Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 07 13 COURT FILE No.: College Park, Toronto 19-15008287

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KHANIJ CHOPRA

Judgment

Before: Justice B. Jones

Heard on: April 4, 5, May 2, and July 5, 2022

Reasons for Judgment released on: July 13, 2022

Counsel: J. Foreman, counsel for the Crown G. Lafontaine and J. Kushnir, counsel for K. Chopra

Jones J.:

Introduction

[1] Khanij Chopra is charged with impaired operation of a conveyance (Criminal Code section 320.14(1)(a)), “over 80” (Criminal Code section 320.14(1)(b)), and possession of a schedule III controlled substance (Controlled Drugs and Substances Act section 4(1)).

[2] Mr. Lafontaine filed a Charter application alleging violations of his client’s rights under sections 8, 9, 10(a) and 10(b). He sought to exclude from evidence the breath samples Mr. Chopra provided, and a controlled substance located on his person following his arrest pursuant to section 24(2).

[3] The Crown filed an application seeking to introduce utterances made by Mr. Chopra during the police investigation for substantive purposes.

[4] The trial and both applications proceeded in a blended hearing.

Police Investigation

[5] On November 15, 2019, just after 8 a.m., Neil Smith noticed Mr. Chopra apparently unconscious or asleep inside his motor vehicle, a silver Nissan Altima. It was parked on St. Cuthbert’s Road in the city of Toronto on the east side of the street. The engine was still running. The vehicle’s front bumper was abutting the rear of Mr. Smith’s work van which he had parked on the street the previous day.

[6] There was some minor damage to the front of the Nissan and the rear bumper of his work van had been dented on the left side. That damage was not present when he parked the van. He did not know how the damage occurred.

[7] At approximately 8:21 a.m. PC Lee arrived. He observed the front of the Nissan wedged slightly underneath the rear of the van. He located Mr. Chopra in the driver’s seat and asked him to step out of his vehicle. He spoke with him and asked him questions about the accident. He appeared tired and had bloodshot eyes. There were no other indicia of impairment. In response to PC Lee’s questions, he stated that he was in the car “because he was drunk and high.” Notwithstanding this statement, PC Lee left Mr. Chopra and returned to his police vehicle. He witnessed Mr. Chopra turn his vehicle on and reverse it a short distance, dislodging it from the van. This caused PC Lee no concern.

[8] PC Lee clarified that while Mr. Chopra was not detained for any criminal law purpose, he was detained under the authority of the Highway Traffic Act.

[9] PC Grewal arrived at approximately 8:35 a.m. Officer Grewal was assigned to Traffic Services. He had been an officer for fifteen years, but this was only his second impaired driving investigation.

[10] When he arrived there was light snow on the roadway. St. Cuthbert’s is a two lane street running in an east-west direction. He observed both vehicles had been involved in the minor accident in the eastbound curb lane. There was extensive damage to the rear of the Nissan and damage to its front bumper. The van had minor damage to its rear bumper on the passenger side. The damage on the rear of the van seemed to correspond to the damage on the front passenger side of the Nissan. The two cars were not touching when he made his observations.

[11] He located Mr. Chopra sitting in the driver’s seat of the Nissan. He spoke to him outside of his car on the roadway. He asked him questions about the damage to his vehicle. During this conversation PC Grewal noticed that Mr. Chopra’s eyes were bloodshot and red. There were no other signs of impairment. He was steady on his feet and spoke clearly. He did not notice an odour of alcohol.

[12] PC Grewal testified that Mr. Chopra was not detained. He was investigating a traffic accident and needed to speak to Mr. Chopra to determine what had occurred.

[13] Crown counsel played the in-car camera recording of PC Grewal’s conversation with Mr. Chopra. It begins at approximately 8:38 a.m. During this conversation Mr. Chopra informs PC Grewal that he consumed a 20mg THC pill the night prior at approximately 9:30 – 10:00 p.m. The conversation continues until 8:51 a.m. when PC Grewal tells Mr. Chopra to sit in his vehicle and orders him to not start the car and to not “go anywhere.”

[14] PC Grewal spoke to the paramedics at the scene and two civilian witnesses who had located Mr. Chopra in his vehicle before the arrival of the police. He then spoke to PC Lee again. PC Lee informed PC Grewal about Mr. Chopra’s utterance that he was in his vehicle because he was “drunk and high.” PC Grewal did not have this information previously. In light of this statement, PC Grewal decided he had reasonable and probable grounds to arrest Mr. Chopra for impaired care or control of a motor vehicle due to the consumption of drugs. He placed him under arrest at 9:25 a.m. He did not immediately read him his rights to counsel.

[15] PC Grewal explained he believed he had reasonable and probable grounds to make an arrest based on the following factors:

• Mr. Chopra’s eyes were bloodshot red;
• He admitted he consumed a THC pill;
• Independent witnesses confirmed he was located unconscious in the driver’s seat of the motor vehicle;
• The damage between Mr. Chopra’s car and Mr. Smith’s van suggested a minor accident had occurred; and
• Mr. Chopra’s utterance to PC Lee that he entered the car because he was “drunk and high.”

[16] It was this last factor that tipped the scales in favour of making the arrest. PC Grewal handcuffed and searched Mr. Chopra. He located a clear Ziplock bag in a pocket of his jacket. This contained a white substance that was later identified as psilocybin, a controlled substance contained in schedule III of the Controlled Drugs and Substances Act. After locating this substance, PC Grewal asked Mr. Chopra about it. He replied it was magic mushrooms. PC Grewal arrested him again for possession of a controlled substance.

[17] He escorted Mr. Chopra to his police vehicle and read him his rights to counsel at 9:29 a.m. Mr. Chopra indicated he wished to speak to a lawyer. PC Grewal then made a demand pursuant to Criminal Code section 320.28(2)(a) for Mr. Chopra to submit to an examination by an evaluating officer (hereinafter the “DRE demand”).

[18] He transported Mr. Chopra to Traffic Services Division. They arrived at 10:16 a.m. During the drive PC Grewal noticed a strong smell of alcohol emanating from Mr. Chopra in the back of the squad car.

[19] At the station Mr. Chopra was taken before PC Smith, who was both a qualified breath technician and a qualified drug recognition expert (“DRE”). He decided that he would request a breath sample from Mr. Chopra into an approved instrument. No breath demand was made for this first sample of Mr. Chopra’s breath. PC Smith considered that the earlier demand to submit to an evaluation by an evaluating officer lawfully authorized the collection of this breath sample. While PC Smith did not testify, the parties agreed this was an accurate summary of the evidence on this point. I will return to the significance of this decision by PC Smith later in these reasons.

