R. v. Richardson, 2022 ONCJ 260

CITATION: R. v. Richardson, 2022 ONCJ 260

DATE: June 7, 2022

COURT FILE No: 20-0521

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

-AND-

ANTHONY RICHARDSON

Before: Justice M. G. March

Heard on: September 3 and December 16, 2021 and May 5, 2022

Reasons for Judgment released on: June 7, 2022

Counsel: Ms. Goher Irfan, Counsel for the Crown Mr. Sean May, Counsel for the Accused

March, M.G., J. :

Introduction

[1] The accused, Anthony Richardson (“Richardson”), stands charged that on April 21, 2020:

a) he did operate a conveyance while his ability to operate it was impaired to any degree by alcohol, or drugs, or both, contrary to section 320.14(1)(a) of the Criminal Code of Canada (“the Code”) and

b) knowing that a demand for a breath sample had been made by a peace officer, he did fail or refuse to comply with it contrary to section 320.15(1) of the Code.

[2] Crown and defence counsel agreed at the outset of the trial that the Application alleging infringements of Richardson’s sections 8, 9, 10(a) and (b) rights under the Canadian Charter of Rights and Freedoms (the “Charter”) could be heard in a ‘blended’ proceeding.

[3] Defence counsel made admissions as to the date in question, the Court’s jurisdiction over the matter and the identity of the accused before the Court.

The Relevant Evidence

Cst. Chirke:

[4] When he testified, Constable Chirke (“Chirke”) had over 5 years of policing experience with the Arnprior, Hawkesbury and Rockland OPP detachments.

[5] On April 21, 2020, at 10:35 p.m., Chirke, while conducting stationary highway traffic radar enforcement, observed the headlights of a motor vehicle travelling westbound on Highway 417 just east of the Town of Arnprior. The vehicle drew Chirke’s attention because it was travelling at a high rate of speed as it approached his police cruiser. The officer also noticed that the vehicle’s left indicator had been activated.

[6] Chirke pointed his handheld radar device at the vehicle and locked it in at a speed of 139 km/h in a posted 100 km/h zone. He estimated that the vehicle was 200 m from his location at that point in time.

[7] The vehicle maintained that rate of speed and continued travelling westbound on Highway 417 past Chirke. He followed the vehicle and later noticed its speed to drift down to approximately 100 km/h.

[8] During the pursuit of the vehicle, it continued for a while to straddle the centre line of the dual lane westbound highway. Eventually it returned to the slow, right lane with its left turn indicator still on.

[9] Chirke activated the emergency lights in his cruiser. Notwithstanding, the vehicle made no effort to slow down or pull over for approximately 30 seconds. The officer estimated that he was within 25 to 50 m of the vehicle while following it over the course of roughly 3 kms. The left indicator light remained on until the vehicle stopped.

[10] The vehicle was a black 1999 GMC Suburban. It was operated by a lone male driver, Richardson.

[11] When Richardson rolled down his driver’s window, Chirke immediately detected a strong odour of an alcoholic beverage emanating from the accused’s breath. The officer also saw that Richardson’s eyes were watery, glossy and bloodshot. They looked to the officer to be glazed over. His face was flushed and red. Further, Chirke testified that Richardson had a dry, foam-like, white pasty substance in the corners of his mouth.

[12] Chirke advised Richardson of the reason for the traffic stop. The officer informed Richardson of the speed at which the radar device calculated his vehicle to be travelling. He also told Richardson that he observed some bizarre driving behaviour. Accordingly, Chirke testified that he wished to verify his sobriety and his well-being.

[13] Chirke asked Richardson for his driver’s licence. Richardson removed a black cell phone from his left jacket pocket and handed it to the officer while he continued to search for his licence. At first, the officer wondered whether Richardson thought his cell phone was his driver’s licence. Chirke pointed out to Richardson that his cell phone was not his driver’s licence and Richardson continued to search for it.

[14] A short while later, Chirke asked Richardson if he, in fact, had his driver’s license on him. Richardson said he did not.

[15] Chirke remarked that Richardson’s speech was slurred throughout his interaction with the accused. It sounded to the officer as though Richardson’s mouth was full of food.

[16] Chirke asked Richardson to exit the vehicle. As soon as Richardson attempted to do so, the officer observed that the accused was unsteady on his feet.

[17] Chirke told Richardson to accompany him to the rear of the Suburban. While walking there, the officer saw Richardson “body check” his vehicle with his left shoulder as a result of losing his balance. By “body check”, Chirke explained that Richardson staggered, lost his footing and bumped his left shoulder into his vehicle.

[18] In consequence thereof, at 10:41 PM, Chirke arrested Richardson for impaired operation of a conveyance. The officer then placed the accused in the back seat of the police cruiser in handcuffs.

[19] At 10:43 PM, Chirke read to Richardson his rights to counsel from a ‘police issued’ card. Richardson indicated he understood. He declined to speak to a lawyer.

[20] At 10:44 PM, Chirke gave a caution to Richardson regarding any statements he made, and demanded samples of the accused’s breath, both of which Richardson said he understood.

[21] At 10:48 PM, Chirke departed for the Arnprior OPP detachment with Richardson.

[22] 10:54 PM, Chirke arrived and lodged Richardson in a holding cell. The officer informed Richardson that he would be videotaped while in the cell.

[23] As a common practice, Chirke went over again with Richardson his rights to counsel. The officer asked the accused if he was content with not speaking to a lawyer. Richardson reaffirmed that that was his decision.

[24] Around this point in time, Chirke testified that his colleague, Constable Brown (“Brown”), would have taken over the investigation as a qualified breath technician in order to obtain samples of breath from Richardson.

[25] At 11:09 PM, Brown told Chirke that Richardson was now requesting an opportunity to speak to a lawyer. Richardson had changed his mind. He asked if he could speak with Cecil Lyon of Ottawa.

[26] As a result, Chirke conducted an Internet search attempting to locate contact information for Mr. Lyon. The officer discovered that Mr. Lyon was a family law lawyer. Chirke explained this fact to Richardson and clarified that Richardson was being investigated for criminal offences.

[27] Richardson then asked if he could speak with a criminal defence lawyer by the name of Samir Adam. Again, Chirke conducted a further Internet search and found Mr. Adam’s name to be associated with the law firm of May and Irwin Associates. He located a telephone number on the firm’s website. He then spoke with one Kate Irwin. Ms. Irwin explained to Chirke that Mr. Adam was now a Crown Attorney. He no longer did defence work, but she was a lawyer.

[28] Chirke returned to Richardson to relay this information. The officer asked if he would like to speak to Ms. Irwin. Richardson declined.

[29] Chirke then inquired whether Richardson would like to speak to any other lawyer of his choosing. He told the officer no.

[30] Chirke offered to Richardson a list of lawyers in the area as well as duty counsel. The officer also suggested to Richardson that he could use his own cell phone to either contact or obtain information on his lawyer of his choice. Richardson again declined.

[31] Chirke asked Richardson if there was anything else he could do to assist him in speaking to a lawyer. Richardson said no.

[32] Chirke recalled that his conversation then turned into an argument over the reason for the traffic stop and the grounds for his arrest. Chirke reminded Richardson that he was being investigated for impaired operation of a conveyance, and that he is obligated by law to provide samples of his breath. Richardson told the officer that he was refusing to provide samples of his breath. He continued to argue the reasons for the traffic stop and his arrest.

[33] Chirke escorted Richardson to the breath room where there was audio and video equipment to record what Chirke was telling Richardson regarding his grounds for the arrest and the nature of his investigation.

[34] Richardson explained to both Brown and Chirke that he would talk only to Mr. Lyon or Mr. Adam. Chirke reiterated that Mr. Adam was now a Crown Attorney, not a practising defence lawyer; Mr. Lyon was a family lawyer, not a criminal lawyer.

[35] Richardson reconfirmed that he wished to speak only to either Mr. Adam or Mr. Lyon. Consequently, Chirke returned Richardson to the detachment cell.

[36] At 11:30 PM, Chirke again googled Mr. Lyon to obtain a telephone number for his office. The officer successfully located one. The officer called the number and learned that the office hours were from 9 AM to 2 PM. He was unable to find an alternative number for Mr. Lyon. Notwithstanding, Chirke left a message on Mr. Lyon’s voicemail asking for him to call the officer back.

[37] Chirke returned to speak with Richardson. The officer then learned that Richardson had a personal number for Mr. Adam. Consequently, Chirke gave Richardson his cell phone and told him he could call them, to which Richardson replied, “I don’t think I want to”. Richardson explained to the officer that Mr. Adam was too expensive. Richardson did not want to wake him.

[38] Chirke concluded that at 11:36 PM, Richardson had refused to provide samples of his breath in compliance with the demand made of him after police exhausted all efforts to allow him to contact counsel of choice.

[39] Under cross-examination, Chirke agreed that April 21, 2020 was a “bleak time”. A month earlier, borders began closing. Everyone was experiencing worry and stress.

[40] The officer acknowledged that he originally stopped Richardson’s vehicle for the highway traffic offence of speeding. Once stopped however, Chirke conceded that he did not ask Richardson about why his left indicator light remained on. Nor did he ask Richardson why he had been driving fast. Nor did he ask Richardson about his manner of driving. The officer clarified that he did mention those things to Richardson, but he did not get a response.

[41] As well, Chirke confirmed that he did not ask Richardson about his red eyes, his dry mouth or his speech.

[42] When it was put to Chirke that he did not ask Richardson if or how much he had been drinking, the officer suddenly remembered he had asked Richardson if he had anything to drink. Richardson’s response was “No”. He agreed that he did not make a note of either the question or the response anywhere in his duty book or elsewhere in the summary he prepared. The officer was remembering that aspect of the conversation he had with Richardson at the very moment of testifying.

[43] Chirke explained as well that by “drifting”, he meant that Richardson’s vehicle decelerated because Richardson obviously took his foot off the gas pedal. He did not apply his brakes. As such, the speed at which he was travelling lowered from 139 to 100 km/h.

