ONTARIO COURT OF JUSTICE
DATE: 2025-04-24
COURT FILE No.: Brampton 24-31100137
BETWEEN:
HIS MAJESTY THE KING
— AND —
LOVEJIT SINGH
Before Justice Paul T. O’Marra
Heard on March 5 and 6, 2025
Reasons for Judgment Released Orally on April 24, 2025
R. Keenan and S. Mehra — counsel for the Crown
D. Lent — for the defendant Lovejit Singh
Introduction:
[1] On November 3, 2023, Mr. Singh was charged with impaired operation of a motor vehicle, operating a motor vehicle with a blood alcohol concentration exceeding 80 mg of alcohol per 100 ml of blood, and dangerous driving. The Crown proceeded summarily. Mr. Singh pleaded not guilty. The trial took place over two days. I adjourned the matter and reserved my decision for today.
[2] Mr. Singh brought a Charter application to exclude the breath test results, all evidence of the impairment and all other evidence obtained after the alleged breaches of his rights under sections 7, 8, 9, and 10(b) of the Charter. The application proceeded as a blended voir dire. Three witnesses testified for the Crown: Jennie Nguyen, who witnessed the single motor vehicle accident at the exit ramp from Highway 401 onto Hurontario Street in the City of Mississauga; the arresting OPP Officer, Officer Hickey; and the Qualified Breath Technician, Sergeant Nasr. Documents regarding the operation of the approved instrument and a Certificate of Qualified Technician were provisionally introduced as exhibits, subject to the Charter application. Portions of Officer Hickey’s in-car camera footage and a still photograph of Mr. Singh’s heavily damaged car were entered as exhibits. Mr. Singh testified during the voir dire with the assistance of an interpreter only for sections 8 and 9 of the Charter.
Factual Background:
[3] On November 3rd, 2023, at approximately 8:42 p.m., Jennie Nguyen observed the white SUV strike the dividing barrier between Highway 401 westbound collectors and the off-ramp to Hurontario Street in the City of Mississauga. Ms. Nguyen was a passenger in a car driven by her boyfriend. They pulled over to check on the driver, the vehicle's lone occupant, and then called 911. Ms. Nguyen and her boyfriend stayed on the scene until paramedics arrived.
[4] Officer Hickey arrived on the scene at approximately 8:55 p.m. He first located the vehicle and checked if anyone was still inside; no one was. He then proceeded to the ambulance, where he found Mr. Singh, whom the paramedics assessed.
[5] Officer Hickey spoke with Mr. Singh to confirm whether he was the driver and if there had been any other occupants. Mr. Singh confirmed that he was the driver and that no other occupants were in the vehicle. Mr. Singh then provided Officer Hickey with his driver’s licence. Mr. Singh advised Officer Hickey that he was not injured, which the paramedics confirmed.
[6] Officer Hickey then asked Mr. Singh how the accident happened. Mr. Singh stated that he did not know but believed something crossed before him. Officer Hickey noticed that Mr. Singh’s eyes appeared bloodshot and glossy. Officer Hickey then asked Mr. Singh if he had anything to drink, to which he responded that he had “drank a few shots of tequila.”
[7] When the paramedics released Mr. Singh, Officer Hickey directed Mr. Singh to sit in the rear of his cruiser. After Mr. Singh entered his cruiser at 9:06 p.m., Officer Hickey informed him that he would leave the door open as it was extremely windy and cold, and that Mr. Singh was not under arrest. Mr. Singh was also told that the cruiser's interior was audio and video recorded.
[8] At approximately 9:07 p.m., Officer Hickey read the alcohol screening demand, which Mr. Singh indicated he understood. Mr. Singh was removed from the rear of the cruiser to be tested.
[9] At approximately 9:08 p.m., Officer Hickey demonstrated how to use the ASD to Mr. Singh. At approximately 9:10 p.m., Mr. Singh performed the alcohol screening demand/test and registered a failure.
[10] Officer Hickey then placed Mr. Singh under arrest, performed a search incident to arrest, handcuffed and placed him back into the cruiser.
[11] At approximately 9:15 or 9:16 p.m., Mr. Singh was read his rights to counsel, which he understood. Mr. Singh stated that he did not have his own lawyer but would like to speak with duty counsel. Officer Hickey then cautioned Mr. Singh and read him the formal breath demand.
[12] At approximately 9:29 p.m., Officer Hickey began transporting Mr. Singh to the OPP station.
[13] Officer Hickey arrived at the station with Mr. Singh at approximately 9:43 p.m.
[14] Officer Hickey called duty counsel and left a voicemail message. Mr. Singh then asked if he could speak with any lawyer, and Officer Hickey said he could. Consequently, Mr. Singh provided his preferred counsel's name and phone number.
[15] At approximately 9:54 p.m., Officer Hickey called counsel of choice, and Mr. Singh spoke to his counsel privately.
[16] Mr. Singh finished his call at approximately 9:59 p.m. and said he was satisfied.
[17] At approximately 10:04 p.m., Mr. Singh entered the breath room, where Officer Hickey turned him over to the Qualified Breath Technician, Sergeant Nasr. Sergeant Nasr issued a primary and secondary caution and demanded a breath sample.
[18] Mr. Singh subsequently provided two breath samples.
[19] The first test was at 10:18 p.m. and registered 201 mg of alcohol in 100 ml of blood. The second test took place at 10:41 p.m. and registered 185 mg of alcohol in 100 ml of blood.
[20] Mr. Singh was released on an undertaking at approximately 11:17 p.m.
The Issues:
[21] Mr. Lent has raised the following issues:
- Did the Crown prove beyond a reasonable doubt that Mr. Singh was the driver?
