ONTARIO COURT OF JUSTICE DATE: 2024 10 09 COURT FILE No.: Sudbury 998 24 401100301
BETWEEN:
HIS MAJESTY THE KING
— AND —
MANINDER GREWAL
Before: Justice G. Jenner
Heard on: August 1, 2, and 12th, 2024 Reasons for Judgment released on: October 9, 2024
Counsel: Catherine Hansuld............................................................................. counsel for the Crown Dylan Finlay..................................................................................... counsel for the accused
JENNER J.:
Part One: Introduction and Issues
[1] Mr. Grewal is charged with (i) impaired operation of a conveyance, and (ii) having a blood alcohol concentration (BAC) equal to or above 80 mg of alcohol in 100 mL of blood within two hours of operating a conveyance (“80 plus”). The basic structure of events is not disputed. On July 21, 2023, Mr. Grewal was parked on an unpaved rural road just off the highway outside of Sudbury. An Ontario Provincial Police (OPP) officer approached him and developed grounds to make an approved screening device (ASD) demand. The accused registered a Fail result. The officer arrested him for 80 plus, read him standard information with respect to his right to counsel, and made a demand that the accused accompany him to provide breath samples. Before departing, a second officer found a partially consumed bottle of liquor in the accused’s vehicle and relayed that to the arresting officer.
[2] The accused was brought to the Greater Sudbury Police Services (GSPS) detachment. He spoke with a lawyer whom he selected from a list provided to him by the GSPS. He then provided two suitable breath samples, the lowest generating a truncated reading of 260 mg of alcohol in 100 mL of blood. The accused was then transported to an OPP detachment and held for approximately 6.5 further hours before being released.
[3] The main issues at trial were Charter-based. Mr. Grewal argued the following points:
(1) His arrest and the demand made for samples of his breath became unlawful and contrary to ss. 8 and 9 of the Charter once the arresting officer learned of the open bottle of alcohol in the accused’s vehicle. The arresting officer ought to have been alive to the accused’s possible recent consumption of alcohol. The potential for residual mouth alcohol undermined the reliability of the ASD Fail result and left the officer without objectively reasonable grounds to believe an offence had been committed.
(2) His right to counsel under s. 10(b) of the Charter was breached when police gave him the false impression that his choice of counsel was limited to either a list of local lawyers or duty counsel.
(3) His s. 10(b) right was further breached by the police’s failure to afford him privacy while he was speaking with counsel. Specifically, he could hear muffled voices outside of the room and a portion of the door to the room was transparent.
(4) His s. 10(b) right was breached in a third way because the police terminated his call with counsel prematurely.
(5) He was arbitrarily detained contrary to s. 9 of the Charter when the police held him beyond the point necessary for his safety or that of the public.
(6) His s. 8 Charter right to be free from unreasonable search and seizure was breached when the police videotaped him urinating while he was detained.
[4] By way of remedy, the accused seeks exclusion of the evidence pursuant to s. 24(2) of the Charter.
[5] The Crown conceded that if the Charter application is granted, the accused should be acquitted on both counts. The accused conceded that if the Charter application is not granted, he should be found guilty of the 80+ count, though contends the Crown has not met its onus on the impaired operation count.
Part Two: Trial Process and Evidence
[6] On consent, the Crown’s evidence with respect to the Charter application and the merits proceeded together in a blended voir dire. The accused testified on the understanding that his evidence was only being offered on the Charter application. Date, jurisdiction, and identification of the accused were all admitted.
[7] The court heard from six witnesses, including the accused. A brief agreed statements of facts obviated the need for a seventh witness. In addition, both parties relied on a series of recordings made at both the OPP and GSPS police detachments. The parties agreed on the authenticity of the videos, which were made independent exhibits. The Crown filed a Certificate of Analysis, demonstrating the accused’s BAC to be 260 mg of alcohol in 100 mL of blood. I do not propose to exhaustively review the entirety of the evidence. I will reference only those aspects which I find to be salient to the issues and my determinations.
Cst. Rod St. Marseille, the arresting officer
[8] On the afternoon of July 21, 2023, now-retired OPP Cst. Rod St. Marseille was parked near the interchange of Highway 69 and Crooked Lake Road, which is an unpaved road that leads to a communications tower and a small number of campsites. At approximately 1530 hours he saw a black Audi parked nearby on Crooked Lake Road. He thought that to be an odd location and noticed that the vehicle’s brake lights were going on and off intermittently. He decided to go over and speak to the driver.
[9] The accused was occupying the driver seat and was identified by a valid Ontario driver’s license. There was no one else present. The front passenger seat was full of possessions, as was the rear of the car. While speaking with the accused, Cst. St. Marseille observed a full, unopened bottle of Jägermeister liquor in the console between the front seats. The accused said he was on his way to Orillia but was going to stop in Thunder Bay on the way. Given the geographic realities, the officer found that claim to be unusual. The accused denied drinking the liquor. The officer explained that it should not be readily available to him, and advised the accused he could put it in the back of the vehicle. As the accused complied, Cst. St. Marseille detected a slight odour of alcohol and asked the accused if he had been drinking. The accused told the officer that he had been drinking the night previous, but not that day.
[10] In addition to the odour of alcohol, the officer noticed the accused to be a little unsteady on his feet. But when asked about signs of impairment at this point, the officer indicated, “other than the odour of alcohol, no.” The officer explained that though he found the accused’s behaviour to be odd, he did not attribute it to impairment. He repeated “maybe a little unsteady on his feet.” Cst. St. Marseille had not formed an opinion that the accused was impaired by drug or alcohol at that point in time.
[11] The officer was, however, satisfied that the accused had been consuming alcohol, based on his utterances and the odour. He read him an ASD demand at 1541 hours. The officer explained and administered the test, which resulted in a Fail at 1542 hours. Because of the accused’s utterances, the officer’s observations, and the ASD result, the officer was satisfied the accused’s BAC exceeded the legal limit and arrested him at 1548 hours for the offence of 80 plus. He read the accused the standard right to counsel language, the standard caution, and made a breath demand.
