ONTARIO COURT OF JUSTICE Old City Hall - Toronto

DATE: May 14, 2023

BETWEEN: HER MAJESTY THE QUEEN — AND — ANDREW ALLEN

For the Crown: P. Wildman-Sisk and S. Husband For the Defendant: C. Rippell Heard: September 6, 2022; May 1-2, 2023

CHARTER RULING

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] Andrew Allen is charged with impaired driving and unlawfully refusing to provide a breath sample at the roadside.

[2] The Crown called three police witnesses. Mr. Allen did not testify but called one police officer on the Charter application.

[3] Although the testimony of the four police officers was remarkably divergent, and wanting in many respects, which I shall explore in somewhat greater detail below, the following summary of the interaction between Mr. Allen and the police can be distilled from the police testimony.

[4] On March 16, 2021, Mr. Allen was driving his car southbound on Hwy. 400. P.C. Rebecca Fuenmayor of the OPP was on routine patrol, observed Mr. Allen’s driving, and followed him as he proceeded to go east on Hwy. 401. She pulled him over just east of Keele Street. She began an investigation of his sobriety which led her to make an approved screening device demand. At some point during her colloquy with Mr. Allen about whether he would comply with her demand P.C. David Caringi arrived on scene and arrested Mr. Allen on what he understood to be an outstanding “committal warrant”. Mr. Allen was then immediately handcuffed. None of the police then in attendance read Mr. Allen his rights to counsel in connection with this arrest.

[5] Shortly thereafter P.C. Caringi somehow came to appreciate that Mr. Allen was not in fact the person subject to the committal warrant. He informed the other officers at the scene and promptly drove off, leaving it to other officers to sort matters out.

[6] Approximately 10 minutes after his initial arrest, during which time Mr. Allen remained handcuffed at the side of the road, P.C. Fuenmayor arrested Mr. Allen for refusing to comply with her demand for a breath sample. She made it clear to him that she would be taking him to the nearby OPP detachment. She soon provided him with his rights to counsel, which he said he wanted to exercise back at the detachment.

[7] Once having arrived at the detachment at 10:04 pm, Mr. Allen was locked in a cell pending the preparation of his release documents. He was told that he was not going to be held overnight and he told police he would speak to counsel after his release. He was told that he was being videotaped and was provided a privacy shield to use if he wanted to use the toilet in the cell. During his detention in this cell, he was filmed urinating. He was released from the cell and the police detachment just after midnight.

[8] Mr. Allen has applied for an order pursuant to s. 24(2) of the Charter excluding several items of evidence. The trial was conducted in a blended fashion where all the evidence called on the Charter voir dire will apply to the trial as well.

[9] Mr. Rippell, counsel for Mr. Allen, argues that the initial arrest of the accused based on the committal warrant was without reasonable and probable grounds and thus a breach of his s.9 Charter rights. He further argues that the failure of police to read Mr. Allen his rights to counsel in connection with that arrest was a breach of Mr. Allen’s 10(b) Charter rights. Finally, he argues that confining Mr. Allen in a cell pending preparation of his release papers was a further breach of Mr. Allen’s s.9 Charter rights.

[10] He further argues that the breaches of the accused’s s. 9 and 10(b) rights were so serious that the admission of the police observations of Mr. Allen’s behaviour and words (his alleged refusal to provide a breath sample) over the course of his interaction with police would bring the administration of justice into disrepute.

[11] Ms. Wildman-Sisk for the Crown argues that the police did not breach any of Mr. Allen’s Charter rights, but if they did the evidence in question should nonetheless be admitted.

B. Evidence

(a) Introduction

[12] It is not necessary to detail the testimony of each officer who testified on the application. I note that it is remarkably conflicting in many respects. Rather, I will note the portions of their testimony that are relevant to the Charter application and set out further findings of fact that supplement the summary of the incident set out in the Introduction above.

(b) Further Salient Aspects of the Testimony of the Police

[13] According to P.C. Caringi, while at the scene, he was told by P.C. Kevin Noh in a phone call on his personal cell phone that Mr. Allen was the man wanted on what he described as a “committal warrant” (which warrant was never entered into evidence). P.C. Caringi thus arrested Mr. Allen. According to P.C. Caringi, it was only after P.C. Noh arrived at the scene that it became clear after consultation with him that the wanted man had the same name as Mr. Allen, but a different date of birth.

