Ontario Court of Justice
Date: June 5, 2020
Court File No.: 10088-19
Between:
Her Majesty the Queen
— AND —
Aminder Virk
Before: Justice A. Dellandrea
Heard on: February 12, 2020
Reasons for Judgment released on: June 5, 2020
Counsel
Ms. A. Mavridis — counsel for the Crown
Mr. R. Patel — counsel for the accused Aminder Virk
DELLANDREA J.:
Introduction and Overview
[1] On May 10, 2019, Mr. Virk was charged with the offences of impaired operation and excess blood alcohol.
[2] There was no dispute in this case that Mr. Virk was operating a vehicle on the day in question, nor that the analysis of two suitable samples which he later provided at the police station showed his blood alcohol concentration to be over the legal limit.
[3] Rather, Mr. Virk's defence in this case focused on whether, prior to obtaining those breath samples, the police had violated his rights under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms – by proceeding to arrest him for impaired operation and demanding a sample of his breath in the absence of reasonable grounds, and by failing to facilitate access to his counsel of choice. The defendant also argued that the evidence as a whole failed to establish impairment beyond a reasonable doubt.
[4] The Crown maintains that a sufficiency of grounds supported the defendant's arrest for impaired operation, such that there were no breaches of either ss. 8 or 9 of the Charter. Ms. Mavridis rightly concedes that there were lapses in the officers' implementational duties under 10(b), but submits that Mr. Virk failed to be reasonably diligent in expressing his desire to speak to counsel of choice, and ultimately chose to speak to duty counsel. It is argued by the Crown there was no breach of s. 10(b), and that the application for the exclusion of evidence under s. 24(2) must therefore fail.
[5] As is customary, the trial and the Charter application were held concurrently as a blended hearing. The Crown called four witnesses: a Brampton by-law officer, two uniformed members of Peel police, and the breath technician. Mr. Virk also testified on the voir dire, with the understanding that his evidence applied only to the Charter application and not the trial proper.
Issues and Foundational Principles
[6] The issues for resolution in this case are as follows:
(1) Did Cst. Chiang have reasonable and probable grounds for arresting the Applicant for Impaired Operation, and for proceeding to make the demand for a sample of the Applicant's breath?
(2) Did investigators fail to facilitate the Applicant's right to consult counsel of choice, thereby violating his rights under s. 10(b) of the Charter?
(3) In the event of breaches being assessed under ss. 8, 9 and/or 10(b) of the Charter, should the breath readings be excluded pursuant to s. 24(2)?
(4) Has the offence of Impaired Operation been proven beyond a reasonable doubt?
[7] As with every criminal trial, the burden of proof rests exclusively on the Crown to prove each allegation beyond a reasonable doubt. A persuasive burden rests on the Applicant only with respect to the breaches raised in respect of the Charter.
[8] I will review the relevant evidence related to each of the disputed issues and make the necessary findings of fact in respect of each, before moving to the analysis and disposition.
ISSUE #1: Did Cst. Chiang have reasonable and probable grounds to arrest Mr. Virk for Impaired operation, and to demand a sample of his breath into an approved instrument?
i) Mr. Graham Drope
[9] Mr. Drope is a by-law enforcement officer for the city of Brampton. On May 10, 2019 Mr. Drope was stationary at a red light at Hurontario and Sandalwood when he observed a Jeep making a lawful left turn from southbound Hurontario onto Sandalwood Parkway East.
[10] Mr. Drope testified that there was nothing remarkable about the Jeep's turn, however he continued to observe it as it proceeded along Sandalwood. According to Mr. Drope, the Jeep mounted the curb on the south side of Sandalwood, and drove with its two passenger side wheels on the curb in that fashion for a period of time, before righting itself again and continuing on.
[11] Mr. Drope testified that whilst on the curb, the Jeep drove towards a bus shelter on the south side of Sandalwood, which in his estimation was only 50 m from the corner of Hurontario, where the Jeep had made the turn. When the light turned green for Mr. Drope, he followed the Jeep, which he said was driving at an "appropriate speed" and ultimately came to a stop at an address just around the next corner on Sunforest Drive. Mr. Drope wrote down the license plate, made observations of Mr. Virk as the driver, and called Peel Police. He parked close by and kept the vehicle in sight until the police arrived.
