ONTARIO COURT OF JUSTICE

CITATION: R. v. Nufio, 2023 ONCJ 255

DATE: 2023 06 16

COURT FILE No.: Toronto 22-40001641

BETWEEN:

HIS MAJESTY THE KING

— AND —

HECTOR GONZALO NUFIO

Before Justice Christine Mainville

Heard on May 29, 2023

Reasons for Judgment released on June 16, 2023

Ian Laing............................................................................................... counsel for the Crown

Jonah Parkin.................................................................................. counsel for the accused

Mainville J.:

[1] Mr. Nufio is charged with having operated a vehicle with a blood alcohol level over the legal limit of 80 mg per 100 mL of blood, contrary to s. 320.14(1)(b) of the Criminal Code.

[2] Mr. Nufio filed a Charter application that put the Crown to its onus of proving the arresting officer’s grounds for demanding that he provide breath samples, failing which the warrantless searches would be presumptively unreasonable and in violation of the accused’s s. 8 right against unreasonable search and seizure, and entail a violation of his s. 9 right against arbitrary detention. Mr. Nufio’s Charter application also alleged a violation of his s. 10(b) right to counsel, which was the sole focus of the defence’s submissions at the end of trial.

[3] Mr. Nufio also put the Crown to its onus of proving the offence beyond a reasonable doubt. The evidence from the Charter voir dire was blended with the trial.

[4] The Crown called one witness at trial, PC Blair, and filed the Certificate of a Qualified Technician setting out the results of Mr. Nufio’s breathalyzer tests. I find the accused was properly notified of this certificate in advance of trial, as required by s. 320.32(2), and that the other prerequisites to the application of s. 320.31(1) have been met. The results of the Intoxilyzer are thus conclusive proof of Mr. Nufio’s blood alcohol level at the time.

[5] Mr. Nufio’s blood alcohol level was 180 mg/100 mL of blood within two hours of driving. I am therefore satisfied that the offence was proven beyond a reasonable doubt, such that this case rises or falls on the outcome of the Charter application filed by Mr. Nufio.

[6] For the reasons that follow, I reject the section 8 and 9 Charter argument but find a breach of section 10(b) of the Charter. While close to the line, and due to several considerations, the section 24(2) analysis ultimately leads me to conclude that the breath readings should be excluded from evidence.

Facts

[7] On March 4, 2022, PC Blair was working the night shift and enforcing the Highway Traffic Act (HTA) and Criminal Code as it applies to motorists. Around 1:30 a.m., he began enforcing the 40 km/hr speed limit on Bathurst near Markdale Ave. He eventually stopped Mr. Nufio who was driving a vehicle that the officer testified was travelling at a speed of 77 km/hr in the 40 km/hr zone.

[8] At 3:02 a.m., after pulling over the car for speeding under the HTA, PC Blair testified that he made the following observations:

a) The car stopped in the curb lane but 3 to 4 feet from the curb, the left wheel pretty well touching the hash marks (broken white lines) that divide lane one from lane two. This gave him some concerns as he walked up to the vehicle.

b) Also unusually, the accused did not roll down his window when the officer approached. After knocking on the window, the accused only lowered the window one third of the way down and did not turn his face toward the officer – instead looking straight ahead. The officer added that the accused did not make eye contact nor look in his general direction.

c) When the window was lowered, the officer could smell a strong odour of alcohol despite the fact that the window was only lowered by one third and that he was wearing a surgical mask given the Covid pandemic. At this point, he could not tell whether it came from the car or the driver himself, but he smelled it. He indicated that the driver was still looking ahead.

d) The officer then asked the driver for his driver’s licence and other documentation, and while the accused produced all these documents with his left hand, he kept looking straight. The officer testified that he became more concerned by the potential that the driver had consumed some quantity of alcohol.

[9] PC Blair testified that he asked the driver about his alcohol consumption but the driver’s response (denying he had had any, as shown in the video I reference below) did not afford the officer any reasonable suspicion that he had indeed consumed alcohol.

[10] The officer testified that when the driver turned his head toward him – although not as much as he would have liked – he could then smell an obvious and strong odour coming from his breath. He testified that this was while he was speaking to the driver and got a response from him – at which point the officer also lowered his mask – allowing him to smell the driver’s breath.

[11] The officer testified that at this point, four minutes after the initial stop so at 3:06 a.m., he suspected that the driver had consumed alcohol and as such, he informed the driver that he had to provide a proper breath sample into an Approved Screening Device (ASD).

[12] The driver eventually exited the vehicle at PC Blair’s direction and after testing the ASD and three failed attempts at providing a suitable sample, Mr. Nufio provided a proper sample at 3:12 a.m. At that time, the ASD signalled FAIL, which according to the officer was indicative of a blood alcohol level in excess of 100 mg/100 mL of blood. Based on these grounds to believe that Mr. Nufio had operated a motor vehicle with a blood alcohol level in excess of the legal limit, PC Blair placed him under arrest. The arrest took place at 3:12 a.m.

[13] The video and audio recording from PC Blair’s body worn camera (BWC) was filed as Exhibit 1. This recording shows that the following exchange took place when PC Blair came up to Mr. Nufio’s window:

a) At approximately 3:03 a.m., PC Blair approached the vehicle. The window was up so PC Blair immediately knocked on it and Mr. Nufio brought it partway down – I estimate somewhere between halfway down to a third of the way down. He did this as he was removing a card – presumably his driver’s license – from his wallet and went to hand it to PC Blair.

b) PC Blair told him “Put your window down, please”. Mr. Nufio immediately complied and continued to bring the window all the way down. There was very little time between Mr. Nufio bringing the window part of the way down and continuing to bring it all the way down, and he did this as he was also looking for documents.

c) Mr. Nufio did glance at PC Blair when he first opened the window. Further, when PC Blair stated “Hello, how are you?”, Mr. Nufio looked at the officer and said “Good, you?”

d) Following this interaction, PC Blair is bent over such that his BWC does not capture Mr. Nufio’s face. I cannot tell from the video where he was looking but I note that most of the time, based on the part of his body that we do see in the video, Mr. Nufio appears to be searching for documents and is indeed providing documentation to the officer – none of which the officer requests during their interaction.

e) PC Blair asked where he was coming from tonight. Mr. Nufio provided his license as he responded, “(inaudible) …see some friends”.

