ONTARIO COURT OF JUSTICE DATE: 2023 10 19 Newmarket, Ontario
BETWEEN:
HIS MAJESTY THE KING
— AND —
MITCHELL MAGUIRE
Before: Justice R.M. Robinson
Heard on: 18, 19 and 20 September 2023 Reasons for Judgment released on: 19 October 2023
Counsel: Jeremy Mutton, for the Crown Ken Anders, for Mitchell Maguire
ROBINSON J.:
Overview
[1] On 24 April 2022, police were dispatched to 200 King Street in East Gwillimbury as a result of a motor vehicle collision with a tree. The caller reported that the driver was a thin, blonde male wearing a green hoodie and blue jeans. The caller also reported that he believed the male was impaired.
[2] When the police arrived on scene, they observed the crashed vehicle with two young males standing outside the driver’s side. One male, Connor Steinhausen, was a thin, blonde male wearing a green hoodie. The other male, Mitchell Maguire, did not match the description, as he had brown hair and was wearing dark clothing. Both males were visibly extremely intoxicated.
[3] The males refused to provide information to the police, who then attempted to obtain information from two female bystanders. They also refused (or were unable) to provide information about the identity of the driver. The police attended at the address of the caller, but he also refused to provide information.
[4] Primarily on the strength of the information provided to dispatch by the caller, the police arrested Mr. Steinhausen for Impaired Operation. After Mr. Steinhausen was handcuffed to the rear and while he was being searched incident to arrest, Mr. Maguire admitted to the police that, in fact, he was the person who had been driving the motor vehicle. As a result, Mr. Steinhausen was released unconditionally and Mr. Maguire was arrested for Impaired Operation.
[5] In the police vehicle on the way to the station, Mr. Maguire made a number of additional incriminating statements. After booking and while providing breath samples, Mr. Maguire made further incriminating statements. His readings, taken 22 minutes apart, were 270 and 280 mg of alcohol in 100 mL of blood, respectively. Accordingly, he was also charged with 80 Plus.
[6] The primary issue at trial will be the identity of the driver that was involved in the collision. Indeed, the only evidence identifying Mr. Maguire as the driver consisted of his self-incriminating utterances.
[7] The defence alleges the following Charter violations:
(1) A violation of Mr. Maguire’s s.10(a) right, because the police failed to advise him he was being detained in relation to their investigation into the impaired operation collision;
(2) A violation of Mr. Maguire’s s.10(b) right because of the police failure to provide him with his right to counsel while he was under investigative detention;
(3) A violation of Mr. Maguire’s s.9 right, as the police relied on his unconstitutionally obtained statements to unlawfully arrest him; and
(4) A violation of Mr. Maguire’s s.8 right, as the breath samples were seized from him without warrant after an unlawful arrest.
[8] The defence seeks the exclusion of all of Mr. Maguire’s statements as well as his breath test results under s.24(2) of the Charter.
[9] In addition, the defence argues that the Crown has not established beyond a reasonable doubt that Mr. Maguire’s statements were voluntary. Specifically, the defence alleges that the Crown has not established that Mr. Maguire had an operating mind at the time that he made the statements.
[10] The Crown’s primary position on the Charter issues is that Mr. Maguire was never detained, but rather was merely delayed by the police who were asking exploratory questions while they attempted to ascertain what was going on.
[11] As an alternative, the Crown submits that even if there was an initial investigative detention of Mr. Maguire, it clearly ended when he saw that the police were arresting Mr. Steinhausen for impaired operation.
[12] As a second alternative, the Crown argues that the police interaction with Mr. Maguire at the police station amounted to a “fresh start” such that any subsequent utterances made by him should be admissible as Charter-compliant.
[13] The Crown argues that, in light of the multiple cautions given to Mr. Maguire and his clear appreciation of what he was saying, as evidenced by the in-car camera [“ICC”] footage and the footage at the police station, voluntariness has been established beyond a reasonable doubt.
[14] The Charter voir dire, voluntariness voir dire and trial proper all proceeded in a blended fashion on consent of Mr. Maguire and the Crown, with the caveat that Mr. Maguire’s testimony was restricted to the Charter and voluntariness issues only.
The Facts
Police Investigation at the Scene
[15] The facts are largely not in dispute, as the evidence of P.C. Stevie Lewis and P.C. Joshua Dennys was not substantially challenged in cross-examination. Neither Mr. Maguire nor Mr. Steinhausen offered an alternate version of events as they both claimed to be too intoxicated to remember their interaction with the police.
[16] From the ICC video in P.C. Lewis’ cruiser [1], the rear ICC video from P.C. Dennys’ cruiser [2], the front ICC video from P.C. Dennys’ cruiser [3] and the testimony of P.C. Lewis and P.C. Dennys, the following chronology of events was established:
- 20:24: P.C. Lewis was dispatched to a motor vehicle collision at 200 King Street, East Gwillimbury. The information he received was that a male crashed a motor vehicle on the front lawn. The caller believed the driver was impaired. The caller described the driver as a thin, blonde male wearing a dark green hoodie and blue jeans.
- 20:25: P.C. Dennys was dispatched to a motor vehicle collision at 200 King Street, East Gwillimbury. The information he received was that a young male was in an accident; that two males were in the vehicle; that a case of beer was in the car; and that the driver was wearing a green hoodie.
- 20:42: P.C. Lewis arrived on scene. He turned on his ICC as he was approaching [4]. He observed a motor vehicle on the front lawn that appeared to have impacted a tree. P.C. Lewis observed two males standing near the driver side of the crashed vehicle and observed one or two females standing in the vicinity. He observed that one of the two males (Connor Steinhausen) matched the description of the driver provided through dispatch.
- P.C. Lewis stopped his cruiser [5] and turned the audio of his ICC on [6].
- P.C. Lewis exited his cruiser and walked across the front of his cruiser toward the two males [7].
- As he walked toward the males, ICC captured P.C. Lewis asking them who was driving [8]. Although their response was unintelligible on the ICC microphone, P.C. Lewis testified that they were non-responsive to his question.
- P.C. Lewis could smell a strong odour of alcohol coming from both of the males.
- P.C. Lewis stated to the males, “Stay right here, ok. Don’t move,” [9] as he began to walk toward the direction of the female bystanders.
- P.C. Lewis asked the female bystanders, “Is it you guys that called in?” [10], to which they replied no.
- P.C. Lewis attended the address of the caller in an attempt to obtain further information, but the caller closed the door and refused to respond to P.C. Lewis’ knocks.
- The two males walked from the driver’s side of the crashed vehicle to the passenger side. [11]
- 20:43: P.C. Dennys arrived on scene. He observed the motor vehicle crashed on the front lawn and two males and two or three females standing around. He observed that one of the males matched the description provided through dispatch.
- The ICC captured P.C. Dennys’ flashlight shining in the area of the crashed motor vehicle’s passenger side. [12]
- P.C. Lewis provided P.C. Dennys with an update, including: there appeared to be no injuries; neither male admitted to driving; his inquiries of the females and the caller were unsuccessful; one of the males matched the description; and the males smelled of alcohol, had slurred speech and were unsteady on their feet.
- P.C. Lewis testified that, at this point, he cautioned the males that he was investigating an offence [13] and then asked them again what had happened, but they again declined to provide information.
- P.C. Dennys provided a general caution to the two males, advising them that he was conducting an investigation into an impaired driving offence and that they did not have to speak to him. He advised that he was trying to figure out what was going on. The two males did not answer him.
