ONTARIO COURT OF JUSTICE
DATE: 2022-05-05
COURT FILE No.: Regional Municipality of Waterloo; Information #20-4411
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
BRIAN FOREMAN
Before: Justice C.A. PARRY
Heard on: March 3 and 4, 2022
Reasons for Judgment released on: May 5, 2022
Counsel: Anita Etheridge, counsel for the Crown Malcolm McRae, counsel for the defendant Brian Foreman
PARRY J.:
A. INTRODUCTION
[1] On August 3rd, 2020, Mr. Foreman drove his car into the side of the industrial building belonging to Premier Spring & Manufacturing Ltd. in the Town of Ayr. As a result, Mr. Foreman stands trial for the offences known colloquially as Impaired Driving and 80 Plus. He has entered a plea of Not Guilty.
[2] Mr. Foreman alleges that the police that investigated his case, Constable Tracey McPhee in particular, violated some of his Charter protected rights. Specifically, he alleges that the police violated his right to be free from arbitrary detention, his right to be free from unreasonable searches and seizures, and his right to retain and instruct counsel without delay. He alleges that these breaches flowed from the following alleged transgressions:
(1) Officer McPhee’s subjectively held grounds to arrest him were not objectively reasonable, which made his arrest unlawful and his detention arbitrary;
(2) Officer McPhee’s subjectively held grounds to make a breath demand were not objectively reasonable, which made the seizure of his breath samples unlawful and thus unreasonable;
(3) Officer McPhee did not make her breath demand of him as soon as practicable after she formed her subjective grounds, which made the seizure of his breath samples unlawful and thus unreasonable;
(4) Officer McPhee did not, immediately after arresting him, inform him of his right to retain and instruct counsel, thereby violating his right to counsel;
(5) Officer McPhee did not take immediate steps to contact his chosen counsel once he voiced a desire to speak to counsel, thereby violating his right to counsel; and
(6) The police did not obtain his breath samples as soon as practicable after arresting him, which made the seizure of his breath samples unlawful and thus unreasonable.
[3] To remedy the alleged Charter breaches, Mr. Foreman seeks to exclude the results of his breath tests from his trial. He also seeks to exclude Constable McPhee’s evidence that she detected the odour of alcohol emanating from his breath during his detention at the police station. Mr. Foreman argues that once these key pieces of evidence are excluded from his trial, the Crown lacks sufficient evidence to prove either charge against him. However, Mr. Foreman, through his counsel, effectively concedes that, if his Charter application fails, the Crown has sufficient evidence to prove both offences against him.
[4] The Crown urges me to conclude that no Charter breaches occurred and that there exists sufficient evidence to prove both offences.
B. THE RELEVANT EVIDENCE
[5] The Crown called three witnesses: Mr. Mooney, who was a resident of Ayr, Mr. Yates, who was a Deputy Fire Chief for the Ayr volunteer Fire Department, and Constable Tracey McPhee, who was the investigating officer. The defence did not call any evidence on either the Charter voir dire or the trial itself.
[6] Before delving into the evidence of the witnesses, I will make these general observations about the witnesses. Mr. Mooney and Mr. Yates gave evidence that in my opinion was generally reliable and credible. As will happen in any event involving multiple witnesses, one may have seen things the other didn’t, or remembered things that the other didn’t. However, generally speaking, they each gave evidence that was generally consistent with the other and that went largely unchallenged on aspects that touched upon the main issues in this case. I cannot say the same about Constable McPhee. As will be discussed, I found aspects of her testimony about important material issues to lack both credibility and reliability. I turn now to a summary of the material evidence.
[7] Mr. Foreman concedes that there exists ample evidence to prove that he drove his car into the side of the Premier Spring & Manufacturing building in Ayr. Shortly before 9:00 p.m., a local resident, Jeffrey Mooney, rushed to the scene of the collision shortly after it occurred. Mr. Foreman still sat in the driver’s seat of the car. His head was slumped down into his chest and his arms lay limp in his lap. The airbags had been deployed. The front of the damaged car abutted the side of the building, with its lights still on. It looked as though the car had driven through a t-intersection and directly into the side of the building. I find as a fact that Mr. Foreman drove his car into the side of the Premier Spring & Manufacturing building moments before being found by Mr. Mooney. I turn now to the evidence germane to the related issues of Mr. Foreman’s impairment and Constable McPhee’s grounds to believe that Mr. Foreman’s ability to operate a motor vehicle was impaired by alcohol.
[8] Mr. Mooney banged on Mr. Foreman’s window but did not get a response. So, he quickly called 911 to get help for Mr. Foreman. After doing so, he resumed calling out to Mr. Foreman and banging on the windows in an effort to rouse him. At around this juncture, Deputy Chief Eric Yates arrived on scene. Like Mr. Mooney, Mr. Yates testified that Mr. Foreman did not initially respond to his and Mr. Mooney’s efforts to rouse Mr. Foreman. After a few minutes, Mr. Foreman regained consciousness. As soon as he did, he made three attempts to start the engine. To Mr. Mooney, Mr. Foreman appeared disoriented. Mr. Mooney also testified that Mr. Foreman had difficulty coordinating his arms sufficiently to operate the driver’s side window and door locks. Mr. Yates testified that it took some time and encouragement to get Mr. Foreman to unlock the door. While neither Yates nor Mooney purported to be precise in their time estimates, I accept that Mooney arrived on scene first, Yates arrived moments later, that both tried to rouse Mr. Foreman, that Mr. Foreman was temporarily in a state of unconsciousness, that Mr. Foreman regained consciousness after Mooney and Yates attempted for a few minutes to rouse him, and that even once Mr. Foreman regained consciousness, he appeared disoriented.
[9] Both Mr. Mooney and Mr. Yates claimed to have opened the door once Mr. Foreman unlocked it. I believe this may be the only way in which their evidence may have contradicted each other in any meaningful way. Nevertheless, given the issues being litigated in this case, I do not consider this contradiction to be material. Whichever of them actually unlocked the door, both made several observations of Mr. Forman and the interior of his car once the door was opened.
[10] Mr. Mooney testified that he saw an open can of beer at Mr. Foreman’s feet. He also saw some beer spilled on the floor. In cross-examination, Mr. Mooney acknowledged that he did not note in his written statement that the can of beer at Mr. Foreman’s feet was open, nor did he note that he saw beer spilled on the ground. Mr. Mooney testified that he also saw a dozen or more cans on the front passenger side of the car but did not notice whether they were opened or not. He acknowledged in cross-examination, that he did not note the presence of these passenger-side beer cans in his written police statement. Mr. Mooney also testified that he smelled the odour of fresh alcohol, body odour, and human feces. It stunk. He acknowledged, however, that he did not note the odour of fresh alcohol in his written police statement. He nevertheless maintained that he smelled the odour of fresh alcohol and denied that the car smelled of skunky beer. While he was unable to describe the rest of the contents of the car, he did recall that the car looked as though Mr. Foreman had been living in it. As for Mr. Foreman’s appearance, Mr. Mooney testified that Mr. Foreman’s eyes were glossy and bloodshot. Mr. Mooney testified that he stepped away from the car to allow the firefighters to attend to Mr. Foreman.
[11] Mr. Yates testified that Mr. Foreman had a glazy look on his face. Mr. Foreman seemed to have difficulty understanding the questions posed by Mr. Yates. Both his physical and verbal responses were delayed. It took some effort to elicit Mr. Foreman’s first name and then some additional effort to elicit his surname. Mr. Yates also testified that he saw beer cans beside Mr. Foreman on the console and a cooler on the passenger’s seat. He had no recollection of any odours that may have been emanating from the car. At some juncture, the police, EMS, and other firefighters arrived. When the police arrived, Mr. Yates relayed his observations to them.
