ONTARIO COURT OF JUSTICE

CITATION: R. v. O’Reilly, 2022 ONCJ 176

DATE: 2022 03 23

Central East Region: Oshawa Courthouse

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MICHAEL O’REILLY

Before Justice Peter C. West

Heard on January 11 and 12, 2022

Written Reasons for Judgment released on March 23, 2022

Mr. S. O’Neil................................................................... counsel for the Crown

Mr. M. Engel.................................. counsel for the defendant Michael O’Reilly

WEST J.

Introduction

[1] On July 5, 2020, Michael O’Reilly was charged with operating a conveyance (motor vehicle) with equal to or in excess of 80 milligrams of alcohol in 100 millitres of blood, contrary to s. 320.14(1)(b). A Charter Application was brought by the defence alleging breaches of ss. 7, 8, 9, 10a and 10b of the Canadian Charter of Rights and Freedoms. It was agreed by counsel to address the Charter issues by way of a blended hearing. The Crown called three witnesses, P.C. Carolyn Stone, the investigating officer; P.C. Ahmad Jawando and D.C. Piravaharan Sivabalan, the qualified breath technician. The defence did not call any witnesses, either on the Charter application or on the trial proper. The defence admitted at the outset of the trial: date, jurisdiction and identity.

[2] The Charter breaches alleged by Mr. Engel were as follows:

a) The violation of Mr. O’Reilly’s right to be secure from unlawful, warrantless searches as included in the guarantee against unreasonable search and seizures under s. 8;

b) The violation of Mr. O’Reilly’s right to be informed as to the reason for his detention as guaranteed by s. 10(a);

c) The violation of Mr. O’Reilly’s right not to be arbitrarily detained as guaranteed by s. 9;

d) The violation of Mr. O’Reilly’s right not to be compelled to incriminate himself as guaranteed by s. 7; and

e) The violation of Mr. O’Reilly’s right to counsel as guaranteed by s. 10(b).

Factual Background

[3] On July 5, 2020, P.C. Stone was on general patrol in uniform operating a marked police cruiser and driving southbound of Liverpool Road in Pickering by Wharf Street at 3:32 a.m. She observed a black Hyundai Tuscon parked on the east side of Liverpool with the engine running and its four-way hazard lights on. As she drove slowly past the vehicle she observed a male individual sitting in the driver’s seat slumped over, apparently asleep. She turned around and pulled up behind this vehicle. She advised dispatch she was stopping and was exiting her police vehicle to check on this person. She requested another officer attend as she was alone.

[4] She went to the driver’s door, the window was fully up. The male was slumped over towards the steering wheel in the driver’s seat. His hands were not on the steering wheel and his head was not leaning on the steering wheel. His mouth was open and there was drool or spit on his chin. His eyes were closed. She observed there were MacDonald’s wrappers on the passenger seat. She knocked on the window with her knuckles and repeatedly called out, “Hello, it’s the police.” The man did not move at all. She removed her flashlight and used it to knock on the window and door frame and again, speaking loudly, advised the man to wake up it was the police speaking to him. There was no response from the man to her knocking and advising it was the police over and over.

[5] She testified given the time and circumstances she was concerned as to whether this individual was okay and she initially, when she first approached the vehicle’s driver’s door was conducting a safety check to see if the man was okay. The driver was alone and was slumped over in the driver’s seat. After about two minutes the man finally awoke. He looked towards her direction and his hands went up in a defensive move with his eyes wide open. She attempted to reassure him she was the police and showed him with her flashlight where it said POLICE on her uniform. She asked him to put his window down and turn off his vehicle. Instead, his hands went to the centre console and he began pushing and touching the buttons. She heard the vehicle’s engine revving aggressively and loud by his pushing down on the gas, as if he was getting prepared to leave. He revved the engine three or four times. The officer testified she was concerned he was going to take off and in the process she might be injured.

[6] She went over the radio again to dispatch for the backup to hurry up and get to her location. P.C. Jawando, who was the first officer to respond to P.C. Stone’s location confirmed in his evidence that he heard P.C. Stone request the responding officer to hurry up. This caused him to be concerned for P.C. Stone’s safety and he increased his speed.

[7] P.C. Stone kept telling the man to roll down the window, turn off the vehicle, let go of the gas, “It’s the police, don’t touch the gear shifter” and the man kept saying, “Okay, okay” but he would not do what she asked him to do. All of this took three to four minutes from the time she first began knocking on the window and door, trying to get him to wake up. He finally took his foot off the gas and the window came down. This caused a rush of air to come from the vehicle and she observed the odour of an alcoholic beverage come from inside the vehicle.

[8] When she asked him again to shut off his vehicle the man looked around confused, he touched the radio and the climate control and eventually he turned the vehicle off after about 30 seconds from his putting the driver’s window down. P.C. Stone asked the man for his driver’s license and he provided it to her. It was in the name of Michael O’Reilly and had a birthdate and photo, which matched the driver. She asked why he was there and he told her he had visited a friend in the area. He pointed to the area he parked at, which was a commercial area. Mr. O’Reilly was unable to tell P.C. Stone where or who he was visiting. When Mr. O’Reilly was speaking he had a drawn out slur to his voice. His eyes were moving left to right in a drawn out motion and they were bloodshot and glassy.

[9] P.C. Stone testified she was not sure if the odour of alcohol was coming from his breath as she was unable to get close enough to him, as he was sitting in his car. It was at this point that P.C. Jawando arrived on scene. P.C. Stone testified she did not note the time of his arrival. P.C. Stone testified when she saw him arrive on scene she asked Mr. O’Reilly to exit his Hyundai vehicle and walk to her police vehicle, which was parked behind his vehicle. She testified at this point she had formed a reasonable suspicion that Mr. O’Reilly had alcohol in his body when he was in care or control of a motor vehicle and this was why she asked him to exit his vehicle. P.C. Stone testified Mr. O’Reilly dragged his left foot across the floor board before taking it out of the vehicle. When he stood up he was not steady and when he walked he was unsteady on his feet.

[10] She testified when Mr. O’Reilly got out of his vehicle she advised him she would be conducting a roadside or approved screening device test. Mr. O’Reilly said he understood and would complete the test. P.C. Stone testified she formed her reasonable suspicion as a result of all of her observations of Mr. O’Reilly and his conduct when she was dealing with him. She was concerned if she made the ASD demand when he was sitting in the vehicle he might start it and take off, which raised a concern for her he might injure himself or her. It was a warm 20 degree night. She testified she had a concern for officer safety and this was why she asked him to step out of the car after P.C. Jawando arrived. She testified she formed her suspicion around 3:36 a.m. or 3:37 a.m. It was after P.C. Jawando arrived on scene that P.C. Stone requested Mr. O’Reilly to exit his vehicle. She read Mr. O’Reilly the approved screening device demand at 3:40 a.m. from the pre-printed form at the back of her standard issue police notebook after Mr. O’Reilly had exited his vehicle.

[11] P.C. Jawando testified he arrived at 3:37 a.m. He had been a police officer just under a year when this matter occurred. He has been involved in a total of four impaired driving investigations working as a police officer. This was his second time testifying in court. When he got out of his police vehicle he observed P.C. Stone motioning the driver to get out of his vehicle, which he did. When he got up to P.C. Stone he heard her ask the driver to walk to her police vehicle. He observed Mr. O’Reilly swaying more to his right when he walked. He asked Mr. O’Reilly if he had consumed any alcohol and Mr. O’Reilly responded he had not. P.C. Jawando did not detect an odour of alcohol coming from Mr. O’Reilly’s breath. P.C. Stone told Mr. O’Reilly she was going to get him to blow into an approved screening device as she had formed a reasonable suspicion Mr. O’Reilly had alcohol in his body.

[12] P.C. Jawando did not have an ASD with him and he contacted dispatch to request any officer close by to bring one to their location. P.C. Stone asked P.C. Jawando to do this. He estimated he requested the ASD between four of five minutes after he arrived, which would have been 3:41 or 3:42 a.m. He had a brief conversation with P.C. Stone where she advised him she had come across Mr. O’Reilly behind the wheel passed out or asleep in his vehicle parked on the side of the road with its flashers on, engine running and she stopped to investigate. Mr. O’Reilly was in care or control of his motor vehicle. When he requested the ASD he learned there was an officer close by, P.C. Armstrong, but he agreed he did not know when the ASD would arrive.

[13] P.C. Jawando heard P.C. Stone read the ASD demand from the back of her police notebook. It would be the same as the pre-printed demand in the back of his police notebook, which says:

I demand you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for the purpose of taking a sample. Do you understand?

Mr. O’Reilly said he understood. P.C. Armstrong arrived with the ASD around 3:46 a.m. P.C. Jawando tested the ASD and administered it with Mr. O’Reilly, who provided a suitable sample of his breath.