[44] Chirke estimated that after 60 to 90 seconds, he illuminated the lights on the top of his police cruiser to signal to Richardson that he wished for him to stop. The officer did not use a siren, which would likely have prompted Richardson to check his rearview mirror and to see the lights.

[45] Chirke ventured that it took roughly 30 seconds from the time he illuminated the lights to when Richardson actually pulled over to the gravel shoulder of the road. In that general area, the officer described the lighting as “pretty good”.

[46] Although the speed at which Richardson was travelling in his vehicle initially drew Chirke’s attention, he explained that, based on his observations leading up to the traffic stop, he began to worry about the driver’s sobriety and well-being. He conceded that from the moment he emerged from his cruiser, he was intending to detain and investigate Richardson for a potential impaired driving offence.

[47] Chirke then insisted that he had “no grounds” for a criminal offence. He had witnessed some bizarre driving behaviour. He just wanted to speak to Richardson and see what was going on. He denied that he was commencing an investigation of a potential crime.

[48] As Chirke put it, “I’m concerned about sobriety and well-being . . . I have no idea if I’m investigating a criminal offence. I’m observing bizarre driving behaviour as well as speeding. So, I’m investigating - at this point in time, it’s a provincial offence of speeding, and then I want to look at and speak to the driver and verify his sobriety and well-being.”

[49] Chirke stated that he moved from the investigation of a highway traffic offence to a concern about impaired driving or some criminal offence when he made the arrest for impaired operation.

[50] Nevertheless, the officer agreed that prior to the arrest, he smelled the odour of alcohol, heard slurred speech and made observations of Richardson’s eyes, so he had evidently moved from simply investigating speeding to a potential criminal offence of impaired operation. Clearly, Richardson was not free to leave once stopped by him.

[51] Chirke conceded that he did not initially tell Richardson that he was being detained for impaired driving at 10:37 PM, the time of the stop. Rather, the officer informed Richardson that he was being investigated for impaired driving when he was actually being arrested at 10:41PM upon formulation of the grounds for doing so.

[52] Chirke further agreed that Richardson’s jeopardy changed with the move from an investigation of a mere highway traffic offence to a criminal offence.

[53] When pressed about his understanding of section 10(a) of the Charter and his obligations as a police officer, Chirke reaffirmed that he stopped Richardson for a provincial offence. He did not know that he was dealing with a criminal investigation until he arrested him.

[54] Ultimately, Chirke agreed that the observations he was making of Richardson’s physical condition were indeed part of a criminal investigation.

[55] Chirke confirmed that he was aware that a person under section 10(a) of the Charter has the right to be advised immediately of the reason for his or her detention. However, the officer stated that only after formulation of the grounds for detention would the right to be informed of the reasons for it arise.

[56] As Chirke put it himself, “I made some observations while Richardson was retrieving his- trying to retrieve his driver’s licence . . . I didn’t realize it was a criminal offence when I arrested him. That’s when I formulated my grounds of the criminal offence, but, in the meantime, these are all observations that I’m making.”

[57] Chirke testified that it was at the conclusion of his formulation of grounds at 10:41 PM that he arrested Richardson. Four minutes had elapsed from the time of the traffic stop at 10:37 PM. All the while, the officer was gathering grounds by making the observations that he did. The officer reiterated that only after he had formulated grounds that a criminal offence had been committed did he notify or inform the person of the reason for his arrest. That is his practice in every instance.

[58] Chirke instructed Richardson to exit his vehicle because it was also the officer’s routine, for safety reasons, due to oncoming traffic, to read an approved screening demand behind the vehicle of the motorist who had been stopped. The officer did not tell Richardson what he was intending to do, nor did he issue a demand for a breath sample. Chirke conceded that Richardson’s Suburban was well onto the shoulder of the roadway at this point in time.

[59] Chirke explained that he had a screening device with him, but when Mr. Richardson staggered and body checked the Suburban, he immediately arrested him for impaired operation. Chirke did not feel that he needed to use the approved screening device anymore.

[60] Chirke conceded that the observations he made after he instructed Richardson to exit were part of a criminal investigation about which Richardson had not been told. Chirke acknowledged that he did not have the grounds to arrest Richardson to that point in time.

[61] Chirke agreed that he did not ask Richardson about how he stumbled and bumped into his vehicle. However, Chirke did make observations of the ground where it occurred to be dry, level and in good condition. There was approximately 6 feet between Richardson’s driver door and the beginning of the asphalt of the highway with plenty of room to walk.

[62] Chirke asserted that he concluded Richardson was impaired by alcohol based on the totality of his observations he made, and on his experience, presumably as a police officer.

[63] Chirke provided rights to counsel to Richardson not right away when he was arrested at 10:41 PM, but two minutes later at 10:43 PM. The officer added that following arrest, he handcuffed Richardson, searched his person for weapons and/or other methods of escape, and placed him in the rear of the cruiser. Chirke then entered the driver’s seat of the police vehicle, pulled out his standard issued card and read to Richardson his rights to counsel. Under the prevailing circumstances, Chirke believed that he was entitled to delay somewhat providing rights to counsel to Richardson.

[64] Throughout the time that Richardson was in police custody at the roadside, Chirke confirmed that he was very cooperative.

[65] The officer emphasized that he did not feel comfortable reading the standard issued card regarding rights to counsel in front of Richardson at the side of the road, even though Richardson was handcuffed.

[66] Chirke could not recall an instance where he has permitted a detained motorist to contact counsel while handcuffed at the roadside.

[67] The officer also confirmed that when he made the breath demand of Richardson, the accused said, “I will oblige.”

[68] Upon arrival at the Arnprior OPP detachment, Chirke did not observe Richardson to have any problem with walking, movement, or balance. Nor did he have trouble with emergence from the cruiser. The officer stated he would have noted any such difficulties if he had seen them.

[69] Equally, upon arrival at the police detachment, Chirke did not observe Richardson to have any problem with his balance or movement as he made his way the 10 or 15 steps from the cruiser to the cell where he was lodged.

[70] On the issue of slurred speech, Chirke agreed that he could detect any problem with Richardson’s response to the officer’s breath demand when the accused said, “I will oblige”.

[71] Chirke recalled that at the detachment, while he was in the breath room with his fellow officer, Brown, Richardson changed his mind and wished to contact counsel.

[72] Chirke testified that Richardson had the right to speak to counsel of choice including the right to call a lawyer to ask for the name of another lawyer.

[73] Chirke confirmed that Richardson asked specifically to speak to Cecil Lyon. The officer was able to locate Mr. Lyon online. However, Chirke determined that Mr. Lyon was a family law lawyer. The officer communicated this fact to Richardson. The officer then explained to Richardson that he was under arrest for a criminal offence.

[74] Chirke denied that he discouraged Richardson from calling Mr. Lyon. The officer pointed out to Richardson that he was facing a criminal charge. Richardson then asked if he could speak to a different lawyer. Chirke reiterated that he was not directing Richardson away from counsel of choice.

[75] Chirke added that he told Richardson he could still speak to Mr. Lyon, but he is a family lawyer, whereupon Richardson suggested the name of another lawyer. His next choice was Mr. Adam.

[76] Chirke explained that later, Richardson made it clear to him that those were the only two people with whom he wished to speak. The officer then made additional efforts to contact those lawyers.

[77] Chirke looked up Mr. Adam for Richardson. However, based on a conversation the officer had with another lawyer from the firm with whom Mr. Adam had previously been associated, Chirke learned that Mr. Adam was no longer a practising defence lawyer.

[78] The officer added that he asked Richardson if he wanted a list of lawyers, his cell phone, or duty counsel. Richardson then told the officer that he had Mr. Adam’s personal phone number on his cell phone. Chirke offered to Richardson an opportunity to contact Mr. Adam using his cell phone. The officer told Richardson he could go ahead and call him [Mr. Adam].

[79] The officer agreed that Richardson could have called Mr. Adam for assistance in finding another lawyer.

[80] Chirke recalled giving Richardson his cell phone and saying, “Call whoever you like for whatever information you would like on a lawyer”.

[81] Chirke added that he did call Mr. Lyon’s number and left a voicemail. However, he pointed out again to Richardson that Mr. Lyon is a family lawyer after informing Richardson about the message he left. Chirke also confirmed that Brown told Richardson as well that Mr. Adam was a Crown Attorney now, not a defence lawyer.

[82] Chirke confirmed that he discussed with Brown the subject of counsel and they agreed that Richardson could speak to either Mr. Adam or Mr. Lyon for information on another lawyer, or whatever he wanted to talk to them about it. However, Chirke conceded that he made no notes about the discussion Brown and he had.

[83] Chirke agreed that Brown and he discussed whether they had done things the right way, and not once, but twice, Richardson was told by police there may be issues with both Mr. Lyon and Mr. Adam.

[84] While police continued to make efforts to contact either Mr. Adam or Mr. Lyon, Chirke confirmed that he did not consider what Richardson was doing by insisting on speaking to counsel before providing a sample of his breath constituted a refusal.

[85] Chirke denied that Richardson appeared to be discouraged by the lack of success police had in attempting to reach Mr. Adam and Mr. Lyon.

[86] By way of efforts, Chirke explained that he telephoned Mr. Lyon’s office, but there was no answer. The officer left a message asking for a return call. Chirke denied that he set a time limit in awaiting a call back.

[87] Chirke testified that the purpose of returning to the breath room where the conversation between Richardson, Brown and himself could be audio and video recorded a second time was to chronicle the efforts made by police to contact Mr. Lyon. Chirke also stated that the same explanation was given to Richardson while he was still in the holding cell before being brought into the breath room.

[88] Chirke agreed as well that during this second occasion when Richardson, Brown and he were in the breath room, he reiterated that Mr. Adam was not a defence lawyer. He was a Crown Attorney.

[89] Chirke disagreed that he declined to discuss with Richardson the grounds for his arrest and the breath demand made of him. The officer was adamant that he set those out for Richardson on multiple occasions.