[12] I am prepared to accept the observations offered by both Mr. Mooney and Mr. Yates about Mr. Foreman’s appearance, the appearance of his car, and the odours emanating from the car. I recognize that Mr. Mooney did not previously record smelling the odour of fresh alcohol. However, I keep in mind that all three witnesses described seeing open cans and/or bottles of beer and/or alcohol throughout the car – front and back. I also keep in mind that all three witnesses described a stench emanating from the car. And I keep in mind that all three witnesses described the car being full of Mr. Foreman’s refuse and personal belongings. I think it a matter of common sense and human experience to observe that when multiple observers are blasted with a medley of odours, different observers may key in on different olfactory “notes.” The smell of the odour of fresh alcohol certainly does not preclude the existence of the other pungent odours noticed by both Mr. Yates and Cst. McPhee. In the end, I accept the evidence of Yates and Mooney and thus accept that (1) Mr. Foreman’s car was strewn with cans of beer, at least some of which had previously been opened; (2) that Mr. Foreman’s car was so messy that it looked as though someone had been living in it; (3) that Mr. Foreman’s car was filled with various pungent odours, including at least the smells of body odour, feces, and alcohol; (4) that Mr. Foreman’s eyes were glassy and bloodshot; and (5) that Mr. Foreman had a glazed and disoriented look on his face. As will be seen in a moment, Constable McPhee’s observations are in general agreement with those of Mooney and Yates. I turn now to the evidence germane to Constable McPhee’s grounds to arrest Mr. Foreman and to make a breath demand to Mr. Foreman.
[13] Constable McPhee was a 21-year veteran of the WRPS. She testified that she received a dispatch about Mr. Foreman’s accident at 9:02 p.m. She and Cst. Arsenault were assigned to a single cruiser that night. Upon receipt of the dispatch, they drove to the scene of the accident. They arrived at 9:06 p.m.
[14] Either while driving to the scene or upon her arrival, dispatch informed her that Mr. Foreman’s car had been the subject of an earlier complaint. Although Cst. McPhee initially testified that she received details of that earlier driving complaint before arresting Mr. Foreman, she acknowledged that she made no notation in her notes to suggest that the earlier driving complaint formed part of her grounds for arresting Mr. Foreman or for making a breath demand. Also, she acknowledged that the CAD Report indicated that she received detailed information about the earlier incident after she arrested Mr. Foreman. Nevertheless, she maintained that she recalled hearing at least some information about the earlier driving complaint over the radio, while she was occupied with a domestic dispute occurrence. Ultimately, though, she agreed that she could not be certain of which details she knew from this prior complaint before arresting Mr. Foreman, other than that it was a driving complaint about a possible impaired driver. Accordingly, she testified that existence of this prior complaint was “not that important” to the formation of her grounds.
[15] When Cst. McPhee and her partner arrived on scene, paramedics, Mr. Yates, and the rest of the responding firefighters had already arrived. She stood by while firefighters extricated Mr. Foreman from his car. As she did so, she got a look inside Mr. Foreman’s car. She saw that the car was full of garbage. Empty alcohol containers lay all over the car. Cst. McPhee specifically recalled seeing an open bottle of alcohol in the centre console – she believed it to be a bottle of rum. She did not, however, document the sighting of this bottle in her notes. She also noted a large cooler in the back passenger seat. In her opinion, the car looked like someone had been living in it. She also noticed a very foul odour coming from the car – a foul odour she had never smelled before. As noted, I accept that Mr. Foreman’s car was full of refuse, empty alcohol containers, and personal belongings. I also accept that he and his car reeked of a foul odour. Given that no one else noticed a bottle of rum in the centre console, given that she did not record this detail in her notes, and given her tentative recollection of this bottle, I am not satisfied that McPhee’s evidence on this point is reliable. I therefore reject it.
[16] Cst. McPhee spoke to Mr. Yates as other firefighters extricated Mr. Foreman. Yates informed her that Mr. Foreman was fumbling and not responding well. Yates also told her that another firefighter, Mr. Alward, said that Mr. Foreman told firefighters, “Nothing’s wrong. I’m just drunk.”
[17] Cst. McPhee testified that she also spoke to Alward, who confirmed that Mr. Foreman said, “Nothing’s wrong. I’m just drunk.” However, McPhee did not obtain a witness statement from firefighter Alward. Alward told her that she had plenty of evidence without him. McPhee did not give the impression that she pushed the issue with Alward. Perhaps her lack of diligence was born of her impression that she didn’t need Alward’s evidence – I don’t know. Her evidence here is unclear. Later, as Mr. Foreman’s matter progressed through the trial scheduling process, Cst. McPhee attempted again to obtain a statement from Mr. Alward. However, she was told by the volunteer fire department that he no longer worked there. She seems to have accepted this dead end rather easily. She was far from conscientious in her search for Mr. Alward.
[18] Having made those comments, I nevertheless accept that Yates informed McPhee that Mr. Foreman made an incriminating statement to Alward. I also accept that McPhee briefly spoke to Alward. I further accept that McPhee honestly believed that Mr. Foreman told Alward that he was “drunk.” Having regard to the full constellation of evidence surrounding McPhee at the time, I see no reason to second guess McPhee’s reliance upon Alward’s account of Mr. Foreman’s alleged inculpatory admission.
[19] Once the firefighters got Mr. Foreman out of the car, Cst. McPhee noticed that Mr. Foreman was unsteady on his feet and seemed confused. She testified that she walked with Mr. Foreman and the firefighters towards the nearby ambulance. She did not speak to or question Mr. Foreman along the way but testified that she could smell an odour of alcohol emanating from Mr. Foreman’s breath. However, she made no note of this vital purported ground for arrest in her notebook notes or her Impaired Driving Booklet. Indeed, when filling out the Impaired Driving Booklet at the station, at 11:19 p.m., she wrote that she could “now smell alcohol over the odour coming from the car [emphasis mine]” – suggesting that she did not smell alcohol coming from Mr. Forman until after he provided his first breath sample. Cst. McPhee also acknowledged that she did not ask Mr. Foreman at the scene whether Mr. Foreman had consumed any alcohol that evening or if he was “drunk”, like he allegedly reported to Mr. Alward.
[20] I accept McPhee’s evidence that Mr. Foreman was unsteady on his feet and seemed confused. This evidence is consistent with the evidence of Mooney and Yates. I do not accept, however, that McPhee observed an odour of alcohol coming from Mr. Foreman’s breath as Mr. Foreman walked from the car to the ambulance. On her evidence, she did not speak to Mr. Foreman during this phase of the investigation. She also does not describe him speaking to others as he walked to the ambulance. There exists little evidence capable of establishing that she had a reasonable opportunity to smell Mr. Foreman’s breath prior to arresting him. Also, it makes no sense for her to write, two hours after the arrest, that she could “now smell alcohol over the odour coming from the car,” if she had already smelled the alcohol at the scene. Moreover, this observation was not recorded in McPhee’s notes. I conclude that this purported observation is more likely the unreliable product of wishful thinking or narrative backfilling; or a perhaps deliberate attempt to bolster her grounds.
