ONTARIO COURT OF JUSTICE

CITATION: R. v. Najev, 2021 ONCJ 427

DATE: 2021-08-16

COURT FILE No.: Hamilton 19-2995

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JOHN NAJEV

Before: Justice J.P.P. Fiorucci

Heard on: January 12, 29, February 17 and 18, 2021

Reasons for Judgment released on: August 16, 2021[^1]

Counsel: S. MacDougall, counsel for the Crown P. Ducharme, counsel for the defendant John Najev

FIORUCCI J.:

INTRODUCTION

[1] Two Hamilton police officers set up RIDE spot-checks at various locations throughout the city on the night of March 13, 2019. According to one of these officers, they stopped 63 vehicles before stopping John Najev’s vehicle. There was nothing remarkable about Mr. Najev’s driving before he became the sixty-fourth driver detained by the two officers.

[2] Almost immediately upon detention, P.C. Mark Manieri detected an odour of alcohol emitting from Mr. Najev’s breath and Mr. Najev admitted to P.C. Manieri that he had consumed alcohol in response to the officer’s questioning.

[3] P.C. Manieri did not make an approved screening device (ASD) demand, nor did he make a demand that Mr. Najev perform physical coordination tests, pursuant to s. 320.27(1)(a) or (b) of the Criminal Code. Instead, P.C. Manieri continued the detention by asking Mr. Najev additional questions, asking him to pull his vehicle over to the side of the road, and asking Mr. Najev to exit his vehicle.

[4] P.C. Manieri arrested Mr. Najev for impaired operation of a conveyance approximately twenty minutes after reasonable grounds existed for a formal s. 320.27 screening demand. P.C. Manieri purportedly formed the reasonable grounds for arrest at some point in that twenty-minute period. P.C. Manieri read Mr. Najev his rights to counsel (RTC) and caution five minutes after the arrest. Mr. Najev asked to speak with counsel.

[5] P.C. Manieri testified that he also read Mr. Najev the demand to provide breath samples into an approved instrument (AI). Mr. Najev gave evidence that P.C. Manieri did not read a breath demand to him and that the Qualified Breath Technician (QBT) read the first and only breath demand.

[6] Mr. Najev provided two samples of breath for analysis by an AI. His blood-alcohol concentration exceeded the legal limit. The police charged Mr. Najev with the offences of impaired operation of a conveyance and having a blood-alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance, contrary to ss. 320.14(1)(a) and (b) of the Criminal Code.

[7] Mr. Najev entered not guilty pleas to both charges. He seeks exclusion of the breath test evidence pursuant to s. 24(2) of the Charter on the grounds that this evidence was obtained after the police violated his Charter rights. Mr. Najev alleged the following Charter infringements:

(a) his prolonged arbitrary detention without RTC at the scene, followed by the failure to provide RTC immediately upon his arrest, and a delay in the implementation of RTC (ss. 9 and 10(b));

(b) the police failed to make an AI (s. 320.28(1) Criminal Code) breath demand “as soon as practicable” (s. 8); and

(c) the police failed to take the breath samples “as soon as practicable” as required by s. 320.28(1)(a) of the Criminal Code (s. 8).

[8] Mr. Najev submits that the Crown has also failed to prove the impaired operation count beyond a reasonable doubt. The prosecution was conducted as a blended voir dire. I heard the evidence pertaining to the alleged Charter breaches blended with the evidence relating to the trial issues.

SUMMARY OF THE EVIDENCE

[9] On March 13, 2019, P.C. Manieri was working the nightshift between 7:00 p.m. and 7:00 a.m.. He was on regular patrol responding to calls for service and doing proactive tasks. P.C. Manieri testified that he and P.C. Timothy Vucinic created one such proactive task, a RIDE program, at approximately 11:38 p.m.. P.C. Vucinic gave evidence that he and P.C. Manieri had been doing RIDE spot-checks throughout the night at various locations in the city and had stopped 63 vehicles prior to stopping Mr. Najev’s vehicle.

[10] Both officers were in uniform. They were in separate marked police cruisers. P.C. Manieri said the officers set up the RIDE checkpoint by positioning their cruisers bumper-to-bumper in the middle of Wilson Street East, near Lions Club Road in the City of Hamilton. The officers stood outside their cruisers. They stopped vehicles as they approached and asked the drivers if they had consumed any alcohol.

[11] P.C. Manieri testified that when Mr. Najev’s silver BMW approached the RIDE checkpoint at 11:52 p.m., Mr. Najev’s driving appeared normal. The officer had no concerns about his driving.

[12] P.C. Manieri testified that when he approached the driver’s side window to speak with Mr. Najev, he could smell an odour of alcohol emitting from his breath. According to P.C. Manieri, when he asked Mr. Najev if he had consumed any alcohol, Mr. Najev admitted to consuming one pint of Creemore Springs. P.C. Manieri claims that Mr. Najev changed his answer to two pints when he asked him again about alcohol consumption. Mr. Najev claims that P.C. Manieri asked him about alcohol consumption three times at the roadside, and that each time he told the officer that he had consumed two pints of beer, one at 7:30 p.m. and one at 10:30 p.m..

[13] Despite the divergence in the evidence of the officer and Mr. Najev on this point, it is not in dispute that, at approximately 11:52 p.m., P.C. Manieri could smell alcohol on Mr. Najev’s breath and Mr. Najev admitted that he had consumed alcohol.

[14] At approximately 11:53 p.m., P.C. Manieri continued asking Mr. Najev questions. According to P.C. Manieri, when Mr. Najev responded to these questions, he slurred the letters of certain words; the “h” in “home” and the “u” in “Upper Paradise”.

[15] At 11:59 p.m., P.C. Manieri asked Mr. Najev to pull his vehicle over to the side of the road. At some point after asking Mr. Najev to pull his vehicle over, P.C. Manieri asked him to exit his vehicle. P.C. Manieri did not make a note of when Mr. Najev got out of his vehicle but said, “I would imagine it was approximately right after, maybe a minute or two after that that he exited the vehicle upon pulling the vehicle over”.

[16] P.C. Manieri said he observed Mr. Najev to be very unsteady on his feet, requiring the assistance of his vehicle to maintain his balance as he walked to the rear of his vehicle. In cross-examination, he claimed that Mr. Najev almost fell as he exited his vehicle, stumbling back and using the side of his car as support. P.C. Vucinic testified to similar observations he says he made when Mr. Najev exited his vehicle and walked to the rear. Mr. Najev testified and denied that he had any difficulty exiting his vehicle, that he stumbled and almost fell, or that he needed the support of his vehicle to walk to the back.

[17] According to P.C. Manieri, after observing Mr. Najev to be unsteady on his feet, he asked for and received Mr. Najev’s driver’s licence and went back to his police cruiser to do a licence query to determine if Mr. Najev was the registered owner of the vehicle, if he had any warrants, “or just to determine who this individual was that I was talking with”. The following exchange occurred between Crown counsel and P.C. Manieri:

Q. ... So, from your cruiser when you’re doing these checks, when you’re finished, where do you go from there?

A. At that point I had obtained enough grounds to arrest him, even prior to the license check.

[18] P.C. Manieri arrested Mr. Najev for impaired operation at 12:12 a.m. on March 14, 2019, relying on the following grounds: a) the admission of alcohol consumption; b) the smell of alcohol; c) the unsteadiness on his feet; and d) slurring words. According to P.C. Manieri, at 12:12 a.m., he told Mr. Najev the charge, placed handcuffs on him and escorted him to the rear of his police cruiser.

[19] P.C. Manieri testified that, once Mr. Najev was in the cruiser, he entered the driver’s side and read Mr. Najev the RTC from his notebook at 12:17 a.m.. Mr. Najev told the officer that he understood his RTC and said that he would like to call a lawyer. At 12:17 a.m., P.C. Manieri also read the caution and confirmed that Mr. Najev understood it.

[20] P.C. Manieri claims that, at 12:18 a.m., he read a demand to Mr. Najev to provide breath samples for analysis by an AI and to accompany him for that purpose. According to P.C. Manieri, Mr. Najev answered “yes” when asked if he understood. Mr. Najev denies that P.C. Manieri read a breath demand to him at all. He claims that the QBT read the first and only breath demand to him. P.C. Manieri provided grounds for his arrest to the QBT at 12:40 a.m.. The QBT made a breath demand to Mr. Najev at 1:21 a.m..

[21] The QBT obtained breath samples from Mr. Najev at 1:28 a.m. and 1:50 a.m., the results of which exceeded the legal limit.

ANALYSIS AND FINDINGS

a. Did the arbitrary detention of Mr. Najev at the RIDE check-stop without RTC violate his ss. 9 and 10(b) Charter rights, and did the police further violate his s. 10(b) rights by not providing RTC immediately upon his arrest and by delaying the implementation of his RTC?

[22] In this case, P.C. Manieri and P.C. Vucinic demonstrated a fundamental misunderstanding of both their common law power to randomly stop vehicles as part of an organized RIDE program, or pursuant to provincial legislation, and their obligation to ensure that these stops “impair as little as possible the rights of the driver”,[^2] including the right not to be subjected to an unjustified delay or suspension of their RTC. The conduct of the police in this case resulted in significant infringements of Mr. Najev’s Charter rights. Credibility and reliability concerns that I have identified in the evidence of the police officers have contributed to my findings.

[23] In R. v. Dedman[^3], the Supreme Court of Canada considered the validity of a random stop conducted as part of Ontario’s RIDE campaign. At the time, no statutory authority existed for the stop. The RIDE program involved the police establishing checkpoints and stopping motorists at random to check their sobriety, without grounds to suspect that drivers had been consuming alcohol.

[24] Of note, in the stated case presented to the Court in Dedman, the description of the RIDE program included the fact that RIDE officers were equipped with approved roadside screening devices to permit them to make ASD demands if they formed the requisite grounds for such a demand.[^4]

[25] The Supreme Court of Canada split 4-3 on the legality of random RIDE stops. The majority applied the Waterfield test to find that there was a common law authority for random vehicle stops for the purpose contemplated by the RIDE program. In doing so, Le Dain J., writing for the majority, pointed out that these stops “would be of relatively short duration and of slight inconvenience”.[^5]

[26] After Dedman, the Supreme Court of Canada considered the legality of random motor vehicle stops pursuant to statutory police powers found in provincial highway traffic legislation in R. v. Hufsky[^6] and R. v. Ladouceur[^7]. It is well settled that these random stops are arbitrary detentions that violate s. 9 of the Charter.

