ONTARIO COURT OF JUSTICE DATE: 2022 05 11 COURT FILE No.: Newmarket 19-06872
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KRSNA SINGH
Before: Justice Marcella Henschel
Heard on: December 1, 2021, February 16, 2022, and March 30, 2022 Oral Reasons for Judgment given on March 30, 2022. Written Reasons released on May 11, 2022.
Counsel: Ivana Denisov and Nicole Cadman............................................... counsel for the Crown Norm Stanford..................................................... counsel for the defendant Krsna Singh
HENSCHEL J.:
A. Overview
[1] Krsna Singh is charged with refusing to provide a breath sample contrary to s. 320.15 of the Criminal Code. On July 3, 2019, York Regional police received a Crimestoppers tip about a possible impaired driver operating a BMW X6. Dispatch notified officers in the area. DC Dybenko and DC Marissette, who were working in an unmarked police car, and PC Beverly, in a marked police cruiser, responded to the call.
[2] DC Dybenko and DC Marissette drove to the registered owner’s home and waited in the area. A short time later they saw the BMW X6 pull into the driveway. Mr. Singh was the driver of the car. DC Dybenko pulled his vehicle into the driveway behind the BMW and spoke with Mr. Singh. He determined that Mr. Singh had been drinking. PC Beverly arrived, spoke briefly with DC Dybenko, and made an ASD demand to Mr. Singh. Mr. Singh unequivocally refused to provide a sample of his breath. PC Beverly arrested Mr. Singh for failing to provide a breath sample, handcuffed him, and searched him incident to arrest and placed him into the police cruiser.
[3] Once Mr. Singh was in the police cruiser, PC Beverly read him the rights to counsel and cautioned him. Mr. Singh told PC Beverly he needed his phone and said that he wanted to speak to a lawyer. He said his lawyer was Mitchell Warsoff. Mr. Singh was not provided his phone and was not given an opportunity to speak with counsel while he was in the back of the police car. He remained in the back of the police cruiser for approximately half an hour until he was released on a Form 9 Promise to appear.
[4] The essential elements the Crown must prove to establish the offence of failing to provide a breath sample into an approved screening device (ASD) are:
i.) There was a lawful approved screening device demand (ASD);
ii.) Mr. Singh refused to comply with the ASD demand; and
iii.) Mr. Singh had the requisite mens rea – he intentionally or wilfully failed to comply with the demand.
[5] Mr. Singh concedes that he intentionally and unequivocally refused to provide a sample of his breath into an approved screening device. However, he submits that the offence has not been proven beyond a reasonable doubt because the Crown has failed to establish that there was a lawful demand.
[6] Mr. Singh, the applicant, alleges several Charter violations. He submits that the police violated his s.9 right not to be arbitrarily detained, his s. 10(a) right to be informed of the reason for his arrest or detention; and his right to counsel pursuant to s. 10(b) of the Charter. Specifically, it is alleged that:
i.) Police arbitrarily detained him contrary to s. 9 of the Charter when the officers stopped his vehicle on private property and detained him for investigation without a reasonable suspicion that he had committed or was committing an offence;
ii.) Upon his detention he was not promptly advised of the reason for his detention contrary to s. 10(a) of the Charter;
iii.) He was not advised of his rights to counsel immediately upon his detention and there was no lawful basis for the suspension of his rights to counsel and his s. 10(b) rights were infringed;
iv.) He was not given an opportunity to consult with counsel prior to being required to provide a breath sample, notwithstanding that there was a reasonable opportunity for him to do so, violating s. 10(b).
v.) Following his arrest for failing to comply with a breath demand, he was handcuffed and detained in the back of a police officer cruiser for approximately 30 minutes. During this time, he was not permitted to call a lawyer, notwithstanding his requests to do so. It was unnecessary for him to be detained in the back of a cruiser and to be handcuffed given that the officer decided to release him from the scene at approximately 9:48 p.m. His rights under s. 9 and s. 10(b) of the Charter were violated.
[6] The applicant submits that the appropriate remedy for the violations of s. 9, s. 10(a), and s. 10(b) of the Charter is the exclusion of any statements made by the applicant, including any refusal to provide a breath sample pursuant to s. 24(2) of the Charter.
B. Summary of the Evidence
[7] On July 3, 2019, at 9:30 p.m., PC Kyle Beverly was dispatched to respond to a possible impaired driver. The information he received from dispatch was that at 9:28 p.m. a Crimestoppers caller reported that five minutes ago - at 9:23 p.m. - a black BMW X6 with licence plate CHCD 140 was southbound on McCowan Road near Bullock Drive and was swerving all over the road “as if they did not know how to drive straight”.
[8] PC Beverly drove southbound on McCowan Road south of Highway 7 to look for the vehicle and when he did not see it, he continued to the registered owner’s address at 107 Douglas Haig Drive, Markham.
[9] PC Dybenko and PC Marisette were also in the area in an unmarked police car. Their vehicle was not equipped with a mobile data terminal so the information they received about the call was from their police radio. PC Dybenko originally testified that he received information that there was an impaired driver that was having trouble and was swerving all over the road, however, after hearing the radio transmissions, he agreed that the information he received over the radio included the following:
- That a caller had called to report that there was a possible impaired driver;
- The vehicle involved was a black BMW X6 with plate number CHCD 140;
- The vehicle was driving southbound on McCowan Road near Bullock Avenue, in Markham;
- The vehicle and registered owner were on CPIC for a prior police contact related to impaired driving from March 2019; and
- The registered owner’s address was 107 Douglas Haig Drive, Markham.
[10] In cross-examination, PC Dybenko agreed that he did not have any information about the person who called in the tip, had no description of the driver, and did not know if the driver was the owner of the vehicle. [1]
[11] DC Dybenko and DC Marissette were near the registered owners’ address when they received the radio call. They drove to the address at 107 Douglas Haig Drive. When they arrived at 9:35 p.m., they parked on Karen Miles Crescent (a street that intersects with Douglas Haig Drive and that is located near 107 Douglas Haig Drive) to keep watch for the BMW X6. At 9:38 p.m., D.C. Dybenko saw the BMW X6 pull into the driveway of 107 Douglas Haig Drive. He did not notice any unusual driving.