[12] The standard right to counsel caution was articulated as follows:
I’m arresting you for impaired driving. It’s my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you’re charged with an offence, you may apply to the Ontario legal aid plan for assistance. 1-800… is a number that will put you in contact with the legal aid duty counsel for free legal advice right now. Do you understand?
[13] The accused replied that he understood and indicated he would call a lawyer. There was no cell phone reception at the arrest location, so a call could not be facilitated until the officer and accused arrived at a police detachment. Cst. St. Marseille acknowledged the accused had requested use of his cell phone but explained that it was connected to a desire to call the accused’s employer. That request was denied.
[14] Before Cst. St. Marseille left the scene with the accused in custody, Cst. Trachinelli arrived and assumed duties related to the scene. He searched Mr. Grewal’s vehicle and advised Cst. St. Marseille of one potentially important discovery: he located a bottle of Jägermeister, this time opened, behind some luggage.
[15] Under cross-examination, Cst. St. Marseille was pressed on whether the open bottle of liquor impacted his grounds to arrest the accused and make a breath demand, or whether it ought to have. The officer was aware that if someone drinks alcohol and is immediately afterwards subjected to an ASD, then the test can produce a false positive because of residual alcohol in the mouth. The officer agreed that he was told about the open bottle at 1550 hours. He agreed that an open bottle would indicate possible consumption. But when it was suggested to him that this new information—a partially consumed bottle of liquor—might indicate that the accused had just recently ingested the alcohol, he indicated that it did not cross his mind. His demand was based on the other interactions he had (the accused’s own admission, the odour, the behaviour). He agreed that, assessing the information now, recent consumption was certainly a possibility, but on the day of he did not consider it.
[16] At 1600 hours, Cst. St. Marseille left the scene with the accused. He radioed ahead to the GSPS to advise they were en route to that service’s detachment. The drive took about 40 minutes. During the trip, it appeared to Cst. St. Marseille that the accused’s level of intoxication was increasing, based on the way the accused was speaking, and based on his dozing off a bit. At times the accused was pleasant, but at other times he appeared angry, and made disparaging comments towards the officer. The pair arrived at the detachment at 1647 hours. They proceeded to the detention area, where they were met by Cst. Mark Bennett, the certified breath technician, and S/Sgt. Young, both of the GSPS.
[17] At 1657 hours, the accused was given an opportunity to speak to counsel. Cst. St. Marseille described the area where the call took place as a small vestibule with a phone inside and a glass window on the door. Cst. St. Marseille did not remember the accused naming a specific lawyer of choice, and testified the accused appeared satisfied with picking from a list of local lawyers GSPS provided him. He selected George Fournier. The call took only a few minutes. Once it was completed, the accused was turned over to Cst. Bennett for breath tests at 1700 hours.
[18] Breath tests complete, the accused was returned to Cst. St. Marseille’s custody at 1835 hours. The officer brought him to the OPP detachment to be lodged in cells. They arrived at 1845 hours. Cst. St. Marseille did not believe the accused was safe to release at that time. When asked whether the police inquired as to family or friends that might collect the accused, the officer stated, “there was not” and that the accused “wasn’t in condition to address that”. Under cross-examination the officer agreed that he never asked the accused whether there was someone who was able to pick him up. Cst. St. Marseille did describe the accused as generally cooperative with police, but under cross-examination indicated he would not be content to release the accused to a hotel room on his own.
[19] Cst. St. Marseille prepared release documents for the accused shortly after they arrived at the OPP detachment but had no further dealings with him before going off shift. He testified that determinations as to when the accused could be released would be made by the night shift. Cst. St. Marseille made a note that that the accused was belligerent in his cell, highly intoxicated, and that he should be held until sober. When asked what the accused was belligerent about, the officer could not remember exactly, but indicated it could have been about access to his cell phone.
Cst. Brett Trachinelli, Second Officer at Roadside
[20] Cst. Trachnelli attended the scene of the arrest. In conducting a plain view search of the vehicle, he located an open bottle of Jägermeister and relayed that to Cst. St. Marseille. He could only remember seeing it inside the vehicle and did not take good enough notes to recall where specifically it had been.
Cst. Mark Bennett, Breath Technician
[21] Cst. Mark Bennett was the GSPS breath technician who received custody of the accused from Cst. St. Marseille, at 1710 hours. Prior to conducting the breath tests, Cst. Bennett was engaged in duties setting up the device and updating his notes. He was not the officer directly involved in implementing the accused’s rights to counsel. He was in the vicinity, and he did hear the accused request to speak to Mr. Fournier. Regarding the telephone consultation room, he testified that one cannot hear the people inside once they step into that room. He described the door as having a top glass half and a bottom plastic half.
[22] Asked about the physical demeanour of the accused, the officer noted a strong odour of alcohol from the accused’s breath, and that his eyes were watery and bloodshot. He noted nothing with respect to facial colour. He described the accused as cooperative and noted the accused’s balance was unsure.
[23] Under cross-examination, the officer was asked about interactions he had wherein the accused requested the use of his cell phone. As with Cst. St. Marseille, the accused repeatedly requested use of his cell phone to contact his employer. The officer declined, based on police policy. He explained that granting a detainee limited and controlled access to their cell phone would only be done to facilitate the right to counsel, such as by looking up a lawyer’s phone number. The refusal was not personal to the accused, who the officer indicated was cooperative. He had no concerns that the accused would misuse the phone to frustrate the investigation.
S/Sgt. Young, Officer in Charge at the GSPS Detachment
[24] S/Sgt. Young was the Officer in Charge at the GSPS detachment and was the officer tasked with implementing the accused’s right to counsel. She has been an officer since 2003 and on July 21, 2023 was in a leadership role. She was asked to review and identify several video recordings from the detachment which showed discussions between herself and the accused with respect to the right to counsel.
