Court File and Parties

DATE: November 21, 2022 COURT FILE No: 20-1089; 20-026 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

-AND-

DANIEL LEGAULT

Before: Justice M. G. March

Heard on: June 1 and 2, 2022

Reasons for Judgment regarding Alleged Breaches of Sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms of the Accused

Released on: November 21, 2022

Counsel: Ms. Goher Irfan, Counsel for the Crown Mr. Michael Johnston, Counsel for the Accused

March, M.G., J. :

Introduction

[1] Daniel Legault (“Legault”) stands charged that on August 2, 2020 in the Town of Renfrew, Ontario, he did:

a) operate a conveyance in a manner that was dangerous to the public contrary to section 320.13(1) of the Criminal Code (“the Code”),

b) while operating a motor vehicle and being pursued by a peace officer, fail without reasonable excuse to stop his vehicle as soon as it was reasonable in the circumstances contrary to section 320.17 of the Code,

c) while his ability to operate a conveyance was impaired by alcohol or drug, operate a conveyance contrary to section 320.14(1)(a) of the Code,

d) within two hours of ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 mL of blood contrary to section 320.14(1)(b) of the Code, and

e) operate a conveyance while prohibited from so doing by reason of an order pursuant to section 320.24 of the Code.

[2] At the outset of trial, Crown and defence counsel agreed that the evidence called on the hearing of the application into the alleged breaches of Legault’s sections 8, 9 and 10(b) rights under the Canadian Charter of Rights and Freedoms (“the Charter”) could be admitted in a blended manner.

[3] The trial to this point has proceeded over the course of two days, namely June 1 and 2, 2022.

[4] One civilian witness, Mallory Burns and four police officers, Constable Patrick O’Connor, Sgt. Stephen Linton, Constable Nicholas Van der Woude and Constable Amedeo Jean-Louis offered their testimony.

[5] On consent, six exhibits were tendered thus far, amongst them:

a) the LE 200 police issued card used by Constable O’Connor while reading rights to counsel to Legault,

b) video surveillance of the parking lot at Family and Children’s Services in Renfrew,

c) a Certificate of a Qualified Technician, Constable Kozuska, dated August 2, 2020,

d) an Alcohol Influence Report prepared by Constable Kozuska and dated August 2, 2020,

e) six audio recordings of dispatched communications between 911 operators and/or members of the Renfrew Ontario Provincial Police (“OPP”), and

f) Ministry of Transportation for Ontario (“MTO”) report on the suspended/prohibited driver status of Legault, as well as a record of the imposition of an interlock condition upon his driving privileges.

The Relevant Evidence

Mallory Burns

[6] At the time she testified on June 1, 2022, Mallory Burns (“Burns”) was 34 years old. She was self-employed as a co-owner/operator of a crane rental business with her husband.

[7] Burns recalled an occasion where her husband, their baby daughter and she were at a restaurant in Renfrew having dinner. A man entered, who Burns described as “blitzed”, and stood at the bar.

[8] The man was stumbling. He could not walk straight. He was loud and unmasked.

[9] He was not served for couple of minutes. He then left.

[10] Burns explained that she did not see the man pull up before he entered the restaurant. However, she watched him as he left. He swerved to miss parked cars and overcorrected into oncoming traffic as he drove away.

[11] Upon witnessing this, Burns’ husband asked her to call 911. She did so and she tried to provide a license plate number for the man’s vehicle to the 911 operator.

[12] As her family was packing up to leave, the man returned to the restaurant. On this occasion, she watched him park. He stumbled out of his vehicle and across the street.

[13] While still in the restaurant, Burns told their waitress, a person she knew, not to serve the man. The waitress acceded to Burn’s request and did not serve him.

[14] Burns observed the man to get back into his vehicle. When he left, she saw two police cruisers go “flying” after him.

[15] In detailing how the man was conducting himself, Burns stated that he could not walk straight, he was swaying and loud. She claimed that he was “ . . . the drunkest I’ve ever seen a human being.” She explained that she had been a server herself for 10 years to put into context the observation she had made of the man.

[16] She added that she described the clothes the man was wearing to the 911 operator. Specifically she mentioned that he was sporting a polo type, golf shirt, khaki or tan coloured, Under Armour shorts and flip-flops.

[17] She was able to see that he was operating a red truck.

[18] She felt that she could get home before the man killed somebody. She did not want to be on the road with him. She assessed him as being “very intoxicated”. She concluded that he should not have been driving.

[19] Later, she explained that on her way home, she saw the man splayed in a parking lot. He was on the pavement with his hands out.

[20] Under cross-examination, Burns collaborated that in her experience in the hospitality industry, she worked as both a bartendress and a waitress. She made it a point not to overserve anyone. She had been around drunk people before, but not like him. He would have been amongst the “drunkest” she had seen. She agreed, nevertheless, that he was neither sick nor passing out.

[21] Burns reaffirmed that he was very unbalanced and stumbling. He did not look as though he could see straight.

[22] When confronted with the fact that when assessed later by a qualified technician operating an Intoxilyzer, and that the technician’s opinion was the man was only “slightly impaired”, she disagreed.

[23] In Burns’ view, the man displayed behaviour typical of someone intoxicated.

[24] When the man pulled into the pharmacy across the street from the restaurant, he screeched his brakes. He slammed his door and returned to the restaurant.

[25] Burns denied that she was embellishing her description of the man’s level of intoxication. She had never called 911 on anyone before.

[26] She watched him pull into the live lane of traffic on Raglan Street in Renfrew when he left the restaurant on the first occasion he had been there. Other motorists were forced to steer around him when he crossed into their lane. He overcorrected and almost hit a parked car to his right.

[27] She explained that she was able to observe these movements of the man’s vehicle as she was attempting to ascertain the letters and/or digits on his license plate.

Cst. O’Connor

[28] When he testified on June 1, 2022, Constable O’Connor had been a police officer with the OPP for seven years.

[29] On August 2, 2020, at 18:06, he received a call from his Communication Centre regarding a possible impaired driver. He was dispatched to a restaurant on Raglan Street in Renfrew to locate the suspect.

[30] At 18:13, he arrived on scene. His fellow officer, Constable Van der Woude, was already there. A vehicle fitting the description of the suspect’s, a red Ford Explorer, was parked in front of Constable Van der Woude’s cruiser.

[31] Constable O’Connor believed that the suspect was still inside the restaurant. However, as Constable Van der Woude exited his vehicle to go speak to Constable O’Connor, the suspect vehicle pulled away from its parking space.

[32] Constable O’Connor immediately pursued the Explorer. Constable O’Connor estimated that the suspect’s vehicle was no more than 50 m away from his cruiser when it pulled away from its parking space. In terms of time, he was conversing with Constable Van der Woude for perhaps 30 seconds when the Explorer drove away.

[33] Constable O’Connor’s intention was to conduct a traffic stop upon the Explorer. He activated the emergency lights in his cruiser. The Explorer began to pull over near Scotiabank in an available open parking space. Its front right passenger tire went up onto the sidewalk. It came down again. The Explorer stopped briefly, then it rolled forward slightly.

[34] Constable O’Connor’s cruiser lights remained on. However, the Explorer then turned back into the lane of traffic and accelerated away.

[35] Constable O’Connor activated his siren in his cruiser to try to signal to the driver of the Explorer to stop, but his efforts were to no avail. The Explorer continued to drive away. It veered into the oncoming lane at one point. At another, it almost rear-ended one of the vehicles in front of it.

[36] The Explorer then turned left onto Duke Avenue. There were pedestrians nearby about to walk into the intersection of Raglan and Duke.

[37] At that point, Constable O’Connor deactivated his siren, turned off his lights and notified his dispatcher that the Explorer had fled. The officer explained that according to OPP policy and in the interest of public safety, he discontinued his pursuit.

[38] Constable O’Connor received authorization from his superiors to continue to patrol in an attempt to locate the Explorer. He did so with his emergency lights and siren deactivated.

[39] A short time later, Constable O’Connor heard Constable Van der Woude come over the police radio saying he had found the suspect vehicle in the parking lot of Family and Children’s Services (“FCS”) on Argyle Street.

[40] Constable O’Connor later observed that the Explorer was parked “crooked”. There did not appear to be anyone around it.