If the answer to that issue is "yes" then the following issues are left to be determined:
a) Could Officer Hickey reasonably rely on the “fail” on the ASD due to a potential mouth alcohol issue?
b) After forming a reasonable suspicion that Mr. Singh may have alcohol present in his system, was Officer Hickey's decision to place Mr. Singh in the rear of his cruiser with the doors secured with the intent to administer the alcohol screening demand considered arbitrary detention thereby constituting a breach of section 9 of the Charter?
c) Was Officer Hickey’s delay of 5 to 6 minutes in giving the rights to counsel to Mr. Singh a violation of section 10(b) of the Charter?
d) Did the Crown prove beyond a reasonable doubt that Mr. Singh’s ability to operate a vehicle was slightly impaired by alcohol, contrary to section 320.14(1)(a) of the Code?
e) Did the Crown prove that Mr. Singh drove in a manner that, having regard to all the circumstances, was dangerous to the public, contrary to section 320.17 of the Code?
[22] If the Charter arguments fail, the Crown will have established the elements of the offence of “80 plus,” contrary to section 320.14(1)(b) of the Code.
The Standard of Proof and Onus:
[23] Every person charged with a criminal offence in Canada is presumed innocent until the Crown has proven beyond a reasonable doubt that that person committed the offence with which that person is charged. The onus of proof, as regards proving guilt, never switches from the Crown to the accused. I must consider all the evidence to decide whether the Crown has proven its case to the criminal standard. I may only convict if satisfied that the Crown has established Mr. Singh's guilt beyond a reasonable doubt.
[24] In R. v. Kruk, 2024 SCC 7, the Supreme Court noted that the "overarching principle of the presumption of innocence, enshrined in s. 11(d) of the Charter, and the correlative principle of the Crown's burden of proof must always govern the fact-finding process. The presumption of innocence -- a 'hallowed principle lying at the very heart of criminal law' (R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119) -- requires the Crown to bear the onus of proving all essential elements of the offence charged, beyond a reasonable doubt, before a conviction may be entered.” (See: Oakes at para. 59.)
[25] In R. v. Lifchus, the Supreme Court of Canada indicated that proof beyond a reasonable doubt "does not involve proof to an absolute certainty, it is not proof beyond any doubt nor is it an imaginary or frivolous doubt" (at para. 36). In R. v. Starr, 2000 SCC 40, however, the Court pointed out that the burden of proof placed upon the Crown lies "much closer to absolute certainty than to a balance of probabilities". (See: Starr at para. 242.)
Has the Crown proved that Mr. Singh was the driver?
The Evidence:
Jennie Nguyen’s testimony:
[26] Ms. Nguyen was the passenger in her boyfriend’s car travelling behind a westbound white SUV on Highway 401, approaching the exit to Hurontario Street. As they entered the exit lanes, she observed the white SUV was “wavering” between lanes. The exit lanes consisted of two lanes, and both vehicles were in the left exit lane.
[27] Interestingly, at the outset of her testimony, Ms. Nguyen stated they were following directly behind “Lovejit”. I will return to this characteristic of Ms. Nguyen’s testimony later in my reasons.
[28] Ms. Nguyen witnessed the white SUV drive directly into the divider that separated Highway 401 and the exit lanes to Hurontario Street. The white SUV went airborne and came to rest on the left shoulder of the exit lanes.
[29] After they stopped on the shoulder of the exit lanes, Ms. Nguyen looked back and observed “a man standing outside of his car.” They exited their car, approached the male, and asked if he was hurt or if anyone else was inside the vehicle. The male was uninjured and confirmed that he was alone. Ms. Nguyen did not see anyone else in the vicinity. She called 911.
[30] Ms. Nguyen described the male as tall, approximately six feet, “well kept,” and “looked clean cut.” He had a “tan skin colour.” His “facial hair” was “very well kept,” and he “looked dressed proper.” The male never re-entered his vehicle or left the area. They asked him to “step further away” from the car as they were concerned about the male waiting beside the damaged vehicle.
[31] Ms. Nguyen testified that the paramedics were the first to arrive, approximately 15 to 20 minutes after she called 911, not the police. She testified that the paramedics did a “quick check” on the male. After the paramedics confirmed that she had called 911, she was told they could leave. She thought they left the scene between 9:00 and 9:30. She described the weather as “fine” that evening.
Officer Hickey’s Testimony:
[32] Officer Hickey received the call about this accident at 8:43 p.m. He was advised that a white Lexus SUV was involved in a collision. He arrived at 8:55 p.m.
[33] First responders and a tow truck were already on the scene when he arrived. The heavily damaged white SUV was blocking two lanes of the exit ramp to Hurontario Street.
[34] After Officer Hickey exited his police cruiser, he approached the white SUV and found no occupants.
[35] Officer Hickey testified that he was “directed” to the paramedic's vehicle, where he located Mr. Singh in the rear being assessed by the paramedics. He believed the individual who directed him to the paramedic vehicle was “the independent witness,” who was female and had stopped to check on the driver's well-being.
[36] Officer Hickey spoke to Mr. Singh, who identified himself with his driver’s licence. Mr. Singh confirmed that he was the driver and that no one else was in the car.
Analysis:
[37] There was evidence that Mr. Singh was operating his vehicle when it collided with the barrier, as Ms. Nguyen saw. She observed him standing outside of the damaged vehicle. No one else was nearby or close to the damaged vehicle. There was no evidence that anyone other than Mr. Singh had been in the vehicle.
[38] The Crown cannot rely on any conscripted evidence, such as Mr. Singh’s pre-cautioned statements inside the EMS van, to prove the issue of identity. Statements of the accused without the right to counsel can only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired. They cannot be used as direct evidence to incriminate the driver. (See: R. v. Elias, 2005 SCC 37.)
[39] In R. v. Soules, 2011 ONCA 429, leave to appeal refused [2011] S.C.C.A. No. 375, the Ontario Court of Appeal ruled that any statements compelled by statute are not admissible in evidence against that person; such derivative use would violate the right against self-incrimination, soon after Parliament responded by enacting section 320.31(9).