[25] Counsel helpfully presented an agreed statement of fact with respect to these discussions. [1] The first key portion is as follows:
Breath Room Video #1 17:52 to 19:36 (Before the phone call with counsel) S/Sgt. YOUNG: Alright, so I’m going to show you our lawyer list, step forward here, see this list here on the wall, these are local lawyers in Sudbury. It’s now almost 5 o’clock on a Friday, so whether or not we get someone in an office (inaudible), as you can see there are office lines, cell lines, and home lines. So we are going to get you a lawyer. And sometimes we need to call more than one, but it’s your choice who you want us to call. Mr. Grewal: [asks an unrelated question] S/Sgt. YOUNG: So that is likely an option after you go through this. But this is your legal right to call a lawyer. And it’s in your best interest to talk to a lawyer. So if you don’t want to pick one there is legal aid, there is a 1-800 number you can call. Or you can pick a local lawyer. This isn’t a lawyer you need to retain and pay, this is a free call. Mr. Grewal: [The Applicant’s response is very difficult to make out, but it sounds like: “Is my phone an option?”] S/Sgt. YOUNG: No, I have the phone in my hand, I’m going to make that call, you’re going to go into this private room. Mr. Grewal: Ok, alright, no question . . . you know what, you pick one. S/Sgt. YOUNG: No, it doesn’t work that way. I’m the officer in charge and it’s your right to pick a lawyer. Mr. Grewal: Alright, ok, let’s see here, let’s call Mr. George Fournier.
[26] Under cross-examination, the officer was pushed on whether her articulation of the accused’s right to counsel conveyed that he had only two options: choose from the local lawyers list or call the 1-800 number. While she did not dispute the words she used, she maintained that her language reinforced that the accused could call any lawyer he liked.
[27] She was asked in greater detail about the list of lawyers provided, and agreed it contained the names of roughly 15-20 local lawyers as well as a few non-local lawyers who could provide services in certain other languages. There are columns for the lawyers’ names, office numbers, home numbers, and cell numbers, though not all the fields are populated for each lawyer.
[28] Asked about the room where the phone call took place, S/Sgt. Young testified that it is a private room used for all detainees to speak with their lawyers. She could not hear the conversation between the accused and Mr. Fournier.
[29] A further portion of the agreed statement of fact depicts the conclusion of the accused’s call with counsel:
26:50 to 28:19 (during the phone call with counsel) Mr. Grewal: My lawyer needs my cell phone so he can contact me. Unknown Officer: He’s talking to you right now? Mr. Grewal: Yes, because I recently . . . S/Sgt. YOUNG: You can call him back when you’re done here. Unknown Officer: We’ll give you the number to call him. Mr. Grewal: So the police department is advising me . . . Unknown Officer: When we’re done you can get your phone back. Mr. Grewal: Yeah, I’ll give them the phone. Who wants to talk to him? S/Sgt. YOUNG: Well if you’re done just hang up. Mr. Grewal: They’re not done they just want to speak . . . S/Sgt. YOUNG: Alright, this is Staff Sgt [speaking to lawyer on phone], … yeah … yup … yeah absolutely we can inform him of that … absolutely … ok thank you. So he just told me the same thing we discussed. You want his phone number so he asked that I give you his cell phone number. Mr. Grewal: Yes sir. S/Sgt. YOUNG: Ok so step right into that office there is a chair to the left [the breath room],
[30] Asked about these events, S/Sgt. Young testified that the accused stepped out of the private room and handed her the phone. She then spoke with Mr. Fournier, who asked her to provide the accused his cell phone number. Mr. Fournier did not tell the officer he wished to resume conversation with the accused. She understood the call between the accused and counsel to be complete.
[31] She was also cross-examined on the accused’s requests to have access to his cell phone. She testified that had he requested use of his cell phone in specific furtherance of his efforts to contact counsel of choice, she would have obliged as per the GSPS’s practice (with certain limitations), but the accused never asked to use his phone for that purpose.
[32] Asked whether she observed the accused to demonstrate any signs of impairment, she testified that he had slurred speech, was unsteady on his feet, and had difficulty understanding certain directions.
Cst. Andre Richard, Officer at OPP Detachment
[33] Cst. Richard was involved with the accused at the OPP detachment only. He facilitated the accused’s lodging, assisted with guarding, and ultimately released him. As part of those duties, he explained to the accused that everything in the cell was being video-recorded, and he provided the accused with two blankets. He explained to the accused that the blankets could be used for privacy.
[34] In the course of those duties, he filled out a prisoner’s custody form, or prisoner custody report, which operates as a checklist of sorts. Under cross-examination, he was challenged on the fact that on that checklist, a box labeled “privacy cover explained” was not ticked. He testified that he forgot to tick the box. He does not always follow the order of the checklist and must have missed it. It was put to him that he has been an officer for 19 years and certainly would not remember the process of every detainee. He responded that it is always the same procedure. He would have talked about privacy; that is why he gave the accused two blankets.
[35] He lodged the accused into cells at 1915 hours. He released the accused at 0152 hours the following morning (approximately 6.5 hours later). When asked why the accused was released at that specific time, the officer responded that “he felt he was fine at that specific time, and he could be released.” He elaborated, indicating he did not have any concerns prior to that, though he explained that at one point the accused complained of stomach issues; an ambulance was called, and the accused was assessed but declined to go to the hospital. The officer had no concerns about the accused’s mental state. Near the midpoint of the accused’s detention, at 2236 hours, Cst. Richard fingerprinted the accused. He did not have any concerns about the accused at that time. The officer could not recall how the accused departed the detachment.
Darren Pierce, Civilian OPP Guard
[36] An agreed statement of fact was filed with respect to Mr. Pierce, who was employed as a civilian guard with the OPP on the night in question. At 2054 hours, he had a conversation with the accused. The accused asked him if he could be released, and Mr. Pierce replied that an officer would speak to the accused upon their return to the office. A second conversation took place at 2345 hours. The accused asked Mr. Pierce “how much longer” and whether the officer was coming in. Mr. Pierce replied that he would check with the officer and let the accused know.
