ONTARIO COURT OF JUSTICE

CITATION: R. v. Barre, 2023 ONCJ 14

DATE: January 9, 2023

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SAID BARRE

Before Justice A. Dellandrea

November 14, 15, 16, 2022

Reasons for Judgment released January 9, 2023

Mr. R. Asimov...................................................................................... counsel for the Crown

Mr. T. Evangelista.................................................... counsel for the accused Said Barre

DELLANDREA J.

I. Introduction and Overview

[1] On June 14, 2020, a civilian motorist called police while driving on the 401 highway to report that he felt he was being pursued and harassed by the driver of a black Honda CRV. An OPP officer who happened to be in the area in response to a different incident observed the suspect vehicle and followed it for a short distance, before the CRV took an exit and the pursuit was terminated.

[2] Minutes later, the CRV was involved in a collision at a nearby intersection. The first officer and several others attended at the collision scene and interacted with the driver of the CRV, whose vehicle had collided with a pole. PC Barton investigated the driver, in whom he described seeing indicia of impairment by alcohol. During the arrest, a physical struggle ensued between PC Barton and the driver, who refused to identify himself on scene.

[3] The driver was ultimately placed into the rear of an OPP cruiser and transported to a division for breath testing. There, two breath samples were obtained yielding results in excess of the legal limit.

[4] The defendant, Said Barre, was charged with six offences as a result of this investigation, which include: dangerous operation, fail to stop, impaired operation, excess alcohol, resist arrest, and obstruct peace officer.

II. Positions of the Parties

[5] On behalf of the applicant, Mr. Evangelista alleges that investigators violated his client’s rights under sections 10(a) and 10(b) of the Charter by failing to immediately advise him of the reasons for his detention and of his right to retain and instruct counsel upon his arrest. Counsel characterized the delay in the recitation of right to counsel here as being emblematic of the systemic lack of awareness or failure on the part of police in the Peel Region to recognize the importance of the immediacy of their duty to notify detainees of their rights.

[6] Counsel argued that the alleged breaches of 10(a) and (b) were both temporally and causally linked to the seizure of breath samples and observations made by investigators of the defendant, in respect of which exclusion was sought under s. 24(2) of the Charter.

[7] On the trial proper, Mr. Evangelista argued that the evidence called by the Crown was insufficient to establish Mr. Barre’s intention to flee from police, fail to identify himself or to resist his arrest. Defence counsel likewise characterized the Crown’s evidence of dangerous operation to have been significantly lacking, such that acquittals were warranted on each of these charges. Similarly, it was argued that the court should have a reasonable doubt with respect to the sufficiency of evidence of impairment.

[8] Defence counsel also submitted that evidence of identity was not, in his words “a foregone conclusion” in this case. Counsel made brief submission on this point, noting that Cst. Rozic’s evidence of having been satisfied by his comparison of the driver to Mr. Barre’s driver’s license was left unsubstantiated by the Crown’s failure to introduce the photo which was relied on, and the inherent frailties of in-dock identification.

[9] Relying on the evidence of the three officers who described Mr. Barre’s state of extreme agitation and active resistance to his arrest, Mr. Asimov argued for the dismissal of both claims for Charter relief. It was argued that any delay in the recitation of the right to counsel in this case was the direct result of the defendant’s oppositional state, which the officers were trying to diffuse in the dynamic circumstances of the arrest before delivering his rights.

[10] The Crown further submitted that the evidence was sufficient to establish the defendant’s dangerous driving, wilful flight from the police, resistance to his arrest, refusal to identify himself and impairment. He invited convictions on all counts.

III. Governing Legal Principles

[11] Mr. Barre is presumed innocent of all charges. There is no requirement for him to refute his guilt or prove his innocence. The Crown at this trial carried the burden of proving his identity as the offender and the elements of each of the offences beyond a reasonable doubt.

[12] This matter proceeded as a blended voir dire and trial.

[13] On the Charter application, Mr. Barre bore a persuasive burden to establish the impugned breaches on a balance of probabilities. Were I to accept the defendant’s evidence given on the application, or if it raises a doubt as to the proof of the Crown’s case, he would be entitled to Charter relief and/or acquittals.