[14] P.C. Noh’s admittedly vague recollection was to the effect that he somehow learned about P.C. Fuenmayor’s traffic stop of Mr. Allen and that there was a warrant for the arrest of a man with the same name, but a different date of birth. He testified that he informed P.C. Caringi of these facts over his personal cell phone so that P.C. Caringi could further inquire at the scene. He denied having directed P.C. Caringi to arrest Mr. Allen. He has no recollection and no notes of what the warrant was for but would have known at the time. He recalls arriving on scene, seeing Mr. Allen under arrest, and being told that he was under arrest for refusing to provide a breath sample. He denied helping any other officer at the scene clarify the confusion regarding the warrant.

[15] P.C. Fuenmayor was cross-examined on her understanding of section 495 of the Criminal Code, which reads as follows:

495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. (2) A peace officer shall not arrest a person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, 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, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law. (3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).

[16] Even though P.C. Fuenmayor was not cross-examined regarding s. 498, it is worth setting out. It is related to s. 495. Section 498 reads as follows:

498 (1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if (a) the peace officer intends to compel the person’s appearance by way of summons; (b) the peace officer issues an appearance notice to the person; or (c) the person gives an undertaking to the peace officer. (1.01) Subsection (1) also applies in respect of a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act and who is detained in custody for an offence other than one listed in section 469 and who has not been taken before a justice or released from custody under any other provision of this Part. (1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds, (a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. (2) Subsections (1) and (1.01) do not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3). (3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without a warrant, for an offence described in subsection (1), and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer’s duty for the purposes of (a) any proceedings under this or any other Act of Parliament; or (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

[17] P.C. Fuenmayor knew, once she left the scene and returned to the detachment, that Mr. Allen met all the criteria in s. 495(2) and that his detention was thus no longer supported by the fact that he had been arrested pursuant to s.495 (1). As she admitted, she had finished collecting all her evidence. Yet rather than simply have Mr. Allen sit in a chair and wait, she directed that he be locked in a cell, where he remained for almost two hours. She did this because it was OPP policy to do so. She had never done otherwise with any of her arrestees. Moreover, she explained, any other place but the locked cell would not have been manned. While her evidence was that Mr. Allen did not seem steady on his feet when she observed him at the roadside, and that he had tripped over a stool at the station, she did not rely on those observations when deciding to keep Mr. Allen in a locked cell while waiting for the paperwork. The decision was purely driven by OPP training and policy.

C. Analysis

(a) Were there s.9 Charter violations?

[18] As concerns the arrest on the warrant, it is trite to point out that police may only arrest an individual on an outstanding warrant if there are reasonable and probable grounds to believe that the individual is the subject of the warrant. There is no question but that there were no such reasonable and probable grounds in the case of Mr. Allen’s arrest regardless of whether it came about as described by P.C. Caringi, or P.C. Noh. Indeed, even if it unfolded in some other way, divorced from both their testimony, the evidence is clear that the police did not have sufficient information to support the arrest. On the objective branch of the test, the fact that Mr. Allen had the same name but a different date of birth as the subject of the warrant was information known to the police. On the subjective branch of the test, the discrepancies in the evidence make it impossible to conclude that P.C. Caringi knew that Mr. Allen had a different birthday than the wanted party yet arrested him anyway.

[19] All that said, it must be recalled that Mr. Allen was already detained and under police control because of the traffic stop. He was not free to go. When he was arrested and handcuffed on the warrant, the reason for his detention changed, as did the nature of his detention (he was now handcuffed), but his detention from that point on was not new.

[20] As concerns P.C. Fuenmayor’s decision to direct that Mr. Allen be locked in a cell pending the preparation of his release documents, it must first be noted that no consideration was ever given to the alternative. Her decision was driven by a personal and OPP policy that pays no heed to ss. 495 (2) and 498.