[90] Chirke agreed that on the issue of providing Richardson the cell phone to obtain contact information for his counsel of choice, he did initially ask Richardson for the passcode in order to find his lawyer’s number. The officer explained his reluctance in simply handing over the phone to Richardson was that persons in custody are not allowed to videotape with their phones. Chirke’s intention was therefore to obtain the phone number, and thereafter to put Richardson in the privacy room at the detachment to allow him to make a call to his lawyer. Eventually, Chirke stated, he just gave Richardson his phone.

[91] Chirke did not know why he did not just give Richardson his phone in the first place to allow him to locate his lawyer’s number on his own.

[92] The officer confirmed as well that Richardson had no difficulty with his balance, his walking and his movements during his trips from the holding cell to the breath room and back.

[93] Chirke gave evidence that he could detect that Richardson’s speech was slurred when the officer listened in court to the video and audio recorded exchanges he had with him in the breath room. With respect to other indicia of impairment, the officer was able to discern that there was an odour of alcohol on Richardson’s breath. He also had watery, bloodshot eyes and a flushed face.

Cst. Brown:

[94] At the time of testifying on December 16, 2021, Brown had some six years of experience as a police officer.

[95] On the date of the alleged offences, April 21, 2020, Brown was designated as a qualified technician to analyze samples of breath. He arrived at the Arnprior OPP detachment at approximately 11 PM. Richardson was already in police custody there.

[96] Brown explained that he attended at the detachment in case he was required to conduct breath testing.

[97] The officer’s first interaction with Richardson was when he attended at 11:09 PM at the cellblock where Richardson was being held. Brown inquired of Richardson whether he had exercised his rights to counsel. Richardson then asserted that he was not going to do anything until he spoke with a lawyer.

[98] Brown passed along this information to his fellow officer, Chirke. Brown could not recall whether Chirke was with him at that very moment at Richardson’s cell when the accused expressed his desire to speak to counsel.

[99] Brown recalled some of the efforts made by Chirke to facilitate the exercise by Richardson of his rights to counsel. Brown was waiting until Richardson had the opportunity to call counsel prior to conducting an interview or obtaining samples of breath.

[100] Brown confirmed that there were numerous times when Chirke brought Richardson into the breath room, which had the capacity to video and audio record what was being said. The officer was present during several occasions when Chirke was attempting to address Richardson’s request to speak with counsel.

[101] Brown recalled that Chirke and he offered a lawyer’s list, a duty counsel number and an opportunity to contact an available lawyer with whom Richardson wished to speak. Brown testified that Richardson asked to speak with Mr. Adam. Chirke attempted to assist in that regard; however, it was pointed out to Richardson that Mr. Adam was at that time a practising Crown Attorney.

[102] Brown recollected that Chirke called the lawyer’s office where Mr. Adam used to work, because the police did not have any contact information for him at that point. Richardson was offered an opportunity to speak with a Ms. Irwin, but he did not wish to do so.

[103] Brown testified that Richardson was re-informed about all available options including accessing a lawyers list, duty counsel or any other lawyer of choice. Richardson then requested to speak with Mr. Lyon.

[104] Later, Richardson was taken back into the breath room. He was notified that Mr. Lyon could not be contacted. Again, Richardson was offered other options, but he refused to provide samples of his breath.

[105] Brown explained that he wanted to ensure that Richardson understood the consequences of refusal. He was then placed back into his cell yet again, once he refused. Brown could not recall exactly what he told Richardson about the consequences of a refusal.

[106] Brown noted the time at which Richardson refused to provide a sample of his breath as 11:36 PM.

[107] In describing Richardson’s demeanour over the course of the 30 minutes or more during which Brown interacted with him, the officer described him as “pretty headstrong” about speaking with his specific counsel of choice, although he was not rude.

[108] To Brown, Richardson appeared to be impaired by alcohol due to the visual observations the officer made of the accused and the odour present in the breath room. Brown noted Richardson to be swaying and unsteady while speaking with police throughout their interaction with him. Specifically, it smelled like an alcoholic beverage in the breath room, even though it was devoid of alcohol.

[109] Under cross-examination, Brown confirmed that he went almost directly to the breath room upon arrival at the Arnprior OPP detachment to set it up. From discussions Brown had with Chirke, it was understood that Richardson had earlier indicated at the roadside he would oblige with the breath demand made of him and would provide a sample.

[110] Brown understood that a component of Richardson’s Charter rights involved an opportunity to speak to counsel of choice including calling someone else to find a lawyer.

[111] As well, Brown was aware from speaking to Chirke that Richardson had initially declined to speak to a lawyer, but was now seeking to speak to one.

[112] Brown acknowledged that the efforts to put Richardson in touch with counsel commenced before his exchanges recorded on video in the breath room began. However, Brown did not recall or take down what those efforts were. As Brown put it, “Constable Chirke would be dealing with that.”

[113] Brown did recollect that the first thing Richardson was told during the exchange he had with police in the breath room was that Mr. Adam was not a practising lawyer. Rather, he was now a Crown Attorney, and was therefore not available. Mr. Adam could not help him.

[114] However, police did contact Mr. Adam’s old firm. That is how they reached Ms. Irwin.

[115] Notwithstanding, Richardson did not wish to consult with Ms. Irwin. He also declined to speak to duty counsel, or to peruse a list of lawyers, which police offered to him.

[116] Brown understood Richardson’s intention was not to do the breath tests until he spoke to either Mr. Adam or Mr. Lyon. The officer agreed that Mr. Lyon was a second choice for Mr. Richardson, but police explained to him that Mr. Lyon was a family law lawyer.

[117] Brown acknowledged that it was not correct to place a limit on a detained individual’s right to contact a lawyer irrespective of his or her area of practice.

[118] Brown confirmed however that Chirke contacted Mr. Lyon, but the police did not receive a call back.

[119] Brown agreed with the sequence put to him that:

a) Richardson told police he did not want to give a breath sample without speaking to counsel,

b) the police warned him about consequences if he did not,

c) police told Richardson that he was being charged for continuing to refuse to provide a sample of his breath, and

d) Richardson was taken out of the breath room.

[120] Brown recalled that Richardson was nevertheless taken back into the breath room after Chirke and he discussed how there may have been a problem with the way police dealt with Richardson’s right to counsel. It was then explained to Richardson when he was in the breath room the second time that he could speak with Mr. Lyon even though he was not a criminal lawyer.

[121] Chirke then explained to Richardson that Mr. Lyon would not be in his office until 9 o’clock in the morning. Brown agreed that there was no discussion during the second time in the breath room with Richardson regarding any willingness on the part of police to wait for Mr. Lyon to call back.

[122] Thereafter, when police asked Richardson if he wished to talk to anyone else, he brought up Mr. Adam’s name again. Chirke explained again to Richardson, “He [Mr. Adam] is a Federal Crown Attorney. He is not a defence lawyer anymore.”

[123] Brown conceded that Richardson was receiving a strongly worded comment that Mr. Adam was not properly the person to consult. However, Mr. Adam could have been contacted to recommend another lawyer and to provide contact information for that counsel.

[124] At the root, Brown acknowledged that communication between police and Richardson had broken down. The individuals Richardson wished to contact were not the right people or could not be reached. All the while, Richardson was clear that he would not participate in a breath test until he spoke to a lawyer.

[125] In short, Brown testified that Richardson was provided with a lawyers’ list and the telephone number for duty counsel. The accused could also have spoken to any other lawyer of choice. Richardson, however, refused to provide a breath sample until he spoke with Mr. Adam or Mr. Lyon exclusively.

Anthony Richardson:

[126] When Richardson testified on December 16, 2021, he was 53 years of age. He had worked as a vehicle mechanic for 37 years, the last 22 of which he owned his own auto repair business.

[127] On April 21, 2020, Richardson was headed west on Highway 417 from his home in Kanata. He was intending to go to his cottage in Shawville, Québec. Its roof was leaking badly. Richardson had put a tarp on it the year prior, but it had recently blown off in a windstorm.

[128] Richardson had received a Facebook message from his cousin telling him about the state of the roof, which he had not noticed until 3:30 PM that day.

[129] In the early days of the Covid lockdown, Richardson knew that the Surete du Québec (“SQ”) were blocking the bridge to prevent interprovincial travel with Ontario. However, his nephew, who was also in the Shawville area, told him that the SQ would leave at 11 PM. They were not manning the bridge continuously.

[130] Richardson testified that he had not had any alcohol to drink at any point during the day of April 21, 2020. He did bring with him a large bottle of Crown Royal on the trip to Shawville. He was hoping to persuade his nephew to help him in the morning at first light to re-tarp the roof of his cottage. Richardson thought it would be a “good gesture” to offer the bottle to him.

[131] As a result, Richardson was driving westbound on Highway 417 near Arnprior at approximately 10:30 PM on the evening in question. He pulled over just after the bridge over the Mississippi River. He explained that he was extremely stressed and tired. He was having an anxiety attack, which he had experienced on a couple of occasions, even before the pandemic began.

[132] Richardson stated that he had two sips from the bottle of Crown Royal, perhaps two ounces in quantity, after he pulled over at the roadside.

[133] He then re-entered his truck and resumed his journey to his cottage. He accelerated over the speed limit. He had his left indicator light activated because he was merging off the shoulder back onto the paved portion of the roadway.

[134] Richardson explained that his Suburban was modified for plowing. It had oversized tires. The front suspension was lifted. Due to its age, a 1999, he offered that it was “a bit hard to control”, and that “you really have to pay attention”.

[135] Shortly thereafter, Richardson saw headlights, which he thought was strange, because he had not noticed any before. He looked down at his instrument panel and realized he was going over the speed limit. He slowed down.

[136] He gave evidence that he then saw flashing lights, which were similar to his plowing ones in his back window. He checked to see if the switch for those lights was on. It was not. He then realized it was a police car wanting him to pull over. He did so.