[20] Mr. Chopra provided one breath sample into the approved instrument. That sample produced a result over the legal limit. PC Grewal then read to Mr. Chopra a demand for him to provide further breath samples into an approved instrument pursuant to Criminal Code section 320.28(1)(a)(i).

[21] Mr. Chopra complied and provided two more samples of his breath into an approved instrument. They registered readings that were greater than 80 mg of alcohol per 100 ml of blood. A certificate of a qualified technician was admitted on consent, subject to my determination of the Charter application.

Position of the Parties

[22] Mr. Lafontaine submits that PC’s Lee and Grewal violated his client’s rights under sections 8, 9, 10(a) and (b) of the Charter. Mr. Chopra had been detained as early as the start of PC Lee’s investigation at 8:21 a.m. He was not provided with the reasons for his detention and nor was he given his right to counsel until 9:29 a.m. The violations were particularly serious because Mr. Chopra waited in his car and during that time he could have contacted his counsel of choice to seek advice and determine how he would respond to the ongoing criminal investigation.

[23] Any utterances his client made were in response to direct police questioning before he was given his rights and therefore should not be admitted for any substantive purpose.

[24] Additionally, PC Grewal’s DRE demand was not made “as soon as practicable” and thus constitutes a separate Charter section 8 violation. If PC Grewal was going to arrest his client and make this demand, he was obligated to do so much earlier. He could not simply leave Mr. Chopra in a state of uncertainty for an extended period of time following his initial interrogation of him at the roadside.

[25] The evidence should be excluded under section 24(2) given the serious nature of the breaches. In particular, he asks that I focus my analysis on the denial of his client’s right to counsel for nearly an hour at the roadside. The police conduct in this case was irresponsible and showed egregious disregard for their obligations under the Charter.

[26] With respect to the impaired driving charge, I should be left with a reasonable doubt that Mr. Chopra was impaired at the time he was located by PC Lee in his car. Even the officers themselves did not believe they could arrest him based on their observations. He was simply not displaying sufficient signs of impairment. While the circumstances surrounding the accident involving the van may have warranted investigation by the police, Mr. Lafontaine cautions me against venturing into unwarranted speculation. Based on the evidence that I heard, I simply cannot conclude that Mr. Chopra’s ability to operate his conveyance was in fact impaired by alcohol or drug or a combination thereof.

[27] On behalf of the Crown, Mr. Foreman argued that the utterances Mr. Chopra made to PC Lee were admissible for substantive purposes as he chose to speak to PC Lee well before he was criminally detained. Mr. Foreman accepted that the evidence established Mr. Chopra was criminally detained at 8:51 a.m., which was prior to his arrest at 9:25 a.m., even if the officers didn’t subjectively appreciate he was detained. However, he also took the position that PC Grewal still acted reasonably during the rest of his investigation into the accident and Mr. Chopra’s state of sobriety. As a result, Mr. Chopra’s constitutional rights were suspended during at least some portion of the time period between 8:51 am and 9:25 am as this formed part of a lawful investigative detention. In turn, this should mitigate any potential breaches that I might find.

[28] He also submits that no section 8 violations occurred with respect to the initial demand for Mr. Chopra to submit to an evaluation by the drug-recognition expert because the demand was carried out “as soon as practicable” thereafter. That requirement only begins once the officer forms the subjective grounds to make his demand. PC Grewal formed those grounds by 9:25 a.m. and following the arrest promptly made this demand.

[29] The search of Mr. Chopra which revealed the magic mushrooms was lawfully conducted incident to arrest and the evidence is thus admissible.

[30] Furthermore, whatever my conclusions on the Charter applications, there is ample evidence to support a conviction on the impaired count. Mr. Chopra was found asleep in his car with some indicia of impairment and admitted to being “drunk and high” at least at some point in the recent past before PC Lee’s arrival. He admitted to PC Grewal he consumed a THC pill the night previously, and the evidence of a minor accident supports the conclusion his ability to control his vehicle was impaired by the consumption of a drug or alcohol.

Admissibility of Mr. Chopra’s Statements to PC Lee

[31] Not every interaction between police officers and an individual amounts to a detention as contemplated by section 9 of the Charter: see R. v. Suberu, 2009 SCC 33 at para. 3. An applicant can establish that a detention occurred where his liberty interests were suspended by a significant physical or psychological restraint: see R. v. Grant, 2009 SCC 32 at para. 44. Psychological detention can arise either where the applicant has a legal obligation to comply with a restrictive request or demand, or where a reasonable person in the applicant’s position would conclude he had no choice but to comply given the conduct of the police officers.

[32] PC Lee’s interaction with Mr. Chopra began during the initial stages of an investigation to a minor motor vehicle accident. When he arrived on scene, he was attempting to determine what had occurred and whether the information received from a radio call was reliable. He was lawfully entitled to ask Mr. Chopra questions and make observations of him during the course of his investigative duties. Indeed, officers are required to competently conduct an investigation in a manner they deem appropriate to determine how an accident occurred and whether or not they have reasonable grounds to believe any offences were committed. Even when that investigation involves a possible impaired driver this may include asking questions of the driver himself: Grant, supra at para. 38; R. v. Bush, 2010 ONCA 554 at para. 67; R. v. Golub at para. 19.

[33] Statements made by the driver during this phase of the investigation may be admissible evidence for all purposes: see R. v. Guenter, 2016 ONCA 572 at paras. 44-47. Where statements are made by a driver prior to the moment of criminal detention during the initial stages of an investigation but fall short of constituting compelled answers to police questioning they are admissible: Guenter at para. 55. Simply because an individual is ultimately detained by a police officer that does not mean that same individual was necessarily detained for criminal law purposes from the very beginning of his interactions with that officer: Suberu at paras. 3-5. The mere fact that PC Lee approached Mr. Chopra while he was standing outside next to his vehicle and asked him questions does not necessarily preclude the admission of his statement: Guenter at paras. 58-62; Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 14, pp. 218-19.

[34] This case bears some similarities to Guenter, supra, where the Court of Appeal held statements made to an officer during a “fluid and dynamic” traffic investigation were admissible for substantive purposes. The initial questions asked of the appellant in Guenter were of an exploratory nature like those posed by PC Lee to Mr. Chopra. For example, the appellant in Guenter was first asked if he had any injuries, and he responded with a statement incriminating himself and admitting he was the driver of one of the vehicles involved in an accident. The trial judge in that case found that the statements were “simply things Mr. Guenter offered freely”: see para. 33.

