Court File and Parties

Ontario Court of Justice

Date: January 20, 2020

Court File No.: Brampton 17-13118

Between:

Her Majesty the Queen

— and —

Amandeep Brar

Before: Justice M.M. Rahman

Counsel:

• Greg Hendry, counsel for the Crown
• Douglas Lent, counsel for Amandeep Brar

Heard: February 27 and 28; September 16; October 25 and 29; and November 6, 2019

Reasons for Judgment released: January 20, 2020

RAHMAN J.:

1. Overview

[1] The defendant, Amandeep Brar, is charged with impaired driving and refusing to provide a breath sample. Mr. Brar was stopped by police on October 21, 2017 while he was driving on Airport Road in Mississauga. The police were responding to a call about an impaired driver who just left a bar. After being pulled over, Mr. Brar was asked to get out of his car and follow the arresting officer onto the road's median. Based on what he believed to be signs of impairment, the officer arrested Mr. Brar for impaired driving. Mr. Brar was taken to 22 Division for Intoxilyzer tests. Mr. Brar did not provide a breath sample and was charged with refusing to provide a breath sample.

[2] Mr. Brar argues that the police violated his rights under s. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. He says that the arresting officer did not have sufficient grounds to arrest him for impaired driving and to demand a breath sample. He also says that he was denied his right to consult his counsel of choice and that the police held him in custody longer than was necessary. Mr. Brar seeks a stay of proceedings, or alternatively, exclusion of evidence obtained as a result of any Charter breaches. Aside from his Charter application, Mr. Brar says that he is not guilty of either charge because there is insufficient evidence he was impaired, and because he had a reasonable excuse not to provide a breath sample because of the way the police treated him.

[3] The Crown says that there were no Charter breaches. The Crown argues that the arresting officer had ample grounds to arrest Mr. Brar. The Crown also says that the police's attempt to contact counsel of choice was reasonable in this case. The Crown also argues that Mr. Brar was not held in custody too long because he was too intoxicated to be released on his own and he did not want police to call anyone for him. On the trial proper, the Crown says that there is ample evidence to find that Mr. Brar was impaired and that his discomfort with the way the police were treating him was not a reasonable excuse to refuse to provide a breath sample.

[4] These reasons explain why the Charter application is allowed in part, and the evidence of Mr. Brar's refusal is excluded. These reasons also explain why I find Mr. Brar is guilty of impaired driving.

2. The Charter Application

2.1. Section 8 and 9 of the Charter and the Arrest

2.1.1. Facts

[5] Police received a call about a suspected impaired driver in the early morning hours of October 17, 2017. Two officers, Cst. Arun Adhya and Cst. Attila Alszegi, responded to the call. Cst. Adhya encountered the red car that was the subject of the call on Queen Street near Sunpac Drive. Cst. Adhya did a u-turn and caught up to car, which Mr. Brar was driving. He followed Mr. Brar westbound on Queen Street and then northbound on Airport Road. As Cst. Adhya followed Mr. Brar, he noticed that Mr. Brar moved gradually towards the right and drove in the middle of two lanes, so that he was straddling the lane-dividing dotted line. In cross-examination, Cst. Adhya acknowledged that he could not say how long Mr. Brar drove straddling the dotted line.

[6] Mr. Brar eventually stopped his car at a red light at Airport Road's intersection with Williams Parkway. He had moved back into the centre lane just before stopping at the intersection at Williams Parkway. Cst. Adhya stopped directly behind Mr. Brar and explained where he was over the police radio. The officer explained that he was waiting for another police car to arrive so that they could do a "tandem stop."

[7] Cst. Alszegi arrived on scene in the second police cruiser and pulled his car in front of Mr. Brar's. Cst. Alszegi was working with the impaired counter-measures unit that evening. He testified that he heard the radio call about a possible impaired driver leaving a bar called Chuck's Roadhouse. The complainant was the bar's manager. According to the dispatcher, the complainant followed Mr. Brar after he left the parking lot. The complainant also said that the driver was driving erratically, was all over the road, and almost collided with the complainant's car. Cst. Alszegi approached Mr. Brar's car and spoke with Mr. Brar. Cst. Adhya testified that he watched Cst. Alszegi deal with Mr. Brar from about 10-15 feet away but did not himself have any direct interaction with Mr. Brar.