- 20:46: P.C. Lewis placed Mr. Steinhausen under arrest for impaired operation while P.C. Dennys stood by.
- The ICC captured P.C. Lewis leading Mr. Steinhausen in handcuffs to the front of his cruiser and commencing a search incident to arrest. [14]
- While this was occurring, Mr. Maguire was yelling over P.C. Dennys’ shoulder that “you have the wrong guy”, “that guy wasn’t driving” and “he’s not the driver.”
- P.C. Dennys turned around and cautioned Mr. Maguire by saying, “you don’t have to tell me anything, but who was driving?”
- Mr. Maguire began to cry and said, “I fucked up. I was driving.”
- At 20:47, P.C. Dennys advised P.C. Lewis that he had identified Mr. Maguire as the driver. The ICC captured P.C. Lewis look in the direction of P.C. Dennys and then uncuff Mr. Steinhausen. [15]
- 20:47: P.C. Dennys arrested Mr. Maguire for impaired operation and walked him over to his cruiser while P.C. Lewis stood by.
- 20:51: P.C. Dennys placed Mr. Maguire into his cruiser and read him his right to counsel. Mr. Maguire indicated that he understood and did not wish to call a lawyer.
- 20:53: P.C. Dennys read Mr. Maguire a formal caution from his notebook.
- 20:54: P.C. Dennys read Mr. Maguire a breath demand, to which Mr. Maguire indicated that he understood.
- Realizing that the audio in his cruiser had not been turned on, P.C. Dennys activated it. [16]
Transport of Mr. Maguire to the Police Station
[17] From the front and rear ICC video from P.C. Dennys’ cruiser and the testimony of P.C. Dennys, the following chronology of events was established:
[18] En route to the police station, the following exchange took place between Mr. Maguire and P.C. Dennys:
Between 00:40 and 3:00 on P.C. Dennys’ ICC: Mr. Maguire: “So now I’m going to be fucked for life, eh? Eh?” P.C. Dennys: “What’s that?” Mr. Maguire: “[unintelligible] now I’m fucked for life, yeah?” Mr. Maguire: “Fuck man, Jesus Christ.” Mr. Maguire: “Fuck, man.” Mr. Maguire: “[unintelligible] on my fucking record and shit?” P.C. Dennys: “Ya, this will be on your record, buddy.” Mr. Maguire: “Holy fuck.” P.C. Dennys: “You know what, though, man, it could be a good eye opener for you.” Mr. Maguire: “I’m so fucking pissed off. That’s the first time I do that shit, you know what I mean? I’m like fucking up north, working…” P.C. Dennys: “Hey buddy, I just want you to remember you’re on camera and everything, so, I know I’ve cautioned you, but…” Mr. Maguire: “I don’t care.” P.C. Dennys: “…I don’t want you saying anything that could incriminate you.”
At 7:32 on P.C. Dennys’ ICC: Mr. Maguire: “I don’t fucking do this shit… I know I fucked up. I know I shouldn’t have fucking drove home. It’s my own fuck up. I usually walk everywhere I fucking go when I know I’m going to fucking drink. But my car was already fucking there and I fucked up… Like I know I fucked up. Like definite. One hundred percent. There’s no way I didn’t fuck up.”
At 11:35 on P.C. Dennys’ ICC: Mr. Maguire: “I fucked up, man.”
At 14:25 of P.C. Dennys’ ICC: Mr. Maguire: “I’m a fucking retard. I fucked up, I’ll admit it. I fucked up.”
Mr. Maguire at the Police Station
[19] At 21:21:43, P.C.s Lewis and Dennys presented Mr. Maguire before Staff Sgt Deborah Gladding in the booking area. When asked if he had been provided with his rights to counsel already, Mr. Maguire said that he had not. Accordingly, Staff Sgt. Gladding directed the officers to do it again.
[20] P.C. Dennys read Mr. Maguire his s.10(b) right from his notebook. Mr. Maguire indicated he understood. When asked if he wanted to call a lawyer now, Mr. Maguire indicated he did not and responded, “It is what it is.”
[21] P.C. Dennys then read Mr. Maguire the primary caution, as well as a breath demand, from his notebook. Mr. Maguire indicated he understood both.
[22] Mr. Maguire was then placed in the breath room with P.C. Sean Skanes at 21:36:30.
[23] P.C. Skanes testified that he observed that Mr. Maguire was clearly intoxicated. He cautioned Mr. Maguire that the room was being recorded and Mr. Maguire indicated that he understood that whatever he said could be used in court.
[24] P.C. Skanes asked Mr. Maguire if he still did not wish to speak to a lawyer. Mr. Maguire indicated that he did not.
[25] Mr. Maguire began to say that he messed up by driving and that he usually walks. P.C. Skanes advised Mr. Maguire to be quiet and then explained the breath demand to him. Mr. Maguire advised that he understood.
[26] P.C. Skanes then provided him with the primary caution, to which Mr. Maguire indicated that he understood.
[27] P.C. Skanes then provided him with the secondary caution, which Mr. Maguire indicated that he understood.
[28] Yet again, P.C. Skanes advised that he would be asking questions, but that Mr. Maguire did not need to answer.
[29] After Mr. Maguire provided the first breath sample, P.C. Skanes explained to him that he would be asking him some questions but that he did not need to answer any of them. P.C. Skanes specifically stated, “It’s not a bad thing if you decide you don’t want to answer my questions. It’s absolutely not a bad thing at all. You don’t have to say a thing. It won’t be held against you or anything like that.”
[30] P.C. Skanes proceeded to ask Mr. Maguire a number of non-incriminating questions to which Mr. Maguire chose not to respond, including whether he had diabetes, any injuries or physical handicaps and whether he wore glasses or contact lenses.
[31] The following exchange then followed: P.C. Skanes: Want to tell me what happened today? Want to tell me about the accident? Were you driving home or where were you driving to? Mr. Maguire: Home. P.C. Skanes: Where were you coming from? Mr. Maguire: Wing House. P.C. Skanes: Is that a bar? Mr. Maguire: Yes. P.C. Skanes: Do you know what time you left there? Mr. Maguire: No. P.C. Skanes: Do you know what time it is now? Mr. Maguire: Probably 12:30. P.C. Skanes: You’re not very close. It’s 9:50. Have you been consuming alcohol today? Mr. Maguire: Yes. P.C. Skanes: Beer? Mr. Maguire: Yes. P.C. Skanes: How much? Mr. Maguire: Two draughts. P.C. Skanes: What time did you start? Mr. Maguire: Probably 8:30, or a bit later than that. P.C. Skanes: How long were you there? Mr. Maguire: An hour or two. P.C. Skanes: Did you have any drinks other than there? Mr. Maguire: No. P.C. Skanes: Did you have any alcohol after the crash? Mr. Maguire: No. P.C. Skanes: Is it your car that you crashed? A/ Yes. P.C. Skanes: Was there lots of damage to your car? Mr. Maguire: Yes.
[32] Mr. Maguire’s readings were 270 and 280 mg of alcohol in 100 mL of blood, respectively.