f) PC Blair immediately asks, “Ok, how much have you had to drink?”. Mr. Nufio responded, “nothing”.

g) PC Blair asked again, “buddy, I can smell it on your mouth, okay, I am going to ask you the question again. How much have you had to drink?” Mr. Nufio did not respond.

h) PC Blair asked again, “how much, buddy you stink of alcohol. How much have you had to drink sir? Are you listening to me? Okay, you stink of alcohol. How much have you had to drink?” Mr. Nufio did not respond. All of this happened very quickly upon PC Blair first approaching Mr. Nufio. During this last interaction, Mr. Nufio is reaching for something – he seems to be getting his registration papers.

i) PC Blair then stated, “let’s do this again. Hi, I’m officer Blair, 13 Division. You got stopped for speeding, you’re going 77 km/h in a 40. Okay? I smell alcohol on your breath. How much have you had to drink tonight?” Mr. Nufio still did not respond. He can be seen fiddling with his wallet and handing a card or document to the officer, but his face cannot be seen.

j) PC Blair then stated, “Hello? I need you to respond to me. How much alcohol have you consumed tonight? Answer my question please. Now you’re not going to talk at all. Is that it? Is that what is going on here? Where are you coming from?” Mr. Nufio did not respond. During this interaction, he has his hand up toward the officer, trying to hand him a card.

k) PC Blair asked again, “this is not very mature my friend, okay, you have to answer my questions, where are you coming from?”. When the camera goes back up to capture Mr. Nufio’s face, he is looking at the officer and handing him a card.

l) Throughout this interaction, the accused seems stunned or perhaps scared. He later indeed informs the officer that he is scared.

m) At approximately 3:04 a.m., PC Blair told Mr. Nufio to come with him to do the breath test. It is only after this direction is given that Mr. Nufio speaks again: he asked if he had to. PC Blair informed Mr. Nufio that he did as it was a legal obligation and if he does not, he would get arrested. Mr. Nufio did not leave the vehicle.

n) At approximately 3:05 a.m., PC Blair informed Mr. Nufio that he was going to set up the machine and to think about it. He further informed him that if he failed to comply with his demand that he was going to read to him, he would be arrested. PC Blair asked him to step out of the vehicle again. Mr. Nufio did so at approximately 3:06 a.m., and PC Blair directed him to the side of the scout car.

o) At approximately 3:07 a.m., PC Blair read the ASD demand to Mr. Nufio and showed him the demand in writing. PC Blair asked him if he understood. Mr. Nufio read the demand out loud. He said he understood it, but he did not agree with it.

p) At approximately 3:08 a.m., Mr. Nufio asked how fast he was going. PC Blair informed him that he was going 77 in a 40 zone. PC Blair informed Mr. Nufio that he had a suspicion that there was alcohol in his body as he could smell it on him. PC Blair asked Mr. Nufio when he had his last alcoholic beverage and to let him know if it was within the last 15 minutes. Mr. Nufio did not respond. PC Blair demonstrated the use of the ASD device and explained the consequences of the result.

q) Mr. Nufio then informed PC Blair that he was or had been in the military, and stated: “you’re scaring me”. PC Blair answered with: “As a military, you’ve probably been stopped by the MPs [military police] before. Mr. Nufio then said: “Not like this.”

r) At approximately 3:12 a.m., after a few insufficient samples, Mr. Nufio provided a suitable sample. The ASD registered a FAIL. PC Blair informed Mr. Nufio that he was going to be arrested for drinking and driving. PC Blair asked if he understood. Mr. Nufio did not respond.

[14] I am concerned by the lack of alignment between PC Blair’s testimony and some of what is depicted on the video. In particular, PC Blair testified that he was trying to make Mr. Nufio talk so that he could determine whether the smell of alcohol was coming from his car generally or from the driver’s breath in particular. His testimony was that he did not initially have grounds to suspect that the driver had consumed alcohol merely based on the smell of alcohol emanating from the vehicle, which is why he was asking the driver various questions, in particular regarding his alcohol consumption. He testified that he was finally able to smell the alcohol on the driver’s breath when the driver eventually responded to him.

[15] Yet the video shows that while the driver responded to the officer at the very outset of the interaction, and prior to the officer repeatedly asking him questions about his alcohol consumption, he never did respond during the period of time that the officer was asking him questions trying to make him talk. In other words, there was no exchange of words that would have ultimately allowed PC Blair to smell Mr. Nufio’s breath, as testified to by PC Blair. Mr. Nufio’s last answer to the officer, as far as I can tell from the video, was “nothing”, in response to how much he had to drink. This does not align with PC Blair’s evidence that he was eventually able to smell Mr. Nufio’s breath after making him talk subsequent to that answer. The next thing Mr. Nufio said was after the ASD demand had already been made.

[16] There is also a discrepancy between the video evidence and the officer’s testimony as it relates to the documentation sought from Mr. Nufio. At no time does the officer in fact request any documentation, contrary to PC Blair’s testimony. Mr. Nufio is volunteering this information and not in fact complying with any request. While this is likely the product of a lack of proper recall of the events, as opposed to a purposeful intention to mislead, it signals to me that I have to be cautious about relying on PC Blair’s evidence, in particular since it seems to mischaracterize other aspects of the intervention.

[17] For instance, while Mr. Nufio’s car was not stopped right at the curb, as testified to by the officer, it was not on or nearly on the hash marks on the road. In fact, it is the officer’s car which was parked right on the line – Mr. Nufio’s car was at least a foot to the right of the dividing line. The officer also acknowledged in cross-examination that the driver had parked right up to the snow next to the curb. He initially suggested that it wasn’t a snowbank and that the snow merely covered the road such that the driver could have parked on the snow, but he subsequently acknowledged that the snow had accumulated on the side.

[18] I also do not find it particularly odd that Mr. Nufio’s window was not already open when the officer walked up to it given the cold outside and the fact that he was looking for documentation. Nor do I find the initial gap opening of his car window by Mr. Nufio to be unusually small. It was brought down almost halfway, again in the context of a cold night outside, and as shown in the video, Mr. Nufio was retrieving his card at the same time – effectively doing two things at once. In my view, a non-awkward interaction could easily have taken place with the window partially down – Mr. Nufio would have been able to communicate with the officer and hand him documentation with ease. It seems PC Blair’s preference was that it be all the way down so he could stick his head in the car as he described, and better take in the smell of alcohol within the car.

