Ontario Court of Justice

Date: September 2, 2020

Court File No.: Ottawa 19-A9636

Between:

Her Majesty the Queen

— AND —

Michael Pillar

Before: Justice P. K. Doody

Heard on: July 9, 10, 24, 2020

Reasons for Judgment released on: September 2, 2020

Counsel

Lindsay Little — counsel for the Crown

David Anber — counsel for the defendant

DOODY J.:

[1] Charges

Michael Pillar is charged with operating a conveyance while his ability to do so was impaired by alcohol or a drug, or both and having a blood alcohol level of 80 mg of alcohol in 100 ml of blood within 2 hours of ceasing to operate a conveyance. The offences are alleged to have been committed on May 24, 2019.

Overview and Issues

[2] Trial Procedure

The trial proceeded as a blended voir dire. The defendant did not testify on the voir dire or the trial.

[3] Established Facts

The following facts have been established or admitted.

[4] Initial Observations at Gas Station

On May 24, 2019 the defendant was at a gas station on St. Joseph Blvd. in Orleans. Devon Archer, an officer with the Ottawa Police Service who was off duty, was also at the gas station. Cst. Archer noticed that Mr. Pillar's speech was slurred and his eyes appeared "droopy" or "sleepy". He was concerned about Mr. Pillar's ability to drive.

[5] Police Follow and Call 911

Cst. Archer followed Mr. Pillar as he drove away from the gas station. His concern increased as a result of Mr. Pillar's driving. He called 911 to report a possible impaired driver. He continued to follow Mr. Pillar as he turned into a McDonald's restaurant parking lot and, after two minutes, left there and drove down St. Joseph Blvd. before turning into a parking lot beside a T-D Canada Trust office. He parked there and stayed in his car.

[6] On-Duty Officers Arrive

Cst. Archer drove into that parking lot and waited until Cst. Wade Walker, an on-duty officer with the Ottawa Police Service, arrived shortly thereafter at 9:01 p.m. He spoke with Cst. Walker briefly and then left. Cst. Walker went over to the defendant who was sitting in the driver's seat of his car.

[7] Second Officer Arrives

Cst. Amber Chouinard, another on-duty Ottawa Police Service officer, arrived at 9:02 p.m. She got out of her cruiser and walked over to the defendant's car.

[8] Approved Screening Device Demand

At 9:04 p.m., Cst. Walker demanded that Mr. Pillar provide a sample of his breath into an approved screening device.

[9] Approved Screening Device Test and Arrest

Cst. Walker got the approved screening device out of his cruiser and Mr. Pillar provided a sample of his breath. He failed the test. Cst. Walker arrested him for impaired operation of a conveyance and over 80 at 9:07 p.m.

[10] Right to Counsel and Breath Demand

At 9:15 p.m., Cst. Walker told Mr. Pillar that he had a right to counsel. He then told him again why he was under arrest, asked if he wanted to speak to counsel, provided the standard police caution and secondary caution, and the s. 524 warning. At 9:18 p.m., he demanded that he provide him with a sample of his breath into an approved instrument and accompany him for that purpose.

[11] Vehicle Search

Cst. Chouinard searched the vehicle. She found a 12 ounce bottle of gin, about half full, in the console between the driver's seat and the passenger seat. She gave it to Cst. Walker at 9:19 p.m.

[12] Transport to Station

At 9:23 p.m., Cst. Walker drove out of the parking lot with Mr. Pillar in his cruiser. They arrived at the central station at 9:35 p.m.

[13] Contact with Counsel

At approximately 10:24 p.m., Mr. Pillar spoke to Gary Barnes, a lawyer.

[14] Breath Test Results

At 10:47:58 p.m., Mr. Pillar provided a sample of his breath which was analyzed by the Intoxlyzer to show 185 mg of alcohol in 100 ml of blood, truncated to 180. At 11:10:35, he provided a second sample which was analyzed to show 180 mg of alcohol in 100 ml of blood.

[15] Defendant's Submissions

The defendant makes the following submissions:

(a) the demand that he provide a sample of his breath into an approved screening device was not made "immediately" as is required by s. 320.27 of the Criminal Code, so that his s. 8 right to be free from unreasonable search and seizure was breached;

(b) Cst. Walker breached his s. 10(b) right to be informed of his right to counsel "without delay" when he waited until 9:15 p.m. to do so;

(c) the Intoxlyzer test was not performed "as soon as practicable" because the police improperly convinced him to speak to a lawyer when he had clearly waived that right;

(d) by failing to perform the Intoxlyzer test as soon as practicable, the police failed to comply with s. 320.28 of the Criminal Code and breached the defendant's s. 8 right;

(e) the results of the breath samples should be excluded under s. 24(2) as a result of all of these breaches; and

(f) the Crown has not proven beyond a reasonable doubt that the defendant's ability to drive was impaired by alcohol.

[16] Crown's Position

The Crown takes issue with all of these submissions.

[17] Issues to Address

I will deal with each issue in turn.

The Approved Screening Device Demand Was Made Immediately

[18] Statutory Requirement

Sub-section 320.27(1) provides that if a peace officer has reasonable grounds to suspect that a person has alcohol in their body has, within the preceding 3 hours, operated a conveyance, they may demand that they "immediately" provide suitable samples of breath necessary to enable a proper analysis to be made by an approved screening device. Sub-section 320.27(2) provides that if a peace officer has in his or her possession an approved screening device, they may by demand require the person who is operating a motor vehicle to "immediately" provide such a breath sample.

[19] Meaning of "Immediately"

The provisions of s. 320.27(1) are essentially the same (but for the replacement of the word "forthwith" with the word "immediately") as in the prior s. 254(2)(b), which was repealed and replaced with s. 320.27(1). "Forthwith", however, meant "immediately", so the change is immaterial. (R. v. Woods, 2005 SCC 42)

[20] Flexible Interpretation in Unusual Circumstances

As the Court held in Woods, however, in the context of s. 254(2), the word "may, in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment – see Bernshaw."

[21] Five-Part Test from Quansah

In R. v. Quansah, 2012 ONCA 123 at paras. 45-49 and 52, LaForme J.A., writing for the court, held that the immediacy requirement contained in s. 254(2):

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

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

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

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

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

In my respectful opinion, articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time necessary for the prompt performance of the steps contemplated by s. 254(2).

[22] Application in Quansah

In Quansah, the Court of Appeal held that the "forthwith" requirement was met where, after the officer formed a reasonable suspicion that the detainee had alcohol in his body because he smelled alcohol on his breath, saw that his eyes were red, unfocused and glossy, and was unsteady on his feet, he waited 11 minutes before making the demand and a further 6 minutes before performing the test. During this time, the officer conducted a limited search of his car for weapons, had a short conversation with him about his alcohol consumption, and checked out the assertion that there was another person in the car with him. LaForme J.A. concluded that the delay was reasonably necessary for the officer to properly perform his task.

[23] Defence Submission on Timing

Defence counsel submits that Cst. Archer formed a reasonable suspicion that Mr. Pillar had alcohol in his body no later than 9:02 p.m., one minute after he arrived on scene. He submits that there is no justification for the 2 minute delay between then and 9:04 p.m., when he made the demand.

[24] Crown Submission on Timing

Crown counsel submits that Cst. Walker formed his reasonable suspicion at either 9:02 p.m. or 9:03 p.m., after which he gave him the standard caution before making the demand at 9:04 p.m. She submits, "This is immediately in the sense of the law."

[25] Finding on Immediacy

I find that Cst. Walker made the ASD demand immediately after forming the requisite reasonable suspicion, as that phrase has been interpreted in the caselaw, particularly in Quansah.

[26] Cst. Walker's Evidence on Initial Contact

Cst. Walker testified that he arrived on scene at 9:01 p.m. Cst. Archer was already there in his car, which was parked in the parking lot. Cst. Walker saw him waving his arms at him. He went to Cst. Archer's car and spoke to him briefly. Cst. Archer told him that he saw the man in the other vehicle pumping gas, and he was concerned that he may be intoxicated. He said that he had followed him as he drove away, and was concerned about his driving pattern. Cst. Walker testified that this gave him enough information to confirm that that man was the suspect in an impaired driving investigation. He testified that this conversation took approximately 30 seconds. He did not record what time it finished.

[27] Cst. Walker Approaches Defendant

Cst. Walker testified that he then drove over to the defendant's vehicle. Mr. Pillar was in the driver's seat. Cst. Walker got out of his car, approached the driver's window, and knocked on it. He testified that he told Mr. Pillar that someone had called in and said that he was driving while intoxicated, and asked him to step out of the car. Mr. Pillar did so.

[28] Cst. Walker's Observations and Caution

Cst. Walker testified that he smelled an odour of alcohol from both Mr. Pillar and the vehicle. He noted that Mr. Pillar was steady on his feet but, because of the smell of alcohol and what Cst. Archer had told him, he was concerned that Mr. Pillar might be impaired. When he got out of the car, he gave him the standard caution because he was investigating him and he wanted to ensure that anything Mr. Pillar said could be used in court. Cst. Walker said that after cautioning Mr. Pillar, he asked him if he had had anything to drink in the last little while. Mr. Pillar replied that he had not.

[29] Cst. Walker's Explanation for Pre-Demand Questions

Cst. Walker was asked in examination in chief why he had asked Mr. Pillar if he had had anything to drink before he made the ASD demand. He said that he had done so to rule out any potential that there was alcohol residue in his mouth. He acknowledged that he could have made the demand before asking whether he had had anything to drink, but said that he had decided to ask first. In cross-examination, he testified that he had asked Mr. Pillar for his driver's licence as soon as he stepped out of his vehicle, and looked at the licence.

[30] Cst. Chouinard's Arrival

Cst. Chouinard testified that she arrived on scene at approximately 9:02 p.m. Cst. Walker and Mr. Pillar were standing outside Mr. Pillar's car, talking to each other.