[21] Mr. Rippell relies on several cases in support of his argument that Mr. Allen’s confinement at the detachment constituted a s.9 breach, notably, R. v. Iseler, [2004] O.J. No. 4332 (C.A.); R. v. King, 2019 ONSC 5748; R. v. Sakhuja, 2020 ONCJ 484 and R. v. Cheema, 2016 ONCJ 193.

[22] These cases support Mr. Rippell’s principal submission that where the police decide to continue the detention of someone arrested for a drinking and driving offence after the investigation is complete, it is incumbent on them to consider sections 495 and 498 of the Criminal Code and the circumstances of the arrestee. Put another way, these cases all support the proposition that the continued detention after the investigation is complete is arbitrary and a breach of s.9 if that detention is imposed merely as a matter of routine policy.

[23] Dellandrea J. in Skhuja at paras. 75-77 put it this way:

Section 498 of the Criminal Code sets out the circumstances in which a person who has been arrested without a warrant can be detained by a peace officer. A person is to be released as soon as practicable unless the officer, on reasonable grounds and having regard to "all of the circumstances", determines that the person's detention is necessary in the public interest. The enumerated circumstances for consideration in s. 498 (1.1) include the need to establish the identity of the person, secure or preserve evidence relating to the offence, preventing the continuation or repetition of the offence or any other offence, ensuring the safety and security of any victim of or witness to the offence, and assessing the person's likelihood of attending court to be dealt with according to the law.

In Price 8, Justice Durno provided a non-exhaustive list of factors to be considered in the assessment of the reasonableness of the "circumstances" of an individual's continued detention following an arrest for a drinking and driving offence. These include:

(1) The accused's blood alcohol level; (2) Whether the accused was charged with impaired driving; (3) The accused's apparent level of comprehension; (4) The impact of the administrative driving suspension; (5) Whether the accused has outstanding charges (6) The accused's demeanour (which may include consideration of the poor judgment exhibited by drinking and driving).

An objective analysis of these, and any other relevant factors, should guide the analysis with respect to the accused's suitability for release. It is improper for this assessment to be guided only by the blood-alcohol levels, which is too narrow a focus 9

[24] Ms. Wildman-Sisk relies on a decision of Wendl J. in R. v. Niedbala, 2020 ONCJ 99. In that case, the accused was charged with operating a conveyance with an unlawfully elevated blood alcohol level. She was returned to her cell at the police station after her breath tests were complete and not released until her ride home arrived approximately 90 minutes later, except to make a phone call.

[25] The accused in that case argued that this period of imprisonment was arbitrary. The learned trial judge dismissed the application.

[26] Wendl J, at para. 18 of his judgment, says:

….[P]lacing someone in a cell after a valid arrest is not arbitrary as long as the detention is not longer than necessary, and the conditions are acceptable. Basically, an arrest involves the restraint of liberty and police control over it. That is what happens when one is put in a cell, police enforce control over the detainee's liberty. For counsel to be successful in their argument that Ms. Niedbala should not have been held in the cell, they would need to argue that she should not have been arrested and only charged.

[27] It would appear that the accused in Niedbala did not argue that she should no longer have been “under arrest” while waiting for her documents. Had this argument been advanced Wendl J might perhaps have approached the issue from a different perspective. The police are obliged to terminate the accused’s status as an arrestee pursuant to the criteria in s. 498 of the Criminal Code.

[28] I would add that Niedbala is also distinguishable from Mr. Allen’s case. In Niedbala the police officer gave reasons particular to the circumstances of Ms. Niedbala’s arrest for her decision to hold Ms. Niedbala in a cell pending completion of the paperwork, to wit, she was concerned about his safety because he was inebriated, and he had shown errors in judgment. She did not, as did P.C. Fuenmayor, arbitrarily follow a blanket policy.

[29] I find that the confinement of Mr. Allen at the OPP detachment as his paperwork was prepared was arbitrary and thus a breach of his s.9 rights.

(b) Was there a s.10(b) violation?

[30] Mr. Allen’s detention began upon being pulled over by P.C. Fuenmayor. There was no constitutional obligation on her to advise Mr. Allen of his right to counsel at that time given the nature of the initial detention. R. v. Therens, [1985] 1 S.C.R. 613.

