ONTARIO COURT OF JUSTICE
DATE: 2025-04-24
COURT FILE No.: 998 23 31110011
BETWEEN:
HIS MAJESTY THE KING
— AND —
ROBERT MONTET
Before Justice Paul F. Monahan
Trial held March 19 and 20, 2025
Reasons for Judgment released on April 24, 2025
Counsel:
J. Mahal — counsel for the Crown
O. Bedi — Counsel for the defendant
MONAHAN J.: Introduction and Overview
[1] The defendant is charged with one count of having equal to or more than 80 mg of alcohol in 100 mL of blood in his body within two hours of ceasing to operate a motor vehicle contrary to section 320.14(1)(b) of the Criminal Code. The alleged offence date is September 4, 2023. Having failed an Approved Screening Device (“ASD”) test at the roadside, Mr. Montet blew into an Intoxilyzer at the police station with blood alcohol content (“BAC”) readings as follows: 252 mg of alcohol in 100 mL of blood at 3:03 AM; and 259 mg of alcohol in 100 mL of blood at 3:26 AM.
[2] The defence brought a Charter application at trial seeking to exclude the evidence of the breath samples. The defence alleges violations of sections 7, 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The trial and the Charter application were heard, on consent, on a blended basis.
[3] The Crown called two witnesses: the arresting officer, Peel Regional Police (“PRP”) Officer Bona and PRP officer and breath technician Rebecca Scott Krawczyk. The defence called no evidence on the trial proper or on the Charter application.
[4] This case turns on whether there was one or more Charter violations and, if so, whether the evidence of the breath samples should be excluded under section 24(2) of the Charter.
[5] I will address the Charter issues in the following order: section 7, 8, 9 and 10(b).
Section 7
[6] As indicated above, the defence alleges a section 7 Charter violation. Section 7 of the Charter provides that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
[7] The defence argued here that the defendant had a wet spot on his crotch area which was likely urine and that the police failed to meet their “obligation” to offer him fresh clothing and that this amounted to a section 7 Charter violation.
[8] In the case at bar, the defendant was asked by Officer Bona whether he had urinated himself and he said he had not. Officer Bona said there was no smell of urine. The defendant did not testify on the trial or on his Charter application. Notwithstanding that it is the defendant’s onus on a section 7 application, there is no proof that the defendant did in fact urinate himself and the evidence from the defence is that he had not done so. The wet spot on his crotch could have been from water or a drink. In my view, having been told by Mr. Montet that he had not soiled himself, the police had no obligation to do anything further. There was no section 7 violation. There is no reasonable comparison between this case and the cases cited by the defence namely R. v. Sathymoorthy, 2014 O.J. 2333; and R. v. Stoney, 2015 O.J. 6291.
Section 8
[9] Section 8 of the Charter provides protection against unreasonable search and seizure. The provision of breath samples in response to an ASD demand and/or an Intoxilyzer demand is a warrantless search. The onus on a section 8 application is on the Crown to prove that the search was reasonable. In the case at bar, the arresting officer, Officer Bona testified that he smelled alcohol coming from the breath of Mr. Montet as Mr. Montet sat in the driver seat of the vehicle with the passenger window down. The defence pointed out that the notes of Officer Bona did not mention the alcohol being on the breath of Mr. Montet. I was not shown the note but it apparently did not distinguish between the smell of alcohol coming from the driver or the car.
[10] I accept Officer Bona’s evidence at trial that he smelled alcohol coming from Mr. Montet’s person and that it was reasonable for him to suspect that Mr. Montet had alcohol in his body and that he had been operating a motor vehicle in the previous three hours. This gave him grounds to make an ASD demand under section 320.27(1).