[31] Credibility Assessment

I accept Cst. Walker's evidence. He was careful in his answers. His evidence was not significantly affected by cross-examination.

[32] Cst. Walker's Credibility on Inconsistency

He did agree that, in the prosecution summary prepared sometime after the events, he had written that Mr. Pillar had been unsteady on his feet, swaying gently from side to side. However, in his notebook and his investigative action report, prepared earlier, he had not written that he was unsteady. He had written in the investigative action report that he was "steady on his feet". He freely acknowledged that, before reviewing his notes and his investigation action report, he did not recall. But after reading them, his recollection was, as he had testified in chief, that Mr. Pillar was steady on his feet. In my view, this does not negatively reflect on his credibility. Quite the opposite. He made the contemporaneous notes – the duty book notes and the investigative action report – so that he could record the events when they were fresh in his mind. He relied on them to refresh his memory before testifying, as is appropriate. His willingness to admit that he made a mistake in the prosecution summary goes to his credit.

[33] Formation of Reasonable Suspicion

I find that Cst. Walker formed a reasonable suspicion that Mr. Pillar had alcohol in his body shortly after he lowered his driver's window and he spoke with him. At that point, Cst. Walker had been told of Cst. Archer's concerns and smelled alcohol from both Mr. Pillar and the vehicle.

[34] Timing Analysis

That time was approximately 9:02 p.m. The defendant submits that Cst. Chouinard's evidence confirms that Mr. Pillar was outside his car, talking to Cst. Walker, at approximately 9:02 p.m. The defendant submits that this means that "there was probably a delay of 2 minutes" before Cst. Walker gave the ASD demand. We do not know whether Cst. Chouinard saw the defendant speaking to Cst. Walker outside his car at 9:02:01 or 9:02:59 or sometime in between. Or whether Cst. Walker gave the demand at 9:04:01 or 9:04:59 or some time in between. If Cst. Chouinard arrived at 9:02:59 and Cst. Walker gave the demand at 9:04:01, the delay could have been just over a minute.

[35] Intervening Steps

But nothing is gained by this split-second reconstruction. As I have found, Cst. Walker asked for Mr. Pillar's driver's licence, looked at it, cautioned him that he need not say anything and that anything he did say would be taken down and may be used in evidence against him, and asked him if he had had anything to drink in the last little while before making the ASD demand.

[36] Conclusion on ASD Demand Timing

In my view, considering the extremely brief period of time this would have taken, the Crown has satisfied me on the balance of probabilities that Cst. Walker made the demand immediately after forming the requisite reasonable suspicion. There was no s. 8 breach as a result of the timing of the ASD demand.

Mr. Pillar's s. 10(b) Rights Were Breached by the Delay in Informing Him of His Right to Counsel

[37] Defendant's Submission on s. 10(b) Breach

The defendant submits that the 8 minute delay between 9:07 p.m., when Cst. Walker arrested him for over 80 and impaired driving, and 9:15 p.m., when he advised him of his right to counsel, breached his s. 10(b) right to be informed of his right to counsel without delay.

[38] Crown's Submission on Delay

Crown counsel submits that the delay was necessary because Cst. Walker was, in the interim, taking reasonable steps to ensure his safety.

[39] Legal Standard for s. 10(b)

When an individual is arrested or detained, s. 10(b) of the Charter guarantees the individual the right to retain and instruct counsel "without delay" and to be informed of that right. Subject to concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter, "without delay" means "immediately". (R. v. Suberu, 2009 SCC 33; R. v. Thomson, 2020 ONCA 264 at para. 67)

[40] Exceptions to Immediate Notification

In R. v. Rover, 2018 ONCA 745, Doherty J.A. wrote:

Section 10(b) obliges the police to advise a detained person of the right to speak with counsel without delay and, if the detained person exercises that right, the police must immediately provide the detainee with a reasonable opportunity to speak to counsel: R. v. Suberu, 2009 SCC 333; R. v. Bartle.

The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, [1998] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24; R. v. Soto, 2010 ONSC 1734; Learning; R. v. Wu, 2017 ONSC 1003.

[41] Requirement for Concrete Circumstances

In R. v. La, 2018 ONCA 830, Roberts J.A. wrote at paras. 38-9:

As the trial judge properly recognized, it is well-established that the police must inform a detainee of his right to retain and instruct counsel and facilitate that right immediately upon detention, subject to concerns for officer or public safety and such limitations prescribed by law and justified under s. 1 of the Charter: R. v. Suberu, 2009 SCC 33; Rover.

Those concerns must be circumstantially concrete. General or theoretical concern for officer safety and destruction of evidence will not justify a suspension of the right to counsel: R. v. Wu, 2017 ONSC 1003; R. v. Patterson, 2006 BCCA 24; R. v. Proulx, 2016 ONCJ 352. Rather, the assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination: Wu.

[42] Cst. Walker's Actions After Arrest

Cst. Walker testified that after he told Mr. Pillar at 9:07 p.m. that he was under arrest for impaired driving and over 80, he turned him around, placed cuffs on his hands behind his back, and took him to his cruiser, where he placed him inside. He then checked police records to see if Mr. Pillar had been charged with any other offences or whether any conditions had been placed on his driver's licence, to see if he could be charged with other offences. He said that the record search would have taken less than a minute, although he did say that sometimes it took longer at night.

[43] Cst. Walker's Explanation for Delay

When asked again why it took him 8 minutes between the arrest and informing Mr. Pillar of his right to counsel, Cst. Walker repeated that he searched him next to his vehicle and took him to his cruiser. Once he was satisfied that he was in the car appropriately, he ran his licence quickly on the onboard computer.

[44] Cst. Walker's Safety Concerns

Cst. Walker was asked in examination in chief if he had any concerns for his own safety. He replied that he had no concerns for his own safety – Mr. Pillar had been cooperative with the police.

[45] Cst. Walker's Understanding of s. 10(b)

Cst. Walker was asked for his understanding of the right to counsel. He testified that he understood that someone who had been arrested or detained must be told immediately after arrest why he is under arrest and that he has the right to speak to counsel without delay. He then said that it had to be delivered "as soon as possible for him basically taking into account officer safety".

[46] Cross-Examination on Timing

In cross-examination, Cst. Walker testified that there was nothing stopping him from telling Mr. Pillar that he had the right to counsel immediately after he told him why he was under arrest and before he cuffed and searched him. He said that it was force policy that once a person is arrested they must be searched for safety reasons because they sometimes become uncooperative. He agreed that that was because of the possibility that someone who is cooperative may become uncooperative. He also agreed that the reason for the delay was the search.

[47] Duration of Search

He testified that while the defendant was wearing only jeans and a golf shirt, and it may be reasonable to assume that it would take about a minute to search him, he could not say how long it actually took. Later, he said that it may have taken two minutes.

[48] Finding on Timing of s. 10(b) Notification

I conclude that Cst. Walker did not advise Mr. Pillar of his right to counsel immediately after arrest.

[49] Analysis of Delay Components

Even if it was necessary for officer and public safety to confine him and search him before advising him of his right to counsel, he was confined when he was cuffed. That took, on Cst. Walker's own evidence, 10 to 15 seconds. I find, from the evidence of Cst. Walker about his own search and the video evidence of the search in the station which took about two minutes, that Mr. Pillar was cuffed and searched in less than 2 ½ minutes after he was placed under arrest.

[50] Unjustified Delay

The remaining 5 ½ minutes was spent taking him over to the cruiser, placing him inside, Cst. Walker getting in the front seat of the cruiser, and querying his onboard computer to determine if other charges could be laid against Mr. Pillar. None of that was necessary for officer or public safety. This delay alone constituted a breach of his s. 10(b) informational right.

[51] Conclusion on s. 10(b) Breach

I have concluded that Mr. Pillar has established, on a balance of probabilities, that his informational s. 10(b) right was infringed when Cst. Walker did not advise him of his right to counsel at least as soon as he had been handcuffed. In the particular circumstances of this case, including the fact that Mr. Pillar was cooperative and Cst. Walker had no concerns for his own safety, there was no justifiable reason for delaying telling him of his right to counsel after he was cuffed. The policy which required that he be searched prior to being advised of his right to counsel was the result of a "general or theoretical concern for officer safety" of the type decried in La. There was no "fact specific contextual determination" of the necessity for delay, as that case requires.

[52] s. 10(b) Infringement Established

Mr. Pillar's s. 10(b) right to be advised of his right to counsel immediately after arrest was infringed.

Failure to Administer the Intoxlyzer Test as Soon as Practicable Is Not a Breach of s. 8 of the Charter

[53] Defendant's Submission on s. 8 Breach

The defendant submits that, as a matter of law, a failure to administer an Intoxlyzer test as soon as practicable is a breach of s. 8 of the Charter because s. 320.28 requires that both the breath demand be made and the test be administered "as soon as practicable" and if that is not done, the seizure of the breath is not authorized by law.

[54] Crown's Submission on s. 320.28

Crown counsel submits that the only obligation imposed on the police by s. 320.28 is that the breath demand be made as soon as practicable. She submits that the provision does not require that the test be administered as soon as practicable, and that any failure to do so does not amount to a breach of s. 8.

[55] Historical Context

In order to understand this issue, it is necessary to consider both the present provisions of the Criminal Code in respect of these things and the provisions which they replaced in December 2019.

[56] Prior Legislation

Prior to the changes brought about by Bill C-46, the phrase "as soon as practicable" appeared in three places dealing with Intoxlyzer tests – twice in s. 254(3), dealing with the demand that a person provide a breath sample, and once in s. 258(1)(c), which created the "presumption of identity" which provided an evidentiary shortcut deeming the results of the breath test to be the same as the blood alcohol concentration of the defendant at the time that the offence was committed.