[27] The Supreme Court of Canada has held that random stops are constitutionally permissible because they are a reasonable limit under s. 1 of the Charter.[^8] However, their legality is dependant upon their short duration and on the police ensuring that the rights of the driver are infringed as little as possible. The “investigation of sobriety and driving related offences is meant to be focused and brief”.[^9] If the police fail to conduct focused and brief investigations at the roadside, s. 1 of the Charter no longer justifies the Charter violations. In such circumstances, the motorist is subjected to an unjustified arbitrary detention and violation of his or her RTC.[^10]

[28] The Ontario Court of Appeal case of R. v. Smith did not involve a random stop of a motor vehicle but the case illustrates the tension between “measures enacted to assist the police in the apprehension of those who commit offences”[^11] and individual constitutional rights. Smith re-affirms that, in order to minimize the intrusion on the motorist’s constitutional rights, the police must act with dispatch in determining whether there are grounds to make a roadside screening demand or to arrest the driver and make an AI demand.

[29] In Smith, the police officer observed driving conduct that made him suspect that Mr. Smith had been drinking. The officer stopped Mr. Smith’s vehicle at 12:42 a.m. and spoke with him. The officer asked Mr. Smith if he had been drinking. Mr. Smith admitted to consuming alcohol and he had the smell of alcohol on his breath. The officer asked Mr. Smith to perform a standing sobriety test before making an ASD demand at 12:45 a.m., which Mr. Smith failed at 12:48 a.m..

[30] The officer employed four investigative procedures aimed at determining whether there were reasonable grounds to believe that Mr. Smith was impaired or over the allowed blood-alcohol level: a) he observed Mr. Smith while talking to him; b) asked Mr. Smith if he had been drinking; c) asked Mr. Smith to perform a standing sobriety test; and d) required Mr. Smith to provide a sample of his breath into the ASD.[^12]

[31] Mr. Smith argued on appeal that the officer’s use of multiple investigative techniques to assess impairment prior to advising him of his RTC constituted an infringement of his s. 10(b) Charter rights, which could not be justified under s. 1 of the Charter.

[32] Doherty J.A. noted that the officer had express statutory authority to stop Mr. Smith’s vehicle pursuant to s. 48 of Ontario’s Highway Traffic Act, which at the time read as follows:

48(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada).[^13]

[33] Although s. 48 of the Highway Traffic Act expressly referred only to the power to stop motorists, Doherty J.A. found that “by inference the section also authorizes taking reasonable steps to determine whether there is evidence to justify making the demands referred to in s. 254 of the Criminal Code”.[^14]

[34] Section 254 of the Criminal Code set out two distinct demands, the ASD breath demand and the breathalyzer (AI) demand that was made when an officer had reasonable and probable grounds to arrest the driver for impaired driving or Over 80. The Ontario Court of Appeal found that s. 48 of the Highway Traffic Act authorized the officer to take reasonable steps to determine whether there was evidence to support either an ASD demand or a breathalyzer (AI) demand, or both.[^15] Doherty J.A. rejected a restrictive interpretation of s. 48 which would require an officer who had stopped a motor vehicle and formed a reasonable suspicion that the driver had been drinking to choose either to make an ASD demand or to proceed with some other investigative step authorized by s. 48 such as physical sobriety tests.[^16]

[35] The Ontario Court of Appeal found that the officer who stopped Mr. Smith and had made a decision to make an ASD demand, was still entitled under s. 48 to take reasonable steps to determine whether he had grounds to make an AI breathalyzer demand on the basis of possible impairment. However, Doherty J.A. observed that the officer was required to take those additional steps with dispatch:

The facts of this case provide a good example of the interaction of s. 48 of the H.T.A. and s. 254 of the Criminal Code. Constable Stuckey acting under the authority of s. 48 stopped the appellant's vehicle and took certain steps to determine whether he had grounds to make either of the demands in s. 254. He concluded that he had grounds for an A.L.E.R.T. demand and at some point between 12:42 a.m. and 12:45 a.m. told the appellant that he would be required to perform the A.L.E.R.T. test. In my opinion, even though Constable Stuckey had decided to make the A.L.E.R.T. demand he was still entitled under s. 48 of the H.T.A. to take reasonable steps to determine whether he had grounds to make a breathalyzer demand on the basis of possible impairment. In taking any additional steps, however, Constable Stuckey was constrained by the requirement that the A.L.E.R.T. test be administered "forthwith" [emphasis added].[^17]

[36] Therefore, the Court of Appeal found that a police officer who had grounds to make an ASD demand could still, under the authority of s. 48 of the Highway Traffic Act, take reasonable steps to determine whether there were grounds for an AI breathalyzer demand.[^18] The section does not place any numerical limit on the procedures that may be employed. Instead, the section “authorizes any procedure or procedures that are both reasonable and done for the purpose of determining whether the officer has grounds for making either or both of the demands referred to in s. 254 of the Criminal Code”.[^19]

[37] However, s. 48 of the Highway Traffic Act does not authorize prolonged and unfocused detentions without RTC. Doherty J.A. said the following in Smith:

It is impossible to provide an exhaustive list of procedures that will meet these criteria in all cases. It is, however, safe to say that a procedure cannot be reasonable within the meaning of s. 48 unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee [emphasis added].[^20]

[38] In Smith, the statutory justification for the denial of RTC during the three-minute detention preceding the making of the ASD demand (12:42 to 12:45 a.m.) was found in s. 48 of the Highway Traffic Act.[^21] During this period, Doherty J.A. found that “the officer was engaged in taking reasonable investigative steps to determine whether he had evidence to make an ASD or an AI breathalyzer demand.[^22]

[39] Section 48 of the Highway Traffic Act remains in effect today, and has been amended to refer to the new sections of the Criminal Code dealing with roadside screening demands and evidentiary demands:

48. (1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 320.27 or 320.28 of the Criminal Code (Canada).

[40] The Supreme Court of Canada confirmed in R. v. Orbanski; R. v. Elias that the suspension of s. 10(b) Charter rights during impaired driving investigations is constitutionally permissible. In the context of roadside screening for impaired drivers, “officers must be equipped to conduct this screening, though with minimal intrusion on the individual motorist's Charter rights”.[^23] The Supreme Court of Canada cited Smith and said:

Doherty J.A. provided a useful delineation of the scope of the police power to check the sobriety of drivers at the roadside in Smith where he stated that "a procedure cannot be reasonable ... unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee".[^24]

[41] In Smith, Doherty J.A. said that, in taking additional steps to determine whether he had grounds to make an AI breathalyzer demand, the officer was constrained by the requirement that the ASD (A.L.E.R.T.) test be administered "forthwith". In R. v. Quansah, the Ontario Court of Appeal interpreted the “forthwith” requirement in s. 254(2) and held that the constitutional validity of section 254(2) of the Criminal Code depends on "its implicit and explicit requirements of immediacy ".[^25]

[42] It is implicit that the ASD demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.[^26] The ASD test must be administered forthwith as well. Compliance with the “forthwith” requirement “justifies what would otherwise be sustained as violations of ss. 8, 9, and 10(b) of the Charter”.[^27]

[43] As the Ontario Court of Appeal noted in Quansah:

So long as the demand is validly made pursuant to s. 254(2) - that is, so long as it is made 'forthwith'- for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads.[^28]

[44] The evidence in this case does not demonstrate that P.C. Manieri engaged in a focused and brief detention of Mr. Najev at the roadside to determine if he had grounds to make a demand under s. 320.27 or 320.28 of the Criminal Code. Instead, P.C. Manieri’s testimony reveals that he was unaware of his obligation to act with dispatch to determine whether he had evidence to make either demand. Since P.C. Manieri failed to act with dispatch, his arbitrary detention of Mr. Najev was not justified by s. 1 of the Charter and it led to a violation of Mr. Najev’s s. 10(b) Charter rights.[^29]

[45] P.C. Manieri and P.C. Vucinic conducted random stops of motor vehicles pursuant to the RIDE program. However, neither officer could provide clear and cogent evidence as to whether they were equipped with an ASD when they detained Mr. Najev. In fact, I found both officers to be less than forthright when they responded to Defence counsel’s questions about whether they had an ASD that night. I will explain how my concerns about the credibility and reliability of the officers’ testimony on this point contributed to findings I made regarding their evidence in other areas, including indicia of impairment.

[46] The following exchange that occurred between Defence counsel and P.C. Manieri illustrates the unfocused nature of the detention and contains the testimony of the officer that led me to have concerns about his credibility:

Q. So, a RIDE Program, did you have an approved screening device with you that night?

A. I don’t recall.

Q. Well, it was the idea that you were going to check drivers for consumption of alcohol?

A. Correct.

Q. So, what were you going to do, just use your sense of smell, is that it?

A. Well, to answer your question, typically we do have one. I don’t have it noted that I had one because I did not use one.

Q. Well, you’ve heard my comments about ‘typically.’ I’m asking you this night, I’m putting to you directly you did not have an approved roadside screening device with you that night. What do you say to that?

A. I don’t recall.

Q. But if you’re doing a RIDE Program, isn’t it the case that if you suspect somebody has alcohol in their system, that that’s what you would rely upon, an approved roadside screening device? Isn’t that what you do?

A. If there’s a suspicion that they might not be impaired and they’d only had some alcohol, that would be a good use for it. But when you have grounds to arrest him for impairment, you don’t even – you don’t consider a roadside.

Q. Well, I’m just talking about the RIDE Program. Do you follow my question? You set up a RIDE Program, and with a RIDE Program, in order to deal with any suspicion of alcohol in somebody’s system, you have with you an approved screening device, roadside screening device. Am I right about that?

A. Typically, yes.

Q. Okay, so how typical was this night? You didn’t have one with you this night, did you?

A. I don’t recall. My partner might have.

Q. So, you’re the one checking to see if there’s alcohol in the body of Mr. Najev and you have no idea whether you even have an approved screening device with you?

A. At this time I don’t recall, that’s correct.

Q. I don’t see it anywhere mentioned in your notes, although I struggled to get through your written notes here. Do have it written down anywhere that you had that device with you?

A. I’ll check my notes.

Q. Sure, go ahead.

A. I don’t.

Q. You don’t. You would have written it in your notes if you had one, wouldn’t you?

A. Not necessarily.

Q. Did you give any thought that night, ‘Boy, I wish I had a screening device here, I could check this out.’ Did you give any thought…

A. No.

Q. …to that? No?

A. No, as I already mentioned; if you have grounds for an impairment, you arrest them for the impairment and you don’t do the roadside.

Q. And that’s the very reason that you’re making up these grounds; they’re not true, you’re making them up because you have to justify what you did that night. What do you say to that?

A. That is incorrect. That’s incorrect.

Q. In fact, if you had a roadside screening device, you’d be able to test as to whether or not he had alcohol in his system at the time you were dealing with him, no problem at all.

A. That’s completely false. As I mentioned, that’s a device that is not used if the person is – if there’s grounds to arrest them for impaired operation.

Q. I see. But what you saw, this unsteadiness that you described, is after you have him pull over to the side and you don’t even come over there for several minutes, am I right about that?