[137] Richardson believed it was due to his speed that police wished to stop him.

[138] After Richardson pulled over, Chirke exited the cruiser and approached Richardson’s driver window. Richardson’s recollection was that Chirke told him he was doing 137. The officer wanted his license, registration and insurance.

[139] Richardson began looking around. He had his phone in hand, so he just asked the officer if he could hold it for him.

[140] The officer directed him to exit the vehicle. Richardson was not advised he was being investigated for impaired driving.

[141] On the suggestion of his lawyer, Richardson confirmed that if he had known he was being investigated as such, he would have been interested in contacting legal counsel. He would also have attempted to do so.

[142] Richardson indicated that he had two lawyers in mind, Mr. Adam and Mr. Lyon. The latter was dealing with his divorce and was continuing to act for him five years after he was initially consulted.

[143] Upon exiting the vehicle, Richardson recalled that his body did come into contact with his truck. He explained that his knee “gave out”. He added that this occurred because of years of working on cement floors, bending down to set the cars up on a hoist and standing up again, on average 25 times a day. As a result, his knees can experience shooting pain and can “let go”.

[144] When Richardson bumped into his vehicle, Chirke did not ask him about the nature of what had occurred. Instead, he was immediately handcuffed and placed under arrest. He was put into the police vehicle and transported to the Arnprior OPP detachment.

[145] At the detachment, Brown asked Richardson if he was going to provide a breath sample. Richardson told him he would not without counsel. He recalled this exchange with the officer taking place when he was in the police holding cell before he was taken to the breath room.

[146] Richardson first asked if he could speak with Mr. Adam. Richardson understood that he could not use him because he was now “with the Crown”. With respect to Mr. Lyon, he believed that police were telling him that he was a family lawyer, and that he could not use him in a criminal case. This made Richardson “suspicious”.

[147] Richardson recalled some of this conversation taking place when it was being video and audio recorded in the breath room. He also watched it unfold during the first day of his trial, when the video was played in open court.

[148] Richardson understood that when he was first taken out of the breath room, the officers had decided to charge him in spite of having told Chirke at the roadside, when the breath demand was read to him, “I’ll oblige”.

[149] Richardson added that he fully intended on doing a breath test.

[150] Richardson remembered a second occasion when he was brought back into the breath room. He asked again about speaking to Mr. Adam, but the officers continued to tell him that the two choices for counsel he had made were not valid ones. He stated he asked if he could at least talk to Mr. Adam, so he could be directed to another counsel who Mr. Adam knew, and who could explain things he may want to say or need to know.

[151] Richardson explained his insistence on the two named lawyers was because he knew them very well. They were aware of his situation, and he would not have to get to know someone anew. He felt he could talk to them bluntly and ask them the questions he needed to.

[152] Richardson reiterated in giving his evidence that he would have undergone a breath test, but he wanted to speak to counsel first, because he had questions and needed advice. He denied that he intended to refuse to provide a breath sample.

[153] Under cross-examination, Richardson estimated that he was about a kilometre west of the Mississippi River bridge when he had the two sips of alcohol from the bottle of Crown Royal. He was feeling very anxious and needed to calm down.

[154] Before getting into his Suburban to drive to Shawville, he was coming from his place of business. He thought he had been driving for approximately half an hour to 40 minutes before stopping to have a drink. He confirmed that he did not see Chirke’s cruiser anywhere on the road until he saw headlights.

[155] He explained that he used his indicator light to merge back onto the highway. He was not sure that he ever turned it off again. He had an airbag light that flashes so it would not have caught his attention. He had his music turned up very loud in his vehicle to stay alert. He had worked a whole day.

[156] He then waited for several hours to leave before heading to the cottage in order to get past the roadblock.

[157] Richardson pointed out that over the past five years, he drives his Suburban perhaps once a day during work to go pick up parts. Additionally, he uses it for snowplowing whenever the need arises.

[158] When asked if he was used to driving the truck, he answered, “I’m fairly used to it, yeah.”

[159] He indicated that his plow lights are very similar to those on Chirke’s police cruiser in both the front windshield and back window. For that reason, it was his first thought that the lights had somehow tripped, or come on. He was therefore a bit confused. However, when he looked down, he realized that they were not even plugged in.

[160] Richardson clarified that his plow lights plug in to his truck’s lighter receptacle and they have switches. On occasion, he would hit a bump and they would come on. It was not unusual.

[161] He testified that it was only for two or three seconds that he thought the lights that were flashing were his own.

[162] Prior to that, when he saw headlights behind him, he looked down. He did not know to whom they belonged. He did not know if it was the police. He acknowledged that he was accelerating to get back onto the paved portion of the road, so he would not be a hazard to anyone.

[163] When he glanced down at his instrument panel, he realized he was going too fast. He thought he was going “about 130 something”. He explained that his speedometer is off a bit because of his tire size. He saw that he was going too fast, so he slowed down.

[164] When asked why seeing headlights behind him prompted the reaction of checking his speed, he answered that “I do check my speed quite regularly, and so it was just-it was just a reaction”. He did not check to see if his indicator was left on.

[165] He confirmed that he believed he was being pulled over by police for speeding. He thought he had only been interacting with Chirke for 3 to 4 minutes in total while he remained in his vehicle.

[166] Richardson could not recall any specific reaction on the part of Chirke when he handed his telephone to the officer. He told Chirke just to hold onto it. The officer did not say anything. He could see that Richardson was going through his glovebox attempting to locate his paperwork.

[167] When Richardson was asked to step out of his vehicle, he believed that Chirke was continuing his investigation into Richardson’s failure to have his driver’s license, registration and insurance with him in his vehicle. To Richardson’s mind, Chirke did nothing else to indicate what his investigation was about.

[168] Richardson stated that he was behind his truck when Chirke arrested him. The officer put him in handcuffs and placed him in the cruiser. Richardson had no recollection of what the officer said to him at that point. Richardson then testified that Chirke may have read to him his ‘Miranda’ rights.

[169] Specifically, Richardson did not remember whether Chirke told him he had the right to talk to a lawyer. In terms of the reason for his arrest, Richardson could only remember the officer telling him that he was speeding and straddling on the road. Richardson could not recollect if he was told specifically why he was placed under arrest. As Richardson put it, “I was a bit overwhelmed.”

[170] Richardson did not recall Chirke telling him he was being arrested for “impaired”, nor being provided with his rights to counsel. However, Richardson did know that Chirke was going to do a breath test. Richardson told the officer he would comply.

[171] Thereafter, Richardson gave evidence that it took approximately 20 minutes to be transported from the scene of the traffic stop to the police detachment. He had to sit in the car for a while because Chirke requested a tow truck to impound his Suburban. Richardson thought they waited for half an hour to 45 minutes at the roadside before heading to the detachment.

[172] Once they arrived, Richardson was placed in a cell. He spoke first to Chirke. However, he did not recall Chirke having a conversation with him about speaking to a lawyer. Nor did Richardson remember telling Chirke that he did not wish to speak to a lawyer at that point.

[173] Richardson believed that he waited for a period of 15 to 20 minutes before being brought into the breath room. He conceded that it was really hard for him to gauge time. He was exhausted and was having a really bad day.

[174] Upon entering the breath room, Richardson testified that he was interacting with both Chirke and Brown there. Richardson was clear that he wished to speak to a lawyer before he provided breath samples.

[175] In particular, he wished to speak to Mr. Adam or Mr. Lyon. That type of conversation was already occurring with the officers prior to entering the breath room.

[176] Richardson was sure that the officers knew beforehand that he wished to speak with Mr. Adam. It was not until they were in the breath room, Richardson asserted, that police told him he was with the Crown, and he was not available.

[177] Richardson conceded that police told him they had made attempts to contact Mr. Adam, but they offered another lawyer to him from the same office. Richardson did not know that lawyer. He therefore told police that his next choice was Mr. Lyon.

[178] Richardson testified that police then told him that Mr. Lyon was a family lawyer. He did not practise criminal law, and Richardson was facing a criminal charge.

[179] Notwithstanding, Richardson conceded that he was aware police had attempted to contact both of the lawyers with whom he requested to speak.

[180] In terms of other options, police also gave Richardson a list of lawyers’ names, but Richardson insisted on speaking with either Mr. Adam or Mr. Lyon, in spite of their unavailability. As Richardson explained, “You know, over time, we probably could’ve figured out a way to get hold of one of them.”

[181] Basically, Richardson agreed he was not intending to provide a breath sample unless he spoke with either Mr. Adam or Mr. Lyon.

[182] Richardson testified that he did not know for what purpose the police attempted to give him his phone, nor why they asked for his passcode. He was adamant that he was not going to give police his passcode.

[183] Richardson later gave evidence that he was given his phone to look up whether he had other telephone numbers for Mr. Lyon or Mr. Adam. However, as Richardson explained, “I was apprehensive of putting my passcode in right in front of him.”

[184] Richardson explained that this occurred on the second occasion he was brought into the breath room. By that point, he felt defeated and exhausted. He was dirty and smelling from working all day. He just wanted to go home.

[185] He was also suspicious of police motives; however, he did concede that the officers behaved in a very professional manner.

[186] Richardson explained that his suspicions grew out of his previous bad experience in dealing with the police where he was alleged to have abused his ex-wife and while being interrogated by police about it. The police lied to him, he asserted. He felt he was made to say things. When police won over his confidence, they then put more charges on him.

[187] Richardson denied that he fully understood the consequences of refusing to provide a breath sample. He appreciated that he lost his license for a period of time, approximately three months. He lost his truck for almost 2 weeks. It cost him $1000 to get his licence back.

[188] In sum, Richardson stated that he knew there would be consequences for failing to provide a breath sample, but he did not realize how severe they would be.

[189] In re-examination, Richardson ventured that Chirke had rushed things. The officer had earlier told him at the holding cell that he wanted to get back on the road.

[190] Richardson reiterated that his intent was to talk to counsel, and then to provide a breath sample.