[57] Former s. 254(3)

Section 254(3), in its relevant provisions, read:

(3) 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 section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) To provide, as soon as practicable,

(i) Samples of breath that, in a qualified technician's opinion, will enable proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood….

[58] Former s. 258(1)(c)

Section 258(1)(c)(ii), in its relevant provisions, read:

(c) Where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if

(i) …

(ii) Each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and …

evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was … the concentration determined by the analyses, …

[59] Bill C-46 Changes

Bill C-46 replaced the offence of driving over 80 (s. 253(1)(b)) with the offence of having a blood alcohol concentration 80 or over within two hours of driving (s. 320.14(1)(b)). There was thus no need to have a statutory provision which deemed the results of a test done later to be the same as at the time of driving.

[60] Current s. 320.28

Section 254(3) was reenacted by Bill C-46 as s. 320.28(1)(a)(i). It reads:

320.28(1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by alcohol … the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician's opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, …

[61] Defendant's Legal Argument

The defendant's submission is as follows:

(a) once an accused person has established that a warrantless search has occurred, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable; a search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable. (R. v. Collins); and

(b) subparagraph 320.28(1)(a)(i) requires, as did s. 254(3), that both the demand be made and the test be provided as soon as practicable; if not, the test (the search) is not authorized by law.

[62] Supreme Court Decision in Deruelle

In R. v. Deruelle, the Supreme Court makes it clear that s. 254(3) (and therefore the present s. 320.28(1)(a)(i)) requires that the sample be taken as soon as practicable, and that this requirement goes to its admissibility. In that case, the court held that s. 254(3) did not require that the breathalyzer demand be made within two hours, only that the peace officer form a reasonable belief that the offence had been committed within the preceding two hours. For the demand, the section required only that it be made forthwith or as soon as practicable (the section at that time reading "by demand made to that person forthwith or as soon as practicable"). La Forest J., writing for the Court, had this to say about s. 254(3)'s requirements for timing:

Looking beyond the text of the provision, the breathalyzer scheme of the Code is designed to ensure that breath or blood samples are obtained as quickly as possible after the alleged impaired driving offence. This overriding objective is achieved through various mechanisms found in specific Code provisions. While the general objective is the same throughout the scheme, the specific purposes of each mechanism are different. As such, the fact that the provisions constitute a "scheme" does not mandate a unitary interpretation contrary to the language of each individual provision. The two-hour limit in s. 254(3) contributes to the objective of the scheme by forcing prompt police investigation, and by requiring the police to take the sample as soon as practicable. This specific purpose, which goes to the admissibility of the sample into evidence, can be distinguished from the purpose of the time limit in the presumption section, s. 258(1)(c). The latter provides a procedural shortcut for the police, but only if the breath or blood sample is obtained within two hours of the alleged offence. As such, it is concerned with the quality of the evidence obtained by the police, rather than its admissibility. [emphasis added]

[63] Distinction Between Provisions

The Supreme Court clearly distinguished between the purpose and effect of the words "as soon as practicable" in s. 254(3) (now s. 320.28) and s. 258(1)(c). The former has the objective of forcing prompt police investigation, requires the police to take the sample as soon as practicable, and goes to admissibility. The latter provides a procedural shortcut making it unnecessary to call expert evidence to relate back the breathalyzer reading to the time of the offence, and goes to the quality of the evidence, rather than its admissibility. In the case before me, the defendant's submissions relate only to the words "as soon as practicable" used in s. 254(3) (now s. 320.28) and he relies on them to deal with the admissibility of the test results, as the Supreme Court has held is appropriate.

[64] Reasonable and Probable Grounds as Constitutional Requirement

The defendant's submission in the case before me treats the requirement in s. 320.28 that the demand and test both be as soon as practicable in the same way as the requirement in that section (and s. 254(3) before its repeal and replacement) that a test cannot be demanded unless a peace officer has reasonable and probable grounds to believe that a person has committed an alcohol related driving offence. The Supreme Court has held that that reasonable and probable grounds requirement is "not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms". (R. v. Bernshaw at para. 51 per Sopinka J. for the majority)

[65] Ontario Court of Appeal in Charette

The Ontario Court of Appeal held in R. v. Charette (2009), 2009 ONCA 310 that, even though Bernshaw had held that reasonable and probable grounds were a statutory and constitutional requirement, failure to comply with that requirement did not automatically make the results of the breath test inadmissible. In order to contest the admissibility on the basis that the officer did not have reasonable and probable grounds, the defendant was required to bring a Charter application, on notice to the Crown. The issue of admissibility requires consideration of the competing values at stake in s. 24(2), and is not automatically determined simply by the question of whether the officer had appropriate grounds.

[66] Manitoba Court of Appeal in Forsythe

The defendant's submission in the case before me is consistent with the decision of the Manitoba Court of Appeal in R. v. Forsythe, 2009 MBCA 123. In that case, the defendant had been convicted of driving over 80. The Summary Conviction Appeal Court judge set aside the conviction, holding that the breath test had not been taken as soon as practicable. No Charter application had been brought by the defendant. The Court of Appeal restored the conviction, holding that the requirement that the sample be taken as soon as practicable was not a pre-condition to the admissibility of the test results. Beard J.A., on behalf of the Court, interpreted the passage in Durelle which I have set out above as holding that the section required that the test be administered as soon as practicable, but not that failure to do so rendered the evidence automatically inadmissible. Rather, its admissibility must be determined by a Charter application which required that s. 24(2) be considered before the question of admissibility could be determined. In reaching that conclusion, he relied on the Ontario Court of Appeal's decision in Charette.

[67] Interpretation of "Goes To"

In the passage from Deruelle I have italicized, La Forest J. wrote that the purpose of s. 254(3) which requires that the test be administered as soon as practicable "goes to the admissibility of the sample into evidence". Beard J.A. wrote this about that passage:

(i) I do not read the words "goes to" as they appear in the above quote as meaning "is determinative of"; rather, the phrase is used in the sense of "is relevant to" or "speaks to the issue of." Whether the police did or did not comply with the time limit in s. 254(3) will "go to" the question of the admissibility of the evidence, regardless of the procedure by which the question of admissibility arises.

(ii) The issue in the current case that was not discussed in Deruelle is that of the appropriate procedure to be used to challenge the admissibility of the evidence - that is, whether an application for exclusion must be made by the defence under the Charter, or whether there will be an automatic exclusion upon proof that the police did not comply with all of the requirements of the section. Deruelle is of no assistance on this issue.

(iii) There is no reference in Deruelle to Rilling. I do not accept that the decision in Rilling, and the significant body of case law that applies it, should be swept aside by one decision that does not even mention those cases. The more reasonable interpretation of the words in Deruelle is as I set out at (i), which gives meaning to the words in Deruelle without overturning the body of case law based on Rilling.

[68] Consistency with Woods and Quansah

The interpretation of s. 320.28 as requiring that the test be administered as soon as practicable, as held by the Supreme Court in Deruelle, is consistent with Woods and Quansah. As I have said, those cases interpret the companion provision in s. 320.27(a) (and its predecessor s. 254(2)(b)), which provides that a peace officer who has reasonable grounds to suspect that a driver has alcohol in his or her body "may, by demand, require the person to … immediately provide the samples of breath that … are necessary to enable a proper analysis to be made of an approved screening device." Although the section does not require that the demand be made immediately, and only requires that the driver "immediately" provide the breath samples, it has long been interpreted as requiring that the police both make the demand immediately and administer the test immediately.

[69] Liberty Deprivation Rationale

This interpretation was driven, to a significant degree, by the fact that s. 10(b) is suspended from the time the demand is made until it is completed, so long as the test can be completed before a lawyer can reasonably be consulted. Equally important considerations apply when someone is detained to provide a breath sample. Paciocco J., sitting in this court, held in R. v. Ruck, 2013 ONCJ 527 at para. 53:

Another reason for the "as soon as practicable" requirement is concern for the deprivation of liberty that detention to accommodate the test entails. It is exceptional to require citizens to forfeit their liberty to accommodate police investigations. While it is necessary to do so the period of deprivation should not be unreasonably long, given its purpose. The "as soon as practicable" requirement is no doubt meant to ensure that liberty deprivations caused by the need to secure breath samples are reasonable in their duration.

[70] Conclusion on s. 8 Requirement

For all of these reasons, I would not hesitate to conclude that s. 320.28(1)(a), and therefore s. 8 of the Charter, requires that the breath test be administered as soon as practicable.

[71] Mawad Decision

Crown counsel submits, however, that I am bound by the decision of André J., sitting as a Summary Conviction Appeal Court judge, in R. v. Mawad, 2016 ONSC 7589. In that case, the defendant had been acquitted of over 80 at trial. The trial judge held that the Crown had not proven that the breath test had been administered as soon as practicable. André J. held that that was an error. He that there was no breach of the defendant's constitutional rights by failing to administer the test as soon as practicable.

[72] André J.'s Analysis in Mawad

André J.'s analysis of this issue began by setting out s. 258(1)(c) in its entirety. He then wrote:

The section essentially gives the Crown a statutory short cut in proving that, at the time that an accused had care or control of a motor vehicle or was operating a motor vehicle, the concentration of alcohol in his or her blood exceeded the legal level. As noted by the Court of Appeal in R. v. Vanderbruggen, at para. 8:

Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for inter alia proving the "over 80" offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary.

In R. v. Deruelle, at para. 17, the Supreme Court of Canada noted that even where the blood or breath sample is taken more than two hours after the commission of the alleged offence the evidence obtained "is still admissible".