[19] Mr. Nufio brought the rest of his window down within seconds if not a second of having brought it down about halfway – there was no hesitation in bringing it all the way down.

Reasonable grounds to suspect: sections 8 and 9 of the Charter

[20] While some of the subjective grounds relied on by PC Blair thus do not appear to be objectively well-grounded, as set out above, I conclude that he did have the requisite reasonable grounds to suspect to make the initial breath demand.

[21] Under s. 320.27(1), to make a valid ASD demand for breath samples, an officer must have reasonable grounds to suspect that a person has alcohol in their body and has operated a motor vehicle in the preceding three hours. Absent the necessary subjective and objectively reasonable grounds to suspect, the demand will be invalid and there will be a breach of the detained person’s s. 8 and 9 Charter rights to be protected from unreasonable search and seizure, and from arbitrary detention.

[22] I accept PC Blair’s evidence regarding his basis for stopping the vehicle driven by Mr. Nufio pursuant to the Highway Traffic Act, based on his reliance on a speed radar that indicated Mr. Nufio was speeding.

[23] I also accept that Mr. Nufio’s demeanour, while not odd to the extent described by the officer, was nevertheless suspicious.

[24] Further, while the video shows Mr. Nufio parked about a foot east of the middle hash line, there are indeed about two to three feet between the car and the curb on the right side of the vehicle. While there is a small snowbank on the right side of the car, I accept it could easily have been driven on and could reasonably form part of PC Blair’s subjective grounds that the driver had potentially consumed alcohol.

[25] I am not prepared to rely on Mr. Nufio’s silence to many of PC Blair’s questions as affording grounds to believe he had consumed alcohol. While PC Blair did not specifically indicate that this formed part of his grounds to suspect, the Crown submitted that it was a reasonable factor to consider. But while officers are entitled to ask such questions, there is no obligation to answer. The refusal to answer does not come with any penal consequences: see R. v. Smith, 1996 CanLII 1074 (ON CA), [1996] 105 C.C.C. (3d) 58 (Ont C.A.), at paras. 39-40. In my view, to hold that a detained person’s choice not to respond can be used against them – even if for the limited purpose of affording grounds to suspect that they have been drinking – would not align with the right to silence. As acknowledged by PC Blair, Mr. Nufio had the right not to answer his questions.

[26] I do however accept that there was a strong odour of alcohol emanating from the car, in which Mr. Nufio was the lone passenger. An officer does not have to accept the accused’s denials regarding the consumption of alcohol: R. v. Carson, 2009 ONCA 157, at para. 1. Nor is it necessary that an officer observe signs of impairment “to found a basis for making a roadside breath demand”: R. v. Schouten, 2016 ONCA 872, at para. 26.

[27] I also accept that the smell of alcohol on Mr. Nufio’s breath on its own would be sufficient to reasonably afford PC Blair the requisite grounds: Carson, at para. 1; Schouten, at paras. 17, 26-29. However, based on the officer’s own evidence which does not align with the video evidence in terms of how he acquired those grounds, I am dubious that he did in fact ultimately smell alcohol on Mr. Nufio’s breath.

[28] While the officer initially did state to Mr. Nufio that he could smell alcohol emanating from his mouth, that was at the very outset of the interaction at a time when, according to the officer’s testimony, he could only smell it in the vehicle. Just as PC Blair testified that he told Mr. Nufio he had to answer his questions about his consumption of alcohol not because he in fact had to, but just to make him talk, I find that the statement made about smelling alcohol on his breath was simply made to get Mr. Nufio to talk – it was not purporting to state the truth. PC Blair himself testified that he did not have those grounds at that point in time.

[29] Nevertheless, the odour of an alcoholic beverage on the driver’s breath is not a precondition to a valid ASD demand: see R. v. Zoravkovic, [1998] O.J. No. 2668 (C.A.), at para. 2; R. v. Singh, [2006] O.J. No. 5133 (S.C.J.). It is also not necessary that a police officer suspect that the person is committing a crime: Schouten, at para. 26. The officer’s suspicion “need not be the only conclusion available, and the presence of innocent possibilities does not negate the suspicion”: K. Jokinen and P. Keen, Impaired Driving and Other Criminal Code Driving Offences, Emond Montgomery Publications Ltd, 2019, Toronto, Chap. 16, p. 248; R. v. Mitchell, 2013 MBCA 44, at para. 21.

[30] In R. v. Blysniuk, 2020 ONCJ 603, the “constellation of facts” that supported the officer’s suspicion that the accused had alcohol in his body also included the fact that the accused was driving at a (very) high rate of speed, going much faster than the other vehicles on the roadway at that time; and the odour of alcohol coming from within the (small) vehicle. And in that case, the passenger had admitted to consuming alcohol (which would explain the smell) and the accused – who had been the one driving – had denied consuming any. Still, the court held that that did not remove the smell of alcohol from the assessment of the totality of the circumstances, even though the officer testified that he was not sure the smell of alcohol was coming from the accused.

[31] Here, again, Mr. Nufio was the sole passenger in the vehicle, and it is apparent from both the officer’s testimony and the video evidence that it was no faint smell. PC Blair immediately smelled it upon the window being opened, even through his surgical mask and the fact that he had not yet stuck his head in the window. Mr. Nufio also indicated he had been out with friends.

[32] On the totality of the evidence, this was reasonable. The officer was not required to believe the accused’s denial that he had consumed alcohol – and clearly, he did not. He believed the intense smell of alcohol belied that answer.

[33] I therefore find that an assessment of the objectively discernible facts establishes that PC Blair’s suspicion that the accused had alcohol in his body was reasonable in all the circumstances. Accordingly, the ASD demand was valid and there were no violation of sections 8 and 9 of the Charter.

[34] I note that Parliament has also enacted section 320.27(2), which now allows a peace officer who has in his possession an ASD, to demand a breath sample in the absence of reasonable suspicion. This provision was in force at the time of these events and no challenge to the provision was brought. PC Blair did have an ASD with him, though the provision was not specifically invoked – whether at the scene or at trial. Given my determination that the requisite grounds existed, I do not need to determine whether an officer must subjectively turn his mind to the police power to make a mandatory ASD demand under s. 320.27(2) for that subsection to assist the Crown in meeting its onus of establishing a reasonable search on a s. 8 Charter application.