The accused, Mr. Grewal
[37] Mr. Grewal explained that he was traveling from Brampton to Calgary and had stopped to rest in Sudbury. About 10 to 15 minutes later, he was approached by Cst. St. Marseille. His evidence of their roadside interaction is consistent with the officer’s account. He did not remember the specific verbiage used to inform him of his right to counsel, but I do not understand him to dispute that the officer read him the standard information.
[38] Mr. Grewal testified that throughout the event he consistently asked for use of his cell phone. He wished to call his boss, primarily because his arrest might cause him to be delayed in terms of certain work obligations. But he testified that he had a second motivation that he did not share with police at the time: he worked in the security field and wished to get some guidance from his boss about his legal predicament.
[39] He recalled the information provided to him at the detachment with respect to his right to counsel. When asked about the understanding he developed from Staff Sgt. Young’s information, he explained he was of the view he could either call one of the local lawyers on the list provided or could phone the 1-800 number. He also testified that he had a lawyer on retainer assisting him with a family law matter and whom he wished to call. He did not articulate this reason to the police. He did not advise the police, because he was told he could not access his phone and because he thought his options were limited to the 1-800 number or the local list.
[40] When asked why he told the officer to pick a lawyer for him, he advised that he did not know any of the lawyers on the list; that they were all the same to him, so it would not matter. He also thought that because their names appeared on the police’s list, they might be connected to the police in some fashion. He testified he had never been in this sort of situation before and selected Mr. Fournier’s name at random.
[41] The accused’s description of the telephone room was consistent with that of the other witnesses. He did not see officers outside the room but heard their muffled voices and sensed them standing near the door. He worried that if he could hear their voices then he might be audible to them. He tried to keep his conversation private and felt restricted in how he could contact counsel.
[42] Asked about the end of the phone call, he explained that he does not remember the exact reason, but that Mr. Fournier wanted to get the accused’s cell phone number from police so that he could call him back. The accused testified that he thought his call with Mr. Fournier was interrupted rather than complete. He was thereafter consistently denied access to his phone. The accused was concerned that Mr. Fournier might be trying to call him back.
[43] As to his detention at the OPP detachment, Mr. Grewal explained that shortly after being placed in the cell, the police brought him two blankets, and advised that one could be used as a pillow and the other as a blanket. He was adamant that no officer had explained that the blankets could be used for privacy if he needed to use the toilet. He agreed he was aware that the cell was being video-recorded, as he had read a warning posted on the wall. When he urinated just after 2100 hours, he felt awkward, but he just had to go. Asked why he did not inquire about another option, he answered that he just assumed the police would require him to use the toilet in his cell.
[44] Asked about when he thought he might be released, he testified to several conversations he had with officers and civilian police employees. He was told he would be released shortly but that paperwork needed to be completed. Several video excerpts were played which appeared to correspond to some of these interactions, though the video did not contain audio. When he was ultimately released, he requested a taxi, and one was called for him. He took the taxi to a hotel.
Video recordings from the police detachments
[45] Excerpts from the series of recordings from the two police detachments were played for several witnesses and were made an exhibit.
[46] On the recordings which display the detention cell, the wall next to the toilet displays a large warning reminding detainees that they are being video-recorded. When the accused goes to the toilet to urinate, he remains fully clothed. No portion of his body that was not previously visible becomes visible to the camera lens. When the accused makes his way to the toilet he does so very casually and without hesitation. There is nothing visible to suggest he appears concerned about being seen or being recorded, though the camera angle does not show his face.
[47] None of the recordings shown demonstrate clear independent evidence of significant impairment or of belligerence on Mr. Grewal’s part.
Part Three: Analysis
3.1 The ASD / mouth alcohol issue
[48] Section 8 of the Charter guarantees the right to be secure against unreasonable search and seizure. Section 9 of the Charter guarantees the right not to be arbitrarily detained. Cst. St. Marseille’s arrest of the accused coupled with a breath demand implicates both rights, and the linchpin question for both issues is whether the officer had reasonable grounds to believe that the offence of 80 plus had been committed.
[49] The parties agree that at the time the officer made the arrest and demand he had the requisite grounds. Mr. Grewal argues, however, that shortly after obtaining the Fail result, the officer learned that there was a partially empty bottle of liquor in the accused’s vehicle, which would give rise to the “inevitable conclusion” that the accused was drinking shortly before being arrested. This, the applicant argues, ought to have alerted the officer to the potential that the ASD sample was inaccurate due to the presence of mouth alcohol and therefore undermined his grounds both for the arrest and the breath demand, resulting in a breach of both ss. 8 and 9 of the Charter.
[50] It is uncontroversial that for the breath demand and arrest to be lawful, the officer must subjectively have an honest belief that the suspect has committed the requisite offence, and objectively there must exist reasonable grounds for this belief.
[51] The parties agree that a Fail result on an ASD does not automatically provide objectively reasonable grounds to proceed with an arrest and a breath demand. Per the Supreme Court of Canada in R. v. Bernshaw, [1995] 1 S.C.R. 254, a Fail result may be insufficient where a police officer is aware of circumstances that make the results of the test unreliable: para. 45. The parties also agree that consumption of alcohol within 15 minutes prior to the ASD being administered can render the results of the test unreliable, a fact known to the arresting officer in this case.
[52] If I conclude that Cst. St. Marseille did in fact believe the accused to have recently consumed alcohol, and that he considered that fact and developed the view that the Fail result was unreliable, then it follows that he lacked the subjective grounds to believe a requisite offence had been committed.
[53] But I do not disbelieve the officer in this regard. I accept his explanation, given in a straightforward manner, that when presented with his colleague’s discovery of the bottle, it did not occur to him that this might impact his previous assessment of the situation. Following the arrest, the officer’s mind would have been occupied with the next steps in the investigation, including transporting the accused. It is quite plausible that the potential relevance of the newly discovered bottle was overlooked, even for a veteran officer. I find that the officer accepted the reliability of the Fail, and consequently had subjective grounds for the arrest and breath demand.