[12] Mr. Drope was shown a series of "Google Map" images by Mr. Patel in cross-examination in which the first bus shelter (nearest to Hurontario) is visible, at a distance of approximately 90 m from the corner. A road sign bearing the posted speed limit is also clearly visible only a few feet from the south curb of Sandalwood, roughly 50 m from the corner. After viewing the images, Mr. Drope equivocated on which bus shelter he had seen the defendant drive toward and testified that he could only make an "educated guess" about where he had seen him mount the curb. Mr. Drope said he didn't remember seeing any speed sign, that he could not "be definitive" about any of the distances he had provided earlier in chief, and that at most, Mr. Virk's wheels had been on the curb for "maybe 5 seconds."
ii) Cst. Darryl Chiang
[13] Cst. Chiang and his partner Cst. Patterson were dispatched at 10:19 p.m. in response to Mr. Drope's call. They had received information that a Jeep had been observed driving on a curb and "almost striking" a bus shelter on Sandalwood Parkway.
[14] Cst. Chiang approached the defendant's vehicle on the passenger side. The passenger rolled down the window, and he leaned down to observe the driver, Mr. Virk. Cst. Chiang said the defendant's eyes were red, and he "looked like he had been crying." Chiang smelled a "bit" of alcohol on the passenger side, but he couldn't tell where it was coming from. He moved around to speak with the driver.
[15] Cst. Chiang asked the defendant for his driver's license. He saw Mr. Virk fumbling a few times to reach his wallet in his pants pocket, which was under his seatbelt. The wallet was retrieved and the license produced, with no difficulty. Cst. Chiang's uncertainty as to the source of the faint smell of alcohol coming from the car did not change as a result of this first exchange with Mr. Virk.
[16] Cst. Chiang asked the defendant to step out of the vehicle. He described Mr. Virk as "a bit shaky" upon exiting. He asked the defendant to come to his vehicle where he would administer the Approved Screening Device ("ASD"). Mr. Virk asked the officer if he could refuse to do the test. Cst. Chiang said when the defendant spoke, he was able to ascribe the slight smell of alcohol to Mr. Virk. He told the defendant that if he refused to blow, he could be charged.
[17] As they walked to his cruiser, Cst. Chiang said that the defendant took "slow and deliberate steps." Once they reached the cruiser, he showed Mr. Virk the ASD and requested a sample of his breath once more. The defendant made no response. Cst. Chiang testified that at that point, he abandoned his attempt to obtain a sample from Mr. Virk into the ASD, and proceeded to arrest the defendant for impaired operation.
[18] Cst. Chiang conceded that there had been nothing unusual about the defendant's speech, or behaviour during their brief exchange.
iii) Cst. Colin Patterson
[19] Cst. Patterson was working as Cst. Chiang's partner on the day in question. As the senior officer, he was informally supervising Cst. Chiang's management of the defendant as the primary investigator of the incident. Patterson said that he was the first to approach the driver's side of the defendant's vehicle, from which he described a "faint" smell of alcohol from within the vehicle. He and Cst. Chiang then quickly changed positions, with Cst. Patterson allowing his partner to take the lead with the driver.
[20] Cst. Patterson saw Mr. Virk exit his car and observed "no issues" with his balance upon exiting, or walking. He agreed with Mr. Patel that Mr. Virk had not needed to steady himself against the car and did not appear to have any difficulties moving.
Issue #1: Findings and Analysis
[21] Cst. Chiang had been a police officer for one year at the time of this incident. The officer candidly conceded that this was his first 'solo' impaired investigation.
[22] The observations which Cst. Chiang said he made leading up to the first ASD demand of the defendant were as follows:
(1) He observed that the defendant's eyes were slightly red, which he attributed to Mr. Virk having been crying;
(2) He detected a faint odour of alcohol from within the vehicle (which was occupied by two adults), which he "could not isolate;"
(3) He saw some momentary difficulty by the defendant in retrieving his wallet from his pants pocket, beneath his seatbelt;
(4) He observed no further difficulty by the defendant in removing his driver's license from his wallet and presenting it to the officer;
(5) Upon asking Mr. Virk to exit his vehicle, he observed "a little bit of a balance issue" when the defendant stepped out of his car.
