Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 02 21 COURT FILE No.: Brampton 3111-998-22-31100769-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

EVER ANTONIO DIAZ

Before: Justice S.R. Bernstein

Heard on: January 8, 9, 10, 2024 Reasons for Judgment released on: February 21, 2024

Counsel: P. Quilty................................................................................................ counsel for the Crown A. Zheng........................................................................ counsel for the accused Ever Diaz

Reasons for Judgment

BERNSTEIN J.:

[1] Ever Diaz stands charged with committing the offences of impaired driving by alcohol and having over 80 milligrams of alcohol in 100 milliliters of blood shortly after midnight on May 2, 2022.

[2] At this trial, the Court heard from 4 witnesses: the Crown called Sgt. Trevor Campbell, the arresting officer, P.C. Gordon Wood, the qualified breath technician who took Mr. Diaz’s samples, and P.C. Carrie Baayen, who read rights to counsel and transported Mr. Diaz to 12 Division. Thereafter, Mr. Diaz testified in his own defence.

[3] The exhibits entered were as follows: Exhibit 1 - BWC footage from Officer Baayen Exhibit 2 - BWC footage from Officer Campbell Exhibit 3 - Breath Certificate from May 2, 2022 Exhibit 4 - test card - intoxilyzer 8000C May 2, 2022 Exhibit 5 - Breathroom video May 2, 2022 - 1st 4:45 seconds only Exhibit 6 - Sallyport entrance video May 2, 2022 1:36:30 Exhibit 7 - Booking hall video May 2, 2022 starting at 1:36:32

[4] The Defence has conceded that the Crown can make out the essential elements of the over 80 charge beyond a reasonable doubt if I do not exclude the breath samples as a result of Charter violations. Mr. Diaz does not concede the impaired charge and says that the Crown has not discharged the heavy burden of proving the charge beyond a reasonable doubt.

[5] Two time-honoured Supreme Court of Canada cases, R. v. Lifchus, [1997] 3 SCR 320 and R. v. Starr, 2000 SCC 40, [2000] 2 SCR 144, instruct me on the law in relation to the Crown’s duty to prove charges beyond a reasonable doubt. It is trite to say that Mr. Diaz is presumed innocent of all charges. He need prove nothing, as the Crown’s burden to prove guilt beyond a reasonable doubt never shifts. As a result, even if I find that he is likely or probably guilty, I must acquit him as the Crown would have failed to prove guilt beyond a reasonable doubt. [See Lifchus]. The Supreme Court put it another way in Starr. It said that beyond a reasonable doubt was much closer to absolute certainty then to the civil standard of balance of probabilities or 51%. Of course, the Crown is not required to prove any charge to an absolute certainty or jigsaw puzzle exactitude. I am entitled to believe some, none, or all of any witness’s testimony. Although corroboration is not required, it can be very helpful in evaluating evidence.

[6] The Charter then, is the sole battleground upon which my verdict on the over 80 count depends. The Defence alleges breaches of Mr. Diaz’s s. 7, 8, 9, and 10(b) rights and urges me to exclude the samples pursuant to s. 24(2).

[7] The trial was efficiently conducted in a blended fashion, with all evidence applying to both the Charter application and the trial proper.

[8] I am tasked to determine if there were any violations of Mr. Diaz’s Charter protected rights, and if so, whether the administration of justice would be brought more into disrepute if I do not exclude the breath samples.

[9] On May 1 and 2, 2022, there were two radio calls from civilian complainants in relation to an impaired driver operating a black Cadillac vehicle with a licence plate of BRPS 612, registered to the defendant. The first was received by York Regional Police at 4:17 pm (a possible impaired driver leaving Dave & Buster’s restaurant), and another one at about 12:07 am by Peel Regional Police of an impaired driver swerving on Hurontario Street near the 403 (almost eight hours later). Both calls described very bad driving, albeit with limited detail, on the part of whoever the driver of the Cadillac was.

[10] The two officers, Campbell and Baayen, were working independently, in their own vehicles that night. They both heard the Peel dispatch and were in the vicinity of where the alleged bad driving had occurred. Seeing nothing of interest, they decided to drive north to the registered owner’s address at 6310 Montevideo Road, Unit G, arriving at 12:33 am.