[54] Does the officer’s failure to consider the presence of residual mouth alcohol render those subjective grounds unreasonable? The Court of Appeal for Ontario’s decision in R. v. Notaro, 2018 ONCA 449, provides important guidance. As the court summarized, at para. 22:
There can be reasonable grounds even where an officer fails to consider the presence of residual mouth alcohol. This will be so where, despite the officer’s failure to consider the presence of residual mouth alcohol, the officer honestly believes that the ASD fail result shows that the driver has more than 80 milligrams of alcohol in 100 millilitres of blood, and the information known to the officer at that time provides reasonable grounds for that belief.
[55] Put another way, “the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so”: R. v. Bush, 2010 ONCA 554, at para. 70; Notaro, at para. 34.
[56] There is no dispute that Cst. St. Marseille’s observations, including the accused’s utterances that he had been drinking the evening prior, the odour of alcohol on the accused’s breath, slight unsteadiness on the part of the accused, and the Fail result, would, in the ordinary course, be sufficient reasonable and probable grounds to believe the requisite offence had been committed. Does the discovery of the open bottle undermine those grounds?
[57] In my view, it does not. This was not a case where the officer had any direct evidence of residual mouth alcohol. There was no observed consumption within the previous 15 minutes. There was no admission to consumption within the previous 15 minutes. On the contrary, there was a denial of consumption in that period. The case is not meaningfully distinguishable from those where an accused is observed by police exiting a bar. In Notaro, for example, where the new information—that the accused may have left the bar in the last ten minutes—“raised no more than a mere possibility that [the accused] could conceivably have consumed alcohol immediately before departing the bar”: para. 4; see also para. 54; R. v. Einarson, [2004] O.J. No. 852 (C.A.), at para. 35; R. v. Mastromartino, [2004] O.J. No. 1435 (S.C.), at para. 23.
[58] There has been no breach of the accused’s s. 8 and 9 Charter rights in this regard.
3.2 The first right to counsel issue: the false dichotomy of options
[59] Section 10(b) of the Charter provides persons detained or arrested by the police with the right to obtain advice from a lawyer without delay and to be informed of that right. It obligates police to (i) inform detainees of their right, (ii) provide detainees with a reasonable opportunity to exercise that right, and (iii) refrain from taking investigative steps, including questioning the detainee, until they have had the opportunity to speak with a lawyer if they so choose: R. v. Bartle, [1994] S.C.J. No. 74, at para. 17.
[60] Mr. Grewal’s first complaint under s. 10(b) is that the police failed in their obligation to inform Mr. Grewal of his right to counsel, a breach of the informational component of the right. His argument is that despite police reading him the standard version of his right to counsel when they arrested him at the roadside, the police’s subsequent articulation of his right to counsel at the police detachment gave him the impression that his choice of counsel was limited to a list of lawyers kept by the police or the Legal Aid Ontario Duty Counsel 1-800 number programme.
[61] The informational component of the s. 10(b) right is critical. A person who does not understand their right cannot be expected to assert it. A person cannot be said to have waived their right to counsel if they are not possessed of sufficient information to make an informed choice about exercising it: Bartle, at para. 22. With this purpose in mind, the jurisprudence has expanded the scope of the police duty to inform to include the requirement that a detainee be advised of the existence and availability of Legal Aid duty counsel: see R. v. Brydges, [1990] 1. S.C.R. 190, at p. 206.
[62] In the usual course, the general right to counsel advice provided in Ontario, which was used here and includes reference to the language of the section and the availability of duty counsel, is sufficient for the police to discharge their informational duty: R. v. Ruscica, 2019 ONSC 2442, at para. 47. But special circumstances may operate to require something more from police. For example, an accused’s response which might indicate a misunderstanding of the nature of s. 10(b) rights would require a further explanation: R. v. Devries, [2009] O.J. No. 2421 (ONCA), at para. 38. A language issue that comes to the attention of an officer would also require that officer to inform the detainee that they can speak to a lawyer in another language: R. v. Nguyen, 2020 ONSC 7783, at para. 52. There are other examples which have been identified in the jurisprudence, including an injured accused, an accused with a mental disability, or significant intoxication.
[63] In many cases, evidence that the accused does not understand their right to counsel will emanate directly from the accused. But in others, the police themselves will do or say something to undermine the accused’s understanding of the full scope of their right. For example, where an officer reads the standard police advice, which includes reference to “any lawyer”, but then offers a single option at the police detachment, the initial proper advice is nullified. This was held to be a breach of s. 10(b) in R. c. Benoit, 2022 ABQB 46, at para. 48.
[64] The present case is a further example. At the GSPS detachment the choices of how the accused might avail himself of the right to counsel were presented as binary: the local list provided or 1-800 duty counsel. Rather than being asked an open-ended question about who he would like to call, Mr. Grewal was shown what S/Sgt. Young called “our list” and was told the police were going to get him a lawyer. He was told it was his choice, but “choice” must be understood in the context of the list that was being discussed. The only other option provided was the 1-800 number. When that option was articulated, it was offered not as an alternative to any lawyer he might choose, but as an alternative to picking a “local lawyer”, another reference back to the list provided by the police.
[65] The impact of this was to exclude from consideration the entire set of other licensed lawyers in Ontario, including those who might be known to the accused. The false dichotomy of options was presented to the accused before he was ever asked who he would like to call. Despite being told at the roadside, at least 40 minutes earlier, that he could select “any lawyer”, this accused, and a reasonable person in their position, would understand at the time of implementation that their choice was that presented by S/Sgt. Young at the detachment. In fact, Mr. Grewal’s evidence, which I accept in this regard, is that he did develop that erroneous understanding of the scope of his s. 10(b) rights.
[66] The police cannot be held to a standard of perfection. As the Court of Appeal for Ontario observed in Devries, at para. 36:
It is fruitless to search for phrasing that does not have any potential to mislead anybody in any given situation. Rather than pursuing the hopeless task of finding absolutely unambiguous language, compliance with s. 10(b) must be measured by its ability to convey the essential character of the s. 10(b) rights to the detainee— the right to immediate access to a lawyer, including access through the toll-free number to immediate free legal advice.