[23] Cst. Chiang testified that based on the foregoing indicia, he suspected that Mr. Virk "had been drinking," so he made the first of two demands for a breath sample into the ASD. After the first demand, Mr. Virk asked Cst. Chiang if he could refuse. The officer testified that he smelt the same "faint" odour of alcohol that he had noticed before, but this time it seemed to be coming from the defendant. Cst. Chiang told Mr. Virk that he could be charged with an offence if he refused to provide a sample into the ASD, and he renewed his demand a second time while he and Mr. Virk walked toward the cruiser for that purpose. The officer said Mr. Virk walked "slowly and deliberately" to the cruiser, where he showed him the ASD device. Mr. Virk said nothing. Cst. Chiang immediately arrested him for impaired driving.
[24] On his own evidence, the only additional observation which Cst. Chiang described making – between forming his reasonable suspicion that Mr. Virk had alcohol in his body, in support of the ASD demand, and forming his grounds for belief that the defendant was impaired – was of the few "slow and deliberate steps" which he described Mr. Virk taking during the short trip to his cruiser. Cst. Patterson testified that he had seen "no issues" with Mr. Virk's movements as he exited his car and walked to the cruiser.
[25] It is worth noting that Cst. Chiang's stated purpose in ushering the defendant to the police vehicle at that point continued to be for the purpose of administering the screening device – which he went on to demonstrate to Mr. Virk on their arrival.
[26] A police officer's subjective grounds for belief in the basis for an arrest are insufficient to support its lawfulness. Reasonable grounds for belief must also be objectively established by reference to all of the information available to the officer at the time of making the determination to arrest (R. v. Storrey, [1990] 53 C.C.C. (3d) 316 at 324).
[27] There is no mathematical formula of mandatory criteria for objectively reasonable and probable grounds to arrest for impaired operation to be said to exist. The absence of certain factors which might commonly be found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds, where the observed indicia and other information otherwise support them (R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at para 56). The arresting officer may make the assessment of reasonable and probable grounds quickly, provided that he or she also does so competently (Bush, at para. 67).
[28] Cst. Chiang articulated the basis for his reasonable suspicion which well supported his demand of Mr. Virk for a sample of his breath into the ASD. He detected a general smell of alcohol from within the vehicle being operated by the defendant, and had observed some minor fumbling by Mr. Virk for his wallet, as well as brief unsteadiness on his feet upon exiting his vehicle. Based on these factors, the officer formed his expressed belief "that [Mr. Virk] had been drinking."
[29] After making this initial assessment, Cst. Chiang made one further observation. The faint smell of alcohol which he had not previously been able to ascribe to either of the occupants of the car, he now associated to Mr. Virk, after their brief verbal exchange following his initial demand.
[30] Cst. Chiang made no notes of the precise wording of his exchange with Mr. Virk around the subject of refusal, nor of any description or further detail with respect to the alleged smell of alcohol, or the alleged unsteadiness.
[31] When relating his grounds to arrest Mr. Virk for impaired driving, Cst. Chiang made no reference to other factors, such as the hearsay account of alleged bad driving by the defendant, or any other indicia of perceived impairment. What was apparent to me was that Cst. Chiang had become frustrated with Mr. Virk's questioning of him around the potential to refuse the ASD at the time of their interaction. Within moments of articulating the second ASD demand and demonstrating the use of the device, Cst. Chiang abandoned the objective of obtaining a screening sample, and proceeded directly to arrest Mr. Virk.
[32] I conclude that while Cst. Chiang might have had a subjective belief in Mr. Virk's impairment, his arrest of the defendant for impaired driving was not supported by objectively reasonable and probable grounds. The grounds which the officer purported to rely on for making the arrest had expanded only marginally from those which he had relied up on to form his reasonable suspicion that the defendant had some alcohol in his body, upon which he made a lawful ASD demand. Indeed, the officer was still in the process of attempting to facilitate that initial demand by demonstrating the use of the ASD device, when he abandoned this objective in favour of moving precipitously to arrest.