[41] Constable O’Connor was able to see Constable Van der Woude speaking to someone at a distance. Constable Van der Woude then began jogging in a westerly direction. Constable O’Connor exited his cruiser and followed the course taken by Constable Van der Woude. Both officers were attempting on foot to locate the suspect.

[42] Constable O’Connor added that within a minute or two of terminating his pursuit of the Explorer, he was outside his police vehicle and assisting Constable Van der Woude. When both officers could not locate the suspect immediately, they tried attending the residence of the registered owner of the Explorer on 86 Queen Street to try to locate him there or at his girlfriend’s residence on 79 Queen.

[43] Eventually, Constable O’Connor received word from Sgt. Sarault that the suspect was hiding in a back yard close to where he fled the Explorer.

[44] Overall, Constable O’Connor estimated that it took just under one hour to find Legault.

[45] At 19:11, near 82 Lochiel Street, Constable O’Connor heard a voice coming from a backyard where a small child size swimming pool was tilted against a fence. When Constable O’Connor tossed the pool aside, he found Legault talking on his cell phone. When Legault looked up, he had a surprised, confused expression on his face.

[46] At 19:13, the officer placed Legault under arrest for “impaired operation” and “flight from police”.

[47] Constable O’Connor described Legault has being “passively resistant”. The officer meant that Legault was not fighting with police. Rather, he was simply not cooperating. He would not walk in the direction police wished for him to go. Constable O’Connor went on to explain that routinely, when he tells people they are under arrest, they will turn and place their hands behind their back. Legault was not doing this. Instead, he began swearing at the officers.

[48] As a result, Constable O’Connor and Constable Van der Woude had to take physical control of Legault and put his hands behind his back. They handcuffed him and walked him back in the direction of Constable Van der Woude’s cruiser. By this point, Constable O’Connor believed that a third officer, Constable Scully, may have also been on scene.

[49] Constable O’Connor estimated that it took two minutes to walk Legault back to where Constable Van der Woude’s cruiser had been parked. Prior to lodging Legault in the backseat, the officers searched him.

[50] At 19:20, Constable O’Connor provided Legault with his rights to counsel and cautioned him as to the use any statement he made to police could be put. When asked if he wished to speak to a lawyer, Legault responded: “Fuck you. I’m not talking to you.”

[51] At 19:21, Constable O’Connor read to Legault a breath demand, which from the officer’s perspective, Legault understood.

[52] In sum, Constable O’Connor felt that Legault was being very belligerent. There was a strong odour of an alcoholic beverage emanating from him. His eyes were glossy. He was unsteady on his feet. However, the officer acknowledged that Legault was handcuffed behind his back. Constable O’Connor also noted that Legault’s speech was slurred, but he did not know which specific words Legault was slurring.

[53] At 19:23, Constable Van der Woude transported Legault to the Renfrew OPP detachment.

[54] At 19:27, Constable Van der Woude arrived at the police station with Legault. He was lodged in a cell while Constable Jean-Louis attempted to contact duty counsel.

[55] At 19:40, duty counsel called the detachment awaiting an opportunity to speak to Legault. Duty counsel conversed with Legault after the accused was afforded privacy.

[56] When Constable O’Connor was testifying and was asked to identify Legault in the courtroom, the officer was able to do so.

[57] At 22:30, Constable O’Connor next interacted with Legault. The officer served Legault with a number of documents including, but not limited to, a Notice of Intention to Produce, a Notice of Vehicle Impoundment, an Automatic Driver’s License Suspension, a Certificate of a Qualified Technician and driving infraction tickets for no insurance and having alcohol in his system as a novice driver.

[58] Constable O’Connor explained that between 19:40 and 22:30, Legault would have spent time with duty counsel, and with Constable Kozuska to provide samples of his breath. Afterwards, Legault was relodged into the holding cell.

[59] When dealing with Legault at 22:30 and thereafter, Constable O’Connor testified that he could not recall the demeanour of the accused at that point. Nevertheless, Constable O’Connor explained that due to Legault’s level of intoxication and his high breath readings, Legault could not be released until he was sober.

[60] Constable O’Connor elaborated that out of safety concerns, when someone is highly intoxicated, police cannot release such an individual on his or her own.

[61] The officer added that generally, police make efforts to find someone who can pick up a detainee in such a state. The officers look for someone responsible to care for the individual. Otherwise, police will hold the person until he or she is sober. The officers do not like to keep anyone longer than is necessary.

[62] On other occasions, detainees do not want others to find out about their predicament. They wish to be held at the police station. According to Constable O’Connor, police respect the wishes of people in those circumstances as well.

[63] However, Constable O’Connor did not have a specific recollection of Legault’s response about his wishes for being held or contacting a responsible person to pick him up.

[64] The officer added that his shift on August 2, 2020, was supposed to end at 19:00. On this particular night though, he did not go off duty until midnight.

[65] Constable O’Connor did not know when Legault was released from police custody.

[66] The officer did follow-up by attending FCS to obtain video surveillance footage of the parking lot area. He reviewed the recording, which depicted Legault entering the FCS parking lot and fleeing from his vehicle.

[67] Constable O’Connor tried to obtain similar video surveillance of Legault’s Explorer mounting the sidewalk in front of Scotiabank. However, he was not able to secure anything which depicted what the officer said occurred.

[68] Constable O’Connor also took a statement from Burns.

[69] Under cross-examination, Constable O’Connor clarified that he received dispatch information over the radio or on his cruiser tablet regarding Legault.

[70] When he arrived on scene, he began making his own observations trying to locate the suspect vehicle. He agreed that 911 traffic complaints regarding impaired drivers are possibilities. The task of police is to determine whether the possibility is a reality.

[71] A sample of the recordings of the dispatch communications and exchanges between officers was played in court for Constable O’Connor. Having heard them, Constable O’Connor denied that he expected Legault to flee simply because he was a prohibited driver.

[72] Indeed, Constable O’Connor said he was surprised that Legault drove away shortly after he arrived on scene.

[73] When questioned about the reference made by one of the officers that Legault was a “scrapper”, Constable O’Connor testified that that was not a label he put on the accused.

[74] Constable O’Connor conceded that he believed Legault to be impaired when he appeared to pull over and went up on the curb shortly after he was followed by the officer.

[75] Constable O’Connor indicated that Duke Avenue is only a few hundred metres, perhaps a block and a half away, from the point where Legault re-entered the flow of traffic. When Legault turned abruptly left on Duke, he pulled around another vehicle in front of him. His rate of acceleration was a clear indicator to Constable O’Connor that the accused wanted to get away.

[76] Constable O’Connor confirmed that his pursuit was short and lasted only 3 to 4 blocks.

[77] In terms of the indicators Constable O’Connor was able to observe regarding Legault’s state of alcohol, the officer emphasized the acute unsteadiness as he walked out of the backyard where he was apprehended. He had been lying on the ground hiding under the pool. It was very obvious to Constable O’Connor that Legault was “very intoxicated”. The officer also pointed to the 911 caller’s opinion on Legault’s lack of sobriety. Earlier as he pulled over, he had driven up on the sidewalk. There was also his decision to flee. The smell of alcohol coming from his person was also noteworthy, as was his confused look. He had glossy eyes. In sum, Constable O’Connor believed that within two seconds or so of locating Legault, he had grounds to arrest him.

[78] Constable O’Connor explained that typically, upon arrest, an accused should be given rights to counsel as soon as practicable. However, police must take into account the situation, the location and officer safety.

[79] Constable O’Connor confirmed that he arrested Legault at 19:13. The accused was passively resistant. It took two minutes or so to get Legault to Constable Van der Woude’s cruiser. Police had to physically take control of Legault.

[80] By 19:17, Constable O’Connor noted that they had Legault inside the police vehicle.

[81] At 19:20, Constable O’Connor read rights to counsel to Legault from his standard issued, police LE 200 card.

[82] The officer testified that he always reads rights to counsel, a caution and a breath demand from his card, but when dealing with an uncooperative and belligerent individual, he will not take out his duty book to read it. He waited to do so until it was safe for everyone.

[83] He also pointed out that Legault was “well-built”. It was difficult getting his hands behind his back to be handcuffed. This exercise in and of itself took longer than one minute.

[84] The officer did not charge Legault originally with dangerous driving. He explained that he overlooked this offence in the moment. He later laid that particular charge when he began preparing the Case File Synopsis regarding police interaction with Legault.