[35] I nevertheless find issues with the reliability of PC Blair’s testimony, if not his credibility, which informs my view of the subsequent interaction.

Right to counsel: section 10(b) of the Charter

[36] Once arrested at 3:12 a.m., Mr. Nufio was not immediately informed of his right to counsel.

[37] PC Blair indicated that he first explained to Mr. Nufio what the reading meant and what was going on, and had a bit of a conversation around his alcohol consumption that night – allowing him to have no concerns that he had drunk alcohol recently (such that he would have mouth alcohol which could flaw the results of the ASD analysis).

[38] The video shows that the conversation about alcohol consumption in fact took place prior to Mr. Nufio being placed under arrest, but PC Blair did inform Mr. Nufio that they were going to go to a police station so he could provide another sample of his breath and he was likely going to be released from custody. Mr. Nufio asked what it meant that he was going to be released from custody. PC Blair explained the process again.

[39] PC Blair then testified that he handcuffed Mr. Nufio and explained that he “took his time” because he had to do a pat down search and Mr. Nufio was wearing a lot of clothing given the cold outside. PC Blair was also the only officer on scene. He testified that the whole search lasted 3 to 4 minutes.

[40] The search incident to arrest of Mr. Nufio’s person was in fact very brief – a matter of seconds. In cross-examination, PC Blair explained that he meant the complete search, including explaining what was happening to Mr. Nufio, the pat-down and the handcuffing.

[41] According to the video, PC Blair asked the driver if he had anything on him that could hurt the officer. Mr. Nufio responded “No”, and as though reminded of what he had or did not have on his person, asked “Can I get my phone and my cigarettes?”. PC Blair responded “I’ll grab that”, and told the accused to put his hands behind his back.

[42] Mr. Nufio then asked “You’re gonna arrest me, bro?” PC Blair responded “Yes, I just told you that”. Mr. Nufio asked PC Blair if he could have a cigarette before being arrested. PC Blair said he could not. Mr. Nufio asked why not, and the officer asked him to “Turn around please”. Mr. Nufio again asked for a cigarette. PC Blair responded: “I’ll bring your smokes with you but you can’t right now.” Mr. Nufio inquired as to when he would be able to, and the officer told him he would see if he could once at the police station. Mr. Nufio then asked “Why are you doing this to me?”, as he was being handcuffed. Mr. Nufio then moved on to asking PC Blair about the officer’s past involvement with the Canadian Armed Forces.

[43] At approximately 3:14 a.m., Mr. Nufio is handcuffed to the rear. He is subsequently placed in the rear of the scout car.

[44] PC Blair then retrieved Mr. Nufio’s car keys, cigarettes and wallet from his vehicle. He explained that he did this at that time because Mr. Nufio “was adamant about me getting his phone and keys from his car”. He later added that Mr. Nufio was very upset about getting his phone and car keys – and so in order to calm him down, he went to get that.

[45] PC Blair also collected the ASD device. According to the video, he went to the right side of the hood of the scout car where the ASD device still was, then to his driver’s seat to put things in the door of the car. He then returned to the right side of the hood to put away the ASD device, in the front passenger seat of the scout car.

[46] He then entered the front seat of the scout car and looked through his notebook, apparently to locate the right to counsel notification. At approximately 3:19 a.m., PC Blair begins to communicate again with Mr. Nufio, who has remained silent during this time. He again informs Mr. Nufio of what he was being arrested for and why. PC Blair subsequently advised Mr. Nufio of his right to counsel, reading from his notebook, at 3:20 a.m., approximately 8 minutes after arrest.

[47] I accept that for some time after arrest, PC Blair is responding to questions posed by Mr. Nufio and that the pat down search of his person was part of ascertaining his safety. I therefore estimate the true delay in providing Mr. Nufio his right to counsel to be closer to 6 minutes.

[48] The facts of this case are very similar to those in the recent case of R. v. Davis, 2023 ONCA 227. In that case, Paciocco JA on behalf of the Court upheld the exclusion of breath samples resulting from a breach of Mr. Davis’s s. 10(b) right to be informed of his right to counsel immediately upon being detained. In that case, upon arrest following a failed roadside test, Mr. Davis was searched and placed in the back of the police cruiser. He was also not advised of his right to counsel until 8 minutes following arrest. Short of allowing for time to search and handcuff the accused, the arresting officer could not account satisfactorily for the delay.

[49] In this case, we do know – both based on PC Blair’s testimony and more importantly, his BWC – exactly what transpired during the intervening minutes. Rather than merely pointing to the minutes that passed, I must consider what transpired during that time to determine whether Mr. Nufio was informed of his right to counsel “without delay”, subject only to measures taken to address the safety of the officer or the public.

[50] The delay in this case does not meet the immediacy or “without delay” requirement of s. 10(b) of the Charter. As stated by the Supreme Court in R. v. Suberu, 2009 SCC 33, at para. 42, the words “without delay” mean that officers have an obligation to inform the detainee of their right to counsel “immediately”, subject to concerns for officer or public safety or reasonable limitations prescribed by law or otherwise justified under section 1 of the Charter.

[51] The officer clearly delayed informing Mr. Nufio of his right to counsel. There was an avoidable delay. Mr. Nufio should have been informed of this right after being handcuffed.

[52] Certainly, PC Blair should have held off on retrieving Mr. Nufio’s belongings. His explanation that he retrieved these items before informing Mr. Nufio of his right to counsel because Mr. Nufio was adamant that they be retrieved and to calm him down does not hold water when the video is considered. The recording does show that Mr. Nufio asked several times to have a cigarette, but he let it drop once PC Blair told him maybe later. PC Blair stated that Mr. Nufio was cooperative during this interaction, and this is confirmed by the video. The suggestion that Mr. Nufio’s belongings were retrieved in order to calm him down is also belied by the fact that PC Blair did not inform Mr. Nufio that he had retrieved his cigarettes and other items when he re-entered the police cruiser, nor did he of course hand them over to him.

[53] Further, the officer made a note that when he attended the car to retrieve the property, he made observations that there was no spilled alcohol in the car or indication of recent alcohol consumption in the car. This suggests to me that he also took this opportunity to pursue the investigation, while Mr. Nufio was waiting to be read his rights in the police car.