[11] The officers parked next to each other in the complex parking lot and awaited the anticipated return of the black Cadillac. Sure enough, at about 12:40 am, it arrived and drove in without incident until the car parked jaggedly in a parking spot which was not registered to Unit G. P.C. Campbell (as he then was), approached the area and saw Mr. Diaz walk towards him in a slightly diagonal direction, away from his own unit. He intercepted him and engaged him in conversation. He testified that when he asked Mr. Diaz if he had consumed any alcohol that night, he said “a couple”. This was not captured on video, nor was the manner in which the defendant walked toward the officer, as he did not turn his body worn camera on. Officer Campbell admitted that he should have turned his camera on and that it was a mistake. He stated that the BWCs had only recently been rolled out.

[12] Meanwhile, P.C. Baayen exited her vehicle and turned her camera on, including the audio. Her camera captured Officer Campbell, a 25-year veteran of Peel Police, asking “how much did you say you had to drink tonight?”, and the defendant saying “nothing”. When the officer asked about the differences in response, Mr. Diaz said that he knew his rights. He was promptly placed under arrest for impaired driving at 12:45 am. No rights to counsel were read to him by this officer upon detention at the front of the police vehicle, arrest, or at any time. Upon arrest, Mr. Diaz asked if he could speak to his sister and was told he could not by P.C. Campbell.

[13] Mr. Diaz was cuffed to the rear and placed in the backseat of Officer Baayen’s vehicle. Mr. Diaz asked why he was arrested, and Campbell answered, “because you’re drunk” and slammed the back door of the vehicle, leaving Mr. Diaz cuffed and alone in the car. Officer Baayen was a relatively new officer who had only been working for Peel Police since April 2021.

[14] After the car door was slammed, the two officers met at the driver’s side. Officer Campbell asked P.C. Baayen to turn off the audio of her BWC. The reason for this is unknown. It does not appear that the grounds for the arrest were ever explained by Campbell to Baayen. The audio was muted, and the video was blurred. About 6.5 minutes passed, as Mr. Diaz was detained, handcuffed to the rear, and placed in the car, before the audio was turned back on and rights to counsel were read.

[15] During the conversation, the officer read the rights to counsel and the primary caution to Mr. Diaz, while he was in the rear of the vehicle. However, in my view, they were not done entirely properly. First, Mr. Diaz said he did not understand why he had been arrested. This was cleared up quickly, thus avoiding any potential 10(a) issue.

[16] However, instead of reading “do you wish to call a lawyer NOW”, she stated, “Do you wish to call a lawyer when we get back to the station?” He then asked, “can I call a lawyer now”? in addition to “will I be freed today?” The officer responded by saying that the defendant would be spending the night in jail, despite him not yet providing a sample at that point. When asked again if he wanted to call a lawyer when they got back to the station, he stated that he did not know but would like to call his sister. For the second time, this was summarily denied, and the ability to speak to counsel was affirmed as the only option. He said he would probably contact a lawyer at the station. (See P.C. Baayen’s body worn camera footage, exhibit 1, between 6:23 and 9:58 into the tape). After the rights to counsel was finished, a caution was read to the defendant, and he was told more than once that he did not have to say anything to her. However, during the ride back to the station, the officer engaged in a lengthy conversation with Mr. Diaz.

[17] Despite Mr. Diaz stating that he probably would speak to a lawyer at the station, his only option, as a private call was either not available, or not facilitated by the police with a cell phone, the officer, upon checking entries on her on board computer terminal, noticed that he had outstanding domestic related charges. She was clearly aware from this check that the defendant had a condition to have no contact with a female complainant on his case. Despite being aware of this, and despite Mr. Diaz’s assertion that he would probably speak to counsel, she asked him, somewhat nonchalantly, if he had seen the woman in question that night. This question was the type which could well have elicited incriminating information. The officer certainly did not cease questioning, as she was duty bound to do.