[85] At 19:27, the issue of rights to counsel, Constable O’Connor elaborated, came up again because it is not uncommon for police to repeat those rights after an intoxicated individual responds belligerently at the outset.

[86] Although Constable O’Connor described it as his usual practice, he did not recall whether he ever asked Legault, “Do you have a lawyer?”

[87] The officer asserted that when dealing with the accused in police custody under arrest for impaired driving type offences with high readings, it is unsafe to release such an individual until he or she is sober.

[88] At 20:30, Constable O’Connor confirmed that he spoke with the qualified technician who took and analyzed the samples of breath from Legault. The two readings registered 207 and 205 mg of alcohol in 100 mL of blood. Accordingly, Constable O’Connor was of the opinion that Legault was “very impaired”.

[89] When confronted with the breath technician’s assessment of the effects of alcohol upon Legault as “slight”, Constable O’Connor denied that he was made aware of that finding.

[90] Constable O’Connor went on to agree that his first option, when dealing with an accused in custody with high readings such as Legault, would be to look to a third party who could take charge of him were he to be released.

[91] The second option would be to hold the accused until he or she is sober.

[92] However, Constable O’Connor could not recall or find any reference in his duty book notes to any attempts he made to contact a third-party on Legault’s behalf.

[93] The officer surmised that another one of his colleagues would have made efforts to reach someone to take responsibility for Legault were he to be released.

[94] Constable O’Connor testified that he was not aware that Legault was not released until the following morning after spending some 10 hours in police custody.

[95] The officer testified that he preferred not to use the word “pursuit” to describe his decision to follow after Legault. Constable O’Connor’s attempt to have Legault stop lasted only 5 to 10 seconds. However, it was clear to the officer based on the actions he observed on the part of Legault that the accused intended to flee.

[96] Constable O’Connor agreed that he entered the backyard of a private citizen without a warrant. He described his decision to do so as akin to exigent circumstances or fresh pursuit.

[97] The officer confirmed that Legault, once apprehended, was never splayed down on pavement and surrounded by officers.

[98] Legault did use a number of expletives as he was escorted out of the backyard. Constable O’Connor was holding one of his arms. However, the officer denied he ever put Legault at a position of disadvantage in terms of maintaining his balance. Indeed, he commented that Legault was only a bit off balance when putting one foot in front of the other as he was escorted while handcuffed from the backyard. No further imbalance on the part of Legault was observed by Constable O’Connor taking Legault from the police cruiser in the sallyport of the detachment to the holding cell.

Sgt. Linton

[99] When Sgt. Linton testified on June 1, 2022, he had retired from the OPP after a 30 year career spanning 1991 to 2021.

[100] He recalled that in dealing with Legault, he was working a dayshift commencing at 07:00 on August 3, 2020.

[101] He noted that at 07:50, he gave Legault some paperwork related to the incident which brought him to the attention of police. He believed the paperwork may have included a Notice of Increased Penalty and an Undertaking. Someone from the night shift would have provided him with some details regarding the circumstances of Legault’s arrest, but he could not remember who.

[102] Sgt. Linton testified that he always assesses accused persons for their suitability for release in impaired driving scenarios. Typically, the individual can be released on his or her own, or into someone else’s care. In those cases, Sgt. Linton did not specifically recall the condition in which he found the accused at the time he dealt with him during the morning hours of August 3, 2020.

[103] Under cross-examination, Sgt. Linton clarified that he brought Legault out of the cell at 07:50. The officer stated that in almost every case where he is not directly involved in the arrest of an impaired driving type accused, he will be told by the officer in charge or the Sergeant for that shift who was in custody of what his or her level of impairment was. However, Sgt. Linton could not recall that happening in this case.

[104] As a matter of OPP policy, Sgt. Linton indicated that persons with blood alcohol concentrations exceeding the range of 180 to 200 mg of alcohol per 100 mL of blood would constitute high readings and a safety concern.

[105] Sgt. Linton candidly acknowledged that over the course of his career, he had never been called to testify as to the condition of an accused for release from police custody. He did not know if any of the other officers dealing with Legault before him had turned their minds to his eligibility for release.

[106] He added that the OPP does employ guards to keep watch over detainees in police custody, but their responsibilities do not extend to whether a person is eligible for release or not.

Cst. Van der Woude

[107] When Cst. Van der Woude testified on June 1, 2022, he had been a peace officer with the OPP for 5 years.

[108] On August 2, 2020 at 18:04, Cst. Van der Woude heard of a complaint made by a member of the public regarding an impaired driver, who was operating a red Explorer. The individual had reportedly just left a local restaurant in Renfrew in a very intoxicated state.

[109] Cst. Van der Woude immediately drove to the restaurant. He arrived at 18:08, but did not locate the suspect vehicle.

[110] He received an update from a concerned member of the public and was provided with a licence plate number for the Explorer. He then located it.

[111] He understood from information supplied over the police radio that the suspect “ . . . likes to fight.” As a result, Cst. Van der Woude waited for backup assistance from fellow officers.

[112] Cst. O’Connor arrived on scene a short while later while Cst. Van der Woude was exiting his cruiser to go into the restaurant to locate the male suspect. As he was doing so, the suspect pulled away in his Explorer. Cst. O’Connor activated his emergency lights in his cruiser and went after him. Cst. Van der Woude followed the suspect as well.

[113] Cst. Van der Woude observed the Explorer to pull over to the side of the road. The officer positioned his cruiser in front of the Explorer to try to prevent it from leaving again.

[114] Cst. Van der Woude noted that it was a summer’s day with many pedestrians out and about.

[115] The Explorer pulled away again at a high rate of speed. It swerved into the oncoming lane causing other motorists to brake heavily such that the front ends of their vehicles dipped. It turned on to Duke.

[116] Both officers then disengaged their pursuit, but began patrolling for the Explorer. Within a minute, Cst. Van der Woude located the Explorer in the FCS parking lot. It was unoccupied.

[117] A lady on her back deck pointed out to the officer the direction in which the driver of the Explorer had fled; however, Cst. Van der Woude was unable to find the driver.

[118] The officer returned to the FCS parking lot. He leaned in through the driver’s window of the Explorer to see that there was no key in the ignition. He also noted that the vehicle was not equipped with an interlock device as it should have been.

[119] Cst. Van der Woude smelled a heavy odour of alcohol emanating from the Explorer. He saw too a number of smashed beer bottles in the floor area of the front passenger seat.

[120] The video surveillance seized by Constable O’Connor of the FCS parking lot was played in court during the testimony given by Constable Van der Woude.

[121] At 18:14, the Explorer can be seen entering the parking lot at such a high speed and braking so abruptly that it slid sideways. The driver, Legault, ran away from the vehicle shortly after it came to rest.

[122] At 18:15, the police cruiser pulled into the parking lot. Constable Van der Woude exited. The officer can be seen listening to a person offscreen and receiving information on the direction in which Legault ran.

[123] At 18:16, Constable O’Connor pulled into the parking lot. He left a short while later when he appeared to observe that no one was in the Explorer. He continued to patrol for Legault thereafter.

[124] At 18:17, Constable Van der Woude came back to the FCS parking lot. In asking to comment upon his actions upon his return, the officer indicated that he did not want Legault to drive away again in the Explorer. He was looking for the keys to the vehicle. He verified that they were no longer in the ignition or anywhere else in the vehicle he could see upon a quick inspection.

[125] Just before 18:18, he called for a tow truck to remove the vehicle from the FCS parking lot.

[126] Between 18:18 and 18:20, he searched the interior of the vehicle for the keys and any valuables contained therein prior to the Explorer being towed away.

[127] At 18:24, the tow truck arrived. With the danger of Legault returning to the Explorer to drive it away again eradicated, Constable Van der Woude attended at the last known address for Legault, the Explorer’s registered owner.

[128] Legault was not at home. However, Constable Van der Woude received information from a person who wished to remain anonymous that Legault was hiding underneath a swimming pool.

[129] At 19:11, Constable Van der Woude received word over the police radio from Constable O’Connor that Legault may have been found. Constable Van der Woude went to Constable O’Connor’s location and arrived there within seconds. Constable Van der Woude could not recall the exact address of the backyard in which he observed a child’s wading pool lying up against a fence. He knew it was in the vicinity of Patrick and Lochiel streets in Renfrew.