[11] In addition, Officer Bona had the basis under section 320.27(2) to make an ASD demand because Officer Bona had an approved screening device with him and he was in the course of exercising powers under the Criminal Code. In this case, Officer Bona and his fellow officer, Officer Davis, jointly had in their possession an ASD and either could make an ASD demand. In fact, Officer Davis made the first demand and Mr. Montet produced a failure. After learning that Mr. Montet had been drinking five minutes before, the police officers waited until 1:16 AM to do a further test. Officer Bona made the second demand for an ASD sample which also produced a fail. The two police officers wanted to eliminate any issues with respect to residual mouth alcohol. This was a reasonable step to take. The point here is that Officer Bona had the basis to make an ASD demand under section 320.27(1) and under section 320.27(2): see R. v. Rahmanian, 2024 ONCJ 411 at paras 25 to 30. By reason of the foregoing, there was no section 8 violation.
Section 9
[12] Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained”. The defence alleges an arbitrary detention amounting to a violation of section 9 on the basis of an alleged overholding. Mr. Montet provided his second breath sample at 3:26 AM which registered 259 mg of alcohol in 100 mL of blood. The defence points out that Mr. Montet was not released until 9:59 AM which was about 6.5 hours after his last breath sample was provided.
[13] The staff Sgt. was obliged to consider all of the relevant factors including the BAC readings; his blood alcohol content at the proposed time of release; whether the accused was charged with impaired; whether the vehicle was impounded; whether the defendant had a criminal record and whether there was a responsible person available to pick him up. The staff Sgt. is not to be guided by the BAC readings only. The factors to be considered are set out in R. v. Price, 2010 ONSC 189 at para 93.
[14] Both Officers Bona and Krawczyk testified that the ultimate decision to detain or release Mr. Montet was on the staff Sgt. in charge of the detachment that night. Officer Krawczyk testified that she knew the decision-making process followed by the staff Sgt. She explained that she gave the breath readings to the staff Sgt. and the staff Sgt. would wait until the detainee was no longer intoxicated before releasing him. The staff Sgt. would want to make sure that the person could take care of themself. The staff Sgt was told by Officer Krawczyk that there was no responsible person to pick Mr. Montet up so he was aware of this factor. She testified that Mr. Montet was twice the legal limit and so he would need to wait a couple of hours. In fact, Mr. Montet was three times the legal limit.
[15] Mr. Montet raised with Officer Krawczyk the possibility of calling an Uber to which Officer Krawczyk said it would be up to the staff Sgt. to decide if this was acceptable.
[16] Officer Krawczyk explained that a person will lower their blood alcohol content each hour by 15 mg of alcohol in 100 mL of blood. This means that in 6.5 hours, Mr. Montet’s blood alcohol content would reduce by 97.5 mg of alcohol in 100 mL of blood. Accordingly, 6.5 hours after his last breath reading his BAC would be approximately 161.5 mg of alcohol in 100 ml of blood (using his last BAC sample of 259). This means that Mr. Montet’s BAC would still have been twice the legal limit for driving a car at the time he was ultimately released at 9:59 AM.
[17] The assistant Crown Attorney prosecuting this case at trial advised the Court that the staff Sgt. was not available to testify in this case. The parties did consent to the admission into evidence of an agreed statement of facts which included a “prisoner details report” prepared by the staff Sgt.
[18] The agreed statement of facts shows that Mr. Montet was monitored by the staff Sgt and was well treated while in detention. In particular, the agreed statement of facts indicates that Mr. Montet was checked on every half hour during his time in detention and he was fed at 5:59 AM.
[19] It would have been better to have the staff Sgt. testify at trial. However, it can be inferred on this record that the staff Sgt. was aware of and considered the Price factors. The staff Sgt. would know that Mr. Montet had no criminal record and that his car was impounded. They would also know that he was not charged with impaired but only over 80. Further, they would know the BAC readings and the rate of elimination. They also knew that there was no responsible person to pick Mr. Montet up.
[20] There is no evidence as to how Mr. Montet actually got home that morning. Even the releasing of Mr. Montet at 9:59 AM with a blood alcohol content of 160 mg in 100 mL of blood which is what happened here posed a significant risk of liability for the police. In the event that Mr. Montet injured himself accidentally after being released, there could well be liability on the police.