[8] Cst. Alszegi approached Mr. Brar's car at the driver's window. He tried to get Mr. Brar's attention by knocking on the window, but Mr. Brar did not respond to him immediately. He said Mr. Brar seemed confused. Mr. Brar's movements, including turning the engine off and taking off his seatbelt, seemed slow. Cst. Alszegi said Mr. Brar seemed to have trouble finding the seatbelt buckle and removed his belt very slowly, guiding it around himself in a purposeful way. Once Mr. Brar opened the door of his car, Cst. Alszegi noticed a strong smell of alcohol. He asked Mr. Brar to get out of his car which Mr. Brar did, again slowly. The officer told Mr. Brar to follow him to the centre traffic median. As Mr. Brar walked to the median, Cst. Alszegi said that Mr. Brar's steps were slow and that he was unsteady and swaying. Once they reached the median, Cst. Alszegi asked Mr. Brar to stand with him. The officer said he noticed Mr. Brar swaying while standing still. Mr. Brar also reached out and held a light post to hold himself up.

[9] Cst. Alszegi got closer to Mr. Brar and noticed that he had watery, bloodshot and red-rimmed eyes. The officer asked Mr. Brar if he had anything to drink. Mr. Brar responded "I did not drink anything tonight." Cst. Alszegi could smell a strong odour of alcohol on Mr. Brar's breath as he spoke. Cst. Alszegi said that, based on his observations, and the information he had received from the complaint and Cst. Adhya about Mr. Brar's driving, he decided to arrest Mr. Brar for impaired driving.

[10] Mr. Brar testified that, as he walked towards Cst. Alszegi, he told the officer that he had not had any alcohol in about an hour. His testimony did not otherwise contradict anything that Cst. Alszegi said about the events at the roadside.

2.1.2. Parties' Positions

[11] Mr. Lent, on behalf of Mr. Brar, says that Cst. Alszegi did not have sufficient grounds to arrest his client. First, he questions Cst. Alszegi's observations of his client's alleged motor movement difficulties at the roadside. Mr. Lent noted that Cst. Adhya did not notice any problems with Mr. Brar walking to the centre median. Mr. Lent also says that when Cst. Alszegi was shown video of Mr. Brar walking at 22 Division, the officer said that the video showed the same unsteadiness that he had noticed at the scene. Mr. Lent says that, contrary to Cst. Alszegi's testimony, the video does not show that his client was unsteady; therefore, if Mr. Brar had in fact been walking as he was on the video while at the roadside, it would not have strengthened the officer's grounds. Second, Mr. Lent notes that Cst. Alszegi was incorrect when he testified that Cst. Adhya told him that Mr. Brar had been driving "all over the road." Mr. Lent said Cst. Adhya did not testify about speaking with Cst. Alszegi at all, and that all Cst. Adhya saw was Mr. Brar straddling the dotted lane-line for an unspecified distance.

[12] Crown counsel, Mr. Hendry, argues that Cst. Alszegi had ample grounds to arrest Mr. Brar. Mr. Hendry says that, though Cst. Alszegi did not speak to Cst. Adhya, he did hear over the radio about Mr. Brar's poor driving. Moreover, Cst. Alszegi's observations of Mr. Brar's indicia of impairment are confirmed by video evidence from 22 Division. Mr. Hendry says that the video shows that Mr. Brar was having difficulty, walking, standing and turning corners. In addition, Mr. Brar eating toilet paper at the police division confirms he was impaired.

2.1.3. Analysis

[13] I agree with the Crown that Cst. Alszegi had sufficient grounds to arrest Mr. Brar.

[14] First, I do not agree that Cst. Alszegi's testimony about Mr. Brar's walking on the booking video undermines his observations of Mr. Brar's motor movement difficulties at the roadside. Cst. Alszegi did not just testify about how Mr. Brar walked at the roadside. The officer also testified about Mr. Brar's movements before he got out of his car. Mr. Brar seemed confused and did not respond right away. He was deliberate with his movements, including the routine act of taking off his seatbelt. These observations are consistent with Mr. Brar's conduct at 22 Division, as captured on video (albeit not the portion that Cst. Alszegi was asked about). Mr. Brar appeared confused a number of times. His movements were deliberate and slow. He acted like someone who was extremely intoxicated, even if he was not always walking unsteadily or swaying while standing still.