[14] I turn now to my analysis of each of the charges.

IV. Dangerous Operation and Flight from Police

a) Abdul Akpari

[15] The evidence of driving arises largely from the testimony of the civilian witness, Mr. Abdul Akpari, and brief observation by PC Barton.

[16] Mr. Akpari was heading home from an evening soccer practice at an area near Kipling & Dixon on the evening of June 14, 2020. As he merged onto the 401 westbound lanes he noticed a CRV right on his bumper, blaring its horn. Mr. Akpari wondered to himself whether he might have inadvertently cut the CRV off, thereby prompting the aggressive response.

[17] Mr. Akpari testified that once he was on the straightway of the 401 he rolled down his window and waved to the CRV to go ahead of him. When the CRV stayed behind him, Mr. Akpari said he navigated to the lane to the left. The CRV did as well. Mr. Akpari tried going back to the lane on the right. The CRV shadowed him once more. Mr. Akpari said he tried to slow down. He said this prompted the CRV to pull up and around in front of him, and decelerate even further.

[18] Upon reaching the collectors lanes of the highway, Mr. Akpari said he took the exit in an effort to shake the CRV. It continued pursuing him, by following very closely behind Mr. Akpari’s vehicle.

[19] It was then that Mr. Akpari became distressed and called 911. He testified that he was worried that the CRV driver might “bump me and cause an accident.” Mr. Akpari described the vehicle and its movements to the dispatcher, which included the driver pulling up beside him and rolling down his passenger window, as if to taunt him.

[20] Mr. Akpari kept driving west until he reached the #410, where he went north. Upon reaching the Clark Blvd exit, he testified that the CRV moved from being immediately to his left to just in front of him, such that Mr. Akpari moved over to the emergency lane or shoulder to try to avoid him.

[21] At this juncture, Mr. Akpari saw the lights of a police cruiser coming up behind them, and the CRV quickly proceeding to the Clark Street exit. He described seeing a police cruiser pursue the CRV for some distance, but then stopping on the Clark Street ramp. After stopping to briefly speak with the officer, Mr. Akpari proceeded up the Clark St. ramp and came upon the site of a collision. He testified that the same CRV that had pursued him was crashed, and he saw whom he believed was the driver yelling at people at the crash scene.

b) PC Ryan Barton

[22] At 9:28 p.m. PC Barton was driving north on the #410 in response to a different traffic incident when he heard the call over the air at 9:28 p.m. about a potential “road rage” incident in NB lanes of that roadway.

[23] His emergency kit of lights and sirens were already activated in response to the call to which he had been assigned.

[24] PC Barton said that while en route to the collision to which he had been assigned, while in the area approaching the Clark Blvd exit, he saw two vehicles that matched the description of the possible road rage at 9:33 p.m.

[25] The officer testified that he saw the CRV following the sedan “very closely” as well as seeing it change lanes to approach the sedan from the left, and thereafter to steer towards the sedan in a manner that he believed forced the sedan off the road onto the shoulder. He then described the CRV as pulling in front of the sedan, braking hard, then accelerating away.

[26] Upon making these observations PC Barton said he also accelerated in order to pursue the CRV. He succeeded in getting a few car lengths behind the CRV as it sped up the Clark Street exit then turned sharply eastbound into the westbound lanes of Clark Blvd. The officer terminated the pursuit at this time by pulling over onto the shoulder of Clark. He noted the time he pulled over as 9:34 p.m.

[27] PC Barton proceeded to the area where the CRV had been last seen. There he discovered the black CRV facing southeast against the curb with heavy front end and right-side damage. He saw a black male exiting the driver’s side of the CRV whom he identified as the defendant.

Analysis

[28] Section 320.13(1) defines the offence of dangerous operation as occurring when a conveyance is operated “in a manner that, having regard to all of the circumstances, is dangerous to the public.”

[29] In evaluating the actus reus of the offence, the trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that was dangerous to the public, in view of all of the circumstances – including the nature and condition of the roadway, the amount of traffic, time of day, among others. To satisfy proof of the mens rea, it must be shown that the accused’s conduct amounted to a “marked departure from the standard of care” that a reasonable person in the accused’s circumstances would have observed: R. v. Beatty, 2008 SCC 5 at para 40-43.