[40] Police are empowered to investigate drivers for impaired driving both at common law and pursuant to provincial highway legislation. Evidence they obtain from questioning the driver or compelled roadside sobriety tests before the detained person can access counsel goes only to the officer’s grounds to make an arrest and approved instrument demand. It may not be used to incriminate the accused at trial. In that way, the limit on the right to counsel at the roadside has been considered reasonable. Statements made to a peace officer, including a statement compelled under a provincial Act, are admissible for the limited purpose of justifying a demand under s. 320.27 or s. 320.28. (See: Section 320.31(9).)
[41] Officer Hickey attended the EMS van to find only one person being tended to by the paramedics. He was alone. The police cruiser’s dashboard video camera showed Officer Hickey attending to the EMS van.
[42] In a single-car collision, Mr. Singh was alone and being tended to by EMS personnel. A reality-based analysis would logically conclude that the person in the ambulance was the driver who smashed into the guardrail. There was independent evidence that Mr. Singh was directed into the care of the emergency personnel.
[43] Any suggestion that there may have been an unidentified third party who went unnoticed by Ms. Nguyen lacks any basis in this record to provide even the slightest support for this far-fetched claim. Engaging in such idle speculation would be a legal error. A reasonable doubt based on an inference not supported by facts misapplies the law. (See: R. v. Polley, 2014 NSCA 67 at para. 18.)
[44] There is a strong chain of custody of Mr. Singh from the moment of the collision to his arrest by Officer Hickey. There was other evidence, as I have mentioned, to support the claim that Mr. Singh was the vehicle's driver. There is nothing to raise a reasonable doubt about the driver’s identity.
[45] Mr. Singh only testified on the voir dire and not the trial proper. I have not considered his testimony nor Ms. Nguyen’s identification of “Lovejit” as the person they followed before the collision. Still, I have determined that the Crown has proven beyond a reasonable doubt that he was the vehicle’s driver.
Could Officer Hickey reasonably rely on the “fail” on the ASD due to a potential residual mouth alcohol issue?
The Evidence:
Officer Hickey’s testimony:
[46] Officer Hickey testified that after the paramedics had cleared Mr. Singh and observed that his eyes were very bloodshot and glossy, he asked Mr. Singh if he had consumed any alcohol during the “evening or prior to,” to which Mr. Singh replied that he had “a few shots of tequila.”
[47] This response also formed part of his suspicion that Mr. Singh had alcohol in his body while driving. This led Officer Hickey to read the alcohol screening demand to Mr. Singh at 9:07 p.m.
[48] Officer Hickey was uncertain whether he had asked about Mr. Singh’s alcohol consumption while he was in the paramedic van or the back of his police cruiser. Officer Hickey did not inquire when Mr. Singh had consumed the tequila shots, nor the time of his last drink. He was also aware that a false high reading or failure on the ASD could occur if a person had consumed alcohol within 15 minutes of the test being administered.
The Residual Mouth Alcohol Issue:
[49] For police to arrest someone, they must have reasonable and probable grounds ("RPG"). RPG requires, among other things, a subjectively held honest belief by the arresting officer that the person has committed an offence, and that subjective belief must be objectively reasonable.
[50] A residual mouth alcohol problem can lead to a false positive reading if the alcohol screening demand test is done within 15 minutes of alcohol consumption. If an officer knows that residual mouth alcohol will make a result unreliable, then there can be no honestly held subjective belief that an offence has been committed. (See: R. v. Notaro, 2018 ONCA 449 at para. 38.)
[51] The Court of Appeal stated in that decision the following, at paragraph 43, concerning the objective grounds for the RPG test:
(a) If the information known to an arresting officer about a suspect's residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.
(b) If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.
[52] The failure of an officer to turn their mind to the residual mouth alcohol issue will not, in and of itself, amount to a Charter breach. (See: Notaro at para. 50.)
Analysis:
[53] In this case, Officer Hickey’s first contact with Mr. Singh was at 9:06 p.m. The failure was ultimately received at approximately 9:10 p.m. He understood that the accident had occurred at approximately 8:43 p.m., close to when the 911 call was made to report the accident. Officer Hickey arrived at 8:55 p.m. Despite Mr. Singh’s admission of consuming alcohol, Officer Hickey did not turn his mind to the possibility of residual mouth alcohol.
[54] In this case, I infer that Officer Hickey had a subjective belief that the ASD he was using was in proper working order. He had checked the calibration on the device, and he did a self-test at the beginning of his shift, which gave a zero reading, and this made sense to him because he had not been drinking. When the failure test result was received from Mr. Singh, he reasonably believed that Mr. Singh had just been operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood.
[55] This belief was objectively reasonable. Officer Hickey had information that the ASD was calibrated correctly, and his self-test at the beginning of the shift confirmed this belief. Further, it was consistent with other information that Officer Hickey had, namely, Mr. Singh’s single-car collision into the bullnose of the guardrail and his very bloodshot and glassy eyes. Officer Hickey conceded that he did not have reasonable and probable grounds based on all the information to arrest Mr. Singh for impaired operation. Officer Hickey's subjective belief, in all the circumstances, that an offence of 80 plus had been committed was objectively reasonable.
[56] There was no evidence at all which would cause Officer Hickey to believe that Mr. Singh had been drinking “a few Tequila shots” in the 15 minutes before the alcohol screening demand failure. The mere possibility that he had been drinking during that time is not enough to undermine the subjective belief that the offence of 80 plus had been committed here. I repeat that his subjective belief was objectively reasonable.
[57] In my view, there was no section 8 violation. The immediacy requirement for an alcohol screening demand and provision of a breath sample was met. I am also satisfied that there was no residual mouth alcohol problem present here.