[18] What is more, she continued the conversation once Mr. Diaz denied seeing his ex-partner. Part of the continuing discussion enroute to the station included “I bet you won’t do that again”. When the defendant asked what she meant, she said “drive impaired”. She was apparently trying to get him to acknowledge his bad behaviour and to gauge his level of contriteness. I do not suggest that this was done in a malicious way at all. However, this conversation invited admissions of guilt or at least some form of incriminating response. It is important to note that this part of the discussion was initiated by the officer, not Mr. Diaz.

[19] Upon arrival at the station, Mr. Diaz was taken into the booking hall. It is noteworthy that there is no audio in the booking hall, only video. It is my understanding that this is common to all Peel Police stations. Despite this, P.C. Baayen’s body worn camera, including video, was still on. She asked if she should turn it off, and an officer who I infer to be a cells officer or booking sergeant asked her to leave only the video on. The defendant was made to sit at a bench in front of the booking desk. He did so.

[20] I observed on the video that Mr. Diaz was told to stand up and turn around. He did this with no apparent difficulty, despite his hands being cuffed to the rear. He was searched and did not appear to stumble or struggle while in the booking hall.

[21] P.C. Wood, the qualified breath technician assigned to the case, testified that he went into the booking hall, which was adjacent to his breath room, saw Mr. Diaz, and engaged him. The reason for doing this when the audio could not be captured is curious. Mere feet away his breath room had not only video, but audio capacity. This officer claimed that he asked Mr. Diaz whether he wished to call a lawyer, and that he declined to do so.

[22] After being searched, Mr. Diaz was brought into the breath room. P.C. Campbell was in the suite as well. P.C. Wood read rights to counsel to Mr. Diaz, but more confusion on his part resulted. He asked for the third time to speak to his sister, but was told he could not. He never told the officers why he wanted to call his sister, but I heard during his testimony that he was wanting to ask her for assistance in securing a lawyer.

[23] P.C. Wood explained that Mr. Diaz could speak to duty counsel, but never offered him a private lawyer option. Mr. Diaz did not elect to speak with duty counsel answering in a somewhat equivocal manner.

[24] Ultimately, the defendant supplied 2 proper samples into the Intoxilyzer 8000C and produced extremely high readings of 291 and 283, well over 3 times the legal limit.

Legal Issues and Analysis

Did Mr. Diaz fail to invoke his right to counsel?

[25] The Crown has argued that Mr. Diaz did not invoke his rights to counsel. It is well settled that the police have both the informational and implementational duties in relation to the rights to counsel. (See for example, R. v. Bartle, 1994 SCJ 74). However, the defendant must invoke his rights in order for the implementational phase to kick in. He must be diligent in protecting his right. Balanced against that is that someone must unequivocally waive their rights if questioning is to begin.

[26] Mr. Diaz, in the squad car, stated that he “probably” would speak to a lawyer at the station. This is clearly not an unequivocal waiver. He invoked his right, as when P.C. Baayen improperly asked if he wanted to call a lawyer at the station, in response, he asked at 8:31 into the video, “can I call a lawyer right now?” He was told only back at the station. I do not see how under any examination of this interaction that it could be said that he did waive his right. He, in his own way, unequivocally asserted his right.

[27] In addition, upon being asked if he wished to call a lawyer, he said that he had never been in this problem and wanted to call his sister. Everything must be assessed in a contextual way. Why did Mr. Diaz ask to speak to her upon first being arrested and then again when asked if he wanted to call counsel? Logically, it would be for assistance in obtaining a lawyer. It is true that the police do not appear to have to clarify why someone wants to call a family member. However, just as they should not ignore anything they experience in relation to grounds to arrest, they should not be blind as to the reasons why a person wishes, while cuffed and obviously detained, to speak to a trusted person. What other reasonable interpretation would there be to why the call to his sister was made? To receive cooking recipes? To seek sympathy? In reviewing the evidence, even without Mr. Diaz’s evidence during his testimony, I find that he sought the help of counsel and that it was frustrated at every turn.