[21] Cst. McPhee testified that she formed grounds to arrest Mr. Foreman at 9:19 and accordingly informed Mr. Foreman that he was under arrest. Cst. McPhee also testified that she did not advise Mr. Foreman of his right to counsel until 9:28 p.m.
[22] Cst. McPhee believed that the Charter obliged her to provide an arrestee with their right to counsel “as soon as practicable”, the same standard created in the breath demand provision of the Criminal Code. Cst. McPhee thus demonstrated a clear misunderstanding of the constitutional requirement for police to inform an arrestee of their right to counsel immediately upon arrest. When coming to court to testify, she knew she would have to explain the nine-minute delay between the time she arrested Mr. Foreman and the time she advised him of his right to counsel. In saying so, she declared an awareness that, without a sufficient explanation, the timing of her reading of the right to counsel did not even meet her own uninformed standard.
[23] Cst. McPhee then proceeded to offer an explanation for the nine-minute delay between the arrest and provision of rights to counsel. On her account, she verbally informed Mr. Foreman of his arrest, but then allowed the paramedics to assess Mr. Foreman at the ambulance. She explained that this EMS assessment is what caused a delay in her ability to inform Mr. Foreman of his rights counsel.
[24] Cst. McPhee’s explanation for the nine-minute delay initially appeared rational and satisfactory – but it did not stand up to scrutiny. In her duty book notes she recorded the sequence of events as follows:
- “Nothing’s wrong. I’m just drunk.” (Alward)
- Licence plate # recorded.
- EMS checking patient.
- 21:19 [9:19 p.m.] 949 [arrest]
[25] In other words, she noted that the 9:19 p.m. arrest occurred after EMS had assessed Mr. Foreman. Despite the sequence contained in the notes she wrote at the time of the incident, Cst. McPhee explained that she merely verbally arrested Mr. Foreman before allowing EMS to assess him. This explanation was nonsensical. Her evidence did nothing explain why she would record the 9:19 arrest – which is the supposed verbal arrest – after recording the medical assessment. In essence, her purported explanation amounted to a restatement of the contradiction. Nonetheless, Cst. McPhee held on to her assertion that she verbally advised Mr. Foreman of the arrest at 9:19 and then allowed EMS to assess Mr. Foreman.
[26] Undeterred, defence counsel then drew Cst. McPhee’s attention to the synopsis she prepared soon after the incident. In that synopsis, she wrote, “Once the accused was assessed by EMS he was subsequently arrested at 9:19.” She went on to write that she provided Mr. Foreman with his right to counsel at 9:28. Again, in this prior written account of the evening, Cst. McPhee declared that the 9:19 p.m. arrest occurred after EMS had already assessed Mr. Foreman. In this prior written account, the EMS assessment could not provide an explanation for the delay in reading Mr. Foreman his rights. Thus, this prior written account undeniably contradicted Cst. McPhee’s in-court explanation for the nine-minute delay. Cst. McPhee would not acknowledge the contradiction, though. Instead, she testified that in writing a clearly contradictory sequence of events, she meant to denote that she only took physical control of Mr. Foreman after the EMS assessment, but verbally informed Mr. Foreman of the arrest before the EMS assessment. This explanation simply made no sense. The synopsis explicitly indicated that the 9:19 arrest – the arrest she maintained was the initial verbal arrest – occurred only “once the accused was assessed by EMS.” The synopsis then indicated that McPhee provided Mr. Foreman his rights to counsel nine-minutes later. When defence counsel pressed Cst. McPhee on the issue, she suggested that her synopsis was unclear, but she would not agree that it contradicted her testimonial evidence about the timing of the EMS assessment relative to the 9:19 arrest.
[27] Defence counsel then presented Cst. McPhee with the CAD Details [Computer Aided Dispatch Details]. In the CAD log, the dispatcher records radio communications by police cruiser-units to dispatch. Because McPhee and her partner were sharing a cruiser, it is difficult to discern from the logs which of the two provided any particular radio communication to dispatch. Nevertheless, at 9:15, the log indicated that either McPhee or her partner informed dispatch that they will have an arrest but that Mr. Foreman “is with paramedics now.” Then, at 9:19, the log noted that they informed dispatch of the arrest. In response to these CAD logs, Cst. McPhee said that she was not saying that the dispatch logs are wrong, but rather saying that she placed Mr. Foreman in handcuffs at 9:28. Again, this answer did not address the apparent contradiction. When pressed further on the issue by defence counsel, she ultimately acknowledged that her testimonial evidence about the timing of the EMS treatment relative to the 9:19 arrest contradicted the sequences contained her notes, her synopsis, and the CAD Details. She remained unable to resolve the contradiction. While she acknowledged the possibility of her memory being wrong, she held steadfast to her memory that she verbally advised Mr. Foreman of his arrest at 9:19, waited for EMS to treat Mr. Foreman, then placed Mr. Foreman in handcuffs at 9:28 and informed him of his right to counsel.
[28] Having considered Cst. McPhee’s evidence on the timing of her reading of the rights to counsel, having considered Cst. McPhee’s prior inconsistent statements on the subject in her notes and in her synopsis, having considered McPhee’s attempts at addressing her own prior inconsistent statements, I reject Cst. McPhee’s claim that paramedics assessed Mr. Foreman between the arrest at 9:19 and provision of rights to counsel at 9:28. In my opinion, Cst. McPhee stubbornly resisted acknowledging the patently obvious contradiction between her typed notes/synopsis and her testimony. In the process, her explanations amounted to only non-explanations and non-sequiturs. When she finally acknowledged the contradiction, she had no answer for it. I found Cst. McPhee’s testimony on this subject to lack both credibility and reliability. In saying this, I do not mean to suggest that I have concluded Cst. McPhee deliberately contrived an explanation for her delay in reading Mr. Foreman his rights. Though, I am mindful that Cst. McPhee knew she would need to explain the nine-minute delay when she came to court, I am unable to determine whether her EMS explanation was contrived or the product of wishful thinking. Sometimes, desire can bring belief to life. I am able to determine, though, that when presented with cogent evidence of her contemporaneous recording of the sequence of events, Cst. McPhee was very reluctant to honestly acknowledge what constituted blatant and undeniable prior inconsistent statements. In that sense, she provided what I regard as patently dishonest testimony to fend off an allegation that she violated Mr. Foreman’s Charter protected right. In my eyes, her credibility was significantly damaged in the process, despite her ultimate capitulation and acknowledgement of her prior inconsistent statements.
[29] I would also observe that when Cst. McPhee initially erroneously testified that she didn’t depart the scene until 10:01 p.m., she provided a fairly in-depth explanation for her delayed departure, one which rested upon the need to await the arrival of the relieving officers. She corrected her departure time in-chief, noting it to be 9:43 p.m. She then acknowledged in cross-examination that her notes indicated that the relieving officers actually came much sooner, at 9:35 p.m., and that the explanation she had confidently provided during her in-chief evidence for her delayed departure was clearly wrong. This aspect of Cst. McPhee’s evidence disclosed a willingness to create, and perhaps even believe, patently incorrect explanations for her conduct. At best, this aspect of her evidence shows a carelessness with or indifference to truth, at worst it shows a willingness to subvert the truth.
[30] To sum up, I am satisfied that the arrest occurred at 9:19. There exists no contradiction between her notes, synopsis, and testimony on this point. The fact that it was declared by either her or Arsenault and recorded at 9:19 by dispatch further supports this conclusion. I am also satisfied that Cst. McPhee read Mr. Foreman his rights at 9:28 p.m. Again, there exists no contradiction on this point between her notes, synopsis, and testimony. However, I entirely reject McPhee’s contention that she delayed informing Mr. Foreman of his rights because she was waiting for the paramedics to treat Mr. Foreman. Whatever occurred during this nine-minute period, it was not that. As a result, Cst. McPhee has provided me with no credible and reliable explanation for her failure to inform Mr. Foreman immediately of his right to counsel.