A. That’s correct.

Q. What were you doing while he was pulled over to the side of the road?

A. I don’t recall.

Q. I understand he was over there for at least 15 or 20 minutes; what do you say to that?

A. I’d have to check my timeline in my notes right now.

Q. Go ahead.

A. So, as mentioned, I requested for the defendant to pull over to the side at 2359 hours. And then at 0012 hours I placed the defendant under arrest, which means that’s not 15 or 20 minutes. That’s….

Q. That’s 13 minutes when you placed him under arrest?

A. From the time I asked him to pull over from the time I placed him under arrest, yes, approximately 13 minutes.

Q. I see. So, at least in those 13 minutes that you can count by your notes, you definitely had him in detention, right? He wasn’t allowed to go; he was detained.

A. I never told him that he was not allowed to leave, I never suggested that to him at all.

Q. I thought you had those cars ready to go if anybody leaves when you tell them to go to the side, they can chase them.

A. I never said that. You suggested that and we don’t – it’s not what we do, is have cars ready to go.

Q. So, you told him to pull over to the side, but if he had just driven off, that would be fine?

A. No, I would have – I would have followed up because I smelled an odour of alcohol and then had an admittance for consumption of alcohol as well, so I was forming my grounds.

Q. So, I’ll go back to my original suggestion. You had him in detention; he was detained by you.

A. I never told him he couldn’t leave.

Q. I’m talking about what’s in your mind. If you have a person that you’ve told to pull over there and he was not free to go, he was detained, right?

A. No. I was still – I was still formulating grounds. It’s something that takes some time. It’s not something I can just do in 20 seconds. I’m making sure I’m thorough and making the right decision and making sure I have the proper evidence.

Q. When you told him to pull over there, did you tell him his rights to counsel?

A. No, he wasn’t under arrest.

Q. But he was detained. You know what detained means, right?

A. I understand what detained means, but I never told him that he was not allowed to leave at that time.

Q. I see. So, I’m putting to you that as an officer who’s experienced and knowledgeable about what it means to detain someone, as far as you were concerned, your order to him to pull over and stop was you placing him in detention. Do you agree or disagree?

A. I would disagree. I had told him to pull over so I could speak with him further to determine if, in fact, he was impaired, and for the safety, as I was in a live road at the time. I also – that was another reason for getting him to move over.

[47] It is difficult to accept P.C. Manieri’s testimony that he simply could not recall whether he had an ASD device that night, and that his partner, P.C. Vucinic, “might have” had one. P.C. Manieri acknowledged that officers conducting a RIDE program would typically have an ASD. On March 13, 2019, P.C. Manieri was engaged in random stops of motor vehicles to conduct sobriety checks. I find it implausible that he would not know or recall whether he or P.C. Vucinic had an ASD that night. Instead, I find that P.C. Manieri recognized the potential significance of Defence counsel’s question about the availability of an ASD and was less than forthright when he claimed that he could not recall whether they had one or not.

[48] P.C. Manieri’s responses to Defence counsel’s questions make it clear that he did not appreciate:

(1) that the random stop of Mr. Najev’s vehicle constituted an arbitrary detention that triggered Mr. Najev’s s. 10(b) Charter rights; and

(2) that, in order for the detention and suspension of RTC to be constitutionally valid, he was required to act with dispatch to determine whether he had grounds to make one of the following demands: (i) a s. 320.27 demand (to perform SFST physical coordination tests or provide an ASD breath sample); or (ii) a s. 320.28 AI breathalyzer demand if grounds existed for an arrest.

[49] By 11:52 p.m., P.C. Manieri smelled alcohol on Mr. Najev’s breath and Mr. Najev admitted to P.C. Manieri that he had consumed alcohol. P.C. Manieri claimed that he also noted slurred speech when he asked Mr. Najev further questions at 11:53 p.m.. Although P.C. Manieri did not articulate in his testimony that he had a reasonable suspicion to make a s. 320.27 demand, it can be inferred from his testimony that within a minute or less of arbitrarily detaining Mr. Najev, he had the grounds make a formal screening demand. P.C. Manieri did not make a screening demand, and his evidence lacked clarity regarding what happened during Mr. Najev’s continued detention until the arrest at 12:12 a.m..

[50] According to P.C. Manieri, he asked Mr. Najev to pull his vehicle over at 11:59 p.m.. This was approximately 6 minutes after he had received an admission of alcohol consumption, smelled alcohol on Mr. Najev’s breath and claims that he had detected slurred speech.

[51] At some point between 11:59 p.m. and 12:12 a.m., P.C. Manieri directed Mr. Najev to exit his vehicle, but he could not say for certain when that was:

I requested that he pull the vehicle over at approximately 23:59 hours. I don’t have it noted, however, I would imagine it was approximately right after, maybe a minute or two after that that he exited the vehicle upon pulling the vehicle over.

[52] P.C. Manieri claimed that when Mr. Najev got out of his vehicle, he witnessed him to be unsteady on his feet. Again, P.C. Manieri could not provide the time at which he made this observation of unsteadiness. Defence counsel asked P.C. Vucinic about his observations of Mr. Najev being unsteady on his feet, and specifically asked him about the timing of this observation. P.C. Vucinic agreed with Defence counsel that Mr. Najev was in his vehicle for approximately 20 minutes, give or take, before he exited:

Q. Now, would you agree that he had been over on the side for approximately 20 minutes before he alighted from that side of the vehicle?

A. In his vehicle?

Q. Yes.

A. I’d like to think so, give or take around that time.

[53] P.C. Vucinic went on to say that the stumbling happened within 5 minutes of the arrest:

Q. And when you were discussing what times you were going to put down for each thing, you did have a time in there, in your notes, relating to this almost stumble, don’t you?

A. Yeah.

Q. And what time do you place that almost stumble?

A. I do not have an exact time for that in my notes here, but he was arrested at 12:12 a.m. and it would have been within five minutes before that, in that timeframe.

Q. So, do you suggest that they were at the back of the car for five minutes or is that a matter of seconds?

A. No, he was arrested at 12:12…

Q. Okay.

A. …so, between getting out of his car, walking to the back, within that five-minute timeframe. I don’t have an exact time for you, but….

[54] Even if I were to accept P.C. Vucinic’s evidence that Mr. Najev stumbled, and that the stumbling happened within 5 minutes of the 12:12 a.m. arrest, there remains a paucity of evidence regarding what P.C. Manieri was doing in the approximately 8 minute period between 11:59 p.m. and 12:07 a.m., the earliest time at which Mr. Najev exited his vehicle according to the testimony of P.C. Vucinic.

[55] When Crown counsel asked P.C. Manieri what was happening in the time period between 11:59 p.m. and 12:12 a.m., the following exchange occurred:

Q. Okay. You’ve told us that you asked the accused to pull the vehicle over at 11:59 p.m. and that the arrest was at 12:12 a.m. Can you tell us what was going on in that 13, or 12 to 13 minutes?

A. There’s some additional conversation between myself and the defendant that is not noted. I do recall speaking with him in regards to where he was coming from. I was advised he was coming from a banquet at McMaster and that he’s an instructor there, a golf instructor, I believe.

Q. … Where are you and the accused located during the conversation during that 12 minutes?

A. From the time that he’s out of the vehicle and the arrest time, we would have been at the rear of the vehicle, from my recollection.

[56] Mr. Najev testified about what happened at the roadside. Not surprisingly, his evidence differed in many respects from that of the officers. The testimony of both officers suggests that Mr. Najev was asked to exit his vehicle once. Mr. Najev claimed that he was asked to exit twice. Notwithstanding the divergence in the evidence of the officers and Mr. Najev on this point, I accept Mr. Najev’s evidence, which is corroborated by the testimony of P.C. Vucinic, that he sat in his vehicle for several minutes that cannot be adequately accounted for, before being arrested and provided with his RTC.

[57] Unlike the case of Smith, P.C. Manieri did not testify that after he had grounds to suspect that Mr. Najev had alcohol in his system, he performed an additional step, such as a field sobriety test, to determine if he had sufficient grounds to make an arrest.[^30] Instead, the evidence set out above has led me to find that P.C. Manieri engaged in a prolonged and unfocused detention of Mr. Najev without providing him with RTC.

[58] I have already discussed my concern that P.C. Manieri was less than forthright when answering questions about the availability of an ASD. I have similar concerns with respect to the evidence of P.C. Vucinic on this point. The following exchange occurred between Defence counsel and P.C. Vucinic:

Q. Now, I understand that you didn’t even have a roadside approved screening device with you that night.

A. Myself, no.

Q. And I suggest to you that no officer there did.

A. Okay.

Q. What do you say to that?

A. I do not know if Constable Manieri had one, but I know that one was not used, that I recall.

Q. Well, when you were stopping vehicles, if somebody said they didn’t have anything of an alcoholic nature to drink but you thought by symptoms they did, what were you going to do?

A. Request for one to be brought to the location.

Q. I see. So, the RIDE Program is set up but you would wait to have one brought to you that night?

A. Yes, as there’s other nearby units that would have one.

Q. Right. And was there any effort, do you know, made to have one brought to the scene to deal with Mr. Najev?

A. No.

Q. But you have in there that some point, at least, your fellow officer thought that whatever he witnessed may be the result of alcohol consumption.

A. Yeah, on my end I did not request an ASD to be brought to the location.

Q. No, but would it be your anticipation that your if fellow officer thought that he saw symptoms of alcohol consumption, he would call for an ASD to be brought to the location, is that what would normally happen?

A. No, not at all times. If – unless there’s a great deal of uncertainty, then perhaps. But Constable Manieri must have been – felt very certain that Mr. Najev was impaired.

Q. So, it was all on Officer Manieri; it was his decision to make?

A. Yes, he was the arresting officer.

[59] I find that when Defence counsel initially asked P.C. Vucinic about the presence of an ASD, P.C. Vucinic, like P.C. Manieri, was less than forthright when he suggested that he did not know if Constable Manieri had one. The balance of P.C. Vucinic’s answers to Defence counsel’s questions show that he knew very well that P.C. Manieri did not have an ASD and that, if one was required, the officers would have to request that it be brought to the location of the random stops they were conducting.

[60] I find that neither P.C. Manieri nor P.C. Vucinic had an ASD when Mr. Najev’s vehicle was stopped. The fact that the officers did not have an ASD in their possession when P.C. Manieri stopped Mr. Najev’s vehicle did not, in and of itself, make the stop an arbitrary detention that was not saved by s. 1 of the Charter. The random stop in Mr. Najev’s case was unconstitutional because the evidence points to P.C. Manieri being dilatory, resulting in a prolonged and unfocused detention and an unjustifiable delay and suspension of Mr. Najev’s RTC.

