so" (see paragraphs 29., 53 and 65 of Sinclair), Mr. Brown should have had access to that type of advice before being asked to provide his consent.

[171] In drug impaired driving cases, where a urine sample demand is made, the sample is collected by a police officer. If a person refuses to provide a urine sample they can be charged with refusal. No consent to the taking of the urine samples is involved. Where a blood sample needs to be collected, however, that involves a medical professional who must ensure that the health and safety of the person whose blood is being taken is protected. The police have no control over whether a doctor or blood technician will agree to take the samples. Where the doctor requires the consent of a person under arrest to the taking of the blood samples (who will be charged if they refuse to provide the sample), it is legally much more complicated. To be a lawful consent, the person cannot be forced to give their consent, but might feel forced to because of the threat of a criminal charge if they refused to comply with the demand. It might be seen by that person as being given no choice at all.

[172] In deciding whether a further opportunity to consult counsel should have been provided, the Supreme Court in Sinclair stated at paragraph 65, "What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not". I find that at the point when the Lakeridge Health Oshawa hospital refused to take Mr. Brown's blood samples without his consent, that this amounted to a change of circumstances which was "objectively observable" and which triggered additional implementational duties for the police: see Sinclair, supra, at paragraph 55. In this case, Mr. Brown had no choice at the time the original blood demand was made (unless he wished to be charged with refusal). I find that the situation was now significantly altered by the hospital presenting Mr. Brown with a choice about whether to consent to the taking of his blood samples. Being asked for consent by the hospital was contradictory to what Mr. Brown had been told by the police about the consequences of refusing. The change of circumstances here was objectively observable. This change was obviously recognized by the police since P.C. Bandstra called St. Sgt. Elliott to inform him of the hospital's position that they refused to take the blood samples without consent. This caused St. Sgt. Elliott to then call the medical staff and have the conversation with the doctor described elsewhere, including threatening the doctor with being charged with obstructing the police if he continued to give advice to Mr. Brown about cooperating with the police. So, the police clearly recognized that the hospital's position could impact whether Mr. Brown's blood samples were collected, yet failed to consider Mr. Brown's rights to obtain legal advice about giving his consent. This is not a situation where objectively the police would not have recognized the change in circumstances. The evidence proves that they did recognize it.

[173] There was ample opportunity for the police to have provided Mr. Brown with another call to counsel at the hospital. In cross-examination, P.C. Bandstra agreed that given the number of conversations going on at the Lakeridge Health Oshawa hospital about whether or not they would assist with taking a sample of Mr. Brown's blood, that there was enough time to afford Mr. Brown the ability to call a lawyer again. The officer testified that Mr. Brown was never offered that opportunity, nor did he request to call a lawyer. Specifically, he was never given another opportunity at the hospital to call a lawyer about whether or not he should consent to giving a blood sample. It is clear from the officer's evidence that he did not believe he was required to offer Mr. Brown another chance to speak with a lawyer because he had spoken to one previously before the blood demand was made. (See transcript of October 8, 2019 at page 111 lines 2 to 26; page 114 lines 18 to 30; and page 125 lines 10 to 25). From the totality of the evidence I find that neither P.C. Bandstra nor St. Sgt. Elliott ever turned their minds to whether they should offer Mr. Brown a further opportunity to consult counsel at the hospital.

[174] In Sinclair, at paragraph 54, the Supreme Court indicated that the categories of cases where the right of another consultation arises are not closed, and stated:

54 ...Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation.

[175] I do not believe it is necessary in Mr. Brown's case to suggest that a new category as described in Sinclair, supra, should be created in this case, since I have determined that the issues which arose are covered by the first category. If this is incorrect, however, it is my view that the issue of the requested consent sought by the hospital before taking the blood samples could fit into a new category. This would be a "new or emergent situation" requiring a further opportunity to consult counsel since it would not have been foreseeable during the initial consultation between Mr. Brown and duty counsel. In Tahmasebi, supra, the Court discussed when a new category should be created:

38 Although Sinclair makes it clear that the categories of cases in which there is a right to re-consult counsel "are not closed", a new category should only be developed where there is a change of circumstances that makes a second consultation necessary "to ensure that s. 10(b) has achieved its purpose": at para. 49. Where the circumstances do not fall within one of the three previously recognized situations, the question is whether "a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation" (emphasis added): at para. 54.

39 For the reasons above, neither a DRE demand under what was then s. 254(3.1), nor an oral fluid or urine sample demand under what was then s. 254(3.4), is a change of circumstances from those facing a person detained on a charge of impaired driving. A person who has received legal advice (assumed to be sufficient and correct) after such a charge does not face a new or emergent situation when either demand is made. Because the demands are foreseeable and the initial advice would be expected to address them and their consequences, it would not be appropriate to create a new category of cases in which there is an entitlement to a second consultation with counsel to cover the circumstances in the case at bar.

[Emphasis added]

[176] For all of these reasons, I find that the police breached Darin Brown's s. 10(b) Charter rights by their failure to provide him with a further opportunity to consult duty counsel both after the blood demand was made at the police station, and again at the hospital when the medical staff refused to take Mr. Brown's blood samples unless he consented.

The Charter s. 24(2) Analysis

[177] I have found that the police breached Darin Brown's s. 8 and s. 10(b) rights in this case. In determining whether the blood samples obtained from Darin Brown and the results of the Toxicologist's analysis of the drugs should be excluded, I must apply the s. 24(2) Charter analysis as set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.). The key passages are at paragraphs 71 and following:

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

(a) Seriousness of the Charter-Infringing State Conduct

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

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

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

75 Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v. Silveira, [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

(b) Impact on the Charter-Protected Interests of the Accused

76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) - all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

78 Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not.

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