[31] When Cst. McPhee informed Mr. Foreman of his right to counsel, he did not initially understand. He told her that he was hard of hearing and that his hearing aids were not working properly. With a little effort, McPhee was able to inform Mr. Foreman of his rights sufficiently. Mr. Foreman then responded, “I probably should.” McPhee then told him about how the call would occur back at the station.
[32] After Cst. McPhee informed Mr. Foreman of his right to counsel, she read him a caution at 9:31 p.m. She then read the breath demand at 9:32 p.m.
[33] As already noted, Cst. McPhee initially testified that she and Cst. Arsenault departed with Mr. Foreman at 10:01 p.m. She explained that they had to wait for another unit to arrive from South Division, which was a considerable distance away from their location in Ayr. They needed the other unit to secure and tow Mr. Foreman’s car. However, she realized her mistake when reviewing her notes. She corrected herself and testified that they departed the scene at 9:43 p.m., arriving at South Division at 10:01 p.m.
[34] Also, as noted, McPhee’s notes indicated that the other unit, carrying Officers Bali and Shroeder, arrived at 9:35 p.m. By the time of trial, McPhee said she did not have an independent recollection of their arrival time.
[35] Upon arrival at the police station, Cst. McPhee brought Mr. Foreman before the acting sergeant. The booking procedure took place between 10:01 and 10:12 p.m. During that time, McPhee confirmed that Mr. Foreman wanted to speak to duty counsel.
[36] Sixteen minutes passed between the completion of the booking procedure and the time at which Cst. McPhee placed a call to duty counsel, 10:28 p.m. Initially, she explained that she was busy at the station. However, she ultimately acknowledged that she had no explanation for not calling duty counsel at 10:12 p.m., when the booking procedure ended.
[37] Duty counsel did not call back until 10:47 p.m. Cst. McPhee made no attempt to follow up her original call while waiting for duty counsel to call back. Again, she stated that she believed that she was only obliged to facilitate contact with counsel “as soon as practicable.” She did not view 20 minutes as an unreasonable amount time to wait for duty counsel’s return call.
[38] Mr. Foreman finished speaking with duty counsel at 10:54 p.m.
[39] Cst. McPhee then brought Mr. Foreman to the breath technician – Cst. Arsenault – at 10:55 p.m. Arsenault obtained the first sample at 11:00 p.m.
[40] While Mr. Foreman provided his first breath sample, Cst. McPhee tried to make arrangements for someone to come and pick up Mr. Foreman. At 11:11 p.m., McPhee called Mr. Foreman’s sister, who said he could stay with her.
[41] At 11:19 p.m., McPhee brought Mr. Foreman back to Cst. Arsenault for a second breath sample. According to McPhee, Mr. Foreman was talkative with Arsenault. This was when McPhee noted that she could “now” smell the odour of alcohol over the other stench emanating from Mr. Foreman. Arsenault obtained the second sample at 11:24 p.m.
[42] According to the Intoxylzer 8000, Mr. Foreman’s blood alcohol content was over 3 times the legal limit. The lower of the two breath samples revealed a BAC of 269 mg of alcohol in 100 ml of blood.
[43] Shortly after Mr. Foreman provided his 2nd breath sample, Cst. McPhee served him with the appropriate documents.
[44] Mr. Foreman was released from police custody at 12:06 p.m. and Cst. McPhee drove him to his sister’s home. He arrived there at 12:35 p.m.
C. THE REASONABLE GROUNDS ISSUE
[45] The first two alleged Charter breaches can be dealt with simultaneously. The reasonableness of the arrest and the reasonableness of the breath demand both depend upon the existence of reasonable and probable grounds to believe that Mr. Foreman’s ability to operate a motor vehicle was impaired by the consumption of alcohol.
[46] The defence does not dispute that Cst. McPhee subjectively believed that Mr. Foreman had operated a motor vehicle or that Mr. Foreman’s ability to do so was impaired by the consumption of alcohol. The defence only challenges the reasonableness of the officer’s subjective belief.
[47] I keep in mind that to prove that an accused’s ability to operate a motor vehicle was impaired by alcohol, the Crown need only establish a slight degree of impairment.
[48] Reasonable grounds exist where credibly based probability replaces suspicion.
[49] Therefore, I must ask whether it was reasonable for Cst. McPhee to believe that Mr. Foreman’s ability to drive was impaired, at least to a slight degree, by the consumption of alcohol. In, my view, Cst. McPhee’s subjective belief was eminently reasonable.
[50] I review the facts as known to McPhee at the time. Mr. Foreman’s car had recently crashed into the side of an industrial building that sat adjacent to a t-intersection of rural roads. It looked as though he drove straight through the t-intersection and into the side of the building. A firefighter told her that Mr. Foreman was fumbling and not responding well. He also told her that Mr. Foreman told another firefighter, “Nothing’s wrong. I’m just drunk.” McPhee confirmed with the other firefighter that Mr. Foreman had made this declaration. On her own observation, Mr. Foreman looked dazed and confused as firefighters escorted him from the car. When she briefly examined the interior of the car, she noticed empty alcohol containers strewn all over the car. She was also aware that about an hour before the collision, someone had called the police to complain about the manner in which Mr. Forman’s car was being driven. It was a complaint of a possible impaired driver.
[51] With those facts in mind, I find that McPhee very reasonably concluded that Mr. Foreman’s ability to drive a car was probably impaired, at least to a slight degree, by the consumption of alcohol.
[52] Without hesitation, I conclude that reasonable grounds existed for both the arrest and the breath demand.
D. THE ALLEGED FAILURE TO MAKE THE BREATH DEMAND AS SOON AS PRACTICABLE
[53] The police seized Mr. Foreman’s breath samples without resort to a warrant. Accordingly, the seizure was prima facie unreasonable. The Crown bears the burden of establishing that this warrantless search was reasonable.
[54] The Crown may establish the reasonableness of the search if it establishes that the search was authorized by law, the law was reasonable, and the search was carried out in a reasonable manner.
[55] Section 320.28 of the Criminal Code provides the lawful basis for an officer to demand that an arrestee to provide a breath sample. The officer must have reasonable and probable grounds to believe that the person operated a conveyance while their ability to do so was impaired by alcohol. I have concluded that the officer possessed such grounds. According to section 320.28, the officer must also make that demand “as soon as practicable” after forming those grounds.
[56] The term “as soon as practicable” does not mean “as soon as possible.” Rather, section 320.28 only requires that the demand be reasonably prompt given the circumstances in which the officer made the demand: See R. v. Squires 159 O.A.C. 259 at para. 31. In short, the court must determine whether the officer who made the demand acted reasonably and promptly under the circumstances at hand.
[57] To recap, Cst. McPhee arrested Mr. Foreman at 9:19 p.m. While I recognize the possibility that paramedics were treating Mr. Foreman before the arrest and that Cst. McPhee may have formed grounds prior to any such assessment, I do not have admissible evidence on this point. The defence has proceeded on the basis that the clock starts ticking at the point of arrest – which is the latest point at which the officer formed grounds to believe that Mr. Foreman operated his vehicle while his ability to do so was impaired by alcohol. I will do the same.