[30] As Mr. Evangelista rightly notes, there is are important distinctions between civil and penal negligence – one which was not addressed in any submissions offered by the Crown in submissions in this case.

[31] To invite a conviction on the offence of dangerous operation, the Crown must establish both that the defendant’s conduct was dangerous to the public and further that it fell markedly below the standard of care of a reasonably prudent driver.

[32] While I heard evidence from Mr. Akpari about having been followed by the defendant in a manner that felt uncomfortably close to him, his evidence did not refer to his having been abruptly run off the road, as PC Barton described. This inconsistency leaves me doubtful of the mechanics of this instance. Following too closely is an offence under the Highway Traffic Act. Dangerous operation requires proof of conduct which is significantly more dangerous, on an objective standard.

[33] To be clear, I do not doubt the sincerity of Mr. Akpari’s perception of a situation which he found distressing and dangerous to himself. However, given the brevity of Officer Barton’s observation of driving (which by his own evidence was no more than one minute), the inconsistencies between his and Mr. Akpari’s accounts, and the absence of any submissions from the Crown on the defendant’s departure from the legal standard of care for this offence, I find Mr. Barre not guilty of this charge.

V. Flight from Police

[34] S. 320.17 makes it an offence to fail to stop when being pursued by the police, without reasonable excuse.

[35] The issue to be determined is has the Crown established beyond a reasonable doubt that Mr. Barre was being pursued, and that he intended to flee from police?

[36] It is not disputed that PC Barton’s cruiser’s emergency kit of lights and sirens had been activated by him in response to another call – to which he was hurrying to attend. It was happenstance that the officer came up on the suspect and complainant vehicles while already in active pursuit, effectively, towards that other accident site.

[37] On the officer’s own evidence, his first observation of the pair of vehicles was at 9:33 p.m. He testified that almost immediately, the CRV took the Clark Street exit, while the sedan “pulled over” on the shoulder. He said he saw the CRV accelerate up the Clark ramp at which point he chose to terminate the pursuit at 9:34 p.m. The total duration of his observation of the CRV was less than a minute.

[38] The brevity of the officer’s observations, together with his evidence of the defendant’s near immediate departure from the highway at the moment of his arrival in the same area are insufficient to satisfy me that the Crown has established that PC Barton was in pursuit of the suspect vehicle, nor that there was an intention to fail to stop for police. I believe it is likely that Mr. Barre saw that there was a cruiser with lights and sirens speeding up towards where he was, but this alone is insufficient evidence to establish the elements of the offence beyond a reasonable doubt. I find Mr. Barre not guilty of this charge.

VI. Resist Arrest, s. 10(a) and s. 10(b) of the Charter

[39] The Crown relies principally on the evidence of the arresting officer, PC Barton, in addition to the evidence of PC Harris who was second on scene in seeking to establish Mr. Barre’s resistance of his arrest.

[40] I note at this juncture that while the defendant testified on the Charter voir dire, he did not offer evidence or submit to cross-examination on the trial proper on the substantive issues, including this one.

[41] On the related Charter issues, evidence was received from Officers Barton, Harris Rozic and Maguire. The defendant also gave evidence on the ss. 10(a) and 10(b) issues at play.

a) PC Barton

[42] PC Barton testified that by the time he arrived at the scene where the CRV had collided, several other vehicles including a bus were on site, and “lots of people” were standing outside observing the crash. PC Barton exited his cruiser and saw the defendant step out of the driver’s side of the CRV.

[43] PC Barton testified that at 9:35 p.m. he approached the defendant and asked him if he had any injuries. When the defendant replied in the negative, PC Barton told the defendant he was under arrest for flight from police. He approached the defendant and told him to put his hands behind his back. Initially the defendant complied but when the officer removed his cuffs to place them on the defendant’s wrists, he made his arms rigid, twisted and pulled away from the officer.

[44] PC Barton immediately called for backup at the defendant’s first signs of resistance.

[45] PC Barton said he directed the defendant several times to stop resisting. On each occasion the defendant said “I’m not,” but continued to do so. In response, PC Barton said he used his body weight to lean against the defendant against the vehicle to gain control of him and try to get the cuffs on. This struggle persisted for approximately a minute before a civilian tow truck driver came over and tried to reason with the defendant, who ultimately calmed slightly. PC Barton was able to get the handcuffs on at 9:35 p.m.