[35] An inculpatory statement made by an accused to a person in a position of authority is inadmissible unless the Crown proves it was made voluntarily beyond a reasonable doubt: R. v. Oickle, 2000 SCC 38, R. v. Spencer, 2007 SCC 11. Mr. Lafontaine does not dispute the statement meets that standard. In the absence of a Charter application seeking to exclude a statement pursuant to the section 7 Charter right against self-incrimination (see R. v. White, Supreme Court of Canada), a statement made in response to police questioning does not necessarily render the statement “involuntary” for common law purposes and nor should the statement be considered compelled. This is the case even if there is a statute that requires the person to speak to the police [1]: see R. v. MacMillan, 2021 ONSC 5014 at paras. 138-142; R. v. Kovacevic, 2017 ONSC 193 at paras. 55-56; R. v. Slopek (1971) at pp. 365-6.

[36] Mr. Chopra did not testify on the Charter voir dire and I am left with PC Lee’s evidence alone. His statement that he was in his car because he was “drunk and high” previously was voluntarily given during the initial stages of an investigation into a motor vehicle accident. It is admissible for all purposes.

Charter – Sections 8, 9, 10(a) and 10(b)

(i) Moment of Criminal Detention – Charter Section 9

[37] PC Lee considered Mr. Chopra detained for Highway Traffic Act purposes during his initial investigation, but not criminal law purposes. While motorists pulled over by a police officer in the context of a standard impaired driving investigation are clearly detained within the meaning of section 9 of the Charter, as Fairburn J. noted (as she then was) in Kovacevic, supra, “motorists who are approached by the police because of a motor vehicle accident may stand on a different constitutional footing”: see para. 55; see also R. v. Jin, 2018 ONSC 2898 at paras. 38-50.

[38] Whatever the basis for PC Lee’s initial investigation, once Mr. Chopra admitted to having been previously “drunk and high” in the vehicle at 8:27 a.m. he had reasonable grounds to at least suspect that he had care or control of the vehicle while his ability to do so was impaired by a drug or alcohol. As a result, he had authority to lawfully demand that he either immediately perform physical coordination tests or provide samples of a bodily substance that are necessary to enable a proper analysis to be made by means of approved drug screening equipment: Criminal Code sections 320.27(1)(a) and (c). The officer had discretion to make either demand as the section uses the word “may”, and not “shall”, and was intended to expand the array of investigative mechanisms available to peace officers to combat impaired drivers: see R. v. Thome, 2020 SKPC 36, at paras. 26-27.

[39] PC Lee did not make such a demand. Rather, he waited for the assistance of PC Grewal from Traffic Services who arrived at 8:35 a.m. Mr. Foreman accepted during submissions that PC Lee could have made such a demand or even made an arrest at the moment PC Chopra made this utterance. Yet he maintains that this does not mean Mr. Chopra was detained as PC Lee did not subjectively appreciate what grounds he had. During this period of time I find he was detained for criminal law purposes: see R. v. Rowson, 2015 ABCA 354 at para. 55. While he was not subject to physical restraint, I do not accept that PC Lee would have simply allowed him to leave the scene. He had been speaking to a uniformed police officer about an accident that included questions about his consumption of drugs and/or alcohol. He made a statement he had been intoxicated while in the vehicle. This was now a criminal investigation: see R. v. Kubacsek, 2021 ONSC 5081 at paras. 36-39.

[40] In Grant, supra at para. 41, the Supreme Court summarized the appropriate factors to consider when determining whether a reasonable person in the applicant’s circumstances would conclude that he had been deprived by the state of the liberty of choice:

(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintain general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[41] Mr. Chopra was singled out for a particular investigation by PC Lee. At 8:35 a.m. another uniformed police officer, PC Grewal, arrived. Mr. Chopra was asked more questions about the accident commencing at 8:38 a.m. The recording of this conversation demonstrates the questioning was intended to convey to Mr. Chopra that PC Grewal was not satisfied with his answers and was concerned about his possible impairment. He asked several questions about the cause of the damage to the front and rear of his vehicle, if he had consumed any intoxicants, and why he ended up asleep in his car. While this was a legitimate investigation, Mr. Chopra was not in a position to simply remove himself whenever he pleased.

[42] If there were any doubt in Mr. Chopra’s mind about his liberty status, it was certainly dispelled at 8:51 a.m. when PC Grewal ordered him to sit in his vehicle and “not go anywhere.”

[43] I do not find PC Lee or PC Grewal were deceiving Mr. Chopra or in any way deliberately attempting to circumvent his constitutional rights. PC Grewal did admit to being inexperienced with respect to impaired driving investigations and accepted that, in retrospect, he made some errors. Nevertheless, Mr. Chopra’s liberty interests were impacted by state action. A reasonable person, in Mr. Chopra’s circumstances, would have felt deprived of a choice to simply leave the scene of the investigation: see R. v. Le, 2019 SCC 34, at para. 25. To clarify, I find he was detained for criminal law purposes at 8:27 a.m.

[44] Other counts have reached similar conclusions about the moment of detention in a traffic accident investigation even where the investigating officers themselves testified that they did not consider the motorist detained. In R. v. Mohamed, 2018 ONCJ 264, police officers were investigating a car accident. The first officer on scene was uniformed and located the motorist in the back of an ambulance. He questioned her about the cause of the accident and noticed an odour of an alcoholic beverage coming from her breath. He did not arrest her at that moment but told her he’d “be right back.” Despite the officer testifying that he did not consider her detained, the court found she was detained following this interaction in the ambulance: see para. 43. Similarly, in R. v. Bennett, 2021 MBPC 67, uniformed police officers were investigating a motor vehicle accident. One officer located the driver of the vehicle in an ambulance and he was given a police caution. The officer asked him questions about what occurred. He was not formally arrested. The court found this was the moment of detention: see para. 73.

[45] PC Lee’s subjective belief that Mr. Chopra was not detained for any criminal purpose during his part in the investigation and PC Grewal’s subjective belief that Mr. Chopra was not detained until his formal arrest are factors to be considered but are not dispositive of this issue: see R. v. Omar, 2018 ONCA 975 at para. 42.

