ONTARIO COURT OF JUSTICE
DATE: April 2, 2025
COURT FILE No.: Brampton 998 23 31111268
BETWEEN:
HIS MAJESTY THE KING
— AND —
ROY CHRISTIE
Before Justice G.P. Renwick
Heard on 01 April 2025
Reasons for Judgment released on 02 April 2025
J. Mahal...................................................................................... counsel for the Prosecution
R. McCartney........................................................ counsel for the Defendant Roy Christie
REASONS FOR JUDGMENT ON THE CHARTER APPLICATION
RENWICK J.:
INTRODUCTION
[1] The Defendant is charged with the two standard drink-driving offences and resisting arrest.
[2] In advance of the trial, the Defendant brought a Charter Application for alleged violations of his ss. 8, 9, and 10(a) Charter rights. The prosecutor responded to this Application in writing at the start of the trial, yesterday. No issue was taken with respect to the late response.
[3] The parties agreed to proceed with the trial and the Charter Application concurrently in a “blended” forensic environment. The parties seek a ruling on this Application in advance of the continuation of the trial (closing submissions), later today.
[4] The prosecution called three witnesses: Mr. Peter Hull (a concerned motorist), Police Constable Anwar Chaar (an arresting officer), and Police Constable Joshua Champagnie (the Qualified Technician).
[5] The issues for determination in this judgment are whether the Defendant’s Charter rights were violated, and if so, whether the evidential breath sampling results should be excluded from the Defendant’s trial.
APPLICABLE LEGAL PRINCIPLES
[6] Though the Defendant generally has the onus to establish violations of the Charter on a balance of probabilities, [1] where there is a warrantless search, as in this case, the prosecutor must establish that the search was conducted reasonably and pursuant to some lawful authority. [2] Thus, both parties have an onus: the Defendant must prosecute his Charter claims that the police had failed to advise him of the reason for his detention and that he had been arbitrarily detained and/or his arrest was arbitrary; while the prosecutor has to establish that the seizure of the evidential breath samples followed a lawful arrest and breath demand, and otherwise complied with the statutory regime.
[7] Obtaining reasonable grounds to believe that an offence has been committed does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable, rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, they need not be found to be correct.
[8] The standard of reasonable grounds to believe is credibly-based probability. [3] Alternative explanations for observed signs of possible alcohol-related impairment do not undermine reasonable grounds, unless the officer unreasonably discounted information of which she was aware. Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. [4] An officer is entitled to rely on hearsay, unless there is reason to doubt the information’s truth.
[9] Reasonable grounds are not proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as her belief is reasonable and there was no reason for her to doubt the information she believed.
[10] The Ontario Court of Appeal affirmed these principles in R. v. Notaro:
The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70"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."
This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person. [5]
[11] Relatedly, our Court of Appeal considered the standard for a warrantless arrest in R. v. Carelse-Brown, [2016] O.J. No. 6564. At paragraph 28 of Carelse-Brown, the Court quoted from its decision in R. v. Golub:
In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [6]
[12] The law respecting the obligation of the police to inform individuals of the reason for their detention is well settled. Ordinarily, the start of an investigative detention engages an individual’s s. 10(a) Charter right to know the reason for the state’s interference with one’s autonomy or liberty. Information about the reason for one’s detention permits detainees the opportunity to choose whether or not to submit to a detention or arrest. [7]
[13] Breaches of s. 10(a) can be "temporal" or "informational". A temporal breach occurs if a detained person is not promptly informed of the reason for their detention. An "informational" breach arises if the reason for detention is not adequately communicated. [8]
[14] By way of a roadmap, it will be helpful to outline the Charter arguments at play, the evidence and my findings, how the law intersects with the facts, and my conclusions on the Charter Applications.