In R. v. St-Onge Lamoureux, 2012 SCC 57, at para. 82, the Supreme Court of Canada noted that s. 258(1)(c) "allows the prosecution to use the test results as a substituted fact in order to prove an essential element of the offence, namely the blood alcohol level of the accused at the time when the offence was alleged to have been committed." Where the breath samples were taken outside of the two hour limit, the presumption does not apply. In R. v. Newton, 2013 ONSC 644, at para. 14, MacDonnell J. held that even unreasonable delay in breath testing does not render the breath test results inadmissible but merely deprives the Crown of the presumption of identity.

The trial judge rightly concluded that Cst. Guthrie's failure to make a breath demand post arrest violated Mr. Mawad's s. 8 Charter rights. But did the officer's failure to take breath samples as soon as practicable under s. 258(1)(c) violate Mr. Mawad's Charter rights?

The appellant insists that it does. He relies on the case of R. v. Nascimento-Pires, 2016 ONCJ 143, for the proposition that the failure of an arresting officer to act as soon as practicable in effecting the compulsory seizure of an accused's breath or blood sample, violates an accused's rights to be secure against unreasonable search and seizure. The court noted at paras. 11-12 that:

Section 254(3) of the Criminal Code which allows for the compulsory seizure of an accused's breath or blood sample, requires that the seizing officer act as soon as practicable to effect that seizure.

There is a difference between not requiring the Crown to account for each and every minute of delay and the absence of an explanation for a significant period of delay. The Crown has failed to establish on a balance of probabilities that the police did in fact comply with that requirement; and therefore, failed to establish that this warrantless seizure was lawful. As such, I find that there has been a breach of the applicant's right to be secure against unreasonable search and seizure.

With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of "Over 80" against an accused can be elevated to a violation of his or her constitutional rights.

Cst. Guthrie had the legal obligation under the Highway Traffic Act to investigate Mr. Mawad. He made a valid ASD demand to Mr. Mawad. He had the requisite grounds to arrest Mr. Mawad after the latter's failure of the ASD test. The subsequent failure to take the breath samples as soon as practicable does not amount to an unreasonable search and seizure given that the arresting officer and breathalyzer technician had the requisite grounds to make the breathalyzer demand to Mr. Mawad. The situation may have been different had they lacked the grounds to make the demand.

[73] Mawad's Limited Analysis

André J.'s analysis essentially dealt with the provisions of s. 258(1)(c), the statutory short cut to relate back the test results to the time of driving which has now been repealed. He did not discuss the meaning or effect of the words "as soon as practicable" in s. 254(3), which has been effectively reenacted as s. 328.10.

[74] Mawad's Reliance on Deruelle

Nor did he refer to paragraph 15 of Deruelle, where the Supreme Court distinguished between the effect of the words in s. 254(3) and s. 258(1)(c), and held that s. 254(3) required that the tests be taken as soon as practicable, and went to admissibility, while s. 258(1)(c) went to the "quality of the evidence". Instead, André J. relied on paragraph 17, writing:

In R. v. Deruelle, at para. 17 the Supreme Court of Canada noted that even where the blood or breath sample is taken more than two hours after the commission of the alleged offence the evidence obtained "is still admissible".

[75] Proper Reading of Deruelle

In my view, however, La Forest J. was referring in paragraph 17 only to the issue of whether s. 258(1)(c) dealt with admissibility, not with the issue of whether it was relevant to admissibility that a test was not administered as soon as practicable. Paragraph 17 starts with this:

The invalid premise that s. 258(1)(c) governs admissibility is at the heart of the interpretational approach of Jones J.A. in the court below.

[76] Distinction Between Provisions

As La Forest J. made clear in paragraph 15, it is s. 254(3) (now s. 328.10), not s. 258(1)(c), which goes to admissibility. Section 258(1)(c) did not make the results of the test inadmissible if it was not performed as soon as practicable – it just made the evidentiary shortcut unavailable.

[77] Mawad in Error

In my respectful view, André J.'s decision in Mawad was in error. The Supreme Court of Canada decided in Deruelle that s. 254(3) (now s. 328.10) required that the breath test be administered as soon as practicable, and that failure to do so went to admissibility. As the Manitoba Court of Appeal held in Forsythe, this means that if a defendant brings an application for a determination that his s. 8 rights had been breached because the test was not administered as soon as practicable, and the trial judge agrees, the test's admissibility must be determined by the application of s. 24(2).

[78] Conflicting Decisions in Ontario

There are other decisions of this court which go both ways on this issue.

[79] Agnihotri Decision

In R. v. Agnihotri, 2019 ONCJ 551, Rahman J. held that Mawad was correctly decided and that the second use of the phrase "as soon as practicable" in s. 254(3) meant only that the driver was obliged to provide the sample as soon as practicable, not that the police were required to administer the test within that time. He did not consider the Supreme Court's decision in Deruelle or the Manitoba Court of Appeal decision in Forsythe.

[80] Azeredo Decision

In R. v. Azeredo, 2019 ONCJ 615, Rahman J. relied on his decision in Agnihotri to conclude that the similarly worded requirement in s. 254(3.1) that a driver submit "as soon as practicable" to an evaluation by a qualified officer to determine drug impairment did not create a s. 8 requirement.

[81] Vallipugam Decision

In R. v. Vallipugam, 2018 ONCJ 308, Kenkel J. held that the only s. 8 requirement in s. 254(3) was that the officer have reasonable grounds to believe an offence had been committed – the "as soon as practicable" issue went only to the use of the evidentiary shortcut in s. 258(1)(c). He did not discuss Deruelle or Forsythe.

[82] Jin and Mazit Decisions

In R. v. Jin, 2017 ONCJ 499, Bhabha J. followed Vallipugam, holding at paras. 92-96 that where a toxicologist testified as to the blood alcohol concentration of the defendant at the time of driving, there was no section 8 argument arising from delayed collection of breath samples "because the reasonableness of the seizure of the breath samples has already been addressed by the requirement that there be reasonable grounds to make the approved instrument demand under s. 254(3) of the Code." He came to the same conclusion in R. v. Mazit, 2016 ONCJ 817. He did not discuss Deruelle or Forsythe.

[83] Ntibazonkiza Decision

In an unreported decision, R. v. Ntibazonkiza, released July 22, 2016, Paciocco J. held that the failure to administer the breath test as soon as practicable was a breach of s. 8 of the Charter. Crown counsel in that case did not appear to have taken issue with the proposition that a failure to administer the test as soon as practicable would be a s. 8 breach.

[84] Dumont Decision

In R. v. Dumont, 2014 ONCJ 47, Paciocco J. held that the breath samples had not been taken "as soon as practicable." He wrote:

The failure by the Crown to comply with the "as soon as practicable" requirement of section 254(3) makes the search illegal and therefore unreasonable under section 8. It also prevents the Crown, where a Charter challenge has been brought, from satisfying the pre-requisites to the evidentiary shortcut provided by section 258(1)(c).

[85] McLeod Decision

In R. v. McLeod, 2011 ONCJ 439, Brophy J. held that the breath sample was not taken "as soon as practicable", and that failure to do so was a breach of s. 8. He wrote:

The as soon as practicable criteria arises in two places in the Criminal Code under the drinking and driving provisions. The first is under Section 258 where it speaks in terms of the taking of tests as soon as practicable and if they are and other criteria are met, the results of those tests have satisfied the presumption of identity and the test results inside the two hours are acceptable as evidence of what the blood alcohol concentration was at the time of driving. Both Crown and defence agree that that is not relevant for this case and the Crown says that she proves the over 80 offence by external means, that is to say the breath technician and the report from the CFS.

The as soon as practicable requirement however also appears in Section 254 dealing with demands that are made for the provision of samples. The language appears particularly in Section 254(3)(a). This is the provision that authorizes a peace officer to make demand, which demand is to be made as soon as practicable, requiring an individual to provide as soon as practicable samples of breath that in a qualified technician's opinion will enable a proper analysis to be made to determine the concentration of alcohol in the person's blood.

This would suggest that the samples even after the two hour window are still required to be provided as soon as practicable and that there is no ability on the part of the accused person to create any delay, as they have to respond to the demand. The police control the process and so the burden is on the police to facilitate the accused in providing the samples as soon as practicable. Even after the two hours has elapsed, the statutory scheme says that the compliance with the demand has to be done as soon as practicable. Clearly, the accused can not determine the schedule for doing that, if he then would in all likelihood be charged with a refusal if he created his own schedule and delayed the provision of the samples. Rather the burden remains with the police service to act efficiently.

As the tests were not taken as soon as practicable, Section 254(3) was not complied with and the breath samples were a search and seizure that was warrantless. The burden is then on the crown to establish that the search was authorized in law. They cannot do this. There was no other lawful authority to conduct the search and it was therefore unreasonable. This means that the Section 8 Charter rights of Mr. McLeod have been breached.

[86] Other Decisions Finding s. 8 Breach

In R. v. Wroniak, 2014 ONCJ 513; R. v. Jeyabalasingam, 2015 ONCJ 416; R. v. Egeli, 2015 ONCJ 271; and R. v. Araya, 2019 ONCJ 970 the trial judges held that s. 8 was breached as a result of the failure to administer the breath tests "as soon as practicable" as required by s. 254(3) because the breath sample was a warrantless seizure not authorized by law.

[87] Stare Decisis Analysis

I have considered whether I am required by the doctrine of stare decisis to follow the decision in Mawad. That doctrine "compels courts who are subject to the supervisory authority of higher courts to apply the law as pronounced by those higher courts." (R. v. R.S., 2019 ONCA 906 at para. 73) When rendering his decision in Mawad, André J. was sitting as the Summary Conviction Appeal Court and was exercising supervisory authority over this court.