[12] DC Dybenko pulled his police vehicle behind the BMW. He agreed that the driver of the BMW would not have been able to pull out of the driveway because of the position of his police vehicle. He got out of his vehicle and approached the driver’s side of the BMW, which was still running. He asked the driver, Krsna Singh, to turn the vehicle off and to hand him the key. Mr. Singh complied. PC Dybenko asked Mr. Singh to step out and asked him where he was coming from. Mr. Singh got out of his vehicle and told DC Dybenko that he was coming from an auto shop around McCowan Road and Highway 7. PC Dybenko noted that Mr. Singh’s speech was slurred. He asked Mr. Singh if he had anything to drink and he responded that he had a couple of drinks an hour ago.
[13] DC Dybenko testified that he formed a reasonable suspicion that Mr. Singh had alcohol in his body and had been driving. He did not make an approved screening device demand because PC Beverly arrived on scene seconds after he finished speaking to Mr. Singh and took over the investigation.
[14] P.C. Beverly testified that just prior to his arrival at 107 Douglas Haig Drive, DC Dybenko and DC Marissette aired over the radio that the suspect vehicle matching the description from the call had pulled into the driveway of 107 Douglas Haig Drive. PC Beverly arrived at the address at approximately 9:39 p.m. When he arrived, the BMW X6 was in the driveway and a male party was standing beside the driver’s door of the vehicle speaking with one of the CIB officers.
[15] PC Dybenko testified that when PC Beverly arrived, he spoke to him at the bottom of the driveway and told him the information he had learned including that Mr. Singh told him that he had two drinks an hour earlier, that his speech was slurred, and that he had detected alcohol while speaking with Mr. Singh. He remained in the background to help.
[16] PC Beverly testified that he walked up the driveway within three to four minutes of arriving and had a brief conversation with Mr. Singh. He introduced himself and told Mr. Singh why they were investigating him - that he was investigating a call that had been received for a possible impaired driver. Mr. Singh responded that he did not believe that they got a call and believed that they had been following him throughout the night. PC Beverly told Mr. Singh that based on the grounds he had received from D.C. Dybenko, he had reasonable suspicion “to ask for an ASD demand”. Mr. Singh told PC Beverly that he did not want to provide a sample and that he would not do so.
[17] At 9:43 p.m. PC Beverly read Mr. Singh an approved screening device demand from his notebook. He asked Mr. Singh what the demand meant to him and whether he understood the demand. PC Beverly testified that Mr. Singh mumbled something and said he wanted to speak to a lawyer first. He told Mr. Singh that he was not entitled to speak with a lawyer prior to providing an approved screening device sample.
[18] PC Beverly explained to Mr. Singh what would happen if he refused including that his vehicle would be impounded for seven days, his driver’s licence would be suspended, and that it was a criminal investigation, and that he could be charged criminally with refusing to provide a breath sample. He told him that the offence was akin to being charged with “over 80”. During the conversation, the approved screening device was on the hood of his cruiser, parked at the front of the driveway. Mr. Singh stated, “I’m not going to blow”. He said he was not sure of the repercussions of not providing a sample. PC Beverly repeated his explanation about the consequences of failing to provide a breath sample. Mr. Singh refused to accompany PC Beverly to his vehicle and stated that he would not provide a sample and that he would need to be arrested.
[19] At 9:45 p.m., PC Beverly arrested Mr. Singh for refusing to comply with an approved screening device demand.
[20] PC Beverly testified that his grounds for making the approved screening device demand included the initial call information that the vehicle travelled down the road and was unable to maintain its lane [2] and the information he received from DC Dybenko. PC Beverly testified that he believed that Mr. Singh was driving at 9:23 p.m., five minutes before the call was first entered, and he believed that Mr. Singh had consumed alcohol within the past hour. He testified that he formed the suspicion necessary to make the ASD demand.
[21] In cross-examination, PC Beverly agreed that prior to arriving on scene and before speaking with D.C. Dybenko, he did not have a reasonable suspicion that the driver had alcohol in his body. He indicated that at that point, he only knew of the driving behaviour and after he spoke with D.C. Dybenko he learned of the consumption of alcohol.
[22] Following Mr. Singh’s arrest, PC Beverly escorted Mr. Singh to the front of his cruiser and handcuffed him. He searched him incident to arrest and located his wallet and confirmed his identity, date of birth, and that he was the registered owner of the BMW. The search incident to arrest took approximately two minutes. After the completion of the search, as PC Beverly walked with Mr. Singh to the cruiser, he could smell a strong odour of alcohol and he noticed that he was swaying slightly as he walked. PC Beverly placed Mr. Singh in the rear of the cruiser.
[23] At 9:49 p.m. PC Beverly read Mr. Singh the rights to counsel and asked him if he understood and if he wished to contact a lawyer. Mr. Singh responded “Yes, yes I need my phone”. He said that he had a lawyer named Mitchell Warsoff. At 9:50 p.m. PC Beverly read Mr. Singh the caution, and he responded that he understood.
[24] PC Beverly told Mr. Singh that he would be released at the roadside, and once released he could contact his lawyer from a more private environment. Mr. Singh was released at 10:19 p.m.
[25] PC Beverly agreed that Mr. Singh’s vehicle was boxed in. His home was in front of his vehicle and directly behind it was PC Dybenko’s CIB police vehicle, and there were other vehicles beside it.
C. Was there a violation of s. 9 of the Charter?
[26] The question at issue in this case is:
Is a police officer authorized to stop and question a person on the person’s own private property to determine if the person is impaired after receiving information that the driver of the vehicle may be impaired?
[27] I am not satisfied that the applicant has established that there was a violation of s. 9 of the Charter on a balance of probabilities. I am satisfied that when the police officers approached Mr. Singh in his driveway, they were investigating a legitimate public safety concern created by a potential impaired driver and their actions involved a justifiable use of police powers associated with the general police duty to prevent crime (impaired driving) and to protect life and property (the harms associated with impaired driving). [3]
[28] Mr. Sandford relies upon R. v. McColman, 2021 ONCA 382, in support of the s. 9 application. In McColman, the police saw the accused persons vehicle leave the parking lot of a restaurant and decided to conduct a random sobriety check under s. 48 of the Highway Traffic Act. Before the officers stopped the accused’s vehicle, he pulled into his driveway. The police followed the vehicle into the driveway and activated their cruiser lights. The officers approached the driver who had also exited his vehicle. The officers did not have a reasonable suspicion that the driver was connected to any crime. After the officers observed signs of intoxication, he was arrested and subsequently charged with impaired driving and operating a motor vehicle “over 80”.