[46] During this brief struggle, PC Barton described having noticed a smell of alcohol coming from the defendant and that his eyes were bloodshot and glazed or glossy.

[47] PC Barton then attempted to walk the defendant to the police cruiser to place him in the back seat to provide right to counsel. PC Barton testified that at this stage the defendant became agitated again and refused to get in the police car. As PC Barton tried to guide him into the back seat, the defendant grabbed the cruiser’s wheel well and was holding on to resist the officer’s efforts. Once again the tow truck driver came over to “talk him down” and ultimately PC Barton was able to get the defendant into the back seat. PC Barton continued speaking to the defendant to try to get him to calm down, without success.

[48] PC Barton testified that within moments, PC Harris arrived on scene, and offered his assistance. PC Barton stepped back from his cruiser to try to let PC Harris try to diffuse the defendant’s apparent agitation.

[49] PC Barton adamantly disagreed with the suggestion that the defendant ever asked for the reasons for his detention or demanded to speak to a lawyer in his presence.

[50] PC Barton conceded that after telling the defendant of the basis for his arrest for Fail to Stop, he did not provide a caution or right to counsel. He testified that he was trying to, but that he “couldn’t get any words in, as he was yelling louder and louder each time I tried to speak to him.” The defendant was in the same state when PC Harris arrived and stepped in to assist.

[51] After being cleared to leave the scene, PC Barton transported the defendant to the division for booking and breath testing, both of which he observed.

[52] During the booking, the defendant asked to speak with duty counsel. At 10:57 p.m. he called duty counsel and at 11:03 p.m. Mr. Barre was given private access to counsel until 11:16 p.m.

[53] During the breath testing procedure a second request for counsel was made at 11:20 p.m., prompting PC Harris to call duty counsel again at 11:22 p.m. and delivering the defendant to speak with them between 11:34 p.m. and 11:52 p.m.

b) PC Ryan Harris

[54] PC Harris was second to arrive on scene, at 9:41 p.m. He testified to having heard on the police radio that PC Barton was seeking backup on scene due to a “fight” with a detainee. He proceeded quickly to the scene to assist his colleague based on this concern.

[55] Upon his arrival, PC Harris observed whom he described as the highly emotionally charged defendant in the rear of PC Barton’s cruiser. He said PC Barton was trying to speak to the defendant to calm him down, without success, as Mr. Barre was rocking back and forth in the rear of the cruiser, screaming and hyperventilating while shouting accusations of racism towards police. He testified that the defendant was yelling “constantly” such that it was impossible to get any words in edgewise.

[56] PC Harris testified that he understood the importance of providing a detainee with right to counsel, but likewise believed that his responsibility as an officer included trying to get the person “down” to a level where right to counsel and the caution could be understood.

[57] PC Harris said it took almost 15 minutes for Mr. Barre to stop yelling and get his breathing under control such that the officer could even get a few words in, over the defendant’s screams which he likened to “a one-way conversation for a very long time.”

[58] On the issue of right to counsel, PC Harris testified that at no point did he think it was appropriate to bring it up, as in his view “none of it would have been understood or listened to” as Mr. Barre was “completely out of control.”

[59] PC Harris noted a “definite” odour of alcohol which he surmised might have partly fueled the defendant’s apparent rage.

[60] PC Harris likewise strongly rejected the suggestion that Mr. Barre ever asked for a lawyer during the 13-minute interaction with him. PC Harris said he was not “in that place at all,” as the defendant’s perspective was “locked into full panic mode” the entire time.

c) Sgt. Maguire

[61] Sgt. Maguire arrived on scene at 9:49 p.m. He observed the damaged vehicles, Mr. Barre in the rear of PC Barton’s cruiser, and PC Harris attempting to engage with the defendant who was “irate” and “screaming” constantly.