[15] Moreover, the fact that Cst. Adhya did not see any of the motor movement difficulties that Cst. Alszegi saw does not undermine Cst. Alszegi's observations. Cst. Alszegi was the one in charge of the investigation, not Cst. Adhya. He was the one instructing Mr. Brar to walk to the median, and was watching him walk. His job that evening was specifically directed at investigating impaired drivers. His evidence about Mr. Brar's movements is more reliable than Cst. Adhya's. I also noted that Cst. Adhya did see the more obvious action that Mr. Brar made of reaching out to hold on to the light post for support. Further, even though Cst. Adhya did not tell Cst. Alszegi that Mr. Brar was "all over the road," that information was part of the complaint. Cst. Alszegi knew that information even if he was wrong about its source.

[16] Finally, although the portion of the video that Cst. Alszegi commented on did not show Mr. Brar having any difficulty walking, the video shows several other signs of Mr. Brar not just being impaired but being quite intoxicated. Mr. Brar's behaviour was unusual. He was putting toilet paper in his mouth. He seemed to have difficulty following conversation with the officers. And of course, Mr. Brar had urinated in the back of the police car, and fell asleep immediately afterwards.[1]

[17] Cst. Alszegi's grounds to arrest Mr. Brar included the following: his knowledge of the complaint from the complainant, whom he believed to be a bar manager; the smell of alcohol from Mr. Brar and Mr. Brar's red-rimmed, watery eyes; the fact that Mr. Brar was initially non-responsive, seemed confused, and very deliberately removed his seat belt; Mr. Brar's difficulty walking and swaying while standing still, including Mr. Brar steadying himself using the light post. The foregoing provided the officer ample grounds to arrest Mr. Brar for impaired driving. There was no s. 8 or s. 9 breach because of an improper arrest.

2.2. Section 10(b)

2.2.1. Facts

[18] Cst. Alszegi informed Mr. Brar of his right to retain counsel while at the roadside. When the officer asked Mr. Brar if he had a specific lawyer whom he wanted to call, he said he wanted to call Sanjir Passi. Cst. Alszegi then read Mr. Brar the breath demand, to which Mr. Brar responded "Okay, fine. I will provide my alcohol breath."

[19] Once at the division, Cst. Alszegi testified that he called Mr. Passi. The officer could not remember if Mr. Brar gave him the phone number of if the officer had to look it up on his own. Cst. Alszegi left a voicemail for Mr. Passi at 3:58 am. Cst. Alszegi said that Mr. Passi's voicemail message did not provide an alternate number to reach Mr. Passi. At 4:09 am, because Mr. Passi had not called back and because it was early morning, Cst. Alszegi asked Mr. Brar if he wished to speak to duty counsel while they waited for Mr. Passi to call back. Mr. Brar agreed to speak to duty counsel. Duty counsel called back at 4:18 am and Mr. Brar was taken to a private room to consult with counsel. Mr. Brar remained in the consultation room until 4:33 am. Mr. Brar was not taken into the breath testing room until 5:00 am. Mr. Passi did not call back at any time prior to the test.

[20] In the breath testing room, Sgt. Passmore asked Mr. Brar if he had a chance to speak to duty counsel. Mr. Brar appeared confused and did not seem to recall the conversation. Consequently, Sgt. Passmore asked Cst. Alszegi to call duty counsel back. Duty counsel called back at 5:11 am and Mr. Brar was taken from the breath room to speak to duty counsel. Mr. Brar re-entered the breath room at 5:33 am. Sgt. Passmore asked Mr. Brar if he had understood what the lawyer told him. Mr. Brar eventually said he did understand. Sgt. Passmore then read Mr. Brar the police cautions. It is worth noting that the foregoing discussion about whether Mr. Brar had understood duty counsel, and the reading of the police caution, took quite some time because Mr. Brar was having trouble following Sgt. Passmore and was doing things the police asked him not to do, including trying to eat toilet paper.