[33] The gap between reasonable suspicion and objectively reasonable and probable grounds for belief requires considerably more than what was relied on by the officer here: namely, his attribution of a faint odour of alcohol to the defendant, which Cst. Chiang himself described as "relatively the same." This factor did no more than to support the officer's reasonable suspicion as to alcohol consumption, as originally believed. The officer's grounds for arresting the applicant for impaired operation were not objectively reasonable.
[34] Accordingly, I conclude that the detention of Mr. Virk became unlawful when Cst. Chiang aborted the ASD process and arrested him without legally supportable grounds for impaired driving. This conduct amounts to a breach of the applicant's rights under s. 9 of the Charter.
[35] It likewise follows that there was no legal basis for the breath demand made of the defendant into the approved instrument following his arrest, resulting in a breach of his rights under s. 8 of the Charter.
ISSUE #2: Did investigators breach Mr. Virk's rights under s. 10(b) of the Charter by failing to facilitate his right to communicate with his counsel of choice?
i) Evidence of P.C. Chiang
[36] Mr. Virk was arrested by Cst. Chiang for impaired operation at 10:32 p.m. Cst. Chiang went on to provide the defendant with his rights to counsel between 10:33 and 10:38 p.m. It appeared to Cst. Chiang that Mr. Virk understood his rights. In response to the last question from the officer, of: "do you want to call a lawyer now?" the defendant answered "yes. Can I call my mom, she has a lawyer I can get in touch with." Cst. Chiang recorded Mr. Virk's response verbatim in his notebook at the roadside, gave the cautions and breath demand, then transported Mr. Virk to the division.
[37] Mr. Virk arrived at the division at 11:24 p.m. He was paraded by Cst. Chiang before the cells officer, who asked the defendant if he wanted to call any particular lawyer. Cst. Chiang testified that it must have "slipped his mind" at that point to tell the cells officer that Mr. Virk had made a specific request at the roadside to call his mother to get his lawyer's number.
[38] In cross-examination, Cst. Chiang conceded Mr. Virk might have also asked him again about his mother on route to the division, and that in hindsight, that "this avenue should have been explored" on the defendant's behalf.
[39] When Mr. Virk responded to the cells officer, saying that he could only remember his lawyer's first name ("David"). At this point, Cst. Feasby, the breath technician, retrieved a lawyer's directory and started looking through it for a lawyer named "David." Cst. Chiang admitted that did not tell Cst. Feasby about Mr. Virk's request to speak to his mother for a lawyer's name. He testified that when he other officers took up other means of "helping" the defendant to identify his lawyer, he "didn't feel it was necessary" to speak up about the defendant's request to call his mother.
[40] Cst. Chiang saw Cst. Feasby print out a long list of names – he believes from the law society website – of lawyers with the first name "David." Cst. Chiang agreed that "David" is a common name, and that the list which was produced was over 4 pages in length.
[41] Cst. Chiang called duty counsel at 11:50 p.m., requesting a callback for Mr. Virk.
[42] In the meantime, Mr. Virk was given the long list of names which Cst. Feasby had printed. The defendant was not able to identify his lawyer's name from the list which was provided, so Cst. Chiang escorted him to the interview room where he was connected with duty counsel. Cst. Chiang has no notes of Mr. Virk ever having asked to speak with duty counsel.
[43] Once the first call with duty counsel was completed, Cst. Chiang delivered Mr. Virk to the breath room, where he was turned over to Cst. Feasby, the qualified Breath Technician.
ii) Cst. Shaun Feasby
[44] Upon receiving Mr. Virk in the breath room, Cst. Feasby confirmed with Mr. Virk that he had received his rights to counsel from Cst. Chiang, and that he had spoken with a lawyer. Mr. Virk replied: "I believe so." Cst. Feasby confirmed that the defendant had been given a list of lawyers named "David" from which Mr. Virk had been unsuccessful in finding a familiar name. Then Cst. Feasby asked Mr. Virk "do you know any other lawyer you want to call, it's your right." The defendant replied: "no."