After forming a reasonable suspicion that Mr. Singh may have alcohol present in his system, was Officer Hickey's decision to place Mr. Singh in the rear of his cruiser to administer the alcohol screening demand considered arbitrary detention and did it constitute a breach of section 9 of the Charter?
The Evidence:
Officer Hickey’s testimony:
[58] As mentioned above, Officer Hickey formed a reasonable suspicion that Mr. Singh had alcohol in his body, based on his observations of Mr. Singh and an admission that he had consumed alcohol and had been driving.
[59] Officer Hickey testified that it was “very, very windy, very cold” that evening and that Mr. Singh was placed in his cruiser to keep him warm at Mr. Singh’s request. He maintained that the door was kept open all the time. He informed Mr. Singh that the in-car camera was turned on and activated. He was also advised that he was not under arrest.
[60] Officer Hickey did not think that there was anything wrong with complying with Mr. Singh’s request to sit in the rear of the cruiser for the test, since it was a cold evening. He could not recall if Mr. Singh had his coat with him that evening. However, in the video, Mr. Singh had his jacket with him but did not wear it while seated in the back of the cruiser.
[61] Whether or not Mr. Singh asked to sit in the cruiser, Officer Hickey testified he was “not comfortable with the public standing on the side of the road while I’m investigating a motor vehicle collision. It’s a very dangerous scene so I most likely would have even offered to him to sit in the vehicle.”
[62] He also commented that despite the completely blocked roadway, he was concerned about passing motorists and still considered the scene dangerous.
[63] Officer Hickey was adamant that he did not direct Mr. Singh into his cruiser. He testified, “he wasn’t forced to sit in the cruiser. I would have offered it. If he said no, he would have been able to just stand by the side of the road or sit in the tow truck while his vehicle was being hooked up.”
[64] Officer Hickey testified that he agreed to Mr. Singh’s request to sit in the back of his cruiser because it was cold, and Mr. Singh was cooperative.
Officer Hickey’s in-car camera video:
[65] When Mr. Singh was about to sit in the rear of the cruiser, as the door opened, Officer Hickey instructed him to sit in the cruiser so they could chat. He advised Mr. Singh that he was not under arrest.
[66] As he entered the cruiser, Mr. Singh carried his jacket, which he placed on the seat beside him.
[67] Officer Hickey told Mr. Singh he needed to read something, and Mr. Singh responded that he felt under arrest.
[68] Incorrectly, Officer Hickey told Mr. Singh that he had a suspicion that Mr. Singh was impaired by alcohol.
[69] On two occasions, the rear passenger door closed. On one occasion, Mr. Singh remarked that he was “very” cold, and on another occasion, he expressed concern that the door was closed on him.
Mr. Singh’s testimony:
[70] Mr. Singh’s testimony on the voir dire was intended to address the ss. 8 and 9 arguments.
[71] Mr. Singh is 38 years old. He is married with three children. He is a mortgage broker. He has no criminal record.
[72] Mr. Singh testified that after he left the ambulance, he stood outside for approximately three minutes until Officer Hickey directed him to his cruiser because it was cold outside.
[73] Mr. Singh confirmed that it was windy that night, but he never complained about the cold to Officer Hickey and that he never asked to sit in the cruiser.
[74] Mr. Singh testified that when sitting in the cruiser and the door closed twice, he felt “scared, a little bit nervous and was uncomfortable.”
[75] In cross-examination, he conceded that he was also nervous in the ambulance, but not because of drinking, but rather that he had been involved in a collision with his father’s car.
[76] In cross-examination, he agreed that the door was opened quickly after it closed on both occasions.
Reasonable suspicion, section 320.27(2) of the Code, and roadside testing in a police cruiser:
[77] I am satisfied for the following reasons that Officer Hickey had a reasonable suspicion and had also complied with the prerequisites in section 320.27(2) of the Code in making a demand.
[78] Section 320.27 of the Code provides the police with two authorities through which they may demand an alcohol screening sample. These are the "Reasonable Suspicion" found in s.320.27(1) of the Code (reasonable suspicion) and the "Mandatory Alcohol Screening" under s.320.27(2) of the Code (mandatory alcohol screening) powers.
[79] The first authority is grounded in the Charter standard that police may detain a person for investigation, provided they possess "reasonable grounds to suspect" criminal activity. In the context of alcohol screening, an officer may demand a screening sample provided they have a "reasonable suspicion" that "a person has alcohol... in their body and that the person has, within the preceding three hours, operated a conveyance."
[80] The second power, mandatory alcohol screening, does not require any grounds. The police may issue a mandatory alcohol screening demand, provided:
i. The subject of the demand "is operating a motor vehicle";
ii. The officer is in the "lawful exercise" of their duties;
iii. The officer possesses an approved screening device on hand, and
iv. The demand and ensuing sample are "immediately" provided.
[81] The immediacy requirement of the demand and breath test is integral to the constitutionality of the screening regime and supports the suspension or deferral of engaged Charter rights.
[82] The mandatory alcohol screening provision has been repeatedly found to be constitutional. The Charter permits the police to employ this investigatory step without any grounds. The police must comply with the statutory requirements before demanding that a driver provide an alcohol screening sample of breath.
[83] Officer Hickey satisfied all statutory preconditions before relying on the mandatory screening authority. Mr. Singh was "operating a motor vehicle". In investigating the cause of the collision and then checking whether the driver may have been impaired by alcohol, Officer Hickey was in the "lawful exercise" of his duties. The officer had an approved screening device in his possession. There was an "immediate" demand and ensuing screening process.
[84] Section 320.27(1)(b) permits an officer to demand an alcohol screening sample upon forming a "reasonable suspicion" that the ostensible driver has alcohol in their body. "Reasonable grounds to suspect" is a lower and less rigorous standard than reasonable grounds to believe". This lower Charter threshold authorizes less intrusive investigatory steps (for example, alcohol screening) where a person's privacy interests are diminished (for example, while one engages in the highly regulated act of driving).