[31] Once P.C. Caringi arrested Mr. Allen on the outstanding warrant, Mr. Allen was entitled to be informed of his right to counsel immediately. R. v. Suberu, 2009 SCC 33; R. v. DeSilva, 2022 ONCA 879.

[32] Yet, no rights to counsel were given until approximately 13 minutes after this arrest (three minutes after the arrest was turned into an arrest for refusing to provide a sample). The only thing standing in the way of P.C. Caringi informing Mr. Allen of his rights immediately after the arrest on the warrant was his apparent haste to get to his “pay duty” appointment.

[33] There can be no doubt that the police breached Mr. Allen’s 10(b) right to be immediately informed of his rights to counsel.

(c) Was the evidence sought to be excluded “obtained in a manner that breached an accused's Charter rights” so as to trigger s. 24(2)?

[34] The Supreme Court has recently spoken about this test in R. v. Tim, 2022 SCC 12. Jamal J. explains at para. 78:

This Court has provided guidance as to when evidence is " obtained in a manner " that breached an accused's Charter rights so as to trigger s. 24(2):

1. The courts take "a purposive and generous approach" to whether evidence was " obtained in a manner " that breached an accused's Charter rights (R. v. Wittwer, [2008] 2 S.C.R. 235, 2008 SCC 33, at para. 21; R. v. Mack, [2014] 3 S.C.R. 3, 2014 SCC 58, at para. 38).

2. The "entire chain of events" involving the Charter breach and the impugned evidence should be examined (R. v. Strachan, [1988] 2 S.C.R. 980, at pp. 1005-6).

3. "Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct" (Mack, at para. 38; see also Wittwer, at para. 21).

4. The connection between the Charter breach and the impugned evidence can be "temporal, contextual, causal or a combination of the three" (Wittwer, at para. 21, quoting R. v. Plaha (2004), 189 O.A.C. 376, at para. 45). A causal connection is not required (Wittwer, at para. 21; R. v. Mian, [2014] 2 S.C.R. 689, 2014 SCC 54, at para. 83; Strachan, at pp. 1000-1002).

5. A remote or tenuous connection between the Charter breach and the impugned evidence will not suffice to trigger s. 24(2) (Mack, at para. 38; Wittwer, at para. 21; R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Strachan, at pp. 1005-6). Such situations should be dealt with on a case by case basis. There is "no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote" (Strachan, at p. 1006).

See also R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72; R. v. Lichtenwald, 2020 SKCA 70, 388 C.C.C. (3d) 377, at para. 57; R. v. Reilly, 2020 BCCA 369, 397 C.C.C. (3d) 219, at paras. 75-76, aff'd 2021 SCC 38; and Hill, Tanovich and Strezos, at s. 19:22.

[35] The observations of P.C. Fuenmayor at the roadside, as well as Mr. Allen’s alleged utterances constituting a refusal to provide a breath sample all took place at or around the time of his arrest on the warrant. Conflicts between the evidence of P.C. Fuenmayor, P.C. Caringi and P.C. Noh make it impossible to untangle the timeline such as to arrive at the conclusion pressed by Ms. Wildman-Sisk, that all the evidence of refusal preceded the arrest on the warrant. The burden is on Mr. Allen to make out all the necessary ingredients of his Charter application. He has succeeded in convincing me that there is a prima facie temporal nexus between the Charter breaches at the scene and the evidence. The Crown has not offered evidence that supports her argument that, notwithstanding that nexus, the test in Tim is not met.

[36] The fact that the alleged refusal to provide a breath sample is the actus reus of the alleged offence does not, in my view, render it immune from the application of s. 24(2). See R. v. Shea, 2019 ONSC 1514, at paras. 49-51.

[37] As concerns the s.9 breach at the station, the decision to confine Mr. Allen at the station and the process of confining him were contemporaneous to P.C. Fuenmayor’s observations of Mr. Allen beginning with the ride to the detachment. The Tim test is satisfied as concerns those observations.

[38] As concerns P.C. Fuenmayor’s observations of Mr. Allen’s driving prior to the vehicle stop on Hwy 401, I find that they preceded the Charter breaches and are sufficiently distinct and remote from the breaches so as not to qualify as “evidence obtained in a manner” as defined in Tim. They are thus not subject to a s.24(2) analysis and are admissible.