[45] Cst. Feasby issued the breath demand. In response, the defendant asked if he could "speak to a lawyer first?" Feasby reminded him that he had already spoken with a lawyer and asked "is there something you didn't understand?" Mr. Virk replied: "I don't completely understand." Cst. Feasby went on to provide a more fulsome explanation of the consequences of providing a sample which exceeded the legal limit, providing one which was short of the limit, and refusing to provide a sample altogether. Mr. Virk asked about the applicable penalties and received accurate general responses from Cst. Feasby.
[46] Mr. Virk listened to Cst. Feasby, then asked: "am I allowed to speak to a lawyer again before I choose?" Cst. Feasby gestures to Cst. Chiang, who exits the breath room, and coordinates another call with duty counsel. Once again, neither Cst. Feasby nor Cst. Chiang ask Mr. Virk which lawyer he wants to speak with.
[47] The second call with duty counsel was completed. Mr. Virk returned to the room and provided two samples, registering amounts in excess of the legal limit.
[48] In cross-examination, Cst. Feasby acknowledged that if Cst. Chiang had told him of Mr. Virk's responses to his initial rights to counsel – most notably, his request to call his mother to access the number for his lawyer of choice – he would have ensured that this call was facilitated. Cst. Feasby also agreed that such a call might well have proved to be a more successful for identifying the lawyer's name than giving Mr. Virk a list of over 500 lawyers named "David."
[49] Cst. Feasby also agreed that he made no notation of Mr. Virk ever having asked to speak with duty counsel, although he thought he remembered the defendant asking to speak to the "free lawyer" before the initial call was placed to duty counsel.
iii) Aminder Virk
[50] Mr. Virk testified on the voir dire, and an Agreed Statement of Facts ("ASF") was filed, on consent, to supplement his testimony on the Charter application.
[51] Mr. Virk was 20 years old at the time of his arrest. It was the first time he had experienced a traffic stop, or arrest for impaired driving. He had only one previous interaction with the police, when he was a youth. Following that interaction, his mother had retained the contact information for the lawyer who had assisted him.
[52] Mr. Virk testified that upon being approached in his vehicle by Constables Chiang and Patterson, he was asked to exit his vehicle and walk to the cruiser "for a breath test." He said when he asked if it was possible to refuse, he was arrested.
[53] Upon receiving his rights to counsel from Cst. Chiang, Mr. Virk immediately asked if he could call his mother to get his lawyer's number. The defendant could only remember the lawyer's first name (David) and needed to call his mother to get the full name, and number.
[54] Mr. Virk testified that upon arrival at the division, he was taken to the booking hall by Constables Chiang and Patterson, where Cst. Feasby and the cells officer also were. He was asked if he wanted to call a lawyer and he said "yes," believing that Cst. Chiang would facilitate his request to get the number through his mother. When Cst. Chiang said nothing about his request to call his mom, Mr. Virk felt confused. He wondered if Cst. Chiang had already attempted to call his mother, without success, or if he wasn't allowed to make such a call to a family member. The defendant stated that he wanted to call his own lawyer, whose name was David.
[55] Mr. Virk was provided with a list of over 500 names by Cst. Feasby. He couldn't recognize any of the names, and didn't understand why Cst. Chiang wasn't speaking up about the request he had made to call his mom. He inferred that such calls must not be allowed.
[56] At that point, Cst. Chiang told him that there was a free lawyer that he could speak with, and he was taken to the interview room where he was told he could speak to duty counsel. He went, without ever having asked for such contact.
[57] Mr. Virk testified that he spoke with duty counsel for only 5 minutes, not having ever asked to speak to them. Following their brief exchange, he said he remained uncertain about some of his rights. Nevertheless, Mr. Virk felt that he had "no other option," as he had explicitly asked Cst. Chiang to call his mother for his lawyer's number, but that request had taken him to "a dead end."