[46] PC Lee was entitled to detain Mr. Chopra initially as part of a traffic collision investigation: see R. v. Tim, 2022 SCC 12 at paras. 57-59. PC Lee and PC Grewal were also subsequently entitled to detain Mr. Chopra for further investigative purposes as they developed reasonable grounds to suspect that Mr. Chopra was also connected to a particular criminal activity – in this case, impaired care or control of a motor vehicle. The detention was reasonably necessary in the circumstances and the officers were entitled to rely upon their experience and training when making this determination: see R. v. Mann, 2004 SCC 52 at para. 45; R. v. MacKenzie, 2013 SCC 50, at para. 62. Thus, I do not find any breach of section 9 of the Charter at this initial stage of the officers’ investigation.

[47] While the detention began lawfully, it subsequently became unlawful however. An investigative detention is meant to be brief. PC Lee began his investigation at 8:21 a.m. PC Grewal commenced questioning Mr. Chopra at 8:38 a.m. and finished at 8:51 a.m. 30 minutes passed for what began as a routine traffic accident investigation and then evolved into a criminal investigation. By some point prior to 8:51 a.m., the two officers had enough information to make a decision about whether or not to arrest Mr. Chopra and issue a DRE demand. Instead, they did not properly communicate with one another, and Mr. Chopra was left in a state of constitutional limbo until PC Grewal finally decided to arrest him at 9:25 a.m.

[48] Where an investigative detention persists for an unacceptable period of time a lawful detention becomes unlawful. An investigative detention is permissible for as long as it is "reasonably necessary" in the "totality of the circumstances": see R. v. Clayton, 2007 SCC 32 at paras. 30-31. What is reasonably necessary will depend on the "nature of the situation". In R. v. Barclay, 2018 ONCA 114, the Ontario Court of Appeal listed the following set of non-exhaustive factors for a court to consider at para. 31:

• intrusiveness of the detention
• nature or seriousness of the offence,
• complexity of the investigation,
• any immediate public or individual safety concerns,
• the ability of the police to continue the investigation without continuing the detention of the suspect,
• the lack of diligence of the police,
• the lack of immediate availability of investigative tools,
• the information known to the police about the suspect or the crime, and
• the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope.

[49] Nothing in this case justified a prolonged investigative detention of Mr. Chopra. By 8:51 a.m. at the latest, PC Grewal was sufficiently informed to make a decision with respect to whether or not to arrest Mr. Chopra, make a lawful demand, or simply allow him to continue on his way: Impaired Driving and Other Criminal Code Driving Offences, Karen Jokinen and Peter Keen, Emond Montgomery Publications Limited, 2019, Toronto, ON, Chapter 16, p. 244. No further detention for investigative purposes was lawful. The officers were simply not acting diligently in the course of a straightforward, routine accident and possible impaired driving investigation.

[50] I find Mr. Chopra’s continued investigative detention became unlawful during the time period between 8:38 and 8:51 am. Thus, his section 9 Charter right was ultimately breached.

(ii) Charter Sections 10(a) and (b)

[51] Having detained Mr. Chopra, whether they realized it or not, the officers faced certain constitutional obligations. An accused person’s right to counsel provided by Charter section 10(b) is generally engaged upon detention. The Crown is correct that the Ontario Court of Appeal held in R. v. Harris, 2007 ONCA 574 at para. 47 that a brief traffic investigation at the roadside does not trigger someone’s rights under Charter section 10(b). The Alberta Court of Appeal reached a similar conclusion in Rowson, supra at para. 52, aff’d 2016 SCC 40.

[52] By 8:27 a.m. this was no longer simply a traffic investigation. The police must inform a detained person of his right to counsel “immediately” upon detention for criminal law purposes and the duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel: see Suberu, supra at para. 37; R. v. Willier, 2010 SCC 37 at paras. 29-33. The arresting officer is under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonable opportunity. The burden falls on the Crown to demonstrate that any given delay was reasonable in the circumstances: R. v. Taylor, 2014 SCC 50 at para. 24.

[53] Charter section 10(a) requires that an individual detained for an investigative purpose must be advised, in clear and simple language of the reasons for the detention and the extent of his or her jeopardy: Mann, supra, at para. 21; R. v. Roberts, 2018 ONCA 411 at para. 78. The onus of establishing a breach of these rights lies on the applicant.

[54] The difficulty for the Crown in this case is that Mr. Chopra was detained at 8:27 a.m. but was never informed about the criminal law purpose for his detention by PC Lee. No explanation was provided as to why the officers did not provide him his rights at this time, other than their lack of appreciation they were required to do so. Even at 8:51 a.m., when he was told by PC Grewal to “not go anywhere”, he was not informed he was being investigated for possible impaired care or control of a conveyance. Breaches of this section can be temporal or informational. Mr. Chopra was not informed of the reason for his continuing detention, which had evolved beyond a simple traffic accident investigation. In addition, Mr. Chopra was never provided with the informational component of the right to counsel, or an opportunity to contact counsel while he was waiting for the officers’ investigation to be completed.

[55] In R. v. Gardner, 2018 ONCA 584, at para. 26, the Ontario Court of Appeal held that where police questioning makes it obvious to a motorist that he is being investigated for impaired driving, that alone may satisfy the requirements of Charter section 10(a). I am not satisfied that was the case for Mr. Chopra. He would have known there was an investigation into the minor accident he was involved in, but not necessarily that he was also being investigated for possible impaired operation. While some of PC Lee and PC Grewal’s questions might have suggested that was part of the reason for his detention and their ongoing investigation, neither officer ever made a roadside demand and the bulk of the questioning he faced was simply about the circumstances surrounding how his car became involved in the collision with the parked van. As neither officer clearly informed him of the criminal reasons for his continued detention, I am not prepared to find he would have necessarily understood that was a reason he was detained. While this is a close call, on a balance of probabilities, I find a section 10(a) violation. As noted by the Supreme Court in R. v. Orbanski; R. v. Elias, 2005 SCC 37, “every motorist would fully expect “to be informed promptly of the reasons” why he or she is being stopped”: see para. 31.

[56] At 9:25 a.m. PC Grewal formed reasonable grounds to believe that Mr. Chopra’s ability to operate a conveyance was impaired by a combination of alcohol and a drug and placed him under arrest. He came to this conclusion after PC Lee informed him that Mr. Chopra made an utterance that he entered his vehicle some time earlier because he was “drunk and high.” Again, PC Lee could have provided that information to PC Grewal as soon as he arrived on the scene at 8:35 a.m. The sum total of the information relied upon by PC Grewal to make his decision to arrest Mr. Chopra was therefore available to him much earlier than 9:25 a.m. That PC Lee through inadvertence or negligence did not convey this information to PC Grewal until much later does not alter the point at which Mr. Chopra was detained and when his constitutional rights should have been implemented. PC Lee had criminally detained Mr. Chopra after this utterance was made, whether he subjectively appreciated that or not. That was nearly an hour prior to Mr. Chopra’s arrest.