[21] Mr. Brar testified that when he could not get in touch with Mr. Passi, he asked to call another lawyer, Robert Lepore. He said he provided Mr. Lepore's number to the police. Cst. Alszegi was cross-examined about whether Mr. Brar had asked to contact any other lawyer. Cst. Alszegi said that Mr. Brar did not ask to contact any lawyer after Mr. Passi. Mr. Brar also testified that he was not satisfied with the legal advice that he got from his consultation with duty counsel and he still wanted to speak with either Mr. Passi or Mr. Lepore.

2.2.2. Parties' Positions

[22] Mr. Lent argues that the police breached his client's right to counsel of choice. He says that the police did not wait long enough for Mr. Passi to call back. He further argues that the police ought to have made the same efforts to contact counsel that his client would have. The police did not ask Mr. Brar if he wished to leave a message himself for Mr. Passi, nor did they ask him if he wanted to call someone to get the name of another lawyer. Mr. Brar also asked to call Mr. Lepore and the police made no attempt to get hold of this second lawyer. Mr. Lent also says that, even if his client did not ask to call Mr. Lepore, the police also did not ask Mr. Brar if he had another lawyer he wanted to call when they learned that Mr. Passi had not called back.

[23] Mr. Hendry says that there was no breach of s. 10(b) here. He says that the police made reasonable efforts to put Mr. Brar in touch with his counsel of choice. Mr. Hendry said that, given the time of day, the amount of time that police waited was not unreasonable. The police left a message for Mr. Passi at 3:58 am and Mr. Brar finished his last conversation with duty counsel at 5:38 am. By that time, Mr. Passi had not called back.

2.2.3. Analysis

[24] Before explaining whether s. 10(b) was breached, I will deal with the disputed fact about whether Mr. Brar asked to contact Mr. Lepore after he learned Mr. Passi had not answered the call. I do not accept Mr. Brar's evidence that he asked to speak to another lawyer. Mr. Brar's memory of what took place is simply not reliable. As mentioned above, the video depicts someone who is unquestionably drunk. On top of that, Mr. Brar's own testimony demonstrated that his recollection of the events that evening was not clear. For example, Mr. Brar initially denied knowing or being told that the doorway to the room he was changing in was being recorded on camera. When the video was played for him during cross-examination, he had to acknowledge that he was told about the camera and, indeed, saw the camera when the officer pointed to it. I have no faith that Mr. Brar's memory about events is reliable.

[25] However, whether or not Mr. Brar asked for a second lawyer, I still find that the police violated Mr. Brar's right to counsel of choice.

[26] Mr. Brar had asked to speak to Mr. Passi. Therefore, when Mr. Brar had finished his call with duty counsel, he had still not properly exercised his right to counsel. While there was nothing wrong with the police offering Mr. Brar the chance to call duty counsel while he waited for Mr. Passi to call back, his agreement to speak to duty counsel did not cancel his original request to speak to counsel of choice. And despite his poor memory of events, I accept his testimony that he still would have called Mr. Lepore as an alternative to Mr. Passi. Mr. Brar testified that he knew Mr. Lepore because Mr. Lepore had represented him before.

[27] The police in this case did not ask Mr. Brar if he wished to call duty counsel instead of his counsel of choice. Rather, Cst. Alszegi suggested a call to duty counsel (which Mr. Brar had not requested). The difficulty with that approach is that it seemed to leave the police with the impression that they had complied with s. 10(b) when they had not. Mr. Brar still had an outstanding request to speak with Mr. Passi. The police did not tell him that Mr. Passi had not called back. More importantly, the police did not ask Mr. Brar if he wanted to call another lawyer since his counsel of choice had not responded.

[28] When the police believe that they have waited a reasonable amount of time for counsel of choice to call back, they ought to inform a detained person that counsel has not called back and they have the option of calling another lawyer (or speaking with duty counsel if they do not know of another lawyer). The police should not assume that, because a detainee only mentions one name, the detainee only wants to speak with that lawyer.

[29] As this court held in R. v. Maciel, where the police assume control over a detainee's access to consult counsel, it is for the courts to assess the adequacy of their efforts to facilitate access to counsel, including access to counsel of choice.

