Ontario Court of Justice
Between:
His Majesty the King
— and —
Andrew McCluskey
Before Justice Peter Scrutton
Heard on April 1, 2025
Judgment released April 16, 2025
L. Petryshen for the Crown
H. R. Wellington for the Defendant
Overview
[1] Andrew McCluskey is charged with having a blood alcohol concentration exceeding the legal limit within two hours of operating a conveyance. He was stopped at a RIDE check by members of the Toronto Police Service just after 11:00 p.m. on December 9, 2023. The police had set up at an intersection not far from the Scarborough Town Centre, near an area with many licensed establishments. It is accepted by both parties that Mr. McCluskey’s section 8 and 9 Charter rights were breached in the course of his interaction with police. It is also accepted that the breath samples he provided into an approved instrument establish the elements of this offence. The issues I must decide are whether there were additional Charter breaches and whether his breath samples should be excluded pursuant to s. 24(2) of the Charter.
The Evidence
[2] The team set up the RIDE check at 9:45 p.m.; it was anticipated to finish around 4:00 a.m. A number of officers and scout cars, a supervisor, and at least two Approved Screening Devices (ASD) were on scene. The entirety of the interaction between the police and the defendant was audio and video recorded.
[3] After flagging down Mr. McCluskey’s Jeep, P.C. Ryan Pulumbarit asked if he had consumed any alcohol that night. McCluskey answered: “ya, maybe a couple of hours ago.” His response prompted P.C. Pulumbarit to demand that he provide a sample of his breath into an Approved Screening Device. For hygienic reasons, it is standard practice to provide each detainee with a new mouthpiece prior to using an ASD. Unbeknownst to P.C. Pulumbarit, the team had run out of mouthpieces at the time he gave Mr. McCluskey the ASD demand. P.C. Pulumbarit learned about this shortage when he went to get the device from a scout car. He was advised that the supervisor on scene had left to bring mouthpieces back to the RIDE check. P.C. Pulumbarit did not know how many mouthpieces they had started out with that night or how many cars had been stopped before Mr. McCluskey’s but he could see from the counter on the ASD that it had been used a number of times.
[4] P.C. Pulumbarit advised Mr. McCluskey that he would have to wait, told him that he was being detained, and provided him rights to counsel. Mr. McCluskey asked if he could refuse to provide a sample; P.C. Pulumbarit said that he could not but because of the delay Mr. McCluskey could call a lawyer or duty counsel for free legal advice with a 1-800 number that he could provide. He reiterated that because of the “holding pattern”, he wanted Mr. McCluskey to know that he could make a phone call. Mr. McCluskey indicated that he understood and declined.
[5] Twelve minutes elapsed between the time P.C. Pulumbarit realized there were no mouthpieces on scene and the time he was provided a mouthpiece at 11:15 p.m. Mr. McCluskey provided a sample without incident. It registered a “fail” and P.C. Pulumbarit arrested him for “over 80”, demanding that he provide a sample of his breath into an approved instrument. He cautioned him and provided rights to counsel again. Mr. McCluskey was taken to a mobile RIDE command centre with a qualified breath technician and facilities for detainees to consult counsel that had been set up a short drive away. They arrived at 11:30 p.m.; Mr. McCluskey spoke to duty counsel 9 minutes later. He provided his first breath sample at 12:20 a.m.; his blood alcohol content (BAC) was 140 mg of alcohol in 100 ml of blood. His second sample, provided at 12:43 a.m., indicated a BAC of 130 mg of alcohol in 100 ml of blood.
[6] P.C. Pulumbarit testified that at the time he made the ASD demand he was not aware they were out of mouthpieces and believed he would be able to obtain a sample immediately. When he went looking for mouthpieces, he learned that steps were already being taken to obtain more. P.C. Pulumbarit understood that a valid demand required that the ASD device be operational. He believed his demand was valid because at the time he made it he had a working device and no reason to think he could not use it to take a breath sample. He would not have allowed Mr. McCluskey to leave the scene during their wait. Mr. McCluskey was detained and would have been arrested for refusing to provide a sample had he attempted to leave because P.C. Pulumbarit had a responsibility to ensure that the roads were safe.