POSITIONS OF THE PARTIES ON THE CHARTER APPLICATIONS
[15] The Defendant alleged that several Charter violations occurred during the investigation of the Defendant leading to his arrest and a demand for evidential breath sampling. The Charter arguments were framed in the GROUNDS section of the Application as follows:
That the seizure of breath in accordance with the Criminal Code is by way of a warrantless search. As such, the Respondent is obliged to demonstrate that the warrantless seizure was reasonable in the context of s. 8 of the Canadian Charter of Rights and Freedoms;
Since the arresting officer lacked the necessary and reasonable probably [sic] grounds to believe an offence had been committed under s. 320.14(1)(a) of the Criminal Code, he also lacked the necessary reasonable and probably [sic] grounds to arrest the Applicant without a warrant in accordance with the statutory requirements provided for in s. 495 of the Criminal Code. As such, the Applicant was arbitrarily detained in violation of his s. 9 rights under the Charter;
That the entry of the police officers into the Applicant’s garage without specific invitation consulted [sic] an unreasonable search and seizure within the meaning of s. 8 of the Charter;
That s. 10(a) requires that upon detention the reasons be provided. The officer did not inform the Applicant of the reasons for detention immediately, thus breaching his s. 10(a) rights under the Canadian Charter of Rights and Freedoms;
That in the circumstances, the Applicant’s rights pursuant to ss. 8 and 9 were breached and could impact negatively on the fairness of the Applicant’s trial and bring the administration of justice into disrepute;
That the facts warrant exclusion of the evidence, including the breath samples, pursuant to s. 24(2); and
Such further and other grounds as counsel may advise and this Honourable Court may permit.
[16] Orally, the Defendant submitted two other points that expanded upon the grounds for the Application: the Defendant revoked the implied invitation for the police to enter upon his property before his arrest; and there was no evidence in respect of the subjective grounds held by the arresting officer.
[17] The prosecutor responded that there would have been no doubt in the Defendant’s mind why the police were present once they advised him of a driving complaint and the presence of beer in his car, within minutes of their interactions with the Defendant.
[18] As well, the police were lawfully present to investigate a recent driving complaint where they made their own observations consistent with the poor driving alleged: there was open alcohol (beer) visible beside the driver; the Defendant’s pupils were dilated; there was the smell of alcohol coming from the vehicle; and the Defendant had slurred speech. In the circumstances of the 9-1-1 call, the police were either entitled to enter onto private property to investigate a possibly-impaired driver, or, the officers had an implied invitation to attend onto the private property to communicate with the resident about the concerns with the recent driving of the resident’s vehicle.
[19] The parties disagree that there were Charter violations, and the import of any Charter breaches on the admissibility of the breath testing results in this trial.
THE EVIDENCE AND FINDINGS
The Testimony of Peter Hull
[20] This witness testified briefly about a vehicle he was following on highway 410 north one evening in the fall of 2023. Mr. Hull was uncertain, but he thought that the vehicle was a Honda. The vehicle was stopping and failed to move although traffic was clear ahead of it. Mr. Hull would honk his horn and flash his headlights, but the other motorist would take some time before moving the vehicle again. This happened several times over a few minutes. Eventually, Mr. Hull called the police and then he observed the vehicle to exit the highway onto another road, but he could not say where. He never saw any occupants and could not describe the driver.
[21] Understandably, Mr. Hull was not cross-examined. It was unclear if the vehicle he described was the one investigated by the police before the Defendant’s arrest.
The Testimony of Constable Anwar Chaar
[22] Constable Chaar was a police officer for approximately one year on the date of the alleged offences. Despite his lack of experience, he testified credibly and his recollection was good. Some of his body-worn camera (“BWC”) footage became an exhibit (approximately seven minutes and 10 seconds, until 20:30:00).
[23] The BWC video reinforced much of the officer’s testimony and supports my finding that his recollection was not perfect, but he was mostly reliable as a witness. Where the BWC video contradicted the officer’s testimony, I do not find that the witness was trying to mislead the court. Rather, like any historian speaking from his recollection, his testimony suffered from the passage of time and the frailties of memory.
[24] Constable Chaar testified that he had received a radio call involving a 9-1-1 call to the Ontario Provincial Police (“O.P.P.”) about a vehicle that had been north bound on highway 410 that exited in an unknown direction onto Bovaird Drive. The vehicle had a license plate BYDE733, which was registered to an owner who resided at 127 Dumfries Avenue, Brampton. Within 10 minutes, P.C. Chaar arrived at that address and saw the Defendant belted in the driver’s seat of the subject vehicle, which was reversed and parked in the open garage attached to the house, with the headlights illuminated.
[25] The officer arrived at this location after another officer, Chet Phillips, who had parked his police vehicle directly in front of the Defendant’s Honda. The Defendant was in the driver’s seat, hunched over, wearing his seatbelt. He appeared to be unconscious. Upon approaching the passenger’s front window, P.C. Chaar observed an open can of beer, with a straw in it, in the centre console cup holder.