[58] Mr. Virk said he did not explicitly renew his request to call his mother in order to reach his own lawyer, because "it felt like a closed door. I asked, and they didn't do anything. I didn't know if I had the right to call her. I assumed not because they didn't follow up or say anything else about it." Mr. Virk said he did not think it was his responsibility to keep asking the same question of the officers.
Issue #2: Findings and Analysis
[59] As Justice Harris recently observed in Hamasaki, (2020) ONSC 2579, when the state "meddles in the choice of counsel" it often results in a functional detriment to the accused, and risks promoting the appearance of real unfairness. Section 10(b) of the Charter was designed as an important safeguard in adversarial criminal proceedings in which the individual citizen is inevitably disadvantaged against the power of the state.
[60] The right to counsel of choice aims to level the playing field, by assuring detainees of prompt access to counsel who they trust to protect their interests, as their only available counterweight against the mercy of the state in whose control they remain. It is thus among the most fundamental rights protected by the Charter, and conjoined with the right to silence: R. v. Hebert, [1990] 2 S.C.R. 151 at para. 109; R. v. Bartle, [1994] 3 S.C.R. 173 at para. 191; R. v. Sinclair, 2010 SCC 35 at paras. 24-29.
[61] The right to retain and instruct counsel of choice has been interpreted to include the right to request the opportunity to call third parties to assist in this exercise (R. v. Kumarasamy, (2002) 22 M.V.R. (4th) 234; R. v. Paul, [2017] O.J. No. 2593).
[62] In this case, it is not disputed by the Crown that there was a failure by police to deliver on the implementational duty imposed on them by s. 10(b), when the Cst. Chiang apparently forgot to facilitate Mr. Virk's clear request to call his mother to obtain his lawyer's contact information.
[63] Rather, the Crown suggests that this lapse of the investigator's duty was inconsequential, and that it was the defendant who failed to pursue his right to counsel with reasonable diligence.
[64] I cannot agree.
[65] To his considerable credit, Cst. Chiang candidly admitted to having somewhat inexplicably forgotten to follow up on Mr. Virk's explicit roadside request to call his mother in order to obtain his lawyer's number. While he was a relatively junior officer at the time of this investigation, whose inexperience may have been a factor leading to the mistakes that were made, I was impressed by the maturity which Cst. Chiang showed by admitting to them during his testimony.
[66] Cst. Chiang acknowledged that what he should have done in this case was to ensure that Mr. Virk's request to call his mother was promptly conveyed to the booking sergeant, as well as to the breath technician, such that his wish to speak with counsel of choice could be facilitated. But that vital piece of information, central to Mr. Virk's exercise of his Charter guarantee in s. 10(b), was never referred to, or acted upon in any way, by any officer.
[67] As a result, Mr. Virk was left believing that the option of calling his mother for help was a "lost cause." I accept Mr. Virk's testimony with respect to the state of confusion that he found himself in, when asked by the cells officer if he had a lawyer he wanted to call, as though for the first time. The defendant still wondered if perhaps Cst. Chiang had perhaps called his mother and was awaiting her response, or if in fact that option wasn't allowed.
[68] So the defendant did the best he could to articulate the spirit of the same request: he told the police that he did have his own lawyer, whose first name was all that he could recall. The steps taken by officers in response to this second expression of the wish for counsel of choice by Mr. Virk were also inadequate. The hastily produced list of several hundred lawyers named "David" - given to the defendant to sift through - could hardly be described as an effective discharge of investigators' duty to facilitate Mr. Virk's counsel of choice. Another obvious option would have been to ask Mr. Virk if there was anyone he could think of to call (such as a parent) who might know his lawyer's last name.
[69] The Supreme Court of Canada in R. v. Willier, 2010 SCC 37 described the obligation of the police created by s. 10(b) as the requirement to give detainees a "reasonable opportunity" to consult counsel of choice:
Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith, [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole...
[70] Justice Ricchetti recently confirmed in Wijesuria, 2020 ONSC 2579 that there is no "extension" of the police's Charter obligation, beyond requiring that they take reasonable steps to provide the detainee with a "reasonable opportunity" to facilitate contact with counsel of choice, assessed in all the circumstances (at para 68).