Analysis
Initial Interaction with P.C. Lewis and section 10 of the Charter
[33] The defence argues that Mr. Maguire was detained from the moment that P.C. Lewis directed him and Mr. Steinhausen to “Stay right here, ok. Don’t move.” I do not understand the defence to challenge the lawfulness of the detention, as the totality of the information before P.C. Lewis, at a minimum, provided him with a valid basis for engaging in an investigative detention. Rather, the defence argues that P.C. Lewis was required to promptly advise Mr. Maguire of the reasons for his detention and to promptly provide Mr. Maguire with his right to counsel.
[34] The Crown argues that, while Mr. Maguire may have been delayed by P.C. Lewis, it did not amount to “a significant physical or psychological restraint at the hands of the state” [17] and was, therefore, not a detention for the purposes of the Charter.
[35] The Crown further relies on Orbanski [18], presumably for the proposition that, for roadside screening purposes, the police are entitled to detain and ask related questions without providing rights to counsel.
[36] Section 10 of the Charter provides that:
- Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
[37] In Grant [19], the Supreme Court of Canada emphasized the vulnerable position of a person under detention or arrest and the corresponding duties placed on the police to mitigate that vulnerability:
[22] “Detention”…identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.
[38] S.10(b) is engaged from the moment an individual is detained. [20] Once an individual is detained, a distinct set of duties under s.10(b) is imposed on the police, namely [21]:
(1) The informational obligation: the person detained must be informed of his or her right to retain and instruct counsel without delay and of the availability of legal aid and duty counsel; (2) The implementational obligation: if the person detained indicates a desire to consult with counsel, the police must provide a reasonable opportunity to exercise that right, except in limited circumstances; and (3) The holding off obligation: the police must refrain from attempting to elicit evidence from the person detained until he or she has had a reasonable opportunity to consult with counsel, except in limited circumstances.
[39] While the first step is to determine whether a detention crystallized, that determination is not always straightforward. “…Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter.” [22]
[40] Detention within the meaning of the Charter is defined as “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state.” [23]
[41] Physical restraint is generally easy to define and identify. It is the concept of psychological restraint that is more nuanced.
[42] In Le [24], the Supreme Court of Canada identified psychological detention as arising when an individual is legally required to comply with a police demand, or where a reasonable person in the individual’s position would conclude from the police conduct that there was no choice but to comply and that the individual was not free to leave.
[43] The test is objective and considers the entirety of the circumstances, including the following factors enumerated by the Supreme Court of Canada in Grant [25]:
(a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
[44] When P.C. Lewis initially approached Mr. Maguire and Mr. Steinhausen and asked who was driving, Mr. Maguire was not physically restrained, nor would he have been subject to legal sanction for walking away or ignoring P.C. Lewis, which is essentially what Mr. Maguire did.
[45] An objective assessment of the circumstances leads me to conclude that Mr. Maguire was not detained when P.C. Lewis initially approached and asked who was driving. However, the situation quickly changed.
[46] When neither Mr. Maguire nor Mr. Steinhausen responded to P.C. Lewis’ question about who was driving, P.C. Lewis directed both males to, “Stay right here, ok. Don’t move.” In my view, the detention of Mr. Maguire crystallized at that moment.
[47] The Crown argues that Mr. Maguire’s circumstances are akin to the accused in Suberu [17], where no detention was found to exist. I disagree.
[48] In Suberu [17], a police officer, Cst. Roughley, responded to a call about a male person attempting to use a stolen credit card at an LCBO. En route, Cst. Roughley was advised over the radio that there were two male suspects. Upon arrival, Cst. Roughley observed another police officer talking to a store employee and the suspect (Erhirie) at the cash register. Mr. Suberu walked past Cst. Roughley while muttering “he did this, not me, so I guess I can go.” Cst. Roughley followed Mr. Suberu as he walked outside and told him, “Wait a minute. I need to talk to you before you go anywhere”, while Mr. Suberu was getting into the driver’s seat of his vehicle.
[49] While they were engaged in a brief conversation, Cst. Roughley received further information over the radio that positively incriminated Mr. Suberu. Accordingly, he arrested Mr. Suberu.
[50] In determining that Mr. Suberu was not detained for the purposes of the Charter prior to his arrest, the Supreme Court of Canada relied on the following factors [26]:
- Mr. Suberu was not physically restrained prior to arrest.
- Mr. Suberu would not have been subject to legal sanction for refusal to comply with Cst. Roughley’s request to “wait.”
- The words spoken by Cst. Roughley could be interpreted as a request, rather than an order.
- The initial interaction between Cst. Roughley and Mr. Suberu amounted to preliminary investigative questioning falling short of detention. Cst. Roughley engaged Mr. Suberu in an attempt to orient himself to the situation as it was unfolding in front of him.
- The introductory and preliminary questions were merely to determine if there was any involvement by Mr. Suberu, as up until that point Mr. Erhirie was the only person that appeared to be involved.
- Cst. Roughley’s conduct indicated that he was engaged in a general inquiry and had not yet zeroed in on Mr. Suberu as someone whose movements must be controlled.
[51] Turning to the facts of this case, I have concluded that the words and actions of P.C. Lewis amounted to an investigative detention of Mr. Maguire. In coming to this conclusion, I have considered the following factors:
- P.C. Lewis arrived on scene armed with information provided by the 9-1-1 caller that two males were present in the car that crashed and that the driver was likely intoxicated.
- While it was Mr. Steinhausen who matched the description of the driver provided by the 9-1-1 caller, it would have been obvious to P.C. Lewis that obtaining independent evidence of who was driving would only strengthen the police case [27]. Further, neither Mr. Maguire nor Mr. Steinhausen would have been aware of what information, if any, had previously been provided to the responding officers.
- When P.C. Lewis arrived on scene, he observed Mr. Maguire and Mr. Steinhausen standing by the driver side of the crashed vehicle.
- Upon approaching the males, P.C. Lewis could immediately detect that they were both extremely intoxicated.
- P.C. Lewis’ words, “Stay right here, ok. Don’t move,” only admit of one possible interpretation: they were a direction to both males to stay where they were while P.C. Lewis continued his investigation.
- P.C. Lewis was in full police uniform, carrying standard police equipment, including, presumably, a firearm.
- P.C. Lewis’ demand could not be construed as general, preliminary or exploratory. It was a focused investigation into a particular offence and into the particular question of who was driving. In that sense, P.C. Lewis was specifically singling out Mr. Maguire and Mr. Steinhausen while he attempted to conclude that focused investigation.
- Within one minute of P.C. Lewis’ demand, another fully uniformed and equipped police officer, P.C. Dennys, was on scene, standing in close proximity to Mr. Maguire and Mr. Steinhausen.
- The response by Mr. Maguire and Mr. Steinhausen to P.C. Lewis’ demand is telling regarding whether they were detained: both stood frozen in place for 45 seconds and then moved a few feet away to where P.C. Dennys was, where they remained until Mr. Steinhausen was arrested two minutes and eighteen seconds later. While three minutes was clearly not an eternity, it could hardly be described as fleeting.
- Even though P.C. Lewis walked a few feet away to attempt to speak to the female bystanders and the 9-1-1 caller, he was at all times within close proximity of Mr. Maguire.
- P.C. Dennys testified that, had he known that P.C. Lewis had directed Mr. Maguire not to move prior to his arrival, he would have provided him with rights to counsel before asking him any questions.
- The personal characteristics of Mr. Maguire and Mr. Steinhausen included that they were young adult males. Their extreme intoxication rendered them with a diminished level of sophistication.