[26] Constable Chaar testified that the driver’s eyes were closed when he first approached and “he was not alerted to me until I knocked on the window.” The BWC footage actually shows the driver lift his head at 20:23:34, which is about five seconds before the officer knocked on the front passenger window (20:23:39). This discrepancy is a small one. Given that there was no evidence that the young officer had seen the BWC video before he testified, I am not troubled by this slight inaccuracy in his testimony. In many other respects, his testimony closely aligned with the video footage.
[27] The BWC footage supported the officer’s recollection that the Defendant was wholly uncooperative with the police. When P.C. Chaar asked the Defendant to roll down his window, it took him about one minute to do so and even then, he only rolled it down about 1-2 inches. Both constables asked the Defendant numerous times to leave his vehicle. He would not. At 20:25:01, P.C. Chaar made it clear why the police were present:
Sir, we got a complaint that you were driving all over the place and you have a beer in the middle console.
This statement was made approximately 87 seconds into the interaction with the Defendant.
[28] Of significance, P.C. Chaar testified that he could see that the driver’s eyes were dilated when they spoke. He could smell alcohol coming from the car. He could see open liquor. The officer testified that the Defendant was not complying with the police requests to unlock the car and to exit. Both constables warned the Defendant that they would break the window to get him out of the vehicle.
[29] On the police video, P.C. Phillips is heard several times threatening to arrest the Defendant for obstructing the police. The Defendant was unmoved. He even told the police “arrest me then” at 20:27:13.
[30] Constable Chaar even asked the Defendant his name and at 20:28:08 he replied, “I don’t have to tell you nothing.” At 20:28:52, P.C. Phillips advised the Defendant that he was “under arrest for impaired operation.” This was followed by P.C. Chaar who echoed, “we’re telling you you’re under arrest” at 20:29:15. Again, following several more warnings, P.C. Phillips eventually broke the driver’s window at 20:29:33 and he opened the car door and took the Defendant into custody.
The Testimony of the Qualified Technician, Joshua Champagnie
[31] This witness testified briefly about his interactions with the Defendant and the breath sampling procedure he undertook using an approved instrument.
[32] Except for the breath testing results, which are the subject of the request to exclude evidence, this testimony is entirely unrelated to the Charter Application and need not be reviewed here.
ANALYSIS
There Was No Breach of S. 10(a) of the Charter
[33] Section 10(a) of the Charter requires the state to “promptly” notify individuals when they are arrested or detained and the reason(s) for same. This permits an individual to make an informed decision whether or not to submit to the arrest or detention. It is also important information in the context of exercising the concomitant right to counsel.
[34] Obviously, the pre-condition for provision of the informational component of the s. 10(a) right is a detention or arrest.
[35] In R. v. Suberu, the Supreme Court discussed the threshold issue (was there a detention):
In Grant, we adopted a purposive approach to the definition of "detention" and held that a "detention" for the purposes of the Charter refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.
While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole. [9]
[36] The court in Suberu also relied upon a portion of its earlier decision in R. v. Mann:
"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint. [original emphasis] [10]
[37] The Defendant submits that there was a detention when the police blocked his vehicle and approached him in his garage. The prosecutor conceded that the Defendant was detained at this point.
[38] Respectfully, it is arguable that the Defendant was detained when the police initially approached. While it was obvious that the police were investigating a possibly impaired driver, P.C. Chaar also testified, and I accept, that as he approached, he saw the Defendant slumped over the steering wheel (suspended by the seat belt), with his head down. This is clearly evident in the BWC video. Constable Chaar testified in chief that this was also a “well-being check.” He was concerned about the possibility of a “medical episode.”
[39] I find that until P.C. Chaar approached the passenger side and the Defendant awoke, there was no detention.
[40] The delay from the initial detention (20:23:34) until the Defendant was told why the police were present (20:25:01) is approximately 87 seconds. During this time, P.C. Chaar made the following demands or comments: “can you roll your window down; turn the car off; turn the car off; get out of the car; sir, turn the car off and get out of the car; his car’s not on, no; the lights are just on, the car’s off; roll your window down, sir; get out of the car; it’s locked.”
[41] The Defendant did not actually crack open his driver’s window until 20:24:45. Within 16 seconds, P.C. Chaar explained the reason for the Defendant’s detention.
[42] I find that the Defendant’s refusal to roll down his window was the sole reason for the delay in advising the Defendant why the police were present. The police can be heard raising their voices in order to be heard through the closed car windows. Their frustration was likely growing, which is understandable. The police were standing beside a vehicle occupied by an uncooperative driver who may be impaired by alcohol, while they were in a confined space. The officers did not know the driver or what his motivations were. If the driver had decided to re-engage his car and attempt to depart, despite the police vehicle in his way, the officers would certainly have been in danger had the Defendant’s car moved, even slightly.