[62] Sgt. Maguire learned of the circumstances of the defendant’s arrest from PC Barton, including the fact that the defendant had not identified himself or produced any identification documents. Sgt. Maguire also learned from PC Barton that in the haste of the arrest, PC Barton had not done a pat-down search of the defendant or double locked the handcuffs according to protocol. PC Barton also advised him that while he had made an attempt to start giving right to counsel and the cautions, the male had been interjecting and yelling so much that PC Barton was not satisfied that the male had fully understood.

[63] Sgt. Maguire opened the rear of the cruiser and introduced himself as the supervisor and asked the male to ID himself. No response was given.

[64] Sgt. Maguire noticed a strong odour of beer on the defendant’s breath. He testified that the male’s speech was slurred, and his eyes were bloodshot and glassy.

[65] At around 9:49 p.m. Sgt. Maguire asked the male to exit the vehicle so that the cuffs could be reapplied properly. The defendant refused, stating that he “wouldn’t get out because he didn’t want to be the next George Floyd.” Repeated verbal directions for him to exit were offered. The defendant remained combative, yelling loudly and swinging his arms. Ultimately he was physically removed by Sgt. Maguire and PC Rosic, and his cuffs were properly secured. Sgt. Maguire redirected the defendant to the rear of the cruiser once more, which he did.

[66] Based on his observations at 9:54 p.m. Sgt. Maguire told the defendant that he was under arrest for impaired operation.

[67] Sgt. Maguire proceeded to read right to counsel and the cautions and breath demand to the defendant from his memobook. In response to the final question of the right to counsel recitation (Do you want to call a lawyer now?) the defendant said “No. call one person and tell them the situation.”

[68] Sgt. Maguire agreed that this response by the defendant was “contradictory,” but he interpreted it as a request to call a friend or family member, not a lawyer.

[69] At 10:05 p.m., Sgt Maguire, who was also the Qualified Breath Technician, left the scene to attend the division and to ready the Intoxylizer for breath samples.

[70] At 10:22 p.m., the defendant had been transported to the division and Sgt. Maguire again asked him if he wanted to speak to counsel. At 10:54 p.m. the defendant asked to speak to duty counsel and the call was facilitated.

[71] The defendant entered the breath room at 11:16 p.m.

[72] During the testing procedure, at 11:18 p.m., Mr. Barre asked for another opportunity to speak to duty counsel and a second call was placed. The defendant spoke with duty counsel the second time from 11:34 p.m. to 11:52 p.m.

[73] The defendant returns to the breath room and the testing procedure begins with Sgt. Maguire’s indication that the subject is “an unidentified male.” The defendant acknowledges this assertion, indicating “that’s right.”

[74] A short time later, at 12:05 a.m., Sgt. Maguire indicates that he has received information regarding the defendant’s identity. The following exchange occurs:

Maguire: They were trying to ID you at first

Defendant: But I gave you my address, right?

Maguire: Yes, I found out who you are

Defendant: So it’s ok now, right?

Maguire: Yes, your mom confirmed your ID for us

Defendant: Ok, cool.

[75] Two suitable breath samples, registering results of 196 mg/100mL and 194 mg/100mL were obtained from the defendant.

[76] Sgt. Maguire prepared true copies of the Certificate of Qualified Technician in Mr. Barre’s name, which he gave to PC Barton for service to the defendant.

d) Defendant’s evidence on Charter issues

[77] The defendant testified on the voir dire only, in relation to his claims of Charter violations under ss. 10(a) and 10(b).

[78] Mr. Barre said that after exiting his vehicle that PC Barton essentially tackled him against his vehicle without warning or any form of explanation. He described PC Barton as having “rushed” towards him from 12 feet away and “slammed” him against his vehicle to apply handcuffs without a word being spoken. Mr. Barre testified that he himself was asking “what are you doing” and “can you make the cuffs less tight,” “why am I here” and “can you please tell me what you are arresting me for.” On his evidence, the officer made no reply but simply “kept dragging” Mr. Barre and telling him that he was resisting.

[79] Mr. Barre further testified that once he had been placed in the rear of the cruiser he specifically and repeatedly asked “when can I speak to my lawyer,” but received no acknowledgement or reply of any kind from PC Barton. Mr. Barre said that after a period of time, the second officer (PC Harris) opened the door to try to talk to him and was trying to ask him questions “about my case.” He claims to have responded by repeating that he did not know why he was there and by calmly requesting to speak with a lawyer. On the defendant’s evidence, Sgt. Maguire was equally silent on providing responses to his question “am I arrested, am I arrested” which he said he posed continually.