[61] A close review of the evidence makes it clear that P.C. Manieri did not understand that the screening demands in s. 320.27, whether it be an ASD demand or a demand to perform physical coordination tests, are the tools used by police officers to determine whether grounds exist to make an arrest and a s. 320.28 demand. He also failed to appreciate that a s. 320.27 demand must be made and administered immediately when the officer has reasonable grounds to suspect that the driver has alcohol in their body.

[62] This lack of understanding of the roadside screening procedures led P.C. Manieri to detain Mr. Najev beyond the point when he would have had grounds to make a roadside screening demand, and he was unable to articulate the reason for the continued detention or what was happening during the continued detention. Although P.C. Manieri claimed that he was still forming grounds after he smelled alcohol and had an admission of alcohol, his evidence does not establish that he took reasonable investigative steps with dispatch at any point after 11:53 p.m. to determine if he had grounds to make an arrest.

[63] As I will explain more fully in my analysis regarding the impaired operation count, I have reservations about the claims of both P.C. Manieri and P.C. Vucinic that Mr. Najev was unsteady on his feet. However, even if P.C. Manieri made this observation of unsteadiness at some point between 11:59 p.m. and 12:12 a.m., there is an absence of evidence on when this observation was made and why Mr. Najev was detained for many minutes without RTC before his arrest.

[64] Although it may not be a requirement that police officers who conduct random stops at established sobriety check-points have an ASD in their possession, it would certainly be good practice, as it would minimize the duration of the arbitrary detention and the abridgement of the motorist’s RTC. I note that the recent comprehensive changes to the impaired driving legislation introduced a mandatory alcohol screening provision in s. 320.27(2). This provision permits a peace officer, who is acting in the course of the lawful exercise of his or her powers and who has an ASD in their possession to require a motorist to provide a roadside breath sample, without any grounds. The availability of this expanded statutory power to make an ASD demand without grounds makes detentions like the one that occurred in Mr. Najev’s case unacceptable.

[65] The requirement of immediacy in the making of a roadside screening demand and the administering of the tests would be rendered meaningless if officers were permitted to detain motorists beyond the point that they develop a reasonable suspicion that the motorist has alcohol in their system, without adequately explaining what steps they took beyond that point to ensure that the motorists constitutional rights were infringed as little as possible. Mr. Najev has established a breach of his ss. 9 and 10(b) Charter rights.

[66] P.C. Manieri testified that he arrested Mr. Najev at 12:12 a.m. by telling him the charge, placing him in handcuffs and escorting him to the rear of his police cruiser. According to P.C. Manieri, once Mr. Najev was inside the cruiser, he entered the driver’s side and began reading Mr. Najev the RTC and caution. Mr. Najev, on the other hand, testified that after he was put in the cruiser, a period of time elapsed before P.C. Manieri entered the driver’s seat and provided him with the RTC.

[67] I accept Mr. Najev’s evidence that P.C. Manieri did not immediately enter the cruiser after placing Mr. Najev inside. Mr. Najev’s testimony is corroborated by P.C. Manieri’s evidence that he read the RTC at 12:17 a.m., 5 minutes after the arrest.

[68] In Suberu, the Supreme Court of Canada held that, “[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention”.[^31] The Court noted that, “[i]n order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately"”.[^32]

[69] Crown counsel argued in her written materials that the delay between the time of arrest and informing Mr. Najev of his RTC resulted from P.C. Manieri escorting the applicant to the rear of a police vehicle, and that this delay was momentary and inconsequential with no attempt to elicit evidence from Mr. Najev, but to the contrary, to ensure his safety at the roadside.

[70] First, there is no evidence that the 5 minute delay in reading RTC after the arrest was the result of officer or public safety concerns, or the need to ensure Mr. Najev’s safety at the roadside.[^33] According to P.C. Manieri, Mr. Najev had been standing at the roadside without RTC for many minutes before his arrest. I find that the delay of 5 minutes between the arrest and P.C. Manieri providing Mr. Najev with his RTC resulted in a further breach of his s. 10(b) Charter rights. In my s. 24(2) analysis, I will address Crown counsel’s submission that the delay was brief and that the police did not attempt to elicit evidence from Mr. Najev. However, at this point, I note that the delay between the arrest and RTC provides further evidence of the lack of urgency in the conduct of P.C. Manieri.

[71] Mr. Najev asserted that the police also violated his s. 10(b) Charter rights by delaying the implementation of his RTC. This submission focused primarily on the 17 minute gap between the arrival at the police station at 12:34 a.m. and P.C. Manieri’s call to duty counsel 17 minutes later, at 12:51 a.m.. As I will explain in my analysis of the “as soon as practicable” issue, P.C. Manieri adequately explained the reasonable steps that the police were taking in this 17 minute interval before the call to duty counsel. I find that there was no violation of s. 10(b) for any delay in implementing Mr. Najev’s RTC after he asked to speak with a lawyer at 12:17 a.m.. Ultimately, Mr. Najev did speak with duty counsel, at 1:04 a.m., less than an hour after his arrest.

b. Did P.C. Manieri infringe Mr. Najev’s s. 8 Charter rights by failing to make the AI breath demand “as soon as practicable”?

[72] Mr. Najev disputes P.C. Manieri’s claim that he read the AI breath demand at 12:18 a.m. and says that the officer’s failure to make a breath demand “as soon as practicable”, as required by s. 320.28(1) of the Criminal Code, resulted in a s. 8 Charter violation. One of the requirements of a lawful evidentiary breath demand is that the demand be made as soon as practicable.[^34] In R. v. Alex, the Supreme Court of Canada held that sections 8 and 24(2) of the Charter provide an effective recourse for challenging the lawfulness of a breath demand based on a claim that the demand was not made as soon as practicable.[^35]

[73] The Defence relied heavily on statements that Mr. Najev made in the breath room to the QBT, P.C. Gregory Stogiannis, denying that P.C. Manieri had made a breath demand at the roadside, or at any point prior to P.C. Stogiannis’s breath demand. Crown counsel argued that the statements Mr. Najev made to the QBT were post-arrest exculpatory utterances that were inadmissible as prior consistent statements. The Crown submitted that Mr. Najev’s statements cannot be used to bolster the credibility and reliability of his in-court testimony that P.C. Manieri did not make a breath demand. Defence counsel argued that the reaction and utterances of Mr. Najev when he was confronted with P.C. Stogiannis’s claim that P.C. Manieri had demanded samples of his breath, are admissible and relevant to the credibility of the accused’s claim that no demand was made.

[74] In R. v. Edgar, the Ontario Court of Appeal confirmed that “exculpatory out-of-court statements made by an accused person are generally considered inadmissible, although this rule is subject to many exceptions”.[^36] The Court held that “the spontaneous exculpatory statements made by an accused person upon or shortly after arrest may be admitted as an exception to the general rule excluding prior consistent statements for the purpose of showing the reaction of the accused when first confronted with the accusation, provided the accused testifies and thereby exposes himself or herself to cross-examination”.[^37]

[75] Mr. Najev did not make a pre-trial application for admission of his out-of-court statements to the QBT for the purposes that Defence counsel sought to use them. If the Defence had made an Edgar application, Mr. Najev’s utterances to P.C. Stogiannis may have been admitted as his spontaneous out-of-court statements and reaction when first confronted with the issue of P.C. Manieri’s breath demand, and as proof of consistency, since he took the stand and exposed himself to cross-examination.

[76] However, since the Defence did not make a pre-trial Edgar application, I find that it would be unfair to admit these out-of-court utterances. Accordingly, in deciding the issue of whether P.C. Manieri made a breath demand as soon as practicable, I have disregarded Mr. Najev’s statements and reaction in the breath room in their entirety.

[77] I nonetheless find that the Crown has failed to establish on a balance of probabilities that P.C. Manieri made the breath demand at 12:18 a.m.. The totality of the evidence on this issue is the evidence of the officer that he made the demand and Mr. Najev’s testimony that no demand was made. I accept Mr. Najev’s evidence that no demand was made. My concerns about the credibility and reliability of P.C. Manieri’s testimony regarding the ASD bolster my finding on this issue. Furthermore, P.C. Manieri’s testimony demonstrated that he lacked an understanding of the concept of detention in the context of random stops to perform sobriety checks. It is conceivable to me that he also lacked an understanding of the need to make the AI demand as soon as practicable and that he failed to do so.

[78] In any event, I note that P.C. Manieri testified that even before he had performed licence checks in his cruiser, he had developed grounds to arrest Mr. Najev. However, there is no evidence about when it was that the officer developed those grounds. This makes it impossible to assess whether the s. 320.28 breath demand was made as soon as practicable even if P.C. Manieri did make it at 12:18 a.m. as he claims.

[79] Although it was not argued by counsel, I wish to address the s. 320.28 breath demand made by the QBT, P.C. Stogiannis. P.C. Manieri provided his grounds for arrest to P.C. Stogiannis at 12:40 a.m.. P.C. Stogiannis made a breath demand to Mr. Najev at 1:21 a.m..

[80] In R. v. Guenter[^38], the arresting officer forgot to make a demand at the scene, but the QBT made a prompt demand once informed by the arresting officer of her grounds for arresting Mr. Guenter. The Ontario Court of Appeal held that the section 254(3) requirement that the breath demand be made “as soon as practicable” can be met by any peace officer who makes a prompt demand after forming reasonable grounds. In Guenter, the “as soon as practicable” requirement was met by the breath technician’s demand, even though it was made approximately an hour and a half after the arrest, because the breath technician made the demand promptly after forming his own grounds for believing that Mr. Guenter had committed a drinking and driving offence.

[81] I find that Guenter is distinguishable from the facts in Mr. Najev’s case. The words “as soon as practicable” have been interpreted to mean “within a reasonably prompt time”.[^39] No evidence was tendered by the Crown to account for the 41 minute delay between the time P.C. Stogiannis formulated his grounds and the time he made his breath demand. The Crown need only prove one valid demand and that demand must be made by a peace officer “as soon as practicable” after he or she forms the requisite reasonable grounds.[^40] P.C. Stogiannis’s demand does not meet that criteria.

[82] The Crown has not met its burden of establishing on a balance of probabilities that the s. 320.28 breath demand was made as soon as practicable, resulting in a violation of Mr. Najev’s s. 8 Charter rights.

c. Did the police violate Mr. Najev’s s. 8 Charter rights by failing to take his breath samples “as soon as practicable?

[83] As I explained in R. v. Fancey,[^41] there are conflicting authorities in Ontario on the issue of whether the failure of the police to take an accused’s breath samples “as soon as practicable” results in a breach of s. 8 of the Charter. Mr. Fancey was charged under the old statutory regime with the offence of Over 80, contrary to s. 253(1)(b) of the Criminal Code.

[84] Prior to the legislative changes that came into effect on December 18, 2018, the phrase “as soon as practicable” appeared twice in Section 254(3) and once in Section 258(1)(c).