[58] The defence contends that by failing to make a breath demand until 13 minutes after the arrest, Cst. McPhee failed to make the demand as soon as practicable and therefore did not comply with section 320.28 of the Code. The defence argues that the breath samples were not taken in accordance with the law. Accordingly, the defence contends that the Crown has failed to rebut the presumption that the seizure of his breath samples was unreasonable.
[59] In my assessment of this alleged Charter infringement, I keep in mind that beginning at 3:28 p.m., Cst. McPhee began to read Mr. Foreman his right to counsel. Mr. Foreman was hard of hearing, so this took a bit longer than it otherwise would with a person with no hearing difficulties. Cst. McPhee then read to Mr. Foreman the police caution. Cst. McPhee was obliged to do these things. In my view, it was proper for Cst. McPhee to fulfill these two obligations before reading the breath demand. Also, in my, view, Cst. McPhee performed these duties in a reasonably expeditious manner. Consequently, during four of the thirteen minutes between the formation of grounds and the making of the demand, Cst. McPhee was engaged in the performance of duties that she should have performed before making the demand. I am thus left with only nine minutes of unexplained delay.
[60] Ideally, the officer would either not have delayed those additional nine minutes or would be able to provide a reasonable explanation for that additional delay. Having said that, I do not consider that time span to be of such a length that it brings the timing of the demand into the realm of the unreasonable. As noted, the demand need not be made immediately; it need only be reasonably prompt. Despite the lack of an explanation for that nine-minute time span, I consider McPhee to have acted reasonably promptly. I am not satisfied, based upon the evidence before me, that she acted unreasonably.
E. THE ALLEGED FAILURE TO OBTAIN THE BREATH SAMPLES AS SOON AS PRACTICABLE.
[61] The accused provided his first breath sample 1 hour and 41 minutes after his arrest at 9:19 p.m. While the evidence does not afford precision on this point, Mr. Foreman had continued to occupy the driver’s seat of his car until a mere moment before his arrest.
[62] Section 320.28 requires that an accused must provide a breath sample as soon as practicable after receiving a breath demand from a police officer. Failure to comply with a breath demand in a timely way constitutes an offence under section 320.15(1) of the Code.
[63] Under the former statutory regime, courts had the opportunity to consider the “as soon as practicable” requirement in the context of determining the applicability of the evidentiary presumption created by section 258(1)(c). The presumption created by this section became known as the presumption of identity. If the Crown established compliance with the conditions of that section, then the accused’s blood alcohol content at the time the breath samples were taken acted as conclusive proof of the accused’s blood alcohol content at the time of driving. Under the body of caselaw that interpreted section 258(1)(c), the court concluded that the test for determining whether samples were taken as soon as practicable is whether the samples were taken within a reasonably prompt time in all the circumstances. The phrase “as soon as practicable” must be applied with reason, having regard to the whole chain of events and bearing in mind that section 258(1)(c) permits an outside limit of two hours for the application of the presumption. The section did not require that the police obtain the sample as soon as possible. The touchtone for determining whether the sample was taken as soon as practicable is whether the police acted reasonably. The section did not impose upon the Crown a burden to explain what occurred during every minute that the accused is in custody: See R. v. Vanderbruggen 2006 ONCA 9039, 208 O.A.C. 379 at paras 12 and 13.
[64] Under the new statutory regime, section 320.14(1)(b) makes it an offence to have an excessive blood alcohol concentration within two hours of ceasing to operate a conveyance [the new term for motor vehicle]. The offence occurs at the time of testing, not the time of driving. As a result, the new regime does not require a presumption of identity to establish a blood alcohol content at the time of driving. Instead, a different presumption of identity is created by section 320.31(4), which provides an algorithm by which a person’s BAC at the two-hour mark can be determined by reference to BAC readings obtained after the two-hour mark.
[65] Given the importance of the two-hour mark in assessing the promptness breath samples under the old statutory regime and given the different but similar importance of the two-hour mark in the new statutory regime, this two-hour time span ought to continue to operate as a benchmark in the assessment of the timeliness of the collection of breath samples.
[66] In assessing whether the police acted reasonably and promptly, I begin with a look at the “forest”, not the “trees”. As noted, the arrest occurred at 9:19 p.m. soon after firefighters extricated Mr. Foreman from his car wreck. Before departing the scene, Cst. McPhee and Cst. Arsenault [who was to be employed as the breath technician for Mr. Foreman] needed to wait for other officers to arrive to take over the scene and assume custody of Mr. Foreman’s car. Soon after additional officers arrived on scene, McPhee and Arsenault departed with Mr. Foreman at 9:43 p.m. They drove directly to the nearest police division, arriving at 10:01 p.m. As required, they brought Mr. Foreman before the cell-sergeant. After the booking procedure, they lodged Mr. Foreman in a cell. Mr. Foreman then spoke to a lawyer at 10:49 p.m. His conversation with duty counsel ended at 10:54 p.m. He provided his first sample at 11:00 p.m. In all, 1 hour and 41 minutes transpired between the arrest and the first breath sample, well under the two-hour mark. While I appreciate that reasonableness is not determined solely by reference to the two-hour limit, it nevertheless serves as a benchmark when examining all the circumstances of the case. The degree to which the police in this case outpaced the benchmark is in my view compelling. Nevertheless, I will next examine other specific circumstances – the “trees” – highlighted by the defence to confirm whether this initial bird’s eye view withstands scrutiny.
[67] The defence contends that despite obtaining the samples well before the two-hour mark, the police could have obtained the samples even sooner. Thus, the defence argues, that the samples were not taken as soon as practicable. In particular, the defence points to several time spans which the defence contends constitute unexplained delays: from the arrest at 9:19 p.m. to the provision of RTC at 9:28 p.m. [a period of nine minutes]; from the arrival of the relieving officers at 9:35 p.m. [at least according to McPhee’s notes] until the departure from the scene at 9:43 p.m. [a period of eight minutes]; from the completion of the booking procedure at 10:12 p.m. until the initial call to duty counsel at 10:28 p.m. [a period of sixteen minutes]; and from 10:28 p.m. to 10:47 p.m., the time at which duty counsel eventually returned Cst. McPhee’s phone call [a period of nineteen minutes]. With respect to this final time frame, the defence contends that Cst. McPhee should have placed an additional phone call to duty counsel when she did not immediately receive a return call from duty counsel. I will now address each discrete period of allegedly unexplained delay.
[68] I agree that the delay between the arrest and the reading of the rights to counsel is unexplained. I also agree that it ought not to have occurred; however, I cannot agree that it did anything to delay Cst. McPhee’s departure from the scene. I accept that she and Arsenault could not reasonably leave the scene until other scene officers took over; so, this nine-minute delay is immaterial to the “as soon as practicable” analysis.
[69] I turn then to the delay between the arrival of the relieving officers and the departure of McPhee and company from the scene. I accept that McPhee did not depart immediately. However, while I heard no evidence about what occurred in the eight minutes between the arrival of the new officers and McPhee’s departure from the scene, I do not accept that instantaneous departure would be prudent or feasible. I would expect some brief period of communication between the original officers and the relieving officers. As I say, I do not have any evidence as to what actually transpired in this eight-minute time frame, but eight minutes does not seem to me to be an unreasonable amount of time to transfer control of a scene from one group of officers to another. As an aside, I would also note that I do not have any admissible evidence that establishes that the relieving officers arrived at 9:35 p.m. While McPhee recorded this time in her notes, she had no independent recollection of the arrival time of the relieving officers; neither party established that this notation met the criteria of a past recollection recorded.