[71] The assessment of the adequacy of the police's implementation of the right to counsel asks not what the detainee would have done to facilitate their access to counsel of choice, but rather whether the police took all steps that were reasonable in the circumstances (Wijesuria, at paras. 64-71; R. v. O'Shea, 2019 ONSC 1514 at para. 22).
[72] Mr. Virk had made his specific request of Cst. Chiang to call his mother for his lawyer's number immediately upon arrest. Not only did investigators fail to take all reasonable steps that were available in the circumstances, they failed to take the most obvious one which was available for them to take.
[73] Mr. Virk's interpretation of his request as having been either dismissed or ignored was entirely rational. The applicant felt overwhelmed by the imbalance of power between himself and the police, and once his second attempt at asking for a particular lawyer appeared to have also failed, he was put in contact with duty counsel.
[74] I accept Mr. Virk's evidence that he never asked to speak to duty counsel. Neither Cst. Chiang nor Cst. Feasby had made a notation of any such request ever been made. Rather, I find that Cst. Chiang took it upon himself to contact duty counsel pre-emptively, which he himself acknowledged the possibility of doing.
[75] It is well-recognized that where investigators "short circuit" the right to counsel, by presenting duty counsel as the only available option, then they render the independent choice guaranteed by s. 10(b) meaningless (R. v. Vlasic, 2016 O.J. No 6892 at para 30; R. v. Della-Vedova, [2018] O.J. 1596 at para 58). This is precisely what happened in this case.
[76] I conclude that collectively, the investigators in this case failed to fulfil their duty to facilitate the defendant's expressed wish for counsel of choice, thereby breaching his right to counsel under s. 10(b).
ISSUE #3: Section 24(2) Analysis
[77] The analytical framework of R. v. Grant, 2009 SCC 32 requires that I assess and balance the effect of admitting or excluding the evidence on society's confidence in the administration of justice, having regard to the three governing factors: 1) seriousness of the Charter-infringing state conduct; 2) the impact of the breaches on Mr. Virk's Charter-protected interests; and 3) society's interest in the adjudication of the case on its merits.
a) Seriousness of the Charter-infringing state conduct
[78] Police conduct can run the gamut from blameless conduct, through negligence, to conduct showing a blatant disregard for Charter rights. The legal label attached to the conduct is less important than its proper placement along the fault line. (R. v. Kitaitchik, 166 C.C.C. (3d) 14; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 23, 39).
[79] Here, there were a total of three breaches. There is a direct causal relationship between the section 8 and 9 breaches and the impugned evidence, inasmuch as Mr. Virk's unlawful arrest provided the foundation for the breath demand leading to the collection of samples.
[80] An arrest without reasonable and probable grounds is a necessarily a serious abuse of power, given that it results in the deprivation of an individual's liberty in the hands of the state. While I have found that Cst. Chiang's precipitous arrest of Mr. Virk for impaired operation was likely prompted by his relative inexperience at the time, the fact remains that the exacting requirement of reasonable and probable grounds was not properly understood or respected here.
[81] The initial breaches were compounded by the more serious lapse of police duty which followed, when Cst. Chiang essentially ignored Mr. Virk's very specific request to call his mother to obtain his lawyer's number, in order that he might exercise his right to counsel of choice. No further steps were taken by Cst. Chiang or any other officer to facilitate this request. The lone effort chosen and implemented by investigators in response to Mr. Virk's expressed desire to speak with counsel of choice was brief, and ineffectual. Once the "dead end" was reached, Mr. Virk was directed by the officers to speak to duty counsel, without his having requested to do so. While I cannot assign "bad faith" to the investigators' conduct here, it reflected a cavalier if not negligent disregard for the significance of Mr. Virk's Charter-protected right to counsel. I would characterize the breaches here as significant, and favouring of exclusion.
b) Impact of breaches of Mr. Virk's Charter rights
[82] The second branch of Grant invites consideration of how seriously the protected rights were compromised by the state action. In some circumstances, the interference with the claimant's rights can be merely technical, trivial or transient: in others it may be more pronounced, and profound.