[14] The ASD was an Alcotest 6810 Drager ARDF, Serial # 0315 and it was last calibrated on June 21, 2020, by P.C. Skinner. The ASD tests for any alcohol present in a person’s body. A FAIL signifies that the person has 100 mg of alcohol in 100 mL of blood and would therefore have more than the legal limit, 80 mg, in their blood. P.C. Jawando demonstrated the ASD to Mr. O’Reilly by doing a test on himself, which resulted in a zero, which was accurate as he had not consumed any alcohol. P.C. Jawando tested the ASD at 3:48 a.m. There was no error message when he tested it and he was satisfied the ASD was in proper working order. Mr. O’Reilly had told him earlier that he had not consumed any alcohol. His result was a FAIL, which told P.C. Jawando that Mr. O’Reilly was over the legal limit of 80 mg of alcohol in 100 mL of blood. He informed Mr. O’Reilly he had alcohol in his body over the legal limit. P.C. Jawando knew Mr. O’Reilly was in care or control of the motor vehicle because of what P.C. Stone advised of finding Mr. O’Reilly passed out in the driver’s seat of his vehicle. The ASD test was within 10-15 minutes of her finding Mr. O’Reilly. As result, P.C. Jawando formed the reasonable belief Mr. O’Reilly was over the legal limit and he placed him under arrest at 3:49 a.m. and read him his Right to Counsel and caution at 3:50 a.m. from the back of his police notebook.

I am arresting you for impaired operation and it is my duty to inform you that you have the right to retain and instruct counsel, you have the right to telephone any lawyer you wish, also have the right for free advice from a Legal Aid lawyer if charged with an offence you may apply to the Ontario Legal Aid Plan for assistance, 1-800-265-0451 is a number that will put you in contact with a Legal Aid Duty Counsel for free legal advice right now. Do you understand? Do you want to call a lawyer?

[15] Mr. O’Reilly said he understood and he would like to speak to a lawyer but he did not have one. When he said he did not have a lawyer, P.C. Jawando testified he told Mr. O’Reilly there was a list of lawyers at the station and he could call one or he could call duty counsel. Mr. O’Reilly said he would call duty counsel.

[16] At 3:54 a.m. P.C. Jawando read Mr. O’Reilly the breath demand. When he finished he asked Mr. O’Reilly if he understood and he said he did not. P.C. Jawando then explained the breath demand in layman’s terms by saying the Intoxilyzer would give an actual reading of alcohol in his system. Mr. O’Reilly indicated he understood and P.C. Jawando left the scene to transport Mr. O’Reilly to 18 Division in Whitby. P.C. Jawando testified that DRPS had established a protocol that because of COVID-19 all persons required to provide samples of their breath into an approved instrument, the Intoxilyzer 8000C, would be tested only at the Whitby detachment, 18 Division. He left the scene at 3:59 a.m. and arrived at 18 Division at 4:22 a.m. He took the most direct route and did not stop along the way.

[17] P.C. Jawando drove into the sally port of the station, went into the booking area of the station. He conducted a secondary search of Mr. O’Reilly and inputted information into the booking computer. He put Mr. O’Reilly into a holding room off the booking area and waited for Staff Sgt. Wilson to arrive to conduct the booking. Mr. O’Reilly was paraded at 4:30 a.m. The booking procedure takes about 5 minutes. P.C. Jawando agreed that Mr. O’Reilly repeated his request to speak to duty counsel during the booking.

[18] After the booking was completed P.C. Jawando transferred custody to P.C. Sivabalan, the qualified breath technician. He did not implement Mr. O’Reilly’s right to counsel and admitted to completely dropping the ball in this respect. P.C. Jawando testified he had no excuse and should have contacted duty counsel for Mr. O’Reilly. Once duty counsel returned his call he should have put Mr. O’Reilly into a private room to speak to duty counsel and when he was finished his call then turned him over to P.C. Sivabalan.

[19] Shortly after turning Mr. O’Reilly over to the qualified technician, P.C. Sivabalan came into the report room where P.C. Jawando was writing up his report and asked whether P.C. Jawando had contacted a lawyer for Mr. O’Reilly. This was when P.C. Jawando realized he had neglected to do this and he immediately called duty counsel at 4:53 a.m. No one answered so he left a message with the details of Mr. O’Reilly’s arrest. He understood P.C. Sivabalan facilitated Mr. O’Reilly’s call with duty counsel when duty counsel returned the call.

[20] P.C. Jawando had advised P.C. Sivabalan of his grounds for arresting Mr. O’Reilly for operating a motor vehicle or having care or control of a motor vehicle while he had more than 80 mg of alcohol or more in 100 mL of blood respecting Mr. O’Reilly’s ”Fail” on the approved screening device and P.C. Stone’s coming upon Mr. O’Reilly being passed out in his motor vehicle, which was parked on the side of the road running with its hazard lights on.

[21] P.C. Jawando was not in the breath room when the breath samples were provided by Mr. O’Reilly and custody was transferred back to him by P.C. Sivabalan at 5:50 a.m. He was provided with a Certificate of the Qualified Breath Technician, which showed two breath readings, the first breath reading of 150 mg of alcohol in 100 mL of blood at 5:23 a.m. and the second breath reading of 140 mg of alcohol in 100 mL of blood at 5:46 a.m. He served this document on Mr. O’Reilly and he identified Mr. O’Reilly’s signature. He was provided the original by P.C. Sivabalan and made a true copy of it, which he compared and served on Mr. O’Reilly. The Certificate of the Qualified Breath Technician was marked as Exhibit 1.

[22] D.C. Sivabalan now works with the eCrimes unit at DRPS. He has been a police officer for 5 years and in 2020 was qualified as a breath technician. Mr. Engel conceded D.C. Sivabalan’s qualifications as a qualified breath technician. He was notified by dispatch that his services were needed at 18 Division. It was standard procedure since COVID-19 that all breath tests were performed at 18 Division in Whitby. He arrived before P.C. Jawando. He turned on the instrument and performed the three quality assurance checks on the approved instrument, the Intoxilyzer 8000C. The checks he made were the diagnostic check, calibration check and the self breath check. All three checks came back without any errors. This let him know the instrument was in good working order and was ready to accept breath samples. He received two suitable samples of Mr. O’Reilly’s breath into the approved instrument.

[23] He gave instructions to Mr. O’Reilly on how to provide a sample of his breath into the approved instrument and Mr. O’Reilly indicated he understood those instructions. Immediately prior to taking the first sample the instrument performs two checks, a system blank check, which was zero. The target value of this check is as close to zero as possible, in this case it was zero. The instrument also performed the system calibration check, which detects the standard solution used in the instrument. The standard solution used in the instrument, has the target value of 100, which can be within 10% low or 10% high. The system calibration check for the first test was 100 and system calibration check for the second test was also 100.

[24] The system blank test is to detect any alcohol within the instrument prior to the first test being taken and it was zero, which means there is no alcohol in the instrument and it is in good working order. The system calibration check is to be 100 mg of alcohol in 100 mL of blood, which it was. After the checks were completed Mr. O’Reilly provided the first sample of his breath, which was 150 mg of alcohol in 100 mL of blood and it was taken at 5:23:32 a.m. The instrument performs the two checks again automatically. The system blank test was zero and the system calibration check and the target value of 100 was reached from the standard solution. The second breath sample was 141 mg of alcohol in 100 mL of blood at 5:46:05 a.m. This was truncated to 140 mg of alcohol in 100 mL of blood.

[25] D.C. Sivabalan prepared the Certificate of a Qualified Technician, Exhibit 1, which was shown to him. This was signed by him after he filled it out. The Certificate attests to what the results of the system blank test and system calibration tests were. It also indicates what the results of the two breath samples taken by D.C. Sivabalan were.

[26] D.C. Sivabalan determined prior to taking the first breath sample from Mr. O’Reilly that he had not spoken to a lawyer. It is his practice to inquire of the individual who is to provide samples of their breath whether they were satisfied with their conversation with the lawyer and this was when Mr. O’Reilly advised he had not spoken to a lawyer. When D.C. Sivabalan inquired whether Mr. O’Reilly wanted to speak to a lawyer, Mr. O’Reilly responded he did. D.C. Sivabalan immediately stopped his preparation of the approved instrument and brought Mr. O’Reilly out of the breath room. He spoke to P.C. Jawando and advised him that Mr. O’Reilly had not spoken to duty counsel as he requested. This was observed on the breath video, Exhibit 2, between 4:45 a.m. and 4:50 a.m. when this conversation occurred.

[27] P.C. Jawando attempted to contact duty counsel and left a message to contact DRPS, 18 Division, to speak to Mr. O’Reilly. At 5:03 a.m., duty counsel called the station and Mr. O’Reilly was placed in a private room by D.C. Sivabalan to speak to duty counsel. Mr. O’Reilly completed his call at 5:17 a.m. and was brought back into the breath room where he provided two samples of his breath as indicated at 5:23 a.m. and 5:46 a.m. Custody was transferred back to P.C. Jawando at 5:50 a.m. and he served documents on him and contacted Mr. O’Reilly’s wife.

[28] Mr. Engel did not ask any questions of the qualified breath technician.

Analysis

(a) Presumption of Accuracy

[29] I intend to deal with an issue first raised by Mr. Engel in his submissions, which was not contained in his Charter Application dated December 10, 2021, filed prior to the commencement of the trial. It was Mr. Engel’s submission that the Certificate of an Analyst was not disclosed pursuant to s. 320.34(1)(e) to the defence and as a result the Crown was not entitled to rely on the presumption of accuracy contained in s. 320.31(1) because they did not meet the requirement of having to disclose the certificate of the analyst pursuant to section 320.34(1)(e). Further, it was his position that the Crown could not meet its obligation to disclose the certificate of the analyst by providing the qualified technician’s certificate, which contains reference to the certificate of the analyst and the system blank tests and system calibration tests performed prior to the breath samples being obtained.