[52] I conclude that Mr. Maguire was detained when P.C. Lewis ordered him to, “Stay right here, ok. Don’t move.” At that point, Mr. Maguire’s liberty was clearly constrained and he was in need of the Charter protections associated with detention.
[53] From the ICC footage, it is clear that P.C. Lewis did not inform Mr. Maguire of the reason for the detention in breach of his s.10(a) Charter right. Nor did P.C. Lewis advise Mr. Maguire without delay of his right to retain and instruct counsel, a breach of his s.10(b) Charter right.
[54] The Crown referred to Orbanski [18] in his submissions, presumably as a justification for the suspension of Mr. Maguire’s s.10(b) right in the circumstances of this case. In my view, Orbanski [18] does not assist the Crown.
[55] In the companion cases of Orbanski and Elias [18] which were heard together, the Supreme Court of Canada considered whether the suspension of s.10(b) rights were justified under s.1 of the Charter while screening measures authorized by provincial highway traffic act legislation were being carried out. The Supreme Court of Canada affirmed the validity of such screening measures “for the limited purpose of assessing the sobriety of the driver at the roadside” and found them to be “incompatible with the exercise of the right to counsel by the detained motorist at the roadside.” [28]
[56] In Orbanski [18], the police observed Mr. Orbanski driving badly and initiated a motor vehicle stop. Upon observing indicia of impairment, the police asked him to step out of his vehicle and perform sobriety tests. Prior to this happening, the police did not comply with s.10(b) of the Charter.
[57] In Elias [18], the police stopped Mr. Elias during a random motor vehicle stop. Upon observing indicia of impairment, the police brought Mr. Elias to their cruiser to perform an Approved Screening Device test. Prior to this happening, the police did not comply with s.10(b) of the Charter.
[58] In both instances, the police relied on provincial legislation that permitted them to perform roadside screening.
[59] In determining that the provincial screening measures were incompatible with s.10((b) of the Charter, the Supreme Court of Canada referred to four factors [29]:
(1) For good reason, driving is a licensed and highly regulated activity. The importance of regulation and control of vehicles on the highway is heightened because it is a highly prevalent activity that is fraught with inherent dangers. (2) There are unique challenges involved with drinking and driving as it is not easy to discern the line between permissible and impermissible amount of alcohol in the driver. The screening required to discern that line can only be achieved through field tests. (3) A driver who is impaired poses an ongoing danger on the highway. The focus provincial legislation is to screen drivers at the road stop and not at the scene of an accident. (4) Provincial legislation provides a mechanism for combatting the continuing danger presented by the drinking driver, even if the driver may not ultimately be found to have reached a criminal level of impairment.
[60] With respect to the screening steps carried out in Orbanski and Elias [18], the Supreme Court of Canada found that “[t]he questions were relevant, involved minimal intrusion and did not go beyond what was necessary for the officer to carry out his duty to control traffic on the public roads in order to protect life and property.” [30]
[61] Orbanski [18] does not assist the Crown in the present case. Roadside screening aimed at nipping an ongoing danger in the bud is starkly different than post-accident questioning in order to ascertain who should be arrested.
[62] When P.C. Lewis arrived on scene, the motor vehicle had already impacted a tree and had come to rest on the middle of Mr. Maguire’s front lawn. The vehicle had suffered considerable damage. Mr. Maguire and Mr. Steinhausen were standing outside of the driver door of the crashed vehicle and appeared as though they were attending to a damaged tire.
[63] There was no realistic, ongoing danger of drinking and driving. The questions asked by P.C. Lewis were not aimed at screening for sobriety as a matter of public safety. Rather, his questions were aimed at obtaining an incriminating statement to furnish him with reasonable grounds to arrest either one of the two men for impaired operation.
[64] As outlined above, I have concluded that P.C. Lewis’ direction to Mr. Maguire not to move amounted to an investigative detention. Accordingly, P.C. Lewis was required to provide Mr. Maguire with his right to counsel without delay. “Because he now faced significant legal jeopardy and had passed into the effective control of the police, [Mr. Maguire] was in “immediate need of legal advice”: R. v. Brydges, [1990] 1 S.C.R. 190, at p. 206.” [31]
Utterances to P.C. Dennys at the Scene
[65] Having determined that P.C. Lewis’ interaction with Mr. Maguire violated Mr. Maguire’s ss. 10(a) and 10(b) rights, I will address the utterances made on scene to P.C. Dennys.
[66] When P.C. Dennys arrived on scene, he was provided with an update by P.C. Lewis. P.C. Dennys then provided Mr. Maguire and Mr. Steinhausen with a general caution, advising that he was investigating an impaired operation offence and advising them that they did not have to answer his questions. He advised the males that he was trying to figure out what was going on. Neither Mr. Maguire nor Mr. Steinhausen volunteered any information.
[67] P.C. Dennys and P.C. Lewis decided that there were reasonable grounds to arrest Mr. Steinhausen. P.C. Lewis arrested and handcuffed Mr. Steinhausen and walked him to the front of his cruiser to perform a search incident to arrest.
[68] While this was happening, P.C. Dennys’ attention was turned toward P.C. Lewis in case he required assistance during the arrest of Mr. Steinhausen.
[69] Mr. Maguire began yelling over P.C. Dennys’ shoulder that “you have the wrong guy”, “that guy wasn’t driving” and “he’s not the driver.” P.C. Dennys turned around and cautioned Mr. Maguire by saying, “you don’t have to tell me anything, but who was driving?”
[70] Mr. Maguire began to cry and said, “I fucked up. I was driving.”
[71] The defence argues that Mr. Maguire was still detained at the time of this utterance. I disagree.
[72] As discussed above, the test is objective and takes into account the entirety of the circumstances, including the factors enumerated by the Supreme Court of Canada in Grant [19].
[73] In this case, there was no subjective evidence by Mr. Maguire regarding whether or not he felt detained at that time.
[74] Looked at objectively from the viewpoint of a reasonable person in Mr. Maguire’s situation, it appears obvious that he was no longer under investigative detention.
[75] P.C. Dennys had made it clear that the police were there to investigate a drinking and driving offence related to the motor vehicle crashed on the front lawn. Unlike many other offences, this was an offence for which there could only be one perpetrator. In other words, there could only be one driver.
[76] As soon as P.C. Lewis placed Mr. Steinhausen under arrest, any reasonable person in Mr. Maguire’s position would have known that he was no longer the subject of any police interest. Accordingly, he would have known that he was free to leave. Like the three female bystanders who the police had spoken to, Mr. Maguire suddenly became just another bystander.
[77] When Mr. Maguire advised P.C. Dennys that “you have the wrong guy”, “that guy wasn’t driving” and “he’s not the driver,” Mr. Maguire was not under any form of detention.
[78] Although Mr. Maguire was not detained, P.C. Dennys decided to caution him, saying “you don’t have to tell me anything, but who was driving?” in case Mr. Maguire was about to say something incriminating.
[79] Mr. Maguire’s confession, “I fucked up. I was driving,” was provided when he was not under detention. The only apparent compulsion he felt to provide the statement was his own conscience, not the words or actions of the police.
[80] Notwithstanding the fact that the utterance was made while Mr. Maguire was no longer detained, I must consider if the utterance was sufficiently connected to the prior ss.10(a) and (b) Charter violations.
The “Obtained in a Manner” Threshold Requirement
[81] Section 24(2) of the Charter provides that:
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 the 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.