[88] Other Judges Following Mawad

Other judges in this court have concluded that they are bound to follow Mawad. (R. v. Gardner (unreported decision, October 30, 2019; Information No. 18-13093); R. v. Fancey, 2018 ONCJ 657 at para. 53; R. v. Li, 2018 ONCJ 308; R. v. Persaud, 2017 ONCJ 799 at para. 16)

[89] Conflicting Summary Conviction Appeal Court Decisions

Defence counsel submits that in another, unrelated, case entitled R. v. Li, 2015 ONSC 7017, Spies J. of the Superior Court sitting as the Summary Conviction Appeal Court held that s. 8 does require that the test be administered as soon as practicable, so that there are two conflicting decisions of the Summary Conviction Appeal Court and I am not required to follow either. In Li, the defendant had been acquitted of over 80. The trial judge held that the test had not been administered as soon as practicable and that as a result the breath test result was inadmissible. However, no Charter motion was brought by the defendant. Spies J. reversed, holding that a Charter motion was required to put in issue the admissibility of the breath test on that basis.

[90] Analysis of Li Decision

Spies J. did not explicitly rule on the issue of whether s. 8 requires that the test be administered as soon as is practicable. She wrote at para. 51 that the trial judge made a finding of fact that the breath samples had not been obtained as soon as is practicable, "which arguably would amount to a s. 8 breach since all of the proper requirements for a proper demand had not been met." (emphasis added) She relied on the Court of Appeal decision in Charette, and the Manitoba Court of Appeal decision in Forsythe, to conclude that the admissibility of the breath test evidence on that basis would have to be raised in a Charter application. Her decision is premised on the basis that a delay would be a s. 8 breach. She does not refer to any submission by Crown counsel to the contrary. Nor does she list it as one of the issues to be decided by her. This decision cannot, in my view, be considered as having decided the issue of whether a breath test that is not administered as soon as is practicable is a breach of s. 8. The most that can be said to support the defendant's position is that Spies J. did not hold that such a test would not be a s. 8 breach.

[91] Per Incuriam Analysis

I have considered whether I should decline to follow Mawad on the basis that it was made per incuriam, not having considered the ruling of the Supreme Court of Canada at paragraph 15 of Deruelle. As Schrek J. wrote in R. v. Henry, 2019 ONSC 4978 at para. 35:

While the doctrine of stare decisis requires that lower courts follow the decisions of higher courts, decisions made per incuriam (literally, "through lack of care") are an exception to this rule. A decision will be per incuriam if it was made "without regard to a statutory provision or earlier binding authority" and if the case would have been decided differently if the earlier authority had been considered: David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005); Royal Bank of Canada v. Trang, 2014 ONCA 883; R. v. Dunn, 2013 ONCA 539.

[92] Conclusion on Per Incuriam

While André J. did refer to the decision of the Supreme Court in Deruelle, he did not discuss para. 15, where La Forest J. holds both that s. 254(3) requires that the breath test be administered as soon as is practicable, and that this requirement goes to admissibility. I considered whether, if André J. had been referred to that paragraph and considered the purpose and effect of s. 254(3), he would have decided differently. I cannot draw that conclusion. In order for me to do so, it would have to be clear that André J. did not consider para. 15 of Deruelle and s. 254(3). Yet he discussed and relied on para. 17. And he quoted from, and declined to follow, the decision in Nascimento-Pires, which relied on the wording of s. 254(3) to conclude that the Code required that breath samples be taken as soon as practicable and that failure to do so was a s. 8 breach.

[93] Bound by Mawad

Furthermore, this issue is one on which there is considerable disagreement in this court. The per incuriam doctrine is to be applied extremely rarely. I conclude that I am bound by Mawad. Subsection 254(3) does not require that the test be administered as soon as practicable. Failure to do so is not a breach of s. 8.

The Intoxlyzer Test Was Administered as Soon as Practicable

[94] Factual Findings Despite Legal Conclusion

I have ruled that failure to conduct the breath test as soon as practicable is not a breach of s. 254(3). My decision will not be affected by a determination of that question of fact. Nevertheless, I have heard extensive evidence and submissions on this point. If I am wrong in my analysis of the purpose and effect of s. 254(3), it may be of some assistance to know what I have found the facts to be on this issue.

[95] Legal Standard from Vanderbruggen

The Court of Appeal held in R. v. Vanderbruggen (2006) at paras. 12-13, that the words "as soon as practicable" in s. 258(1)(c) do not mean that the tests must be taken as soon as possible. Nor does the provision require an exact accounting of every moment in the chronology. As the Court stated:

The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.

In deciding whether the test were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.

[96] Legal Standard from Singh

In R. v. Singh, 2014 ONCA 293, the Court of Appeal reiterated the Vanderbruggen decision, holding that the requirement that the samples be taken as soon as practicable means "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances."

[97] Defence Submission on Delay

Defence counsel submits that the repeated attempts by the police to have Mr. Pillar consult a lawyer, in the face of what he submitted was an unequivocal waiver by his client of his right to do so, were unreasonable. He submits that the first sample could have been taken as early as 9:54 p.m., when the Intoxlyzer was first ready to take samples, but was not taken until 10:47 p.m., a delay of 53 minutes caused by the police attempts to convince Mr. Pillar to speak to a lawyer.

[98] Legal Standard on Waiver from Davidson

The law on this point was summarized by Dawson J. in R. v. Davidson at paragraph 21:

1. The first question is whether there has been a clear and unequivocal waiver by the accused of the right to counsel;

2. If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to avoid later being confronted with the argument that the accused's right to counsel was infringed;

3. If the degree of the accused's intoxication is such as to create a reasonable basis for the police to conclude that the right to counsel was not fully comprehended it would be reasonable for the police to contact duty counsel to avoid a subsequent allegation of a breach of the right to counsel;

4. If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel thereby delaying the administration of the breath tests. Where the delay occasioned by the call to duty counsel is unreasonable it is effectively unexplained;

5. The innocence of the police motive in placing the call to duty counsel is irrelevant, as an accused should not be forced to speak to counsel where he or she clearly wishes to waive that right;

6. There is no requirement that an accused repeat or persist in a waiver or express the waiver in strong terms. As in other areas of the law, "no means no";

7. The fact that an accused ultimately takes a call from duty counsel does not, by itself, operate as an estoppel of the waiver. All the surrounding circumstances must be examined to discern if the waiver has been withdrawn.

[99] Additional Guidance from MacCoubrey

In R. v. MacCoubrey, 2015 ONSC 3339, Hill J. adopted that summary, and added to it the following in respect of waiver:

A police obligation arising from s. 10(b) of the Charter is to inform a detainee of his or her right to consult with counsel without delay and how that right may be exercised. A police officer's duty to "inform" is not limited in every case to mechanically reciting the required informational data aloud -- in special circumstances capable of interfering with or preventing a detainee's understanding of the s. 10(b) right, it may be necessary for an officer to go further to take affirmative steps to facilitate understanding by repeating information, or clarifying the detainee's appreciation of the right or even undertaking a reasonable effort to explain the concepts conveyed. Put differently, in the ordinary case, telling a detainee the necessary information required to understand and exercise the s. 10(b) right will generally satisfy the duty upon the police: R. v. Bartle. Although there is no closed list of special circumstances, over time the jurisprudence has identified relevant situational examples -- a very young unsophisticated detainee, language difficulties, a known or obvious mental disability, an individual of apparent subnormal intelligence, a seriously physically injured arrestee, interference with the ability to hear, a verbal response evidencing uncertainty or misunderstanding of the right, etc.

Special circumstances may also include "impairment": R. v. Anderson (1984); R. v. Baig (1985).

"The exercise of a right to choose presupposes a voluntary informed decision to pick one course of conduct over another": R. v. Wills (1992). The legal test for the waiver of a Charter right is dependent upon it being clear and unequivocal that the person is forgoing the protection the right affords with full knowledge of the right and a true appreciation of the consequences of giving up the right: R. v. Evans; R. v. Prosper; R. v. Borden. The standard for waiver of a Charter right is high: R. v. Bartle. As observed in the Bartle decision, "[a]lthough detainees can waive their s. 10(b) rights, valid waivers of the informational component of s. 10(b) will ... be rare".

Apart from instances of an express waiver, while "a person may implicitly waive his rights under s. 10(b), the standard will be very high": R. v. Manninen.

An unresponsive reply from a detainee may, or may not, depending on the factual circumstances, convey that the detainee acknowledges having fully heard and comprehended the right to retain and instruct counsel without delay. If circumstances indicate that a detainee purporting to waive his s. 10(b) right "may not have understood his right, the police should reiterate his right to counsel...": R. v. Sinclair, 2010 SCC 35. On the other hand, "[i]n most cases one can infer from the circumstances that the accused understands what he has been told": R. v. Evans. By way of example, as noted in the Manninen decision (Ont. C.A.), it is evident that the police "carefully read the appellant his rights twice" when, after the initial communication, Manninen made a flippant and unresponsive remark. On the other hand, in the Baig case, the arrestee's response to complete communication of his s. 10(b) right, "How can you prove this thing?", was found to amount to an implied waiver without any obligation upon the police to repeat or further probe the arrestee's understanding of his right.

Unless a detainee, having been fully informed of his or her s. 10(b) Charter right, invokes the right there is no correlative duty upon the police to have the detainee exercise the right of contacting counsel: R. v. Bartle. While, in an ordinary case, the police might voluntarily provide an arrestee access to consult counsel without criticism despite not being requested to do so, that option is not reasonably available in a drinking/driving investigation where the state intends to rely on the s. 258(1)(c)(ii) evidentiary process at trial. In other words, a detour by the police to implement unrequested access to counsel has serious ramifications as to whether it can reasonably be said that breath samples were taken as soon as practicable.

[100] Crown's Submission on Waiver

Crown counsel submits that Mr. Pillar did not give a clear and unequivocal waiver of his right to counsel. Instead, she submits, he was equivocal and inconsistent throughout. It was reasonable for Cst. Walker to undertake extra precautions to ensure Mr. Pillar had the opportunity to exercise his rights to counsel.