[54] Putting away the ASD device was also not necessary to ensure public safety or the officer’s safety, and thus that too could have waited.

[55] I therefore find a breach of Mr. Nufio’s s. 10(b) right to counsel.

[56] Further, the defence contends that the information conveyed to Mr. Nufio as he was read his right to counsel undermined the right. It points to the fact that PC Blair informed Mr. Nufio that he was not charged, only arrested, and based on this, it logically flowed from what was otherwise stated to Mr. Nufio that he was not entitled to access duty counsel or Legal Aid at that time.

[57] The video shows that as he informs Mr. Nufio of his right to retain and instruct counsel, PC Blair informs him of his right to telephone any lawyer he wishes. He then mentions that he can get free advice from a Legal Aid lawyer. PC Blair then adds: “‘If you are charged with an offence’ – OK you are not charged right now, you are arrested – ‘you may apply to the Legal Aid plan for assistance.’” He then informs him of the phone number for Legal Aid as follows: “[Number] is the number that will put you in contact with the Legal Aid duty counsel lawyer for free legal advice right now. Do you understand?”

[58] I accept that PC Blair’s interjection that Mr. Nufio was not yet charged, only arrested, after having stated that Legal Aid was available to him if charged, was confusing and had the effect of suggesting that Mr. Nufio was not yet entitled to consult duty counsel – that he could apply for this legal assistance once charged. PC Blair appeared to acknowledge the potential for confusion in cross-examination but indicated that his intention was to explain to Mr. Nufio that he was not yet charged.

[59] In examination in chief, PC Blair testified that he carefully explained to Mr. Nufio that he could speak to any lawyer, his, a friend’s, and also explained what duty counsel was because it had been an issue in the past. He therefore added to the language in the notebook.

[60] In fact, based on the video, I find that he did not explain any of these things to Mr. Nufio. I am concerned, again, about the discrepancy between the officer’s testimony and the video recording. PC Blair was testifying based on his notes. It is apparent that his notes were either inaccurate or insufficiently detailed to enable officer Blair to properly recount the events. At a minimum, this demonstrates a lack of care and attention to this important duty.

[61] The only language the officer in fact appears to have added to the rights notification was in respect of not yet being charged, only arrested. While I accept that his intention in making this statement was not to mislead, this occurrence had the effect of further infringing Mr. Nufio’s right to be properly informed of his right to communicate with counsel without delay.

[62] PC Blair testified that Mr. Nufio declined to speak with duty counsel when read his rights in the scout car. Once at the station, Mr. Nufio did elect to speak with duty counsel when being paraded before the staff sergeant, and did so.

[63] Mr. Nufio subsequently provided breath samples. The Certificate filed establishes, and I accept, that the accused had a blood alcohol level of 180 mg in 100 mL of blood.

Exclusion of evidence under section 24(2) of the Charter

[64] The defence seeks the exclusion of these breath samples pursuant to s. 24(2) of the Charter. Recently, in R. v. McColman, 2023 SCC 8, the Supreme Court considered s. 24(2) in the context of a drinking and driving case. It wrote, at paras. 53 and ff., that:

Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial 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”. The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.

Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70. In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140.

Trial courts must evaluate each of the three lines of inquiry thoroughly. A cursory review of the Grant test prevents appropriate appellate review and transforms s. 24(2) from a contextual inquiry into a bright-line rule.

[65] As indicated above, in R. v. Davis, the Court of Appeal upheld the exclusion of breath samples by the trial judge resulting from a violation of the accused’s right to counsel. In that case, as here, the accused was not informed of this right for 8 minutes following arrest.

[66] The Davis case is not determinative as there is no categorical rule about admitting or excluding evidence based on similar circumstances. In particular, and I will return to this, in a case about the informational right to counsel, there is no specific amount of delay that is acceptable or not acceptable for s. 24(2) purposes. I must consider all of the particular circumstances of the case before me, including any explanation for the delay.

“Obtained in a manner” requirement

[67] I first note that the Crown did not suggest that if I were to find a violation of Mr. Nufio’s s. 10(b) rights, that the breath test results were not “obtained in a manner” that violated the Charter. In other words, he did not argue that there was a later “fresh start” that might have operated to sever the connection between the violation and the evidence obtained.

[68] In any event, in Davis, at para. 44, the Court of Appeal held that “the ‘fresh start’ doctrine should be applied to breaches of the immediacy requirement of the informational component of s. 10(b) only in clear cases. If belated s. 10(b) compliance is readily accepted as making an earlier immediacy breach too remote to warrant the exclusion of evidence, then s. 10(b)’s immediacy requirement will become a right without a remedy, and no Charter right should be without remedy: Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at para. 50. The ‘fresh start’ doctrine was not intended, and should not serve, as a mechanism for systematically undermining the effective enforcement of informational Charter rights.”

[69] The Court of Appeal pointed out that the Supreme Court has long taken a “purposive and generous approach” to the “obtained in a manner requirement” (see R. v. Tim, 2022 SCC 12). It has repeatedly affirmed that the required connection between the breach and the evidence sought to be excluded “may be ‘temporal, contextual, causal or a combination of all three’” so long as the connection is not “remote” or “tenuous”: Davis, at para. 28.

[70] Here, as in Davis, there was a temporal and contextual link between the s. 10(b) informational breach and the provision of the breath samples. Both events occurred as part of the same investigation during the same detention.

[71] The crux of the analysis at this stage is thus whether the admission of the evidence would bring the administration of justice into disrepute, having regard to all the circumstances. This is measured by evaluating and balancing the following three factors, known as the “Grant factors” pursuant to R. v. Grant, 2009 SCC 32:

(1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in an adjudication of the case on its merits.

(1) Seriousness of the Charter-infringing conduct

[72] As stated in McColman, at paras. 57-59:

The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. As this Court stated in Grant, at para. 72, this line of inquiry “requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. Or as this Court phrased it in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?”

In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. As Justice Doherty observed in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long‑term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability.

… State conduct that is not particularly serious may nonetheless heavily impact the accused’s Charter-protected interests. Conversely, state conduct that is egregious may minimally impact the accused’s Charter-protected interests.