[28] This, in turn, caused confusion which impacted his responses and understanding of his right to counsel when he was at the police station. There was tainting, given the process with which the police went through the informational phase of their duties. This is exacerbated by the fact that at least 6.5 minutes elapsed, with the defendant cuffed behind his back, alone for part of the time, in a police cruiser.

The immediacy requirement

[29] In R. v. Davis, 2023 ONCA 227, the Court of Appeal had the opportunity to discuss the purpose and importance of the immediacy requirement. The police must be able to account for the delay in reading the rights to counsel, as the Supreme Court, way back in 2009 in R. v. Suberu, 2009 SCC 33, stated that the rights should be read “immediately”. At paragraph 40 of the judgment, the Court said that the analysis should focus on the purpose of 10(b): assisting detainees to regain their liberty and to guard against the risk of self incrimination.

[30] In Davis, the officer could not adequately account for the delay, as he lacked proper notes. In the case at bar, the police reason for delay is unclear, and not explained satisfactorily either on video, or in testimony. There is no reason why Officer Campbell, the 25-year veteran, could not have immediately read Mr. Diaz his rights to counsel, or at least instruct P.C. Baayen to do so quickly. Training a junior officer on giving rights is not a reason for delay, and there seems to be no other valid reason for it. At paragraph 41 of Davis, the Court explained that:

…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.

(See also R. v. Bogdanic, 2023 ONCJ 358, Band, J.)

[31] The police had full control of Mr. Diaz. He was confused, but cooperative. He was in cuffs and there was no danger to the police or to him. The delay was not justifiable or explained. The rights to counsel should have been the priority. The situation was only exacerbated since Mr. Diaz expressed that the handcuffs were painful and was told that nothing could be done about it until they reached the station. The officer also erroneously told him that he would not be getting out that night and would be “spending the night in jail”, despite him not having blown into any device yet. (see the impact this has in 24(2) analysis.) This was made worse by a situation where the police had complete control over any movements, and Mr. Diaz had to wait to start transport, where he could exercise his rights, and loosen his handcuffs, for 26 more minutes, between 12:47-1:13 am. Notes did not assist the officers in explaining this gap of time. There also was no reason why Mr. Diaz’s cuffs could not have been adjusted.

[32] At the station, the conduct and procedure of the police did not act as a fresh start and was not curative of the deficiencies in the initial procedures. If anything, it exacerbated the breach of Mr. Diaz’s right to counsel. Indeed, he never got to speak to a lawyer at any time. (See R. v. Noel, 2019 ONCA 860 at paragraphs 24-26, and R. v. Rover, 2018 ONCA 745 at paragraph 45, for a discussion of the importance of contact with counsel.)

[33] It is curious as well why P.C. Baayen gave grounds to Constable Wood off camera, and not P.C. Campbell, who, after all, was the arresting officer and was standing in the breath room, on camera. P.C. Baayen was clear in her evidence that P.C. Campbell never told her his grounds and could not explain what she and Campbell were discussing when he told her to turn her audio off. It is particularly significant that P.C. Wood believed that Mr. Diaz had declined counsel. This is clearly inaccurate and the further rights to counsel attempts do not serve to attenuate the concerns this court has.

[34] Firstly, despite Mr. Diaz’s assertion that he wanted to know if he could speak to counsel right away while in the car, and that when told no, he said he would probably speak to a lawyer at the station, yet no officer facilitated a call upon arrival. This is a fundamental failure in the implementational duty of the police in the case at bar. No officer articulated these responses to the qualified breath tech.

[35] The defendant indicated that he did not want to speak to duty counsel, and he stated that he had no counsel of choice. Officer Wood never inquired if he wanted to speak to private counsel. Once it was established he did not have one, it could be inferred, the matter was simply dropped.

[36] In R. v. Beaver, 2022 SCC 54, the concept of the “fresh start” doctrine, designed to repair breaches of the immediacy requirement and to guard against tainting, was discussed. At paragraphs 98 and 99, Jamal, J. said that the key issue is whether the evidence remains tainted after the fresh start. He further said, “whether evidence was obtained in a manner is not determined by whether the state eventually complied with its Charter obligation, but instead is based on whether after the eventual Charter compliance, there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence”: Beaver at paragraph 99. He also cautioned that care must be taken because in some cases “evidence will remain tainted by Charter breaches despite subsequent Charter compliance.” [See also R. v. Davis, supra, at paragraph 33.]