[101] Eyre Decision

Crown counsel relied on my decision in R. v. Eyre, 2016 ONCJ 252, where I held that the police had not acted unreasonably by attempting to convince the defendant, despite his roadside refusal, that he should speak to a lawyer before deciding whether to submit samples of his breath for testing. In that case, the defendant did change his mind and spoke to duty counsel 34 minutes after his arrest. His breath test was administered 30 minutes later, 1 hour and 9 minutes after he had been driving. I wrote that my decision may well have been different if the officer's attempts to change his mind were made after a longer delay or would have caused the first test to be taken much closer to the outside limit of two hours.

[102] Findings of Fact

I find that the following facts have been established by the evidence of Cst. Walker and the evidence from the video recordings of Mr. Pillar at the cell block and in the breathalyzer room.

[103] Initial Waiver at Roadside

Cst. Walker arrested Mr. Pillar at 9:07 p.m. after he failed the approved screening device test. He read him his right to counsel at 9:15 p.m. He then asked Mr. Pillar if he understood, and he said that he did. Cst. Walker agreed that this was a clear, unambiguous answer. He believed that Mr. Pillar understood what he had been told. He then asked Mr. Pillar if he wanted to speak to a lawyer. Mr. Pillar responded that he did not.

[104] Sallyport Conversation

Cst. Walker then drove Mr. Pillar to the station. While waiting in the sallyport at the station, he spoke to Mr. Pillar again about his right to counsel. Cst. Walker testified that he always told detainees while waiting in the sallyport that they had the right to speak a lawyer, that it was highly recommended that they do so, and that they had three choices about speaking to a lawyer – they could speak to a lawyer they chose; they could call a lawyer chosen from a list in the station; or they could speak to duty counsel. I accept this evidence.

[105] Duty Sergeant Conversation

At 9:47 p.m., after proceeding into the station, Mr. Pillar was paraded before the duty sergeant and searched. He had the following conversation with the duty sergeant:

Sergeant: Alright sir. While you're in here tonight, you are being recorded the entire time except when you speak to a lawyer. Okay, you understand that.

Mr. Pillar: Yup. I do.

Sergeant: Are you hurt? Do you have any injuries at all?

Mr. Pillar: I am not.

Sergeant: Okay. Do you take medicine for anything?

Mr. Pillar: No.

Sergeant: No. Okay, so what's going to happen is we're going to bring you over there, you are going to be searched, okay? After that, if you want to speak to a lawyer, we will put you in contact with one, and then you are going to be asked to provide two samples of your breath, okay?

Mr. Pillar: Okay.

[106] Cst. Walker's Conversation After Search

He was then taken to be searched. He and Cst. Walker had the following conversation after he was searched, at 9:52 p.m.:

Cst. Walker: Alright so Mr. Pillar. You're going to come with me here. We're going to go uh, over here, to where the … you can call a lawyer. Do you have a lawyer at any point you wish to speak to?

Mr. Pillar: I'm just going to stay quiet then right now.

Cst. Walker: Okay. So again, the area is all video recorded. So, what we have here for you, is if you don't have a lawyer that you wish to choose, you have all these lawyers you can pick from. They're all free legal aid advice. They don't charge you anything. It gives you the ability to explain the situation to them, and then they give you free legal counsel, and any point after that you can choose any lawyer [inaudible].

Mr. Pillar: That means I can call anyone I want?

Cst. Walker: If you have any lawyer that you wish to speak to …

Mr. Pillar: What if I want to talk to [inaudible] my father.

Cst. Walker: He's not going to give you any legal aid advice.

Mr. Pillar: No, but he may know [inaudible] direct me in the right direction.

Cst. Walker: What this is for is to contact a lawyer, okay. Or a call for legal aid, okay. counsel.

Mr. Pillar: I fully understand.

Cst. Walker: Okay.

Mr. Pillar: But if I want to talk to a lawyer and I want to get in touch with the right lawyer, should I call someone else …

Cst. Walker: Alright, do you have an idea of a family lawyer that you have …

Mr. Pillar: Yeah, we do.

Cst. Walker: Okay. Do you know the name of that lawyer at all?

Mr. Pillar: No.

Cst. Walker: You don't know the name of that lawyer at all?

Mr. Pillar: [inaudible]

Cst. Walker: Okay. [inaudible] What's the name of your father?

Mr. Pillar: Brian.

Cst. Walker: And what's his phone number?

Mr. Pillar: 613 513-6273.

Cst. Walker: Alright, so it's Brian? 613 513 6273. And his name is Pillar as well? What I can do is, I can just give him a call and see if he has a name and number for that lawyer.

Mr. Pillar: Okay.

Cst. Walker: But you will have to stay in that room [inaudible] while I go and call him.

Mr. Pillar: Okay. All right. Thank you.

[107] Placement in Cell

Mr. Pillar was then placed in a cell which had a phone which he could use to speak to a lawyer once the lawyer was called by police.

[108] Police Policy on Calls

Cst. Walker testified that he understood that force policy was that detainees could only call a lawyer. If they wanted to contact someone else to get a lawyer's contact information, police would make the call for them and relay the information.

[109] First Call to Father

Cst. Walker telephoned Mr. Pillar's father. His father told him that he did not know the name of a lawyer. Cst. Walker then returned to Mr. Pillar at 9:57 and spoke to him in his cell. He asked him to step out of the cell and told him what his father had said. He showed him the list of lawyers, posted on the door of the cell, who were prepared to accept calls from detainees. He told Mr. Pillar that he could call any of those lawyers. Cst. Walker testified, and I accept, that Mr. Pillar told him that he did wish to speak to a lawyer but "not now". He also told Cst. Walker that he had no way to know whether he had actually spoken to his father. A video of this meeting shows this conversation taking place, and shows Cst. Walker pointing to the lawyer list, but does not have any audio.

[110] Meeting with Breath Technician

Cst. Walker then put Mr. Pillar back in the cell and, at 10:00 p.m., met with Cst. Francois Lapointe, the breath technician. He provided Cst. Lapointe with his grounds for making the breath demand. This meeting lasted 9 minutes, until 10:09 p.m.

[111] Second Opportunity to Speak to Counsel

At 10:11 p.m., Cst. Walker returned to Mr. Pillar. A video shows this meeting but has no audio. Cst. Walker testified, and I accept, that he asked Mr. Pillar again if he wanted to speak to a lawyer. Cst. Walker testified that he did so because the breath technician was ready to receive Mr. Pillar, but Mr. Pillar had said that on the previous occasion that he wanted to speak to a lawyer but "not now" and he wanted to give him another opportunity to do so. After speaking with Cst. Walker for about a minute and a half, Mr. Pillar asked him to call his father a second time.

[112] Second Call to Father

Cst. Walker then called Mr. Pillar's father again, at 10:16 p.m. He told his father that his son was still requesting his assistance in locating a lawyer. Mr. Pillar's father told him that he had retained a lawyer a number of years ago and might have his name somewhere. Cst. Walker asked him to look and he did so. He told Cst. Walker that the lawyer's name was Gary Barnes, but he did not have his phone number. Cst. Walker found the phone number for Mr. Barnes and returned to Mr. Pillar, asking him if he wanted him to call Mr. Barnes. Mr. Pillar told him that he did not want to speak to a lawyer.

[113] Arrival at Breath Technician

At 10:21 p.m., Cst. Walker took Mr. Pillar to the breath technician. An audio video recording of what occurred was entered into evidence. Cst. Walker told Cst. Lapointe what had taken place about Mr. Pillar contacting a lawyer, concluding by saying that he had offered Mr. Pillar an opportunity to call Mr. Barnes and he had said he did not want to.

[114] Change of Mind

Mr. Pillar then said "I will give him a call now." Cst. Walker said "you did not want to; now you do?" Mr. Pillar responded "yeah". Cst. Lapointe said "you want to talk to Gary Barnes?". Mr. Pillar said "whatever he said there yeah."

[115] Contact with Counsel

Cst. Walker then took Mr. Pillar back to the cell at 10:26 p.m. where he was put in contact with Mr. Barnes. He spoke to Mr. Barnes and was returned to the breath room at 10:39 p.m.

[116] Conclusion on Timing

In my view, the breath test was administered "as soon as practicable". The police acted reasonably, except when Cst. Walker called Mr. Pillar's father himself and did not allow Mr. Pillar to call him directly. This did not add to the delay.

[117] Not a Case of Forced Counsel

This is not a case like Davidson or MacCoubrey, where the defendant had clearly waived his right to counsel at the roadside and the police caused a delay by contacting duty counsel at the station without raising the issue again or asking the defendant if he wanted them to do so. Mr. Pillar said "no" when asked at the roadside if he wanted to speak to counsel. But the delay caused by speaking to counsel was a result of his later conflicting and equivocal statements and requests. It was not a result of the police forcing him to speak to counsel, as Davidson says they ought not to do. Rather, it is a case where the surrounding circumstances, in the absence of any evidence to the contrary, satisfy me on the balance of probabilities that Mr. Pillar had withdrawn his original roadside waiver.

[118] Equivocal Response

Cst. Walker asked him if he had a lawyer he wanted to speak to, to which Mr. Pillar responded "I am going to stay quiet right now." That was not a categorical repetition of his earlier denial. It was equivocal. And no delay was caused by Cst. Walker asking him that question.

[119] Defence Submission on Coercion

Defence counsel submitted that a detainee in Mr. Pillar's position would conclude, after Cst. Walker explained that he could speak to a lawyer of his choice, duty counsel, or one of the lawyers on the posted list, that he had no choice but to call a lawyer.

[120] Rejection of Submission

I do not accept that submission.