The Position of the Defence

[191] Counsel for the defence contended that the evidence adduced during the blended voir dire/trial demonstrated on a balance of probabilities breaches of Richardson’s constitutional rights. Specifically, defence counsel argued that:

a) Chirke did not properly inform Richardson of the reasons for his detention at the roadside contrary to section 10(a) of the Charter.

b) Chirke did not have reasonable and probable grounds to arrest Richardson and to make a demand for samples of Richardson’s breath. Richardson was unreasonably arrested and his person seized at the roadside contrary to his section 8 Charter right not to be unreasonably searched and seized, and his section 9 Charter right not to be arbitrarily detained.

c) Richardson was denied his counsel of choice at the police detachment. His section 10(b) Charter right to counsel was thereby violated.

[192] As a consequence of the Charter breaches, the defence sought the exclusion under section 24(2) of the Charter of all evidence obtained arising from the breaches of his Charter rights from the moment they occurred including the observations made of Richardson by Chirke and Brown.

[193] Further, counsel for Richardson submitted that his evidence established he did not have the requisite “mens rea”, or in other words, he did not intend to refuse to provide a sample of his breath. He simply wished to speak to counsel of choice beforehand in accordance with his Charter right to do so.

The Position of the Crown

[194] The Crown submitted that the totality of the circumstances surrounding Richardson’s detention and arrest must be assessed even though Chirke failed to provide Richardson with a complete set of reasons for his detention at the roadside. Any reasonable person in Richardson’s position would understand that he was being investigated for impaired driving.

[195] Richardson was asked about whether he had been drinking alcohol and he denied it, even if Chirke failed to note in his duty book the exchange he had had with Richardson regarding alcohol consumption. It is the substance of what the accused can reasonably be supposed to have understood beginning with the traffic stop, rather than the formalism of precise words used, which must govern.

[196] The demand by Chirke for Richardson to provide a sample of his breath was validly made once Chirke formed reasonable and probable grounds to arrest Richardson for impaired operation of a conveyance.

[197] Chirke subjectively had grounds to believe he could arrest Richardson, and the grounds for Chirke’s belief were objectively reasonable when considered as a whole. There was a strong odour of an alcoholic beverage emanating from Richardson’s breath. Chirke noticed this immediately after Richardson rolled down his window. His eyes were watery and bloodshot. His face was flushed and red. He handed over his cell phone to Chirke when asked to produce his licence, registration and insurance. He stumbled and bumped into his own vehicle after he was asked to exit it. Further, Richardson’s speech was slurred throughout his interaction with Chirke.

[198] At the detachment, police gave ample opportunity to Richardson to speak with counsel of choice. The accused must act with reasonable diligence in exercising his right to counsel. The right to counsel of choice is not absolute. The question to be answered is whether the detainee has been given a reasonable opportunity to contact counsel of choice. Police took reasonable steps to contact both counsel Richardson named and with whom he wished to speak. Additionally, they offered Richardson his own cell phone to obtain alternative contact information for the lawyers he wished to consult. They provided him with a list of other lawyers. They gave him information on how to contact duty counsel as well.

[199] Alternatively, if the Court were to determine that any of Richardson’s Charter rights had been breached, the Crown argued that no evidence should be excluded under section 24(2) of the Charter. The police acted in good faith. They interacted in a respectful manner with Richardson from the time of the initial traffic stop through to his eventual release from police custody. Richardson steadfastly refused to provide a sample of his breath without speaking to one or the other of his chosen counsel. He was not justified in doing so. It was not a reasonable excuse to have done so. He was not exercising reasonable diligence in refusing to speak to alternative counsel. There is no need for the Court to distance itself from the conduct of the police in this case.

[200] The evidence sought to be excluded (i.e. the observations of Richardson made by police prior to the traffic stop, at the roadside and the exchanges between Richardson and police regarding his desire to speak with counsel) was reliable evidence, which was central to the Crown’s case against him. It was the type of evidence which formed the subject matter of the charge before the Court. It went to the merits of the case, which strongly favoured its admission into evidence.

Analysis

Was Richardson’s Charter right to be informed promptly of the reason for his detention under s. 10(a) of the Charter infringed or denied?

[201] Richardson knew that he had been stopped by police because he was speeding. This was a fact he made clear himself from the evidence he gave at trial.

[202] I believe Chirke when he testified that he smelled a strong odour of an alcoholic beverage emanating from Richardson’s breath after he approached the driver’s window of the accused’s vehicle. Indeed, Richardson conceded he had just had a couple of sips from the bottle of Crown Royal he had in his vehicle with him moments before speaking to the officer.

[203] I am suspect but cannot find that Chirke was being dishonest by not noting in his duty book the conversation about alcohol consumption which he testified he had with Richardson at the roadside.

[204] In R. v. Gill, [2015] O.J. No. 6787, Hill J. commented on the significance of a police officer’s failure to note an event in his or her dutybook as follows:

[46] I agree with the statement of Durno J. in R. v. Machado, 2010 ONSC 277, [2010] O.J. No. 387 (S.C.J.), at paras. 121-122:

121 While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some (not Mr. Brauti) have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 2001 24186 (ON CA), 151 C.C.C. (3d) 339(Ont. C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.).

122 I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816:

24 It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

25 The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.

[205] In any event, I find that Chirke was aware of the following factors while detaining Richardson at the roadside:

a) he was speeding at 39 km/h above the limit,

b) he was straddling the centre line of a dual lane, unidirectional highway at points in time,

c) he left his left turn indicator on throughout the police interception of his vehicle,

d) he had the strong odour of an alcoholic beverage on his breath,

e) his eyes were watery, glossy, bloodshot and glazed over,

f) his face was flushed and red, and

g) he had a dry, foam-like, white pasty substance in the corners of his mouth.

[206] Defence counsel skillfully manoeuvred Chirke into conceding that Richardson’s detention at the roadside had much more to do with a criminal investigation, almost from the outset, than it did with a mere traffic infraction. However, by my calculation, the time which elapsed between the first interaction of Chirke with Richardson at the roadside (10:37 PM), to Chirke’s command that Richardson exit his vehicle and his almost immediate arrest thereafter, was a meagre 4 to 5 minutes. If it were simply a matter of writing up and issuing a speeding ticket to Richardson, the officer may well have detained and inconvenienced Richardson for longer than those 4 to 5 minutes without ever informing him of the reason for his detention.

[207] In R. v. Evans, 2015 ONCJ 305 at para. 48 and 49, Stribopoulos J. held:

[46] In Orbanski & Elias, the Supreme Court of Canada held that the right to counsel does not apply at the roadside when the police are conducting road-safety inquiries, for example, questioning a driver about alcohol consumption or requesting that the driver participate in sobriety tests. According to the Court, the right to counsel is implicitly overridden in such circumstances by the “operating requirements” of the “interlocking scheme of federal and provincial legislation” governing motor vehicle travel. In other words, the right is overridden because of the impracticality of implementing it at the roadside.

[47] The override of the right to counsel at the roadside during detentions motivated by traffic safety concerns has its limits. In upholding the override as a reasonable limit under section 1 of the Charter, the Supreme Court in Orbanski & Elias noted that any responses given by the motorist to police questions or the results of any roadside sobriety tests can only be used as an investigative tool to confirm or refute the officer’s suspicion that the driver might be impaired; it cannot be used as direct evidence to incriminate the driver. Further, as the Supreme Court explained in Orbanski & Elias, “the limitation on the right to counsel has strict temporal limits — there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel.” Therefore, if the police investigation of a suspected impaired driver culminates in an arrest, the justification for the override falls away and the person arrested must then be informed of his or her right to counsel.

[48] It is important to note that there is no comparable override at the roadside of the right found in section 10(a) of the Charter. This is because there is simply nothing impractical about the police telling a driver whom they stop why they have been detained. As Charron J. observed on behalf of the Court in Orbanski & Elias: “I suspect every motorist would fully expect ‘to be informed promptly of the reasons’ why he or she is being stopped.”

[49] Section 10(a) of the Charter requires police to tell those who they detain in “clear and simple language” of the reason(s) why. In Evans, the Supreme Court explained that what section 10(a) requires of the police will depend on the circumstances bearing in mind the underlying purpose of the guarantee. As McLachlin, J., as she then was, explained:

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

The guarantee would seem to serve slightly different purposes for those who have been detained rather than arrested. For many, being detained by police will occasion a fair bit of anxiety; compliance with the guarantee therefore goes some distance towards lessening the psychological impact of detention. In addition, depending on the circumstances, the person detained by the police may be in a position of legal jeopardy. In such situations, knowing why one has been detained will undoubtedly assist the affected individual to make a more informed decision in terms of how to respond. For example, a detained motorist who knows that they are suspected of impaired driving may decide to refrain from making an incriminating admission or participating in physical sobriety tests.

[208] I certainly do not quarrel with what Stribopoulos J. had to say about “no comparable override” of the section 10(a) Charter right. Motorists should, as a matter of course, be informed of the reasons for being stopped by police. However, the analysis does not end there, if police fail to set out those reasons in their entirety. Chirke told Richardson he was straddling both westbound lanes of the highway. In other words, the accused’s driving was odd. It went unexplained when Chirke raised it with the accused.

[209] On my assessment of the evidence as well, I find that Richardson was asked whether he had been drinking. The instant that Chirke began to question Richardson about his alcohol consumption, he knew surely that the officer’s investigation was turning to whether he had been operating his motor vehicle while impaired by alcohol. In the Supreme Court of Canada’s decision in Evans, that is exactly what McLachlin J. meant when she explained that “it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern”.

[210] In R. v. Henderson, (2020) ABPC 60, Hawkes J., following a review of relevant case law, wrote at paragraph 24:

Broadly speaking, these cases hold that where a driver is stopped, even if for another purpose – questions regarding the consumption of alcohol, or to identify the smell of alcohol, or relating to the presence of open alcohol in the vehicle will all be sufficient to alert “even the most unsophisticated person …that he would be under scrutiny for impaired driving.” (my italics)

[211] Feldman J. in R. v. Gunarson, (2020) ONCJ 139 at paras. 28 to 30 made similar findings where the initial stop of the motorist was made for a possible traffic infraction, but the police officer’s investigation quickly turned to probing his suspicion of impaired driving. The very nature of the questioning by the officer can communicate to a motorist the reason for his or her continued detention.