[85] The "reasonable suspicion" standard must be based on "objectively discernible facts" considering the totality of the circumstances. (See: R. v. Chehil, 2013 SCC 49, para. 26.) It engages reasonable "possibilities" as opposed to "probabilities" of criminal activity. A reasonable suspicion need not be the only available inference to be drawn from all the facts. "Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors", but the threshold may still be satisfied when innocent inferences are also present. (See: Chehil, at para. 5.)
[86] Officer Hickey had reasonable suspicion that Mr. Singh had alcohol in his body before he made his alcohol screening demand. There had been a single-car collision. Mr. Singh had admitted to driving and having a few tequila shots. Officer Hickey had observed Mr. Singh’s eyes to be very bloodshot and red.
[87] While "reasonable suspicion" must be objectively based on facts, there is also a subjective requirement for the officer.
[88] The testimony must provide objective grounds to support the requisite suspicion relied upon by the officer. Officer Hickey testified that he had observed very bloodshot and glossy eyes, and Mr. Singh’s admission that he had consumed alcohol by the time he issued the screening demand. The only reasonable inference from this constellation of facts is that the Officer subjectively believed Mr. Singh was driving with alcohol in his system. As I found earlier, this belief was objectively supported.
[89] Accordingly, I find no violation of Mr. Singh’s ss. 8 and 9 Charter rights. To reiterate, reasonable suspicion is no longer required for alcohol screening if the officer has an approved screening device - see s. 320.27(2).
[90] I now turn to the other argument, that Officer Hickey arbitrarily detained Mr. Singh by directing him to sit in the rear of his cruiser to conduct the alcohol screening test.
[91] Based on Mr. Singh’s testimony, it was argued that Officer Hickey told or directed Mr. Singh to sit in his cruiser. However, the Crown submits that Officer Hickey followed Mr. Singh’s request to sit in the cruiser as he stated that he was cold, despite having a jacket. Furthermore, the Defence submitted, and I accept, based on the video evidence, that the passenger rear door of the cruiser did not remain open the entire time while Mr. Singh was seated. The door closed twice, possibly caused by the wind that evening. Officer Hickey denied that he closed the door on purpose. Both times, Officer Hickey opened the door. It was apparent Officer Hickey wanted to keep the door open as a matter of convenience for Mr. Singh. It was a windy night, as evidenced by Officer Hickey’s pants, which could be seen flapping in the wind. He made it clear to Mr. Singh that he was not under arrest.
[92] I do not believe that I need to reconcile this difference in opinion as to how or why Mr. Singh ended up in the rear of Officer Hickey’s cruiser. In the final analysis, Mr. Singh was detained pursuant to a lawful investigation at the roadside.
[93] In support of his position that ss. 8 and 9 were breached in these circumstances, Mr. Lent provided the following decisions: R. v. Romaniuk, [2017] O.J. No. 1735; R. v. DiMaria, [2012] O.J. No. 2067; R. v. Comrie, [2016] A.J. No. 1422; and R. v. Orde, [2017] O.J. No. 6317. These cases are all distinguishable on their facts. These cases all involved handcuffing the accused as part of the alcohol screening demand. Absent exceptional circumstances, courts have ruled that handcuffing a person for the alcohol screening demand/test is a violation of the right to be free from unreasonable search and seizure and arbitrary detention as set out in ss. 8 and 9 of the Charter. Mr. Singh was placed in handcuffs after he failed the alcohol screening demand/test and was arrested.
[94] In R. v. Klotz, [2017] O.J. No. 4137, Justice Botham found fault with the officer conducting the test inside his cruiser rather than on the other side of his cruiser, so both would have been protected from passing traffic. She found that the officer chose to conduct this test and other screening tests that evening in his cruiser solely based on a location he had chosen and did not turn his mind to whether a less restrictive manner of detention would have been possible. Her Honour found that the officer’s decision to conduct the roadside testing of the accused inside his cruiser was not reasonably necessary and did constitute a breach of the accused's section 9 rights. (See: Klotz, at paras. 26-27.) She was entitled to make that decision. Given the brief detention, I am unsure I would make the same decision. Given the circumstances, I am certain I am not making the same finding in this case.
[95] I prefer the reasoning of Justice Duncan in his decision in R. v. Mahipaul, [2018] O.J. No. 2688, at para. 20, in which he expressed the following view:
20 Placing defendant in police car: I do not think that the case of Aucoin stands for the proposition that placing a detainee in the back seat of a police car is per se unlawful or a Charter violation. This would particularly be so in the ASD demand situation where the officer is specifically authorized to require the detainee to accompany him for the purpose of conducting the test. The interior of a police car might reasonably be seen as an appropriate place for reasons of safety, warmth, quiet or other circumstance. In my view, Aucoin decides that a police officer cannot unilaterally expand his own powers of search by making an unnecessary and unreasonable decision as to where to place a detainee. In this case there is no evidence that placing the defendant in the police car involved any further search of his person. Accordingly, that placement did not infringe the Charter.
[96] He further expanded upon this, in the context of placing the accused in a cruiser that triggers a search that is not authorized, in his decision in R. v. Chandarh, [2018] O.J. No. 7199 at paras. 14-15:
14 To expand somewhat: In my view application of Aucoin to roadside sobriety investigation should be approached with caution in that the roadside law permits such investigations, even randomly conducted, and provides the police with exceptional powers to conduct them; R v Orbanski. A motorist can be detained, subjected to asd testing, field sobriety testing, questioning and obviously be the subject of observation of smells, slurs, stumbles etc. If all these things can be done at the scene, detaining the motorist in the process, it seems to me to be of little significance as to where that investigation takes place - in or out of the police car. It might be apt to ask the question: Did the placement of the defendant in the police car permit the police to do something, such as search, that they otherwise would not lawfully have been permitted to do? It is only if that occurs that the reasonable necessity issue is reached.