(d) Should any of the evidence be excluded?

[39] Section 24(2) of the Charter reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or 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.

[40] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[41] The Supreme Court has most recently reiterated the Grant test in R. v. Tim, supra, and R. v. Beaver, 2022 SCC 54.

(i) The seriousness of the breaches

[42] Before grappling with the seriousness of the three breaches of Mr. Allen’s Charter rights, I must attempt to decide what probably happened, based on a body of conflicting evidence.

[43] As concerns P.C. Caringi’s arrest on the outstanding warrant, I do not believe that he arrested Mr. Allen knowing that Mr. Allen was not the subject of the warrant. Either he believed that Mr. Allen was the man named in the warrant or thought he could be. He testified that he was told over the phone by P.C. Noh that Mr. Allen was the subject of the warrant and that a few minutes later, after the arrest, he learned from P.C. Noh’s tablet, after P.C. Noh arrived on the scene, that the man named in the warrant had a different birthday.

[44] P.C. Noh, whose memory was vague and not helped much by his notes, testified that he learned of the warrant and told P.C. Caringi over the phone about the fact that Mr. Allen had the same name, but a different birthday than the wanted man. P.C. Noh denied having any further discussion with P.C. Caringi on the topic.

[45] I find that what probably happened was: P.C. Noh phoned P.C. Caringi from the detachment after reviewing the CPIC data available to him on his police computer and tried to explain to him that Mr. Allen might well be wanted. P.C. Caringi misunderstood and thought that Mr. Allen was the wanted man and proceeded accordingly. P.C. Noh then came to the scene, consulted his computer tablet with P.C. Caringi and together they realized that they had arrested the wrong man. I find support for this conclusion in the fact that the arrest on the warrant was discontinued relatively quickly.

[46] As concerns P.C. Caringi’s failure to inform Mr. Allen of his right to counsel, I accept P.C. Caringi’s testimony that he was taught at the police college that 10(b) rights must be read to a detainee “as soon as practical” or “as soon as possible”, which he understood to mean the same thing. I also accept his testimony that he told the other officers at the scene that he had not given Mr. Allen his 10(b) rights. He was confident that they would do so after he left.

[47] The evidence is extremely unclear as to how Mr. Allen was dealt with between his being pulled over and later taken to the detachment. Based primarily on P.C. Fuenmayor’s testimony I do find, however, that Mr. Allen was not advised that his arrest on the warrant was a mistake until approximately 30 seconds before his arrest for refusing to provide a sample. As a result, he remained wrongfully under arrest, without rights to counsel for approximately 10 minutes – then another three minutes elapsed between the second arrest and the administration of rights to counsel by P.C. Fuenmayor.

[48] In Tim, supra at para. 82 the Supreme Court of Canada explained the proper approach to the “seriousness of the breach” branch of the Grant inquiry:

The first line of inquiry under s. 24(2) considers the seriousness of the Charter-infringing state conduct. It asks whether the police engaged in misconduct from which the court should dissociate itself (see Grant, at para. 72). The concern of this inquiry is "not to punish the police", but rather to "preserve public confidence in the rule of law and its processes" (Grant, at para. 73). The court must situate the Charter-infringing conduct on a "spectrum" or a "scale of culpability" (Grant, at para. 74; Paterson, at para. 43; Le, at para. 143). At the more serious end of the culpability scale are wilful or reckless disregard of Charter rights, a systemic pattern of Charter-infringing conduct, or a major departure from Charter standards. Courts should dissociate themselves from such conduct because it risks bringing the administration of justice into disrepute. At the less serious end of the culpability scale are Charter breaches that are inadvertent, technical, or minor, or which reflect an understandable mistake. Such circumstances minimally undermine public confidence in the rule of law, and thus dissociation is much less of a concern (see Grant, at para. 74; Le, at para. 143; R. v. Harrison, [2009] 2 S.C.R. 494, 2009 SCC 34, at para. 22).

[49] I find that the s. 9 breach at the roadside, i.e., the arrest on the warrant, was not particularly serious, in and of itself. P.C. Noh and P.C. Caringi were extremely careless in their treatment of the data revealed on the CPIC inquiry but neither of them purposely nor knowingly arrested Mr. Allen while believing he was the wrong man.