[67] In my view, however, the way the police explained Mr. Grewal’s options fell below a standard necessary to convey an essential character of his 10(b) right: that he could contact any lawyer of his choosing.
[68] There was no onus on Mr. Grewal to speak up and ask about whether he could contact another lawyer who was not on the list. The Supreme Court’s guidance in Bartle is clear: a person who does not understand their right to counsel cannot be expected to assert it. The onus is on police to provide accurate information about the right to counsel, not on the accused to cure inaccurate information by probing to discover the true scope of their right. The present case is distinguishable from R. v. Zoghaib, where the accused’s unexpressed desire to speak with his or her own lawyer was not a breach of s. 10(b). In Zoghaib, the accused’s misapprehension of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought process, not the actions or statements of police.
[69] For these reasons, I conclude the police breached the informational component of Mr. Grewal’s s. 10(b) rights.
[70] It bears emphasizing that the court takes no issue with police officers presenting different options and resources to a detainee. A list of local lawyers who have provided after-hours contact information for these circumstances could be of great benefit to a detainee. The problem is in the presentation of such an option as one of two exclusive choices, thereby confusing a detainee’s understanding of their right. Police must take care to avoid such an outcome. Had the steps taken by police in this case included a simple clarification that Mr. Grewal could also provide the name of a lawyer not on the list, there would be no breach.
3.3 The second right to counsel issue: privacy
[71] An additional component to the s. 10(b) right to consult counsel is the right to do so in private. Privacy must be afforded to the detainee, even absent a specific request: R. v. Gilbert, [1988] 40 C.C.C. (3d) 424 at p. 428. The privacy requirement extends beyond actual privacy. If the accused believes they could not speak in private, and that belief is reasonably held, then s. 10(b) is breached: R. v. Cairns, [2004] O.J. No. 210 (C.A.), at para. 10. A court must examine the totality of the circumstances in assessing these issues: R. v. Burley, [2004] O.J. No. 319 (C.A.), at para. 24.
[72] Mr. Grewal was afforded actual privacy. I accept the evidence of S/Sgt. Young, who was positioned outside of the ‘telephone room,’ that she could not hear the accused’s conversation with counsel. It is corroborated by the evidence of Cst. Bennett, who has familiarity with the setup, and who testified that officers are not able to hear what’s going on inside the consultation room. And while the audio from recording outside the room is not a perfect analogue for what would be audible to the human ear, I note that the recordings do not capture the conversation between the accused and counsel.
[73] I am not persuaded that the partially transparent door to the room, combined with S/Sgt. Young’s occasional glimpses into the room, inhibited the accused’s privacy. These glimpses were much less intrusive than sustained video monitoring, which practice has been found to not inhibit actual privacy, in the absence of evidence that the conversation was heard by officers: R. v. Farquarson, 2014 ONSC 6641, at paras. 41-43.
[74] What of the accused’s belief that he was not afforded privacy? I accept the accused’s description of his ability to hear muffled voices of officers, who he could sense standing near the door. This evidence was uncontradicted. Mr. Grewal was the only witness who experienced the events from within the consultation room. I also accept that as a matter of common sense it would give rise to a concern that his voice might be audible, at least in some form, to the officers outside.
[75] I do not, however, accept that this ultimately impacted his belief that he could retain and instruct counsel in private. While perhaps less than ideal, he testified that he tried to keep his conversation private, which I take to mean he took steps such as lowering his voice. It is less than ideal that a detainee would be required to take such steps, but I find the evidence lacking with respect to how and whether the accused’s concerns persisted despite his mitigation efforts. Moreover, in assessing whether an accused believes they were not afforded privacy, I may consider as a factor whether they indicated such a concern to the officers present or to counsel: see, for example, Cairns, at para. 14; R. v. Peyton, [2007] O.J. No. 3723, at para. 19. [2] In this case the accused clearly understood the privacy imperative but raised no such complaint. Nor did Mr. Fournier when he was put on the phone with the police. This cuts against the accused’s present assertion that he felt constrained.
[76] The accused bears the onus of demonstrating a breach of s. 10(b) on a balance of probabilities. I am not persuaded, on the evidence before me, that the accused in fact believed he was restricted in his ability to retain and instruct counsel during his call. This ground of the Charter application is dismissed.
3.4 The third right to counsel issue: premature termination
[77] Mr. Grewal alleges the police breached his s. 10(b) rights further by terminating his phone call with counsel prematurely. Section 10(b) requires police to provide detainees with a reasonable opportunity to consult with counsel. It is axiomatic that an opportunity is not reasonable if it is arbitrarily terminated before the consultation is complete.
[78] There may be cases where there is justification for the police to interrupt or suspend an accused’s consultation with counsel, but no such exigency is offered here. The accused’s phone call with Mr. Fournier lasted only a few minutes. It concluded when Mr. Grewal, without hanging up, told S/Sgt. Young that Mr. Fournier needed “his cell phone” so he can contact him. S/Sgt. Young told Mr. Grewal that he could call Mr. Fournier back when he was done at the detachment, and that police would provide him with Mr. Fournier’s number. Mr. Grewal then spoke into the phone, saying “yeah, I’ll give them the phone”, and after a brief exchange Mr. Grewal handed the phone to the officer. The officer spoke with Mr. Fournier, who asked her to give his contact information to Mr. Grewal, which she agreed to do. The officer then terminated the call and directed Mr. Grewal to step into the breath room.
[79] Mr. Grewal testified that he did not view his consultation with Mr. Fournier to be complete. There is no evidence Mr. Grewal told S./Sgt. Young that he was finished speaking with Mr. Fournier. S/Sgt. Young did not ask Mr. Grewal directly. Mr. Grewal did not end the call himself. More troublingly, shortly before the officer ended the call she told Mr. Grewal, “Well if you’re done just hang up.” Mr. Grewal responded “They’re [Mr. Fournier] not done they just want to speak with you.” If this response was not a clear signal the call was incomplete, it ought to at least have put the officer on notice that some clarification was required.