[83] The Crown argues that the impact of the breach of Mr. Virk's s. 10(b) rights was minimal because the defendant was able to consult with duty counsel. I'm unable to accept this submission, in the applicant's case, given the clarity of the request which he had made for assistance in facilitating his right to counsel of choice, and the primacy of that guarantee. I have accepted Mr. Virk's evidence that he was made to feel that speaking with duty counsel was his only option, after his request for help in calling his own lawyer proved futile.
[84] It is well-recognized that the opportunity to select counsel of choice is fosters trust in the advice received by the detainee, and in turn, the substance of the right to counsel (R. v. Manuel, [2018] ONCJ 381 at paras. 54-56; R. v. McFadden, 2016 ONCJ 777; R. v. McCallen, 131 C.C.C. (3d) 518).
[85] Mr. Virk was constitutionally entitled to a reasonable opportunity to contact the lawyer he wanted and trusted. Rather than facilitate that opportunity, the actions of the police denied him this right altogether, and "channelled" him towards accepting an offer of duty counsel which he felt he could not refuse. Mr. Virk was made to feel like he was compelled to forego his s. 10(b) right to consult with counsel of his choosing – which amounted to a significant and serious breach of his rights. This factor points significantly towards exclusion.
c) Society's interest in the adjudication on the merits
[86] The breath sample obtained from the defendant is reliable, admissible evidence in a proceeding for which the public retains a significant interest in the resolution. Without this evidence, the Crown's case on the "over 80" necessarily fails. This factor weighs against exclusion.
d) Final balancing and conclusion: Section 24(2)
[87] Mr. Virk was deprived of his liberty when he was arrested in circumstances in which did not supply objectively reasonable grounds for his arrest. The consequential demand for a sample of his breath was therefore a warrantless search. The significant power imbalance between he and stage agents was exacerbated when he was denied his exercise of the very right designed to protect him from this vulnerability, and which he had specifically requested: the right to consult counsel of choice.
[88] While the breath test results are reliable evidence, and society had a very legitimate interest in the prosecution of drinking and driving cases, the compounded and serious breaches of the applicant's rights in this case require that the evidence be excluded. I believe that a reasonable and informed member of the public also has an interest in ensuring that such prosecutions are fair and that the police live up to the expectations for which they are responsible under the Charter. The long-term reputation of the justice system requires that the court distance itself from conduct which significantly fails to meet this exacting standard.
[89] As a result, the results of the breath samples are excluded and the Over 80 charge against Mr. Virk is dismissed.
ISSUE #4: Impaired Operation
[90] Mr. Drope described seeing the passenger wheels of Mr. Virk's Jeep mount the curb on Sandalwood Parkway for a few seconds, as it approached a bus shelter. Cst. Patterson attended the area later and noticed tire tracks on the curb area which were to some degree consistent with this observation. Significant frailties remained within the evidence of Mr. Drope, however. His estimates of the location and duration of Mr. Virk's driving varied throughout his evidence and appeared to be exaggerated and conclusory.
[91] There were also inconsistencies between the observations made of Mr. Virk at the roadside by the two officers present. Cst. Chiang testified that he observed some "mild unsteadiness" by the defendant when he exited his vehicle, whereas Cst. Patterson said he made no such observation, and described the defendant as steady. Neither did Patterson observe or remark on any indicia of impairment, beyond a diffuse odour of alcohol from within the vehicle. Cst. Feasby likewise made no notation of anything unusual in Mr. Virk's speech, walk or conduct which would suggest impairment. The absence of any such notation was consistent with the breath room video, in which I could detect no evidence of impairment in Mr. Virk at all.
[92] Cst. Feasby's testimony in cross-examination (for the first time) that he "had no doubt that [Mr. Virk] was intoxicated" stood in direct contradiction to the absence of any notations by him which would support such an assertion. I did not consider this portion of Cst. Feasby's evidence to be credible. The evidence as a whole fails to establish Mr. Virk's impairment beyond a reasonable doubt.
[93] The charge of impaired driving is likewise dismissed.
Released: June 5, 2020
Signed: Justice A. Dellandrea