[85] Section 254(3) required a peace officer, who had the requisite grounds, to make a demand to the person “as soon as practicable” to require the person to provide, “as soon as practicable” the breath samples.

[86] If each of the breath samples was taken “as soon as practicable”, and the other pre-requisites in s. 258(1)(c) were met, the Crown could rely upon the presumption of identity in that subsection, which deemed the breath readings to be proof of the accused’s blood-alcohol concentration at the time of the alleged offence, which was the time at which the accused was operating or in care or control of a motor vehicle.

[87] In Fancey, I reviewed a number of Ontario trial decisions that held that the failure of the police to take the breath samples “as soon as practicable” constituted an unreasonable search and seizure thereby violating s. 8 of the Charter.[^42] These cases found that the requirement to take breath samples “as soon as practicable” was a statutory obligation contained in s. 254(3), quite apart from whether the Crown intended to rely on the presumption of identity that existed in s. 258(1)(c) of the Criminal Code.

[88] In Fancey, I also reviewed the conflicting line of authorities in Ontario, including the Summary Conviction Appeal decision of R. v. Mawad, that held that s. 8 of the Charter is not engaged when the police fail to obtain breath samples “as soon as practicable”.[^43] In Mawad, Andre J. stated, “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”.[^44] Andre J. held that the failure to take the breath samples “as soon as practicable” did not amount to an unreasonable search and seizure because the arresting officer and breathalyzer technician had the requisite grounds to make the breathalyzer demand to Mr. Mawad, but went on to say that “[t]he situation may have been different had they lacked the grounds to make the demand”.[^45]

[89] As I observed in Fancey, it is clear that Andre J. viewed the requirement in s. 254(3) that the subject provide the breath samples “as soon as practicable” as a means of assisting the Crown in availing itself of the s. 258(1)(c) presumption of identity, and not as a separate statutory obligation on the police which could attract constitutional scrutiny. In Fancey, I found that since there was no decision from the Ontario Court of Appeal on the subject, Mawad appeared to be binding authority for trial courts. Other courts agreed that Mawad was binding and that, therefore, s. 254(3) of the Criminal Code did not require the police to administer the breath tests as soon as practicable and the failure to do so was not a s. 8 Charter breach.[^46]

[90] I reproduce here paragraphs 44 to 46 of my decision in Fancey:

44. If one accepts the proposition that one of the purposes of the requirement to take breath samples “as soon as practicable” is “to minimize the period of detention of breath test subjects”, there may be some force to the argument that Section 254(3) imposes a statutory duty on the police to do so, regardless of whether or not the Crown intends to rely on the presumption of identity.

45. In R. v. St. Jean, [2012] O.J. No. 2684 (Ont. C.J.), Duncan J. asserts that perhaps the main purpose behind the “as soon as practicable” requirement in Section 258(1)(c) is to minimize the inconvenience and infringement on the liberty of the subject. If that same rationale applies to the “as soon as practicable” requirement in Section 254(3), it may lend support to a Section 8 Charter argument that an unreasonable search and seizure occurs when breath samples are not taken “as soon as practicable”.

46. One can envision a situation where the police unnecessarily delay the taking of the breath samples, and commit other serious Charter infringements. An accused would no doubt argue for exclusion of the breath samples on the basis of cumulative violations of his or her Charter rights. In such a case, does the filing of an expert report or calling of expert evidence absolve the police for their lack of diligence in obtaining the samples, which prolongs the accused’s detention? It would appear that the authorities discussed below do not focus on the detention of the accused, but rather on the availability of the “statutory short cut” given to the Crown.[^47]

[91] Although the presumptions, including the presumption of identity, no longer exist in the new legislation, s. 320.28 of the Criminal Code, which replaced s. 254(3), still contains the “as soon as practicable” language. Section 320.28 of the Criminal Code reads as follows:

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 or has committed an offence under paragraph 320.14(1)(b), 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, or…

[92] I have read and considered the Ontario Court of Justice decisions of Doody J. in R. v. Pillar,[^48] and Calsavara J. in R. v. Carmola-Chambers.[^49]

[93] In Carmola-Chambers, Calsavara J. observed that the debate about whether the failure to take the breath samples as soon as practicable amounts to a breach of s. 8 of the Charter “continues despite the fact that this 'ASAP' was seemingly put to rest with C-46 amendments since the elements to the drink drive offences have completely changed making it unnecessary for the crown to rely on the presumption of identity”.[^50] She went on to find that Mawad was properly decided and that she was bound by it, and provided persuasive reasons to support her view.[^51]

[94] On the other hand, in Pillar, Doody J. expressed his respectful view that Andre J. was in error in Mawad. Doody J. provided persuasive reasons why he “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”.[^52] However, he went on to find that he was required by the doctrine of stare decisis to follow Mawad, and that he could not apply the doctrine of per incuriam to decline to follow it.

[95] The Carmola-Chambers and Pillar decisions demonstrate what Doody J. described as the “considerable disagreement in this court” on the issue.

[96] In my respectful view, Andre J.’s decision in Mawad is not binding on the Ontario Court of Justice in an 80 and Over prosecution involving the new provisions of the Criminal Code. Andre J. was considering the provisions of the Criminal Code as they existed at the time, s. 254(3) and the s. 258(1)(c) presumption of identity, not the current provisions. Fundamental to Andre J.’s finding that no s. 8 Charter breach resulted from a failure to take the samples as soon as practicable was his interpretation of ss. 254(3) and 258(1)(c) as working in tandem. I repeat the observation I made in Fancey; Andre J. viewed the requirement in s. 254(3) that the subject provide the breath samples “as soon as practicable” as a means of assisting the Crown in availing itself of the s. 258(1)(c) presumption of identity, and not as a separate statutory obligation on the police which could attract constitutional scrutiny. Hence, Andre J.’s statement: “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”.

[97] In 2018, Parliament repealed all Criminal Code driving provisions and replaced them with an entirely new regime containing significant changes. The presumption of identity no longer exists, yet s. 320.28 continues to require that the police make the demand as soon as practicable to require the person to provide the breath samples as soon as practicable. The inclusion of the requirement to provide the samples as soon as practicable can no longer be interpreted as a means of assisting the Crown with a statutory shortcut, since one no longer exists.

[98] How then should the new section be interpreted? Parliament chose to include in s. 320.28 the identical requirement contained in s. 254(3) that the person provide the samples as soon as practicable. The cases I reviewed in Fancey that interpreted s. 254(3) to require the police to act “with some sense of reasonable urgency”[^53] in obtaining the samples in order to avoid s. 8 Charter scrutiny were all cases where the presumption of identity was not in play.[^54] In each of those cases, the first sample had been taken outside the two hour limit, disentitling the Crown to use the statutory short-cut in s. 258(1)(c). The judges in those cases found that, nonetheless, the requirement that the person provide the samples as soon as practicable had meaning beyond the presumption of identity and related to the promptness of the investigation.

[99] Some say that the requirement to provide the samples as soon as practicable merely places an obligation on the driver, not a duty on the police to administer the tests as soon as practicable. In my view, Brophy J.’s observations in R. v. McLeod provide a fitting response to this interpretation:

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 cannot determine the schedule for doing that, if he does then he 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 [emphasis added].[^55]

[100] Like the implementation of a detainee’s RTC, the police control the process of administering the breath tests. An interpretation of s. 320.28 that mandates the police to act with dispatch to avoid constitutional infringements is consistent with the interpretation given to other impaired driving provisions of the Criminal Code that require the police to act with dispatch, such as the requirement that the police make the ASD demand immediately upon forming a reasonable suspicion and the requirement that the ASD test be administered immediately.

[101] The taking of breath samples constitutes a warrantless search, which is presumptively unreasonable. The search is reasonable if it is: a) prescribed by law; b) the law is reasonable; and c) the manner in which the search was carried out was reasonable.[^56] If the police fail to act reasonably to obtain the breath samples as soon as practicable, as required by s. 320.28(1)(a) of the Criminal Code, the manner in which the search was carried out cannot be viewed as reasonable and amounts to an infringement of s. 8 of the Charter.

[102] In arriving at this conclusion, I have considered that some viewed the “as soon as practicable” requirement as merely ensuring accurate test results and as a means of assisting the Crown to prove the accused’s blood-alcohol concentration. The Ontario Court of Appeal said the following in R. v. Willette:

The "as soon as practicable" requirement was enacted as a protection for the accused, since the presumption operates to fix the accused with a blood alcohol content that existed sometime after the time of driving. This requirement mandates that the breath test be conducted as soon after the time of driving as reasonably possible in order to ensure that the presumption operates fairly and that the breath testing leads to accurate results: R. v. Davidson, [2005] O.J. No. 3474 at para. 12 (S.C.J.); R. v. Phillips, 1988 CanLII 198 (ON CA), [1988] O.J. No. 415 (C.A.).[^57]

[103] The “as soon as practicable” requirement that was contained in s. 258(1)(c), the presumption of identity section, was enacted to ensure that the breath samples were taken as soon after the time of driving to ensure that the breath readings accurately reflected the driver’s blood-alcohol concentration at the time of driving. The outer limit of two hours to obtain the first sample was based on scientific observations and conclusions relating to the absorption of alcohol in the blood and on the accuracy of the breathalyzer in determining blood-alcohol concentration.[^58]

[104] The Ontario Court of Appeal said the following in R. v. Vanderbruggen:

To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.[^59]

[105] The as soon as practicable requirement that was enacted to ensure the accuracy of the test results, based on science, and to aid in the proof of the accused’s blood-alcohol concentration is not the one that attracts Charter scrutiny. However, the test established to interpret “as soon as practicable” for the purposes of s. 258(1)(c) remains the appropriate test to gauge Charter compliance in the context of providing and taking the samples “as soon as practicable”, as it is based on reasonableness. As I will explain, in my view, the test requires some modification when it is applied to the s. 8 Charter issue.

[106] The phrase “as soon as practicable” means “nothing more than that the tests were taken within a reasonably prompt time under the circumstances”.[^60] In Vanderbruggen, the Ontario Court of Appeal held:

There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.[^61]

[107] The Court of Appeal also noted that “[i]n deciding whether the tests 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”.[^62] The Crown is not required to “provide a detailed explanation of what occurred during every minute that the accused is in custody”.[^63] However, lengthy periods of delay require an explanation.[^64]

[108] Where a s. 8 Charter application is brought, it will be incumbent upon the Crown to put forward an explanation where the delay is significant.[^65] If the Crown does not lead evidence to account for significant delays, the Court can find that the Crown has not met its burden of proving on a balance of probabilities that the breath samples were taken as soon as practicable.