[29] McColman was not a case where the driver was reportedly swerving all over the road prior to the stop and there was no Highway Traffic Act (HTA) violation observed by the officers.
[30] The trial judge in McColman concluded that the stop was authorized under s. 48 of the Highway Traffic Act, and that there was no violation of s. 9 of the Charter, a finding found to be in error on summary conviction appeal. The Crown appealed the findings of the summary conviction appeal court, and the Ontario Court of Appeal characterized the issue before the court at para. 5:
Should a police officer be authorized to stop and question a person on the person’s own private property to determine if the person may have been driving while impaired, when that police officer has no reason to suspect that the person has been drinking? [Emphasis added]
The question in McColman, involving a random stop on a driveway, was different than the question to be determined in this case.
[31] In McColman, the Court of Appeal concluded that neither the HTA nor the common law authorized the police conduct and concluded that the stop violated s. 9 of the Charter. The Court held that the evidence obtained, including breath test results, was properly excluded by the summary conviction appeal judge under s. 24(2) of the Charter.
[32] McColman is distinguishable because in this case the police did not randomly stop Mr. Singh under the HTA in order to check his sobriety. The officers had reasonable grounds to suspect that Mr. Singh’s vehicle posed a driving hazard to the public endangering the safety of the community. The police had reason to investigate the driver for impaired driving. There was a clear nexus between Mr. Singh’s vehicle and recent or ongoing driving that might pose a danger to the public.
Police Had Reasonable Grounds to Suspect that the Driver Posed a Danger to Public Safety
[33] In R. v. Simpson, (1993), 12 O.R. (3d) 182 (C.A.), the Ontario Court of Appeal defined reasonable grounds to suspect as involving “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”.
[34] In R. v. Kang-Brown, 2008 SCC 18, at paras. 75-79 the Supreme Court of Canada defined reasonable suspicion, explaining that “suspicion” is an expectation that the targeted individual is possibly engaged in some criminal activity. A “reasonable suspicion” means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. It is not a high threshold but must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. It is a standard lower than on a balance of probabilities and lower than reasonable grounds and is the same as articulable cause.
[35] DC Dybenko was investigating a recent report of a possible impaired driver involving the BMW X6 driven by Mr. Singh. The report was received by dispatch at approximately 9:28 p.m. and by the officers at 9:30 p.m. PC Beverly testified that he was advised that the driving occurred approximately five minutes earlier (at 9:23 p.m.). At 9:38 p.m., PC Dybenko saw Mr. Singh operating the BMW X6 immediately before PC Dybenko pulled into the driveway behind him. He asked Mr. Singh where he was coming from, noted that his speech was slurred, and asked him if he had been drinking.
[36] The information in the possession of DC Dybenko at the time he first approached Mr. Singh included the following:
- A caller reported that there was a possible impaired driver;
- The vehicle involved was a black BMW X6 with plate number CHCD 140;
- The vehicle was driving southbound on McCowan Road near Bullock Avenue, Markham;
- The vehicle and registered owner were on CPIC for a prior police contact related to impaired driving from March 2019; and
- The registered owner’s address was 107 Douglas Haig Drive, Markham.
[37] PC Beverly arrived on scene moments after PC Dybenko and possessed the additional information that the Crime Stoppers tipster reported that five minutes ago (at 9:23 p.m.) a black BMW X6 with licence plate CHCD140 was southbound on McCowan Road near Bullock Drive and was swerving all over the road “as if they did not know how to drive straight”.
[38] Mr. Stanford cross-examined DC Dybenko and PC Beverly on whether and at what point in time they formed a reasonable suspicion that Mr. Singh had alcohol in his body. DC Dybenko said he formed the suspicion that Mr. Singh had alcohol in his body and had been driving after he finished his questions with Mr. Singh.
[39] PC Beverly testified as follows, at p. 33 of the transcript:
Q. And it’s fair to say that when you arrived on scene, before speaking with D.C. Dybenko, you didn’t have a reasonable suspicion that the driver had alcohol in his body?
A. That time, for myself, no. I just knew there had been some sort of driving hazard, so to say, or unknown driving behaviour, and then once I briefed with D.C. Dybenko he informed me of the alcohol consumption.
[40] While PC Dybenko and PC Beverly’s reasonable grounds to suspect that Mr. Singh had alcohol in his body may not have crystallized until after PC Dybenko’s conversation with Mr. Singh, I am satisfied that prior to that the officers had reasonable grounds to suspect that the person operating BMW X6 with plate CHCD 140 posed a driving hazard to the public endangering the safety of the community.
[41] In respect of the Crimestoppers tip, Mr. Stanford submitted that it was unconfirmed, uncorroborated, and was not compelling. However, in my view this is not the case. A Crimestoppers tip can be “corroborated” without independent evidence of the illegal aspects of the tip.
[42] The Crimestoppers tip was very recent, and the following was confirmed or corroborated by the officer’s observations prior to any dealings with Mr. Singh:
- A black BMW X6 with the exact plate described by the caller existed;
- The vehicle with the exact plate described by the caller was being driven in the general area described by the caller and at the time described by the caller;
- Finally, the fact that the registered owner had a prior contact with the police in relation to impaired driving (although without more detail was of limited value) formed part of the constellation of circumstances known to the officers that supported the reasonable suspicion that the driver posed a hazard or a danger to public safety.
[43] The onus of establishing a section 9 Charter violation lies with the applicant. While counsel for the applicant cross-examined the officers about when they formed reasonable grounds to suspect Mr. Singh had alcohol in his body, he did not cross-examine the officers about the point in time when they had reasonable grounds to suspect that the driver of the BMW X6 posed a hazard or danger to the community.