[73] Here, it is accurate to say that the delay in providing the right to counsel was not very prolonged – a matter of minutes – and for part of that time, PC Blair was fulfilling Mr. Nufio’s own request for his phone and his cigarettes and responding to his inquiries. PC Blair should have done things in a different order, but I cannot find that he acted in bad faith when he went to retrieve Mr. Nufio’s belongings.

[74] While PC Blair could also have waited to put away the ASD, some allowance should be made for the fact that he was working alone that evening and could not do everything at once.

[75] Nevertheless, for the reasons that follow, I find the seriousness of the breach in this case to be in the moderate to serious range.

[76] Critically, PC Blair did not evidence an awareness that the right to counsel must be provided “immediately” or without delay. He believed that the right to counsel is to be provided “as soon as practicable” following an arrest.

[77] Further, he appears to interpret this as allowing for a window of a few minutes to get things settled or in order. While he indicated that he must make sure the person being arrested is safe and he himself is safe before reading the person their right to counsel, there was more to it than that. He assigned a number of minutes as being a permissible amount of time to meet the informational requirements of the right to counsel. Indeed, when asked what he believed the time requirements were for the right to counsel, he answered 7 minutes. This was based on case law that his staff sergeant recently informed him of – that is, that a court had ruled that 7 minutes was too long. More specifically, he indicated that his sergeant told him that “the last case was 7 minutes”, and that some cases were thrown out if it was more than 7 minutes.

[78] This suggests that further to the sergeant’s guidance, the police at least in PC Blair’s unit are operating by reliance on the number of minutes they have to discharge the informational component of the right to counsel.

[79] On that basis, PC Blair testified that he felt quite confident that the estimated five minutes it took him certainly fell within the range of “as soon as practicable”, which again was the ultimate threshold he understood applied based on his police college training.

[80] A lack of understanding of the law and constitutional rights by the police does not constitute good faith: R. v. Le, 2019 SCC 34, at para. 147. As stated by the Supreme Court in Tim, at para. 85:

Good faith on the part of the police, if present, would reduce the need for the court to dissociate itself from the police conduct (see Grant, at para. 75; Paterson, at para. 44). Good faith cannot be claimed if the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards (see Grant, at para. 75; Buhay, at para. 59; Le, at para. 147; Paterson, at para. 44).

[81] The police were therefore not operating in good faith in this case. The violation was the product of unreasonable error and ignorance of the scope of the police’s authority. I would say that it was also negligent if not willful, as it is clear that the officers had an awareness of the case law, yet only concerned themselves with the bottom line: whether the evidence was admitted or excluded based on the number of minutes at issue. They did not demonstrate any appreciation of their actual obligation – and thus how to avoid a violation of the right in the first place.

[82] As stated by the trial judge in Davis, providing the right to counsel immediately is a well-established concept that matters and is easily complied with. The requirement of immediacy of notice is what supports the suspension of implementational Charter rights at the roadside.

[83] PC Blair is not an inexperienced police officer. He has been working for the Toronto Police Service for 23 years. As stated by this court in Bazely: “Officers should know that such rights are to be provided immediately, subject to the above-noted exceptions. There is no excuse for the belief that “without delay” means “as soon as practicable” or whenever the officer feels it is most convenient.”

[84] Importantly, the Supreme Court in Suberu purposely decided not to allow for any delay between the outset of a detention and the engagement of the police duties under s. 10(b), as permitting some delay would create “an ill‑defined and unworkable test of the application of the s. 10(b) right”. The Court observed that “[t]he right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding”: para. 42 [emphasis added].

[85] And yet, the immediacy of the requirement appears to be misunderstood, time and time again, more than a decade later – as demonstrated by the Davis case and many other cases from Ontario: see Davis, at para. 55. I note however that the defence has not suggested that this is a systemic problem in this particular jurisdiction.

[86] The breach may be less serious when dealing with a less experienced officer. In Tim, the Court situated the case at the less serious end of the scale of culpability for three reasons. Key in the analysis was that the officer’s honest mistake was due to his relative inexperience as a police officer, and was understandable in the particular circumstances of that case (which did not relate to the right to counsel, which of course by now should be clearly understood by police).

[87] In R. v. Cairney, 2022 ONCJ 458, the delay of three to five minutes in informing the detainee of his right to counsel did not lead to the exclusion of the breath sample evidence, also in circumstances where the court deemed the delay attributable to the inexperience of a relatively new police officer who had been on the road just over a year. In that case, the court observed that the rights to counsel should have been provided right after the handcuffing.

[88] The bulk of the overall 8-minute delay in giving rights to counsel in Cairney was due to the officers on scene wanting to help the new officer get training in an impaired driving investigation. In that case, all the officers knew that the defendant was entitled to be told “immediately” of his rights to counsel – they knew their obligation but failed to properly execute it. It was not a situation where the officers took significant time to attend to other routine matters at the scene instead of giving rights to counsel. The breath sample evidence was not excluded. That is distinguishable from the present case.

[89] Moreover, the Supreme Court in Tim found that the officer’s mistake and the ensuing Charter breaches were honest and inadvertent, rather than willful or reckless. It found that there was no flagrant disregard for the appellant’s Charter rights.

[90] Here, while I cannot say that PC Blair was deliberately violating Mr. Nufio’s Charter right or that he was operating in bad faith, it is troubling that he would not know what is required of him in the circumstances. He acted nonchalantly with regards to the time he believed he had to discharge his constitutional obligation. And he lacked an appreciation of what that obligation was.

[91] I also note that PC Blair repeated twice in his testimony that he took his time to search Mr. Nufio given that he was wearing a lot of clothing as a result of the cold weather. In fact, based on the video, the search of Mr. Nufio’s person took a matter of seconds.

[92] Suberu has long now confirmed that detainees must be advised “immediately” of their right to counsel. It is unreasonable for a police officer to fail to give proper attention and respect to well-known and settled Charter obligations. As pointed out by Justice Paciocco in Davis, at para. 51, this is relevant to where breaches fall on the good faith, bad faith continuum: “An officer truly respectful of Charter rights attends to and exercises care in complying with settled and simple Charter precedents.”

[93] I cannot find that officer Blair exercised care in ensuring that Mr. Nufio’s rights were respected. In that regard, it is also concerning that the officer repeatedly told Mr. Nufio that he had to answer his questions regarding his consumption of alcohol. The suggestion that Mr. Nufio was obliged to answer was inconsistent with his right to silence.