[121] Understanding of Voluntary Nature

The duty sergeant told him when he was paraded before him on arrival at the station that if he wanted to speak to a lawyer he would be put in contact with one. Mr. Pillar understood that he did not have to speak to counsel. He said immediately thereafter to Cst. Walker, after being told about the lawyer list, "If I want to talk to a lawyer …". He knew that he was not required to do so.

[122] Sequence of Events

He then told Cst. Walker, after he had unsuccessfully attempted to get a lawyer's name from his father, that he wanted to speak to a lawyer "but not now". After meeting with the breath technician, Cst. Walker asked Mr. Pillar if he then wanted to speak to a lawyer. This was not surprising, given what Mr. Pillar had told him thirteen minutes earlier. Mr. Pillar said that he did, and asked Cst. Walker to call his father again. This time he got Mr. Barnes' name. Mr. Pillar then told Cst. Walker that he did not want to call Mr. Barnes. Less than 5 minutes later, when the breath technician was about to start the tests, Mr. Pillar interrupted Cst. Walker's explanation to the breath technician to say that he did want to talk to Mr. Barnes. His request was granted.

[123] Police Facilitation of Counsel

Defence counsel submits that Cst. Walker acted unreasonably when he refused to allow the defendant to call his father himself in an attempt to get the name of a lawyer. The law is clear that where a detainee has expressed the desire to contact counsel, police must facilitate his or her efforts to do so. This includes permitting a phone call to a friend or relative to obtain the name of counsel of choice. Failure to do so is, in the absence of special circumstances, a breach of s. 10(b). (R. v. Kumarasamy, [2002] O.J. No. 303 at para. 25)

[124] Defence Inconsistency

Defence counsel does not submit, however, that his client's s. 10(b) rights were breached. To the contrary, he submits that the police ought not to have facilitated Mr. Pillar's access to counsel at all after he said "no" at the roadside. Counsel submitted that the call by police to Mr. Pillar's father increased the delay and that, if Mr. Pillar himself had called, he would have been given Mr. Barnes' name the first time. Setting aside the inconsistency of his position, that is speculation. There is no evidence to support that conclusion. In the absence of evidence to the contrary, such as from Mr. Pillar's father, the only evidence is that it took two calls to prompt Mr. Pillar's father to provide the name. I have no basis to conclude that it would have been any different if Mr. Pillar had called himself.

[125] Final Conclusion on Timing

In my view, the breath test was administered in "a reasonably prompt time in the overall circumstances." It was administered as soon as practicable.

Admitting the Breath Test Would Bring the Administration of Justice Into Disrepute

[126] s. 24(2) Analysis Required

I have determined that Mr. Pillar's s. 10(b) rights were breached when he was not informed of his right to counsel until after he had been searched, placed in the cruiser, and Cst. Walker had queried his onboard computer about him to see if any additional charges could be laid. The issue is whether the evidence of the breath test should be excluded under s. 24(2) as a result.

[127] s. 24(2) Framework from Thomson

As Jamal J.A. wrote in R. v. Thomson, 2020 ONCA 264:

A s. 24(2) inquiry examines the impact of admitting evidence obtained in breach of the Charter on public confidence in the justice system over the long term, based on: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused's Charter-protected interests; and (iii) society's interest in the adjudication of the case on the merits. The court's task is to balance the assessments under these three inquiries "to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32 at para. 71; R. v. Le, 2019 SCC 34 at paras. 139-141; and R. v. McSweeney, 2020 ONCA 2 at para. 76.

[128] Interplay of Three Factors from Le

Brown and Martin JJ., writing for the majority of the Supreme Court of Canada in R. v. Le, 2019 SCC 34 at paras. 141-2, described the interplay between the three factors to be considered in the s. 24(2) analysis:

In Grant, the Court identified three lines of inquiry guiding the consideration of whether the admission of evidence tainted by a Charter breach would bring the administration of justice into disrepute: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits. While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion (R. v. McGuffie, 2016 ONCA 365). But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.

The third line of inquiry, society's interest in an adjudication of the case on its merits, typically pulls in the opposite direction -- that is, towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown's case (see R. v. Harrison, 2009 SCC 34 at paras. 33-34), we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown's case at this stage. The third line of inquiry becomes particularly important where one, but not both, of the first two inquiries pull towards the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility. Conversely, if the first two inquiries together reveal weaker support for exclusion of the evidence, the third inquiry will most often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.

[129] Systemic Pattern as Aggravating Factor

A systemic problem or pattern of Charter-infringing conduct is an aggravating factor that supports exclusion (R. v. Grant at para. 75; R. v. Harrison, 2009 SCC 34; Thomson at para. 85).

[130] Seriousness of Breach in Thomson

In Thomson, the Court of Appeal held that an 11 minute delay in advising detainees of the right to counsel after an arbitrary stop of their vehicle was serious. Jamal J.A. wrote, after finding that the arbitrary detention of the vehicle was serious, even though the police did not deliberately set out to violate the defendant's rights:

The breach of s. 10(b) was, however, more serious. The police did not advise the appellant of his right to counsel "immediately", as required by well-established jurisprudence under s. 10(b), but waited without justification before doing so: R. v. Suberu, 2009 SCC 33 at paras. 41-42. As this court recently noted, "[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out": R. v. Noel, 2019 ONCA 860 at para. 34.

[131] Cst. Walker's Understanding

The officers in Thomson were confused about their s. 10(b) obligations. One of them testified that he thought that the right to counsel had to be provided "as soon as practicable", while the other testified at the preliminary inquiry that she thought that that was the standard, but at trial testified that she understood that a detainee had to be informed of his right to counsel "immediately". This made the breach more serious. In Mr. Pillar's case, Cst. Walker testified that he understood that detainees had to be informed of their right to counsel immediately. He understood that he was allowed to delay for officer safety reasons, but he did not understand the necessity for those reasons to be based on a fact specific contextual determination. Furthermore, his actions in delaying advising Mr. Pillar about his right to counsel show that he was unclear about what "immediately" means, effectively applying what amounts to an "as soon as practicable" standard.

[132] Systemic Problem in Ottawa Police Service

In Thomson, the trial judge held that the seriousness of the 10(b) violation was exacerbated by what he held was a "chronic problem" with the Peel Regional Police and its officers believing that the right to counsel need be given only "as soon as practicable". In support of that conclusion, the trial judge cited R. v. Sandhu, 2017 ONCJ 226, in which Shreck J. cited 16 cases in which Peel Regional Police Service officers had "repeatedly demonstrated what is a best a failure to grasp the dictates of the judgment [of the Supreme Court of Canada in R. v. Suberu, 2009 SCC 33], or, at worst, an unwillingness to follow it."

[133] Court of Appeal Findings on Systemic Problem

The Court of Appeal upheld this finding, citing an additional 8 cases in which Peel officers had failed to inform a detainee of the right to counsel immediately. Jamal J.A. noted at para. 95 that even without a systemic problem, a clear breach of settled rules governing state conduct supports exclusion of evidence under s. 24(2). He upheld the trial judge's finding that, when coupled with the s. 9 breach, the case involved serious Charter violations.

[134] Ottawa Police Service Pattern

Counsel for Mr. Pillar cited 15 decisions in which members of the Ottawa Police Service have been held to have failed to advise detainees of their right to counsel immediately, as is required. The following chart sets out those decisions and the length of the delay in each case:

Case	Delay
R. v. Al-Qa'aod, Info. No. 998-17-9687-00, unreported decision, O.C.J., July 27, 2018 (Dumel J.); upheld 2019 ONSC 5526	At least 6 minutes
R. v. Bouchard, [2019] O.J. No. 3663 (O.C.J.) (Berg J.)	10 minutes
R. v. Faizi, Info. No. 19-10565-02, unreported decision, O.C.J., Nov. 16, 2019 (Dorval J.)	6 minutes
R. v. Ranger, 2019 ONCJ 413 (Bourgeois J.)	Less than 3 minutes
R. v. Brugger, [2019] O.J. No. 4021 (O.C.J.) (Webber J.)	9 minutes
R. v. Musonge, [2018] O.J. No. 6548 (O.C.J.) (Dumel J.)	12 minutes
R. v. Neitzel, Info. No. 16-2557, unreported decision, O.C.J., March 8, 2018 (Anderson J.)	15 minutes
R. v. McEwan, 2018 ONCJ 702 (T.A. Brown J.)	10 minutes
R. v. Youssouf, [2018] O.J. No. 4439 (S.C.J.) (Gomery J.)	13-25 minutes
R. v. Panqueva-Cuadrado, Info. No. 17-A13252, O.C.J., July 11, 2018 (Hoffman J.)	11 minutes
R. v. Kalli, Info. No. 16-1908, unreported decision, O.C.J., May 25, 2017 (Alder J.)	4-6 minutes
R. v. Rochon, [2017] O.J. No. 1305 (O.C.J.) (Lahaie J.)	6 minutes
R. v. Hamed, 2017 ONCJ 205 (Bourgeois J.)	11 minutes
R. v. Hogervorst, 2017 ONCJ 802 (Doody J.)	unspecified
R. v. Gonzalez-Santana, [2017] O.J. No. 7059 (Webber J.)	10 minutes

[135] Crown's Statistical Argument

Crown counsel submitted that there is no evidentiary foundation to support a finding that there is a systemic issue in the Ottawa Police Service with respect to immediately advising detainees of their right to counsel. She submitted that only 0.8% of all officers on the force were found to have breached s. 10(b) in 2018, based on the number of cases and the number of officers on the force. Similarly, she submitted that only 1.08% of impaired driving investigations in 2017-2018 resulted in a finding of a breach of s. 10(b). This statistical analysis shows that a breach is a very rare occurrence.

[136] Rejection of Statistical Argument

I do not accept Crown counsel's submission. It is based on the premises that all officers on the force detained individuals in circumstances which required that they be advised of their s. 10(b) rights, all breaches of s. 10(b) were in investigations in which charges were laid, all of those charges resulted in trials in which a s. 10(b) breach was asserted and the case was tried, and that the cases gathered by defence counsel are all of the cases in which a s. 10(b) breach was found. None of those premises has been established. I would be very surprised if any of them were valid.