[44] I am satisfied, that the officers subjectively had reasonable grounds to suspect that the person driving the BMW X6 posed a hazard or danger to public safety as a result of their driving and that this belief was objectively reasonable. I am satisfied that objectively DC Dybenko had sufficient information to meet the reasonable grounds to suspect standard, even without the more detailed information about the nature of the driving that was in the possession of DC Beverly. This was a legitimate traffic investigation.
The Police Acted Within the Scope of Their Ancillary Powers
[45] I am satisfied that in accordance with the ancillary powers doctrine, the police were entitled to approach Mr. Singh on his driveway to investigate the reason for the danger created by his driving. The stop was authorized by the common law police power to prevent crime and to protect life and property and the common law power to stop a vehicle in the course of protecting public roadways. [4]
[46] The ancillary powers doctrine holds that police actions that interfere with individual liberty can be recognized under the common law if they are “ancillary” to the pursuit of recognized police duties, provided that the police action is reasonably necessary for fulfillment of that duty.
[47] The ancillary powers doctrine involves a two-stage inquiry which asks the following questions:
(1) whether the police action at issue falls within the general scope of a statutory or common law police duty.
(2) whether the proposed expansion involves a justifiable exercise of police powers associated with the general police duty or duties in question. Is the police action reasonably necessary for the fulfillment of the duty or duties?
[48] In R. v. Dedman, [1985] 2 S.C.R. 2, at p. 35, the Supreme Court of Canada explained that the interference with liberty “must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference”.
[49] The concept of reasonableness requires the court to consider whether, other less intrusive measures are available or there are other valid options in the circumstances. If the police can fulfill their duties “by an action that interferes less with liberty the purported power is clearly not reasonably necessary”.
[50] In R. v. Macdonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 37, the Supreme Court instructed the courts to weigh three factors in this determination:
(1) The importance of the duty to the public good;
(2) The necessity of the interference with individual liberty for the performance of the public duty;
(3) The extent of the interference with individual liberty.
[51] The onus remains with the state to justify the existence of common law police powers that involve the interference with liberty. [5]
[52] A review of these factors establishes that the police conduct in this case fell within the scope of their ancillary powers. Whether on public or private property driving remains a licensed activity subject to regulation and control in the interests of safety. Mr. Singh was in the driver’s seat and his vehicle was still running when he first interacted with DC Dybenko. The fact that driving is a regulated activity must be balanced against the heightened liberty interest in one’s own private property. [6]
(1) Investigating a possible impaired driver was of vital importance to the safety of the public. It was essential to the public good;
(2) It was necessary that the officer be able to interact with Mr. Singh in his driveway to investigate the complaint of impaired driving and to prevent, if Mr. Singh as the driver of the BMW X6 was impaired, a continuing danger to the public, should he choose to drive again that evening;
(3) The extent of the interference with individual liberty was limited, involving a conversation with Mr. Singh in his driveway that took less than five minutes. While Mr. Singh enjoyed a reasonable expectation of privacy in his driveway, it is a lesser expectation than the expectation of privacy that exists in a home, and one that is further reduced in the context of driving, a regulated activity.
[53] In McColman, the Crown argued that the power to conduct random stops was required as part of the general enforcement powers to combat impaired driving. The court in reaching the conclusion that the random stop in the driveway violated s. 9, was of the view that there were other less intrusive, Charter compliant means of enforcement at the disposal of the police in combatting impaired driving including:
i.) The common law power to conduct Reduced Impaired Driving Everywhere (R.I.D.E.) programs;
ii.) The statutory power under the HTA to stop drivers without any grounds for the purpose of checking their sobriety, so long as the statutory preconditions are met; and
iii.) The common law power to stop a driver for an investigative detention based on reasonable suspicion.
[60] This case engages very different considerations than those in McColman in which the court was considering the appropriate scope of generalized powers to deter and investigate impaired driving when there are no grounds to suspect that an offence has been committed and no particular safety concerns. In McColman, the Court found that the Crown had not met its onus that it was reasonable and necessary for the police to pursue and detain an individual on their own property without any suspicion of wrongdoing. This case involves circumstances where there is a specific safety concern that has been identified regarding possible impaired driving and a specific vehicle. [7]
[54] As in R. v. Lotozky, (2006), 81 O.R. (3d) 335 (C.A.), the officers in this case had a legitimate basis for entering the driveway and acted within the implied licence to enter the driveway. In my view, as the court concluded in Lotozky, it would not make sense, where officers are investigating a specific complaint of impaired driving, to view the officer’s actions as legitimate if their interaction occurred moments before and feet away on the roadway and illegitimate if the actions occurred on the driveway. [8]
[55] Although, it was not explicitly referenced by the officers as a factor in this case, there are safety reasons why officers may choose to interact with an individual after they have stopped their vehicle in their driveway rather than seeking to stop the driver on the roadway. Pulling behind the vehicle after it has stopped in the driveway may avoid a police pursuit, or a situation where an individual, who reportedly poses a safety hazard, decides to continue their driving on public roadways rather than immediately stopping for the police. It may reduce the risk to an officer dealing with a driver who poses a safety hazard at the side of the roadway.
[56] In Lotozky the Ontario Court of Appeal stated as follows, at paras. 38 and 39:
There are other reasons for viewing the officers’ actions as legitimately within the scope of the implied licence. It would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed chase. Further, until the impaired driving complaint was investigated there was a risk that an impaired driver would re-enter the vehicle and drive while impaired. It is not reasonable to expect the police to devote resources to waiting outside the motorist’s house until he or she returns to the street.
[57] Any detention that flowed from the police vehicle being parked behind Mr. Singh’s vehicle was not an arbitrary detention. PC Dybenko and PC Beverly were engaged in the lawful execution of their duties in investigating an allegation of possible impaired driving.
[58] I am satisfied that PC Dybenko was in the lawful execution of his duties when he interacted with Mr. Singh in his driveway. His actions, investigating a report of a possible impaired driver, fell within the general scope of a statutory or common law police duty. The conduct was a justifiable exercise of police powers associated to the police duty to protect public roadways and to investigate impaired driving. The police action was reasonably necessary for the fulfillment of the duty or duties.
[61] Given my conclusion that the police were authorized under the ancillary powers doctrine to approach Mr. Singh in his driveway to protect the public roadways and to investigate a possible offence of impaired driving, I am satisfied that the stop was lawful and did not breach Mr. Singh’s s. 9 Charter rights.