[37] In addition, Jamal, J. at paragraph 103 of Beaver, recognized that a relevant consideration in applying the fresh start doctrine is whether the subsequent compliance by the police dispelled the effect of the initial breach. Importantly, at paragraph 44 of Davis, it says the following:

In my view, 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] 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 effective enforcement of informational Charter rights.

[38] As a result, I find that there was a serious breach of the immediacy requirement set in place by the Suberu case 12 years before the incident that brings us to court. I further find that the officer committed breaches of Mr. Diaz’s right to counsel by not reading the well-settled words “do you wish to call a lawyer now?” In addition, the officer, upon being told that the defendant wanted to speak to a lawyer immediately and ultimately saying he would probably want to speak with one at the station, thus, in my view asserting clearly his desire to seek legal advice, did not cease questioning but asked pointed questions about a potential breach of release order, and about whether Mr. Diaz would ever drive impaired again. I consider these significant breaches of the right to counsel which were not repaired subsequently when Mr. Diaz arrived and spent time at the police station.

[39] There are other factors which caused me concern in relation to the manner in which the police investigated this matter, both at the roadside and at the station. The officers admitted that it was policy that in the course of an investigation their body worn cameras should be in operation. Police Constable Campbell freely admitted that he should have turned his camera on when he got out of his vehicle. Thus, the manner in which the officer claims Mr. Diaz was walking is brought into question. It also concerns me that officer Campbell asked Officer Baayen, who had the presence of mind to properly turn her camera on when she exited her vehicle, to turn the audio off prior to any rights to counsel being given to the defendant.

[40] I have no evidence as to what was said before the camera’s audio capacity was turned on. However, if this was for Officer Campbell to give his grounds for arrest to Officer Baayen, this is not in my view a proper reason for the delay of the informational component of the right to counsel. Officer Baayen witnessed the arrest and it is captured on her body worn camera.

[41] I am also concerned about the ongoing failure of the Peel Regional Police Service to audiotape the interactions which occur in the booking hall at the station. I can see no reason why this is done. It means that valuable evidence as to what is said by the officers and indeed what is said by detainees is lost. It has been well over 20 years since R. v. Moore-McFarlane, [2001] O.J. No. 4646 was decided. In addition, Officer Baayen’s camera was on when she entered the booking hall. Yet the officers informed her to turn off the audio. The policy at that time, in the early days of body cam deployment, was to mute when there were discussions with officers. The officer admitted that this is no longer the case. The probing eye of the camera should not be selective, except in relation to genuine issues of privacy. Indeed, the police have been encouraged to videotape as much as possible. This is confirmed by the widespread use of body worn cameras currently. As a result, just as I find it troubling that Officer Campbell asked that P.C. Baayen’s camera be muted on the roadside, I find it unfortunate that Officer Wood’s apparent interaction with Mr. Diaz in the booking hall was not captured. The fact that the body worn cameras were frequently blurred deprived the court of other information. This loss of easily obtainable evidence is germane to the section 8 and 9 analyses as well.

Section 8 and 9 Issues

[42] Neither officer witnessed the actual driving reported by concerned citizens both in York and Peel Regions that day. Importantly, neither officer observed any serious problem with Mr. Diaz’s driving when he arrived on Montevideo. They both stated that the turns and speed were of no moment. P.C. Campbell articulated his grounds in court as follows: Information from dispatch on driving, the way the defendant parked crooked, the slightly staggered walk and apparent wrong direction, the odour on breath, his tone of voice and the change of position on whether he was drinking that night.

[43] The only issue common to both officers was the way he parked jaggedly into the spot he chose, his apparent diagonal walking towards the officer and away from his unit, and the change from saying he had a couple drinks, to none. This precipitated a correction by P.C. Campbell and an almost immediate arrest when Mr. Diaz said that they could not arrest him, as they had not seen him drive. Officer Baayen corrected him and told him that they had seen him drive in and park in a jagged manner.