[80] Mr. Barre concurred with the narrative of his having been removed from the cruiser for his cuffs to be reinstalled, but described the officers (PC Rosic and Sgt. Maguire) as having treated him like “a rag doll” by grabbing him forcefully from the car and “slamming” him to the ground, all while he claims he was continuing to ask, “am I arrested.” Mr. Barre testified that at times he did not know who he was speaking to, or why.

[81] While Mr. Barre agreed that PC Harris arrested him for impaired operation, he denied ever having been given his right to counsel and testified that he continued to be unclear as to “why I was in the cop car.” He claimed to have been trying to be “cooperative as best I could.”

[82] Mr. Barre repeated legal phrases like “excessive force” and “indifferent to my rights” within his testimony. He also claimed to have recalled the specific time (9:42 p.m.) when he first interacted with PC Harris. Overall, Mr. Barre’s testimony appeared considerably scripted, as did his claims of having spoken in a calm and polite voice to the officers throughout his arrest. In his description of the conduct alleged by the officers, particularly PC Barton’s, the defendant used a variety of exaggerated terms in his description of being “launched,” “slammed,” “rag dolled”, and “abused” by the officers.

[83] The evidence of an initial and subsequent physical struggle between Mr. Barre and the officers was not in dispute. To be clear, I have no difficulty in accepting that it would have been an unpleasant exchange for Mr. Barre. The issue for my adjudication is the nature of that struggle, the various participants’ roles within it, and the words exchanged, if any, throughout.

[84] I did not find the defendant’s testimony on these points to be credible based on the issues I have identified. I do not accept his evidence of having calmly repeated his questions to officers who inexplicably ignored him, as opposed to his having yelled defiantly at them throughout their exchange. However, that does not complete the analysis. The question remains as to whether the officers fulfilled their constitutional obligations under ss. 10(a) and (b) of the Charter.

VII. ANALYSIS – SS. 10(a) and 10(b)

[85] S. 10(a) of the Charter requires that a person be informed of the reasons for the arrest or detention immediately, and before any questioning by police: Evans, 1 SCR 869 (SCC). The underlying purpose of 10(a) is to permit the detainee to exercise his 10(b) right in a meaningful way by their being made aware of the extent of his jeopardy: Black, 1989 CanLII 75 (SCC), 1989 2 SCR 138 at 152.

[86] Once a person is detained or arrested, 10(b) is engaged and prompts the duty to inform the person of their right to retain and instruct counsel without delay. Once this informational component is discharged, a corollary implementational duty requires the police to implement the requests made by the subject by providing an opportunity to speak with counsel of choice and by holding off any questioning until this is facilitated.

[87] On the issue of the timing by Mr. Barre of the receipt of information about the reason for his detention, as I have indicated, I reject the defendant’s evidence on the basis that I found it to be fraught with a number of testimonial frailties, including internal inconsistencies, and significant exaggeration.

[88] I accept PC Barton’s evidence that when he approached Mr. Barre at his vehicle, after asking him if he was injured, the officer informed the defendant that he was under arrest for Flight from Police. It was reasonably conceded by counsel for the applicant that there were reasonable grounds for Mr. Barre’s arrest for this offence, which there were. I have no difficulty accepting the officer’s evidence that he informed Mr. Barre of the reasons for his detention and asked him to place his hands behind his back for the arrest, following which the undisputed struggle began.

[89] The applicant’s claim under s. 10(a) of the Charter is dismissed.

10(b)

[90] The police have a duty to inform a detainee of his or her right to retain and instruct counsel immediately upon detention. The courts have long recognized that the right to counsel represents a “lifeline” to detainees which may operate to level the imbalance of power between the arrested party and the agents of the state at the critical moment when the individual’s legal jeopardy is at stake: Suberu, 2009 SCC 33.

[91] Immediacy is the driver of the right to counsel. In this case, the evidence established that there were 19 minutes between PC Barton’s arrest of the defendant at 9:35 p.m. and his provision of right to counsel by Sgt. Maguire at 9:54 p.m.