D. Was there a breach of Section 10(a) of the Charter?
[59] Section 10(a) of the Charter provides:
Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor.
[60] Once a person had been detained or arrested the police must promptly advise the person of the reason for the arrest or detention unless the circumstances are such that he or she knows why they have been detained. “The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed”. [9]
[61] I am satisfied that Mr. Singh was informed promptly of the reasons for his detention. The circumstances clearly communicated to him the reasons for his detention. I am not satisfied that the applicant has established a breach of s. 10(a) of the Charter on a balance of probabilities.
[62] The interaction between DC Dybenko and Mr. Singh was extremely brief. During his interaction with Mr. Singh, DC Dybenko asked Mr. Singh whether he had consumed any alcohol. I am satisfied, that when DC Dybenko asked Mr. Singh if he had been drinking, in the context of being asked to step out of his vehicle and provide the officer with the keys to his vehicle, that Mr. Singh understood that he was being investigated for drinking and driving.
[63] I accept the evidence of PC Beverly, who dealt with Mr. Singh a minute later, that when he approached Mr. Singh, he introduced himself and told Mr. Singh that he was investigating a call that had been received for a possible impaired driver. Mr. Singh responded that he did not believe that they got a call and said he believed that they were following him throughout the night.
[64] During cross-examination, Mr. Sandford suggested to PC Beverly that he did not advise Mr. Singh of the reason why he was being stopped when he first spoke to him. Mr. Sandford pointed out that the officer made no note of having advised Mr. Singh of the reason for the stop when he first spoke with him and played a portion of the ICC recording at approximately 9:53 p.m. when Mr. Singh asked PC Beverly why the police stopped him.
[65] PC Beverly disagreed with the suggestion that he did not inform Mr. Singh of the reason for the stop until 9:53 p.m. and explained that there were multiple times that Mr. Singh asked the same questions and he had to repeat himself. He indicated that there were a number of “looping” conversations throughout his dealings with Mr. Singh, noting that Mr. Singh asked him again following his release why the officer had been following him. He said that on several occasions Mr. Singh was saying things that did not make sense.
[66] Given Mr. Singh’s earlier indication that he did not believe that PC Beverly was investigating a report of impaired driving, it is not surprising that Mr. Singh asked PC Beverly in the back of the police cruiser why he stopped him. I accept PC Beverly’s evidence that this question was part of Mr. Singh’s ongoing assertion that he did not believe that the officers had received a call and was a part of an ongoing looping conversation that I accept occurred and that PC Beverly attributed to the effects of alcohol.
[67] PC Beverly arrived on scene at 9:39 p.m., he had a brief conversation with PC Dybenko. When he approached and spoke with Mr. Singh the ASD device was on the hood of the nearby cruiser. Within three or four minutes of his arrival, and immediately after the brief conversation with Mr. Singh he told Mr. Singh that based on the grounds he had received from DC Dybenko that he had a reasonable suspicion “to ask for an ASD demand”. Mr. Singh told PC Beverly that he did not want to provide a sample and that he would not do it. At 9:43 p.m. PC Beverly read Mr. Singh the approved screening device demand. Mr. Singh’s initial refusal when the officer told him that he had the reasonable suspicion necessary to make an ASD demand, the content of the formal demand, in the context of all of the circumstances make clear that the reason for the detention was conveyed and satisfy me that Mr. Singh understood the reason for his detention.
[68] I further note that there was no evidence tendered by Mr. Singh on the s. 10(a) application in support of his assertion that when PC Dybenko asked him if he was drinking that he did not understand that he was being investigated for drinking and driving, or that when he dealt with PC Beverly that he failed to understand the reason for his detention.
[69] I am not satisfied that the applicant has established a breach of s. 10(a) of the Charter on a balance of probabilities.
E. Was there a violation of section 10(b) of the Charter and did PC Beverly arbitrarily detain Mr. Singh in the rear of the cruiser until his release?
[70] For a detention to be “non-arbitrary” it must be authorized by a law which is itself non-arbitrary. [10] I am satisfied that the applicant was lawfully arrested without warrant. PC Beverly had reasonable grounds to believe that an offence under s. 320.15 had been committed.
[71] What is at issue is the continued detention of the applicant. At the time of the offence, the release from custody by a peace officer was governed by s. 497 of the Criminal Code. Section 497 required a peace officer to release a person in custody “as soon as practicable”. It provided as follows:
497(1) Release from custody by peace officer
Subject to subsection (1.1) if a peace officer arrests a person in custody for an offence described in s. 496(a), (b), or (c), the peace officer shall as soon as practicable
(a) Release the person from custody with the intention of compelling their appearance by way of summons; or
(b) Issue an appearance notice and then release them,
(1.1) Exception – The peace officer shall not release the person if the peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii.) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
[72] During the time that Mr. Singh was under arrest. I accept that it was appropriate for the officer to maintain control of Mr. Singh by detaining him in the rear of the cruiser. I accept that PC Beverly could more effectively communicate with Mr. Singh in a stationary location in the back of the police vehicle and that it allowed PC Beverly to more effectively complete the provision of the rights to counsel and the tasks necessary to release Mr. Singh as soon as practicable.
[73] While Mr. Singh was seated in the back of the cruiser, PC Beverly noted that the smell of alcohol was strong, and that Mr. Singh appeared confused, noting that he confused his cap for a manikin and that he repeated himself and engaged in looping conversation. PC Beverly believed that Mr. Singh had alcohol in his system and that it was influencing his behaviour.
[74] In cross-examination when asked why he did not provide Mr. Singh with the rights to counsel after handcuffing him rather than asking him if he owned the car and asking for his birthdate, PC Beverly responded that he wanted to conduct the search to make sure he had everything and that there were no items in Mr. Singh’s pocket that could be used to escape. PC Beverly explained that he believed that they could have a more formal conversation in the cruiser without any distractions outside or other officers around. He indicated that he wanted to ensure that Mr. Singh understood the rights to counsel properly and that the conversation about rights to counsel was more complicated than the brief conversation he had with Mr. Singh about his identity.