[44] As stated above, the walking, and the initial utterance was not caught due to P.C. Campbell’s failure to deploy his video camera. There was also a difference of opinion in terms of time of arrest and whether Mr. Diaz was having trouble walking or was swaying. P.C. Baayen said that Mr. Diaz’s balance issues were not notable, his speech was normal and his comprehension good. At the station he agreed with the video evidence from the booking hall that he was moving without incident. Mr. Diaz turns around with no incident, does not sway or stumble, takes his own shoes off without incident, did not need support and unwrapped the seal on the nozzle he was about to blow into without any problem. I do not attribute his confusion with his legal jeopardy to his level of intoxication, but to the sloppy handling of his rights by officers.

[45] The defence argues that P.C. Campbell may have had reasonable suspicion to detain and investigate further but says that the information relied upon for arrest was not enough to meet the standard of reasonable grounds for an arrest. They argue that there is no detailed evidence about the York Region incident, and that it occurred approximately 8 hours prior to the incident on Montevideo. There was no detail in the Peel call. In relation to the driving the officers did witness, there was no issue with speed, turning, and although the Cadillac was parked on a diagonal plane, it was within the yellow lines of the parking spot.

[46] The Crown asks me to simply watch the bodycam footage and says that the evidence is overwhelming that Mr. Diaz was impaired. It is common ground that I cannot use the high breathalyzer readings to determine that the driving would have therefore been impaired by alcohol.

[47] Boiled down to its essentials, the Crown argues that the court must look at the totality of the circumstances, and not parse only small sections of evidence which favour the defence. It was submitted that the fact that twice in one day a car registered to the defendant is driving erratically, plus the fact that Mr. Diaz shows up clearly impaired is enough for reasonable grounds to arrest. He says that the police must consider all the evidence and cannot disregard any facts. I agree with that proposition. However, I must also consider all the evidence, or lack thereof, in my analysis. In relation to the impaired charge, I must consider all the evidence, including that of the defendant at this trial. The Crown asks me to find all his evidence self serving; that he had far more than one drink, that he was driving the car at the requisite times prior to his arrival home, and that his call to his sister had nothing to do with procuring a lawyer.

[48] The video evidence establishes that unlike P.C. Campbell’s testimony, the Cadillac was not blocked in. It does not establish any balance issues on Mr. Diaz’s part. It does not conclusively lead to evidence of slurred speech, despite grounds being told to the breath tech that this was a factor. In short, the probing eye of the camera reveals more problems with police conduct than support of it.

[49] As a result of the foregoing, I find that the police had reasonable grounds to suspect that Mr. Diaz was impaired, but not reasonable grounds to arrest. They elected to arrest without considering the use of the ASD process, which would have been available to them.

[50] 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.

[51] As a result, I find that the officer’s grounds to arrest were slightly deficient, and I find that there was a breach of Mr. Diaz’s s. 9 and 8 rights. If I am wrong in this finding, see my comments under s. 24(2).

Section 24(2) Analysis

[52] In R. v. Grant, 2009 SCC 32, at paras. 68-70, the Supreme Court explained:

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[53] I must consider three factors: (1) the seriousness of the violation; (2) the impact of the violation on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on its merits (ibid, at para. 71). The focus must be on the long-term and prospective effect of a remedy or lack of remedy. Given the issues presented in this case, the Supreme Court of Canada's decision in R. v. Le, 2019 SCC 34, provides important guidance. At para. 141, the majority provided the following explanation of the interplay between the Grant factors:

While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion (R. v. McGuffie, 2016 ONCA 36, at para. 62). But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.

Seriousness of the Breaches

[54] I have found violations of 3 Charter rights in this case: sections 8, 9, and 10(b). I would characterize the sections 8 and 9 breaches as moderate to low on the spectrum I must consider. However, given that determination and even if I am wrong about these breaches, I find that the s. 10(b) violation is at a very high level, and it alone would pull heavily in favour of exclusion of the breath samples, even if they are outrageous, at 3.5 times the legal limit. A multiplicity of breaches is a factor which can be considered as well of course.