[94] I understand from officer Blair’s evidence that the intent was to make Mr. Nufio talk so he could smell his breath and thereby assess his sobriety – and indeed any evidence elicited at point in time would only be admissible for that limited purpose: see R. v. Orbanski; R. v. Elias, 2005 SCC 37, at para. 3. PC Blair acknowledged that Mr. Nufio in fact had no obligation to answer the questions posed.

[95] It is well accepted that regardless of the right to silence, police do have the power to ask drivers about their prior alcohol consumption and request the performance of sobriety tests at the roadside without first informing a driver of his right to counsel: see Orbanski and Elias, at paras. 1-2, 35, 42, 48-50; Smith, at paras. 30, 35. But nowhere is it suggested, as acknowledged by PC Blair, that the driver has the obligation to answer or comply. Nor do the cases suggest that the officers can erroneously inform the driver that they have an obligation to comply, even if the evidence is ultimately not used against them. In fact, police in these circumstances must not engage in conduct that effectively and unfairly deprives the detainee of the right to choose whether to speak to the police: see Smith, supra.

[96] I am not suggesting that there was an independent breach of Mr. Nufio’s right to silence, given the limitations at the roadside that have been deemed to be justified under section 1 of the Charter. Still, I do not believe it is appropriate to mislead or indeed, as in this case, misinform a detainee as to his constitutional rights. This evinces a certain disregard, or lack of care, by the officer, for a detained person’s constitutional rights. In my view, this factor increases the seriousness of the violation in the present case.

[97] So does the lack of care in the officer’s notetaking, described above. PC Blair’s notes manifestly failed to enable him to properly and adequately account for events that were central to discharging his constitutional duties and to Mr. Nufio’s Charter rights. Indeed, this resulted in the officer providing evidence that did not align with the video evidence. Were it not for the video, I would not have been able to correctly analyze whether and how Mr. Nufio’s rights had been violated.

[98] It is true that PC Blair did not try to elicit evidence from Mr. Nufio prior to him speaking with counsel. However, as was made clear in Davis, at para. 67, “Had the police attempted to use Mr. Davis as a source of evidence before giving him the full benefit of s. 10(b), an additional breach, beyond the informational breach, would have occurred. It is obvious that the seriousness of a Charter breach that has been committed ‘cannot be attenuated by the fact that the police did not commit an additional breach’: Noel, at para. 19.”

[99] This was an evident violation of a long- and well-established rule by an experienced officer, who showed a continued misunderstanding of the right at the time of trial.

[100] Altogether, then, I view the seriousness of the Charter-infringing conduct to be moderately serious, tending toward the more serious end of the spectrum.

(2) Impact on the protected interests

[101] The Supreme Court in McColman explained at para. 66 that:

The second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which the breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76. Like the first line of inquiry, the second line envisions a sliding scale of conduct, with “fleeting and technical” breaches at one end of the scale and “profoundly intrusive” breaches at the other: para. 76.

[102] I agree that, just as in Davis, the impact of the violation here is “moderate”.

[103] Cases like this one and Davis can be distinguished from those where the Supreme Court has identified breath samples as a central or paradigmatic example of a minimally intrusive search, involving a “less egregious and invasive intrusion into privacy, bodily integrity and dignity”: see Grant, at paras. 106-111; see also R. v. Jennings, 2018 ONCA 260, at para. 30; and R. v. Manchulenko, 2013 ONCA 543, at paras. 93 and 100. That is because the right at issue here is not the right not to be subjected to unreasonable search and seizure, but rather the right to counsel. This informs the focus of the second prong of the Grant analysis, given the nature of the interests impacted by a violation of that right.

[104] Indeed, in Davis, the Court of Appeal identified other interests at stake when it comes to the informational component of the right to counsel. These may be impacted in ways that differ from the infringement on the privacy interests at issue under s. 8 of the Charter. They were here.

[105] The Court in Davis explained, at para. 41, that “the subsequent compliance with s. 10(b) did not repair the damaging effects of the breach of Mr. Davis’s s. 10(b) immediacy rights. As the Crown concedes, during the period of delay, Mr. Davis was without the benefit of information about his right to counsel, a consequence that the belated advice he received did not change. Nor did Mr. Davis’s ultimate enjoyment of the s. 10(b) implementational rights remedy this breach of his informational rights. After all, informational rights are not provided solely as a means of enjoying implementational rights. A detained person requires the immediate assurance that ‘they are not entirely at the mercy of the police while detained’ and are entitled to a ‘lifeline to the outside world’ through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation: Pino, at para. 105; R. v. Rover, 2018 ONCA 745, 366 C.C.C. (3d) 103, at para. 45; R. v. Noel, 2019 ONCA 860, at para. 24-26; R. v. O’Brien, 2023 ONCA 197, at paras. 48, 49. Compliance with the immediacy requirement provides these constitutionally assured benefits; something Mr. Davis was deprived of even after the belated compliance with s. 10(b). Put simply, because the subsequent compliance with s. 10(b) in this case did not fully dispel the effects of the informational breach, the justification for the application of the ‘fresh start’ doctrine is materially weakened.” [Emphasis added.]

[106] Mr. Nufio spoke to duty counsel before the evidential breath samples were taken. It could similarly be argued that there was no direct link between obtaining Mr. Nufio’s breath samples and the violation of his rights. However, again as per Davis, at para. 65, “because causation is not a realistic factual concern where purely informational breaches of s. 10(b) occur, to treat the absence of causation as mitigating the impact of the breach on the Charter-protected interests of the accused would systemically and artificially devalue the vitality of informational rights.”

[107] According to PC Blair, Mr. Nufio also initially declined to speak to counsel. But given my finding that the information provided about the right to counsel was unclear, that may have been the result of the confusing nature of what was conveyed to him by the officer. If anything, it may aggravate, not mitigate, the impact on Mr. Nufio’s rights. He may well have understood that he could not speak to duty counsel at that time, since he was not yet charged. He later did elect to speak with duty counsel once paraded before the staff sergeant.