[30] Section 320.31(1) provides:

(1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[31] Section 320.32(1) provides:

(1) A certificate of an analyst, qualified medical practitioner or qualified technician made under this Part is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person who signed the certificate.

[32] Section 320.34(1) provides:

(1) In proceedings in respect of an offence under section 320.14, the prosecutor shall disclose to the accused, with respect to any samples of breath that the accused provided under section 320.28, information sufficient to determine whether the conditions set out in paragraphs 320.31(1)(a) to (c) have been met, namely:

(a) the results of the system blank tests;

(b) the results of the system calibration checks;

(c) any error or exception messages produced by the approved instrument at the time the samples were taken;

(d) the results of the analysis of the accused’s breath samples; and

(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

[33] In Exhibit 1, D.C. Sivabalan, the qualified technician designated by the Solicitor General of the Province of Ontario pursuant to s. 320.4(a) certified that he obtained two samples of breath from Michael O’Reilly on July 5, 2020, by using an Intoxilyzer 8000C, an approved instrument.

[34] In the certificate of the qualified technician, D.C. Sivabalan, certified with his signature the following:

The taking of the first sample was completed at 0523 hours on that date and before taking the sample he conducted a system blank test, the result of which was 000 mg of alcohol in 100 mL of blood and he also conducted a system calibration check, the result of which was 100, which is within 10% of the target value of the alcohol standard that was certified by an analyst.

The taking of the second sample was completed at 0546 hours on that date and before taking the sample he conducted a system blank test, the result of which was 000 mg of alcohol in 100 mL of blood and he also conducted a system calibration check, the result of which was 100, which is within 10% of the target value of the alcohol standard that was certified by an analyst.

That the alcohol standard had a target value of 100 mg of alcohol in 100 mL of blood, was certified by an analyst, and was identified as: Manufacturer Laboratoire Atlas Inc Alcohol Standard Lot Number 26LD.

That each of the said samples was, in my opinion, suitable for analysis, and was received into an Intoxilyzer 8000C, an approved instrument as defined by the Criminal Code of Canada, operated by me.

That the analysis of each of the said samples was by means of the said instrument, which was operated by me.

That the time required to take each of the said samples was less than one minute and that there was an interval of at least fifteen minutes between the times when the said samples were taken.

That the result of the analysis of the first of the said breath samples, rounded down to the nearest multiple of 10 mg, was 150 mg of alcohol in 100 mL of blood.

That the result of the analysis of the second of the said breath samples, rounded down to the nearest multiple of 10 mg, was 140 mg of alcohol in 100 mL of blood.

That the results of the analyses, rounded down to the nearest multiple of 20 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[35] In this case the Crown called the qualified breath technician, D.C. Sivabalan who prepared the Certificate of a Qualified Technician, Exhibit 1. D.C. Sivabalan testified as to the following evidence:

• He was designated as a qualified breath technician under the Criminal Code.

• He was using an Intoxilyzer 8000C, which is an approved instrument under the Criminal Code.

• He conducted the calibration, diagnostic and self-diagnostic tests to determine if the approved instrument was operating properly and concluded it was suitable for use. The instrument was in ready mode when he received Mr. O’Reilly, after Mr. O’Reilly finally spoke to duty counsel.

• D.C. Sivabalan testified the Intoxilyzer 8000C used an alcohol standard, which had a target value of 100 mg of alcohol in 100 mL of blood and was certified by an analyst and was identified as Manufacturer, Laboratoire Atlas Inc., Alcohol Standard Lot Number 26LD.

• The system calibration check showed a result of 100 mg of alcohol in 100 mL of blood, which was within the range +/- 10 (or 90 to 110) mg of alcohol in 100 mL of blood; the self-diagnostic test of his breath produced a result of zero mg of alcohol in 100 mL of blood, which was correct. This information was in the Certificate of a Qualified Technician, Exhibit 1, which he filled out. D.C. Sivabalan provided similar evidence as to the tests performed by the Intoxilyzer 8000C before the second breath sample was received. The instrument was working properly.

• Mr. O’Reilly provided two acceptable breath readings: the first was at 5:23 a.m. and registered a reading of 150 mg of alcohol in 100 mL of blood; the second was at 5:46 a.m. and registered a reading of 141 mg of alcohol in 100mL of blood. Both breath samples were proper, suitable samples for analysis provided by Mr. O’Reilly.

[36] Mr. Engel did not cross-examine D.C. Sivabalan and at the commencement of the trial conceded his qualifications.

[37] Mr. Engel relies upon a decision from the Alberta Court of Appeal in R. v. Goldson, 2021 ABCA 193, [2021] A.J. No. 709 (C.A.), which held that the Crown is required to file the certificate of the analyst at the trial to prove the precondition in s. 320.31(1)(a). However, there are three binding decisions from the Superior Court of Ontario, R. v. Bahman, [2020] O.J. No. 444 (SCJ, Andre); R. v. Porchetta, [2021] O.J. No. 3074 (SCJ, Cameron) and R. v. Dulal, [2021] O.J. No. 2176 (SCJ, Walters) dealing with this issue that are contrary to the decision in the Alberta Court of Appeal. During his submissions on this issue Mr. Engel conceded his argument was somewhat novel.

[38] The Dulal decision, provided by the Crown, is somewhat analogous to the facts in this case, where Mr. Engel has indicated he never received the certificate of the analyst in disclosure. Of course, as indicated by Mr. O’Neil, there is no evidence led on this trial establishing that the certificate of the analyst was not disclosed to the defence. In Dulal the Crown provided in disclosure a certificate of an analyst for an alcohol standard where the lot number was different from the lot number entered on the qualified technician’s certificate. The qualified technician testified the alcohol standard lot number on the qualified technician’s certificate, which was filed as an exhibit on the trial, was the alcohol standard he used and he had seen the certificate of the analyst as he had installed it into the Intoxilyzer 8000C. Justice Walters held the viva voce evidence of the qualified technician and the certificate of the qualified technician were sufficient to satisfy the statutory precondition of s. 320.31(1).

[39] There are also a number of Ontario Court of Justice decisions, which follow the decisions in the Ontario Superior Court: R. Sakhuja, 2020 ONCJ 484, [2020] O.J. No. 4695 (OCJ, Dellandrea); R. v. Cousins-Tremblay, [2020] O.J. No. 817 (OCJ, Schwarzl); R. v. Coates, [2021] O.J. No. 2774 (OCJ, Tetley); R. v. Diep, [2021] O.J. No. 7133 (OCJ, Gattrell) and R. v. Singh, [2021] O.J. No. 6178 (OCJ, Duncan). In Singh, Justice Duncan provided an historical perspective respecting this argument in paras. 7-8:

7 In R. v. Gorgichuk, [1970] A.J. No. 61 (C.A.) the Court held that the statement re the suitability and certification of the solution in the QT's certificate was hearsay and that the Crown was required to present the analyst or, more usually, a certificate of an analyst to provide the required proof. Five years later the Ontario Court of Appeal disagreed in R. v. Ware, [1975] O.J. No. 705 (C.A.). The conflict was eventually settled by the Supreme Court of Canada in R. v. Lightfoot, 1981 CanLII 47 (SCC), [1981] 1 S.C.R. 566. The Ontario view prevailed. The statement in the QT's certificate sufficed; there was no requirement for the analyst's evidence or certificate.

8 In 1985 the relevant sections were amended in a way that lead a number of trial and summary appeal courts to conclude that the law as stated in Lightfoot had changed and that an analyst's certificate was now required. However, Courts of Appeal in Saskatchewan and later in Ontario rejected this position and re-confirmed the continued applicability of Lightfoot: see R. v. Harding, 1994 CanLII 8717 (ON CA), [1994] O.J. No. 410 (CA).

[40] In R. v. Wu, [2019] O.J. No. 5000 (SCJ, Roberts), the Summary Conviction Appeal Court held the enumerated criteria set out in s. 320.31(1) are not elements of the offence of “over 80” or pre-requisites to the admissibility or reliability of breath tests, rather, they are pre-requisites to the evidentiary short-cut set out in s. 320.31(1). The point of this is to obviate the necessity of calling the evidence of the breath technician (see R. v. Alex, 2017 SCC 37, [2017] 1 S.C. R. 967, at paras. 20 & 36).

[41] In R. v. McCarthy, [2013] O.J. No. 467, at para. 22, (SCJ), MacDonnell J. held where the Crown does not rely upon the short-cut contained in the Criminal Code, the evidence of the breath technician will satisfy the admissibility and reliability requirements at common law:

Measurements performed by a scientific instrument or device are admissible at common law if the court is satisfied that the instrument or device was capable of making the measurement in question, that it was in good working order, and that it was properly used at the material time: see R. v. Redmond (1990), 1990 CanLII 10971 (ON CA), 54 C.C.C. (3d) 273 (Ont. C.A.); R. v. Vancrey (2000), 2000 CanLII 26961 (ON CA), 147 C.C.C. (3d) 546 (Ont. C.A.); R v. Grainger (1958), 1958 CanLII 469 (ON CA), 120 C.C.C. 321 (Ont. C.A.). Having regard to Parliament's designation of the Intoxilyzer 8000C as an 'approved instrument' - "an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person" - the first of those requirements is easily satisfied. The viva voce evidence of a qualified technician will normally suffice to establish the other two.