[130] Constable Van der Woude explained that he could hear a male’s voice coming from behind the pool. It appeared to the officer as though the male was talking on a cellular phone. Armed with his taser due to Legault’s known penchant for violence, Constable Van der Woude lifted the pool away. He then observed Legault, who he described as slightly overweight and heavily intoxicated, lying on his stomach on the ground.

[131] While Legault was speaking on the phone, Constable Van der Woude was able to detect a slur in his speech. There was also a heavy odour of alcohol emanating from Legault’s person.

[132] The officers told Legault to place his hands behind his back. Legault was not compliant. He kept his hands underneath himself to prevent the officers from handcuffing him behind his back.

[133] Legault was yelling and swearing at the officers. Constable Van der Woude grabbed his hand from underneath his body. Constable O’Connor, Constable Van der Woude testified, was beside him the entire time. Constable Van der Woude placed Legault’s right arm behind his back. Constable O’Connor was able to get hold of his left hand and did the same.

[134] Constable Van der Woude estimated that the process of getting Legault handcuffed took 3 to 4 minutes. Constable Van der Woude could not articulate the exact time at which Legault was arrested. The best the officer could offer was that it had occurred between 19:11 and 19:23, the latter time being when he left with Legault in his police vehicle for the detachment. Constable Van der Woude went on to estimate that Legault’s arrest occurred 3 to 4 minutes after he arrived on scene in the backyard where the pool was located - somewhere between 19:14 and 19:15.

[135] Constable Van der Woude described Legault has being completely uncooperative with police. The accused would not stand. He was not light. He had to be lifted. He refused to walk. He dragged his feet forcing the officers to pull him along. He continued to yell and swear at them. If Constable Van der Woude were to choose one word to describe Legault, it would be “belligerent”.

[136] Constable Van der Woude thought that it took three minutes or so to get Legault back to the police cruiser, which was parked roughly 35 metres from the point at which Legault was located.

[137] When the officers had Legault out on the roadway, they conducted a search incident to arrest. All items taken from Legault were placed in the cruiser.

[138] Legault was wearing a grey Nike shirt with a collar, grey Under Armour shorts and sandals.

[139] With Legault secured in the cruiser, Constable O’Connor read to him his rights to counsel and cautioned him. Thereafter, Constable Van der Woude transported Legault to the police detachment. All the while, Legault continued to be upset at the officers swearing at both Constable Van der Woude and Constable O’Connor.

[140] Constable Van der Woude could not recall if a third officer was on scene to assist with the arrest of Legault.

[141] At 19:37, Constable Van der Woude arrived at the detachment with Legault, where he was placed in a holding cell.

[142] Roughly 10 minutes later, Constable Van der Woude retrieved Legault from the cell. The officer described the accused as still being very intoxicated, exhibiting slurred speech. He continued to yell. He also had very bloodshot eyes.

[143] At 19:50, Legault spoke with duty counsel. He indicated his satisfaction with the advice he received. However, Constable Van der Woude explained that he was not the police officer who facilitated the call. Nor did he know which officer had.

[144] At 20:30, Constable Van der Woude was present when Legault was taken out of the holding cell again and served with documents including a 45 day impoundment notice for his vehicle. Constable Van der Woude again described Legault has being highly intoxicated. A heavy odour of alcohol was emanating from him. His speech was slurred. He was yelling. His face was flushed. His eyes were also very bloodshot.

[145] After Constable O’Connor finished with serving the documents upon Legault, the accused was relodged in the holding cell. Constable Van der Woude had no further involvement with Legault thereafter.

[146] Under cross-examination, Constable Van der Woude confirmed that when he found the Explorer in the FCS parking lot, the driver’s window was down and the doors were closed. He appreciated that the vehicle was “private property on private property”.

[147] Constable Van der Woude agreed that he opened both doors of the Explorer. He explained that he was looking for the key. It was an older type of ignition which required the key to be inserted.

[148] Constable Van der Woude acknowledged that the search he conducted of the vehicle was without a warrant to authorize him to do so. It was also pre-arrest and prior to the decision he made to have the Explorer towed. However, Constable Van der Woude clarified that he wished to remove the possibility of having any continuation of the offence. It was for public safety reasons that the officer decided to have the vehicle towed away.

[149] Constable Van der Woude went on to explain that the Renfrew OPP detachment did not have the manpower to station an officer at the Explorer to prevent it from being driven away.

[150] When asked about the mention of a Feeney warrant during a portion of police communications played in court for Constable Van der Woude, he denied that he was the one who was suggesting that course of action. It was another officer who raised the possibility.

[151] Constable Van der Woude was not certain whether the pool was located in the backyard of 82 Lochiel Street; however, the officer was sure that when he arrived on scene, Constable O’Connor was already there.

[152] Constable Van der Woude surmised that he must have flipped the wading pool away with the hand that he was not using to hold his taser.

[153] The officer clarified that it was due to the information gathered by police that they knew the person underneath the pool was the person they were looking for.

[154] Constable Van der Woude confirmed that it was Constable O’Connor who told Legault he was under arrest. Constable Van der Woude could not recall any specific words used to communicate to Legault the reason for his arrest. Constable Van der Woude emphasized that his focus at that moment was on officer safety.

[155] Constable Van der Woude was certain that Legault was provided with his rights to counsel prior to being taken to the detachment.

[156] When assisted, Constable Van der Woude was able to find the time he noted, specifically 19:44, when Legault was taken out of the holding cell before being put on the line with duty counsel.

[157] Constable Van der Woude asserted that it was not his decision whether Legault could be released to a responsible third party as opposed to being held until he was sober. The officer reemphasized that Legault was completely belligerent and intoxicated.

[158] Constable Van der Woude could not recall which officer made the decision to hold Legault until he was sober.

Cst. Jean-Louis

[159] Constable Jean-Louis testified that on August 2, 2020, he received a call for service at 18:23. His involvement with Legault was very limited. He was present when the accused was arrested in the area of Patrick and Lochiel streets in Renfrew.

[160] The officer confirmed that he did see a cell phone on or about the person of Legault at the time of his arrest. He had little interaction with Legault at that point.

[161] Constable Jean-Louis saw Legault in the holding cell at the Renfrew OPP detachment. The officer arrived there at 19:30. He inquired of his colleagues whether a lawyer had been contacted for Legault.

[162] Constable Jean-Louis contacted duty counsel on behalf of Legault. The officer was aware that duty counsel did call back to speak to Legault.

[163] Under cross-examination, Constable Legault indicated that his first notation as to time in assisting the transport of Legault was 19:13. To Constable Jean-Louis’s recollection, there were numerous officers already on scene when he arrived. He followed the group to the detachment.

[164] Constable Jean-Louis made no notes regarding any problems he observed Legault to have while walking.

[165] Upon his arrival at the detachment, Constable Jean-Louis did inquire of his fellow officers whether anyone had called duty counsel for Legault. No one had.

[166] Constable Jean-Louis did not know if Legault had requested a specific lawyer with whom he wished to consult. Nor could the officer remember if Legault was offered a list of lawyers with whom Legault may have wished to have received advice.

[167] Constable Jean-Louis could only state that he called duty counsel on Legault’s behalf.

Position of the Applicant (Legault)

[168] Legault through his counsel argues that Constable Van der Woude conducted a warrantless search of the Explorer. Since Hunter et al. v. Southam Inc., it is well established, that a warrantless search is presumptively unreasonable. Further, when a search occurs, it must be shown to be authorized by law; the law itself must be reasonable; and the search must be carried out reasonably (R. v. Collins).

[169] Under section 8 of the Charter, Legault has the right to be secure from unreasonable search or seizure.

[170] Legault left his Explorer in a parking lot in a haphazard manner. The doors were unlocked. At least one if not both windows were left open.

[171] Nevertheless, Legault retained a reasonable expectation of privacy in his vehicle.

[172] It was clear from the evidence heard in the blended voir dire/trial that Constable Van der Woude opened the doors of the Explorer and searched it for keys without a warrant. The officer’s conduct in respect of Legault’s vehicle did not end there. He also arranged for it to be towed away.

[173] Further, he searched it on a second occasion for valuables before it was towed.