[57] The Crown is correct that the right to counsel contained in Charter section 10(b) may be temporarily suspended during the course of a brief investigation into a motorist’s sobriety and for roadside safety purposes: Orbanski at paras. 56 and 58; R. v. Recoskie, 2020 ONSC 7056 at paras. 76-77. PC Lee and PC Grewal were engaged in such an investigation between 8:27 and 8:51 a.m. Notwithstanding that this was not a classic roadside screening situation (akin to Orbanski) and the “different constitutional footing” respecting motorists involved in an accident (see Kovacevic, supra, at para. 55), I am willing to accept for the purposes of this application the Crown’s position that Mr. Chopra’s right to counsel was temporarily suspended during some portion of this time period as the officers investigated the nature of the accident and his state of sobriety: see, for example, R. v. Maan, 2022 ONCJ 168, at para. 12.

[58] Yet in order to pass constitutional scrutiny, the police cannot take an unlimited amount of time to conduct such an investigation. While some period of time may be justified, it must be reasonable. For example, as Mr. Foreman noted, in R. v. Bhatt, 2016 ONSC 6713, Gray J. of the Summary Conviction Appeal Court upheld the trial judge’s determination that a twenty minute period in the course of an impaired operation investigation was justified for the police officers to form reasonable grounds to make a demand: see paras. 45-48. That time period was spent by the officers speaking to the motorist, having him step out of his car, and making observations of his balance, speech, and physical features. On the most generous interpretation of the officers’ conduct possible, the twenty-four minutes between 8:27 a.m. and 8:51 a.m. could be reasonably viewed as necessary for them to make a final determination on whether or not Mr. Chopra would be issued a roadside demand or be arrested for impaired operation. Yet none of the time spent after 8:51 a.m. in the investigation of Mr. Chopra was truly for those purposes. The officers had already made their observations of him including any possible indicia of impairment. They had more than enough time to speak to the other civilian witnesses in the area. They simply did not share information with one another as they should have causing unnecessary delay.

[59] I note that even accepting the legitimacy of the Crown’s position on the temporary suspension of Mr. Chopra’s right to counsel, my view is that the period of twenty-four minutes would be excessive in any event given the nature and circumstances of this investigation, and that Mr. Chopra’s right to counsel should have been provided well before 8:51 a.m. He had been subject to police questioning and investigation since 8:21 a.m. by two different officers.

[60] I find that Mr. Chopra’s rights under sections 10(a) of the Charter were violated in the time period between 8:27 a.m. and 9:25 a.m. Even if his right to counsel was temporarily suspended during the initial stages of this investigative detention, his rights under section 10(b) were violated during the time period of PC Grewal’s initial questioning. This violation lasted until 9:29 a.m. His right to counsel should have been at the forefront of the officers’ minds following, at most, a brief suspension of that right. There was no reasonable justification for PC Grewal not informing him of his right to counsel during what was a second round of police questioning: see Kubacsek, supra, at paras. 58 and 64.

(iii) Charter sections 8 and 9: Reasonable and Probable Grounds to Arrest

[61] The Crown bears the onus of justifying an arrest in the context of a warrantless search: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75.

[62] An officer must have reasonable and probable grounds to arrest a person without a warrant for a criminal offence: Criminal Code section 495(1)(a). The officer must subjectively believe the person committed the offence, and objectively, there must exist reasonable grounds for this belief: R. v. Rhyason, 2007 SCC 39 at para. 12; Bush, supra at para. 38. When a person is arrested for impaired driving and a breath demand is made, this is not only a statutory requirement, but a constitutional requirement as well, as it forms a precondition to a lawful search and seizure under section 8 of the Charter: see R. v. Shepherd, 2009 SCC 35 at paras. 13-17. This principle also applies to a DRE demand.

[63] An officer must take into account all information available to him at the time and may only disregard information he or she has good reason to believe is unreliable: Golub, supra at para. 21. Any degree of impairment, from slight to great, is sufficient: R. v. Stellato; Bush, supra at para. 47. Evidence that the driver consumed alcohol may not be enough, by itself, to satisfy this requirement, but even minor signs of impairment combined with evidence of consumption of alcohol or a drug will often suffice: R. v. Mayrhofer-Lima, 2017 ONSC 101 at para. 35. The fact that other possible explanations exist for indicia of impairment does not detract from the existence of reasonable and probable grounds: Shepherd, supra at para. 23; Bush, supra at para. 57.

[64] Officer training and experience may be used to draw inferences and make conclusions, and an officer may also consider hearsay: Bush, supra at para. 61; MacKenzie at para. 62; R. v. Sacca, 2015 ONSC 7323 at para. 44; R. v. McCullough, 2017 ONSC 1252 at para. 72. Evidence that a driver has consumed alcohol or a drug combined with an unexplained accident may provide reasonable and probable grounds: Rhyason, supra at para. 19. There is no requirement that the officer have direct evidence of poor or bad driving: R. v. Grant, 2014 ONSC 1479 at para. 61; R. v. Leppanen, 2015 ONSC 2973.

[65] The Ontario Court of Appeal has noted that in the context of impaired driving investigations and breath demands this is not an onerous test: Bush, supra at para. 46; R. v. Wang, 2010 ONCA 435 at para. 17.

[66] I find that PC Grewal had reasonable and probable grounds to arrest Mr. Chopra. The evidence available to him included that there was an unexplained motor vehicle accident, Mr. Chopra was located inside the vehicle with the engine running by civilians, and he initially appeared to be unresponsive. When questioned by PC Lee he had bloodshot eyes and admitted he was “drunk and high”. This information was later made available to PC Grewal.

[67] I am also satisfied the search of Mr. Chopra that revealed the magic mushrooms was lawful as it was incident to his arrest.

(iv) Charter Section 8 – The DRE Demand and Initial Breath Sample

[68] In 2008, Parliament enacted legislation which included a 12-part drug recognition evaluation for drug impairment: R. v. Bingley, 2017 SCC 12, at para. 9. Drug recognition evaluations are administered by a DRE. They are peace officers qualified under the regulations. DREs receive special training and certification: Bingley, supra.