[42] Justice Roberts in R. v. Wu, supra, at para. 13, held:

13 I note that the Intoxilyzer 8000C was used both before s.320.31(l) of the Criminal Code was enacted, and after. The enactment of s.320.31 does not change its inherent reliability, or what the Crown needs to prove in order to establish, at common law, that breath tests done using it are admissible and reliable. Section 320.31(1) simply changes the nature of the evidentiary short-cut that may be used to obviate the need for viva voce evidence. As the Crown explained, s. 258 of the Criminal Code used to provide for a presumption of accuracy where the pre-requisites of the section were met. Section 320.31(1) of the Criminal Code now provides for conclusive proof of accuracy where the pre-requisites of the section are met. But nothing has changed about the underlying "approved instrument". Or the proof required at common law to establish that breath tests taken using it are admissible and reliable.

[43] I agree with Justice Roberts’ and Justice MacDonnell’s analysis and adopt it in this case given the qualified breath technician was called as a witness during this trial. The Crown is able to prove relying on the common law for the admissibility and reliability of the breath readings. The three requirements set out in those cases, as well as Harding below, namely: 1. The Intoxilyzer 8000C was used, an approved instrument; 2. The evidence of D.C. Sivabalan, the qualified technician, is unchallenged that the approved instrument was in good working order and the results testified to by D.C. Sivabalan of the quality assurance checks he performed, which demonstrate the instrument was working properly and 3. D.C. Sivabalan’s evidence demonstrates his knowledge of the operation of the Intoxilyzer 8000C and there was no challenge to his qualifications or his evidence. As I result I find the approved instrument was properly used and measured the alcohol concentration in Mr. O’Reilly’s blood. (See also R. v. Lombardi, [2020] O.J. No. 5695 (SCJ, Stewart); R. v. Caputo, [2019] O.J. No. 6062, (OCJ, Renwick), at para. 52 and R. v. Ferland, [2020] O.J. No. 4211 (OCJ, Amlin), at paras. 29-32 and R. v. Gorman , [2020] O.J. No. 423 (OCJ, Graham)).

[44] It is also my view that I am bound by the Ontario Superior Court appeal decisions dealing with the issue raised by Mr. Engel, which also make reference to the Supreme Court’s decision in Lightfoot and the Ontario Court of Appeal’s decisions in Ware and Harding referred to by Justice Duncan. In R. v. Harding, [1994] O.J. No. 419 (C.A.), the Court of Appeal held that it is enough for a technician to testify that he or she tested the breathalyzer by means of an alcohol standard and found it to be in proper working order. Unless there is reason to question this, the breath technician need not testify about the suitability of the alcohol standard used. It was D.C. Sivabalan’s evidence that the alcohol standard was suitable and that the Intoxilyzer 8000C was working properly.

[45] Therefore, I find that the statutory preconditions in s. 320.31(1) have been met by the certificate of the qualified technician and further that the viva voce evidence of D.C. Sivabalan, the qualified technician, proves the breath readings obtained from a properly working approved instrument and his evidence on this was not challenged in any way, based on common law as set out in the Wu decision. The Certificate of the Qualified Technician, therefore, is admissible in the present case for the truth of its contents subject to possible exclusion under the Charter. This brings us to the Charter issues in this case.

(b) The defence alleges P.C. Stone did not have grounds to form a reasonable suspicion to request Mr. O’Reilly provide a sample of his breath into an approved screening device pursuant to section 320.27(1) (b).

[46] The authority to make an ASD demand is found in s. 320.27(1)(b) of the Criminal Code, which reads:

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) …;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

[47] Section 320.27(1)(b) permits a police officer to require a motorist to provide a sample of their breath into an approved screening device where the officer has a reasonable suspicion that the individual has been operating or has care or control of their motor vehicle, within the preceding three hours, with alcohol in their body. However, it is not necessary that the officer believe the driver has committed any criminal offence, see R. v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870 (C.A.).

[48] In R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 the Court discussed the threshold standard of justification for a police dog sniff-search for drugs of a person and his bag in a public bus terminal. As Binnie J. held for the majority in R. v. Kang-Brown, a "reasonable suspicion" is something more than a mere suspicion – an expectation that a person is possibly engaged in some criminal activity -- and something less than a belief based upon reasonable and probable grounds. In order for a court to find that a reasonable suspicion is present, the officer's suspicion must be "supported by factual elements which can be adduced in evidence and permit an independent judicial assessment". In short, suspicion is a belief in a mere possibility of criminal activity; a reasonable suspicion is one that has some objective facts to support it, as opposed to some purely subjective hunch or gut feeling (see also R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 32).

[49] Mr. Engel submitted that P.C. Stone did not have sufficient grounds to have a reasonable suspicion and as a result the ASD demand breached Mr. O’Reilly’s s. 8 and s. 9 Charter rights. He seemed to suggest during his submissions there are certain preconditions that must be present in order for an officer to form the requisite reasonable suspicion for the approved screening device demand to be valid. During his submissions he pointed to the fact P.C. Stone formed her reasonable suspicion when Mr. O’Reilly was sitting in his car, she did not observe any indicia of impairment or bad driving and the smell of alcohol did not give her the grounds to request an ASD as she did not request it when the window was lowered and the rush of air escaped the vehicle. He submitted her grounds amounted solely to the fact Mr. O’Reilly was unable to provide the name or address of the person he was visiting.

[50] I am aware of the litany of cases where judges have considered whether sufficient grounds exist for a police officer to form a reasonable suspicion a motorist has alcohol in their body. While the fact scenarios of other cases are informative it would be an error to try to “pigeon-hole” the facts of a case with those fact situations. As expressed by Wright J. in R. v. Defend, [2010] O.J. No. 2406 (OCJ), at para. 18, “In all of the cases I have reviewed there is simply no support for the notion that a specific precondition, such as an odour of alcohol or an admission of consumption must be present before an approved screening device demand will be valid.” Actually, appellate authority is to the contrary. In fact, the Ontario Court of Appeal has held it is not a precondition to a valid ASD demand that the driver have the odour of an alcoholic beverage on his or her breath, see R. v. Zoravkocic, [1998] O.J. No. 2668 and R. v. Hryniewicz, [2000] O.J. No. 436.

[51] In R. v. Singh, [2006] O.J. No. 5133 (Ont. S.C.), Durno J. in finding no preconditions were required to enable a police officer to form a reasonable suspicion made these additional observations, which I adopt:

Even when the test is proof beyond a reasonable doubt there is no requirement that there be any odour of alcohol on the driver's breath or an admission of drinking. For example, in R. v. Collins, [2004] O.J. No. 4249 the Court of Appeal upheld the Summary Conviction Appeal judgment dismissing an appeal from conviction for "impaired operation" where the evidence was the accused, who upon being stopped had slurred speech, drove his car at a high rate of speed towards a police officer before stopping abruptly (see para. 13).

[52] Justice Wright found the law to be clear, “there is no specific indicator of alcohol consumption that is a prerequisite to the formation of reasonable suspicion.” (R. v. Defend, supra, at para. 21.) I agree. What a trial judge must examine is the totality of the circumstances to determine whether they provide an objectively reasonable basis for the officer’s suspicion. In R. v. Singh, supra, at para. 14, Justice Durno held:

The only issue was whether that suspicion was objectively reasonable. In making that determination, while all of the facts known to the officer have to be considered, the constable is not required to conduct a trial of the indicia and determine if he or she has reasonable and probable grounds to believe an offence has been committed or whether he or she is satisfied beyond a reasonable doubt that the driver is impaired or has alcohol in their body. Indeed, observations of overt indicia of impairment or consumption are not prerequisites to making an ASD demand.

[53] I find based on the totality of the evidence P.C. Stone’s reasonable suspicion was based on the following circumstances observed by her during her investigation of Mr. O’Reilly:

1. P.C. Stone first observed Mr. O’Reilly’s vehicle stopped by the side of the Liverpool Road by Wharf Street, with its 4-way flashers on and the engine running, with the sole occupant sitting in the driver’s seat, slumped over, apparently asleep. It was 3:30 in the morning;

2. She notified dispatch she was investigating and requested back-up as she was alone;

3. She found a man sitting in the driver’s seat alone in the vehicle, slumped over, with his mouth open and drool or spit on his chin;

4. She knocked on the window with her hand, saying “It’s the police” and he did not awaken. She believed if he had just been asleep he would have awakened. She removed her flashlight and used it to knock on the window and the frame of the door, saying repeatedly, “It’s the police.” After about two minutes of knocking on the window the man opened his eyes and came to;

5. The man had a shocked look on his face, his hands were moving in a defensive action with his eyes wide open. P.C. Stone tried to reassure him it was the police, she used her flashlight to shine on the POLICE on her uniform. The man put his hands down and calmed down;

6. She asked him to roll down his window. He appeared to be confused. His hands went to the console and he was pushing buttons. She heard the engine revving aggressively by his pushing on the gas. He did this 3 or 4 times. She told him not to touch the gear shifter. She asked him repeatedly to lower the driver’s window;

7. She went over the radio to dispatch asking for the backup to hurry up as she became concerned the driver was going to try and leave;

8. P.C. Stone continued to ask him to roll down the window and turn off the vehicle, and let go of the gas. Advising the driver she was a police officer. He kept saying, “Okay, okay” but not complying with her requests. About 3-4 minutes after first knocking on the window the driver took his foot off the gas and the driver’s side window was finally lowered.