[212] I have no doubt that Richardson knew, once Chirke’s questions began to broach the subject of alcohol consumption, that he was now being investigated for an impaired driving type offence. Those questions had nothing to do with speeding.

[213] Under the circumstances, I can find no breach of Chirke’s section 10(a) Charter right. Within seconds of the traffic stop, I find that Chirke was making observations, as he should, of Richardson’s state of sobriety, or lack thereof. I find as well that the conversation did turn to whether Richardson had been consuming alcohol, even if not noted in Chirke’s duty book.

[214] Richardson could not recall what he was told mere minutes later in Chirke’s cruiser about the reason for his arrest. Although I cannot find that Richardson was being dishonest about his lack of recall, I am certain that Chirke told Richardson why he had been detained and arrested some 4 to 5 minutes following the traffic stop.

[215] If I am wrong about the absence of any breach of Richardson’s Charter right to be informed of the reason for his detention, in other words, that Chirke’s purpose had shifted upon making observations of Richardson’s physical state from the time he rolled down his driver’s window, and that he was now being investigated criminally for impaired driving, I would have found that Chirke’s failure to tell Richardson something to that effect was not a serious breach of the accused’s section 10(a) Charter right. Indeed, the impact of the breach upon him was next to nil. Under a section 24(2) analysis under the Charter, I would not have excluded the evidence (see R. v. Mueller 2018 ONSC 2734 at paras. 3 -4, 23 – 31, 33, and 37 – 40).

Did Chirke have reasonable and probable grounds to arrest Richardson? Or was his arrest precipitous and in violation of his section 8 and 9 Charter rights respectively not to be unreasonably searched and seized and not to be arbitrarily detained?

[216] In addition to the indicia of impairment of the ability to operate a motor vehicle set out in paragraph 205 above, Chirke noted that Richardson was unsteady on his feet from the instant he was told to exit his truck. The tipping point, no pun intended, was when Richardson lost his balance while walking to the rear of his vehicle and bumped his left shoulder against it. With that, Chirke believed he had the basis to arrest Richardson, and to abandon the earlier notion of requiring Richardson to provide a sample of his breath into an approved screening device.

[217] Counsel for the defence argued strenuously that Chirke’s investigation of Richardson and his failure to ask questions about the officer’s observations of the accused demonstrated a lack of informed, objective grounds on the part of Chirke to arrest Richardson.

[218] Along this vein, defence counsel drew my attention to the decision of R. v. Golub, 1997 6316 (ON CA). In Golub, Justice Doherty wrote at para. 21:

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 250-51 S.C.R., p. 218 C.R.R., pp. 323-24 C.C.C.; Chartier v. Quebec (Attorney General), 1979 17 (SCC), [1979] 2 S.C.R. 474, 48 C.C.C. (2d) 34 at p. 56; R. v. Hall (1995), 1995 647 (ON CA), 22 O.R. (3d) 289 at pp. 296-98, 39 C.R. (4th) 66 at pp. 73-75 (C.A.); R. v. Proulx (1993), 1993 3677 (QC CA), 81 C.C.C. (3d) 48 at p. 51 (Que. C.A.).

[219] In my humble view, the police officer’s reasonable and probable grounds to arrest an individual must be based on what the officer does know or is able to plainly observe. The officer must be able to articulate what those factors were. The officer may indeed have to answer for what he or she chose to ignore.

[220] However, to what extent must an officer make inquiries into the reasons for each observable factor? Surely that question must be answered on a case-by-case basis. It is trite but true to say that every criminal case turns on its own facts.

[221] I was troubled by Chirke’s haste in deciding his reasonable suspicion that Richardson was operating his vehicle while impaired by alcohol had suddenly morphed into reasonable and probable grounds to arrest him for that offence after seeing Richardson stumble into his vehicle.

[222] It would not have taken much for Chirke to proceed with his initial inclination to have Richardson conduct a screening test. So too could Chirke have asked Richardson why he faltered, but the officer chose not to. I find, however, that he was not required to put that question to him.

[223] In R. v. Bush (2010) ONCA 554, Durno J. (ad hoc) discusses the issue of reasonable and probable grounds to arrest in an impaired driving context. He stated:

[36] Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an approved screening device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.

[37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'" (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni, at para. 31; and R. v. Shepherd, 2009 SCC 35, at para. 23.

[38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, [1994] S.C.J. No. 87, at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, 2001 24171 (ON CA), [2001] O.J. No. 377, 9 M.V.R. (4th) 67 (C.A.), at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 250 S.C.R.

[39] While the SCA judge correctly noted that Storrey involved the validity of the arrest for aggravated assault, not impaired driving, I am not persuaded the trial judge inappropriately [page653] applied a reduced standard below reasonable and probable grounds. In Censoni, Hill J. wrote, at para. 42:

In Storrey v. The Queen, supra at 323, Cory J. articulated the overarching context of drinking/driving investigations -- the need for reasonable balance between the individual's rights to liberty and the need for society to be protected from the menace of impaired drivers. Every year, drunk driving leaves a terrible trail of death, injury, and destruction: The Queen v. Bernshaw, supra at 204; Regina v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 539, 541 per Cory J.A. (as he then was). (Emphasis added)

[40] In Storrey, Cory J. addressed the importance of the requirement that officers have reasonable grounds as follows, at pp. 249-50 S.C.R.:

The importance of this requirement to citizens of a democracy is self-evident. Yet society also needs protection from crime. This need requires that there be a reasonable balance achieved between the individual's right to liberty and the need for society to be protected from crime.

[41] In order to address the problems of drinking and driving, Parliament enacted a two-stage scheme for testing for driver impairment, the first involving roadside breath tests and the second, what has become the Intoxilyzer tests.

[42] What the trial judgment and Censoni appropriately examine is the context in which the officer's reasonable and probable grounds obligations operate. Neither advocated a standard of less than reasonable and probable grounds. Both examined reasonable and probable grounds in the context of a roadside investigation, an approach that is consistent with judgments of the Supreme Court of Canada and this Court. Even under the Charter, reasonable and probable grounds can mean different things in different contexts: see R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312, [1996] S.C.J. No. 88, at para. 20; Bernshaw, per L'Heureux-Dubé J., at para. 97; Censoni, at para. 38.

[224] Durno J. went on to say:

[46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni, at para. 43.

[47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90, [1993] O.J. No. 18 (C.A.), affd (1994), 1994 94 (SCC), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, [page655] reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47.

[48] The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato, supra; Moreno-Baches and Wang, at para. 17. Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang, at para. 18.

[225] On my review of the evidence as a whole, I reach the inescapable conclusion that Chirke subjectively believed, and on an objective basis, had the grounds to reasonably and probably believe that Richardson’s ability to operate a motor vehicle was at least slightly impaired by alcohol. Chirke had witnessed, in his pursuit of Richardson, aberrant driving behaviour. Chirke noted classic signs of impairment such as the strong odour of an alcoholic beverage emanating from Richardson’s breath, red and glossy eyes and unsteadiness. Based on those factors, I find that reasonable and probable grounds existed to permit Chirke to arrest Richardson for impaired operation of a conveyance to any degree by alcohol.

Was Richardson’s right to contact counsel of his choice without delay violated contrary to section 10(b) of the Charter?

[226] Defence counsel submits that there was a breach of Richardson’s right to counsel because he was discouraged and dissuaded from contacting his two named counsel of choice, Mr. Adam and Mr. Lyon.

[227] It is noteworthy that at the outset, when Chirke provided Richardson with his rights to counsel at the roadside, the accused declined to speak with a lawyer. Richardson may well have been “overwhelmed”, but I accept the officer’s evidence that he read to the accused his rights to counsel from a standard, police issued card.

[228] Upon arrival at the detachment and with the lodging of Richardson in a holding cell, I find that Chirke went over rights to counsel a second time with the accused. Again, Richardson declined the offer to contact any lawyer he wished.

[229] It was not until Richardson was turned over to Brown at 11:09 PM that the accused asserted his right to counsel to the qualified technician. Brown relayed this information back to Chirke as the arresting officer. Thereafter, Chirke began his efforts to put Richardson into contact with his counsel of choice.

[230] Chirke first attempted to contact Mr. Lyon at Richardson’s request. Having conducted an Internet search looking for contact information on Mr. Lyon, I find that Chirke discovered that Mr. Lyon’s area of practice was focused on family law. He pointed this fact out to Richardson not to dissuade him from speaking to his lawyer of choice, but rather to clarify that Mr. Lyon may not be the best lawyer with whom to consult in light of the predicament in which the accused found himself. I find no fault in the officer’s decision to do so. Chirke did so in good faith. It was not an attempt to discourage Richardson from contacting Mr. Lyon.

[231] Indeed, Chirke went on to contact the office of Mr. Lyon and left a voicemail message seeking a call back from him. Again, in good faith, Chirke informed Richardson that to the officer’s knowledge, Mr. Lyon’s office was only open from 9 AM to 2 PM. Clearly, at some point in time after 11:09 PM, the opportunity for Richardson to speak to Mr. Lyon appeared nonexistent for almost ten hours.

[232] I find that Chirke went on to attempt to find an alternative number for Mr. Lyon. The officer could not locate one on his own. He asked Richardson if he might have one. Apparently, Richardson did not.

[233] Similarly, when Richardson alternatively suggested he could speak to Mr. Adam, Chirke again researched contact information for this particular lawyer. The officer contacted Mr. Adam’s former law firm. He spoke with Ms. Irwin, a lawyer evidently ‘on call’ to assist individuals such as Mr. Richardson on an after-hours basis. She explained that Mr. Adam was no longer a practising criminal defence lawyer. This information was passed along to Richardson by Chirke as well as an offer for him to speak to Ms. Irwin to receive legal advice. Richardson declined.