[80] Instead, it appears the officer assumed the call had come to its natural conclusion, because the topic had shifted to an exchange of contact information for future purposes. This assumption was not a reasonable one to make in the circumstances, and it precipitated a breach of Mr. Grewal’s s. 10(b) right to counsel.
[81] I am cognizant that it is not only the officer’s conduct which must be evaluated. In R. v. Willier, [2010] S.C.J. No. 37, the Supreme Court of Canada observed as follows, at para. 42:
…Unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel.
[82] Willier concerned an accused who, informed by an officer that their counsel of choice was unlikely to return a call quickly (it was a Sunday), accepted the option of calling duty counsel, and thereafter expressed satisfaction with the legal advice he received before submitting to an interview. The court held Mr. Willier was not entitled to express that satisfaction, fail to complain, remain silent at trial, only to seek a finding the advice was inadequate due to its brevity.
[83] The present case is factually distinguishable from Willier, and while a reasonable diligence standard still applies, what is required of an accused will differ according to context. What is reasonable for a detainee who ends a call on their own accord is in my view different that what is reasonable for a detainee whose call of only a few minutes was terminated by the actions of the police. In the present case, insisting on a further vocalized objection from Mr. Grewal—additional to his indication that his lawyer was not done—ignores the power imbalance, and places too high a burden on the detainee. Mr. Grewal’s conduct was reasonably diligent in the context and is not a barrier to the court’s conclusion that his s. 10(b) rights were breached in this additional way.
3.5 The ‘overholding’ issue
[84] A detention that is initially lawful may become arbitrary contrary to s. 9 of the Charter when the conditions justifying the detention cease to exist: R. v. Iseler. Where, as here accused has been arrested without a warrant, there is a statutory duty for the arresting officer to release the accused as soon as practicable: Criminal Code, s. 498. Once standard investigative steps such as breath tests have been completed, the question becomes whether there is a further justification for the accused’s continued detention.
[85] When the Crown seeks to justify continued detention under s. 498, an evidentiary burden arises requiring the Crown to explain the reasons for the detention: R. v. Larocque, 2020 ONSC 4740. The court must evaluate whether the police considered the statutory criteria in deciding whether to detain or release the accused and determine whether their course was objectively reasonable. The proper approach was discussed by Durno J. in R. v Price, 2010 ONSC 1898, at para. 93:
The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established. [3]
[86] In the present case, the justifications offered for the accused’s continued detention were his level of intoxication and his belligerence; the fear being the accused would present a danger to himself or others if released.
[87] The initial decision to detain the accused following breath tests was made by Cst. St. Marseille. I found his evidence on this issue to be less than satisfactory. With respect to the question of intoxication, I would tend to be deferential to the officer—he had the greater opportunity to assess the accused’s state—but he offered no detailed explanation for his conclusion that the accused was not safe to release. He referenced neither the accused’s BAC, [4] nor any physical or mental criteria underpinning his concerns. He testified that there were no family or friends who might collect the accused but agreed that he never asked the accused about such options. He explained the accused was not in a condition to address that question, which in my view is contradicted entirely by the objective video evidence in this case. That video evidence demonstrates the accused was entirely able to carry on a polite, respectful conversation with police. Indeed, the accused’s presentation in the video recordings is not at all indicative of belligerence. Nor did any of Cst. St. Marseille’s colleagues testify as to belligerent behaviour. In fact, the accused was described as cooperative. The only specific evidence with respect to belligerence was accused’s disparaging statements made to Cst. St. Marseille during transport from the scene, hours earlier.
[88] But perhaps more troubling is that once Cst. St. Marseille’s involvement ended, there was no further assessment of the accused’s state between the time he was lodged in cells (1915 hours) and the time of his release (0152 hours). Moreover, Cst. Richard, who ultimately released the accused, testified that he did not have any concerns prior to that.
[89] The Crown has not tendered evidence justifying the accused’s continued detention for 6.5 hours at the OPP detachment. The accused’s s. 9 right was breached.
3.6 The privacy issue while urinating
[90] The warrantless videorecording of an individual using toilet facilities while in police custody can be an unreasonable form of search contrary to s. 8 of the Charter: R. v. Mok, 2014 ONSC 64, at para. 82. There is no different standard to be applied based on the sex of the detainee: R. v. Noel, 2015 ONSC 2140, at para. 42.
[91] Cases where breaches have been found often include the exposure of the detainee’s genitalia, buttocks, or upper thigh: Mok, at para. 49; R. v. Griffin, 2015 ONSC 927, at para. 7. In Noel, there was no evidence available as to the nature of the detainee’s exposure, but the trial judge accepted that the male detainee was likely fully exposed: para. 43. Section 8 has been found to be breached, however, even absent this type of exposure. For example, in the cases R. v. Stennett, 2016 ONCJ 77 and R. v. Singh, 2016 ONSC 1144, the defendants were seen standing in front of the toilet and urinating, fully clothed, with their backs to the camera, with no buttocks or genitalia visible. The difference in levels of invasiveness as between the cases does not appear to impact the question of whether there has been a breach, but rather only the appropriate constitutional remedy.
[92] Where, however, the detainee is advised they will be video-monitored, and the privacy concerns are mitigated by the availability of a privacy screen for the detainee’s lower body, or some similar alternative, then there is no breach: Mok, at para. 77. As long the detainee in those circumstances is advised of the availability of the screen, privacy gown, or alternative, and fails to use it, there is no breach: R. v. Persaud, 2017 ONCJ 799, at para. 27-30.
[93] Mr. Grewal admitted he was aware the detention cell was being video-recorded. This issue then turns on whether he was advised the blankets provided to him could be used for privacy. The onus is on the accused to demonstrate, on a balance of probabilities, that he was not.