[42] Quite obviously, it is not my role to second-guess police operational procedures. And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.

[43] If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case. [emphasis added]

[30] In this case, despite my finding that Mr. Brar did not ask to call another lawyer (Mr. Lepore), I accept that he at least knew of another lawyer whom he could call. The police are not only in control of the means for a detainee to contact counsel. They are also the ones who inform detainees about their legal rights. I accept that the police cannot be expected to offer advice to detainees. But at the same time, it is hardly onerous to remind detainees that they may call any lawyer. Where the police are unable to reach counsel of choice, or it is apparent that counsel of choice is not responding, as a next logical step the police should ask the detained person whether he or she wishes to call another lawyer, or is content with duty counsel.[2] That is especially so where, as here, someone has expressed dissatisfaction with the legal advice he has received form duty counsel.

[31] The police did not adequately facilitate Mr. Brar's access to counsel of choice. I find that they breached his right to counsel.

2.3. Section 9: Alleged Over Holding and Mistreatment

2.3.1. Facts Relating to the Over-holding

[32] Mr. Brar left the breath room at 6:00 am after Sgt. Passmore had decided to charge him with refusing to provide a breath sample. He was lodged in the cells. Cst. Alszegi served Mr. Brar with various documents relating to the charge at about 6:16 am. Those documents included the 90-day administrative license suspension, the seven-day vehicle impoundment, and the notice to seek an increased penalty. Cst. Alszegi testified that he explained the documents to Mr. Brar and he believed that Mr. Brar understood them. Cst. Alszegi testified that he offered to call someone for Mr. Brar, but that Mr. Brar said, "No don't call anyone. I will drive myself." Mr. Brar also would not provide any phone numbers to the officer so Cst. Alszegi did not believe he was able to arrange for him to be picked up. Cst. Alszegi said he had finished serving and explaining the documents to Mr. Brar by 6:19 am.

[33] Sgt. Hogan was the acting Staff Sergeant at 22 Division the morning of October 21. As the officer in charge of the division, he would decide when Mr. Brar would be released. He testified that at 7:06 am, Cst. Alszegi informed him that Mr. Brar had refused to provide a sample and that he was still impaired. Cst. Alszegi had also said Mr. Brar could be released on a Form 10. Sgt Hogan testified that just before Cst. Alszegi informed him of this, Sgt. Hogan had told him that Mr. Brar was in custody for a refuse charge. Sgt. Hogan said that Cst. Alszegi told him that Mr. Brar did not want the police to call anyone for him because he wanted to drive himself home. Sgt Hogan testified that he would have released Mr. Brar at that point "if someone was to come and pick him up and to ensure that he was going to be released into that person's custody or care."

[34] Sgt. Hogan said that at 9:25 am, the cells officer, Cst. Champagnie, was able to get hold of Mr. Brar's family. He was told that Mr. Brar's father would pick him up. Sgt. Hogan testified that at 10:40 am, Cst. Champagnie told him that he had called the family back to see where they were and he was told that nobody would be picking Mr. Brar up. Consequently, Sgt. Hogan decided that they would call a cab for Mr. Brar. Sgt. Hogan believed that enough time had passed that Mr. Brar would be fine to leave on his own. Sgt. Hogan testified that, though he did not know Mr. Brar's level of sobriety, because he had not observed him, nor had he gotten any information about it, he believed that enough time had passed that Mr. Brar could be safely released. Sgt. Hogan agreed in cross-examination that, had a responsible adult been able to pick up Mr. Brar, he would have released him at 6:19 am.

[35] Sgt. Hogan acknowledged in cross-examination that Cst. Alszegi gave him no details about why he believed Mr. Brar was impaired. Sgt. Hogan was not aware that Mr. Brar had been served with the license suspension and impoundment documents. Sgt. Hogan could not say whether anyone told Mr. Brar that he could leave if a responsible adult picked him up.

[36] Cst. Champagnie appeared to have very little recollection being involved with Mr. Brar's matter. He testified that he did not have any conversations with Cst. Alszegi and that he could not recall if he had contacted any family members for Mr. Brar. He said that if he called someone to have a detained person picked up, he would not make a note of it. But he said he would make a note if he called someone and did not get a response or if he called someone and was told that the person would not be picking up the detained person from the division.