[234] When asked if Richardson had an alternative contact telephone number for Mr. Adam, he said he did. However, he was unwilling to provide his passcode to police in order to allow them to facilitate contact with Mr. Adam because he was suspicious of police based on recent prior dealings with them. At the same time, Richardson conceded that both Chirke and Brown were entirely professional in their interaction with him.

[235] Chirke too went a step further. He relinquished his earlier inclination to maintain control over Richardson’s cell phone to prevent any video recording the accused may have wished to do inside the detachment. Chirke then offered to provide Richardson with his cell phone, so that he may access the information he needed to contact Mr. Adam. Richardson declined this offer. Indeed, the accused went on to explain to the officer that Mr. Adam was too expensive, and he did not wish to wake him.

[236] As conceded by Brown, police had no right to place a limit on the type of lawyer with whom Richardson wished to consult. However, any misstep Chirke or Brown made in doing so was corrected with Chirke’s offer to hand over Richardson’s cell phone to him and to allow him to contact Mr. Adam or any other lawyer he wished. Richardson chose not to do so.

[237] I find that, as Brown aptly observed, there may have been a “communication breakdown” between police and Richardson, but I conclude that police were not the cause for it. Richardson was being “headstrong” insisting that he would only speak to either Mr. Lyon or Mr. Adam before providing a sample of his breath. Richardson conceded he was aware that police had made attempts to contact both of those lawyers without success. I do not believe Richardson when he testified, under cross-examination, that he did not know why police were giving him his phone.

[238] Correlative with the right to contact counsel of choice is the duty on the part of the accused to be diligent in exercising that right. The right to contact a specific lawyer is not absolute. If the lawyer the accused chooses is not available within a reasonable amount of time, s/he will be expected to exercise the right to counsel by calling a different lawyer (see R. v. Richfield, (2003) 52164 (ON CA) at paras. 6 - 9; R. v. Van Binnendyk, (2007) ONCA 537 at paras 9 – 10; R. v. Willier, 2010 SCC 37, 2 S.C.R. 429 at para. 33, R. v. Gardner, (2021) ONSC 3468 at paras. 59 - 66). I find that Richardson was not diligent at all in that regard. He could have accepted the offer made by police to utilize his phone himself to try to contact Mr. Adam. Instead, Richardson chose not to. Nor did he wish to avail himself of the services of :

a) Ms. Irwin,

b) duty counsel,

c) a lawyer from the list police offered to provide to him, or

d) any other lawyer he wished.

[239] Defence counsel drew my attention to the decision of my colleague, Justice Perkins-McVey in R. v. Bulat, (2015) ONCJ 453. There, Her Honour wrote:

[32] Both Crown and Defence agree that access to counsel of choice is the central issue to this application under s.10(b).

[33] The Ontario Court of Appeal in R. v. McCallen, 1999 3685 (ON CA), [1999] O.J. No 202 at para 34-37 stated that the right to choose counsel one trusts, and has confidence in, is important not only to the accused, but also to the objective perception of fairness in the justice system as a whole. As stated by Justice O’Connor at para 36, choice of a client with respect to counsel must be respected and protected unless there are compelling reasons involving the public interest, the government (and it’s agents) or even courts themselves “need not be involved in decisions about which counsel clients may choose to act on their behalf.” The rationale from the decision in R. v. McCaller has been applied to the right to counsel of choice in a Breathalyzer context in the decision of R. v. Snider, 2001, OJ 1772 at para 10 (Ontario Superior Court).

[34] It goes without saying, that an accused who has received a demand for a sample of breath must make important legal decisions about whether to comply, and could face further criminal charges if they chose not to comply with a valid demand.

[35] In explaining the fundamental importance of the right to counsel of choice, and the significance of the Charter right to counsel under s. 10(b), Justice O’Connor, on behalf of the Ontario Court of Appeal states in R. v. McCallen (at para 34-37):

“The solicitor-client relationship is anchored on the premise that the clients should be able to have complete trust and confidence in the counsels who represent their interests…In addition to constituting a valuable personal right to clients, s.10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system…The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against the. Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state of court interference with a decision that quite properly should be the personal decision of the individual whose interests are at stake…”

[36] In R. v. Kumarasamy, Justice Durno, of the Ontario Superior Court, stated that police must facilitate contact with counsel whether the accused has the number or not. CC para 21 & 22 Justice Durno said that access to duty counsel or a lawyer list cannot be used as to trump a detainee’s right to counsel of choice.

[37] The only qualification to the right of an accused to access counsel of choice is if that lawyer cannot be available in a reasonable timeframe, then an accused is expected to exercise his or her rights by calling other counsel. As stated by the SCC in R. v. Willier, [2010] SCC 37 at para 41:

“Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak to other counsel and wait a reasonable amount of time for their lawyer of choice to respond.”

[38] If there is to be a waiver of s.10(b) rights, it is well established that the standard of waiver is very high, and that there must be clear, and unequivocal waiver. In R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236 at par 45, the Supreme Court indicated that once a detainee asserts the right to counsel, there must be a clear indication that he or she has changed his or her mind. Further, the waiver must be free and voluntary, and cannot be as a result of direct or indirect compulsion. The burden of establishing that the accused waived his or her right would fall on the Crown.

[39] In this case, the Crown concedes Cst. Karwaski attempted to dissuade Mr. Bulat from calling the law firm he identified and persuaded him to call criminal counsel from the list at the police station. The Crown concedes no attempt was made to reach Mr. Bulat’s counsel of choice. The Crown argues that Mr. Bulat changed his mind before any lawyer was contacted, and that Mr. Bulat chose to call a lawyer off the list of criminal lawyers posted at the police station. The Crown invites the court to determine if Mr. Bulat changed his mind out of coercion, or some lack of understanding as to his legal right to speak to his counsel of choice, or did he voluntarily change his mind as to his counsel of choice, as was his right.

[240] In this case, the Crown did not concede that Csts. Chirke or Brown dissuaded Richardson from contacting counsel of choice. To the contrary, the Crown argued that the officers made concerted efforts at explaining to Richardson their attempts at contacting Mr. Adam and Mr. Lyon. The police went so far as to offer to Richardson his cell phone so that he could access the information necessary to contact counsel of choice. He declined those offers, even though he was granted reasonable opportunities to reach them. Nor did he avail himself of the opportunity to speak to a different lawyer.

[241] At the root, Richardson limited his own choices as to who he wished to consult. In law, he did not have a basis for doing so.

[242] Under the circumstances, I can find no breach of the section 10(b) Charter right to counsel has been made out on a balance of probabilities on the evidence adduced at the blended voir dire trial. Police offered Richardson ample, reasonable opportunities to contact counsel of choice. He did not avail himself of them (see R. v. Wijesuriya (2020) ONSC 253 at paras. 44 & 60).

Should any evidence admitted at trial be excluded under section 24(2) of the Charter?

[243] Having found no breaches of Richardson’s Charter rights, there is no need to conduct an analysis under section 24(2) of the Charter.

Did Richardson intentionally refuse to comply with the demand for breath samples made by Chirke?

[244] The short answer is yes.

[245] Although Richardson was initially willing to comply with Chirke’s demand to provide a breath sample (i.e. “I will oblige.”), at the detachment in speaking to the breathalyzer technician, Brown, it became abundantly clear that his willingness to do so was conditional upon speaking to one of two named lawyers.

[246] His belief that he could hold out and refuse to comply with Chirke’s demand until he spoke with either Mr. Adam or Mr. Lyon was erroneous. Richardson did not have that legal right. As a result, his defiance of Chirke’s demand resulted in a failure to provide samples of his breath when Richardson knew full well what the police officers were requiring of him.

[247] An accused’s mistaken belief that he could indefinitely await the advice of a chosen lawyer cannot serve as a legal defence to a charge of failure to comply with a demand to provide a breath sample, nor can it constitute a reasonable excuse.

[248] I find the decision of Doody J.in R. v. Wharton, (2020) ONCJ 52 both instructive and helpful to me in deciding this case. On the issue of refusing to provide a breath sample, albeit in an approved screening device context, His Honour held:

[27] The defendant also submits that he did not have the requisite mens rea because his request to call a lawyer showed that he may have provided the sample later, after he spoke with counsel, and because the Crown had not proven that he declined to provide the sample knowing that it would thwart the officer’s efforts to obtain the appropriate sample. I do not accept that submission. As the defendant admitted in cross-examination, and as is apparent from the facts, he decided to refuse to provide the sample when it was demanded. This is not a case where he may have been attempting to provide a sample but could not do so. As I have found, he intentionally declined to comply with the demand when he was required to do so. He intended to refuse. He had the necessary mens rea.

[28] The defendant relies on two cases to support his submission that he lacked the requisite mens rea.

[29] In R. v. McCann, 2015 ONCJ 169, the defendant refused to comply with a lawful demand, saying that she wanted to speak to a lawyer to obtain legal advice. Horkins J. dismissed the charge, holding that he had a reasonable doubt that her refusal was unambiguous, unequivocal or final. He held that the defendant was operating under a mistake of law that she had a right to refuse the roadside breath demand and that, though mistake of law was no defence, she was mistaken and confused and if she had received legal advice she would have complied with the demand.

[30] In R. v. Kumar, 2016 ONSC 7928 at paras. 87-94, however, Bielby J. held that the McCann decision was wrongly decided. He was sitting as a Summary Conviction Appeals Court judge and his decision is binding on me. I do not accept defence counsel’s submission that Kumar is distinguishable because trial judge in that case had found that the defendant did not tell the officer that he wanted to talk to a lawyer before he provided the sample. Bielby J. explicitly held at para. 71 that he would determine the issue on the basis that the defendant had told the officer he wanted to speak to a lawyer before providing the sample.