[55] Regarding the seriousness of the violations, I must consider whether the Court must dissociate itself from the police conduct to “preserve public confidence in the rule of law and its processes” (Grant at para. 73). I must place the police conduct on a spectrum of seriousness. I find that this factor rests high on the continuum/spectrum. It is anything but technical or trivial. I am not for one moment suggesting mala fides on the part of P.C. Baayen, an obviously dedicated, caring, and comparatively young officer. The court must consider, however, the case law.

[56] 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 R. v. Tim, 2022 SCC 12, 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).

[57] I consider the following facts:

1. The failure of P.C. Campbell, a 25-year veteran of Peel Police who has conducted hundreds of impaired driving investigations, to read rights to counsel at all before slamming the door on Mr. Diaz.
2. P.C. Campbell’s request to P.C. Baayen to turn the audio of her camera off, the failure of any explanation of why or what was going on at the time and the resultant delay in the rights being read.
3. The at least 6.5-minute delay in reading the rights to counsel and the admonition by P.C. Baayen that she did not know the criteria of immediacy vs “as soon as practicable”.
4. The failure by the officer to properly render the rights to counsel as required in her notebook, the failure to respond to the defendant’s question as to whether he could call a lawyer “now”.
5. The failure to keep the audio on her body worn camera on in the booking hall, coupled with what appears to be a systemic decision to mute audio when discussions between officers are occurring,
6. The failure to audio record the booking hall procedure in Peel police stations. This is an ongoing problem that appears systemic, and flies in the face of decades of higher authority such as R. v. Moore-McFarlane, [2001] O.J. No. 4646.
7. The apparent wilful blindness in realizing the reason for Mr. Diaz’s repeated requests to contact his sister.

[58] As stated in R. v. Bogdanic by Band, J. starting at paras. 43-44:

Whether or not a breach is systemic in nature, it can be viewed as serious when it involves an officer who fails "to give proper attention and respect to well-known and settled Charter obligations" (Davis, at para. 53). To the extent that a breach is systemic, that too is aggravating (R. v. Harrison, 2009 SCC 34, at para 25).

In R. v. Nguyen, 2008 ONCA 49 at para. 20, the Court of Appeal noted

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[59] The Charter-infringing conduct - breaching the immediacy requirement of s. 10(b) by unreasonably prioritizing other things such as note-taking and unexplained discussions between officer “off the record” was very serious because it was a violation of well-settled Charter norms.

[60] After all, Suberu has been the law in Canada for many years. Officers need to be very careful to prioritize the importance informational component of the right to counsel and, unless urgent, avoid unnecessary delay.

[61] Therefore this factor pulls strongly towards exclusion of the evidence.

Impact of the breaches on Mr. Diaz’s Charter-protected interests

[62] In R. v. Tim, 2022 SCC 12, at para. 90, the Supreme Court of Canada wrote that this line of inquiry considers the impact of the breach(es) on the accused's Charter-protected interests and asks whether the breach "actually undermined the interests protected by the right infringed." I must identify "the interests protected by the relevant Charter rights" and evaluate "how seriously the breaches affected those interests." As with the first line of inquiry, I must then "situate the impact on the accused's Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed." As the Court explained:

The greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because "admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute."

[63] At issue here was Mr. Diaz's right to know that he was not entirely at the mercy of the police and would have a "lifeline" to the outside world. A case in point, Mr. Diaz appeared confused throughout the delay. He was in pain, and asked for the handcuffs to be loosened, to no avail. He asked to speak to his sister twice, apparently to help find a lawyer, to no avail. He asked, upon being read an improper version of the rights to counsel, if he could speak to a lawyer now, to no avail, and was asked to answer questions which could well have elicited incriminating responses when the police had a long standing duty to cease questioning whenever a detainee invokes his right to counsel and does not unequivocally waive it. All of this while he was cuffed in the back of a police car and was made to wait an additional 26 minutes before the trip to the station even began. The breaches were not technical or trivial. I would characterize its impact as high in this case. This factor also pulls strongly in favour of exclusion, even if there was no s. 8 and 9 breach to contend with.