[174] Counsel for Legault submitted that no prior judicial authorization by way of a warrant was obtained to allow police to search and seize Legault’s vehicle in the manner in which they did. The police cannot rely upon the doctrine of ‘hot pursuit’ to attempt to justify the search and seizure of the vehicle.

[175] Although it did not form part of his written application, counsel for Legault argued that the accused’s arrest was precipitous. It was based on a suspicion that Legault was impaired. Adequate reasonable grounds for the arrest did not exist. Credibly based probability did not replace suspicion. The seizure of his breath samples was thus a violation of Legault’s section 8 Charter rights.

[176] Under section 9 of the Charter, Legault’s counsel contended that although the breath readings were in the 200 range, it was clear from the Alcohol Influence Report prepared by the qualified technician, Cst. Kozuska, that the effects of alcohol upon Legault were slight.

[177] Legault’s attitude was “polite, cooperative and talkative” in Constable Kozuska’s view. Legault’s speech was “good”. Any previous belligerence he displayed toward Constables Van der Woude and O’Connor had dissipated.

[178] Constable O’Connor either did not advert to the possibility that Legault could be released to a responsible third party adult to care for him, if Constable O’Connor remained of the mind that Legault presented a danger to himself or others following the conclusion of the breath testing.

[179] Indeed, at 20:30 on August 2, 2020, Constable O’Connor made the decision to hold Legault until he was sober. The officer issued documents to Legault and put him back in his cell seemingly leaving it to another officer to determine when Legault would be sober enough to be released.

[180] Sgt. Linton was not told by Constable O’Connor of the intention to hold Legault until he was sober. Quite to the contrary, Constable O’Connor appears not to have asked anyone to monitor Legault’s level of sobriety. In the performance of his routine duties, Sgt. Linton discovered the circumstances of Legault’s detention at the police detachment in Renfrew. Sgt. Linton then took it upon himself to release Legault.

[181] As a result of omissions on the part of Constable O’Connor, Legault’s right not to be arbitrarily detained or imprisoned under section 9 of the Charter was infringed.

[182] Under section 10(b) of the Charter, Legault had the right to retain and instruct counsel without delay upon arrest. Legault was arrested at 19:13. His rights to counsel were not read to him until 19:20.

[183] Even though in response to Constable O’Connor’s question about whether Legault wished to contact counsel, the accused stated, “Fuck you. I’m not talking to you”, Legault could not be taken to be saying that he did not wish to speak to a lawyer.

[184] Constable O’Connor also did not reiterate rights to counsel to Legault after he arrived at the detachment. Constable Van der Woude had no evidence to offer regarding how Legault came to exercise his right to counsel. It was Constable Jean-Louis who took it upon himself to contact duty counsel on Legault’s behalf almost as an afterthought.

[185] Counsel for Legault submitted that there were serious breaches of Legault’s section 8, 9 and 10(b) rights under the Charter. Those breaches had a significant impact upon the Charter protected interests of Legault. When those factors are balanced against society’s interest in an adjudication of Legault’s trial on the merits, the breath readings and observations made by police regarding Legault’s condition and conduct ought to be excluded under section 24(2) of the Charter.

[186] Alternatively, counsel for Legault argued that the Court could tailor a remedy under section 24(1) of the Charter if the exclusion of evidence was not available, because the Charter breaches did not lead to the acquisition of evidence upon which the Crown wished to rely (e.g. the breath readings and the observations made of Legault’s condition).

[187] In essence, Legault’s lawyer pointed out aptly that a right without a remedy is no right at all.

Position of the Respondent (Crown)

[188] The Crown submitted that Constable O’Connor turned his mind to the totality of what he knew from others and observed himself prior to arresting Legault.

[189] Many of the classic signs of impairment were witnessed firsthand by Constable O’Connor over the relevant time frame preceding and at the very moment of arrest. There was as well the report of an independent witness at the restaurant as to the condition of Legault at the time he drove away. She had another opportunity to make observations of him, when he returned to the establishment and drove away again. There was erratic driving including flight from police. There were Legault’s glossy eyes. There was his slurred speech. There was some imbalance when he was walking back to Constable Van der Woude’s cruiser in spite of Legault being handcuffed behind his back. There was passive resistance on Legault’s part. There was his belligerence.

[190] Further, the search of Legault’s vehicle was part of an unfolding dynamic situation according to the Crown. Legault remained a legitimate flight risk. The police needed to prevent the repetition of an offence.

[191] Police were in hot pursuit after an impaired driving suspect.

[192] The tow truck was called because police did not have the “manpower” to post an officer on scene at the FCS parking lot to keep surveillance over the Explorer.

[193] The Crown therefore invited me to find no breach under section 8 of the Charter as it related to a precipitous arrest as argued by Legault’s counsel. The breath demand made of Legault by Constable O’Connor was valid. The analyses of his breath samples at the police detachment were real evidence legitimately obtained by police.

[194] With respect to the defence argument regarding section 9 of the Charter, the Crown pointed out that the preprinted form filled out by the qualified technician, Constable Kozuska, allowed for three options to be picked to describe the effects of alcohol on the ability to operate a motor vehicle upon the subject being tested. Amongst them were “Apparently none”, “Slight” and “Obvious”. Constable Kozuska ticked “Slight’.

[195] Constable Kozuska also determined through his analysis using an approved instrument that Legault’s two breath samples registered a blood alcohol concentration over 200 milligrams of alcohol in 100 mL of blood truncated, in essence, 2 ½ times the legal limit.

[196] Although Legault had a high tolerance to the impairing effects of alcohol according to Cst. Kozuska, he was still extremely impaired.

[197] The decision by police to detain Legault until sober was legitimately based on protecting him.

[198] Nor is there a bright line obligation on police to consider releasing an impaired accused to a responsible third party adult capable of caring for such a person in his or her state of alcohol.

[199] In any event, the Court has no basis for excluding the analysis of the breath samples of the accused for its concentration of alcohol based on overholding because the prolonged detention had no bearing on the manner in which the evidence was obtained.

[200] The Crown did not address me with respect to the defence arguments contending that a breach of Legault’s section 10(b) Charter rights had occurred. Presumably, the Crown relied upon the Court’s ability to discern that a seven minute delay in walking Legault to the police cruiser away from the backyard of a private citizen of Renfrew where Legault was a trespasser in order to read rights to counsel was of no moment. Nor was the failure on the part of Legault to specify the counsel he wished to speak to. He voiced no displeasure with the advice he receive from duty counsel. The evidence adduced was therefore not capable of making out a breach of his s. 10(b) Charter right to counsel on a balance of probabilities.

[201] In balancing the factors at play to determine whether evidence should be excluded under section 24(2) of the Charter, the Crown emphasized society’s interest in an adjudication on the merits of the real evidence obtained from Legault, namely his breath samples used to analyze his blood alcohol concentration. It was reliable, scientific evidence. Its admission into evidence at Legault’s trial would not affect the long-term repute in the administration of justice. It was essential to the Crown’s case against Legault. Its very nature favoured its admission.

[202] Even if this Court were to accept that Legault was overheld and his section 9 Charter right was thereby infringed, that breach of Legault’s constitutional rights did not, in any manner, bear upon the evidence of his blood alcohol concentration.

Issues

Did police breach the section 8 Charter right of Legault to be secure against unreasonable search or seizure?

[203] The Crown pointed me to no statutory authority which would have permitted Constable Van der Woude to open the doors of Legault’s vehicle in order to locate the keys. I appreciate that the officer wished, as he testified, to prevent the repetition of an offence. However, police “manpower” concerns cannot override the constitutionally protected right to be secure against unreasonable search or seizure.

[204] There is, of course, a diminished, yet reasonable expectation of privacy in a vehicle left in a private parking lot with its windows down and doors unlocked.

[205] Constable Van der Woude could have observed through the open windows of the vehicle whether or not the driver had left the keys in its ignition. Equally, he could have determined whether or not Legault’s Explorer was equipped with an interlock device by remaining outside and looking in. The officer did not have to open the doors to accomplish this objective.

[206] The doctrine of ‘fresh’ or ‘hot pursuit’ cannot be relied upon by the Crown to justify a warrantless search of Legault’s Explorer conducted by Constable Van der Woude. The doctrine was developed at common law to authorize continuous, ongoing pursuit of a person into the sanctity of his or her own home to enable his or her apprehension by the authorities to unfold. The doctrine does not offer ‘carte blanche’ to police to search the vehicle left by a person who runs away from it or abandons it. Police still need a basis in law to search.