[37] Mr. Brar testified that the police did ask him whether a responsible adult could come to the division to pick him up. Mr. Brar said that he told them his mother could and he provided her cell phone and a home land line numbers. Mr. Brar acknowledged in cross-examination that he knew his mother's car would be impounded and that he knew his mother would be upset with him.

[38] Mr. Brar's mother, Paramjit Brar, testified that she did in fact receive a call from the police on the morning of October 21. She said that she was asked if she was Mr. Brar's mother and was told that he was at the police station. She said she said nothing in response. She remembered nothing more about the conversation. In cross-examination, she said the conversation lasted half a second. She testified that, had she been asked, she would have been able to pick her son up at the station that morning. Ms Brar also said that both her husband and daughter could have gone to the station. Ms Brar said she was unaware if the police called her home at 10:40 am and that someone told the police that nobody would be picking up Mr. Brar.

2.3.2. Facts Relating to the Alleged Mistreatment

[39] On the way to 22 Division, Mr. Brar told Cst. Alszegi that he had to use the washroom. When they arrived at 22 Division, another police car was in the sally port, so Cst. Alszegi could not take Mr. Brar into the division immediately. However, because Mr. Brar had told the officer he needed to use the washroom, Cst. Alszegi said that he decided to leave Mr. Brar in the back of his car and see how fast he could facilitate a washroom visit. Cst. Alszegi returned to the car after about three minutes and found that Mr. Brar had urinated himself and was now asleep. Mr. Brar remained in the back seat of the car for almost 20 minutes until Cst. Alszegi was able to enter the division.

[40] After entering the division, Mr. Brar was taken to a room to change into a full bodysuit. Mr. Brar was taken to a room so that he could change in privacy. The entrance to the room was visible on video but the part of the room where Mr. Brar was directed to actually change was not. The video shows Mr. Brar moving into view of the camera and being instructed by an officer to step back. At one point, it is apparent that the officer points towards the camera to let Mr. Brar know that he should not step near the room's doorway while he is changing. Although Mr. Brar initially testified that he was not aware of the camera, in cross-examination when presented with the video, he acknowledged that the police pointed out the camera to him.

[41] Shortly after Mr. Brar was first taken to the breath room, he asked to use the washroom. Cst, Alszegi took Mr. Brar to the washroom. On the way back to the breathroom, Cst. Alszegi noticed that Mr. Brar had put toilet paper in his mouth. Cst. Alszegi directed Mr. Brar to spit out the toilet paper. When Mr. Brar did not do so immediately, Cst. Alszegi put his hand on the back of Mr. Brar's neck and forced it downwards towards a garbage can where Mr. Brar would be able to spit out the paper. Cst. Alszegi continued to hold onto Mr. Brar after he had spit out the toilet paper, as he walked him back to the breath room.

2.3.3. Parties' Positions

[42] Mr. Lent's principal argument is that his client's s. 9 Charter rights were breached because he was held in custody for over four hours longer than was necessary. Mr. Lent says that no officer checked on his client during those four hours to assess his level of impairment or sobriety. Mr. Lent said that if Cst. Alszegi thought that Mr. Brar was sober enough to understand the documents he was served with, he was sober enough to have been released. At the very least, Mr. Lent says the police should have told his client that he could leave if a responsible adult could pick him up. To this over-holding argument, Mr. Lent also adds what he says is the police's mistreatment of his client. Mr. Lent says the police ought not to have left Mr. Brar sitting in the back of the police car in his own urine for 20 minutes; that Cst. Alszegi used unnecessary force when he applied force to Mr. Brar's neck and arm when trying get Mr. Brar to spit toilet paper out of his mouth; and that the police allowed Mr. Brar to change into the coveralls in a place that was being video-recorded.