Society’s interest in an adjudication on the merits

[64] In this line of inquiry, the court must concern itself with the reliability of the evidence and the importance to the Crown’s case. This line of inquiry is concerned with the reliability of the evidence and its importance to the Crown's case. The question is "whether the truth-seeking function of the criminal process would be better served by admission of the evidence, or by its exclusion" (Grant, at para. 79). Reliable and critical evidence generally pulls toward inclusion. That said, this factor cuts both ways and ought not be permitted to overwhelm the analysis (Harrison, at para. 34; Grant, at para. 84). As the Court stated in Grant"while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious ... it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high" (ibid).

[65] Here, the breath samples are highly reliable and crucial to the Crown's case. Any drinking and driving offence is serious, and given the extremely high blows, this case qualifies as very serious, although fortunately there was no accident. This factor pulls strongly towards inclusion.

Balancing the three factors

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

[67] The Supreme Court of Canada in R. v. Le, 2019 SCC 34, raised similar sentiments at paragraph 142.

[68] I must ask myself if, having regard to all the circumstances, the admission of the breath samples would bring the administration of justice into disrepute. This is a serious case and the public rightly have an interest and desire to know that drinking and driving cases are being taken seriously, are being prosecuted vigorously, and are being effectively punished for dangerous transgressions against the law. Still, given the facts of this case, I find that the admission of the breath samples would negatively impact the repute and public confidence in the administration of justice.

[69] As a result, the breath samples are excluded, and Mr. Diaz will be acquitted of over 80 (Count 2).

The impaired driving charge (Count 1)

[70] The Crown has asked me to carefully review the video evidence of Mr. Diaz that is available to me in this case. I have of course done so and come away with the following observations.

[71] The totality of the video evidence does not reveal any serious balance issues. Mr. Diaz was asked by P.C. Campbell to put his hands on the hood of the police car. He did as he was told, and I cannot find that this was for allowing him to stay upright and balanced. He, upon arrest, walks with the officer to the car, and despite being cuffed, does not appear to have any real difficulty getting into the back of the vehicle. While on camera at the station, he shows no problem with mobility. He stands on his own, turns around and faces the wall, while cuffed, unaided, takes his shoes off by himself once uncuffed, and shows good manual dexterity in unwrapping the mouthpiece while in the breath room. I am aware of P.C. Campbell’s testimony of the manner and directionality of Mr. Diaz’s walking prior to P.C. Baayen activating her camera. It has been established by evidence that he was walking in the direction of his friend’s house and the walking towards the officer is neither caught by the camera or corroborated by either the video evidence thereafter, or by P.C. Baayen for that matter. I see no concerning indicia of impairment regarding his movements.

[72] In relation to his speech, P.C. Baayen noticed no problem with it. She noted an accent and it is clear that Mr. Diaz’s first language is Spanish, as he is from El Salvador and testified. In watching his speech, I can say he speaks a bit softly and unevenly, but I do not know his usual cadence of speech. I find no indicia of impairment with regard to his speech. The odour of alcohol does not allow me, on its own, to find impairment.

[73] In relation to his driving, as stated above, the police only observe Mr. Diaz driving when he turned into the housing complex and parked his car jaggedly, but within the yellow lines. There is no evidence that he ever drove the car earlier that day. Although that is highly suspicious, it does not assist me in making a determination that the defendant ever drove recklessly.

[74] Although some of the interactions on camera show Mr. Diaz to be confused at times and perhaps inappropriate, such as when he improperly flirts with Officer Baayen, there is nothing that rises beyond speculation as to his level of impairment, and critically, whether it, along with other evidence, allows me to be sure that he is guilty beyond a reasonable doubt. Although, given all the circumstances, I am highly suspicious that Mr. Diaz’s driving was impaired by the consumption of alcohol that night, that is not enough to discharge the heavy burden on the Crown.

[75] Mr. Diaz, I find you not guilty on both counts on the information and you are free to go.

Released: February 21, 2024 Signed: Justice S.R. Bernstein