9. When the window opened there was a rush of air from inside the car and P.C. Stone detected the odour of an alcoholic beverage coming from inside the car.

10. She asked the driver again to turn off the vehicle. He looked around confused and instead of turning off the vehicle he touched the radio and climate control. He eventually turned off the vehicle about 30 seconds after rolling down the window.

11. She asked why he was parked on the side of the roadway and he pointed and said he was visiting a friend but was unable to say who the friend was or the address. He was parked in a commercial area. When he spoke he had a drawn out slur to his voice. His eyes were bloodshot and glossy.

[54] P.C. Stone testified as a result of all of those observations she formed the reasonable suspicion that Mr. O’Reilly had alcohol in his body and he was in care or control of his vehicle. She asked him to exit his vehicle and walk back to her police cruiser. When he exited the vehicle he had difficulty getting out and was not steady when he stood up. P.C. Stone testified she had formed her suspicion that Mr. O’Reilly had alcohol in his body and she asked him to step out of his vehicle so she could administer an approved screening device test, which she advised him of when he first stepped out of his vehicle. It is my view P.C. Stone had more than sufficient observations to form her suspicion that Mr. O’Reilly had alcohol in his body when he was in care or control of a motor vehicle. It is my view her suspicion was objectively reasonable. I accept P.C. Stone’s evidence respecting this issue and her evidence was in no way seriously challenged or diminished by cross-examination. I do not agree with Mr. Engel’s attempt to restrict the observations she considered to formulate her reasonable suspicion.

[55] As I have indicated there is no precondition that the officer detect alcohol coming from the breath or mouth of an accused, in fact, the binding caselaw is to the contrary. Further, in a very well-reasoned judgment by my colleague, Duncan J., in R. v. Mason, [2013] O.J. No. 2822, at paras. 8-13, where he relied on the analysis in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.), at paras. 55-58, respecting the effect of other possible innocent explanations on a police officer’s formulation of reasonable and probable grounds, he held:

13 To require the elimination of other possibilities in my view is to misconstrue the meaning of "suspicion" and to effectively equate it with a standard of "reasonable grounds to believe" -- or higher. In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence -- consistent with guilt and inconsistent with any other rational alternative conclusion.

I adopt Justice Duncan’s analysis. See also R. v. Muller, [2016] O.J. No. 2516 (Doody J., OCJ). I have referred to the Supreme Court decisions defining “reasonable suspicion” (Kang-Brown and Chehill)

[56] On the totality of the circumstances it is my view P.C. Stone’s suspicion was objectively reasonable. As a result there was no breach of Mr. O’Reilly’s ss. 8 and 9 Charter rights.

[57] There was some suggestion by Mr. Engel that P.C. Stone’s requesting Mr. O’Reilly to exit his vehicle was some sort of sobriety test and therefore was conscripted evidence. Even if that had been P.C. Stone’s intention, Mr. O’Reilly’s unsteadiness and difficulty exiting his vehicle could be used by her in formulating her reasonable suspicion in order to demand he provide a sample of his breath into an ASD or the formulation of reasonable and probable grounds as to his ability to operate or be in care or control of a vehicle being impaired by alcohol (see R. v. Milne, 1996 CanLII 508 (ON CA), [1996] O.J. No. 1728 (C.A.)). However, I find this was not her intention, as she clearly testified she had come to her reasonable suspicion that Mr. O’Reilly had alcohol in his body when he was in care or control of a vehicle before she asked him to exit the vehicle based on all of her observations during her interactions with him up to that point. Her reason for asking him to exit his vehicle was because of her concern Mr. O’Reilly might leave the area in his vehicle because of his earlier actions of revving the engine and not following simple instructions. Further, she testified she was intending to demand he provide a sample of his breath into an ASD once he was outside his vehicle, which is exactly what she did. I have no doubt that P.C. Stone’s concern of Mr. O’Reilly setting his vehicle in motion was a reasonable one. This concern was confirmed by P.C. Jawando, who testified he became concerned about P.C. Stone’s safety when he heard her further request through dispatch that the responding officer should hurry up. It is my view P.C. Stone’s request Mr. O’Reilly exit his vehicle in no way breached Mr. O’Reilly’s Charter rights in any way.

[58] Mr. Engel also pointed to P.C. Jawando mischaracterizing the calibration of the ASD result of a fail. This was corrected by the officer who ultimately testified a fail on the ASD meant there was 100 mg of alcohol in 100 mL of blood, which was what was reflected in my notes and was recorded on the Liberty system used by the Court Reporter when I listened to P.C. Jawando’s evidence again. It is my view on the evidence that P.C. Jawando was advised by P.C. Stone of how she found Mr. O’Reilly asleep in the driver’s seat of his vehicle that was running, which put him in care or control of that vehicle, and her other observations of Mr. O’Reilly during her interactions with him. P.C. Jawando arrived on scene just as P.C. Stone requested Mr. O’Reilly exit the vehicle and he overheard her make an ASD demand to Mr. O’Reilly. When Mr. O’Reilly failed the ASD after providing a proper, suitable sample, I find all of this evidence provided P.C. Jawando with reasonable grounds to arrest Mr. O’Reilly on a charge of impaired care and control of a motor vehicle and to make a further demand that Mr. O’Reilly provide two samples of his breath into an approved instrument.

(c) The defence alleged Mr. O’Reilly was not advised by P.C. Stone what the reason for his detention was, which was a breach of his [s. 10(a)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) right

[59] The onus is on Mr. O’Reilly to establish a breach of s. 10(a). In addressing this alleged breach it is important to first set out the time line after P.C. Stone first observed Mr. O’Reilly’s vehicle parked on the shoulder of a public roadway, with his 4-way flashers on and the engine running with a sole occupant sitting in the driver’s seat, slumped over.

a. She first observed the Hyundai Tuscon at 3:32 a.m. on July 5, 2020;

b. She drove past the vehicle turned around and then pulled in behind the Tuscon. In my view this would have taken at least a minute. 3:33 a.m. When she decided to stop and check on this vehicle and its driver it was for the purpose of determining if the driver was okay She referred to it as a safety check.

c. She got out of her police cruiser and approached the driver’s door and observed the driver slumped over with his chin on his chest, mouth open and drool or saliva on his chin and she began knocking on the driver’s window announcing who she was. He did not awaken. She took out her flashlight and knocked on the window and the door frame announcing again who she was. 3:33 a.m.- 3:34 a.m.

d. When the driver awakened he had a shocked look on his face, his hands were moving in a defensive action with his eyes wide open. P.C. Stone tried to reassure him it was the police, she used her flashlight to shine on the POLICE on her uniform. The man put his hands down and calmed down. She asked him to roll down his window. He appeared to be confused. He did not roll down the window. His hands went to the console and he was pushing buttons. She heard the engine revving aggressively by his pushing on the gas. He did this 3 or 4 times. She told him not to touch the gear shifter. As the driver was revving the Tuscon’s engine by pressing on the gas P.C. Stone testified she contacted dispatch to request the backup hurry up. She did this because she was concerned the driver was going to leave.

e. P.C. Stone testified he did not roll the driver’s window down for 3-4 minutes after she first began to knock on the window to rouse or awaken the driver. 3:33 a.m. – 3:37 a.m.

f. As soon as the window was rolled down there was a rush of air from inside the Tuscon and she detected an odour of an alcoholic beverage coming from inside the vehicle. She continued to request him to turn off the Tuscon and he finally did about 30 seconds after the window was lowered. 3:37 a.m. – 3:38 a.m. P.C. Jawando testified he arrived on scene at this point in time.

g. She requested the driver’s license which he provided and she asked him why he was parked where he was and he said he was visiting a friend. He was unable to indicate who he had visited or the address of his friend. When Mr. O’Reilly was speaking she observed his speech was drawn out and there was a slur to his voice. She observed his eyes were bloodshot and glassy.

h. P.C. Stone testified it was at this point that she decided to request Mr. O’Reilly exit his vehicle as she had determined she had a reasonable suspicion Mr. O’Reilly had alcohol in his body when he was in care or control of a motor vehicle and therefore to demand the driver provide a sample of his breath into an ASD. She testified she had officer safety concerns about advising Mr. O’Reilly of this while he remained seated in his vehicle, as she was concerned he might leave because of his previous actions. Based on the evidence, I find this request was likely made between one to two minutes prior to the ASD demand. (3:38 a.m.)

i. Mr. O’Reilly got out of his vehicle (he had difficulty exiting and he was unsteady on his feet as he walked to the officer’s cruiser). She read the ASD demand at 3:40 a.m. beside her cruiser. P.C. Jawando was present as he had joined her. P.C. Stone discovered that P.C. Jawando did not have an ASD in his cruiser and P.C. Jawando testified he called for an ASD to be brought to the scene at 3:41 a.m. – 3:42 a.m., which was 4 or 5 minutes after he arrived on scene.

j. P.C. Jawando testified he believed the ASD arrived at 3:46 a.m. He knew which officer was bringing it and was advised this officer was close to their location. He checked the ASD, demonstrated how to use it with Mr. O’Reilly by doing a self test and found it to be working properly. (3:47 a.m. – 3:48 a.m.) Mr. O’Reilly provide a breath sample and registered a fail. P.C. Jawando arrested Mr. O’Reilly for impaired operation at 3:49 a.m.