[82] In the recent Supreme Court of Canada decision in Tim [32], Justice Jamal reviewed the meaning of “obtained in a manner”:
[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):
- 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 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Mack, 2014 SCC 58, [014] 3 S.C.R. 3, at para. 38).
- 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).
- “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).
- 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 SCC 54, [2014] 2 S.C.R. 689, at para. 83; Strachan, at pp. 1000-1002).
- 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 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.
[83] The suggestion that Mr. Steinhausen’s arrest signalled the end of Mr. Maguire’s detention, thus breaking the causal link between the earlier ss.10(a) and (b) violations and Mr. Maguire’s utterances, appears to be analogous with the Crown’s argument in Tim [32] that bullets falling from Mr. Tim’s pants was “a significant intervening factor.” [33]
[84] In my view, given the generous approach to the “obtained in a manner” threshold requirement, there is a sufficient temporal and contextual link between the ss. 10(a) and (b) violations and Mr. Maguire’s utterances to require consideration under the three lines of inquiry in R. v. Grant [19].
[85] The utterances were closely connected temporally to the violations. Between P.C. Lewis ordering Mr. Maguire not to move and Mr. Maguire’s inculpatory utterances, approximately four minutes and thirty seconds elapsed.
[86] The utterances were closely connected contextually to the violations, as they flowed directly out of the same encounter with the police. The connection between P.C. Lewis depriving Mr. Maguire of a lifeline to counsel and Mr. Maguire’s decision to incriminate himself cannot be said to be remote or tenuous.
Grant Analysis
[87] In Grant [19], the Supreme Court of Canada provided a revised approach to s. 24(2) of the Charter that “looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.” [34]
[88] The focus of s.24(2) is also prospective, as well as societal. While the finding of a Charter violation signals that harm has already been done to the administration of justice, s.24(2) seeks to ensure that admission of non-Charter compliant evidence does not do further harm to the repute of the justice system. S.24(2) does not aim to punish the police or compensate the aggrieved accused; rather, it seeks to address systemic concerns by considering the broad impact on the repute of the justice system if the Charter non-compliant evidence were to be admitted. [35]
[89] In deciding whether Mr. Maguire’s utterances at the scene should be excluded, I must consider and balance the three lines of inquiry identified in Grant [19] at para. 71: (a) the seriousness of the Charter-infringing state conduct; (b) the impact of the breach on the Charter-protected interests of the accused; and (c) society’s interest in the adjudication of the case on its merits.
Seriousness of Charter-Infringing State Conduct
[90] I found P.C. Lewis’s evidence that it was not his intention to detain Mr. Maguire to be troubling, in light of his clear directions to, “Stay right here, ok. Don’t move.” It was equally troubling that P.C. Lewis testified that he did not provide Mr. Maguire with his rights to counsel because he was not under arrest.
[91] Suberu [17] was released in 2009, approximately thirteen years prior to P.C. Lewis’ interaction with Mr. Maguire. There is no legal uncertainty: “…from the moment an individual is detained, s.10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay.”” [36] P.C. Lewis’ ignorance of Charter requirements, alone, increases the seriousness of state conduct in this case.
[92] While I do not find any bad faith on the part of P.C. Lewis, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.” [37]
[93] I am satisfied that P.C. Lewis’ failure to comply with ss.10(a) and (b) at the commencement of Mr. Maguire’s investigative detention was serious. However, the seriousness of the breach is attenuated by its brevity and by P.C. Lewis’ subsequent actions. After directing Mr. Maguire to stay put, P.C. Lewis walked away and attempted to obtain information from the female bystanders and from the 9-1-1 caller, without seeking to obtain any information from Mr. Maguire. Approximately three minutes elapsed between the beginning of the investigative detention and Mr. Steinhausen’s arrest – an intervening event that effectively terminated Mr. Maguire’s investigative detention.
[94] I find that P.C. Lewis’ command to “Stay right here, ok. Don’t move” was also directed at Mr. Steinhausen, who was also not provided with his ss.10(a) and (b) rights.
[95] While P.C. Lewis’ violation of Mr. Maguire’s s.10 Charter rights is temporally and contextually connected to Mr. Maguire’s utterances to P.C. Dennys, I do not accept that the two events were causally connected.
[96] The reality is that P.C. Lewis had every reason to focus on Mr. Steinhausen and very little reason to pay attention to Mr. Maguire. The only information P.C. Lewis had when he arrived on scene was that the driver was young, male, wearing a green hoodie and intoxicated. Mr. Steinhausen matched every descriptor, while Mr. Maguire did not. Accordingly, I consider P.C. Lewis’ conduct with respect to Mr. Steinhausen to be more serious than his conduct relating to Mr. Maguire. Mr. Steinhausen was targeted while Mr. Maguire happened to be present.
[97] In Grant [19], s.24(2) was specifically discussed with respect to statements made by an accused:
[93] The first inquiry focusses on whether admission of the evidence would harm the repute of justice by associating the courts with illegal police conduct. Police conduct in obtaining statements has long been strongly constrained. The preservation of public confidence in the justice system requires that the police adhere to the Charter in obtaining statements from a detained accused.
[94] The negative impact on the justice system of admitting evidence obtained through police misconduct varies with the seriousness of the violation. The impression that courts condone serious police misconduct is more harmful to the repute of the justice system than the acceptance of minor or inadvertent slips.
[98] In my view, the first line of inquiry tips the scales slightly toward the exclusion of Mr. Maguire’s utterances on scene. The failure by P.C. Lewis to comply with s.10 of the Charter was inexcusable. However, it was of brief duration, was not followed by any attempt to extract information from him and, for reasons expanded upon below, was not the cause of Mr. Maguire’s decision to incriminate himself.
Impact on the Charter-Protected Interests of the Accused
[99] This line of inquiry requires me to evaluate the extent to which the violation actually undermined the interests protected by the right infringed. In this case, the interests protected were Mr. Maguire’s right to silence and his right to choose whether to speak to the police.
[100] P.C. Lewis’s failure to provide Mr. Maguire with his ss.10(a) and (b) rights did not directly lead to any evidence. P.C. Lewis asked both Mr. Maguire and Mr. Steinhausen who was driving before he detained them for investigative purposes. Neither Mr. Maguire nor Mr. Steinhausen provided P.C. Lewis with a response.
[101] During the three minutes that they were detained, P.C. Lewis did not ask them any more questions. Nor did Mr. Maguire or Mr. Steinhausen volunteer any information. In fact, P.C. Lewis left them while he interacted with the female bystanders, the 9-1-1 caller and P.C. Dennys.
[102] It was only after Mr. Steinhausen was arrested, clearly signalling the end of Mr. Maguire’s detention, that Mr. Maguire made a decision to do the right thing. In other words, it was not P.C. Lewis’ Charter violation that compelled Mr. Maguire to speak up. It was Mr. Maguire’s conscience.
[103] While noting that the second line of inquiry tends to militate in favour of excluding statements when s.10(b) is violated [38], the Supreme Court of Canada in Grant [19] also noted the following:
[96] This said, particular circumstances may attenuate the impact of a Charter breach on the protected interests of the accused from whom a statement is obtained in breach of the Charter. For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s.10(b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach (see Harper, [1994] 3 S.C.R. 343), the impact of the breach on the accused’s protected interest in informed choice may be less. Absent such circumstances, the analysis under this line of inquiry supports the general exclusion of statements taken in breach of the Charter.