[43] In these circumstances, I am not satisfied that there was any delay in advising the Defendant why he was being investigated. I am also satisfied that it was reasonable for the police to continue to demand the driver to leave his car in light of his refusal to open his window to permit the police to fully communicate with him. The Defendant’s actions and his lack of cooperation completely derailed what could have been a short conversation about the reason for police concern.
There Was No Breach of S. 8 of the Charter
[44] The Defendant submitted that the police were essentially trespassing when they attended inside his garage and attempted to gather evidence unlawfully. Moreover, if there was an implied license given to the police to enter the garage to communicate with the Defendant, it was revoked when he refused to cooperate and told the police, “fuck you,” at 20:25:35.
[45] The prosecution’s reliance on R. v. McColman may be misplaced. That decision considered the authority of the police to effect a stop of a motorist on private property to ascertain sobriety under provincial legislation, where the intention to stop the motorist crystalized before the motorist left the highway. The Supreme Court agreed with the lower appeal courts that provincial legislation permissive of random sobriety checks did not authorize random traffic stops on private property. I do not find that the judgment assists to determine the legality of a traffic stop for a drink-driving investigation despite the fact that the “judgment does not constitute a blanket ban on police stops of drivers on private property.” [11]
[46] There are at least two sources of police authority to detain motorists for criminal investigations on private property: the common law and s. 320.27 of the Criminal Code.
[47] In R. v. Lotozky, [12] the Court of Appeal considered the lawfulness of criminal investigations conducted by the police while on private property. In that case, in response to a complaint of a possibly impaired driver, police drove to the registered address for the vehicle. Police waited and eventually observed the defendant drive onto his property and park before they approached him to investigate.
[48] Speaking for the majority, Rosenberg J.A. considered whether four elements of the police conduct constituted a search: the attendance upon the driveway, tapping on the window to get the driver’s attention, questions about a driver’s license, ownership, and insurance, and a breathalyzer demand. The latter was clearly a search or seizure authorized by law. However, if the police had trespassed, the search would not have been carried out reasonably. Of the remaining steps the court held:
At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put another way, not every trespass onto private property by police can constitute a search. I would not place a possible trespass onto a driveway open to public view in the category of a search or seizure.
As regards the other two aspects of the police conduct, I tend to think that merely tapping on the window, like peering into a window with a flashlight, does not involve a search. Asking routine questions of a motorist about licence, ownership and insurance similarly would not seem to be the type of questioning that would lead to a finding of a sufficient intrusion into a reasonable expectation of privacy. See R. v. Grant, 2006 ONCA 18347 at para. 36. Finally, cases concerning questioning of motorists in drinking and driving situations have turned on issues such as right to counsel and detention; not search and seizure. See most recently: R. v. Elias, 2005 SCC 37 at para. 41. Obviously, the fact that the courts have not dealt with this element of the drinking and driving paradigm as a search issue is not determinative, but it does suggest to me that in most cases the search and seizure threshold is not crossed until the breathalyser demand is made. Elias at para. 41, is also helpful in clarifying that checking sobriety of drivers is lawful at common law. If the police conduct was unlawful in this case it was only because it took place on the driveway as opposed to a public highway. Since, as I explain below, I have concluded that the police were not unlawfully on the driveway, the fact that they questioned the respondent on his driveway to check his sobriety did not render that particular investigative technique unlawful.
Accordingly, I am of the view that the violation of the respondent's s. 8 rights must relate to the fact that the police made the demand while they were on private property. If, contrary to the findings of the trial judge and the appeal judge, the police were lawfully on the property when they made the demand, the search was reasonable having been authorized by a reasonable law and carried out in a reasonable manner. [13]
[49] The higher appeal court held that the doctrine of implied license permitted the police attendance onto the private driveway. Relying on one of its earlier decisions, the Court of Appeal affirmed the principle that property owners permit members of the public, including the police, to attend the door of a residence to communicate with the residents. To be sure, the implied license to attend onto private property also imports a resident’s right to withdraw the implied license by asserting the right to privacy and the right to be left alone.
[50] The court in Lotozky held that the context of the police visit was important:
A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the implied invitation must be analyzed in that context.