[60] It is my view based on the evidence led during this trial that P.C. Stone was conducting a safety check on the driver of the Tuscon from the time she first observed the vehicle until the window was finally rolled down pursuant to her powers authorized by the Ontario Highway Traffic Act. P.C. Stone testified her investigation began to move in a different direction when the window was rolled down and she detected the odour of alcohol coming from inside the vehicle. As indicated by Justice Dambrot in R. v. Kumarasamy, [2011] O.J. No. 2114 (SCJ), at paras. 63-65, P.C. Stone’s investigation of Mr. O’Reilly’s ability to properly and safely operate his vehicle did not change, what changed was the possible cause of Mr. O’Reilly being unconscious (passed out or asleep) from an illness or medical cause to perhaps his being under the influence of alcohol. Within a minute after Mr. O’Reilly exiting his vehicle, P.C. Stone was reading the ASD demand to Mr. O’Reilly.

[61] There is no magic in the words that are said by a police officer in order to comply with s. 10(a) of the Charter (See R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21). Recently in R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279 (C.A.), the Court of Appeal held:

78 Section 10(a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-88; and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at paras. 16-22. Put more purposively: "The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit to arrest", or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at para. 125.

[62] There are two different lines of cases in Ontario respecting this issue. Mr. Engel urges me to follow Justice Schreck’s decision in R. v. Mueller, [2018] O.J. No. 2284 (SCJ) and the Crown urges me to follow Justice Dambrot’s decision in R. v. Kumarasamy, supra. As I indicated above, the circumstances and timing of the events that occurred in this case play a significant, deciding role in my view in the determination of whether P.C. Stone complied with s. 10(a).

[63] Mr. O’Reilly was found passed out or asleep in his vehicle, which was running at 3:30 in the morning. It was parked on the east side of Liverpool Road in Pickering by the lake, which was an area that was commercial. It took a considerably lengthy period of time for him to be awakened by the officer both by knocking on the window with her hand and advising it was the police, to using her flashlight to knock on the window and doorframe as she continued to announce her presence. When Mr. O’Reilly awakened he was confused, did not follow simple instructions to turn off his vehicle and to roll down the window and he was interacting with the vehicle’s components, revving the engine by pressing the gas pedal and reaching for the gear shift. When the window was rolled down the odour of alcohol was present and detected by P.C. Stone. Mr. O’Reilly was alone in the Tuscon. I have no doubt that Mr. O’Reilly was aware that police officers routinely patrol city streets and are tasked with investigating a driver’s capacity to operate their vehicle. I agree with the Crown’s submission that Mr. O’Reilly, in the circumstances in which he was found, this would have been obvious to him. I agree with Justice Dambrot’s analysis in R. v. Kumarasamy, supra, respecting s. 10(a) and in my view his reasoning applies equally to the facts of this case.

[64] Further, the circumstances and timing are also important as Mr. O’Reilly was not complying with the very simple requests and instructions to turn off his vehicle and roll down his window. There is an inference available on the evidence that Mr. O’Reilly did not open his window for two minutes of the officer repeatedly requesting this because he knew he had been drinking and he knew there was an odour of alcohol in his vehicle. As Mr. O’Reilly was walking with the two officers to P.C. Stone’s police cruiser he was asked by P.C. Jawando whether he had consumed any alcohol and he responded, “No,” which based on the “Fail” on the ASD and his breath readings provided by the Intoxilyzer 8000C, was clearly a lie.

[65] A further issue is the fact that P.C. Stone made the ASD demand within a minute or two of having decided subjectively that she had sufficient grounds to form a reasonable suspicion that Mr. O’Reilly had alcohol in his body when he was in care or control of his motor vehicle. In my view the reason for this brief delay is fully explained by P.C. Stone’s concerns about her own safety given Mr. O’Reilly’s actions. She expressed her concern that Mr. O’Reilly, either intentionally or unintentionally, might set his vehicle in motion and she was standing beside the driver’s door. Her concern is corroborated by evidence that she called dispatch to request her backup hurry up and this was heard by P.C. Jawando, who testified he took this request to be because she was alone and had a concern for her safety. As a result of this evidence, P.C. Stone’s decision to wait until Mr. O’Reilly was outside his vehicle before reading him the ASD demand requiring him to provide a sample of his breath in my view was completely justified. I also agree with Justice Dambrot’s view respecting the use to be made of observations made by P.C. Stone when Mr. O’Reilly exited his vehicle and walked to her cruiser and Mr. O’Reilly’s response to P.C. Jawando’s question (See Kumarasamy, at para. 71).

[66] Finally, even applying the reasoning of Justice Schreck in Mueller, supra, it is my view if there was a breach of Mr. O’Reilly’s s. 10(a) Charter right it was a technical and inconsequential breach, which would not have resulted in the exclusion of the breath readings. The conduct of P.C. Stone was not deliberate or part of a systemic pattern of conduct by police officers and its impact on Mr. O’Reilly’s Charter-protected interests was non-existent given if in fact he was unaware of what was occurring when the officer was speaking to him after he finally opened the window and was then asked to exit his vehicle (although there is no evidence to support this), he knew exactly what was being investigated when P.C. Stone told him she wanted him to accompany her to her cruiser to provide a sample of breath into an approved screening device and within a minute read the formal pre-printed ASD demand from her notebook, by her cruiser. None of the observations involving his exiting his vehicle, walking to the cruiser or his response to P.C. Jawando’s question were utilized as part of P.C. Stone’s formulation of her grounds to make the ASD demand, as she had made it before she asked him to exit the vehicle. In fact, all of the observations by P.C. Stone were only used for the formation of her reasonable suspicion (see Milne, supra, at paras. 40-49) as there was no charge of impaired care or control laid.

[67] The onus to establish a breach of s. 10(a) is on the applicant and a final point to be made is the fact that I do not know what was in Mr. O’Reilly’s mind, what he thought was happening when he first awakened and found a police officer standing outside his motor vehicle or what he was thinking when he was asked to do certain things in respect of his vehicle or when he was ultimately asked to exit his vehicle, because he chose not to testify. Of course Mr. O’Reilly is not required to testify on his trial proper or on his Charter application, as this is his right and no adverse inferences or findings can flow from his decision. There is however no evidence before me that Mr. O’Reilly did not appreciate what P.C. Stone was investigating or why she had pulled in behind his vehicle given the circumstances which were presented to her.

[68] As a result of my findings based on the totality of the evidence the application alleging a s. 10(a) Charter breach is dismissed. I am satisfied that Mr. O’Reilly was well aware of what P.C. Stone was investigating having regard to the circumstances, which Mr. O’Reilly was obviously fully aware of: his being passed out, asleep in his car while it was running at 3:30 in the morning and that he had been consuming alcohol given the odour of alcohol detected when the driver’s window was finally opened.

(d) Was the ASD administered immediately as required by s. 320.27(1)(b) and, if not, was the defendant’s right to counsel violated?

[69] Mr. Engel further submitted that P.C. Stone did not make the ASD demand immediately after she believed she had a reasonable suspicion that Mr. O’Reilly had alcohol in his body when he was in care or control of a motor vehicle. First, there is no requirement in these provisions that a police officer must stop investigating whether a driver’s ability to operate a motor vehicle is impaired by alcohol or a drug, if at some point they form a reasonable suspicion that the driver has alcohol in their body when they were operating or have care or control of a motor vehicle.

[70] As noted in R. v. MacMillan, 2013 ONCA 109, [2013] O.J. No. 727 (Ont. C.A.), dealing with s. 254(2)(b), which had been revised by the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 19(3), Rosenberg J. held there are two temporal limits on the validity of a s. 254(2)(b) demand (see paras. 28-31). First, although the wording of the section implies only the driver must act “forthwith” in providing a sample of breath into an ASD, the courts have also held that an officer must be in a position to administer the test forthwith (see R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, at p. 150 and R. v. Pierman; R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704 (C.A.), per Arbour J. A. (as she then was) at para. 5). The second temporal limit flows from the interaction of s. 254(2)(b) and s. 10(b) of the Charter. In R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, the Supreme Court of Canada held that a motorist was detained within the meaning of s. 10(b) when required to comply with a demand under the predecessor to s. 254(2); however, the Supreme Court also held requiring the driver to comply with the ASD demand prior to exercising their right to counsel was a reasonable limit within the meaning of s. 1 of the Charter. Consequently, it is because the driver is detained and would otherwise be entitled to consult with counsel that the test must be administered immediately. Absent this requirement s. 254(2) would not pass “constitutional muster.” R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 15, 29. In my view, these cases apply to the new provisions in s. 320 of the Criminal Code dealing with drinking and driving offences and police investigations relating to those offences.