[104] While Mr. Steinhausen was being arrested, which coincided with the end of Mr. Maguire’s detention, Mr. Maguire insisted to P.C. Dennys that Mr. Steinhausen was not the driver. P.C. Dennys responded by clearly informing Mr. Maguire that he did not have to say anything.
[105] I accept that P.C. Dennys thought there was a possibility that Mr. Maguire might self-incriminate himself or that Mr. Maguire might have claimed the driver was a third party who had departed the scene. Mr. Maguire chose the former, in an apparent attempt to do the right thing. P.C. Dennys testified that Mr. Maguire began to cry, said that he “fucked up” and admitted to having been the driver. It is apparent that what was compelling Mr. Maguire to speak up was his conscience.
[106] Mr. Maguire’s statement to the police was spontaneous. As contemplated in the passage above from Grant [19], the spontaneous statement followed the Charter breach in the sense that it came afterward chronologically, not in the sense of causation.
[107] In my view, given the unique circumstances in this case, this is one of the rare instances where the second line of inquiry favours admission of the utterances, notwithstanding a prior s.10 Charter breach.
Society’s Interest in an Adjudication on the Merits
[108] Mr. Maguire is charged with serious offences involving driving while impaired with a blood alcohol concentration over three times the legal limit. Such offences are so prevalent and considered sufficiently serious that Parliament has established mandatory minimum sentences upon conviction. There is, therefore, clearly a significant societal interest in this case being tried on it merits.
[109] Apart from the blood alcohol concentration results, Mr. Maguire’s utterances form the entirety of the Crown’s case. The utterances are the only evidence of who was actually driving the car. Exclusion of the utterances will effectively terminate the Crown’s case.
[110] This is not a case where the police purposely violated Mr. Maguire’s Charter right and justified it because of the seriousness of the offence. P.C. Lewis made an error in an otherwise Charter-compliant investigation that was rapidly evolving.
[111] In Grant [19], the Supreme Court noted that, “Detained by the police and without a lawyer, a suspect may make statements that are based more on a misconceived idea of how to get out of his or her predicament than on the truth.” [39]
[112] On the facts of this case, Mr. Maguire was not detained at the time that he made the statement. Nor was his statement motivated by a misconceived idea of how to get out of his predicament.
[113] In my view, the third line of inquiry also favours admission of Mr. Maguire’s utterances at the scene.
Balancing of the Three Lines of Inquiry
[114] Having balanced the three lines of inquiry, I have concluded that exclusion of the utterances made by Mr. Maguire at the scene would narrowly bring the administration of justice into disrepute more than would their admission. Subject to the issue of voluntariness, the utterances are admissible.
Utterances in P.C. Dennys’ Police Car
[115] The utterances made by Mr. Maguire in P.C. Dennys’ police car are set out above.
“Obtained in a Manner” Threshold Requirement
[116] As with the utterances made by Mr. Maguire at the scene, I find that the utterances made in P.C. Dennys’ police car were sufficiently connected temporally and contextually to P.C. Lewis’ breach of Mr. Maguire’s ss.10(a) and (b) Charter rights to pass the “obtained in a manner” threshold.
Grant Analysis
[117] For the same reasons regarding the statements given at the scene, I conclude that the three lines of inquiry favour admission of all of the statements made in P.C. Dennys’ police car.
Utterances at the Police Station
[118] The incriminating statements made by Mr. Maguire to P.C. Skanes at the police station are set out above.
“Obtained in a Manner”
[119] As with the previous utterances, I find that the statements made to P.C. Skanes were sufficiently temporally and contextually connected to P.C. Lewis’ breach of Mr. Maguire’s ss.10(a) and (b) Charter rights to pass the “obtained in a manner” threshold.
Grant Analysis
[120] For the same reasons regarding the statements given at the scene and in P.C. Dennys’ police car, I conclude that the three lines of inquiry favour admission of the utterances made to P.C. Skanes.
Voluntariness
[121] The remaining issue to be resolved is whether the Crown has discharged its onus of proving beyond a reasonable doubt that all of Mr. Maguire’s statements were voluntary.
[122] The confessions rule in Canada holds that a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness [40]. As a result, the Crown must prove the voluntariness of a statement beyond a reasonable doubt.
[123] In Oickle [40], the Supreme Court of Canada explained that:
[69] …Voluntariness is the touchstone of the confessions rule. Whether the concern s threats or promises, the lack of an operating mind, or police trickery that unfairly denies the accused’s right to silence, this Court’s jurisprudence has consistently protected the accused from having involuntary confessions introduced into evidence. If a confession is involuntary for any of these reasons, it is inadmissible.
[124] Whereas police oppression and inducement primarily raise concerns regarding reliability of the statement, the presence of threats or promises, absence of an operating mind and police trickery raise concerns regarding fairness, as they may act to unfairly deny the accused’s right to silence. [41]
[125] In the recent decision of Tessier [41], the Supreme Court of Canada remarked that the presence of a police caution generally speaks to fairness, rather than reliability [42].
[126] Accordingly, while a caution is not determinative of voluntariness it is a significant factor to be considered. Indeed, in Tessier [41] the Supreme Court of Canada noted:
[8] As part of its persuasive burden to prove voluntariness beyond a reasonable doubt at trial, the Crown must, in my view, show that the absence of a caution did not undermine the suspect’s free choice to speak to the police as part of the contextual examination of voluntariness…
[9] …I would recognize that the absence of a caution for a suspect constitutes prima facie evidence that they were unfairly denied their choice to speak to the police…
[11] As Charron J. observed in Singh on the question of voluntariness, “the focus is on the conduct of the police and its effect on the suspect’s ability to exercise his or her free will” (para. 36). If the Crown cannot prove that the absence of a caution had no impact on voluntariness, the prima facie evidence of involuntariness raised by the absence of a caution will lead to a conclusion of inadmissibility. The absence of a caution weighs heavily because, where unaddressed, it represents prima facie evidence that the suspect has been unfairly denied their choice to speak to the police and that, as a consequence, the statement cannot be considered voluntary…”
[127] As will be elaborated upon below, Mr. Maguire was cautioned a total of ten times. No threats, inducements, oppressive conditions or police trickery were employed by the police. This was conceded by the defence, who indicated that police conduct was not his basis for challenging voluntariness. Rather, he asserted that the Crown had not established that Mr. Maguire had an “operating mind” at the time he made the statements.
[128] In this regard, the defence points to Mr. Maguire’s significant indicia of alcohol intoxication and his blood alcohol readings of 270 and 280.
[129] The defence further suggests that Mr. Maguire’s current professed inability to recall much about the night in question is a strong indicator that he lacked an “operating mind” at the time. I disagree.
[130] In Whittle [43], the Supreme Court of Canada set out the parameters of the “operating mind” test in the following terms:
[49] The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.
[131] The inquiry does not involve a consideration of whether Mr. Maguire was capable of making a good choice or one that was in his best interest. It merely considers if Mr. Maguire had the limited degree of cognitive ability to understand what he was saying and to understand that his statements may be used in proceedings against him. [44]
[132] While Kasirer J noted in Tessier [41] that, “The default assumption in the cases is that, absent a cognitive impairment, an operating mind exists,” [45] this does not displace the Crown’s burden of establishing voluntariness beyond a reasonable doubt.