[7] P.C. Pulumbarit denied the suggestion that he would not have actually facilitated a call to counsel from the roadside if Mr. McCluskey had requested one. He explained that he had already permitted Mr. McCluskey to use his cell phone earlier in their interaction, something that is clear from the video. He said he would have looked for a private place for Mr. McCluskey to make the call and would have let Mr. McCluskey call from inside his Jeep if he was satisfied there was nothing in it to be concerned about.
The Parties’ Positions
[8] Defence counsel argues that P.C. Pulumbarit breached Mr. McCluskey’s section 8, 9, 10(a) and 10(b) Charter rights. He submits that everything that followed the invalid ASD demand was unlawful and that evidence of the breath samples should be excluded pursuant to s. 24(2) of the Charter because of the inter-related, successive Charter violations.
[9] Crown counsel concedes that Mr. McCluskey’s section 8 and 9 rights were breached in virtue of the fact that P.C. Pulumbarit’s demand was invalid at the time he made it because he could not use the ASD to obtain the samples immediately. She characterized the breach as a technical one which was the product of good faith and ought not to result in the exclusion of the breath samples Mr. McCluskey provided at the station. Crown counsel disputed any other Charter breaches.
Section 8 and 9 of the Charter
[10] P.C. Pulumbarit’s initial detention of the defendant in the context of the RIDE spot check was lawful: R. v. Dedman, [1985] 2 S.C.R. 2; R. v. Elias, 2005 SCC 37. I agree with defence counsel, however, that this detention became unlawful when P.C. Pulumbarit continued it for the sole purpose of having the defendant provide a sample of his breath into an ASD. While the defendant’s utterances clearly furnished the requisite legal basis to make the ASD demand,[1] the detention became arbitrary when P.C. Pulumbarit continued it for the purpose of administering the ASD when he was unable to do so: R. v. Breault, 2023 SCC 9; R. v. Robbins, [2025] M.J. No. 62 (K.B.).
[11] P.C. Pulumbarit did not note or observe any indicia of impairment during his interactions with the defendant. Because his grounds to arrest were based entirely on the results of the ASD, which must be excised from the Charter analysis, all of the state action that followed, including the defendant’s arrest and the samples of his breath that were collected at the station must be characterized as consequential Charter breaches: R. v. Zacharias, 2022 SCC 30; R. v. Tavora, 2024 ONSC 6568 (S.C.A.) at para. 39. I am satisfied, though, that the absence of a fully functioning ASD is the only state action (or inaction) that contributed to the subsequent Charter breaches here. Put differently, had the ASD demand been valid, everything that followed would have occurred in a constitutionally compliant manner.
Section 10(a) and 10(b) of the Charter
[12] There was no breach of s. 10(a) of the Charter. P.C. Pulumbarit advised Mr. McCluskey that he was detaining him for a RIDE check immediately upon directing him to pull over. He also told him that he was being detained pursuant to the ASD demand when he made that demand. The officer informed the defendant of his right to counsel at the roadside as soon as he realized that he would not be able to operate the ASD without delay. The audio and video recording make clear that he told the defendant he would allow him to make a private call to counsel while they waited for new mouthpieces to arrive.
[13] I accept P.C. Pulumbarit’s evidence that he would have facilitated this call had the defendant decided to avail himself of that offer. P.C. Pulumbarit appears almost sheepish about the delay in his interactions with the defendant on the video. He was friendly and conversational. I find that he was trying to be helpful and am satisfied that his offer to allow Mr. McCluskey to call duty counsel was sincere.
[14] After seeing that Mr. McCluskey had failed the ASD, P.C. Pulumbarit advised him of his rights to counsel immediately upon arresting him for over 80. He fulfilled the implementational component of that right by putting the defendant in touch with duty counsel less than 10 minutes after their arrival at the mobile police station. I am satisfied that there were no deficiencies in either the form or substance of how P.C. Pulumbarit advised Mr. McCluskey of his s. 10(b) rights or how he implemented them.
Section 24(2) of the Charter
(a) The Seriousness of the Charter-Infringing State Conduct
[15] The first line of inquiry under s. 24(2) asks whether the Charter-infringing state conduct was sufficiently serious as to warrant disassociation from it. The spectrum of seriousness runs from inadvertent or minor to wilful or reckless disregard for Charter rights: R. v. Zacharias, supra at para. 51; R. v. Grant, 2009 SCC 32 at para. 74. The consequential breaches of sections 8 and 9 of the Charter relating to Mr. McCluskey’s arrest and the breath samples the police collected at the station must be considered under the first two parts of the Grant analysis but because those breaches flowed only from the initial unlawful conduct, and not any subsequent act or omission, they do not significantly increase the overall seriousness of the conduct at issue: R. v. Zacharias, supra, at para. 52.