[75] Regarding implementation of the rights to counsel, PC Beverly agreed that after Mr. Singh was read the rights to counsel and said that he needed his phone he never asked him where his phone was and never considered allowing him to have access to his phone while he was in his custody. No evidence was tendered in the application regarding the whereabouts of Mr. Singh’s phone.
[76] PC Beverly testified that he did not consider allowing Mr. Singh to contact counsel from the cruiser because he could not afford Mr. Singh privacy in the cruiser because the ICC audio recording would capture the conversation. PC Beverly testified that although he could shut off the recording, he did not want to do so while Mr. Singh was in custody in the rear of the police cruiser because he wanted to ensure that there was a continuous recording while Mr. Singh was in handcuffs and in custody in the back of the cruiser. In addition, he was also concerned about overhearing Mr. Singh’s conversation with counsel if he stood outside while the conversation was taking place. He said that while Mr. Singh was in his custody he was not going to walk away from the cruiser. PC Beverly indicated that he considered that Mr. Singh would be released from the scene and would be able to make a private phone call where he pleased following his release. He testified that he did not feel comfortable removing Mr. Singh’s handcuffs until he was released from custody, although he agreed he could have handcuffed Mr. Singh in front so he could make a phone call.
[77] PC Beverly agreed that after Mr. Singh said that he wanted to speak to a lawyer he asked Mr. Singh background information required for the release documents and tow information, including a question about his occupation, but he testified that he did not ask Mr. Singh any questions that were related to the investigation or intended to illicit incriminating evidence.
[78] In cross-examination, PC Beverly agreed that he decided to release Mr. Singh at the scene prior to placing him the rear of the police car. He acknowledged that the ICC recording demonstrated that while searching Mr. Singh outside of the cruiser, at approximately 9:48 p.m., he told PC Selvaratnum, a second uniformed officer on scene, that Mr. Singh would be released “from here”. PC Beverly agreed that at that point he had decided to release Mr. Singh, barring receipt of any new information he received while querying him, such as other outstanding charges, or previous convictions. He acknowledged that while en route to Douglas Haig Drive he received information about the registered owners background, and that he confirmed that Mr. Singh was the registered owner during the search incident to arrest. PC Beverly agreed that by 9:48 p.m. he had decided that Mr. Singh would be released from the scene “as long as he agreed to attend court”.
[79] In response to questions about why he did not release Mr. Singh before completing the towing documents, PC Beverly testified that PC Selvaratnam was dealing with the towing of the vehicle, but all of the paperwork is done simultaneously in the police car including messaging dispatch to order a tow, writing the documents for the Form 9 as well as inputting information into the mobile data terminal. He explained that the way the program is set up a second officer cannot separately complete the towing information. The same officer who inputs the court date in the system, must input the drivers licence information, the MTO information, the release documents, and the tow slip.
[80] PC Beverly agreed that Mr. Singh was in the back of the police vehicle for approximately half an hour. When asked whether it was necessary to keep Mr. Singh in the police vehicle during this time, PC Beverly responded that he felt it was necessary because Mr. Singh was under the influence of alcohol, and he did not want him walking around. He explained that if a person under arrest is in the police vehicle, he knows he is in a secure environment and that he has full custody over him while he is under arrest. He testified that having Mr. Singh in the police vehicle would enable him to complete the release documents and related documentation more efficiently, noting that if Mr. Singh is in the police vehicle, he is available to answer any questions necessary to complete the paperwork. PC Beverly advised that the tow documents and POA documents are completed and printed using the mobile data terminal in the police vehicle and the release documents are completed by hand but need to be entered into the mobile data terminal in the police cruiser.
[81] I note that s. 497 of the Criminal Code contemplates release after the issuance of an appearance notice and I accept that the most efficient and safe means of releasing Mr. Singh as soon as practicable was for the PC Beverly to complete the necessary paperwork in the cruiser with Mr. Singh seated in the cruiser.
[82] PC Beverly agreed that while he was in the rear of the police vehicle Mr. Singh asked for the handcuffs to be removed and he told him that he had to wear them while in custody. PC Beverly testified that there is a York Regional Police Policy that while an accused person is in custody, handcuffs are to be applied to the rear. He indicated that once a detainee is in a more controlled environment, like a police station, handcuffs may be removed. I accept that at the roadside there are greater risks at play for officer safety than in the more controlled environment of a police station.
[83] PC Beverly indicated that when a person is under arrest, he is trained to utilize handcuffs to prevent any attempt to escape and he is trained to ensure that he has full control over a situation when a person is in custody. He conceded that Mr. Singh was cooperative that evening and made no attempt to escape but added that he was dealing with Mr. Singh within minutes of the arrest, and he did not know what his state of mind was and needed to make sure he had full control over the situation. He said that in the moment he did not believe that Mr. Singh was going to try to flee the scene, however he explained that he did not want to provide him with a moment of opportunity, even though there was nothing to suggest he was a dangerous person, because he was under the influence of alcohol and did not know what his actual state of mind was.
[84] I accept that even though Mr. Singh had not engaged in any specific conduct to cause PC Beverly to believe he was a dangerous person, it was reasonable for PC Beverly to maintain control of Mr. Singh while he was under arrest. PC Beverly had never had any dealings with Mr. Singh previously, he had reason to believe that Mr. Singh may be unpredictable because he was under the influence of alcohol, and it was reasonable that the officer did not want him walking around as he sought to provide him with the rights to counsel and complete the tasks necessary for his release. He did not know Mr. Singh’s state of mind and his decision was reasonable having regard to the information he had about the driving prior to the arrest, the refusal, and the fact that while Mr. Singh was in the back of the police cruiser PC Beverly noted that the smell of alcohol was strong, and Mr. Singh appeared confused and was repeating himself and engaged in looping conversation.
[85] I accept that PC Beverly was trained that he was responsible for a person in police custody and is trained to maintain full control of an individual in police custody. He was trained to utilize handcuffs to prevent any attempt to escape. In my view courts should be reticent to second guess police training aimed at ensuring the safety of officers and persons in custody at the roadside. I do not have a sufficient evidentiary foundation in this case to conclude that decision of PC Beverly to place Mr. Singh in the rear of the police cruiser pending his release was arbitrary.