[70] Next, I address Cst. McPhee’s delay in calling duty counsel. When asked about the delay, McPhee initially responded that she was busy at the police station. When pressed, she testified that she had no explanation as to why she didn’t call duty counsel at 10:12 p.m. Ultimately, I am not sure what McPhee did between 10:12 and 10:28 p.m. I would note, though, that McPhee testified that she believed she was only bound by a duty to implement Mr. Foreman’s access to counsel as soon as practicable. Implicitly at least, she asserted compliance with this misguided standard. I agree with defence counsel that McPhee should have called duty counsel as soon as she finished lodging Mr. Foreman in a secure room, which I presume would occur moments after the booking procedure ended. So, a large portion of the sixteen-minute time span between 10:12 and the call to duty counsel at 10:28 should have been eliminated. An earlier call would have at least given rise to the possibility that duty counsel could have called back before 10:47 p.m. I have no idea whether an earlier call-back would have in fact been possible, though. Nevertheless, McPhee’s delay in calling duty counsel was unreasonable.
[71] As noted, the defence also contends that McPhee should have called duty counsel again when duty counsel did not immediately return the call. McPhee testified that she did not think it unreasonable to wait twenty minutes for duty counsel to call back. Implicitly, Cst. McPhee seemed to appreciate the obvious: that Mr. Foreman might not be duty counsel’s only client that night; and that duty counsel may have been attending to other duties when McPhee placed her call. I see nothing unreasonable about an officer placing a call, leaving a message, and waiting nineteen minutes for a return call.
[72] In the span of 1 hour and 41 minutes, Cst. McPhee arrested Mr. Foreman, handcuffed him, read him his rights, read him his criminal caution, read him his demand, waited for officers to take over the scene, transported Mr. Foreman to a nearby detachment, engaged in an eleven-minute booking procedure, reviewed her grounds with the breath technician, allowed Mr. Foreman to speak to duty counsel, and then brought Mr. Foreman into the breath room to provide his initial sample. In entirety of this sequence, I am only able to conclude that Cst. McPhee should have told Mr. Foreman about his right to counsel sooner and that Cst. McPhee should have placed a call to duty counsel sooner. The failure to inform Mr. Foreman promptly of his rights did not have any impact upon the timing of the breath samples and is irrelevant to the analysis. At its highest, the failure of McPhee to immediately call duty counsel after booking deprived Mr. Foreman of the chance for an earlier conversation with duty counsel. The evidence does not establish that but for these two lapses, Mr. Foreman would have necessarily been able to provide his breath samples sooner. In my view, despite the errors relating to Mr. Foreman’s right to counsel, the evidence establishes that Cst. McPhee and Cst. Arsenault acted with reasonable dispatch in obtaining Mr. Foreman’s breath samples. In coming to this conclusion, I have been mindful of the closing remarks of Justice Rosenberg in the Vanderbruggen decision:
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.
[73] Also, in coming to this conclusion, I have assumed, without deciding, that the current statutory regime requires as a lawful condition of the seizure of breath samples that the police obtain those samples as soon as practicable. I have also assumed, without deciding, that, being a warrantless search, the Crown bears the burden of proving that the police acted with reasonable dispatch. I have assumed that a failure to meet that burden results in a finding that the samples were not taken in accordance with the law and a consequent finding that the seizure of the samples constituted a violation of the accused rights against unreasonable searches and seizures. Having concluded that the police acted with reasonable dispatch, I need not actually address whether the “as soon as practicable” requirement is a statutory precondition to obtaining a lawful breath sample under the current statutory regime and, consequently, whether a failure to obtain breath samples “as soon as practicable” necessarily results in a violation of the accused’s right to be free from unreasonable searches and seizures.
F. THE ALLEGED BREACH OF MR. FOREMAN’S RIGHT TO COUNSEL
[74] Section 10(b) of the Charter of Rights and Freedoms guarantees that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.
[75] Upon arrest or detention, section 10(b) imposes both informational and implementational duties. The informational duty requires that the police inform the accused without delay of the right to retain and instruct counsel. The implementational duty requires that the police provide the detainee with a reasonable opportunity to retain and instruct counsel.
[76] In 2009, the Supreme Court released its decision in R. v. Suberu, 2009 SCC 33. In that decision, the court confirmed that the term "without delay" means immediately. Consequently, since July 17 of 2009, police forces across this country have been put on notice that when their officers arrest someone, those officers must immediately inform the arrestee of the right to retain and instruct counsel; and if the arrestee thereby asserts that right, those officers must immediately take steps to provide the detainee with a reasonable opportunity to retain and instruct counsel.
[77] In 2014, the Supreme Court reiterated the obligations of the police in the case of R. v. Taylor, 2014 SCC 50. In Taylor, Justice Abella, speaking for the court stated, at paragraphs 24 and 25:
The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to counsel at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 71 A.R. 368 at para 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to these rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).
[78] Compliance with the informational and implementational duties may be suspended by the police in exceptional circumstances (R. v. Mian, 2014 SCC 54 at para 74; R. v. Taylor, 2014 SCC 50 at paras 27 to 32); however, the Crown bears the burden of demonstrating that any given delay in compliance with these constitutional duties was reasonable in the circumstances.
[79] I have no hesitation in concluding that Cst. McPhee failed to immediately inform Mr. Foreman of his rights. I also do not hesitate to conclude that she proffered no credible explanation for this failure.
[80] Similarly, I have no hesitation in concluding that Cst. McPhee failed to contact duty counsel at the first reasonable opportunity. Once she was done booking Mr. Foreman, all she had to do was lodge Mr. Foreman in an interview room before picking up a phone and calling duty counsel. She should have been on the phone within a minute or two of 10:12 p.m. Instead, she did not place a call until 10:28 p.m. She had no explanation for the delay, other than the blithe observation “I was busy.” That is not good enough.
[81] However, I do not fault Cst. McPhee for waiting 19 minutes for duty counsel to call back. That does not seem to me to be an unreasonable period of time. And while waiting, Cst. McPhee respected her duty to hold off from attempting to obtain any evidence from Mr. Foreman.
G. THE REMEDY FOR THE BREACH OF MR. FOREMAN’S RIGHT TO COUNSEL
[82] An applicant who establishes a breach of his or her Charter rights, seeks redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.
[83] Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[84] The subsection reveals that the party seeking exclusion must establish two things:
(1) the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and
(2) the admission of the evidence would bring the administration of justice into disrepute.
[85] The applicant must establish these two things on a balance of probabilities: see R. v. Pino, 2016 ONCA 389 (Ont. C.A.).
[86] In determining whether or not the evidence was "obtained in a manner that infringed or denied any rights or freedoms" of the applicant, the court should be guided by the following considerations:
(1) the approach should be generous, consistent with the purpose of s. 24(2);
(2) the court should consider the entire "chain of events" between the accused and the police;
(3) the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
(4) the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
(5) but the connection cannot be either too tenuous or too remote.
See R. v. Pino, supra, at para 72.