[109] What is the relevant time period when assessing whether the tests were taken within a reasonably prompt time? In the old legislation, in order to rely on the presumption of identity in s. 258(1)(c), the Crown was required to prove that “each sample was taken as soon as practicable after the time when the offence was alleged to have been committed”. The Vanderbruggen test, therefore, required courts to assess the time between operation or care or control and the taking of the second breath sample to determine the issue of “as soon as practicable”.[^66]

[110] In the current legislation, the time of the offence is “within two hours after ceasing to operate a conveyance”. In most cases, the testing or seizure of breath samples takes place within two hours of the time of operation. The time of testing or seizure is the same as the time of the offence. Where the first sample is taken more than two hours after operation, s. 320.31(4) requires courts to perform a statutory “read back” to calculate and establish the accused’s blood-alcohol concentration within the two hours. The result is a simplification of proof of the offence, eliminating the need for a toxicologist to provide evidence.

[111] The “as soon as practicable” requirement which engages s. 8 of the Charter is concerned with the duty on the police to act reasonably to obtain the samples. In my view, the logical time at which to start the “as soon as practicable” assessment is from the time of the arrest through to the taking of the last breath sample.[^67] The arrest is the point at which an officer has reasonable grounds to believe that the driver has either committed the offence of impaired operation or “80 and Over”. From that point onward, the police continue the detention for the purpose of obtaining evidence from the detainee to prosecute the 80 and Over offence, and possibly to assist in the prosecution of the impaired operation offence. The following statement of Botham J. in Nascimento-Pires illustrates why the time of arrest is the appropriate starting point:

In balancing all three factors as I am required to do, I cannot ignore the extraordinary power given to the state by virtue of s. 254(3) of the Code. Where grounds exist to arrest for a drinking and driving offence, the state is empowered to continue the detention of that arrestee solely for the purpose of compelling the provision of evidence to be used in his prosecution. There is a statutory requirement of immediacy not only for the making of the demand but carrying out of the seizure. There is a strong societal interest in requiring strict compliance with pre-conditions attached to the exercise of statutory powers which allow the state to over-ride an individual’s security of the person [emphasis added].[^68]

[112] Of course, if there is an unexplained or inordinate delay in the investigation prior to the arrest, a court may find that the detainee’s Charter rights have been violated in other ways, as in the case of Mr. Najev.

[113] Although Vanderbruggen dealt with the issue of as soon as practicable in the context of assessing whether the Crown could benefit from the s. 258(1)(c) presumption of identity, language used by Rosenberg J.A. suggests that concerns about the detention of the accused were not irrelevant to the as soon as practicable assessment. The Ontario Court of Appeal interpreted Vanderbruggen in R. v. Singh,[^69] a case that involved the delay between the taking of the two breath samples.

[114] In Singh, the Ontario Court of Appeal said the following:

The summary conviction appeal judge was wrong to distinguish Vanderbruggen on the basis that it was not a case about the unexplained delay between the two samples. Vanderbruggen is the governing authority. There, Rosenberg J.A. stated, at para. 12, that the question at the heart of the appeal was the meaning of "as soon as practicable". He discussed the meaning of the phrase generally, and it is apparent that that discussion encompasses the time between the two tests. Justice Rosenberg referred to "the tests" and "the breath samples", at para. 13. He said that the Crown was not required to provide a detailed explanation of what occurred "during every minute that the accused is in custody". That statement obviously applies to the time between the two tests because the accused remains in custody in that interval [emphasis added].[^70]

[115] Having considered the whole chain of events in Mr. Najev’s case, I find that the Crown has met its onus of establishing on a balance of probabilities that the breath samples were taken as soon as practicable. There is no s. 8 Charter violation on the facts of this case.

[116] P.C. Manieri arrested Mr. Najev at 12:17 a.m.. I accept his evidence that he provided the RTC and caution at 12:17 a.m.. Although I found that the breath demand was not read at 12:18 a.m. as the officer claimed, there was no significant unexplained delay between the arrest and 12:24 a.m. when P.C. Manieri began transporting Mr. Najev to the police station. They arrived at the station at 12:34 a.m., making no stops along the way.

[117] Upon arrival at the police station, P.C. Manieri parked in the custody area and entered the station, leaving Mr. Najev in the cruiser. I find that P.C. Manieri sufficiently explained what was happening at the time. At 12:40 a.m., he provided his grounds to the QBT. After doing so, he escorted Mr. Najev into custody and, at 12:43 a.m., he performed a secondary search. At 12:50 a.m., the booking process was complete and P.C. Manieri escorted Mr. Najev to a holding cell. At 12:51 a.m., P.C. Manieri placed a call to duty counsel, leaving a message.

[118] I pause here to note that I have considered the 17 minute gap between the arrival at the police station at 12:34 a.m. and P.C. Manieri’s call to duty counsel at 12:51 a.m.. First, the delay in making the call to duty counsel was approximately half as long as the delays in Dzaja (33 minutes) and Fancey (39 minutes). In Fancey, I stated that if it is the standard practice of the Hamilton Police Service to delay the initial call to duty counsel until the booking process is complete, perhaps that practice should be re-evaluated in light of the duty on the police to proceed with reasonable dispatch in impaired driving investigations. That may still be the case. However, each case requires an assessment on its own facts. Unlike the cases of Dzaja and Fancey, P.C. Manieri was able to provide evidence, which I accept, that the police were taking reasonable investigative steps in the 17 minute interval.

[119] In Mr. Najev’s case, considering the entire chain of events, including the fact that the breath samples were taken within 93 minutes of the arrest, and that 15 of those minutes were accounted for by Mr. Najev exercising his RTC by speaking with duty counsel, I find that the breath samples were taken as soon as practicable. There were no periods of delay after Mr. Najev completed his call with duty counsel that were not adequately explained. There is no s. 8 Charter violation.

d. Should the breath test results be excluded pursuant to s. 24(2) of the Charter due to the Charter infringements?

[120] I have found the following breaches of Mr. Najev’s Charter rights:

(1) The police conducted a lawful random stop of Mr. Najev’s motor vehicle to check for sobriety. However, the detention became an arbitrary detention, that was not justified by s. 1 of the Charter, when P.C. Manieri failed to take reasonable steps with dispatch to determine if he had grounds to arrest Mr. Najev and make a s. 320.28 breath demand. This violation of Mr. Najev’s s. 9 Charter right not to be arbitrarily detained led to a violation of Mr. Najev’s s. 10(b) Charter rights to retain and instruct counsel without delay and to be informed of that right. The suspension of Mr. Najev’s RTC was not justified in the circumstances;

(2) P.C. Manieri breached Mr. Najev’s s. 10(b) rights by failing to provide him with his RTC immediately upon his arrest;

(3) P.C. Manieri violated Mr. Najev’s s. 8 rights by failing to make the s. 320.28 breath demand as soon as practicable.

[121] The application for exclusion of evidence under s. 24(2) requires me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),

(2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.[^71]

The Seriousness of the Charter-infringing Conduct

[122] This inquiry necessitates an evaluation of the seriousness of the state conduct that led to the breach.[^72] In Grant, the Supreme Court of Canada held that “[t]he main concern is to preserve public confidence in the rule of law and its processes”.[^73] The touchstone of the analysis for this first inquiry of Grant is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”.[^74]

[123] The admission of evidence “obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”.[^75] The court must dissociate itself from this serious state misconduct, and must not “condone ignorance of Charter standards and a casual approach to the protection of Charter values”.[^76]

[124] I find that the police conduct falls at the serious end of the spectrum in this case. P.C. Manieri conducted a random stop of Mr. Najev’s motor vehicle without appreciating that Mr. Najev was arbitrarily detained from the moment his vehicle was stopped. The law around arbitrary detentions in the context of random vehicle stops is well settled. The officer ought to have been aware that when he stopped Mr. Najev’s vehicle, Mr. Najev’s constitutional rights were triggered, including his s. 10(b) RTC.

[125] P.C. Manieri’s testimony established that he was oblivious of his duty to proceed with dispatch to minimize the intrusions on those constitutional rights. Within a minute of the random stop, P.C. Manieri had sufficient information to make a s. 320.27 roadside screening demand. He made no such demand but proceeded instead with a prolonged and unfocused detention of Mr. Najev, without providing him with RTC.

[126] At trial, P.C. Manieri was unable to clearly articulate what he was doing to develop grounds for a s. 320.28 breath demand. What is clear from his testimony is that he believed Mr. Najev’s s. 10(b) rights were irrelevant during whatever period of time he decided to detain him. I reproduce again the following exchange between Defence counsel and P.C. Manieri:

Q. So, I’ll go back to my original suggestion. You had him in detention; he was detained by you.

A. I never told him he couldn’t leave.

Q. I’m talking about what’s in your mind. If you have a person that you’ve told to pull over there and he was not free to go, he was detained, right?

A. No. I was still – I was still formulating grounds. It’s something that takes some time. It’s not something I can just do in 20 seconds. I’m making sure I’m thorough and making the right decision and making sure I have the proper evidence.

Q. When you told him to pull over there, did you tell him his rights to counsel?

A. No, he wasn’t under arrest.

[127] P.C. Manieri’s prolonged and unfocused detention of Mr. Najev, without RTC, was not what was contemplated as being justified under s. 1 of the Charter in Dedman, Hufsky, Ladouceur, and Smith. Ignorance of Charter standards must not be rewarded or encouraged.[^77] P.C. Manieri’s conduct amounted to clear violations of well-established rules and cannot be condoned.[^78]

[128] I also found that both officers were less than forthright when asked about the presence of an ASD at the scene. Although misleading in-court testimony is not part of the Charter breach itself, the Supreme Court of Canada has stated that it is a factor to consider when assessing the first Grant factor:

I note that the trial judge found the officer's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority".[^79]

[129] P.C. Manieri’s delay in providing RTC to Mr. Najev for 5 minutes following his arrest, on its own, would not constitute a serious violation of s. 10(b) of the Charter, especially since the police did not attempt to elicit evidence from him in that brief period. However, Charter infringements must be assessed cumulatively. P.C. Manieri’s failure to provide RTC immediately upon arrest followed a lengthy and unjustified period of detention without RTC prior to the arrest and was another violation of a well-established rule. It was followed by a further breach of s. 8 of the Charter -the failure to make the breath demand as soon as practicable.