[86] I am satisfied that Mr. Singh was released as soon as practicable and was not arbitrarily detained during the period he was in the back of the police cruiser between approximately 9:48 p.m. and 10:19 p.m. He was released after PC Beverly provided him with the rights to counsel and caution, explained the court process to him and provided him with his release documents, tow slip, and items that were seized incident to arrest.
[87] I am satisfied that PC Beverly complied with his section 10(b) right to counsel informational and implementational duties. I am satisfied that the rights to counsel were provided “immediately” upon arrest and that prior to the provision of the rights to counsel, they were suspended. While the officers were taking investigative steps to determine whether there were grounds to make a screening device demand, the right to counsel was suspended and the suspension in this context is a reasonable limitation that is justified under s. 1 of the Charter. [11]
[88] Mr. Singh was read the rights to counsel within minutes of his arrest. Before reading him the rights to counsel, PC Beverly completed the search incident to arrest, and confirmed Mr. Singh’s identity. He was entitled to complete these steps necessary to officer safety, prior to providing the rights to counsel. I accept PC Beverly’s explanation that he wanted to read the rights to counsel to Mr. Singh from the back of the police car to ensure an appropriate setting where Mr. Singh could hear and understand the rights to counsel and where they would not be interrupted.
[89] I accept PC Beverly’s conclusion that there was not a reasonable opportunity to give Mr. Singh access to counsel at the roadside prior to his release. Upon his release at 10:19 p.m. Mr. Singh could contact whatever counsel he chose whenever he chose to do so, and I am not satisfied that there was an earlier practical opportunity for Mr. Singh to be put in contact with a lawyer. I accept PC Beverly’s determination that he could not provide adequate privacy to Mr. Singh while he was in the back of the police cruiser.
[90] In my view, it would be inadvisable to suggest that officers should stop a recording of a person in custody in handcuffs in the rear of the police cruiser for any period. It would leave officers in a precarious position should an accused person later allege police misconduct at the roadside. I also accept PC Beverly’s indication that he did not want to leave Mr. Singh unattended in the rear of the police vehicle.
[91] The offence of refusal was already complete by the time of Mr. Singh’s arrest. Had PC Beverly taken the time to gather information about the whereabouts of Mr. Singh’s phone, look for and retrieve Mr. Singh’s phone, and implement the rights to counsel from the rear of the police cruiser, it would potentially have significantly lengthened the period of time spent in custody by Mr. Singh. In addition, while Mr. Singh told the officer he needed his phone, there was no evidence tendered about the whereabouts of Mr. Singh’s phone.
F. Section 24(2) of the Charter
[92] If I am wrong and there was a violation of s. 9, 10(a) or 10(b) of the Charter, I am not satisfied that the evidence should be excluded under s. 24(2) of the Charter.
[75] Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter. Section 24(2) of the Charter requires the Court to exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The accused bears the burden of establishing this on a balance of probabilities. [12]
[49] According to the Supreme Court of Canada’s decision in Grant [13], there is a three-pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following factors:
(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. [14]
[50] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account. In my view consideration of these governing principles leads to the conclusion that the evidence of the applicant’s refusal is admissible.
[93] In respect of the seriousness of the Charter infringing state conduct, the s. 9 violation was not serious. I accept that the officers were acting in good faith. There is nothing in the evidence to suggest that the officers made a wilful or conscious decision to disregard the applicant’s Charter protected rights. The law regarding the authority of the officers to continue to investigate a report of a possible impaired driver once the driver has pulled into the driveway was unsettled. Prior authority from the Ontario Court of Appeal and Superior Court in cases such as Lotozky, supra, R. v. Soal, at paras. 17 to 29 and the Saskatchewan Court of Appeal decision in R. v Anderson, 2014 SKCA 32 suggested that an officer could continue an investigation onto a driveway.
[94] If McColman, when applied to the facts of this case, determined otherwise, the decision had not been rendered at the time of this incident, and even after it was released is factually distinguishable because it dealt with a random stop. In this case, unlike McColman, at para. 85, the officers were not acting without suspicion of wrongdoing and were not randomly stopping Mr. Singh. It would be unfair to the officers to suggest that at the time of the incident the law was clear.
[95] Secondly, any detention was very limited, and the interference was minimal. Mr. Singh voluntarily stopped in his driveway, he was not pulled over and PC Dybenko’s conversation with Mr. Singh was extremely brief. Had it been determined that he had not been consuming alcohol, the contact would have been over in moments.
[96] Any interference with a reasonable expectation of privacy, occurred in a setting where there was a reduced expectation of privacy. Mr. Singh was not in a home. He was still operating a motor vehicle, a licenced activity and he was on a driveway, a place where the officer or any member of the public could have walked up the driveway and spoken to him.
[97] The complaint is that the officers erred in stopping Mr. Singh on his driveway instead of feet away on the street, where counsel concedes they could have lawfully conducted the investigation. In Lotozky, at para. 45, the Court in concluding that if there was a breach of s. 9 of the Charter, that the evidence should not be excluded, observed that “had the officers exercised their powers under the Highway Traffic Act, as they were fully entitled to do, or had the accused parked his vehicle on the curb, instead of on the driveway, there would have been no violation of the Charter”. In addition, an officer could have approached Mr. Singh on foot and simply spoken with him without detaining him.
[98] I recognize that in McColman the Court of Appeal found that the breach was serious, and that the impact was significant and ultimately concluded that the evidence should be excluded. However, central to the determination in McColman was the Courts concern about the intrusive nature of a police power to arbitrarily and randomly stop and question people on their own property where there are no grounds to suspect that an offence has been committed and no particular safety concerns. The Court was concerned about the danger for the abuse of power should they enable officers to pursue random stops onto private property by simply articulating an intention to stop the vehicle prior to it entering onto private property. These are not the circumstances of this case. The police did not select Mr. Singh at random. They were investigating a specific complaint of suspected impaired driving related to the vehicle operated by Mr. Singh. [15]
[99] As noted above, in my view, objectively the police were in possession of information that supported reasonable grounds to suspect that Mr. Singh was committing the offence of impaired driving or another offence (such as dangerous driving) based on the totality of information that was available to them, even if PC Dybenko and PC Beverly had not subjectively formed a reasonable suspicion that he had alcohol in his body.