[87] Mr. Foreman seeks to exclude his breath samples from this trial. He also seeks to exclude Cst. McPhee’s observations of the odour of alcohol on Mr. Foreman, which she noticed when interacting with him at the police station. He alleges a sufficient nexus between the breach of his right to counsel and this impugned evidence. I should note here that the Crown did not argue otherwise. The Crown thus appears to have ceded this ground of the battle. Nevertheless, I will make some observations. Regarding McPhee’s observation of the odour of alcohol on Mr. Foreman’s breath at 11:19 p.m., it is important to note that McPhee made this observation when she had brought Mr. Foreman back into the breath room to provide his second breath sample. Therefore, both the breath samples and the observation of the odour of alcohol were acquired after Mr. Foreman had already spoken to duty counsel. Consequently, I am unable to conclude that there exists a causal connection between the breach and collection of the impugned evidence. However, in my opinion, there exists a sufficient temporal and contextual connection between the violation of Mr. Foreman’s right to counsel and the evidence Mr. Foreman seeks to exclude. The evidence is therefore potentially subject to exclusion due to the breach of Mr. Foreman’s right to counsel.
[88] In Grant, [2009] S.C.R. 353, McLachlin C.J.C. and Charron J.A. noted that the subsection is concerned with the maintenance with the rule of law and with the defence of Charter rights in the justice system as a whole. The majority further noted that a Charter breach in and of itself brings the administration of justice into disrepute. However, in their view, subsection 24(2) was concerned with the future impact of the admission/exclusion of the evidence on the repute of the administration of justice. In other words, the court was concerned with whether admission/exclusion would do further damage to the repute of the justice system. In doing so, the court noted that the analysis required a long-term view, one aimed at preserving the integrity of our justice system and our democracy.
[89] Interpreting subsection 24(2) from this perspective, the majority in Grant held that a trial court must assess and balance the effect of the admission of 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 that 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.
See Grant, supra.
[90] The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith” and should not be encouraged or rewarded through the admission of evidence: see Grant, supra, at para 75.
[91] Needless to say, deliberate state misconduct will tend to support the exclusion of evidence: see Grant, supra.
[92] The third branch of the Grant analysis places emphasis on the truth-seeking function of the trial process. This portion of the analysis requires the court to balance concerns about the integrity of the justice system with the interests of seeking the truth. Admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the Crown's case. Conversely, the exclusion of highly reliable evidence may have a more negative impact upon the repute of the justice system, if exclusion proves fatal to the prosecution’s ability to prove its case.
[93] I now turn to an examination of the first branch of the Grant analysis.
[94] Cst. McPhee did not understand her constitutional obligations. Despite being a police officer for 21 years, and despite serving 11 of those 21 years between the release of Suberu and her arrest of Mr. Foreman, she mistakenly believed that she need only inform Mr. Foreman of his right to counsel as soon as it was practicable. She held a similar misconception about her implementational duties. And, even by her own misguided standards, she knew she would have some explaining to do about the delay between the arrest at 9:19 p.m. and the time at which she informed Mr. Foreman of his rights at 9:28 p.m. It is utterly unacceptable that an officer with her level of experience, whom the public can reasonably expect to detain and arrest suspects with some regularity, does not know of her obligation to immediately inform a suspect of their rights. It is equally unacceptable that she does not know of her obligation to implement the suspect’s rights at the first reasonably available opportunity.
[95] As Justice Latimer observed in R. v. Davis [2018] O.J. No. 1220:
31 A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with "inadvertent or minor violations" at one end and a blatant or brazen disregard for Charter-protected interests at the other: R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.); R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at paras. 23, 39.
In my view, Cst. McPhee’s long-term failure to understand the obligations placed upon her by section 10(b) of the Charter places her conduct closer to the “brazen disregard” end of the spectrum of seriousness. I come to this conclusion fully recognizing that Mr. Foreman ultimately spoke to duty counsel before providing a breath sample and before engaging in the conversation with Cst. McPhee that allowed her to smell alcohol on his breath.
[96] Unfortunately, the breaches in this case does not stand in isolation. Police in this jurisdiction have, with some frequency, demonstrated an ignorance of the immediacy requirement. As a jurist, it is difficult to discern the pervasiveness of this misunderstanding across the police force. I would note, however, a number of decisions locally in which that misunderstanding has been identified: R. v. Mitchell 2018 ONCJ 121; R. v. Davis [2018] O.J. No. 1220; R. v. Hanif 2015 ONCJ 223; and R. v. Gravina [unreported: Latimer J., Kitchener, February 21, 2020]. In the Gravina decision, Justice Latimer, noted that he had personally dealt with five such violations during his short time in our jurisdiction. Similar observations have been made in other jurisdictions in the province: see R. v. Sandhu 2017 ONCJ 226. The persistent appearance of this type of “immediacy” breach in our jurisdiction and others in the province makes the breach more serious, in my opinion.
[97] The breach is serious for another reason, too. Cst. McPhee proffered no credible excuse for her failure to immediately inform Mr. Foreman of his right to counsel. Worse, she dishonestly resisted acknowledging the contradiction between the testimonial excuse she attempted provide and her two prior written accounts on the subject. Charter infringing conduct is made more serious when compounded by dishonesty about its existence: see R. v. Perlic, [2019] O.J. No. 6900; R. v. Procyk 2018 ONCJ 857; R. v. Harrison, 2009 S.C.R. 494; R. v Brown, [2019] O.J. No. 601 (OCJ). This remains true, even when the dishonesty does not form part of the Charter breach itself. The integrity of the truth-seeking function lies at the heart of the admissibility inquiry under section 24(2). “Fewer actions more directly undermine these goals than misleading testimony in court from persons in authority.” (Harrison, 2009 S.C.R. 494, at para 26). Cst. McPhee’s dishonest evidence during an inquiry about her alleged Charter infringing conduct therefore constitutes an aggravating factor in the assessment of the seriousness of the breach she committed. Her erroneous and unnecessary explanation for her non-existent delayed departure from the scene lends further weight to this conclusion.
[98] On behalf of Mr. Foreman, Mr. McCrae urges me to conclude that Cst. McPhee demonstrated a failure to appreciate the urgency of her constitutional obligations. To that end, he points to Cst. McPhee’s delayed efforts to phone duty counsel at the completion of booking. His criticism is fairly made, despite my conclusion that the breath samples were nevertheless taken as soon as practicable. I infer Cst McPhee’s lack of urgency is the fruit of her longstanding misapprehension of the obligations imposed upon her by section 10(b) of the Charter. This misinformed lack of urgency constitutes an aggravating factor in the assessment of the seriousness of the breach.
[99] I should note, however, that Mr. Foreman’s initial assertion of his right to counsel was somewhat tentative: “I probably should.” I infer that Cst. McPhee’s revisiting of the issue at the detachment crystalized his resolve to speak to counsel. Clearly, Cst. McPhee was motivated to ensure Mr. Foreman spoke to counsel before surrendering him to provide breath samples or otherwise attempting to elicit evidence. The motivation may not have inspired Cst. McPhee to move with the appropriate dispatch, but it was nonetheless present and salutary.
[100] In my view, however, admission of the evidence would send a signal of judicial indifference to (1) Cst. McPhee’s unacceptable ignorance of her constitutional obligation to inform arrestees of their right to counsel immediately and to (2) Cst. McPhee’s misleading evidence about the existence prior inconsistent statements on this very Charter issue. All things considered, the seriousness of Cst. McPhee’s Charter infringing conduct strongly favours exclusion.