[108] But what is most important in the analysis of the second prong in this case is that Mr. Nufio conveyed to the officer that he was scared. It looked like he was. This was therefore known to the officer, and not something that could not have occurred to him. Rather than providing Mr. Nufio with some reassurance that he would be able to connect with counsel before long, PC Blair minimized the issue by telling Mr. Nufio that “as a military guy”, he was probably used to being stopped by the military police. Mr. Nufio responded “Not like this”. In other words, Mr. Nufio conveyed that he had not been through something like this before. Upon arrest, rather than now providing him with the reassurance that the Constitution requires he be given, Mr. Nufio was left in psychological limbo.

[109] Mr. Nufio had previously not agreed with the ASD demand, as he told PC Blair, and had questions about his legal obligations as demonstrated by his question to the officer about whether he had to exit his vehicle. He also questioned why he couldn’t have a cigarette. While he would not have immediately obtained answers to all his questions from counsel had there been no violation of his right, he would have known right away that he would have that opportunity before long. This would have served to provide him with some assurances, as intended by s. 10(b).

[110] I therefore find that this violation had a very real impact on the accused, as established by the evidence.

[111] Moreover, as observed by Justice Schreck in R. v. Sandhu, 2017 ONCJ 226, at para. 12, “in the context of roadside detentions, the right to counsel is suspended during the investigation: see Orbanski and Elias. As a result, by the time people in Ms. Sandhu’s situation are placed under arrest, they have already been detained for a period of time without being advised of their right to counsel. This makes it all the more important that they be advised of the right immediately upon arrest.”

[112] What makes this case different, then, than one where the impact on the accused’s interests in a breathalyzer case is seen as minimal, is that Mr. Nufio conveyed his discomfort, his questions, and his fear of being arrested to the officer. Providing Mr. Nufio with information that he would have the opportunity to speak with a lawyer, as should have been done immediately, could well have served to alleviate those concerns. That is no trivial matter.

[113] I therefore conclude that the impact of the violation was moderate.

(3) Impact on the administration of justice

[114] On the last prong of the Grant test, the Court in McColman stated:

[69] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice and the impact of failing to admit the evidence: Grant, at para. 79. In each case, “it is the long-term repute of the administration of justice that must be assessed”: Harrison, at para. 36.

[70] Under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence, although this Court has recognized that the final factor can cut both ways: Grant, at paras. 81 and 83-84. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system that is above reproach: para. 84.

[71] While there is an obvious impact upon the administration of justice in admitting evidence obtained in contravention of s. 9 of the Charter, admitting the evidence in the case at bar would not damage the long-term repute of the administration of justice. First, the evidence collected by the police was reliable and crucial to the Crown’s case. Cst. Lobsinger observed several signs of impairment at the scene, including a strong odour of alcohol and Mr. McColman’s inability to stand up straight. Mr. McColman admitted to the officers that he “might’ve had 10” beers that evening. Two breathalyzer tests, conducted some time after he vomited due to his alcohol consumption, revealed that Mr. McColman’s blood alcohol concentration level was significantly above the legal limit.

[72] Second, impaired driving is a serious offence. This Court has recognized that society has a vital interest in combatting drinking and driving.

[73] In light of the reliability and importance of the evidence as well as the seriousness of the alleged offence, the third line of inquiry pulls strongly in favour of inclusion. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system.

[115] These considerations favour admission of the evidence in this case as well, as they tend to do in most cases. The breath samples are essential to the Crown’s case, and the offence is a serious one – in particular given Mr. Nufio’s high readings.

[116] However, as noted by my colleague Justice Waby in R. v. Fan, 2023 ONCJ 187, at para. 71, this last factor must not take on disproportionate significance:

The evidence obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. Drink driving continues to take a considerable toll on the lives and safety of road users in Canada. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.

[117] I agree with all of these observations and find that they apply here.

Final balancing

[118] I am left with two factors that pull in favour of exclusion, albeit moderately so, and one that pulls quite strongly in favour of admission of the evidence. In R. v. McGuffie, 2016 ONCA 365 at para. 63, Justice Doherty wrote that “[i]f 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”. See alsoLe, at para. 142.

[119] In the present circumstances, however, I am faced with a much less obvious contrast.

[120] Recently, in Tim, at para. 85, the Supreme Court acknowledged that “[e]ven where the Charter infringement is not deliberate or the product of systemic or institutional abuse, exclusion has been found to be warranted for clear violations of well-established rules governing state conduct’ (Paterson, at para. 44; see also Harrison, at paras. 24-25).” [Emphasis added.]

[121] This is the case here. Ultimately, my determination that the evidence ought to be excluded turns on a few considerations.

[122] Most significantly, if I were to admit the evidence on the basis that we are dealing with a delay of somewhere between six to eight minutes, this would have the effect of setting a bright line rule that, as occurred in this case, leads the police astray. It would further entrench the belief – held even by a very experienced officer and apparently by a senior sergeant – that officers have a leeway of at least six minutes to inform a detained or arrested person of their right to counsel. That is entirely contrary to what the Supreme Court said in Suberu and the message it wanted to convey. It believed that in order to avoid confusion, the bright line rule had to be no delay. The message must be sent that the rule is “immediately”, subject only to safety concerns. It must be understood that any divergence from that rule will be scrutinized and will matter, such that comfort cannot be taken in the fact that only a few minutes passed. If only the bottom line of decisions is understood by some officers, then this should be the bottom line.

[123] This consideration relates to the types of “institutional concerns” that Grant, at para. 70, tells us the s. 24(2) analysis is directed at.

[124] I also wish to be clear that my determination does not merely turn on the time that passed before Mr. Nufio was informed of his right to counsel. It is the entire complexion of the intervention and the experienced officer’s lack of awareness of the parameters of long-established rights, including the ignorance of the time within which the right to counsel must be provided, the disregard for the right to silence, and the later misinformation relating to the ability to communicate with duty counsel. It also accounts for the concrete impact that the violation of the right had in this particular case. Had this case simply been about the few minutes that passed before Mr. Nufio was apprised of his right to counsel, given what transpired during those few minutes in this case, I likely would not have excluded the evidence. The point is that all the circumstances will matter.

[125] In total, I believe the administration of justice is best served by making it clear in this case that failing to comply with the s. 10(b) Charter informational requirements will be taken seriously by the courts.

[126] I therefore exclude the evidence of the breath tests and must therefore acquit Mr. Nufio of the Over 80 count.

Released: June 16, 2023

Signed: Justice Mainville