[100] If there was not objectively a reasonable suspicion, this is a case that was very close to the line. The police, although not PC Dybenko personally, had received information that the vehicle was “swerving all over the road as if the driver did not know how to drive” and that the registered owner was associated with a prior contact for impaired driving. This is not a case where the police were interacting with the driver for no reason. There were important public safety considerations in play. There was information “available to” the police that was capable of establishing reasonable suspicion that Mr. Singh was associated to a criminal offence, prior to any contact with him.
[101] I recognize that in this case what is sought to be excluded is a refusal, a statement of the accused. However, the refusal occurred as a part of PC Beverly’s attempt to administer an approved screening device test. The Court of Appeal has made clear the limited impact of the breath testing procedure on an accused’s Charter protected rights. The second factor in the s. 24(2) analysis will usually favour the admission of the evidence of the results of approved screening device breath samples. [16]
[102] Indeed, in Grant the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive". In my view, consistent with these findings the refusal to provide a such a sample, made during an attempt to complete an approved screening device test has a limited impact on the accused’s Charter protected rights. [17]
[103] Finally, there is the question of society’s interest in adjudication of the case on its merits. In my view, the truth-seeking function of the criminal process is better served by the admission rather than the exclusion of the evidence and this factor weighs strongly in favour of the admission of the evidence. Mr. Singh’s refusal constitutes the actus reus of the offence. Its admission is essential to the Crown’s case. The admission of the refusal would clearly serve the truth-seeking process more than would its exclusion. The public has long had a very strong interest in dealing with “drinking and driving” cases on their merits. The societal interest in a criminal trial on its merits would be seriously undermined if the critical evidence were excluded. This third prong of the analytical framework under 24(2) of the Charter strongly favours admission of the evidence.
[104] In respect of the other alleged breaches under s. 10(a), s. 10(b) and s. 9 (relating to Mr. Singh being held in the cruiser), in my view if there was a section 10(a) breach it was extremely brief and was remedied prior to the refusal. If Mr. Singh did not initially understand the reason for his detention when speaking with PC Dybenko, he clearly would have understood the reason for his detention when he was provided with the approved roadside screening demand by PC Beverly. This was not a serious breach and had a limited impact on Mr. Singh.
[105] In relation to the alleged s. 10(b) breach and s. 9 breach regarding Mr. Singh’s detention in the rear of the cruiser and the officer’s decision not to allow Mr. Singh access to counsel at the roadside, these alleged breaches were not serious. The officer was acting in good faith and decided not to afford Mr. Singh with the opportunity to speak with counsel from the roadside because he did not believe he could provide sufficient privacy, did not believe that he should shut off his camera, and did not want to walk away and leave Mr. Singh unattended while in the cruiser. He sought to release Mr. Singh at the scene as quickly as possible.
[106] The impact on Mr. Singh’s Charter protected rights in relation to the alleged s. 10(b) breach and alleged arbitrary detention in the cruiser is minimal. While I recognize that a temporal connection is sufficient to engage s. 24(2) of the Charter, the nexus between the evidence sought to be excluded and these alleged breaches is weak. The offence was already complete by the time of these alleged breaches. The evidence sought to be excluded had already been obtained and did not flow from the alleged breaches. In context there was a delay of the opportunity to consult with counsel until Mr. Singh was released at the scene, rather than a complete denial of the right to counsel. In addition, in relation to this alleged s. 9 breach, if Mr. Singh was not detained in the back of the cruiser with handcuffs, he nonetheless would not have been free to leave until the officer provided him with the release documents.
[107] As noted above, society’s interest in the adjudication of the case on its merits weighs in favour of the admission of the evidence.
[108] A consideration of the relevant factors in totality in my view supports the admission rather than the exclusion of the evidence.
G. Conclusions
[109] In light of my conclusions that there were no violations of s. 9, 10(a) or 10(b) of the Charter, and that the evidence should not be excluded, I am satisfied that the Crown has proven beyond a reasonable doubt that:
i.) There was a lawful approved screening device demand made;
ii.) Mr. Singh unequivocally refused to comply with the ASD demand;
iii.) Mr. Singh intentionally refused to comply with the ASD demand.
Accordingly, there is a finding of guilt.
Released: May 11, 2022 Signed: Justice Marcella Henschel
[1] PC Dybenko included in his notes that the caller had advised that the vehicle was swerving all over the road. It was suggested to him that he did not have this information at the time of his first contact with Mr. Singh and received it after the fact and included it in his notes because he made his notes at a later point in time. PC Dybenko initially testified that he may have called dispatch using his cellular phone and received the additional information about the vehicle swerving all over the road through a conversation with dispatch. However, after reviewing his cellular phone records, he agreed that the records did not reflect a conversation with dispatch prior to his initial contact with Mr. Singh and he agreed that the only information he received was the radio communications.
[2] PC Beverly obtained information from dispatch from both the radio communications and from his mobile computer terminal including that the vehicle was swerving all over the road as if the driver did not know how to drive.
[3] McColman, at paras. 62 and 64. Police Services Act, R.S.O. c. P. 15., s.42.
[4] McColman, at paras. 46-48.
[5] McColman, at paras. 52 to 56.
[6] McColman, at para. 60.
[7] McColman, at paras. 41, 48, 58, 62, 67 and 72.
[8] See also R. v. Soal, and R. v. Anderson, 2014 SKCA 32.
[9] R. v. Nguyen, 2008 ONCA 49, at para. 16 citing Christie v. Leachinsky, [1947] A. C. 573 (Y.K.H.L.). See also R. v. Perez Mejia, 2019 ONCJ 129, at paras. 99-126.
[10] R. v. Hardy, 2015 MBCA 51, at para. 18.
[11] R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J No. 37.
[12] R. v. Bartle, [1994] 3 S.C.R. 173.
[13] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[14] Grant, at para. 71.
[15] McColman, at paras. 41, 48, 58, and 62.
[16] R. v. Jennings, 2018 ONCA 260; R. v. Rehill, 2015 ONSC 6025, at paras. 34-36.
[17] Grant, at para. 111, and Rehill, at paras. 34-36.