[43] Mr. Hendry says that there was no over-holding in this case. Mr. Hendry says that Mr. Brar was clearly impaired and wanted to drive himself home. He says that Sgt. Hogan's evidence is more reliable than Cst. Champagnie's because the former made notes about Mr. Brar. Mr. Hendry also says that there was no legal requirement to tell Mr. Brar his options and that if nobody could drive him home, he would have to remain in custody. That fact should have been obvious to Mr. Brar. As for the allegations of mistreatment, Mr. Hendry says that there was no mistreatment. The police did not wake up Mr. Brar after he urinated because they could not take him into the booking area. Further, Cst. Alszegi's use of some force to have Mr. Brar spit out toilet paper was reasonable to ensure that he got the toilet paper out of his mouth. Finally, Mr. Brar was the one who was moving into view of the camera in the face of the police's direction to move out of camera range.

2.3.4. Analysis

[44] I agree with the Crown that Mr. Brar's s. 9 rights were not breached. Mr. Brar was clearly intoxicated at 6:00 am. When he left the breath testing room he was still showing significant signs of impairment. Despite having been told his license was being suspended and the car he was driving was being impounded, he told the police not to call anyone because he wanted to drive home himself. The police would have been remiss had they released him in that state. Calling a taxi for him at 6:19 am would have been negligent. Without a responsible person to pick him up, the police could not have released him.

[45] While I agree that it would have been prudent for Sgt. Hogan to have checked on Mr. Brar personally, he was entitled to act on Cst. Alszegi's opinion that Mr. Brar was impaired. He was also entitled to conclude from Mr. Brar's statement that he wanted to drive himself home, that he was significantly impaired and not capable of making reasonable choices. And as I said above, Mr. Brar was, in fact, clearly intoxicated.

[46] I also cannot find that the police mistreated Mr. Brar in any way. First, I do not understand Mr. Lent to argue that any of this alleged mistreatment by itself, constituted a breach of s. 9. Rather, Mr. Lent argues that it forms part of the s. 9 over holding breach. As for the police's failure to remove Mr. Brar from the back of the police cruiser sooner, I cannot agree with Mr. Lent that this constituted mistreatment. Cst. Alszegi could not bring Mr. Brar in any sooner. Had he removed Mr. Brar from the cruiser, he still would have been in soiled clothing but rather than waiting inside the car, he would have been in the garage. As for Cst. Alszegi's handling of Mr. Brar when he was trying to get Mr. Brar to spit out the toilet paper, I cannot accept that the officer's use of force was unreasonable. Cst. Alszegi was dealing with a drunk person who had put toilet paper in his mouth. Putting aside the need to remove the paper for the purpose of the Intoxilyzer tests, there was a real risk that Mr. Brar could have choked on the paper. Mr. Brar was not being cooperative when asked to spit out the paper. It is understandable that Cst. Alszegi used some extra force when trying to have Mr. Brar spit out the paper. Finally, I cannot find that the police did anything wrong when they had Mr. Brar change into the coverall garment. Mr Brar was taken to a room to afford him privacy. The camera that ultimately captured Mr. Brar was only able to record him because he kept moving into its view despite being told repeatedly by police to move out of its view. Mr. Brar himself acknowledged in cross-examination that the police had told him about the camera. It is unclear what more the police could have done to ensure that Mr. Brar was not captured on video.

[47] Mr. Brar's s. 9 Charter rights were not breached. This ground of his challenge fails.

2.4. Section 24(2) of the Charter

[48] Having found that Mr. Brar's s. 10(b) right to counsel of choice was breached, I must consider the three-step inquiry in R. v. Grant to decide whether the evidence of his refusal should be excluded under s. 24(2) of the Charter. Although there has been some debate whether a court can properly exclude a refusal – because it forms the actus reus of the offence – I am bound by the decision in R. v. O'Shea,[3] which adopted the reasoning of this court's decision in R. v. Soomal.[4] I note that the Crown in this case did not argue that I should not apply s. 24(2) if I found a breach.

[49] On the first step of the Grant inquiry, I find that the breach was serious. The police did show some good faith in trying to ensure that Mr. Brar could speak to a lawyer while he waited for his own counsel of choice to call back. However, they were less than diligent in making sure that Mr. Brar had a reasonable opportunity to consult his counsel of choice, and to ensure that he was aware of his right to call another lawyer, rather than duty counsel, if Mr. Passi did not call back. I find that this step of the Grant inquiry favours exclusion.