[133] The following considerations, among others, convince me that the Whittle [43] test has been satisfied in this case:
(i) P.C. Lewis first approached Mr. Maguire and Mr. Steinhausen and asked them who was driving (prior to any investigative detention). Both men made the decision not to provide him with any information. (ii) P.C. Dennys arrived on scene and cautioned Mr. Maguire and Mr. Steinhausen that he was conducting an impaired investigation but they did not have to answer his questions (Caution no. 1). Both men made the decision not to provide him with any information. (iii) While P.C. Lewis was arresting Mr. Steinhausen, Mr. Maguire made the decision to inform P.C. Dennys that, “you have the wrong guy”, “that guy wasn’t driving” and “he’s not the driver.” (iv) P.C. Lewis immediately advised Mr. Maguire, “you don’t have to tell me anything, but who was driving?” (Caution no. 2). (v) At that point, Mr. Maguire made the decision to advise P.C. Dennys, “I fucked up. I was driving.” Of note, in Whittle [43], Sopinka J held that, “Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind, unless, in combination with conduct of a person in authority, a statement is found to be involuntary.” [46] (vi) P.C. Dennys testified that he immediately placed Mr. Maguire under arrest for impaired operation, walked him to his police car and read him his rights to counsel. When P.C. Dennys asked him if he understood, Mr. Maguire responded, “yup.” When P.C. Dennys asked if he wished to call a lawyer now, Mr. Maguire responded, “not right now.” The plain interpretation of this exchange is that Mr. Maguire was capable of understanding what was being explained to him and what he was being asked and was able to respond appropriately. (vii) P.C. Dennys then read him a formal primary caution from his notebook (Caution no. 3) and asked if he understood. Mr. Maguire responded, “yes.” (viii) P.C. Dennys then read Mr. Maguire a breath demand and asked if he understood. When Mr. Maguire responded, “yeah, kind of,” P.C. Dennys provided a further explanation, to which Mr. Maguire then responded that he understood. (ix) During transport to the police station in P.C. Dennys’ vehicle, Mr. Maguire began by making comments that he was “fucked for life” as this would go on his record, a clear indication that Mr. Maguire appreciated the circumstances he found himself in. (x) Mr. Maguire then stated, “That’s the first time I do that shit. You know what I mean?” Again, this was a clear indication that Mr. Maguire appreciated what he was saying and the circumstances he found himself in. (xi) P.C. Dennys immediately interrupted and reminded Mr. Maguire that he was on camera and that he did not want Mr. Maguire saying anything that could incriminate himself (Caution no. 4). Mr. Maguire’s response was, “Yeah, I don’t care. It’s all good.” At this point there can be no doubt that Mr. Maguire was aware that his words were being recorded and could be used against him. In his own words, he did not care. (xii) Throughout the car ride, Mr. Maguire and P.C. Dennys engaged in small talk on a variety of topics, demonstrating that Mr. Maguire was at all times oriented and appropriately responsive. Among the topics discussed were: o Mr. Maguire residing with his grandparents in Bobcaygeon but coming down to work with a friend on the weekend; o Mr. Maguire’s work typically entailing foundations and footings; o Mr. Maguire not wanting to be put in the cells with a particular guy; o Mt. Maguire not being able to see his nana the next day; o Mr. Maguire asking what time he would be released because he has to work tomorrow; o Mr. Maguire asking how he is going to get home upon release; o Mr. Maguire commenting on how dirty the back of the police car was; o Mr. Maguire commenting on how fast P.C. Dennys was driving; o Mr. Maguire asking if P.C. Dennys puts his lights on to go though red lights; o Mr. Maguire inquiring if he could smoke in the police car; o Mr. Maguire asking how much longer until they arrive at the station; o Mr. Maguire talking about Connor Steinhausen; o Mr. Maguire talking about the Blue Jays; etc. (xiii) At one point after caution no. 4, Mr. Maguire stated, “I don’t fucking do this shit. I know I fucked up. I know I shouldn’t have fucking drove home. It’s my own fuck up. I usually walk everywhere I fucking go when I know I’m going to fucking drink. But my car was already fucking there and I fucked up. Like I know I fucked up. Like definite. One hundred percent. There’s no way I didn’t fuck up.” (xiv) At no point were Mr. Maguire’s incriminating statements prompted by questions asked by P.C. Dennys. Rather, Mr. Maguire chose to make the incriminating statements despite P.C. Dennys’ repeated cautions to him. (xv) During the booking process at the station, Staff Sgt. Gladding asked if Mr. Maguire understood that everything was being audio and video recorded, to which Mr. Maguire nodded his head in the affirmative. When asked if he understood the reason why he was there, again Mr. Maguire nodded his head in the affirmative. (xvi) P.C. Dennys again read Mr. Maguire his rights to counsel from his notebook and asked if he understood. Mr. Maguire nodded his head in the affirmative. (xvii) P.C. Dennys reminded Mr. Maguire that Mr. Steinhausen had provided a number for a lawyer. He then asked Mr. Maguire if he wanted to contact that lawyer, or duty counsel, or “still no?” Mr. Maguire shook his head no and responded, “it is what it is.” (xviii) P.C. Dennys again read Mr. Maguire a primary caution from his notebook (Caution no. 5) and asked if he understood. Mr. Maguire responded by nodding his head in the affirmative. (xix) P.C. Dennys again read Mr. Maguire the breath demand from his notebook and asked if he understood. Mr. Maguire responded, “Yup.” (xx) The officers asked Mr. Maguire to put his hands against the wall so they could search him. They also asked him to take off his sweater, boots and socks. Mr. Maguire had no difficulty complying with those directions. (xxi) When Mr. Maguire was moved to the breath room, P.C. Skanes explained the breath test process and reminded Mr. Maguire that everything was being video and audio recorded. Mr. Maguire indicated that he understood, adding that in court they could come back and say, “you said this” (Caution no. 6). (xxii) P.C. Skanes asked if Mr. Maguire still did not wish a lawyer. Mr. Maguire responded that he did not have a lawyer, “but if you guys want me to…” P.C. Skanes repeated that it was Mr. Maguire’s decision to make. P.C. Skanes advised that since Mr. Maguire did not have his own lawyer, he could call the lawyer that Mr. Steinhausen had suggested, or he could call someone else he knows for a lawyer’s name, or her could call free duty counsel for Mr. Maguire. Mr. Maguire responded that he did not wish to speak to a lawyer and just wanted to proceed with the breath test. He stated, “I got myself into this situation, so I’ll just deal with it.” (xxiii) Mr. Maguire asked if he would get a record, to which P.C. Skanes responded that he would not get a record until he is found guilty. Mr. Maguire was clearly aware of the situation he was in. (xxiv) Mr. Maguire then began saying that he messed up by driving and that he usually walks. P.C. Skanes interrupted him, put his finger to his lips and said “shhh”. P.C. Skanes then read the breath demand and asked if Mr. Maguire understood. Mr. Maguire responded, “why not.” (xxv) P.C. Skanes then read the primary caution and explained that he had told Mr. Maguire to be quiet because he had the right to remain silent: “You can just sit there and do the breath test and that’s it. If you do say something from this point on, I can write it down on my piece of paper and that is what we call evidence and that evidence could be administered in court. Do you understand that?” (Caution no. 7). Mr. Maguire replied, “yeah.” (xxvi) P.C. Skanes then read the secondary caution to Mr. Maguire: “If you’ve spoken to a police officer or to anyone else about this case and they’ve told you you have to answer questions, you don’t have to answer questions. Do you understand that?” (Caution no. 8). Mr. Maguire responded by nodding his head in the affirmative. (xxvii) P.C. Skanes explained that he was going to ask questions but that Mr. Maguire did not need to answer (Caution no. 9). Mr. Maguire indicated that he understood. (xxviii) Mr. Maguire was able to follow P.C. Skanes’ instructions on how to provide the first breath sample. When P.C. Skanes advised Mr. Maguire to blow into the device like it’s a tire and said, “you look like a mechanic guy,” Mr. Maguire corrected him and said, “don’t make assumptions.” (xxix) While waiting seventeen minutes between the breath samples, P.C. Skanes again explained to Mr. Maguire that he would be asking him some questions but that Mr. Maguire did not need to answer any of them. P.C. Skanes specifically stated, “It’s not a bad thing if you decide you don’t want to answer my questions. It’s absolutely not a bad thing at all. You don’t have to say a thing. It won’t be held against you or anything like that” (Caution no. 10). (xxx) In response to several questions by P.C. Skanes pertaining to whether Mr. Maguire had diabetes, injuries or physical handicaps, or whether he wore glasses or contact lenses, Mr. Maguire made the decision to stay silent. (xxxi) However, when P.C. Skanes asked, “were you driving home, or where were you driving to?” Mr. Maguire chose to respond, “home.” When asked where he was coming from, Mr. Maguire chose to respond, “the Wing House.” In response to P.C. Skanes’ questions, Mr. Maguire chose to advise that he had had two draughts of beer at the Wing House and had been there from about 8:30 for about an hour or an hour and a half. (xxxii) When the seventeen minutes were up, Mr. Maguire was again able to follow instructions to provide a second breath sample.