[92] On the applicant’s behalf, Mr. Evangelista did not submit that the entirety of this interim represented an unreasonable delay of the provision of his clients’ right to counsel, given the evidence of the officers (as well as his client) on the initial period of time for which there was some form of struggle in PC Barton applying the handcuffs on Mr. Barre. However, it was argued that by the time his client was handcuffed and seated in the rear of the cruiser for the first time, at 9:41 p.m., the constitutional imperative on the police to provide him with information about his right to counsel was triggered.

[93] Counsel suggests that the 13-minute delay until the provision of right to counsel by Sgt. Maguire reflects a breach.

[94] The evidence which I accept with respect to the dynamics of this period of time comes from PC Barton, PC Harris and Sgt. Maguire. All were consistent in their description of Mr. Barre’s highly agitated, if not hysterical state in which he was shouting accusations of racialized mistreatment at the officers and being non-responsive to their efforts to convey information to him or calm him down. I accept PC Barton’s evidence that he tried to start giving right to counsel and cautions to Mr. Barre who yelled over him incessantly. It was for this very reason that PC Harris came and relieved PC Barton in an effort to diffuse the one-way hostility of the interaction, in which there could be no meaningful provision of information to the defendant.

[95] Once PC Harris took over the task of negotiating with the defendant, the second officer was met with the same challenge as the first. He tried to get the defendant to calm down and hear what he had to say, but Mr. Barre was having none of it. I accept the officer’s evidence that Mr. Barre was in “full panic mode.”

[96] It was only when Sgt. Maguire arrived and interacted with Mr. Barre at 9:54 p.m. that right to counsel were able to be delivered.

[97] The courts have recognized that there are valid reasons why the provision of right to counsel can be reasonably delayed, in certain circumstances. For example, where health and safety (of the individual, or officer) are at stake there may be a basis to delay in providing right to counsel, pending the resolution of these important variables. Indeed, in Mr. Barre’s case, the task of securing him safely with handcuffs before lodging him in the cruiser was a legitimate investigative concern which prevailed over the immediacy of right to counsel when he actively resisted the officer’s efforts, thereby causing the delay.

[98] At 9:41 p.m., the defendant was secured in the rear of the cruiser. PC Barton tried to provide right to counsel but felt that it was impossible to be assured that Mr. Barre was listening never mind understanding the information as he was yelling constantly.

[99] Mr. Evangelista submitted that there was no excuse for the officers’ failure to give right to counsel at that point in time, as there were no safety concerns, its delivery might well have been the key to calming the subject down. Counsel suggested that it’s “only three words” which should have been easy for the officers to quickly deliver.

[100] Respectfully, this submission trivializes the nature of the responsibility borne by officers for providing much more than the three words “right to counsel” to an individual who has been detained. I can well expect that had the officers conveyed the substance of the right by this shorthanded method they would rightly be criticized by counsel, and the courts, for failing to ensure that the provision of the information about the vital lifeline of counsel was conveyed meaningfully.

[101] The circumstances of this case highlight the real, heavy and complicated confluence of duties which can crystallize around the provision of right to counsel to a detainee such as Mr. Barre, who is behaving in a manner (for whatever reason) which itself complicates if not prevents the ability of the officer to meaningfully give constitutionally mandated information to the subject. A right that is ineffectively communicated or comprehended would have little or no meaning: Lau, 2018 ONSC 2550, at para 32.

[102] Should the police simply ignore the expressions of distress or hostility being expressed by the subject and shout the recitation of rights at the detainee, without any confidence that the rights will even be heard? Surely not. By the same token, it would be equally concerning for the provision of right to counsel to be delayed indeterminately on the basis of an officer’s perception of any measure of distress or distraction by the subject. Neither of these propositions would be constitutionally tenable.

[103] The evaluation of the reasonableness of any impugned delay on the provision of right to counsel must focus on the unique circumstances of the particular case. For example, in Lau, supra, the defendant was subjected to questions aimed at gathering incriminating evidence from him, all before he had received right to counsel. Once rights to counsel were communicated and counsel was requested, officers failed to hold off with further questioning. These were found to be flagrant breaches, on the facts which are entirely distinguishable from this case.