[16] I would not describe this as a “technical breach”, given the Supreme Court of Canada’s determination in Breault that police must be able to administer an ASD immediately if they are going to detain someone for the purpose of demanding a sample. I agree with the Crown, though, that this breach was inadvertent and the product of good faith. The defendant’s initial detention pursuant to the RIDE stop was lawful. P.C. Pulumbarit had grounds to detain the defendant and make an ASD demand in virtue of the defendant’s admission that he had recently consumed alcohol. P.C. Pulumbarit believed he would be able to administer the ASD immediately. When he learned that he would be unable to do so, he ameliorated the situation as best he could, having regard to the public safety concerns raised by a potentially impaired driver, by providing rights to counsel and offering to facilitate a call to counsel. It is unfortunate that the RIDE check ran out of mouthpieces and also that no one advised P.C. Pulumbarit of this but I accept his evidence that there are a lot of “moving parts” to RIDE spot checks. In the circumstances, I am satisfied that this was a minor breach.
(b) The Impact on the Charter-Protected Interests of the Accused
[17] To assess this factor, I must consider the interests engaged by the infringed rights and examine the degree to which the violation impacted those interests: R. v. Grant, supra, at para. 77. This analysis is not limited to the initial state action on which the consequential breaches are premised but requires consideration of the defendant’s subsequent arrest and the collection of his breath samples at the station. It bears repeating here that Mr. McCluskey’s initial detention was lawful because a fully operational ASD is not a constitutional precondition of a RIDE spot check, it is only a precondition to a valid ASD demand. The absence of a new mouthpiece added precisely 12 minutes to what began as a lawful detention. In that time, Mr. McCluskey was given the opportunity to speak to counsel, was treated cordially and respectfully, and no attempt was made to obtain evidence that could incriminate him. The opportunity to speak to counsel at the roadside prior to providing a breath sample, which Mr. McCluskey declined, distinguishes this scenario from R. v. Kubacsek, 2021 ONSC 5081 at para. 66 and R. v. MacMillan, 2019 ONSC 3560 at para. 30, authorities upon which defence counsel relies.
[18] Mr. McCluskey’s arrest was unlawful because the failed ASD result must be excised from review of P.C. Pulumbarit’s grounds to arrest. If the police had repeated the ASD demand once the new mouthpiece arrived, it is arguable that this demand would mean the subsequent ASD sample, arrest, and collection of breath samples at the station were done lawfully, such that there were no consequential breaches, and the only impact on his Charter-protected rights was the 12-minute detention at the roadside. Regardless, the collection of his breath samples was minimally intrusive. So, while Mr. McCluskey’s unlawful arrest occasioned a serious intrusion on his liberty, in my view, the aggregate impact on his Charter-protected rights was only moderately serious.
(c) Society's Interest in an Adjudication on the Merits
[19] The third line of inquiry asks whether the truth-seeking function of the trial process would be better served by admission of the evidence or by its exclusion. The court must consider both the negative impact of admission of the evidence and the impact of excluding it on the long-term repute of the administration of justice: R. v. Grant, supra, at para. 79; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 36. The evidence in this case is real, reliable, and crucial to the Crown’s case. Mr. McCluskey’s BAC was significantly above the legal limit. Operation of a vehicle while “over 80” is a serious offence that engages real public safety concerns. Society has a significant interest in a trial on the merits: R. v. Tavora, supra, at para. 58.
[20] The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute: R. v. Whittaker, 2024 ONCA 182. In my view, the first two Grant factors do not pull strongly toward exclusion. The predicate breach was minor and its impact was attenuated by the opportunity to consult counsel. This court does not need to disassociate itself from the manner in which the breath samples were obtained. In the circumstances, I think that an informed, reasonable person would conclude that exclusion would bring the long-term reputation of the administration of justice into disrepute.
[21] Mr. McCluskey’s application to have the evidence excluded pursuant to s. 24(2) is dismissed. I find him guilty of the offence charged.
Dated: April 16, 2025
Justice Peter Scrutton
[1] P.C. Pulumbarit was relying on s. 320.27(1) of the Code rather than s. 320.27(2).