[94] Despite the irregularity on the form used by Cst. Richard, I accept it is more likely than not that he explained the privacy function of the blankets when he provided them to Mr. Grewal. While the officer may have had no specific recollection of saying so in this case, his practice is to pair the explanation with the provision of blankets. While Mr. Grewal was adamant that he did not receive an explanation, I am unconvinced he would be able to recall that omission with such certainty. I think it more likely that Mr. Grewal simply chose not to bother with the blankets, and was unconcerned about urinating, while fully clothed, with his back to the camera.
[95] It is entirely possible that Cst. Richard skipped over this important step in his process, but Mr. Grewal has failed to demonstrate its likelihood on a balance of probabilities. This ground of the Charter application is dismissed.
3.7 Remedy
[96] Having found the police to have breached Mr. Grewal’s s. 10(b) right to counsel in two ways, as well as his s. 9 right not to be arbitrarily detained, the court must consider the appropriate remedy. Mr. Grewal seeks exclusion of evidence, including the samples taken of his breath, under s. 24(2) of the Charter. I will limit my analysis to the breath samples, as the Crown has acknowledged it cannot obtain a conviction absent that evidence.
[97] As a threshold matter, s. 24(2) of the Charter only operates to exclude evidence where an accused demonstrates, on a balance of probabilities, that the evidence proposed for admission was “obtained in a manner” that infringed their Charter right. That the s. 10(b) breaches meet the “obtained in a manner” threshold is uncontroversial; the breath samples were taken following those breaches and there exits a clear temporal nexus. The s. 9 breach, which occurred following the breath testing, poses a more difficult question. It is not, however, a question I must resolve. In determining whether the s. 10(b) breaches warrant the exclusion of evidence, the additional s. 9 breach is a factor I may consider. And, on that analysis, to follow, I conclude that the evidence should be excluded.
[98] That analysis must apply and track the framework set out in R. v. Grant, 2009 SCC 32, at para. 71:
…When faced with an application for exclusion under s.24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute….
[99] In evaluating, first, the seriousness of the Charter-infringing state conduct, the main concern is preservation of public confidence in the rule of law, and courts must consider the potential need to distance themselves from the state’s conduct. That need will be greater in cases of wilful or reckless disregard of rights, rather than inadvertent or minor violations: Grant, at para. 72. While good faith on the part of police may reduce the need for dissociation, ignorance of Charter standards must not be rewarded. Negligence is not good faith: Grant, at para. 73.
[100] In the present case, this first factor weighs in favour of excluding the evidence. The right to counsel while detained is fundamental to individual liberty and personal autonomy and is a lifeline for detainees: R. v. McGuffie, 2016 ONCA 365, at para. 80; R. v. Rover, 2018 ONCA 745 at para. 45; R. v. MacMillan, 2019 ONSC 3560, at para. 76. Here, there was not simply one breach of s. 10(b), but two. While the provision of a list of local counsel to a detainee takes on a superficial appearance of helpfulness, it cannot distract from what was a cavalier approach to a core aspect of the right to counsel: choice. That the call was ended without confirming its completion with Mr. Grewal adds to the court’s concern that police were more focused on expediency than on Charter-compliance. That theme re-emerges with respect to the breach of s. 9 of the Charter.
[101] The second branch of the Grant framework focuses on the impact of the breach or breaches on the Charter-protected interests of the accused. Was the impact fleeting and technical, or profoundly intrusive? The court must concern itself with whether the admission of the evidence might breed cynicism about illusory Charter rights: Grant, at para. 76. In my view, admission in this case would have just such an effect. The ‘choice’ element of s. 10(b)—neither new nor complex—is a core aspect of the right to counsel and recognizes the importance both of the independence of counsel and of trust in the solicitor-client relationship. I accept the accused’s evidence that he had his own lawyer in mind, with whom he had a previous relationship and with whom he would have attempted to consult if aware of the opportunity. Permitting admission of the evidence in these circumstances would signal to the public that any lawyer is satisfactory and would tend to erode the constitutional imperative of choice.
[102] The premature termination of the call must also be viewed as on the more serious end of the scale. It was neither technical, nor fleeting. The Court of Appeal for Ontario has recognized the important psychological value access to counsel has for a detainee, who otherwise may have a sense of helplessness about their circumstances: R. v. Rover, 2018 ONCA 745, at para. 45. Here, the police actions interrupted, on a final basis, the accused’s opportunity to meaningfully consult with counsel, which struck at the core of the Charter-protected interest. This factor too, weighs in favour of exclusion.
[103] The third line of inquiry recognizes society’s expectation that criminal allegations be judged on their merits and asks whether the truth-seeking function of the criminal trial process is better served by the evidence’s admission or exclusion: Grant, at para. 79.
[104] While the third factor weighs against exclusion, in my view it is overborne by the other considerations emphasized above. In my view, in regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The evidence will be excluded.
Part Four: Conclusion
[105] The evidence is excluded pursuant to s. 24(2) of the Charter. The Crown has invited an acquittal on both charges in that event, and acquittals are so entered.
Released: October 9, 2024 Signed: Justice G. Jenner
[1] At times the officer was not able to confirm the accuracy of document provided by counsel, but I rely on the excerpts provided based on the agreement between the parties. It also corresponds in all material respects with what I hear when I listen to the recording. [2] Though a proper consideration in assessing the accused’s asserted belief, it does not follow that in assessing actual privacy, an accused has an obligation to request greater privacy than is required: see R. v. Gilbert, [1988] O.J. No. 1 (C.A.) at p. 4. [3] In R. v. Sapusak, [1998] O.J. No. 4148, the Court of Appeal for Ontario upheld a decision which found no. s. 9 breach where the police relied only on the detainee’s BAC. In R. v. Kavanaugh, 2017 ONSC 637, the court concluded that relying on Price despite Kavanaugh is a reversible error. To the extent Price casts doubt on BAC alone as a justification for continued detention, it should not be followed, but in my view the balance of the guidance in Price remains a helpful and applicable guide. In any event, this is not a case in which the evidence suggests BAC was a lone factor, or a factor at all. A BAC of 260 might provide a reasonable standalone basis to continue a detainee’s detention, but the evidence does not disclose that was in fact the basis relied on by the officers in this case.