[69] Where there exists reasonable grounds to believe that a person has operated or had care or control of a conveyance while impaired by a drug or a combination of drugs and alcohol, he or she may be compelled to submit to a drug recognition evaluation: Bingley, supra; Criminal Code s. 320.28(2)(a). Following the 12-step evaluation, if the DRE has reasonable grounds to believe that the person is impaired by a drug, the DRE may make a demand that the person provide a sample of oral fluid, urine or blood to determine the presence of one or more drugs in the person’s body: Criminal Code s. 320.28(4)(a).

[70] The regulations that provide lawful authorization for the DRE’s evaluation are titled “Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196”. The DRE may only conduct, as part of his evaluation, the test and procedures contained in this regulation: see R. v. Stipo, 2020 ONSC 4471 at para. 25; R. v. Wentzell at para. 11. The DRE may not, on the authority of the demand made pursuant to Criminal Code section 320.28(2)(a), require a detainee to comply with other testing or evaluation requirements. That would not be authorized by law.

[71] Nevertheless, if during the evaluation the DRE forms reasonable grounds to suspect that the person has alcohol in his or her body, the DRE may make a demand that the person provide suitable samples of breath that are necessary to enable to a proper analysis to be made by means of an approved instrument: Criminal Code section 320.28(3).

[72] PC Smith is a DRE. When Mr. Chopra was brought before him he was authorized to conduct the 12-step evaluation pursuant to the regulations as PC Grewal had previously made a lawful demand pursuant to Criminal Code section 320.28(2)(a). Once PC Grewal advised PC Smith that he noticed a strong odour of alcohol in his squad car as he drove Mr. Chopra to the division, PC Smith had reasonable grounds to suspect that alcohol was present in Mr. Chopra’s body and could have then made a subsequent demand for a breath sample pursuant to Criminal Code section 328.28(3). He did not expressly make this demand by reference to this subsection or the grounds it required. He did clearly make a breath demand he was lawfully entitled to make and Mr. Chopra complied with it. Mr. Lafontaine fairly conceded that he would not pursue any argument that this first sample was taken unlawfully on this basis, as PC Smith had reasonable grounds to suspect his client had alcohol in his body while acting in his capacity as a DRE under these provisions of the Code.

[73] However, that does not end the section 8 analysis. PC Grewal’s initial demand was made under Criminal Code section 320.28(2)(a) at 9:29 a.m. The section requires that the demand be made “as soon as practicable”. In R. v. Vanderbruggen, the Ontario Court of Appeal held that this phrase requires that the Crown establish the demand was made “within a reasonably prompt time under the circumstances”: see para. 12. I find this demand, as with Mr. Chopra’s arrest, should have been made no later than 8:51 a.m. The delay between 8:51 a.m. and 9:29 a.m. was the result of police negligence and thus the demand was not made “as soon as practicable”: see R. v. Najev, 2021 ONCJ 427 at paras. 72-82.

[74] This constitutes a violation of Mr. Chopra’s section 8 rights. For a warrantless search to be lawful and pass constitutional scrutiny it must be “conducted in a reasonable manner”: see Tim, supra at para. 46. If the police do not make a demand under section 320.28(2) “as soon as practicable” it would allow a motorist to be detained for longer than is reasonably needed for the state to obtain evidence: see R. v. Derulle at paras. 15-18. That violates section 8 of the Charter in this context: see R. v. Alex, 2017 SCC 37 at para. 42. That is exactly what occurred in this case.

(v) Charter Section 24(2)

[75] Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. A court must therefore carefully consider whether the administration of justice would be brought into disrepute by its admission: see Taylor, supra, at para. 42. The court must at all times seek to maintain the “integrity of, and public confidence in, the justice system”: see Grant, supra at paras. 68-70. The focus should be on vindicating the long-term repute of the criminal justice system: see R. v. Pileggi, 2021 ONCA 4 at para. 90.

[76] The onus falls on Mr. Chopra to satisfy me on a balance of probabilities that the admission of the evidence seized in this case – the breath samples and the controlled substance – would bring the administration of justice into disrepute: R. v. Brown, 2021 ONSC 3862 at para. 23; R. v. Bartle.

[77] While the evidence must be “obtained in a manner” that infringed a Charter right, it is not necessary that the applicant establish a strict causal nexus between the violation of his rights and the obtaining of evidence before a remedy may be granted under section 24(2): see Tim, supra at para. 78. In R. v. Pino, 2016 ONCA 389, Laskin J.A. held that the approach to this requirement “should be generous” and the court should “consider the entire chain of events” between the accused and the police: see para. 72. The Supreme Court of Canada also endorsed a “generous approach” to this requirement in Tim: see para. 80. Where the Charter breach is part of the same transaction or course of conduct that resulted in the discovery of evidence, that will often be sufficient.

[78] As the evidence in this case was obtained as a direct result of the breaches of Mr. Chopra’s rights, this requirement is met.

[79] In Grant, the Supreme Court of Canada identified three distinct lines of inquiry that must govern a court’s decision into whether the admission of evidence obtained by a violation of an accused person’s Charter rights would bring the administration of justice into disrepute. The Court must consider:

(1) The seriousness of the state’s Charter-infringing conduct (2) The impact of the breach on the Charter-protected interests of the accused (3) Society’s interest in the adjudication of the case on its merits

(i) Seriousness of the Charter-Infringing Conduct

[80] This part of the test “focuses on the actions of the police”: see R. v. Orlandis-Habsburgo, 2017 ONCA 649, at para. 130. The court must “situate that conduct on a scale of culpability”: see R. v. Paterson, 2017 SCC 15 at para. 43. The Ontario Court of Appeal in R. v. Gonzales, 2017 ONCA 543, cautioned that “care must be taken to ensure that ignorance of Charter standards is neither rewarded nor encouraged and that negligence or willful blindness does not become a proxy for good faith”: see para. 158. A “good faith” error on the part of the police must be reasonable and is not demonstrated by pointing to mere negligence in meeting Charter standards: R. v. Buhay, 2003 SCC 30, at para. 59.

[81] PC Lee did not seem to appreciate that his continued detention of Mr. Chopra after 8:27 a.m. amounted to a detention for criminal law purposes following his remark that he was “drunk and high.” Instead, he turned over the investigation to PC Grewal. PC Lee’s failure to inform PC Grewal of that remark nevertheless unnecessarily prolonged the roadside investigation and thus Mr. Chopra’s detention. He should have told PC Grewal this important piece of evidence as soon as he arrived, not nearly an hour later. While I previously found that the investigative detention of Mr. Chopra between 8:27 and sometime prior to 8:51 a.m. was lawful, Mr. Chopra’s liberty interests were adversely affected from that point to 9:25 a.m. when he was unlawfully detained contrary to section 9 of the Charter.