[207] I find that Constable Van der Woude’s intrusion into the interior of Legault’s vehicle constituted a breach of section 8 of the Charter.

[208] With respect to the impromptu argument made by Legault’s counsel that the accused’s arrest was precipitous, I disagree. Constable O’Connor’s grounds for arresting Legault were numerous. They included:

a) Constable O’Connor’s knowledge of the state of alcohol which Legault exhibited at the restaurant, which was observed by Burns during her call to 911 and upon his return to the restaurant,

b) Legault’s inability to pull over his vehicle without mounting the sidewalk,

c) Legault’s flight from police thereafter to avoid being stopped and investigated,

d) Legault’s erratic driving causing other motorists to take evasive action, and

e) Legault’s physical condition witnessed by O’Connor when he was eventually located, and whereupon he displayed many of the classic signs of alcohol impairment such as a strong odour of alcohol emanating from his person, slurred speech, belligerence, unsteadiness on his feet and glossy eyes.

[209] Almost instantaneously, Constable O’Connor concluded there was a basis for an arrest and a breath demand to be made of Legault. The officer was not wrong in his quick formulation of his grounds. All Constable O’Connor needed was a reasonable basis for believing that Legault’s ability to operate a motor vehicle was even slightly impaired by alcohol or drug.

[210] In my view, Constable O’Connor was on solid ground to arrest Legault. There was a credibly-based probability entertained by the officer that Legault had been operating a motor vehicle while his ability to do so was impaired by alcohol, and that he fled from police to avoid apprehension by police, who were looking to investigate his state of alcohol.

Was Legault’s section 9 Charter right not to be arbitrarily detained or imprisoned violated?

[211] On August 2, 2020 at 19:13, Constable O’Connor arrested Legault. At 20:30, after Legault had provided his breath samples, Constable O’Connor decided that Legault would be held captive till sober.

[212] On August 3, 2020, at or shortly after 07:50, Sgt. Linton released Legault.

[213] For some 11 hours and 20 minutes, Legault remained in police custody well beyond the need for any continuing investigation.

[214] Constable O’Connor testified that he made the decision to keep Legault in police custody out of a safety concern owing to Legault’s level of intoxication, as plainly evidenced by the high breath readings.

[215] Yet Constable O’Connor made no effort to contact a responsible adult who could care for Legault. The officer was under a statutory obligation to release Legault “as soon as practicable” pursuant to subsection 498(1) of the Code.

[216] Subsection 498(1.1) of the Code further provides:

The peace officer shall not release the person if the peace officer believes, on reasonable grounds,

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence for the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

b) that, if the person is released from custody, the person who failed to attend court in order to be dealt with according to law.

[217] In my view, Constable O’Connor could only have relied upon subsubsection 498(1.1)(iii) as a basis for continuing to hold Legault in police custody. His testimony did not disclose that that was the reason for maintaining the accused’s detention. Nor could it have. Legault’s vehicle was already impounded.

[218] Nevertheless, there appears to be an ample supply of case law to support a police power to keep an accused in custody at the station where the person has a particularly high blood alcohol concentration.

[219] In R. v. Larocque, 2018 ONSC 6475, Kurke J., presiding over a summary conviction appeal, specifically recognized the discretion police possess in this regard. He wrote:

[45] In the context of impaired driving cases, high blood alcohol concentrations alone can constitute a sufficient reason for continued detention, so as to render such detention lawful and not arbitrary, so long as an assessment is made of the particular accused, and other available options are considered: R. v. Sapusak, [1998] O.J. No. 4148 (C.A.); R. v. Kavanagh, [2017] O.J. No. 430 (Sup. Ct.), at paras. 36-43; R. v. Waisanen, 2015 ONSC 5823, at paras. 12, 23; Iseler, at para. 18; R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (Sup. Ct.), at para. 93.

[220] In this case, neither Constable O’Connor nor any other police officer with the Renfrew OPP appeared to consider “other available options” for Legault.

[221] The Crown also drew my attention to the decision of Heeney J., presiding over a summary conviction appeal as well, where His Honour interpreted the decision of the Court of Appeal for Ontario in Sapusak supra as a “clear and binding authority”. His Honour pronounced:

[36] Can high blood alcohol readings, on their own, constitute a sufficient reason for continued detention, so as to render such detention lawful and not arbitrary?

[37] In R. v. Sapusak, [1998] O.J. No. 3299 (Ont. Gen. Div.), Thomas J. dealt with an appeal where the accused had two readings of 130 mg. of alcohol in 100 ml. of blood, and was detained in custody for between 6 and 7 hours thereafter. The sole reason offered for the detention was that it was to ensure that his blood alcohol content was below 50 mg. when he was released.

[38] At para. 10, Thomas J. said this:

Although it is possible that the appellant could have been released earlier, the failure of the officer in charge to do so was not a contravention of s. 498 of the Criminal Code and did not constitute an arbitrary detention within the meaning of s. 9 of the Charter, in my respectful opinion. The officer in charge made a decision not to release the appellant in the public interest until his blood alcohol level was safely below 50 mgs. It was not an arbitrary decision on his part which resulted in an arbitrary detention.

[39] That decision was appealed to the Court of Appeal, reported at [1998] O.J. No. 4148](https://www.canlii.org/en/on/onca/doc/1998/1998canlii14900/1998canlii14900.html). Morden A.C.J.O. made the following endorsement for the court:

We are not persuaded that the police in light of the 130 mg. reading, were not justified in detaining the appellant for his own protection. However, in the event that there was an arbitrary detention, it could not, in our view, be a basis for excluding the breathalyzer evidence since there was no temporal or causal connection between the breach and the obtaining of the evidence. Further, this is not of those clearest of cases that would justify a stay of the proceedings. Leave appeal is granted but the appeal is dismissed.

[40] That decision is clear and binding authority for the proposition that detaining an individual for his own protection for 6 to 7 hours, based solely on readings of 130 mg., does not constitute arbitrary detention. Applied to the case at bar, it leads to the conclusion that detaining the Appellant for his own protection for 7 ½ hours, based solely on somewhat higher readings of 149 mg. and 137 mg., does not constitute arbitrary detention.

[222] Furthermore, the Crown referred me to the decision of the Manitoba Court of Appeal in R. v. Hardy, 2015 MBCA 51. Cameron J.A., speaking for the three-member unanimous panel, held:

[54] In my view, there is no bright line legal obligation to consider release to a sober third party in every instance, as argued by the accused. Each case must be determined on its own facts. As was stated in Weik, the police obligation is to “undertake a reasonable assessment of the sobriety of the accused and his or her suitability for release” (at para. 83). In some circumstances, that may include his ability to be released to a responsible sober third party.

[223] At first blush, it would appear to be settled law that no breach of an accused’s section 9 Charter right not to be arbitrarily detained or imprisoned can be made out where police continue the detention of the accused over a substantial period of time based on high blood alcohol readings.

[224] However, in R. v. Farquharson, [2019] O.J. No. 6107, my colleague, Berg J., in an expansive review of the authorities including Sapusak, Kavanagh and Larocque, found that there was a breach of the right not to be arbitrarily detained where police held the accused for a period of 3 ½ hours beyond what was reasonably necessary.