[101] I will now move on to the assessment of the impact of Cst. McPhee’s breach on Mr. Foreman’s Charter protected right. Here, I must keep in mind that Mr. Foreman ultimately spoke to duty counsel. Also, I must recall that Cst. Foreman did not attempt to elicit any incriminating evidence from him until after he spoke to duty counsel. In fact, the evidence shows that she at all times she treated him with dignity and respect – and she should be commended for treating him in this manner. Also, as noted, Mr. Foreman seemed initially somewhat tentative in expressing his desire to speak to counsel at all. But for Cst. McPhee re-addressing the issue of rights to counsel, I am not entirely sure Mr. Foreman would have held firm. Having said that, I am cognizant of the words of Justice Doherty in R. v. Rover 2018 ONCA 745, [2018] O.J. No. 4646 (C.A.) at para 45:
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.
Nevertheless, the duration of the informational delay was modest, as was the duration of the implementational delay. With these thoughts in mind, I am of the view that the impact of the breach on Mr. Foreman’s Charter protected rights was minimal. Considering all the circumstances of this case, I do not conclude that admission of the evidence would send the message that Mr. Foreman’s rights count for little.
[102] Moving to the third branch of the Grant analysis, I acknowledge that society always has a strong interest in seeing Mr. Foreman’s case determined on its factual merits. The readings in this case were quite high. Mr. Foreman’s driving culminated with a collision into the side of a building. The offence, if proven, is a serious one. The breath readings constitute reliable evidence of Mr. Foreman’s guilt. The odour of alcohol from his breath is crucial evidence that supports an inference of guilt on the impaired charge. The exclusion of this evidence fatally undermines the Crown’s case on one count and severely weakens the Crown’s case on the other. Society’s interest in a trial on the merits of this case is very high.
[103] In balancing the Grant factors, the court must consider whether the force of the first two factors outweighs the offsetting force if the third factor: see R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504.
[104] Given my findings about the seriousness of Cst. McPhee’s misconduct, I conclude that admission of the impugned evidence in Mr. Foreman’s case would bring the administration of justice into disrepute. Admission of the evidence would signal an unacceptable tolerance of dishonest police evidence, proffered to refute allegations of police misconduct, which would in turn bring the administration of justice into disrepute. It would also signal an unacceptable tolerance of police ignorance of their constitutional obligations. The evidence will therefore be excluded.
[105] Mr. Foreman must therefore be acquitted on the 80 Plus offence.
H. ASSESSMENT OF THE EVIDENCE IN SUPPORT OF THE IMPAIRED DRIVING COUNT
[106] I turn next to the question of whether the Crown has nevertheless established that Mr. Foreman operated his conveyance while his ability to do so was impaired by the consumption of either alcohol or a drug.
[107] The case against Mr. Foreman is a circumstantial one. Where proof of one or more elements of the offence depends solely or largely on circumstantial evidence, the Crown's evidence will not meet the standard of proof beyond a reasonable doubt where there exists reasonable inferences other than guilt: R. v. Villaroman, 2016 SCC 33, [2016] SCJ No 33.
[108] In assessing the circumstantial evidence, I am well aware that I must consider the evidence as a whole, and not in a piecemeal fashion. Nevertheless, it is helpful to look at the various pieces of evidence relied upon by the Crown to assess their cumulative import.
[109] In this case, Mr. Foreman crashed his car into the side of a building. There exists virtually no explanation in the evidence for this collision. As a matter of common sense and human experience, I think it trite to say that accidents like this one may have various causes aside from alcohol impairment. Unfortunately, there are no witnesses to the driving that preceded the accident who might be able to shed light on the vehicle’s path and on Mr. Foreman’s conduct before the accident.
[110] Having regard to the evidence of Mr. Mooney, Mr. Yates, and Cst. McPhee, I find that, in the immediate aftermath of the collision, Mr. Foreman was disoriented, had difficulty with coordination, and had trouble responding coherently with those on the scene.
[111] I also accept Mr. Mooney’s observation that Mr. Foreman’s eyes were glassy and bloodshot.
[112] The firefighters who dealt with Mr. Foreman found it prudent to have him examined by paramedics in the aftermath of the collision and his return to consciousness. The collision itself suggests a reasonable explanation for Mr. Foreman’s physical presentation in its aftermath.
[113] Mr. Foreman’s car was full of refuse and personal belongings. A considerable portion of that refuse included a large quantity of empty alcohol containers, mostly beer cans, both loose and in bags, strewn all over the car. I accept that some of these empties were in close proximity to Mr. Foreman, on the floors and on the passenger side. I also accept that there was some spillage from at least some open cans. However, for reasons already indicated, I reject Cst. McPhee’s tentative claim that she saw an empty bottle of rum in the console of Mr. Foreman’s car.
[114] In addition, I accept that the car smelled of fresh beer/alcohol [as opposed to skunky beer/alcohol], body odour, and feces. I accept that the car was a “disgusting cesspool of filth” as described by Mr. Mooney, that smelled of alcohol, body odour, and feces. The car looked like Mr. Foreman had been living in it; I infer he did.
[115] I should note here, though, that neither Mr. Mooney nor Mr. Yates purported to observe the odour of alcohol emanating from Mr. Foreman’s breath. Only Cst. McPhee purported to make this observation at the scene. She did not, however, record this observation in her notes. Indeed, as mentioned, her notes indicated that she only began to smell the odour of alcohol on Mr. Foreman’s breath at 11:19, when Mr. Foreman had become talkative with the breath technician in the breath room. Given McPhee’s failure to record such a patently relevant ground for arrest in her notes and given my other credibility and reliability concerns about the evidence of Cst. McPhee, I reject her contention that she smelled alcohol on Mr. McPhee’s breath at the scene.
[116] Ironically, the ubiquitous presence of empty cans of beer in Mr. Foreman’s car undermines to some degree the conclusion that he had recently consumed alcohol. I infer by the sheer volume of spent cans that he could not consume all of them at a time proximate to driving. It looked and smelled as if he had been living in his car. His circumstances and those of his car bring to mind the circumstances of some blue box scavengers. Had he only possessed a partially consumed six-pack or twelve-pack on the passenger seat of an otherwise immaculate car, the inference of recent consumption would have been far stronger. As it stands the presence of such a large volume of beer cans and the corresponding odour of beer/alcohol in the car does not lead inexorably to the inference that Mr. Foreman had recently been consuming alcohol.
[117] It was open to the Crown to call Mr. Alward to adduce Mr. Foreman’s alleged “I’m drunk” utterance. That utterance was tendered in hearsay form to support Cst. McPhee’s grounds, but this hearsay evidence is not admissible to prove Mr. Foreman’s impairment.
[118] Given the absence of any admissible observation of the smell of alcohol on Mr. Foreman’s breath, given the absence of any admissible inculpatory utterances by Mr. Foreman, given the general condition of the interior of Mr. Foreman’s car and the plausible corresponding innocent explanations for the odour of alcohol in the car, and given the plausible role of the collision in Mr. Foreman’s post-accident presentation, I am unable to infer from the totality of the evidence in this case that Mr. Foreman had recently consumed alcohol and was impaired by its consumption at the time he drove.
[119] Unquestionably, the unexplained collision with a building, the confusion, the lack of coordination, the lack of coherence, the glossy and bloodshot eyes, and the presence of empty beer cans in the car suggest a likelihood that Mr. Foreman’s ability to operate a motor vehicle was impaired by the recent consumption of alcohol. A proper conviction rests upon more, though.
[120] In the absence of additional evidence, I am unable to conclude beyond a reasonable doubt that alcohol impairment is the only reasonable explanation for the constellation of admissible evidence presented in this case.
[121] Mr. Foreman must therefore be acquitted on the impaired driving charge.
Released: May 5, 2022 Signed: Justice C.A. Parry