[82] PC Grewal was lawfully entitled to investigate the cause of the accident and ask Mr. Chopra questions. But he was obligated to conduct a thorough investigation, including properly questioning PC Lee as the first officer on scene as to what he had learned. His failure to properly inform Mr. Chopra of his rights under section 10(a) and (b) of the Charter prior to the formal arrest was serious. The officers’ combined failures left Mr. Chopra uninformed about the reasons for his detention for nearly an hour, and denied him the informational component of the right to counsel and a reasonable opportunity to potentially consult with counsel for more than 38 minutes (i.e., at least between 8:51 a.m. and 9:29 a.m.) While I do not find they acted in bad faith or with willful disregard for his rights, this was still unacceptably negligent.

[83] It bears repeating that in Orbanski the Supreme Court of Canada held that police officers are lawfully entitled to briefly detain a driver for purposes of determining whether their ability to operate a motor vehicle may be impaired by alcohol or drugs while their constitutional right to counsel is suspended: see paras. 56-58; Mann at para. 45; R. v. Ndaye, 2019 ONSC 4967 at para. 64. As previously discussed, Mr. Chopra’s detention was anything but brief.

[84] In R. v. Thompson, 2020 ONCA 264, the Ontario Court of Appeal held that “[the police] cannot go about their undeniably important duties to enforce the law by obstructing ordinary Canadians in their cars until they are satisfied that they have answered their questions”: see para. 89. A breach of section 10(b) caused by the police failing to provide the right to counsel to a detainee immediately, in violation of long-settled law, is serious: see para. 90. While PC Grewal did not seem to appreciate that Mr. Chopra was detained much earlier than the point of arrest, that does not diminish the impact this breach had on his interests.

[85] There was ample time to allow Mr. Chopra a reasonable opportunity to consult with counsel at the roadside. PC Grewal did not even determine until 9:25 a.m. he had grounds to arrest Mr. Chopra. Had Mr. Chopra appreciated the extent of his jeopardy earlier he would have contacted counsel as he immediately requested it upon being informed of his right to do so. The officers had a constitutional obligation to facilitate access to counsel at the first reasonable opportunity: Taylor, supra at para. 28. They failed to do so. Mr. Foreman fairly and reasonably accepted that Mr. Chopra could have spoken to a lawyer on his cellphone in his car during this time period.

[86] Additionally, PC Grewal’s failure to make the initial DRE demand “as soon as practicable” was a significant violation of Mr. Chopra’s rights under section 8 of the Charter. It must be considered alongside the violations of his section 9, 10(a) and (b) rights during this same time period. PC Grewal needlessly extended Mr. Chopra’s detention before finally arresting him and making the demand. Extending the period of Mr. Chopra’s investigative detention in this manner unlawfully compromised his liberty interests.

[87] While this line of inquiry strongly favours exclusion with respect to the section 9, 10(a) and (b) violations, I find it also favours exclusion with respect to the section 8 violation, although not to the same degree.

(ii) The Impact of the Breach on the Charter-protected interests of the accused

[88] The second part of the Grant test involves a consideration of the seriousness of the impact of the Charter breaches on the Charter-protected interests of the accused. The "more serious the impact on the accused's constitutional rights, the more the admission of the evidence is likely to bring the administration of justice into disrepute": see R. v. Côté, 2011 SCC 46, at paragraph 47.

[89] Charter section 9 protects against unlawful detention. Section 10(a) ensures everyone detained by the police has the right to know the reason for their detention, and section 10(b) ensures that they can consult with counsel who can assist them with understanding the nature of the jeopardy they are facing. It is the lawyer’s advice in particular that can dramatically assist a detainee and provide emotional and psychological comfort. An uninformed detainee may be significantly unsettled without the assistance of counsel.

[90] As described by Doherty J.A. in R. v. Rover, 2018 ONCA 745 at para. 45:

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

[91] The detainee’s psychological state during the period of detention is a factor to consider under this stage of the Grant analysis: see R. v. Yewon Kim, 2022 ONSC 1870 at para. 23.

[92] There was no excuse for these breaches of Mr. Chopra’s right to counsel. Exclusion of evidence is often warranted for “clear violations of well-established rules governing state conduct”: see Paterson, supra, at para. 44. Mr. Chopra was denied the opportunity to speak with a lawyer and obtain advice. That would have, at a minimum, helped him make informed decisions and help alleviate some of the stress and anxiety that comes from being detained by the police. That is one aspect of the “psychological value” of access to counsel Justice Doherty referenced in Rover, supra. The effect of that stress on Mr. Chopra was manifestly apparent in the video from PC Grewal’s squad car showing his emotional state as he was being transported to the division. The breaches of his constitutionally protected rights had a significant impact on his psychological state. The police simply failed to respect the significance of the lifeline that section 10(b) represents: see R. v. Dussault, 2022 SCC 16 at para. 56.

[93] Even if his right to counsel was suspended until 8:51 a.m., that would still have left Mr. Chopra without information about his right to counsel, unreasonably, for 38 minutes. Furthermore, having not been properly informed of the reasons for his detention, his section 10(a) rights were impacted at 8:27 a.m. regardless. The impact on his Charter-protected interests would still have been significant.

[94] In particular, section 10(b) is directed at preventing against the risk of involuntary self-incrimination: see R. v. Keshavarz, 2022 ONCA 312 at para. 114. The breach of Mr. Chopra’s section 10(b) rights coincided with a lengthy interrogation by PC Grewal about the accident and Mr. Chopra’s role in it. It was during this time that PC Grewal gathered further information with respect to Mr. Chopra’s state of impairment, including his admission to PC Grewal that he had consumed a THC pill the night before. This statement, while not admissible to incriminate him directly, was relied upon by PC Grewal subjectively for his grounds to arrest Mr. Chopra and make a DRE demand. His right to counsel, as I previously held, should have been provided during this time period and before this particular statement was made.