[50] However, the s. 10(b) breach, i.e., the failure to immediately inform Mr. Allen of his rights to counsel upon his arrest on the warrant, is serious. While I do not find that P.C. Caringi purposely breached Mr. Allen’s 10(b) rights, he and his fellow officers allowed Mr. Allen to remain arrested without his rights to counsel for a full 10 minutes. The seriousness of this breach is exacerbated by the fact that the OPP seems not to be properly keeping its officers abreast of the jurisprudence that has for many years made it clear that the police must administer rights to counsel “immediately” upon detention.

[51] Taken together, the roadside Charter breaches are serious, and the first Grant factor weighs in favour of exclusion of all the evidence obtained at the roadside.

[52] As concerns the second s.9 breach at the detachment, I find this to be serious as well. That there is a policy to always lock up accused persons while they wait for their paperwork is antithetical to the presumption of innocence and the notion that the police should only confine people upon a proper consideration of the merits of such a decision.

[53] The first Grant factor weighs in favour of the exclusion of the observations of Mr. Allen at the detachment.

(ii) The impact of the breaches on the Charter-protected interests of the accused

[54] The Supreme Court explains in Tim, supra at para. 90:

The second line of inquiry under s. 24(2) considers the impact of the breach on the accused's Charter-protected interests. It asks whether the breach "actually undermined the interests protected by the right infringed" (Grant, at para. 76; Le, at para. 151). This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the breaches affected those interests (see Grant, at para. 77). As with the first Grant line of inquiry, the court must situate the impact on the accused's Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed. The greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because "admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute" (Grant, at para. 76; see also Le, at para. 151; Harrison, at para. 28).

[55] The wrongful arrest on the warrant had a negligible impact on Mr. Allen’s liberty interest. He was already lawfully detained by virtue of the motor vehicle stop and was destined to remain detained pending the impaired driving investigation and ultimate arrest.

[56] However, even in the absence of his testimony, it can safely be inferred that being arrested on a warrant that he was not the subject of, absent knowledge of his right to counsel would have been quite psychologically stressful.

[57] The impact of the arbitrary detention at the detachment went beyond the mere loss of liberty. It included having to urinate while being both observed and recorded on video. The provision of a privacy shield goes a very short distance in mitigation of this indignity.

[58] The second Grant factor weighs in favour of the exclusion of all the evidence.

(iii) Society’s interest in the adjudication of the case on its merits

[59] The Supreme Court in Tim, supra, at para. 96 deals with this factor as follows:

The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown's case. It asks "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" (Grant, at para. 79). Reliable evidence critical to the Crown's case will generally pull toward inclusion (see Grant, at paras. 80-81; Harrison, at paras. 33-34).

[60] The evidence in question is certainly critical to the Crown’s case. I would not consider it reliable, however, given the significant discrepancies in the various witness accounts of the incident.

[61] I find that the third Grant factor favours neither admission nor exclusion of the evidence.

(iv) Balancing the three Grant factors

[62] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[63] Jamal J. in Tim, supra at para. 98 says:

The final step in the s. 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion of the evidence on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach "does not do further damage to the repute of the justice system" (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing "the broad impact of admission of the evidence on the long-term repute of the justice system" (Grant, at para. 70; see also Le, at para. 139).

[64] Justice Doherty, in R. v. McGuffie, 2016 ONCA 365 at para. 63, added this to the analysis: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”.

[65] The breaches of the accused’s Charter rights were serious as was the impact of these breaches.

[66] The public has a significant interest in an adjudication of this drinking and driving case on its merits, yet, in my view, applying the Supreme Court’s analytic framework, the admission of the evidence in question would nonetheless bring the administration of justice into disrepute.

D. Conclusion

[67] The accused’s Charter application is granted.

[68] The evidence of what police saw and heard, from the moment Mr. Allen pulled over his vehicle until the moment he left the detachment shortly after midnight, including the alleged refusal to provide a breath sample after the vehicle stop, is excluded.

Released on May 14, 2023

Justice Russell Silverstein