[225] His Honour came to this conclusion after a careful and considered assessment of the reasons of Durno J. in yet another Ontario summary conviction appeal decision, R. v. Price, 2010 ONSC 1898. Berg J. stated at paras. 58 - 59:

While I accept the proposition that there is a reasonable public interest in the continued detention of intoxicated persons until they have reached a state of sobriety sufficient to allow them to be safely released (see, for example, the brief endorsement in R. v. Sapusak, [1998] O.J. No. 4148 (C.A.) affirming [1998] O.J. No. 3299 (Gen. Div.)), it does not follow that the Court of Appeal was there saying that a BAC reading of 130 mg. (as in that case) requires the continued detention of an accused. Contrary to the decision of Heeney R.S.J. in R. v. Kavanagh, 2017 ONSC 637, who did take the Court of Appeal to mandate the continued detention based solely on the readings, the contextual assessment confirmed by Durno J. in R. v. Price, 2010 ONSC 1898 is, to my mind, the proper approach in that it allows for a proper review by the courts of whether the continued detention of a given accused was arbitrary. Given the myriad of possible factors in play, using the blood alcohol level as the sole criterion does not necessarily allow for proper scrutiny. As stated by Durno J in Price at paragraph 93

While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

The holding in Price seems well summed up in R. v. Larocque, 2018 ONSC 6475 at paragraph 45:

[i]n the context of impaired driving cases, high blood alcohol concentrations alone can constitute a sufficient reason for continued detention, so as to render such detention lawful and not arbitrary, so long as an assessment is made of the particular accused, and other available options are considered. [cites omitted] [emphasis added]

[226] Similarly in this case, I find that the 11 hours and 20 minutes during which Legault was detained following the provision of his breath samples constituted a breach of his section 9 Charter right not to be arbitrarily detained or imprisoned. It appears to me that not one iota of consideration was given by the Renfrew OPP to whether there existed a responsible person to take Legault into his or her care rather than leave him behind bars for an indefinite period. I make this finding in spite of the Manitoba Court of Appeal’s decision in Hardy, which, of course, is a persuasive authority put before me, but which is not strictly binding upon me.

Was Legault’s section 10(b) right to be informed that he may retain and instruct counsel without delay infringed or denied? If he did wish to contact counsel, was he provided with a reasonable opportunity to do so?

[227] Constable O’Connor was under a constitutional obligation to provide Legault with his rights to counsel “without delay”. Since Suberu, “without delay” means immediately.

[228] Constable O’Connor arrested Legault at 19:13, but the officer did not read rights to counsel to the accused until 19:20.

[229] Legault, although initially passively resistant, was handcuffed behind his back in the yard of 182 Lochiel Street in Renfrew. Once that occurred, there was no evidence adduced to suggest that any officer safety concern persisted.

[230] Accordingly, there was nothing to prevent police from providing the accused with his rights to counsel without delay.

[231] Constable O’Connor may well have had a concern in mind that enough of a kerfuffle and disturbance had been caused to the homeowners or occupants of the private residence into whose yard Legault fled. Nevertheless, police were there to apprehend the accused. I find there was little, if anything, stopping police from simply complying with their duty to provide Legault with the information he required to retain and instruct counsel, and to allow him to begin then and there his consideration of whether he wished to consult a lawyer or not.

[232] Legault’s belligerence may have tempted police to treat him with the same contempt he showed for them. Legally however, police are expected to behave professionally, to ‘take the high road’, to do what is required of them and to fulfil their constitutional obligations. They did not do so in this case.

[233] Further, the right to counsel was treated by Constable O’Connor as if it was declined by Legault. When the accused was asked by the officer if he wished to call a lawyer, Legault said, “Fuck you. I’m not talking to you.” The accused’s response was both rude and disrespectful; however, it was not an answer to the officer’s question. Constable O’Connor ought to have but did not insist on a proper reply to his question.

[234] Although Constable O’Connor testified it was his usual practice to ask an accused under arrest if he or she had a lawyer, he did not do so in Legault’s case. Constable O’Connor offered no explanation as to why he did not in this case.

[235] When Legault was taken to the OPP detachment in Renfrew, it was Constable Jean-Louis who adverted to Legault’s right to contact counsel, if he wished to assert it, which presumably he did. However, there is a complete absence of evidence offered by police as to what options, if any, were put to Legault as a means to exercise his right to counsel.

[236] I can only infer from the evidence adduced at the blended voir dire trial thus far that Constable Jean-Louis, as well-meaning as he may have been, considered a call to duty counsel, which he took upon himself to make on Legault’s behalf, to be a sufficient discharge of the police duties imposed under section 10(b) of the Charter.

[237] Cst. Jean-Louis had no notes, nor had any recollection of what Legault said to indicate his desire to contact counsel. All I can discern is that the officer chose duty counsel, not Legault.

[238] Under these circumstances, I can safely conclude that police did not discharge their obligations under s. 10(b) of the Charter to inform Legault of the scope of the right to counsel, to ensure he understood that right and to facilitate that right by offering a reasonable opportunity to Legault to contact any lawyer he wished.

[239] An immediate default to duty counsel in the circumstances of this case cannot pass constitutional muster.

[240] As a result, I find that the accused s. 10(b) Charter right to counsel was breached.

Should the Evidence Derived from the Charter Breaches be Excluded pursuant to s. 24(2) of the Charter?

[241] Legault’s counsel seeks the exclusion of the following:

a) the observations made by police contemporaneous with or subsequent to the accused’s arrest,

b) the breath readings,

c) the contents of the accused’s vehicle, and

d) any observation suggesting alcohol consumption or impairment.

[242] In my view, the first issue for determination arises with respect to the availability of remedy under section 24(2) of the Charter.

[243] Section 24(2) of the Charter reads:

Where, in proceedings under subsection (1), a court concludes that the evidence was obtained in a manner that infringed or denied any rights and freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[244] I am persuaded by the reasoning employed by Berg J. in Farquharson that the most serious Charter breach was the overholding of Legault by police for a period exceeding 11 hours. I am further of the view that this section 9 Charter breach allows for a remedy under section 24(2) of the Charter.

[245] At paragraphs 64 through 67 inclusive of Farquharson, His Honour explained:

It is to be remembered that over-holding occurs after an investigation is complete and that it does not usually result in the gathering of further evidence. Thus, it can be argued that a court would not be able to conclude that there was any evidence that was obtained both as a result of the over-holding and in a manner that infringed or denied any rights or freedoms guaranteed by the Charter. In effect, there would be nothing to exclude as no evidence would be obtained by means of an illegal delay in the release of a prisoner (see, for example, R. v. Weaver, 2005 ABCA 105, [2005] A.J. No. 235 (C.A.)). I also refer here to the brief endorsement by the Ontario Court of Appeal in R. v. Sapusak, [1998] O.J. No. 4148:

However, in the event that there was an arbitrary detention, it could not, in our view be a basis for excluding the breathalyser evidence since there was no temporal or causal connection between the breach and the obtaining of the evidence.

However, Ms. Davies has pointed out that there have been decisions where section 24(2) was applied as a remedy for over-holding. In R. v. Lorenzo, 2016 ONCJ 634, Hawke J. was dealing with a breach of an accused's section 9 rights by over-holding. She considered whether a section 24(2) remedy of exclusion of evidence was available. She concluded

[11] In the majority of cases the Charter breach is prior to the discovery of evidence but in cases like this one, where there is a s.9 breach as a result of 'overholding', the breach follows the discovery of evidence. As a result, I heard argument about whether the threshold wording of "obtained in a manner" can be met in this case given the breach follows the obtaining of evidence (i.e. the readings).

[12] This threshold issue was considered recently by the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389. Laskin J.A. concluded that a Charter breach occurring after the discovery of evidence may meet the s. 24(2) threshold. After reviewing the case law he set out the approach that applies to all Charter challenged evidence under 24(2) regardless of whether the breach was before or after the discovery of the challenged evidence. This approach is summarized in paragraph 72 of the decision:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire "chain of events" between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.

[13] Given this, I find that a s. 24(2) remedy is available, if the considerations outlined above are met.

Absent the possibility of a remedy by means of the exclusion of evidence, only the most egregious examples of over-holding would have recourse to the Charter remedy of a stay of proceedings pursuant to section 24(1). Other accused persons who have been arbitrarily detained but for shorter periods of time have had in some cases their sentences reduced. It strikes me, however, that by the lack of significant remedial action in cases of over-holding, the courts fail to disassociate themselves from these breaches and thereby could be taken as condoning arbitrary detentions. A reduction in sentence would, in most cases, fail to drive home the point to state agents that they must be mindful that a legal detention can become arbitrary. While a stay of proceedings may not be available in most of these cases, I am of the view that the exclusion of evidence, as outlined in Lorenzo, can be considered as a possible remedy. I note here the similar conclusions in R. v. McEwan, 2018 ONCJ 702, R. v. Guilbeault, 2018 ONCJ 703, R. v. Rush, 2018 ONCJ 89, and R. v. Hall, [2016] O.J. No. 6211 (C.J.).