[31] In R. v. Delarm, 2013 ONSC 975, McMunagle J. dismissed a Crown appeal from a decision of Brunet J. of this court in which he had acquitted a defendant of refusing to provide a roadside breath sample. The defendant had testified that he told the arresting officer that he would not be providing the sample without speaking to an attorney. The arresting officer testified that there was no such statement – that the defendant had simply refused to provide the sample. It appears from the appeal court’s decision that the trial judge had applied R. v. W.(D.) and held that the Crown had not proven beyond a reasonable doubt that the defendant had the required mens rea. McMunagle J. expressly held at para. 15 that the trial judge had not held that a requirement that a condition precedent, like speaking to a lawyer, be met before complying with a demand was tantamount to an equivocal refusal and a valid defence. In my view, this decision does not assist the defence.

[32] Both McCann and Delarm were written before the decisions in Slater, Drouillard, and King, which clearly established the actus reus and mens rea requirements of this offence. I decline to follow McCann. To the extent that Delarm stands for the proposition that a driver who refuses a lawful demand because of a desire to consult a lawyer does not have the appropriate mens rea, I respectfully decline to follow it as well.

[33] In my view, the issue raised by the defendant is most appropriately considered under the issue of whether a defendant has a “reasonable excuse” for refusing to immediately comply with a lawful demand when he wishes to speak to a lawyer before deciding whether to comply.

[34] The answer is clear. On the present state of the law, this is not a reasonable excuse. As the Court of Appeal held in R. v. George, 2004 6210 (ON CA), [2004] O.J. No. 3287 at paragraph 55:

Where an officer is in a position to require that a breath sample be provided by the detainee before the detainee has any realistic opportunity to consult counsel, the detainee does not have the right to delay the production of the breath sample in order to consult counsel by virtue of the ready availability of a telephone.

[35] It is not relevant that the defendant had a lawyer’s number in his cell phone and would have been able to quickly obtain advice. (George, para. 55)

[36] Nor is it relevant that he may well have provided the sample in short order had he been given an opportunity to speak to counsel . . .

[249] In R. v. Karunakaran, (2021) ONCJ 607, Amarshi J. discussed the gravamina of a refusal or failure to provide a breath sample. His Honour stated:

51. The elements of an offence under s. 320.15 are the following:

(i) A proper demand.

(ii) A failure or refusal by the accused to produce the required sample.

(iii) An intention as explained by the court in R. v. Slater, 2016 ONSC 2161. That intention may be inferred from the circumstances.

52. It is well established that when considering whether the Crown has proved beyond a reasonable doubt that the accused has failed to comply with a breath demand, the court must look at all of the circumstances of the entire transaction between the police officer and the accused.

53. Once the Crown proves these elements of the refusal offence, an accused can still avoid a conviction if he or she establishes a reasonable excuse on a balance of probabilities. . .

(ii) Actus Reus

58. It is not disputed that there was a failure on part of Mr. Karunakaran to provide a suitable breath sample at the police division.

(iii) Mens Rea

59. There have been divergent views in the interpretation of the mens rea component for this offence.

60. There is authority that holds the refusal must be proved by the Crown to be intentional in order to ground liability under this offence. A second line of authority based on a 2012 decision by Justice Code - R. v. Porter, 2012 ONSC 3504, holds that knowledge of the prohibited act itself, that is, a failure to provide a suitable sample is sufficient to satisfy the mens rea component for this offence.

61. This debate is thoroughly canvassed in a decision by Justice Paciocco, as he then was, in R. v. Soucy, 2014 ONCJ 497, [2014] O.J. No 4518 (OCJ), which is not necessary to repeat in this decision.

62. Mr. Tomovski in his submissions alerted me to a decision by Justice Nordheimer, as he then was, in R. v. Slater, supra – a summary conviction appeal judgment, which reconciles these competing lines of authority and is binding in these circumstances:

At paragraph 12, Nordheimer J. stated:

The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.

63. Under this approach, the Crown is still obligated to prove mens rea, but an inescapable inference makes this task straightforward. Proof of mens rea will be met by the application of the general principle that a person usually intends to cause consequences which are predictable.

64. In 2018 Parliament repealed and replaced all driving provisions in the Criminal Code of Canada. The provision governing a failure or refusal to provide a screening or breath demand has been amended. The amendment post-dates Justice Nordheimer’s decision, however both Crown and Defence agree that R. v. Slater continues to apply.

65. The following is an agreed statement on the law from the prosecution and defence which was filed with this court and which I accept:

“Currently, s. 320.15(1) of the Criminal Code states that "[e]veryone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28”. Prior to the most recent amendments, s. 254(5) read “[e]veryone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section”. The only change post-amendments is the insertion of the following “, knowing that a demand has been made,”. The addition of the word “knowing” is included within the commas with the phrase “knowing that a demand has been made” and serves simply to add a mental (intent) requirement to the words “that a demand has been made”. Thus, an accused must know that a demand has been made. The addition of the word “knowing” does not relate to the portion that previously and continues to be outside the commas, that is “fails or refuses to comply.” As such, R. v. Slater 2016 ONSC 2161 (Ont. S.C.J.) remains good law.”

[250] I find that Chirke made a valid demand for breath samples from Richardson. The officer read it from his standard, OPP issued card. The accused understood fully what Chirke sought. Richardson refused to provide them. He placed a condition upon providing them. He was adamant he would not provide any until he spoke to either Mr. Adam or Mr. Lyon. Reasonable opportunities were granted to him to consult Mr. Adam, Mr. Lyon or a different lawyer. He declined. In law, Richardson had no basis for withholding his samples. Under those circumstances, his refusal was quite intentional.

Was Richardson’s ability to operate a motor vehicle impaired to any degree by alcohol?

[251] In R. v. Tompkins, (2021) ONCJ 689, West J. concisely summarized the principles at play in determining whether the offence of impaired operation of a conveyance has been proven. He wrote:

[97] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 affirmed 1994 94 (SCC), [1994] 2 S.C.R. 478; Graat v. The Queen (1982), 1982 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), 1991 2751 (PE SCAD), 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[98] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[99] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, “Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.”

[252] Further, in R. v. Titcombe, (2022) ONSC 689, Christie J., hearing a summary conviction appeal, offered:

[36] There is no question that a trial judge must consider the totality of the evidence, including evidence of non-impairment, when making a determination on the charge of impaired operation. See R. v. Udma, 2019 ONSC 2350, paras 12-15.

[253] When Chirke pulled over Richardson’s vehicle, the officer had witnessed some concerning driving behaviour. Richardson had been speeding. For a period, he had been straddling the centre line of the dual lane highway. He left his left turn indicator on while manoeuvering over to the right shoulder of the road before coming to rest.

[254] Upon approaching the driver’s side window of Richardson’s truck, Chirke noticed some signs of alcohol impairment upon assessment of the physical condition of the accused. There was a strong odour of alcohol emanating from Richardson’s breath. His eyes were red and glazed over. His face was flushed. He had trouble locating his licence, registration and insurance.

[255] To this point, Chirke only suspected that Richardson’s ability to operate a motor vehicle was impaired to any degree by alcohol. For that reason, Chirke intended to use an approved screening device to confirm whether or not Richardson had a blood alcohol concentration above the legal limit. However, when Richardson exhibited general unsteadiness as he exited his truck, and then lost his balance and bumped into his truck with his shoulder, Chirke abandoned the notion of utilizing the approved screening device. He proceeded to arrest Richardson.

[256] While Chirke had reasonable and probable grounds to believe that Richardson’s ability to operate a motor vehicle was impaired to even a slight degree by alcohol, it does not follow that the evidence adduced at Richardson’s trial proved to the Court beyond a reasonable doubt that his ability was impaired to that extent.

[257] I entertain a reasonable doubt that it was for the following reasons:

a) following the observations of unsteadiness made at the roadside, Chirke did not notice any others, notwithstanding Richardson’s emergence from the police cruiser as a heavyset man without difficulty, and his walking about the detachment without loss of balance. I would have expected him to exhibit more unsteadiness if he had been impaired by alcohol to any degree. Apparently, he did not.

b) Chirke and Brown made conclusory remarks about how Richardson’s speech was slurred throughout their interaction with him. Nevertheless, Chirke agreed that when Richardson responded to the demand to provide breath samples with: “I will oblige”, he was not slurring. Indeed, no specific words Richardson used were noted by police to be slurred.

c) Upon hearing the audio and video recorded interactions between police and Richardson in the breath room, I could not hear any slurred speech on the accused’s part.

d) I accept Richardson’s explanations about why his left indicator was left on. He was accelerating to merge into a live lane of fast-moving traffic on a major highway. He exceeded the speed limit in doing so. He then saw flashing lights, which initially confused him, but he quickly determined they did not belong to him. He pulled over in a short period of time thereafter.

e) Richardson gave an account as to why the odour of an alcoholic beverage was on his breath. It could have been true. I am inclined to accept it.

f) The red, “glazed over” eyes and the flushed face can be attributable to fatigue, or the natural state of Richardson’s eyes and complexion. In the courtroom, Richardson’s eyes appeared to me to be watery. His complexion was ruddy.

[258] Considering all the factors regarding the aberrant driving behaviour and physical condition of Richardson at the time he was stopped, and the complete absence of any unsteadiness thereafter, I cannot be sure that Richardson was operating a conveyance while his ability to do so was impaired by alcohol to any degree.

Conclusion

[259] Having carefully considered all relevant evidence adduced at Richardson’s trial, I find that he has not established on a balance of probabilities that any of his Charter rights were breached during his interactions with police on the night in question.

[260] Furthermore, I am satisfied beyond a reasonable doubt that the Crown has proven all the necessary elements of the offence of failing or refusing to comply with a demand made under section 320.18 of the Code, without reasonable excuse, contrary to section 320.15(1) of the Code.

[261] Richardson shall be found not guilty of operating a conveyance while his ability to do so was impaired by alcohol to any degree contrary to s. 320.14(1)(a) of the Code.

DATED: June 7, 2022

March, M.G., J.