15 In this case, for the reasons given, there was no unlawfulness in placing the defendant in the police car. However, if I am wrong in that conclusion and must consider the issue of reasonable necessity, I would further conclude that it was reasonably necessary. This was a major intersection, traffic was still moving through the area, the defendant was unsteady, possibly from the collision, his car was wrecked, leaving the police car the only reasonable alternative to standing outside or sitting on wet ground.
[97] Officer Hickey was a credible and reliable witness, despite two minor inconsistencies in his testimony. Firstly, Officer Hickey testified that he believed he entered the ambulance from the rear door, but the video showed him entering the side door. Secondly, he thought that the door to his cruiser was never closed when Mr. Singh was in the rear of his cruiser. The video showed that the door closed twice momentarily. I do not see anything turned on these inconsistencies very much, nor do I see that undermining Officer Hickey’s reliability. The fact that he felt he went through the rear door versus the side door is inconsequential. The point is that when he entered the ambulance, he found only Mr. Singh being treated and no one else, and he made his observations. I can understand if Officer Hickey mistakenly thought the door closed on Mr. Singh, as it may have been the case that the wind blew the door closed or he inadvertently closed it. In any event, it was never Officer Hickey’s intention to lock Mr. Singh in the rear of his cruiser at this point. Finally, it is understandable not to recall those details accurately when testifying about an event from nearly 16 months ago.
[98] Mr. Singh was a fair witness. I am not prepared to find that he was only scared in the rear of the cruiser because the door was closed twice for a few seconds. As he said in his evidence, he was already a little nervous for other reasons.
[99] There is no doubt that the ambit of section 9 extends beyond the mere basis for detention and protects an individual's right against an unreasonable manner of detention. (See: R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 at para. 35.) The question, therefore, is whether, having regard to the other options available, the brief detention of Mr. Singh in the rear of Officer Hickey’s cruiser during the alcohol screening demand/test was unreasonable. I do not believe it was.
[100] I find that there was no unlawfulness in placing Mr. Singh in the cruiser's rear to administer the test. Whether Mr. Singh asked to go into the cruiser to keep warm or if it was a kind suggestion by Officer Hickey is not a relevant consideration, but rather, was placing Mr. Singh in the cruiser's rear reasonably necessary?
[101] Officer Hickey appeared to be alone. Mr. Singh’s car had significant front-end damage. In my view, it was unsafe and unreasonable to perform the alcohol screening demand/test on the shoulder or the blocked-off exit lanes of Highway 401. It was a cold and windy night. For example, Mr. Singh admitted on video that he felt cold while sitting in the rear of the cruiser with the door open. Additionally, he was visibly shaking in the back of the cruiser.
[102] There was no other reasonable place or means besides the cruiser to administer the test. The risks identified by the Officer justified taking precautions, and briefly placing Mr. Singh in the rear of his cruiser, unrestrained, as a minimally intrusive means to mitigate these risks. This was a clear case of “reasonable necessity.”
[103] Even if I am incorrect in my assessment of this detention being reasonably necessary, I would not exclude the evidence as the detention was “brief” and there was a reasonable excuse for Mr. Singh’s detention.
[104] There were no breaches of Mr. Singh’s sections 8 and 9 rights.
Was Officer Hickey’s delay of five to six minutes in giving the rights to counsel to Mr. Singh a violation of section 10(b) of the Charter?
The Evidence:
Officer Hickey’s testimony and the in-car video recording:
[105] After Mr. Singh failed the alcohol screening demand/test at 9:10 p.m., Officer Hickey arrested Mr. Singh at 9:10 p.m. The video recording showed that Mr. Singh was removed from the cruiser, turned around and placed his hands on the side of the cruiser. Officer Hickey testified that he handcuffed and searched Mr. Singh. The rights to counsel commenced at five or six minutes later. There was no evidence from Officer Hickey as to what he did after handcuffing and searching Mr. Singh until he began reading the rights to counsel.
The Right to Counsel without delay:
[106] Section 10(b) of the Charter states the following:
Everyone has the right to on arrest or detention.
(b) To retain and instruct counsel without delay and to be informed of that right.
[107] With respect to section 10(b), the police must immediately inform the detainee of their right to counsel when the detention arises. (See: R. v. Suberu, 2009 SCC 33, para. 41.) At para. 42, the Court closed the door on the flexibility of reading the RTC subject to officer or public safety concerns:
In our view, the words 'without delay' mean 'immediately' for s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[108] Regrettably, this decision did not resolve the ongoing litigation concerning the timing of the right to counsel.
[109] However, a short delay in reading rights to counsel while the police conduct necessary tasks, such as handcuffing and searching the accused or bringing them back to the police cruiser, will not violate s. 10(b). (See: R. v. Fisk, 2020 ONCJ 88 at para. 51; R. v. Agnihotri, 2019 ONCJ 551 at para. 9; R. v. Singh, 2017 ONCJ 386 at para. 19.)
[110] Further, the Ontario Court of Appeal has held that a brief delay in searching, securing the parties, and gaining control of the scene is a reasonable limitation on the immediacy requirement. (See: R. v. Pileggi, 2021 ONCA 4 at paras. 57-62.)
[111] It is sufficient for arresting officers to rely on generalized safety concerns in support of a decision to place an arrested individual in the rear of a police cruiser before informing the individual of their right to counsel. (See: R. v. Lep'okhina, 2023 ONSC 2850 at para. 21.) Police officers are not required to handcuff the accused with one hand and, with the other hand, read the right to counsel from their notebooks. (See: Fisk, at para. 51.)