[21] The defence position appears simply to be that the police should have released Mr. Montet earlier perhaps into the care of an Uber driver. It would make no sense to delegate responsibility for Mr. Montet’s well-being to an Uber driver when his BAC was so high.
[22] Mr. Montet chose not to testify on his Charter application. The onus on a section 9 Charter application is on him. The police held Mr. Montet for 6.5 hours after his last breath sample during which time Mr. Montet’s BAC went from three times the legal limit for driving a car to twice the legal limit for driving a car. There was no responsible person to pick him up and take responsibility for Mr. Montet’s well being. Mr. Montet’s BAC was extremely high throughout his time in custody. In fact, his BAC was on the rise between the two breath samples. In the face of all of the evidence in this case, the defence has failed to meet its onus to establish on a balance of probabilities that the police kept Mr. Montet longer than they should have and that there was a section 9 Charter violation.
[23] For the reasons outlined above the defence has not established a section 9 Charter violation.
Section 10(b)
[24] The defendant submits that there was a section 10(b) violation due to a failure by the police to provide rights to counsel while they were waiting 13 minutes between ASD samples. The waiting occurred because Mr. Montet advised after his first ASD sample registered a failure that he had recently consumed alcohol. The defence also submits that there was a 10 minute delay in providing rights to counsel from the time of the arrest of 1:18 AM until 1:28 AM and that this amounted to or contributed to a section 10(b) Charter violation. The defence also referred to the breath technician’s plan to obtain breath samples before the defendant had spoken to duty counsel.
[25] I consider that Officer Bona was essentially a rookie police officer. He could have moved more quickly but I am not satisfied that there was a section 10(b) violation. Let me explain why.
[26] Mr. Montet gave one breath sample into an ASD at 1:03 AM which produced a fail. This was in respect of a sample provided to Officer Bona’s partner Officer Davis at 1:03 AM. Mr. Montet then advised that he had just recently had an alcoholic drink so the officers had to wait for the residual mouth alcohol to be eliminated before conducting another test.
[27] In R. v. Bell, 2009 ONCA 321 the Ontario Court of Appeal cited the SCC in R. v. Bernshaw, 1995 SCC 37, 95 C.C.C. (3d) 193 and the Ontario Court of Appeal in R. v. George, 2004 ONCA 46 at para 46 for the proposition that “when there is a 15 minute delay for the purpose of obtaining a proper breath sample, the demand is valid and the delay is a justified limitation on the right to counsel under section 10(b)”. Applying Bernshaw, Bell and George, there was no right to counsel while they waited 13 minutes for the mouth alcohol to be eliminated. Accordingly, there was no section 10(b) violation for the time that passed between 1:03 AM and 1:16 AM. I would add that there was no time to call and consult with duty counsel during these 13 minutes. One only has to look at the time it took once at the station to connect with duty counsel to reach the conclusion that 13 minutes would not be enough time to both contact and consult with duty counsel.
[28] The next period is from 1:18 AM to 1:28 AM. The second fail was generated at 1:16 AM and the arrest was at 1:18 AM. It seems to me that the failure must have been closer to 1:17 or 1:18 AM. In any event, it is clear that the defendant was not arrested until 1:18 AM. Officer Bona explained that after the arrest at 1:18 AM, Mr. Montet was handcuffed and searched and placed in the back of the cruiser. Accordingly, he was in the cruiser by approximately 1:21-1:22 AM. Officer Bona said he searched Mr. Montet on the computer so that he would understand who he was “dealing with”. This was not an unreasonable step. This would have taken until about 1:23-1:24 AM. He said that during the time from 1:24 to 1:28 AM, Mr. Montet was argumentative with Officer Bona and was saying that he (Mr. Montet) was not the driver of the vehicle.
[29] The defence played the breathroom video for the court and had Officer Bona agree in cross-examination that Mr. Montet demonstrated the same demeanour on the breathroom video as he did by the roadside. He also had Officer Bona admit that on the breathroom video, Mr. Montet was more confused than argumentative.