[130] The multiple violations of well-established Charter principles, together with my negative credibility findings regarding the testimony of the officers, leads me to find that the first prong of the Grant analysis strongly favours exclusion of the breath sample evidence. The court must dissociate itself from this serious state misconduct and must not “condone ignorance of Charter standards and a casual approach to the protection of Charter values”.[^80]

The Impact of the Breach on the Charter-protected Rights of the Accused

[131] The second prong of the Grant analysis “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”.[^81]

[132] In Grant, the Supreme Court of Canada described this inquiry as follows:

The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.[^82]

[133] The serious negative impact of the Charter breaches on Mr. Najev's Charter-protected interests also favours exclusion. Mr. Najev’s arbitrary detention, “effectively negated his personal liberty”.[^83] The traffic stop became an illegal detention, which led directly to an arrest and to the seizure of breath samples and incriminating evidence. In other words, there was a strong causal connection between the initial arbitrary detention and the discovery of the incriminating evidence that constituted the entirety of the case for the Crown on the 80 and Over offence.[^84]

[134] Furthermore, Mr. Najev’s detention at the roadside for approximately 20 minutes without RTC was not minimally intrusive. I found as a fact that he sat in his vehicle for several minutes without the police speaking with him. Although he had a cell phone in his possession, he was not advised of his right to use it, nor was he given the opportunity to use it to speak with counsel at the roadside.

[135] There was much dispute about where Mr. Najev pulled his vehicle over; Mr. Najev claimed that he pulled his vehicle into the bus roundabout, while P.C. Manieri said that Mr. Najev pulled to the side of the road, onto the shoulder. It is unnecessary for me to resolve the issue of where Mr. Najev brought his vehicle to a stop. However, I do accept Mr. Najev’s evidence that a cruiser pulled up perpendicular to the passenger side of his vehicle and shone bright lights into his vehicle which was intimidating and made him feel very uneasy.

[136] I find that Mr. Najev was subjected to an intimidating detention for approximately 20 minutes without RTC which had an impact on him psychologically. Doherty J.A.’s observations in R. v. Rover about the psychological value of access to counsel apply to the circumstances of Mr. Najev’s case:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.[^85]

[137] The section 10(b) violation arising from the failure to provide RTC immediately after the arrest had a minimal impact on Mr. Najev’s Charter-protected interests. Although this 5 minute delay could be viewed as an extension of the time period during which Mr. Najev did not have the psychological benefit of knowing he had the right to consult with counsel, the impact was minimal since the police did not seek to elicit, nor did they obtain, any statements or evidence from Mr. Najev during this period of delay.

[138] P.C. Manieri failed to make the s. 320.28 breath demand as soon as practicable in violation of s. 8 of the Charter. In R. v. Jennings[^86], the Ontario Court of Appeal re-affirmed that the collection of breath samples amounts to no more than a minimal intrusion upon a detainee’s privacy, bodily integrity, and human dignity.[^87] The Court in Jennings rejected the line of cases, led by R. v. Au-Yeung[^88], that held that a trial judge, on the second Grant factor, is to consider not just the impact of the administration of the breath sample procedure, which itself is minimally intrusive, but the entirety of the procedure faced by the accused after arrest, including being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. As the Court said in Jennings:

To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.[^89]

[139] In Mr. Najev’s case, the s. 8 and 9 breaches were not premised on the same factual basis. The arbitrary detention in Mr. Najev’s case preceded the s. 8 breach at the roadside arising from the failure of the officer to make the demand as soon as practicable. The deprivation of liberty and the corresponding violation of the RTC that preceded P.C. Manieri’s failure to make the breath demand as soon as practicable has led me to find that the second branch of the Grant analysis also favours exclusion of the evidence.

Society’s Interest in the Adjudication of the Case on Its Merits

[140] The third prong of the s. 24(2) analysis relates to society’s interest in the adjudication of the case on its merits.[^90] Breath samples are reliable and necessary evidence in a prosecution for the 80 and Over offence. The truth-seeking function of the criminal trial process is undermined by an order excluding the breath test results. It results in the Crown being unable to prove the allegation that Mr. Najev had a blood-alcohol concentration in excess of the legal limit at the relevant time.

[141] This Grant factor requires courts to “consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence”.[^91] As the Supreme Court of Canada stated in Grant, “the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution”.[^92]

[142] This factor strongly favours admission of the evidence. Society has a legitimate interest in seeing cases of impaired driving adjudicated on the merits.

Balancing

[143] In R. v. McGuffie, the Ontario Court of Appeal stated the following regarding the balancing of the Grant factors:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.[^93]

[144] For the reasons set out above, I find that the first inquiry in Grant pushes strongly toward exclusion of the breath sample evidence and that the second inquiry also pushes toward exclusion of the evidence. The third inquiry strongly favours admission of the evidence but does not tip the balance in favour of admissibility.

[145] Mr. Najev’s Charter application is granted. The breath readings are excluded from evidence in the proceedings. As there is no admissible evidence that Mr. Najev’s blood- alcohol concentration was over the legal limit, he is found not guilty of the 80 and Over offence.

e. Has the Crown established beyond a reasonable doubt that Mr. Najev operated a conveyance while his ability to operate it was impaired to any degree by alcohol, or a drug, or both?

[146] The Crown led no evidence of impairment by a drug and sought to prove this charge solely based on impairment by alcohol. With respect to the charge of impaired operation, the Crown is required to establish beyond a reasonable doubt some degree of impairment to operate a motor vehicle, from slight to great.[^94] Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road.[^95] A court “must not fail to recognize the fine but critical distinction between ‘slight impairment’ generally, and “slight impairment of one’s ability to operate a motor vehicle’”.[^96]

[147] A trial judge must consider the cumulative effect of all of the evidence as it relates to the issue of whether a driver’s ability to operate a motor vehicle was impaired by alcohol.[^97] A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent.[^98] The totality of the circumstances must be considered.[^99] The question is not whether there are other possible explanations for individual circumstances, but whether the evidence, taken as a whole, leads to only one reasonable conclusion, that the accused committed the offence of impaired operation.[^100]

[148] It is not improper for a trial court to consider evidence that an accused consumed alcohol prior to driving as a factor relevant to the determination of whether an impaired operation charge has been proven.[^101] The consumption of alcohol must be a contributing factor to the driver’s impairment.[^102] In the absence of expert testimony, a court is not permitted to take judicial notice that a person who consumed a certain amount of alcohol prior to driving was impaired.[^103]

[149] The fact that an accused does not appear to be as intoxicated at the police station as civilian and police witnesses describe him or her at the roadside is not necessarily inconsistent with a finding that his or her ability to drive was impaired by the consumption of alcohol when he or she was driving.[^104] Observable indicia of impairment are not static.[^105]

[150] Evidence of bad driving is not an essential element of the offence. The question is not whether the accused drove badly, but whether the accused’s ability to drive was impaired by alcohol and/or a drug.[^106]

[151] Having considered the totality of the evidence, I am unable to find that the Crown has met its onus of proving beyond a reasonable doubt that Mr. Najev’s ability to operate his motor vehicle was impaired to any degree by alcohol and/or a drug.

[152] There is an absence of any evidence of bad driving both when Mr. Najev approached and stopped his vehicle at the RIDE check-stop and when P.C. Manieri asked Mr. Najev to pull his vehicle over.

[153] The Crown relies primarily on the testimony of P.C. Manieri and P.C. Vucinic to establish the impaired operation count. The indicia of impairment included the smell of alcohol, difficulties with Mr. Najev’s speech, and unsteadiness on his feet.

[154] The fact that Mr. Najev consumed alcohol prior to driving is a relevant factor to consider in the determination of whether the impaired operation charge can be proven. This fact is established by P.C. Manieri’s testimony that he detected an odour of alcohol emitting from Mr. Najev’s breath, and Mr. Najev’s own admission of consumption.

[155] The only evidence of any difficulty with Mr. Najev’s speech comes from P.C. Manieri. The officer’s evidence on this point was limited to two responses he received from Mr. Najev to questions he asked at the roadside. In examination-in-chief, P.C Manieri stated that Mr. Najev slurred the “h” in home and slurred the “u” in Upper Paradise.

[156] However, Defence counsel cross-examined P.C. Manieri about notations in his notebook. In his notes, P.C. Manieri wrote that Mr. Najev pronounced the “h” in home and the “u” in Upper Paradise in a stuttering fashion. P.C. Manieri agreed with Defence counsel’s suggestion that there is a difference between slurring a word and stuttering.

[157] When pressed on this point, P.C. Manieri said, “in my recollection of what he did, he extended the way he said “home,” in particular the H, in a slurring fashion, or in a stuttering fashion.” When pressed further by Defence counsel, P.C. Manieri seemed to suggest that his observations regarding Mr. Najev’s speech were irrelevant:

Q. I’m suggesting that neither one of those are true. You put those in your notes to give you some indicia to support your claim that you had a right to deal with him further.

A. I would suggest those are irrelevant to my grounds. The admittance of alcohol in addition to him being unsteady on his feet were enough.

[158] P.C. Stogiannis made notes of what P.C. Manieri told him when he communicated his grounds for arrest. P.C. Manieri told P.C. Stogiannis that Mr. Najev had slurred speech and said nothing about stuttering. According to P.C. Stogiannis, had P.C. Manieri advised him that Mr. Najev stuttered his words, he would have noted it on the Alcohol Influence Report which contains a specific checkbox for stuttering.

[159] In the circumstances set out above, it is difficult to have confidence in P.C. Manieri’s testimony regarding Mr. Najev slurring or stuttering his words. The credibility concerns I identified in P.C. Manieri’s testimony regarding the ASD contributes to my reluctance to accept his evidence regarding difficulties with Mr. Najev’s speech and, as I will explain, his evidence that Mr. Najev was unsteady on his feet.

[160] Furthermore, P.C. Stogiannis testified that Mr. Najev’s speech was normal, and that he was courteous. I had the opportunity to view the breath room video. Mr. Najev’s interactions with P.C. Stogiannis started just over an hour after his arrest and he was in the breath room for 30 minutes. The breath room video confirms P.C. Stogiannis’s testimony that Mr. Najev’s speech was normal. He answered P.C. Stogiannis’s questions appropriately and I observed no difficulties with his speech that could be characterized as either stuttering or slurring.

[161] Both P.C. Manieri and P.C. Vucinic testified about Mr. Najev having difficulty getting out of his vehicle and walking to the rear of the vehicle. Their evidence regarding unsteadiness was confined to this one brief period of time.

[162] I will deal first with P.C. Manieri’s evidence. In examination-in-chief, he testified that upon exiting his vehicle, Mr. Najev was very unsteady on his feet and required the assistance of his car to maintain his balance as he walked to the rear of the vehicle. In cross-examination, P.C. Manieri said for the first time that Mr. Najev almost fell when he exited his vehicle, which he described as stumbling back and using the side of his car as support to walk to the back. When Defence counsel pointed out that his notes did not include any reference to Mr. Najev almost falling, P.C. Manieri said:

Well, that would be under the “unsteady on his feet.” That would be how I classified it. He didn’t fall, he did not fall, which is why I didn’t write that.