The Analysis:
[112] The case law is clear that the “immediacy requirement” for the rights to counsel has less flexibility.
[113] I agree with the defence that there was a section 10(b) violation with respect to the delay in providing rights to counsel in this case. As mentioned above, the arrest was at 9:10 p.m., and the rights to counsel were provided at 9:15-9:16 p.m. In my view, the delay is not quite six minutes. Officer Hickey testified that he handcuffed and patted down Mr. Singh but did not provide a time or estimate of how long that process took. I would deduct about two minutes from the five or six-minute delay between 9:10 p.m. and 9:15-9:16 p.m. to allow for the handcuffing, which is an officer safety issue and may be deducted from the right to counsel delay. Let me say that whether the delay was three minutes or four minutes, the delay here was relatively minor in my view.
[114] No reason for the delay in providing rights to counsel was apparent. The right to counsel should have been provided right after the handcuffing. Allowing two minutes for the handcuffing, the delay was about three to four minutes, which was a breach of s. 10(b), albeit a minor one.
Section 24(2) of the Charter:
[115] I have concluded that there was a three-to-four-minute violation with respect to giving the rights to counsel that caused a section 10(b) breach.
[116] Let me say that the section 10(b) breach does not support the exclusion of the breath sample evidence under section 24(2) in any material way. The section 10(b) breach was brief, only three to four minutes. The delay in giving rights to counsel was never explained. On my view of the facts, the police did not seek to obtain evidence from Mr. Singh during the delay or without allowing him to consult duty counsel. But that is not determinative of the issue. As Justice Paciocco recently stated in R. v. Smith, 2023 ONCA 227, at para. 67, if the police did not seek to elicit incriminating evidence during the delay by not committing a second breach, it does not lessen the impact of the informational breach. Officer Hickey should have provided the rights to counsel immediately after handcuffing. However, according to my calculation, the delay was only three to four minutes. There should have been no delay, but I consider the breach to be of low seriousness and to have had a minimal impact on Mr. Singh's Charter rights. I am aware of the alleged "systemic" issues concerning the delay in providing rights to counsel in Peel. Still, I consider that the section 10(b) breach here was not serious, had little impact on Mr. Singh, and does not justify the exclusion of evidence.
[117] Society's interest in adjudication on the merits favours the inclusion of the evidence. Balancing all the Grant factors and considering the s. 10(b) breach, the admission of the breath samples would not bring the administration of justice into disrepute.
[118] In summary, on the section 24 issue, the section 10(b) breach does not support excluding the breath sample evidence. The application is dismissed.
Did the Crown prove beyond a reasonable doubt that Mr. Singh’s ability to operate a vehicle was slightly impaired by alcohol, contrary to section 320.14(1)(a) of the Code?
The Evidence:
Jennie Nguyen’s testimony:
[119] Ms. Nguyen testified that she spoke with Mr. Singh; he did not slur his speech or stutter, nor did she smell the odour of alcohol on his breath. He did not have any difficulty walking, nor did he display any problems with his motor skills.
Officer Hickey’s testimony:
[120] Officer Hickey observed that Mr. Singh had very bloodshot and glossy eyes.
Sergeant Nasr’s testimony:
[121] The Qualified Breath Technician, Sergeant Nasr observed Mr. Singh on the video in the booking area and agreed that he had no difficulty walking. What he did note that evening, however, was that Mr. Singh did have an odour of alcohol on his breath. On the other hand, Mr. Singh’s speech was not slurred, his gait was fine, and there was no swaying. He did find that, based on the readings and the observations, that the effects of alcohol were “slight.” He conceded in cross-examination that had he not known what Mr. Singh’s readings were, he would not have concluded, based on his observations and interactions, that Mr. Singh’s ability to operate a motor vehicle was impaired by alcohol.
Impaired Driving:
[122] The test for impaired operation of a motor vehicle has been set out in R. v. Stellato, [1993] 78 C.C.C. (3d) 380 (ON CA), affirmed 1994 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.):
The trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. The offence is not met merely by someone drinking alcohol and being in care or control of a vehicle. Neither is it made out by evidence of impairment alone. The impairment must be such to be a contributing factor to an impairment of the ability to operate a motor vehicle.
[123] The “Stellato test” is now incorporated into the wording of s. 320.14(1)(a) of the Code. Slight impairment to drive involves a reduced ability in some measure to perform the complex task of driving through reduced physical ability in motor function or balance, or a reduction in the many mental faculties necessary to drive safely such as vision, reaction time, perception, divided attention, processing multiple tasks and regard for rules of the road. Indicia of impairment are not considered individually; rather, the totality of the evidence as a whole must be considered. (See: R. v. Grant, 2014 ONSC 1479 at para. 50; R. v. Bush, 2010 ONCA 554 at para. 47.)
[124] The legal test of impairment to any degree does not mean that slight evidence will be sufficient to prove impairment beyond a reasonable doubt. As the Alberta Court of Appeal explained in R. v. Andrews, 1996 ABCA 23, leave refused [1996] S.C.C.A. No. 115, the “Stellato test,” speaks to the degree of impairment in the ability to drive, which must be proved.
Analysis:
[125] The arresting officer never smelled the odour of alcohol on Mr. Singh’s breath—Sergeant Nasr did record the presence of alcohol on his breath. But I remind myself that the smell of alcohol alone, by itself, does not establish the amount of alcohol in a driver’s blood nor establish that the driver's ability to operate a motor vehicle was impaired due to the consumption of alcohol. (See: R. v. Singh, 1997 O.J. No. 1164 at paras. 7 and 10.)