The fact that the police officer intends to pursue an investigation on the driveway, at least if the investigation relates to a motor vehicle, does not in my view exceed the bounds of the implied invitation, provided that the officer has a legitimate basis for entering on the driveway. Interpreting the common law in this way is, in my view, consistent with the broader principle identified by Sharpe J.A. that licences may arise by implication from the nature of the use to which the owner puts the property. As I have said, the use to which this property is put is to park motor vehicles and it is an area of the property that is open to public view.
The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the car associated with the address was apparently impaired. [14]
[51] To summarize, the police were obligated to investigate a possibly impaired driver. That led them to the Defendant’s residence. From the street, it was obvious that the same vehicle observed by a witness several minutes earlier was now parked, in the Defendant’s open garage. The vehicle appeared to have been recently driven (the headlights were still on and the driver was still buckled in). The police walked a short distance onto the driveway and into the garage to check on the driver, who initially appeared to be unconscious. The interaction with the driver was immediately stymied, which did little to allay the police concerns.
[52] Constable Chaar was clear and consistent during his testimony in chief and under cross-examination that there was a dual purpose to his entry onto private property: investigation of a possibly-impaired driver, and a well-being check.
[53] The Defendant submitted that there is a difference between entering onto a driveway and into a garage. If there is a difference, I do not find that it is material in the circumstances of this case:
i. The garage door was completely open;
ii. The vehicle was clearly visible from the street;
iii. The vehicle appeared to have been recently driven – its headlights were on and the driver was still present and wearing a seatbelt; and
iv. The driver appeared to be unconscious.
[54] In the circumstances, the implied license doctrine permitting police (and other members of the public) to attend to a front door and knock, to attempt to communicate with a home’s resident(s), would be entirely frustrated if the police could not check on the well-being of a motorist, plainly visible from the driveway leading to the front door, possibly having a “medical episode.”
[55] There are at least two other reasons to be unconcerned about the police entrance into the Defendant’s garage. I note that the garage protrudes in front of the residence. The police covered less distance by walking up the driveway and into the garage, than they would have walked had they passed the open garage to approach the front door. Also, the garage does not have an entrance into the home. Although there is a door on the right side of the garage as one enters, it obviously leads to the yard at the side of the house. Being inside the open garage was no more intrusive of the privacy interests of the occupants (if any) of the house than standing on the front lawn.
[56] After a careful review of the BWC video, I cannot find any revocation of the implied license to approach the Defendant on his private property in either his words or conduct. He never told the police to leave his property despite his apparent comfort in the unfortunate belief that the police had no authority over him. His use of an expletive was general in nature and unhelpful to signal that the police were no longer welcome on his property. Moreover, there is nothing in the Defendant’s comments or behaviour which indirectly supports a finding that he had revoked the implied invitation of the police to enter his garage. The message that he would not cooperate with the police was loudly received while the message that the police had to leave was never sent.
[57] The Criminal Code provides a secondary source of police authority for approaching the Defendant on private property. I find that the statutory provisions governing drink-driving investigations include breath screening demands made well after a motorist has ceased to operate a motor vehicle. Although the statute is silent about where a screening demand may be made, I conclude that the police were authorized to make a breath screening demand of the Defendant when he was first found in the care and control of his car in his garage. That said, this authority was not argued as a justification for the police interactions with the Defendant.
There Was No Breach of S. 9 of the Charter
[58] Constable Chaar was initially concerned about the possibility that the Defendant was the driver referred to by a witness who had called police about poor driving only minutes before the police arrived at the Defendant’s home. [15]
[59] Given the vehicle’s proximity, its make, and the license plate, the Defendant’s car was apparently the same as the one observed by the witness. When first seen, the car appeared to have been recently driven (its headlights were still on). The Defendant was apparently passed out in the driver’s seat. A “medical episode” soon became the least likely explanation for the poor driving and the Defendant’s state.
[60] Before long, it was obvious to the police that the Defendant was the suspect driver who had driven from the 410 highway given his position in the car, his fastened seat belt, the report of driving consistent with alcohol consumption, the Defendant’s initial apparent unconsciousness, the presence of open alcohol beside him, and the Defendant’s immediate unwillingness to lower his window or to exit his vehicle. As their interaction continued, the Defendant’s lack of cooperation, his dilated pupils, the smell of alcohol, his slurred speech (which is apparent in several parts on the video footage), and his demeanor and use of foul language, all told of a single probable explanation – the driver was likely impaired by the consumption of alcohol.