Hawke J. refers to the considerations that have to be met before a section 24(2) remedy can be available; in other words, a threshold test. The first part of that test is to consider whether the evidence in question and the Charter breach are part of the same transaction. I find that they were indeed part of the same transaction. Mr. Farquharson was detained continuously by the police from the time he was stopped in his car until the moment that he was released on a Promise to Appear. The breath samples were obtained from Mr. Farquharson during that detention. The detention was executed, in part, in order to obtain those breath samples. The breath samples themselves provide the causal connection with the detention. The police witnesses testified that the reason they did not release Mr. Farquharson was due to the readings obtained by means of those samples. The arbitrary detention began immediately after the defendant was processed by the breath technician. I find, therefore that the threshold test has been met and I can consider the exclusion of the breath samples as a remedy for the section 9 breach.

[246] I share the concern identified by Berg J. regarding the danger of placing too restrictive an interpretation on the meaning of the language “obtained in a manner” as a precondition to the exclusion of evidence under section 24(2) of the Charter. A more contextual approach is required.

[247] In this case, Legault’s detention commenced with his arrest shortly after his discovery in the backyard of 182 Lochiel Street in Renfrew. This is the continuing, ongoing state in which Legault found himself while in police custody. In essence, it was one transaction. The police took control over his person until he was released over 11 hours later.

[248] Since the benchmark decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, the effect of admitting evidence at trial must be assessed and balanced against the backdrop of society’s confidence in the criminal justice system upon examination of the following three factors:

a) the seriousness of the Charter infringing state conduct,

b) the impact of the breach on the Charter protected interests of the accused, and

c) society’s interest in an adjudication of the case on its merits.

The Seriousness of the Charter-infringing State Conduct

[249] In my view, Constable Van der Woude’s conduct in opening the doors to Legault’s Explorer was not an egregious intrusion upon the privacy and security he should expect to enjoy in a vehicle left in a parking lot with windows down. I accept that the officer likely wished to simply locate the keys to ensure that Legault would not flee from police again while possibly in an impaired state.

[250] The officer acted quickly without adverting to the need for common law or statutory authority to search the interior of the vehicle. Indeed, much of what he set out to accomplish could have been obtained by way of a visual inspection of the interior looking through the open or closed windows.

[251] Constable Van der Woude showed no blatant disregard for Legault’s section 8 Charter right. The officer acted in the heat of the moment and in good faith.

[252] I cannot come to the same conclusion at all about the decision of Constable O’Connor to detain Legault until sober. No mechanism was put in place to decide at what point Legault would be sober enough for release to the officer’s satisfaction. In Constable O’Connor’s opinion, would that be when Legault’s blood alcohol concentration decreased to 50 mg of alcohol per 100 mL of blood? Or would Legault have to have eliminated all alcohol in his body? It is that arbitrariness which troubles me.

[253] Constable O’Connor relied solely on the high readings as a basis for Legault’s continued detention. It appears he did not inquire of Constable Kozuska regarding his assessment as a qualified technician of the effects of alcohol upon Legault. Had he done so, Constable O’Connor may have discovered that Constable Kozuska’s opinion was that they were slight. Constable O’Connor may have had reservations still about Legault’s ability to safely make his way home; however, the officer’s reliance solely upon the high readings was ill placed. It did not account at all for the tolerance for alcohol an individual may possess.

[254] Liberty is a cornerstone of every free and democratic society. It is not to be taken lightly. Legault lost his freedom without just cause from 20:30 to 07:50 the following day. That is a window of time he will never get back.

[255] Legault’s liberty was taken from him without the police even turning their minds to whether someone else could take charge of him to ensure his safety, or whether Legault could be trusted to make his way home in a cab.

[256] I find that Constable O’Connor’s conduct in relation to Legault was a serious breach of the section 9 Charter right not to be subject to arbitrary detention.

[257] To a far less significant degree, Constable O’Connor also breached Legault’s right to be informed without delay that he may retain and instruct counsel under section 10(b) of the Charter. I accept that it may have taken a few minutes to gain control of Legault while he was being passively resistant on the ground. Once handcuffed however, there was no longer any justification for not providing Legault with his rights to counsel immediately. There was an unnecessary delay in their provision for some 4 to 5 minutes.

[258] Also of concern is the failure by any police officer to ensure that a proper answer was obtained from Legault as to whether he wanted to contact any lawyer he wished and to provide him with the reasonable opportunity to do so. Instead, there appears to have been an imposition of duty counsel upon Legault by Constable Jean-Louis as a fast-track to the provision of legal advice. This cannot suffice.

The Impact of the Breaches on the Charter-protected Interests of the Accused

[259] Constable Van der Woude’s breach of Legault’s section 8 Charter right to be secure from unreasonable search of his vehicle had little to no impact. Perhaps, the officer would not have been able to discover that there was no interlock device without opening the doors to Legault’s Explorer. However, that is the extent of the fruits of Constable Van der Woude’s search.

[260] On the other hand, Constable O’Connor’s decision to hold Legault until sober had a profound impact. The accused was detained for no legitimate investigative purpose for hours and hours beyond what was required. Legault’s continued confinement showed a blatant disregard for the right to freedom every member of Canadian society holds dear. It took on the tenor of punishment imposed by police before trial. Courts must necessarily distance itself from this form of treatment shown to an albeit “belligerent” accused in police custody.

[261] Turning to the failure of Constable O’Connor to immediately read rights to counsel to Legault after he was handcuffed, I cannot see that the delay in their provision for some 4 to 5 minutes had any real impact upon Legault’s Charter protected interests. No evidence was elicited over the course of those 4 to 5 minutes. There was no requirement on the part of Legault to participate in any potentially incriminating procedure in which he may be compelled to engage as a matter of law.

[262] It is harder to gauge what impact the funneling of Legault directly to duty counsel may have had on his right to counsel. Legault ought to have been given a choice as to who he wished to contact. He was deprived of that right.

Society’s Interest in the Adjudication of the Case on its Merits

[263] Legault’s counsel seeks the exclusion of observations made by police and others of the accused, the contents of Legault’s vehicle and his breath readings.

[264] In so far as the evidence offered by a nonstate actor such as Burns is concerned, I cannot see how it could be subject to exclusion under section 24(2) of the Charter.

[265] With regard to the observations made of the accused by police and the breath samples, in my estimation, both can be characterized as real evidence. The observations and the readings are classic genres used by the Crown to prove impairment of the ability to operate a motor vehicle by alcohol. Society’s interest in the adjudication of Legault’s case on its merits militates in favour of the inclusion of this type of evidence.

Balancing of the Factors

[266] Considering the cumulative effect of the Charter breaches perpetrated by police on Legault’s constitutional rights and their impact upon the long-term repute of the administration of justice, I conclude that Legault’s breath readings must be excluded. I do so based mainly on the reasoning utilized by my colleague, Berg J. in Farquharson. Even though society has an interest in an adjudication of criminal cases on their merits, reasonable minded and informed Canadians want police to treat detainees in their custody fairly.

[267] It is the province of the Courts to punish those found guilty after trial only when the presumption of innocence has been properly displaced by the Crown and after the state has fairly presented its evidence against an accused. Pre-trial punishment of an accused has no place in a civilized, free and democratic society such as ours.

[268] For mainly this reason, specifically the unnecessary detention of Legault following the provision of his breath samples and the service of the necessary documents upon him, I will exclude the evidence of the analysis of those samples to prevent the administration of justice from falling into disrepute.

[269] The detention of Legault was necessary to obtain the samples. It was justified until they were properly analyzed. Thereafter, Legault’s continued detention was wholly uncalled for. Options ought to have been pursued by police to allow for Legault’s liberty to be restored. None of them were considered.

[270] Of lesser but important significance notwithstanding, the repute of the administration of justice is ill affected wherever police impose duty counsel upon an arrestee in their custody. The accused’s right to choose his or her own lawyer is thereby eradicated. This is exactly what happened to Legault upon my assessment of the evidence adduced thus far at his trial.

[271] With respect to the observations made by police and others up to the point of Legault’s detention, which was only justified until 20:30 of August 2, 2020, I will allow those to be admitted into evidence for my consideration upon the conclusion of Legault’s trial.

Conclusion

[272] The application brought by Legault is granted in part. His breath readings shall be excluded.

DATED: November 21, 2022

March, M.G., J.