[30] The defence submitted in closing arguments that Mr. Montet was not argumentative on the breathroom video and that it must be the case that he was not argumentative with Officer Bona at the roadside and that therefore there was no justified delay in failing to provide rights to counsel from 1:24 to 1:28 AM.
[31] The difficulty I have with this argument is as follows: Officer Bona explained that he was wearing a body worn camera that night. Defence counsel told the court that they would be playing the 30 minute body camera video of the roadside interactions with Mr. Montet. The defence then chose not to play any part of the body worn camera video associated with Officer Bona’s roadside dealings with Mr. Montet and asked the court to make a finding of a section 10(b) breach based on an alleged lack of argumentative behaviour on the breath room video and the related cross-examination set out above. The defence has the onus on a section 10(b) allegation. The defence apparently has video evidence of the roadside dealings between Officer Bona and Mr. Montet. Officer Bona said that Mr. Montet was argumentative at the roadside. If that was to be challenged, the best evidence, namely the video should have been put to Officer Bona and played for the Court so that the Court could decide if there was a section 10(b) violation. I repeat that the s. 10(b) argument is a defence onus. In any event, whether Mr. Montet was argumentative by the roadside or merely confused it would not be inappropriate for the officer to take a few minutes to make sure the detained person understood what was occurring. The court should not second-guess every step by a police officer in the course of an arrest. The police officer may need to listen to an arrested person and respond to them: see R. v. Rossi, 2017 ONCJ 443 at para 34 and 35.
[32] In the case at bar Officer Bona has explained what caused the 10 minute delay from 1:18 AM to 1:28 AM in him giving rights to counsel. I am not prepared to make a section 10(b) breach finding for what occurred between 1:18 and 1:28 AM. I am satisfied that Officer Bona’s conduct during this time was not a section 10(b) violation.
[33] Before leaving the section 10(b) analysis I observe that the breath technician Officer Krawczyk almost violated Mr. Montet’s right to counsel but she did not do so. Let me explain. When Mr. Montet was given rights to counsel at the roadside, he asked to speak to duty counsel. After they arrived at the police station, duty counsel was called at 1:54 AM but duty counsel did not call back promptly. Officer Bona placed a second call to duty counsel at 2:35 AM.
[34] Officer Krawczyk was apparently growing impatient waiting for duty counsel to call back and she had Mr. Montet brought into the breath room at 2:36-2:37 AM. She indicated that they had been waiting for duty counsel to call back for almost 50 minutes. She testified that she would have gone ahead with the breath tests if duty counsel had not called back. Fortunately, duty counsel did call back at 2:45 AM before any evidence was obtained from Mr. Montet. Mr. Montet was able and did consult with duty counsel before any breath samples were taken.
[35] Officer Krawczyk appeared poised to breach Mr. Montet’s section 10(b) Charter rights if duty counsel had not call back. She seemed to be treating the call to duty counsel as a counsel of choice issue. She thought she had waited long enough for duty counsel to call back. The police had an obligation to put Mr. Montet in touch with duty counsel before taking the breath samples. Officer Bona’s follow-up call to duty counsel at 2:35 AM (which may have been instigated by Officer Krawczyk) saved Officer Krawczyk from breaching Mr. Montet’s rights to counsel because duty counsel called back and a consultation occurred before the breath samples were taken.
[36] In summary, for the reasons set out above, there was no section 10(b) violation of Mr. Montet’s Charter rights.
Summary
[37] For the reasons set out above, the section 7, 8, 9 and 10(b) rights of Mr. Montet were not breached and the defendant’s Charter application is dismissed. As a result, the readings of 252 and 259 mg of alcohol in 100 mL of blood are in evidence and are not excluded. There will be a finding of guilt on the equal to or over 80 charge under section 320.14(1)(b).
Released: April 24, 2025
Signed: Justice Paul F. Monahan