[137] Grant on Systemic Breaches

As McLachlin C.J. wrote for the majority of the Supreme Court of Canada in R. v. Grant at para. 75:

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.

[138] Finding of Systemic Pattern

The Court of Appeal accepted that a systemic pattern of breaches had been established for Peel Region with 16 or 24 cases. I am satisfied that a similar pattern of disregard for detainees' s. 10(b) rights by the Ottawa Police Service has been established by the 15 cases cited by defence counsel. Furthermore, this pattern is, based on Cst. Walker's evidence, rooted in the erroneous belief that advising of the right to counsel can be delayed if there is any potential or theoretical officer safety issue raised by immediately doing so, regardless of the particular circumstances and context facing the officer.

[139] Seriousness of Breach

In my view, the breach of Mr. Pillar's s. 10(b) right was serious. This branch of the Grant test favours exclusion of the evidence.

[140] Impact on Charter-Protected Interests

On the second branch of the Grant test, however, I find that the impact of the breach on Mr. Pillar's Charter-protected interests was not serious.

[141] s. 10(b) Interests from Thomson

In Thomson, Jamal J.A. wrote:

The second line of inquiry under s. 24(2) asks whether the Charter breach "actually undermined the interests protected by the right infringed": R. v. Grant at para. 76; R. v. Le, 2019 SCC 34 at para. 151. This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the Charter infringements impacted those interests. The more serious the impact on Charter-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": R. v. Grant at paras. 76-77; R. v. Harrison, 2009 SCC 34 at para. 28; and R. v. Le at para. 151.

Here, the appellant's interest protected by s. 9 of the Charter was his liberty from unjustified state interference — his right, absent compelling state justification, "to live his life free of police intrusion", and "to make decisions, including decisions of fundamental importance, free from state interference": R. v. Le at paras. 152-154; R. v. Grant at paras. 19-20; see also R. v. Harrison, 2009 SCC 34 at para. 31.

The s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation: R. v. Taylor, 2014 SCC 50; R. v. Wong. This helps ensure that a detainee's choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination: R. v. Suberu, 2009 SCC 33 at para. 40; R. v. Sinclair, 2010 SCC 35 at para. 25; and R. v. Wong.

[142] Impact in Thomson

In Thomson, the trial judge held that impact of the 10(b) violation – a delay of 11 minutes after detention before the detainees were advised of their right to counsel – was minimal because the police did not try to question them before advising them of their right to counsel and they made no inculpatory comments. The Court of Appeal agreed.

[143] Impact in This Case

In my view, the same analysis applies here. Cst. Walker did not try to question Mr. Pillar before advising him of his right to counsel. He made no inculpatory comments. The impact on his Charter-protected interests was not significant. This favours exclusion of the evidence only minimally, it at all.

[144] Society's Interest in Adjudication on Merits

The third factor – society's interest in adjudication of the case on its merits – favours inclusion of the evidence, as it usually does. Without the evidence of the breath tests, the Crown's case cannot be proven.

[145] Serious Conduct Can Support Exclusion

However, as the Supreme Court of Canada held in Le, it is not necessary that both of the first two factors support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. It is possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute.

[146] Systemic Problem Requires Exclusion

After considering all of the circumstances of this case, I have concluded that this is one of those cases. There is a serious problem with officers of the Ottawa Police Service failing to immediately advise detainees of their right to counsel. As Brown and Martin JJ. wrote at para. 140 of Le, the overriding issue on a s. 24(2) analysis is whether the admission of the evidence risks doing further damage by diminishing the reputation of the administration of justice, such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. In my view, admitting the evidence of the breath test following the failure of the police to advise Mr. Pillar immediately after he was arrested that he had the right to consult counsel would have that effect once that reasonable person understood that this was part of a pattern of systemic failure to do so by the Ottawa police.

[147] Exclusion of Evidence

I conclude that admission of the evidence would bring the administration of justice into disrepute. Exclusion may assist in changing the behaviour of members of the Ottawa force. The breath test evidence is excluded.

Conclusion on 80 or Over Charge

[148] Not Guilty of Over 80

The Crown has not proven beyond a reasonable doubt all the elements of the offence. I find the defendant not guilty of having 80 mg or more of alcohol in 100 ml of blood within 2 hours of operating a conveyance.

Impaired Operation of a Conveyance

[149] Legal Standard for Impairment

The Crown bears the onus of establishing beyond a reasonable doubt any degree, from slight to great, of impairment by alcohol of the defendant's ability to operate a motor vehicle. (R. v. Stellato)

[150] Definition of Slight Impairment

Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. (R. v. Censoni, [2001] O.J. No. 5189 at para. 47; cited with approval in R. v. Bush, 2010 ONCA 554)

[151] McKenzie Factors

In analyzing the evidence in order to decide if the offence has been proven, the courts have frequently considered the various matters set out in R. v. McKenzie, (1955): general conduct, smell of the breath, character of the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes, character of the breathing.

[152] Holistic Assessment

As the Ontario Court of Appeal held in Bush, these matters are appropriate to consider as an approach to the weighing of the evidence, to determine whether the defendant's conduct viewed objectively was consistent only with impairment and inconsistent with some other explanation. They are not the only measures to consider; other things to take note of include the manner of driving, reaction to the attempts of the police to have the driver stop his or her vehicle, and behaviour while interacting with police. No one factor should be considered in isolation; all of the circumstances must be taken together. (R. v. Andrea, 2004 NSCA 130)

[153] Circumstantial Evidence Standard

In assessing the evidence, I am considering the effect of circumstantial evidence. To determine if the circumstantial evidence meets the required standard of proof, I must keep in mind that it is the evidence assessed as a whole that must meet this standard, not each individual piece of evidence that is but a link in the chain of proof. Inferences consistent with innocence need not arise from proven facts. They may arise from a lack of evidence. A trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence. (R. v. Villaroman, 2016 SCC 33 at paras. 20, 35, 37-38; R. v. Lights, 2020 ONCA 128, at paras. 36-39; R. v. Smith, 2016 ONCA 25 at paras. 81-82; R. v. Morin; Coté v. The King (1941); R. v. Bagshaw)

[154] Cst. Archer's Evidence

Cst. Archer, the off-duty police officer who called 911 after encountering Mr. Pillar at the gas station, gave the following evidence which I accept as accurate:

(a) when Mr. Pillar spoke to another man at the gas station, his speech was "slurred and drawn out" and his eyes were droopy;

(b) his U-turn on Jeanne d'Arc Blvd. was wide, abnormal, and not fully under control;

(c) while driving northbound on Jeanne d'Arc after making the U-turn, he was in the right lane but veered over the dotted lines in what he described as a "gradual veer", straddling the lines for a while then moving back into his lane;

(d) he made an uncontrolled right turn onto St. Joseph Blvd. eastbound in a jerky manner, not smooth or under control;

(e) just east of the Tire Plus store at 2006 St. Joseph Blvd., his wheels bumped into the curb on the right side of the road;

(f) he turned into the McDonald's restaurant parking lot by driving through the lane intended for cars exiting the lot; and

(g) after he had stopped in the McDonald's parking lot and drove back on St. Joseph heading west, he veered into the right lane and straddled the dotted line.

[155] Cst. Walker's Evidence

Cst. Walker gave the following evidence which I accept:

(a) he smelled an odour of alcohol from both Mr. Pillar and his car;

(b) he was steady on his feet and was able to communicate with him clearly, although his speech was slightly slurred;

(c) he showed no problems with his balance or walking when moving around the police station and from the cell to the breathalyzer room.

[156] Cst. Chouinard's Evidence

Cst. Chouinard testified, and I accept, that when she approached Cst. Walker speaking to Mr. Pillar in the parking lot, Mr. Pillar's speech was slurred.

[157] Alcohol in Vehicle

A 12 ounce bottle of gin, half empty, was on the console between the driver's seat and the front passenger seat.

[158] Cst. Lapointe's Observations

Cst. Lapointe noted that his speech was "good", his clothes were "orderly" and there was nothing remarkable about his face or his eyes.

[159] Video Evidence

The video recordings of Mr. Pillar in the station do not show that he had any difficulty walking or standing.

[160] Defence Submission on Alternative Explanations

Defence counsel submitted that there were other explanations for the bad driving. He suggests that he may have been distracted, lost, using a cellular phone or the car stereo. He submits that because all of the signs of impairment ceased once he ceased driving, it cannot be said that the only rational conclusion was that his ability to drive was impaired by alcohol.

[161] Rejection of Alternative Explanations

I do not accept those submissions. In my view, the submissions of defence counsel as to other possible reasons for the bad driving are the speculations warned against by Cromwell J. in Villaroman. The bad driving did not occur just once. It was consistent, occurring while Mr. Pillar was driving in both directions, on more than one road, and while entering a parking lot through the out lane. It showed the typical results of impairment by alcohol of one's driving ability – inability to judge accurately the edges of the lane being travelled in, overcompensating when turning, making overly wide turns. He smelled of alcohol. His eyes were droopy. His speech was slurred. An open bottle of alcohol was at his side in the vehicle.

[162] Varying Manifestations of Impairment

While he was steady on his feet after getting out of his car, not everyone whose ability to drive is impaired by alcohol shows all the possible signs of impairment. And any level of impairment, from slight to great, is sufficient.

[163] Guilty of Impaired Operation

I conclude that the only reasonable inference from all of the evidence, taken together, is that Mr. Pillar's ability to drive was impaired by alcohol. I find him guilty of impaired operation of a conveyance.

Released: September 2, 2020

Signed: Justice P. K. Doody