[163] P.C. Manieri’s failure to record in his notebook that Mr. Najev almost fell when he exited his vehicle is not a basis to reject his evidence on this point. However, it is curious that his claim that Mr. Najev almost fell came out for the first time on cross-examination, without it having been included in his notes. Furthermore, P.C. Manieri testifying that Mr. Najev almost fell made his evidence more closely align with P.C. Vucinic’s, who also claimed that he witnessed Mr. Najev stumble twice and use his vehicle for support. P.C. Vucinic testified that:

He was very slow to walk from the driver’s side door – sorry – to the trunk of his vehicle. And he didn’t fall, but my feeling was that he was very close to and could have and used his vehicle for support so that he wouldn’t fall.

[164] What is clear from the evidence of both P.C. Manieri and P.C. Vucinic is that they both claim that, in that brief period when Mr. Najev exited his vehicle and walked to the rear, he had significant balance and gait issues. In contrast, Mr. Najev denied having difficulty exiting his vehicle and that he stumbled or almost fell. He also denied using his vehicle to support himself as he walked to the rear.

[165] The following exchange occurred between Crown counsel and P.C. Manieri:

Q. Okay. And was there any change in the accused’s demeanour or physical condition at the station versus at the roadside?

A. Not to my recollection.

[166] In the breath room video, I observed that Mr. Najev had no difficulties with his balance entering the breath room or sitting down in the chair, nor did he have any difficulties getting up from the chair at the conclusion of the breath tests and walking out of the room. In light of the credibility concerns I previously noted with respect to evidence of both officers, my observations of Mr. Najev in the breath room, and Mr. Najev’s denial of having balance issues at the roadside, I have difficulty accepting the evidence of the officers that Mr. Najev stumbled and almost fell at roadside and needed his vehicle to steady himself. The only notation P.C. Stogiannis made about Mr. Najev’s balance was that he walked and turned with a slight sway. I note that when P.C. Stogiannis dealt with Mr. Najev, Mr. Najev was wearing socks with no shoes. On the totality of the evidence, the Crown has not proven the impaired operation charge beyond a reasonable doubt.

CONCLUSION

[167] I find Mr. Najev not guilty of Impaired Operation of a Conveyance, contrary to s. 320.14(1)(a) of the Criminal Code. Having excluded the breath test results, I also find Mr. Najev not guilty of the offence of having a blood-alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code.

Released: August 16, 2021

Signed: Justice J.P.P. Fiorucci

[^1]: On August 6, 2021, I found Mr. Najev not guilty of the offences of Impaired Operation of a Conveyance and 80 and Over. I advised that written reasons would follow. These are my written reasons. [^2]: R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] S.C.J. No. 53, [1990] 1 S.C.R. 1257 (S.C.C.), at para. 52. [^3]: R. v. Dedman, 1985 CanLII 41 (SCC), [1985] S.C.J. No. 45, [1985] 2 S.C.R. 2 (S.C.C.). [^4]: Ibid, at para. 50. [^5]: Ibid, at para. 69. [^6]: R. v. Hufsky, 1988 CanLII 72 (SCC), [1988] S.C.J. No. 30, [1988] 1 S.C.R. 621 (S.C.C.). [^7]: R. v. Ladouceur, supra. [^8]: R. v. Hufsky, supra; R. v. Ladouceur, supra. [^9]: Impaired Driving in Canada-The Charter Cases, Fourth Edition, Justice Joseph F. Kenkel, LexisNexis Canada Inc., 2019, Toronto, ON, Part 1, Introduction and Overview, p. 5. [^10]: R. v. Ladouceur, supra, at paras. 52 and 59. [^11]: R. v. Smith, (1996) 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, [1996] O.J. No. 372 (Ont. C.A.), at para. 1. [^12]: Ibid, at para. 7. [^13]: Ibid, at para. 14. [^14]: Ibid, at para. 15. [^15]: Ibid, at para. 18. [^16]: Ibid, at para. 20. [^17]: Ibid, at para. 19. [^18]: Ibid, at para. 27. [^19]: Ibid, at para. 28. [^20]: Ibid, at para. 28. [^21]: Ibid, at para. 57. [^22]: Ibid, at para. 57. [^23]: R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 25. [^24]: Ibid, at para. 46. [^25]: R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (Ont. C.A.), at para. 26. [^26]: Ibid, at para. 25. [^27]: Ibid, at para. 21. [^28]: Ibid, at para. 22. [^29]: R. v. Smith, supra; R. v. Orbanski; R. v. Elias, supra, at paras. 30-33. [^30]: P.C. Gregory Stogiannis, the QBT, testified that when P.C. Manieri provided his grounds for arrest, P.C. Manieri indicated that there was no ASD test done and no standard field sobriety tests (SFST) completed. [^31]: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.), at para. 42. [^32]: Ibid, at para. 41. [^33]: Ibid, at paras. 37 and 42. [^34]: R. v. Wylie, 2013 ONCA 673; [2013] O.J. No. 5019 (Ont. C.A.), at para. 10. [^35]: R. v. Alex, 2017 SCC 37, [2017] S.C.J. No. 37 (S.C.C.), at para. 42; See also R. v. Mawad, 2016 ONSC 7589, [2016] O.J. No. 6810 (Ont. S.C.J.), at para. 24. [^36]: R. v. Edgar, 2010 ONCA 529, at para. 26. [^37]: Ibid, at para. 24. [^38]: R. v. Guenter, [2016] O.J. No. 3857 (Ont. C.A.). [^39]: R. v. Squires, 2002 CanLII 44982 (ON CA), [2002] O.J. No. 2314 (Ont. C.A.), at para. 31; R. v. Phillips, 1988 CanLII 198 (ON CA), [1988] O.J. No. 415 (Ont. C.A.); R. v. Purdon, [1989] A.J. No. 1030 (C.A.). [^40]: R. v. Guenter, supra, at para. 90. [^41]: R v. Fancey, 2018 ONCJ 657. [^42]: Ibid, at paras. 28-38. [^43]: Ibid, at paras. 47-51. [^44]: R. v. Mawad, supra, at para. 26. [^45]: Ibid, at para. 27. [^46]: R. v. Bhimal, 2021 ONCJ 203; R. v. Li, 2018 ONCJ 308; R. v. Persaud, 2017 ONCJ 799; R. v. Carmola-Chambers, 2020 ONCJ 493, at para. 27. [^47]: R. v. Fancey, supra, at paras. 44-46. [^48]: R. v. Pillar, 2020 ONCJ 394. [^49]: R. v. Carmola-Chambers, supra. [^50]: Ibid, at para. 19. [^51]: Ibid, at para. 27. [^52]: R. v. Pillar, supra, at para. 70. [^53]: R. v. McLeod, [2011] O.J. No. 4118 (Ont. C.J.), at para. 42. [^54]: R. v. Fancey, supra, at paras. 28-40. [^55]: R. v. McLeod, supra, at para. 36. [^56]: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.). [^57]: R. v. Willette, 2011 ONSC 1055, at para. 46. [^58]: R. v. Phillips, 1988 CanLII 198 (ON CA), [1988] O.J. No. 415 (Ont. C.A.). [^59]: R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138 (Ont. C.A.), at para. 16. [^60]: R. v. Vanderbruggen, supra, at para. 12. [^61]: Ibid, at para. 12. [^62]: Ibid, at para. 13. [^63]: Ibid, at para. 13. [^64]: R. v. Letford, 2000 CanLII 17024 (ON CA), [2000] O.J. No. 4841 (Ont. C.A.), at para. 18; R. v. Bugler, [1997] O.J. No. 2283 (Ont. C.A.); R. v. Blacklock, 2008 CanLII 16199 (ON SC), [2008] O.J. No. 1472 (Ont. S.C.J.), at paras. 26 and 30; R. v. Chung, [2009] O.J. No. 1546 (Ont. S.C.J.); R. v. Williams, [2000] O.J. No. 4740 (Ont. S.C.J.). [^65]: R. v. McInnis, [1989] O.J. No. 1867 (Ont. Dist. Ct.). [^66]: R. v. Singh, supra. [^67]: Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 17, p. 280. [^68]: R. v. Nascimento-Pires, [2016] O.J. No. 1342 (Ont. C.J.), at para. 18. [^69]: R. v. Singh, supra. [^70]: Ibid, at para. 13. [^71]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C), at para. 71. [^72]: Ibid, at para. 73. [^73]: Ibid, at para. 73. [^74]: Ibid, at para. 72. [^75]: Ibid, at para. 74. [^76]: R. v. Wong, 2015 ONCA 657, at para. 88. [^77]: R. v. Grant, supra, at para. 75. [^78]: R. v. Paterson, 2017 SCC 15, at para. 44. [^79]: R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 (S.C.C.), at para. 26. [^80]: R. v. Wong, supra, at para. 88. [^81]: R. v. Grant, supra, at para. 76. [^82]: Ibid, at para. 76. [^83]: R. v. McGuffie, 2016 ONCA 365 (Ont. C.A.), at para. 81. [^84]: R. v. Gonzales, 2017 ONCA 543, at para. 171. [^85]: R. v. Rover, 2018 ONCA 745, at para. 45. [^86]: R. v. Jennings, 2018 ONCA 260. [^87]: Ibid, at paras. 27-32; R. v. Grant, supra, at para. 111. [^88]: R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (Ont. S.C.J.). [^89]: R. v. Jennings, supra, at para. 32. [^90]: R. v. Grant, supra, at para. 79. [^91]: Ibid, at para. 79. [^92]: Ibid, at para. 83. [^93]: R. v. McGuffie, supra, at para. 62. [^94]: R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 (S.C.J.), at para. 50; R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (Alta. C.A.), at para. 23; R. v. Stellato, 1994 CanLII 94 (SCC), [1994] S.C.J. No. 51 (S.C.C.), at para. 14; R. v. Michitsch, [2004] O.J. No. 1296 (S.C.J.). [^95]: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at para. 47; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.), at para. 47; R. v. Grant, supra (footnote 94), at para. 50. [^96]: R. v. Andrews, supra, at para. 16. [^97]: R. v. Bush, supra, at paras. 54-58; R. v. Reeves, [2018] O.J. No. 4431 (S.C.J.), at para. 76. [^98]: R. v. Bush, supra, at paras. 54-58; R. v. Reeves, supra, at para. 76. [^99]: R. v. Reeves, supra, at para. 76. [^100]: R. v. Dao, 2009 BCCA 239, at para. 16. [^101]: R. v. Cabral, [1998] O.J. No. 2170 (S.C.J.), at para. 35. [^102]: R. v. Bartello, [1997] O.J. No. 2226 (Ont. C.A.), at para. 2. [^103]: R. v. Kumric, [2006] O.J. No. 4886 (S.C.J.), at para. 13. [^104]: R. v. Grant, supra (footnote 94), at para. 53. [^105]: R. v. Grant, supra (footnote 94), at para. 53. [^106]: Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 14, p. 55; R. v. Polturak, 1988 ABCA 306; R. v. Peters, [2013] O.J. No. 3747, at paras. 21-22.