[50] I also find that the second step of the Grant inquiry favours exclusion. Where a driver refuses to comply with a breath demand, his or her inability to first consult counsel will almost always make the impact of the breach more serious. Had Mr. Brar been able to speak to a lawyer he was comfortable speaking to, he would have been able to make a more informed choice about whether to comply with the demand.

[51] Finally, though the third step of the Grant inquiry will almost always favour inclusion, where the first two steps strongly favour exclusion, the third step will not save the evidence from exclusion.[5] Consequently, balancing the three factors in this case, I would exclude the evidence of Mr. Brar's refusal.

[52] There being no evidence of Mr. Brar's refusal, I find Mr. Brar not guilty of refusing to provide a breath sample.

3. The Impaired Driving Charge

[53] I am satisfied beyond a reasonable doubt that Mr. Brar was impaired by alcohol when Cst. Alszegi pulled him over. I make that finding based on Cst. Alszegi's roadside observations as corroborated by the video of Mr. Brar at 22 Division.[6] The video of Mr. Brar at 22 Division shows someone who could not follow a simple conversation with Sgt. Passmore, when the officer was trying to find out from Mr. Brar whether he had spoken to a lawyer. Mr. Brar also kept ignoring the direction of the police not to change within view of the camera, that he now complains recorded him. Mr. Brar was also eating toilet paper. I cannot accept Mr. Lent's submission that he was simply doing so because he was nervous. It was bizarre behaviour and is consistent with a person who is so intoxicated, that he is willing to put dissolvable paper in his mouth, likely in a desperate attempt to defeat the Intoxilyzer.

[54] Finally, Mr. Brar's loss of bladder control in the police cruiser is another indication that he was extremely intoxicated. I cannot accept Mr. Lent's submission that the court would require medical evidence before finding that loss of bladder control is a sign of intoxication. To be clear, the time Mr. Brar had to wait to use the bathroom was not inordinately long. On his own evidence, he did not alert Cst. Alszegi about his need to use the washroom until they were already enroute to 22 Division. That drive was about 12 minutes. The video evidence is clear that Cst. Alszegi left Mr. Brar alone for only three minutes when he went to check if he could accommodate Mr. Brar's washroom request. At some point within those three minutes, Mr. Brar urinated in the car. Moreover, this is not just about Mr. Brar losing control of his bladder. He did not just urinate in the back of the car. He also fell asleep immediately afterwards. I do not need to hear from an expert to find that these circumstances are consistent with someone who is extremely intoxicated.

[55] Given all the foregoing, I conclude beyond a reasonable doubt that Mr. Brar's ability to drive was impaired by alcohol. He is guilty of that charge.

Released: January 20, 2020

Justice M.M. Rahman

Footnotes

[1] I explain below more about his urination and why I find that it is one factor that shows impairment.

[2] I made the same observation in analogous circumstances in R. v. Sivalingam, 2018 ONCJ 510 at paras. 23-24. As I said in that case, I do not suggest that this is an additional informational obligation. Rather it is a circumstance that impact on a court's assessment of the police's diligence in facilitating access to counsel.

[3] R. v. O'Shea, 2019 ONSC 1514.

[4] R. v. Soomal, 2014 ONCJ 220.

[5] R. v. McGuffie, 2016 ONCA 365.

[6] Mr. Lent did not make submissions specifically requesting that the video evidence be excluded as a remedy for any Charter breaches. His focus was on the refusal. His notice of application requested exclusionary relief in the following very general terms: "that the evidence obtained in violation of his rights ought to be excluded as it squarely falls within the components and meets the standard for exclusion under s. 24(2) of the [Charter]." It is unlikely that the video of Mr. Brar's earlier behaviour at the police division would be excluded because of the s. 10(b) breach (see R. v. Lutchmedial, 2011 ONCA 585; R. v. Kelly, 2014 ONSC 5617). However, anything that Mr. Brar said to police would be subject to exclusion. As a result, I have only considered the video evidence of Mr. Brar's actions within the division, and his conversation with the officers prior to the breach of his s. 10(b) rights. That breach occurred when Sgt. Passmore attempted to obtain a sample from Mr. Brar before he had a chance to consult counsel. I do not consider the conversation that Mr. Brar had with the police before that point, while they were explaining his rights to him, to be evidence that is subject to exclusion under s. 24(2).