[126] Mr. Singh’s unexplained (or something or someone cut him off) collision with the bullnose of the guardrail between the 401 collector lanes and the exit lanes to Hurontario Street at 9 p.m. is not by itself an indication of impairment in the ability to drive. It is evidence of careless driving. Careless driving could be an indicium of impaired ability, involving inter alia, an inability to pay due care and attention or a failure to control the vehicle too quickly. (See: R. v. Chung, 2004 ONCJ 347.)
[127] There was no evidence of how long Ms. Nguyen observed Mr. Singh wavering in his lane. I did not find her evidence very compelling on this point. The driving was not lengthy or imperilling, and what she observed was not necessarily consistent with impairment by alcohol, but a sudden and late change of course to continue in the westbound collector lanes rather than exiting at Hurontario Street.
[128] I have observed Mr. Singh in the cruiser and booking videos; he displayed no physical signs of impairment. Furthermore, Ms. Nguyen did not notice any signs of impairment. It is a relevant consideration in my analysis that Sergeant Nasr would not have concluded Mr. Singh was impaired by alcohol without being aware of the readings.
[129] Although the readings are admissible, they can only be used to confirm that alcohol had been consumed and nothing more. (See: R. v. Tusiuk, 2000 O.J. No. 802 (S.C.J.) at para. 4 and R. v. Dinelle, 1986 N.S.J. No. 246 (C.A.).)
[130] Despite the unexplained accident, consumption of some alcohol before the accident (based on the readings), the odour of alcohol detected on his breath in the breath room, along with his bloodshot eyes, does still leave me with reasonable doubt about Mr. Singh’s ability to operate a motor vehicle while impaired by alcohol.
Did the Crown prove that Mr. Singh drove in a manner that, considering all the circumstances, was dangerous to the public, contrary to section 320.17 of the Code?
The Evidence:
Jennie Nguyen’s testimony:
[131] As mentioned above, the only evidence regarding Mr. Singh’s motor vehicle operation was from Jennie Nguyen, a passenger following behind Mr. Singh.
[132] She observed that Mr. Singh’s car was “wavering between heading straight on the highway or exiting.” (Transcript dated March 5, 2025, page 2, line 10.) She testified that the vehicle was “wavering between the two lanes.” (Transcript dated March 5, 2025, page 2, lines 21 and 22.) She observed Mr. Singh’s vehicle strike the divider separating Highway 401 from the exit lanes to Hurontario Street and lift into the air. Ms. Nguyen testified that they observed the vehicle for some time, but it was just before the accident that she noticed the “wavering.”
Dangerous Driving:
[133] Dangerous operation of a motor vehicle or a conveyance is defined in section 320.13(1) of the Code as follows:
Everyone commits an offence who operates a conveyance in a manner that, having regard to all of the circumstances, is dangerous to the public.
[134] These circumstances include, for motor vehicles, the nature, condition, and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place.
[135] Dangerous driving involves a “significant” or “marked” departure from the standard of a reasonable, prudent person. (See: R. v. MacGillivray, [1995] 1 S.C.R. 890.) It is erroneous to equate dangerous driving to failing to exercise the standard of care of a prudent driver. (See: R. v. Bartlett, 124 C.C.C. (3d) 417.) A momentary act of negligence (crossing the highway's centre line) was insufficient evidence to support a finding of dangerous operation. (See: R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49.) The minority held that the “marked departure” requirement applies to both the actus reus and the mens rea of the offence of dangerous operation of a motor vehicle.
[136] The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. Still, the trier of fact must identify how and in what way the driver went markedly beyond mere carelessness. Evidence of a single and momentary error in judgment, albeit with tragic consequences, did not provide evidence on which a properly instructed trier of fact, acting reasonably, could convict. (See: R. v. Roy, 2012 SCC 26, [2012] S.C.J. No. 26.) However, in applying Roy, a trial judge must not allow the “momentary” nature of the dangerous driving to obscure the central issue: what a reasonable person would have foreseen and done in the circumstances of the accused. (See R. v. Chung, 2020 SCC 8.)
[137] The onus lies on the Crown to prove both the actus reus and the mens rea of the offence of dangerous operation of a motor vehicle. For the actus reus, the accused’s conduct must be measured against the wording of section 320.13. The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was driving in a manner that, “having regard to all of the circumstances, [was] dangerous to the public.”
[138] How the motor vehicle was operated is at issue, not the consequence of the driving. The trier of fact must also be satisfied beyond a reasonable doubt that the required mens rea accompanied the accused’s objectively dangerous conduct. In making the objective assessment, the trier of fact should be satisfied based on all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, suppose an explanation is offered by the accused. In that case, to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and the danger involved in the conduct manifested by the accused.
Analysis:
[139] In my view, neither the actus reus nor the mens rea of the offence of dangerous driving has been made out.
[140] There was no evidence of the vehicle’s speed before impact. Indeed, there was no evidence that Mr. Singh was speeding. The only term to describe Mr. Singh’s driving was “wavering” before the collision. Ms. Nguyen used this term to describe her impression that Mr. Singh was indecisive about exiting or continuing in the collector lanes. She also used the term to describe Mr. Singh moving from side to side between two lanes.
[141] There was no evidence of the amount of traffic or the traffic flow at this time.
[142] There was no evidence of erratic driving beyond “wavering” between lanes.
[143] I am uncertain that this was a case of careless driving or an indecision on whether to exit at Hurontario Street or continue along Highway 401.
[144] It is an error to consider alcohol consumption in deciding a dangerous driving case. (See: R. v. Churchill, 2002 BCCA 494.)
[145] For these reasons, I cannot be satisfied beyond a reasonable doubt that the driving was a marked departure from the standard of care expected of a reasonable person in the circumstances.
Conclusion:
[146] The Charter application is dismissed. The breathalyzer readings are admitted into evidence. There will be a finding of guilt on count #2. For the reasons already stated, Mr. Singh is not guilty of counts #1 and #3.
Released: April 24, 2025
Signed: Justice Paul T. O’Marra