[104] In this case, I conclude that there was no attempt by any officer to elicit or gather evidence from the defendant during the period of time when he was in the rear of the cruiser in a highly agitated and oppositional state. Rather, I accept that the single goal which the officers were variously trying to achieve was to get Mr. Barre to stop rocking back and forth, yelling and berating them long enough to deliver information to him about his rights.

[105] Sgt. Maguire was ultimately successful in doing so after 13 minutes of reasonable efforts by the other officers towards a highly agitated and volatile subject. I acknowledge that there are cases in which shorter delays have grounded findings by other courts of unlawful delays under s. 10(b). However, in the unique circumstances at play in this case, I am not persuaded that the applicant has established a breach of his rights under s. 10(b) of the Charter. The delay here was a direct result of the applicant’s own refusal to be receptive to anything being said by any officer. The application under s. 10(b) is dismissed.

VIII. TRIAL PROPER

[106] I turn now to the remining issues on the trial proper.

a) Over 80

[107] Having dismissed the applicant’s Charter claims, the evidence of the defendant’s breath readings are admissible and dispositive of the defendant’s blood alcohol concentration. There was no dispute with respect to his operation of a conveyance at the impugned time.

[108] I find Mr. Barre guilty of Count #4.

b) Impaired

[109] The officers described having detected an odour of alcohol on the defendant’s breath as well as red-rimmed or bloodshot eyes as well as slurring of his speech at the roadside, lodging and breath testing. These are well-recognized indicia of potential impairment by alcohol. The evidence of the defendant’s erratic driving, improper navigation into incoming traffic at Clark Blvd, and unexplained MVC are also available to support an inference of impairment.

[110] Mr. Evangelista rightly points out that the officers did not observe any stumbling or other gross motor challenges, nor were any self-evident on the breath room video. Counsel submits that the evidence of impairment in this case was not overwhelming, and should lead to a reasonable doubt. While I concur that these particular indicia may have been absent, their presence is not a prerequisite to a finding of impairment.

[111] I am satisfied that the totality of both physical signs of impairment as well as driving related factors are sufficient to establish that Mr. Barre’s ability to operate a motor vehicle was impaired to some degree by alcohol, beyond a reasonable doubt: Stellato, 1993 CanLII 3375 (ON CA), 1993 78 CCC (3d) 380 (CA).

c) Resisting Peace Officer s. 129(a)

[112] Resisting a peace officer requires more than being uncooperative. It requires active physical resistance: Kennedy, (2016) CCC (3d) 530 (Ont. CA).

[113] PC Barton testified that Mr. Barre initially complied with his direction to place his hands behind his back, but then straightened and pivoted his arms away from the officer while he attempted to apply the handcuffs. The defendant received and ignored several verbal directions from the officer to stop resisting during the minute or so that it took to apply the handcuffs. Had this been the totality of evidence of resistance, I might have had a doubt as to whether the threshold between uncooperative and resistant had been breached. However, I heard that Mr. Barre refused to enter the cruiser and grabbed on to the wheel well to physically resist the officer’s efforts to guide him into this police car. This conduct amounts to active physical resistance, as defined by Kennedy.

[114] I am satisfied that the Crown has proven the elements of Count #5 beyond a reasonable doubt.

[115] By contrast, I am not satisfied that the Crown has proven the elements of Count #6, the allegation of failing to identify himself to police. It is true that Mr. Barre did not provide his name or identification to the officers at the roadside. There was therefore compelling evidence of his having come close to committing this offence. However, having reviewed the breath room video, during which time Sgt. Maguire confirms his knowledge of Mr. Barre’s identity based on information received, Mr. Barre effectively confirms who he is to the officer and asks if he is “ok” after doing so. The officer says yes. Mr. Barre is not guilty of count #6.

IX. Conclusion

[116] In conclusion, I find Mr. Barre not guilty of Counts: 1 (dangerous); 2 (fail to stop); and 6 (obstruct/fail to identify).

[117] I find Mr. Barre guilty of Counts: 3 (impaired); 4 (over 80); and 5 (obstruct/resist).

[118] Count 7 was previously withdrawn by the Crown on an earlier date.

Released: January 9, 2023

Signed: Justice Allison Dellandrea