[95] Normally, where an officer has sufficient grounds to arrest a motorist before any evidence was obtained as a result of a section 10(b) Charter violation, that violation will have had no subsequent impact on any section 8 Charter rights. That is because the motorist would have been arrested and a breath demand issued regardless of what was subsequently obtained through the violation of the right to counsel: Ndaye, supra, at para. 58. In this case, however, it is unknown if PC Grewal would have subjectively determined he had a lawful basis to arrest Mr. Chopra if he had never stated he consumed the THC pill. The impact of the violation of his rights under sections 10(a) and (b) takes on some more significance, accordingly. While previous courts have held that the second factor in the Grant analysis often leans towards the admission of evidence (see Ndaye, supra at para. 85), in the circumstances of this case, I find it leans towards exclusion.

[96] With respect to the impact of the initial DRE demand not being made “as soon as practicable”, it must be kept in mind this caused the breath samples ultimately being received at a later point in time than they should have been. However, the Court of Appeal in R. v. Jennings, 2018 ONCA 260, at paras. 29-30 stated that the taking of breath samples are minimally intrusive with respect to one’s privacy interests under section 8 of the Charter.

[97] Thus, the impact of the section 9, 10(a) and 10(b) violations over the course of the time period Mr. Chopra was denied his right to counsel and was unlawfully detained were significant. However, the impact of the section 8 violation was minimal with respect to the breath samples.

(iii) Society’s Interest in the Adjudication of the case on its merits

[98] The administration of justice may be brought into disrepute from the exclusion of relevant and reliable evidence: see Grant, supra at para. 81. But it may also be brought into disrepute from admitting evidence that amounts to “judicial condonation of unacceptable conduct”: see Le, supra at para. 158.

[99] Society has an interest in seeing a trial on the merits in cases of impaired driving given the terrible toll it takes every year. At the same time, the violations of Mr. Chopra’s right to counsel were very serious and cannot be condoned.

[100] The breath samples are ultimately highly reliable evidence. This branch of the Grant test still favours inclusion: see Jennings, supra at para. 33. As the Crown alleges Mr. Chopra was impaired by alcohol or a drug, the location of the magic mushrooms on his person is also reliable evidence directly related to the impaired operation count as well as the simple possession count under the Controlled Drugs and Substances Act.

[101] Impaired driving is a very serious offence that can have tragic consequences. I find that this branch of the test favours inclusion.

(iv) Balancing The Factors

[102] When balancing the factors under the three lines of inquiry, the court must assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. If the first two inquiries together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility”: Le, supra at para. 142. At the same time, I note that the Supreme Court of Canada in Grant commented that breath sample evidence will normally be admissible given its reliable nature, unless there are egregious violations of the Charter: see para 111.

[103] The first and second lines of inquiry in this case tilt the balance towards excluding the evidence. The Charter-infringing conduct was serious and the impact on Mr. Chopra’s Charter-protected interests was significant. The police conduct was, to repeat, unacceptably negligent. Mr. Chopra was not fully informed of the reasons for his detention for nearly an hour and was denied information crucial to his constitutionally protected interests respecting his right to counsel for at least 38 minutes. These factors outweigh society’s interest in an adjudication on the merits: see Kubacsek, supra, at paras. 85-89.

[104] Accordingly, I find the breath samples and magic mushrooms must be excluded from evidence. As a result, I find Mr. Chopra not guilty of the count of “over 80” and the possession count under the Controlled Drugs and Substances Act. To be clear, even in the absence of the section 8 violations, I would still exclude the evidence given the severity of the breaches that occurred under sections 9, 10(a) and (b) of the Charter.

Impaired Care or Control

[105] Mr. Chopra is presumed innocent. The Crown bears the onus of proving each element of the offences beyond a reasonable doubt. In R. v. Lifchus at para. 39, the Supreme Court of Canada held that “[a] reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.”

[106] I find that Mr. Chopra was in care or control his motor vehicle at the time PC Lee located him on the street at 8:21 a.m. I am also satisfied that Mr. Chopra had consumed alcohol or a drug at some point preceding the police arrival. The elements of impaired operation of a conveyance are established by the Crown proving, beyond a reasonable doubt, of any degree of impairment due to the consumption of alcohol or a drug ranging from slight to great: Stellato, supra.

[107] When PC Lee made his initial observations of Mr. Chopra, he did not consider that he had sufficient grounds to arrest him for impaired operation. This was the case even after Mr. Chopra stated he was in the car because he was previously “drunk and high.” Indeed, following this statement, PC Lee left him in his vehicle and even observed him backing the car up slightly to dislodge it from the van. This did not cause PC Lee any concern as he did not immediately order Mr. Chopra to cease operating the vehicle nor did he take his keys from him.

[108] When PC Grewal arrived, he spoke with Mr. Chopra at 8:38 a.m. He also did not believe he even had sufficient grounds to make an arrest following a lengthy conversation with him. Relying on his own observations, he merely noted bloodshot eyes. Mr. Chopra was articulate, stable, steady on his feet and did not show any other signs of visible intoxication. The recording of their conversation also demonstrates that Mr. Chopra was able to think and speak normally. There was no slurred speech.

[109] I have no information about how the accident with the van occurred nor when it occurred, other than a reasonable inference that it happened after 5pm the previous day when the van was parked. There was no evidence presented of bad or careless driving. There was some light snow on the roadway as well, which could explain how a minor accident might have occurred.

[110] While I appreciate Mr. Chopra’s statement that he was in the car because he was “drunk and high” appears highly incriminating at first, I am not satisfied it carries the weight the Crown submits it does in all the circumstances. Mr. Chopra meant that he had been drunk and high at some point prior to PC Lee locating him and chose to sleep in his car accordingly. That was a very risky and obviously wrong-headed decision, and he may have very likely been impaired when he first entered the car. But by the time PC Lee located him, which is the time I must consider for the purposes of this charge, PC Lee did not view him as being impaired. Nor did PC Grewal when he arrived shortly thereafter. Indeed, PC Grewal made observations of Mr. Chopra for nearly an hour before finally deciding to arrest him. If he was not displaying signs of impairment to two different officers that were considered sufficient to even justify an arrest, I cannot conclude differently based on any other admissible evidence presented at this trial. At a minimum, it leaves me with a reasonable doubt about his state of impairment.

[111] Considering the evidence presented, and the absence of other evidence, I am simply not satisfied beyond a reasonable doubt Mr. Chopra’s ability to operate his motor vehicle was impaired by alcohol or a drug when the police located him on November 15, 2019. I find him not guilty of that count.

Released: July 13, 2022 Signed: Justice Brock Jones

[1] In this case, section 199(1) of the Highway Traffic Act was the basis for PC Lee’s questioning of Mr. Chopra.