[71] The Crown provided me the recent decision in R. v. Tosuns, [2021] O.J. No. 2179 (SCJ, Walters), which dealt specifically with the issue of whether the ASD demand made by the officer was made “immediately.” First, Justice Walters held at para. 34, “Section 320.27(1) does not explicitly create a time limit within which an ASD demand must be made.” She then cited the following passage from the Ontario Court of Appeal’s decision in R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779, and set out the following summary for the analysis for determining if an ASD is administered “forthwith”:

45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

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

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

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

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

[72] In the case before me, I find P.C. Stone formed her reasonable suspicion between 3:36 a.m. and 3:37 a.m., based on her evidence and the evidence of P.C. Jawando, who arrived on scene at 3:37 a.m. As I’ve already indicated, P.C. Stone testified she did not make an ASD demand to Mr. O’Reilly when he was still seated inside his vehicle because she had concerns for her safety and Mr. O’Reilly’s safety given his actions upon first coming to, revving the gas and interacting with the instrumentation panel of his vehicle. This concern was corroborated by her calling dispatch to speed up the arrival of P.C. Jawando. P.C. Jawando also confirmed his belief that P.C. Stone made this additional request of dispatch because of an officer safety concern and as a result he got to her location as quickly as possible.

[73] P.C. Stone testified she asked Mr. O’Reilly to exit the Tuscon so she could read him the ASD demand from the back of her notebook by her police cruiser, which was parked directly behind his vehicle. This is what she did, at 3:40 a.m. P.C. Stone read the ASD demand. P.C. Jawando testified as he arrived and got out of his police cruiser he heard P.C. Stone request Mr. O’Reilly exit his vehicle. He went to where P.C. Stone was and observed Mr. O’Reilly exiting his vehicle. P.C. Jawando walked with them to P.C. Stone’s vehicle, where she read the formal ASD demand. It is my view that the brief delay from forming her reasonable suspicion until reading the ASD demand at her police vehicle after P.C. Jawando arrived on scene was reasonable and complied with R. v. Quansah and the fourth point identified by the Court of Appeal, a legitimate safety concern. It was literally a matter of 2-3 minutes after P.C. Stone formed her reasonable suspicion that she read Mr. O’Reilly the ASD demand. This length of time was clearly within the acceptable time limits for the immediacy requirement. I find considering all of the circumstances in this case that no more than the time reasonably necessary to enable the officer to do her duty between the forming of her reasonable suspicion and the making of the ASD demand occurred.

[74] A further issue raised by Mr. Engel related to the fact the officers did not have an ASD in their vehicles and had to request one be brought to the scene after the ASD demand was made by P.C. Stone.

[75] In R. v. Gill, [2011] O.J. No. 3924 (Ont. S.C.), Durno J. dealing with the “forthwith” requirement in s. 254(2) and its relationship with a detainee’s s. 10(b) right to counsel held:

30 The boundaries within which Charter rights are justifiably infringed have recently been described by the Court of Appeal as the "forthwith window." R. v. Degiorgio, [2011] ONCA 527, at para. 49. It is the period in which the detained person can be required to respond to a valid ASD demand by either providing a suitable sample, failing or refusing to provide a suitable sample. During that window, the detainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter. Degiorgio, supra, at para. 34 and 47.

31 When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. R. v. Cote, (1992), 1992 CanLII 2778 (ON CA), 70 C.C.C. (3d) 280, cited with approval in Woods, supra, at para. 35. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seek and receive advice before being confronted with the ASD. R. v. Torsney, (2007), 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.). [Emphasis added]

32 Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all the circumstances in the case. R. v. Latour, (1997), 1997 CanLII 1615 (ON CA), 116 C.C.C. (3d) 279 (Ont. C.A.), Tornsey, supra, at para. 8. Courts have considered the following non-exhaustive list of circumstances:

i. the time the officer believed the ASD would arrive (R. v. George, (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.);

ii. the time between the demand and the taking of the sample (Latour, supra);

iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka (2011), 2011 ONSC 405, 267 C.C.C. (3d) 81 (S.C.J.));

iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh, (2005), 24 M.V.R. (5th) 19 (Ont. C.A.));

v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, [2009] O.J. No. 4121 (C.J.));

vi. the actual time it took for the ASD to arrive (Latour, supra);

vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.); and

viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).

[76] Justice Durno suggests (at para. 35) that the appropriate calculation is the time from forming the reasonable suspicion and when the device is with the demanding officer. “Operational time”, namely the time required for the officer to prepare the equipment, and ensure it is working properly and the time required to explain its use or where the detainee makes numerous attempts before providing a proper sample, should be deducted where the end of the time period is when the sample is actually obtained. (See also R. v. Bernshaw, supra, at para. 64 and R. v. Yamka, [2011] O.J. No. 283 (SCJ), at paras. 42-45)

[77] Given that the determination of whether there was a “realistic opportunity to consult counsel” is fact-specific, the question is not answered simply by calculating the number of minutes the “forthwith window” was open, regardless of the parameters of the time period. (See Cote, (1992), 1992 CanLII 2778 (ON CA), 70 C.C.C. (3d) 280 (S.C.C.), at p. 285.) The following cases reflect that proposition: a) cases where a realistic opportunity to consult counsel existed: R. v. Fildan, [2009] O.J. No. 3604 (SCJ) – 15 minutes; R. v. Beattie, [2009] O.J. No. 4121 (OCJ) – 20 minutes; R. v. Grant, (1991), 1991 CanLII 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.) – 30 minutes; R. v. Najm, (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) – 12 minutes, R. v. Cote, supra – 14 minutes; and R. v. George (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.) – where the officer knew in advance the device would not arrive for 15 to 20 minutes and it arrived in 18 minutes and b) cases where there was no realistic opportunity to consult counsel: R. v. Moussavi, [2016] O.J. No. 6317(C.A.) – 11 minutes; R. v. Pillon, [2006] O.J. No. 701 (SCJ) – 7 minutes; R. v. Torsney, (2007), supra – 6 or 7 minutes; R. v. Yamka, supra – 10 minutes; R. v. Latour, supra – 12 minutes; R. v. Singh, [2004] O.J. No. 1553 (SCJ) – 11 minutes; R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (SCJ) – 8 minutes; and R. v. Singh, [2005] O.J. No. 4787 (C.A.) where the officer believed the ASD would arrive in 5 to 10 minutes and it arrived in 10 minutes.

[78] It is not necessary for the police officer making the demand to have a reasonable basis to believe that the sample will be able to be taken within the “forthwith window”. All the officer has to have is a reasonable suspicion that the driver of the motor vehicle has alcohol in his body. (See Latour, supra, at paras. 31-33).

[79] I have previously set out the timing of P.C. Stone’s interactions with Mr. O’Reilly and when she read the formal ASD demand, which was made at 3:40 a.m. and the arrival of the ASD by P.C. Armstrong bringing it to where P.C. Stone and P.C. Jawando were located at 3:46 a.m. I also have described P.C. Stone’s reasons for delaying the reading the ASD demand because of officer safety concerns when she had formulated her reasonable suspicion at 3:36 a.m. to 3:37 a.m. P.C. Jawando described the steps he took to ensure the ASD provided was in proper working condition and Mr. O’Reilly was able to provide a suitable sample at 3:48 a.m. (2 minutes after the ASD arrived on scene.) The “Fail” result was registered by the ASD at 3:49 a.m. It is my view that the “forthwith window” was still open and there, in fact, was no realistic opportunity for Mr. O’Reilly to speak to counsel between the formation of a reasonable suspicion by P.C. Stone and her reading the ASD demand and the ASD arrived on scene. In R. v. Tornsey, supra, at paras. 12-13, the Ontario Court of Appeal held:

12 …the question to be asked is whether, in the circumstances, the police officer was in a position to require that a breath sample be provided "forthwith", that is, before there was any realistic opportunity for the appellant to consult counsel. The answer, in our view, is "yes". The machine was at the scene and ready for use within six or seven minutes of the demand. The demand was made at 2:35 a.m. On the record in this case, any attempt by the appellant to contact and consult counsel within the space of six or seven minutes, at that time in the morning, would have been futile.

13 In coming to this conclusion, we consider it important to draw a distinction between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel. The trial judge was under the impression that in deciding whether, in the circumstances, there was a realistic opportunity for the appellant to consult counsel, all that was required was that he be able to "call" counsel in the few minutes it took for the ASD to arrive and be readied for use. With respect, we think that the trial judge erred in that regard. The question he should have asked is whether, in all the circumstances, there was a realistic opportunity for the appellant, in the space of six or seven minutes, to contact, seek and receive advice from counsel. Had the trial judge framed the issue that way, he would, in our view, have decided the s. 10(b) issue differently. [Emphasis added]

[80] In this case the ASD was at the scene and ready for use within six to eight minutes after the demand. If it is from the time of the formation by P.C. Stone of her reasonable suspicion to the arrival of the ASD, then nine to ten minutes, but regard should be had to my findings as to why she delayed reading the ASD demand for two to three minutes for officer safety concerns. I find on the facts of this case, there was no realistic opportunity for Mr. O’Reilly to contact, seek and receive advice from counsel. As a result this alleged breach s. 10(b) is dismissed.