[134] Although visibly and audibly intoxicated, Mr. Maguire remained conscious and coherent throughout, was responsive to all questions asked of him and engaged in logical conversation. He understood the numerous cautions given to him, was aware that he did not have to provide any information and was aware that if he did it could be used as evidence against him.
[135] The testimony of P.C. Dennys, Staff Sgt Gladding and P.C. Skanes, as well as the video evidence from P.C. Dennys’ police car and from within the police station, combine to remove any reasonable doubt that Mr. Maguire’s statements were the product of an “operating mind.”
[136] The Crown has discharged its burden of proving the voluntariness of all of Mr. Maguire’s statements beyond a reasonable doubt.
Disposition
[137] The defence has established violations of s.10 of the Charter during the initial investigative detention, but the accused exercised his right to silence and did not answer questions. His later spontaneous utterance after he was no longer detained is not excluded under s.24(2) of the Charter. Nor are the utterances made in the police car and at the police station.
[138] P.C. Dennys was entitled to rely upon the accused’s utterance in forming grounds for arrest. The arrest and subsequent breath tests were based on reasonable grounds and were not contrary to ss. 8 and 9 of the Charter.
[139] All utterances and the results of the breath tests are, therefore, admissible at trial.
Released: 19 October 2023 Signed: Justice R.M. Robinson
[1] Exhibit 4 [2] Exhibit 2A [3] Exhibit 2B [4] At the 00:00 mark of Exhibit 4. [5] At the 00:28 mark of Exhibit 4. [6] At the 00:30 mark of Exhibit 4. [7] At the 00:51 mark of Exhibit 4. [8] At the 00:59 mark of Exhibit 4. [9] At the 1:11 mark of Exhibit 4. [10] At the 1:13 mark of Exhibit 4. [11] At the 1:56 mark of Exhibit 4. [12] At the 2:07 mark of Exhibit 4. [13] I do not accept P.C. Lewis’ evidence that he provided a caution to the males at this point. He testified that his notebook indicated that he cautioned the males when he originally arrived on scene before asking them any questions; but on watching and listening to Exhibit 4 he realized that he never did so, contrary to what is recorded in his notebook. [14] At the 4:14 mark of Exhibit 4. [15] At the 5:46 mark of Exhibit 4. [16] At the 00:29 mark of Exhibits 2A and 2B. [17]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html#par21 R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, at para 21. [18]: https://www.canlii.org/en/ca/scc/doc/2005/2005scc37/2005scc37.html#par23 R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37, at paras 23 – 61. [19]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. [20]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html#par2 Suberu, supra, at para 2. [21]: https://www.canlii.org/en/ca/scc/doc/1994/1994canlii64/1994canlii64.html#par17 R. v. Bartle, [1994] S.C.J. No. 74, at para 17. [22]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html#par3 Suberu, supra, at para 3. [23]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html#par21 Suberu, supra, at para 21. [24]: https://www.canlii.org/en/ca/scc/doc/2019/2019scc34/2019scc34.html#par24 R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34, at paras 24 – 27. [25]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html#par44 Grant, supra, at para 44. [26]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html#par26 Suberu, supra, at paras 26 – 33. [27]: https://www.canlii.org/en/mb/mbca/doc/2004/2004mbca45/2004mbca45.html#par27 “Police purpose and motive can be taken into account as a factor when determining whether there is sufficient evidence from which a court can infer compulsion.” – R. v. Dolynchuk, 2004 MBCA 45, at para 27. [28]: https://www.canlii.org/en/ca/scc/doc/2005/2005scc37/2005scc37.html#par3 Orbanski, supra, at para 3. [29]: https://www.canlii.org/en/ca/scc/doc/2005/2005scc37/2005scc37.html#par24 Orbanski, supra, at paras 24 – 27. [30]: https://www.canlii.org/en/ca/scc/doc/2005/2005scc37/2005scc37.html#par49 Orbanski, supra, at para 49. [31]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html#par58 Grant, supra, at para 58. [32]: https://www.canlii.org/en/ca/scc/doc/2022/2022scc12/2022scc12.html R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12. [33]: https://www.canlii.org/en/ca/scc/doc/2022/2022scc12/2022scc12.html#par77 Tim, supra, at para 77. [34]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html#par68 Grant, supra, at para 68. [35]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html#par69 Grant, supra, at paras 69-70. [36]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc33/2009scc33.html#par2 Suberu, supra, at para 2. [37]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html#par75 Grant, supra, at para 75. [38]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html#par95 Grant, supra, at para 95. [39]: https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html#par97 Grant, supra, at para 97. [40]: https://www.canlii.org/en/ca/scc/doc/2000/2000scc38/2000scc38.html R. v. Oickle, 2000 SCC 38, at para 68. [41]: https://www.canlii.org/en/ca/scc/doc/2022/2022scc35/2022scc35.html#par70 R. v. Tessier, 2022 SCC 35, [2022] S.C.J. No. 35, at para 70 [42]: https://www.canlii.org/en/ca/scc/doc/2022/2022scc35/2022scc35.html#par71 Tessier, supra, at para 71. [43]: https://www.canlii.org/en/ca/scc/doc/1994/1994canlii55/1994canlii55.html R. v. Whittle, [1994] S.C.J. No. 69. [44]: https://www.canlii.org/en/ca/scc/doc/1994/1994canlii55/1994canlii55.html#par45 Whittle, supra, at para 45. [45]: https://www.canlii.org/en/ca/scc/doc/2022/2022scc35/2022scc35.html#par52 Tessier, supra, at para 52. [46]: https://www.canlii.org/en/ca/scc/doc/1994/1994canlii55/1994canlii55.html#par54 Whittle, supra, at para 54.