[61] The entire interaction between the Defendant and P.C. Phillips was less than six minutes (20:23:34 to 20:28:52) when that officer told the Defendant, “you’re under arrest for impaired operation.” Within 16 seconds, P.C. Chaar similarly concluded, “we’re telling you you’re under arrest.”
[62] In his written submissions, the Defendant states that the “arresting officer lacked the necessary and reasonable probably [sic] grounds to believe an offence had been committed…” In his oral submissions, the Defendant focussed on the lack of direct evidence in respect of P.C. Phillips’ subjective grounds for an arrest. This officer never testified. Leaving aside whether there is indirect evidence of that officer’s beliefs (he actually told the Defendant that he was under arrest, so, presumably he believed he had the grounds to do so), I am satisfied that P.C. Chaar’s evidence establishes that there was a lawful arrest.
[63] During his evidence in chief, Constable Chaar testified that he arrested the Defendant. He told the court his grounds and his belief that he had advised the Defendant of his arrest for impaired driving before P.C. Phillips. After the BWC video was played, during cross-examination, it was suggested to P.C. Chaar that although he had testified that he had told the Defendant that he was under arrest, it was actually P.C. Phillips who arrested the Defendant. Constable Chaar agreed with this suggestion. He was mistaken to do so.
[64] As indicated above, P.C. Chaar re-iterated that the Defendant was under arrest at 20:29:15 when he said, “we’re telling you you’re under arrest.” I find that this statement aligned well with P.C. Chaar’s testimony that he had formed the view that the Defendant was impaired by alcohol and he could be arrested for that offence based on all of the evidence P.C. Chaar was aware of up until that point:
i. A complaint of poor driving;
ii. Open alcohol;
iii. The smell of alcohol;
iv. Dilated pupils;
v. Slurred speech;
vi. An unwillingness to open the driver’s window despite multiple requests and threats of an arrest;
vii. An unwillingness to fully open his window when he finally complied; and
viii. The Defendant’s attempt to cover his open can of beer with a bag.
[65] I further find that it was objectively reasonable to come to this conclusion given the appearance and conduct of the Defendant captured on the BWC footage:
i. The Defendant appeared confused;
ii. The Defendant did not seem to be able to find the button to open his window (he indicated “one minute” with his index finger before finally finding the right button);
iii. The Defendant swore at the police;
iv. The Defendant refused to give his name;
v. The Defendant repeated himself about his presence in his garage; and
vi. When told why the police were arresting the Defendant he repeatedly asked, “for what” and “what did I do.”
[66] There was neither an arbitrary detention when police first began to investigate the Defendant, nor was there an arbitrary arrest when P.C. Chaar arrested the Defendant while apparently in the care and control of a motor vehicle while impaired in his ability to do so by the prior consumption of alcohol.
[67] Given my firm conclusions on the Application and the short turnaround of these reasons, I do not see fit to engage in a theoretical discussion in respect of the effect of Charter violations that have not been proven.
CONCLUSION
[68] The Defendant has failed to establish any Charter violations on a balance of probabilities. Accordingly, the Application is dismissed.
[69] All exhibits will become numbered exhibits on the trial.
Released: 02 April 2025
Justice G. Paul Renwick
[1] R. v. Collins, [1987] S.C.J. No. 15 at para. 21.
[2] Collins, supra, at para. 23.
[3] Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] S.C.J. No. 36.
[4] R. v. Storrey, [1990] S.C.J. No. 12 at para. 17.
[5] R. v. Notaro, [2018] O.J. No. 2537 (C.A.) at paras. 34-35.
[6] R. v. Golub, [1997] O.J. No. 3097, at para. 18.
[7] R. v. Kumarasamy, 2011 ONSC 1385 at para. 42.
[8] R. v. Roberts, 2018 ONCA 411, [2018] O.J. No. 2279 (C.A.) at para. 63.
[9] R. v. Suberu, 2009 SCC 33, [2009] SCJ No 33 at paras. 21-22.
[10] Suberu, supra, at para. 23.
[11] R. v. McColman, 2023 SCC 8, at para. 49.
[12] R. v. Lotozky, [2006] O.J. No. 2516 (C.A.).
[13] Lotozky, supra, at paras. 18-20.
[14] Lotozky, supra, at paras. 32 and 35-36.
[15] I accept P.C. Chaar’s testimony that he was made aware of the driving complaint at 8:16 p.m., which was only seven minutes before he arrived on scene.