(e) Whether the breach of Mr. O’Reilly’s s. 10(b) right to counsel by the 17 minute delay in P.C. Jawando implementing his contact with duty counsel should result in the exclusion of evidence pursuant to s. 24(2)

[81] After Mr. O’Reilly failed the ASD, P.C. Jawando arrested him on a charge of impaired operation by alcohol at 3:49 a.m. He read him his right to counsel and caution from the back of his police notebook at 3:50 a.m. Mr. O’Reilly said he understood and he would like to speak to a lawyer but he did not have one. When he said he did not have a lawyer, P.C. Jawando testified he told Mr. O’Reilly there was a list of lawyers at the station and he could call one or he could call duty counsel. Mr. O’Reilly said he would call duty counsel.

[82] When Mr. O’Reilly was paraded and booked before the booking Sergeant he once again indicated he wanted to speak to duty counsel. P.C. Jawando indicated immediately after the booking was completed he turned custody of Mr. O’Reilly over to the qualified technician, D.C. Sivabalan in the breath room. Mr. O’Reilly’s interactions with D.C. Sivabalan were recorded on video in the breath room (4:45:32 to 4:50:15 on this issue). Prior to taking the first sample from Mr. O’Reilly, D.C. Sivabalan inquired if Mr. O’Reilly had spoken with a lawyer and Mr. O’Reilly shook his head no. D.C. Sivabalan asked if he wanted to talk to a lawyer and Mr. O’Reilly said he did not have a lawyer. D.C. Sivabalan asked if he wanted to call his own lawyer or call duty counsel. Mr. O’Reilly said he wanted to call duty counsel. D.C. Sivabalan did not proceed with the breath test and returned Mr. O’Reilly to the holding cell and spoke to P.C. Jawando to call duty counsel on Mr. O’Reilly’s behalf.

[83] P.C. Jawando testified he did not implement Mr. O’Reilly’s request to speak to duty counsel before turning him over to the qualified technician and admitted he completely dropped the ball in this respect. He testified there was no excuse and he should have contacted duty counsel for Mr. O’Reilly prior to turning him over to the qualified technician. P.C. Jawando testified when D.C. Sivabalan advised him he had not called duty counsel for Mr. O’Reilly he immediately called duty counsel and left a message at 4:53 a.m. for duty counsel to call DRPS at 18 Division concerning Mr. O’Reilly’s arrest for registering a “Fail” on an ASD. D.C. Sivabalan testified duty counsel returned this call at 5:03 a.m. and Mr. O’Reilly was placed in a private room to speak to duty counsel. D.C. Sivabalan testified Mr. O’Reilly finished speaking to duty counsel at 5:17 a.m., at which point D.C. Sivabalan brought him back to the breath room to provide samples of his breath.

[84] Mr. O’Neil concedes there was a breach of Mr. O’Reilly’s right to counsel pursuant to s. 10(b) given his access to counsel was delayed by 17 minutes because of P.C. Jawando not implementing his access to duty counsel immediately after the booking. Section 10(b) is comprised of two components: an informational component and an implementational component: see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477, [2009] O. J. No 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30. Section 10(b) guarantees the detainee will have access to a phone to exercise their right to counsel at the first reasonable opportunity. R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 28.

[85] In R. v. Brydges, (1990), 1990 CanLII 123 (SCC), 53 C.C.C.(3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.

[86] The Crown however submitted that the breath readings should not be excluded because this would bring the administration of justice into disrepute having regard to the fact that no evidence was collected until Mr. O’Reilly was able to consult with duty counsel. Mr. O’Neil points to the fact that P.C. Jawando was a DRPS officer for less than a year when he was involved in this case. He submitted that P.C. Jawando accepted responsibility for his actions and admitted his error. He submitted P.C. Jawando’s failure to implement Mr. O’Reilly’s access to counsel was inadvertent and not deliberate. It was a mistake, which was immediately corrected before the qualified technician administered the first breath test. Mr. O’Neil submitted there was no bad faith in P.C. Jawando’s conduct in his forgetting to contact duty counsel.

[87] Mr. Engel pointed to a recent decision in the Ontario Court of Appeal, R. v. Noel, 2019 ONCA 860, [2019] O.J. No. 5612, which involved an individual who was arrested for drug offences after a dynamic entry of a residence by police, pursuant to a search warrant, where a quantity of cocaine and marijuana and monies were located in the bedroom Mr. Noel was sleeping in. He was given his right to counsel after his arrest and expressed he wanted to speak to a lawyer, duty counsel. The police displayed a cavalier attitude towards Mr. Noel’s Charter rights and did not contact duty counsel for a lengthy period of time and there was no evidence presented to indicate that Mr. Noel was ever put in contact with duty counsel. I agree with the Crown’s submission that the facts in Noel are completely different from Mr. O’Reilly’s case. Mr. O’Reilly did speak to duty counsel prior to any steps being taken by D.C. Sivabalan to obtain breath samples from Mr. O’Reilly for analysis.

[88] Mr. O’Reilly spoke to duty counsel from 5:03 to 5:17 a.m. before he was returned to the breath room to provide samples of his breath pursuant to the breath demand made by P.C. Jawando as a result of Mr. O’Reilly’s blowing into the approved screening device and registering a “Fail.” The officer had reasonable and probable grounds to arrest Mr. O’Reilly and make a breath demand pursuant to s. 320.28(1).

[89] The onus of establishing that the exclusion of evidence is appropriate lies with the Applicant, on a balance of probabilities. To determine if evidence tainted by a Charter infringement should be excluded under s. 24(2) of the Charter, the three factors set out by the Supreme Court in Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 must be applied, considered and balanced.

[90] The three factors as set out in Grant are as follows:

1. the seriousness of the Charter-infringing state conduct;

2. the impact of the breach on the Charter-protected interests of the accused; and

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

[91] In applying the three factors set out in Grant, there is no requirement that all three factors or a majority of them be satisfied, rather, it is a balancing exercise where the key question is whether a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would do harm to the long-term repute of the administration of justice: Grant, at para. 68.

[92] I find that P.C. Jawando did not deliberately delay implementing Mr. O’Reilly’s right to counsel for a nefarious purpose. This was not even suggested to P.C. Jawando by Mr. Engel. I find P.C. Jawando’s failure to contact duty counsel as soon as the booking process was completed was caused due to inexperience and was simply a mistake on P.C. Jawando’s part. The circumstances and context of this case do not approach the cavalier attitude towards the implementation duties demonstrated by the police officers in the Noel case. P.C. Jawando’s error was made in good faith. In my view the first factor is neutral, neither favouring admission or exclusion.

[93] The important and significant circumstance in this case is that Mr. O’Reilly did speak to duty counsel prior to providing any samples of his breath. I find that the Charter breach had a very minimal impact on Mr. O’Reilly. The only impact is that he was delayed the opportunity to speak to a lawyer for 17 minutes. During that time, no incriminating evidence was elicited or taken from him. When the qualified technician asked Mr. O’Reilly if he spoke to counsel and was satisfied with counsel’s advice he discovered Mr. O’Reilly had not spoken to counsel. Upon discovering this state of affairs he immediately halted the breath testing procedures and returned Mr. O’Reilly to P.C. Jawando so Mr. O’Reilly’s request to speak to duty counsel could be implemented.

[94] As I have already found, P.C. Stone had more than sufficient grounds for her reasonable suspicion that Mr. O’Reilly had alcohol in his body when he was in care or control of a motor vehicle. This is similar to the facts in R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 (C.A.), where the officer formed reasonable suspicion that Mr. Jennings was operating a motor vehicle with alcohol in his body based on his observations and questions posed to Mr. Jennings. This led to an ASD demand and Mr. Jennings providing a sample of breath, which registered a “Fail.” The Court of Appeal in Jennings held that the Supreme Court's reference in Grant to the breath sample procedure as an example of a minimally intrusive search was "no mere throwaway line": at para. 29. Based on Grant and Jennings breath sample procedures are “minimally intrusive” and favour admission. On the facts of this case it my view that the second factor in Grant favours admission into evidence of the breath readings.

[95] Finally, the evidence collected through the taking of breath samples into an approved instrument is reliable and is essential to the Crown’s case. Exclusion of the breath samples would end the proceedings and lead to an acquittal. Drinking and driving causes a significant societal harm, which is reflected in the cases. A trial on the merits is the most effective tool in combating that harm and the public interest in having a trial proceed on it’s merits for drinking and driving offences is very high.

[96] Balancing the three factors it is my view that despite the breach of Mr. O’Reilly’s s. 10(b) rights, which was caused as a result of P.C. Jawando not calling duty counsel and thereby delaying Mr. O’Reilly speaking to duty counsel for 17 minutes, exclusion of the breath readings in this circumstance would bring the administration of justice into disrepute and as a result I am dismissing the s. 10(b) Charter application relating to what I find was an inadvertent mistake by P.C. Jawando which had little to no effect on Michael O’Reilly’s Charter-protected interests.

[97] As a result, the breath readings obtained by D.C. Sivabalan are admitted into evidence and there will therefore be a finding of guilty and conviction is registered on the charge of having care or control of a motor vehicle when Michael O’Reilly’s blood alcohol concentration was 80 or more mgs of alcohol in 100 mL of blood, contrary to s. 320.14(1)(b).

Released: March 23, 2022

Signed: Justice Peter C. West