ONTARIO COURT OF JUSTICE
DATE: 2025 06 10
COURT FILE No.: Brampton 24-31100301
BETWEEN:
HIS MAJESTY THE KING
— AND —
ROBERT KELLERMAN
Before Justice P.T. O’Marra
Heard on April 7 and 8, 2025
Reasons for Judgment released on June 10, 2025
Mashal Hakimi..................................................................................... counsel for the Crown
Ravi Sahota................................................ counsel for the defendant Robert Kellerman
P.T. O’Marra, J.:
Introduction
[1] On December 17, 2023, Mr. Kellerman was charged with impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration exceeding 80 mg of alcohol per 100 ml of blood. The Crown proceeded summarily. Mr. Kellerman pleaded not guilty. The trial lasted two days. I adjourned the matter and reserved my decision for today.
[2] Mr. Kellerman 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. Two witnesses testified for the Crown: PC Podyma, the arresting officer, and PC Anderson, the assisting officer. Documents regarding the operation of the approved instrument and a Certificate of Qualified Technician were provisionally introduced as exhibits, subject to the Charter application. The body-worn camera videos of both officers were also introduced, which captured the interaction between the police and Mr. Kellerman at his front door and inside his residence.
[3] A voluntariness voir dire was also conducted to determine the admissibility of Mr. Kellerman’s statements to the breath technician, PC Champagnie. The breath room video was entered as an exhibit to these proceedings, subject to a voluntariness ruling.
Factual Background
[4] At approximately 9:19 p.m. on December 17, 2023, a civilian complainant called Peel Regional Police and reported that a red Toyota Corolla with the licence plate CPPE721 was travelling southbound on Southdown Road and Truscott Drive, in Mississauga, and was weaving in traffic.
[5] PC Podyma and PC Anderson attended the address of Mr. Kellerman, the vehicle's registered owner, at 1060 Walden Circle, Unit #38, in Mississauga.
[6] PC Anderson was training PC Podyma.
[7] PC Podyma and PC Anderson arrived at Mr. Kellerman’s residence. Mr. Kellerman’s vehicle was parked on the driveway. PC Anderson felt the hood of the vehicle, which was warm and mentioned this to PC Podyma. She observed that the right front wheel was deflated.
[8] Both PC Podyma and PC Anderson were wearing body-worn cameras.
[9] At 9:36 p.m., PC Podyma knocked on the front door. Mr. Kellerman answered the door. PC Podyma asked Mr. Kellerman if he had driven the vehicle in the driveway. He replied, “Yes…about an hour ago.” When asked if he knew he was driving on a flat tire, he responded, “I guess so, I don’t know.” PC Podyma advised Mr. Kellerman that the police had been called because an individual had observed his vehicle weaving all over the road. He was asked if he had anything to drink that evening. Mr. Kellerman replied, “Yes…Two Coors Lite…at a friend’s home to watch the Buffalo Bills.” PC Podyma confirmed his name and then asked Mr. Kellerman for his driver’s licence to verify his identity.
[10] PC Podyma could smell the odour of alcohol on Mr. Kellerman’s breath.
[11] PC Podyma remained at or near the threshold of the front door as Mr. Kellerman went to retrieve his wallet. PC Podyma placed her hand on the front door to keep it open. PC Podyma advised Mr. Kellerman that she was “investigating an impaired incident. I just want to caution you that, so anything you say might be used.”
[12] At 9:38 p.m. PC Podyma asked Mr. Kellerman to put on his shoes and step outside because he was under arrest for drinking and driving. When he inquired why she was arresting him, she replied, “Because you’re impaired and you admitted to me that you drove the car.”
[13] Mr. Kellerman sat on his stairs and put on his shoes. Mr. Kellerman asked to use his washroom before he was transported to 11 Division.
[14] The police advised that they would have to follow him upstairs to his washroom as he was in police custody.
[15] Both officers escorted Mr. Kellerman to his upstairs washroom. Mr. Kellerman was instructed to leave the door open while he used the bathroom, and they stood guard. Both officers looked around with their flashlights and whispered that they did not see any alcohol. He was in the washroom from 9:41:15 p.m. until 9:43:14 p.m. He was asked if he had a house key to lock up his house. He wondered what was going to happen, and PC Podyma answered, “You have to come to the 11th Division, and I have to read the rights to counsel”. She asked him for his phone and the car keys, as the vehicle was going to be towed. The police enquired if he had medication that he needed to bring. He brought out a list of medications that he is on, but confirmed that he did not need any of his medications for the next 12 hours. While they descended the stairs, PC Anderson seized Mr. Kellerman’s car keys off a shelf. His house key was removed.
[16] At approximately 9:46 p.m., Mr. Kellerman was escorted out of his residence and taken to a police cruiser, handcuffed, and searched incident to arrest. PC Anderson took a photograph of his licence.
[17] At 9:49 p.m., he was placed in the cruiser.
[18] At 9:50 p.m., PC Anderson searched Mr. Kellerman’s vehicle. She seized an open bottle of liquor that she located in the centre console of the vehicle.
[19] At 9:50 p.m., PC Podyma read to Mr. Kellerman his rights to counsel. Mr Kellerman indicated that he wished to call a lawyer. PC Podyma said he could speak to a lawyer at 11 Division privately.
[20] Mr. Kellerman arrived at 11 Division at 10:13 p.m. for the formal breath testing.
[21] From 10:22 p.m. until 10:30 p.m., Mr. Kellerman spoke to duty counsel.
[22] At 11:13 p.m., Mr. Kellerman provided two breath samples. Mr. Kellerman’s first sample registered truncated results of 180 mg of alcohol in 100 ml of blood. The second sample was taken at 11:36 p.m. and registered truncated results of 170 mg of alcohol in 100 ml of blood.
Issues
[23] Mr. Sahota raises the following issues:
Despite knowing that they were investigating a crime when they arrived at Mr. Kellerman’s residence, PC Podyma and PC Anderson did not try to caution Mr. Kellerman or advise him that he was not obligated to speak with them. Therefore, the police violated Mr. Kellerman’s right to remain silent, contrary to section 7 of the Charter.
Mr. Kellerman’s statements in the breath room were not voluntary.
When the police demanded that Mr. Kellerman keep the washroom door open, he went to the bathroom while they were still recording this interaction, which breached Mr. Kellerman’s right to privacy, contrary to section 7 of the Charter.
When the police approached the threshold of Mr. Kellerman’s residence, they imposed a psychological detention and thereby arbitrarily detained Mr. Kellerman, contrary to section 9 of the Charter.
The police unlawfully entered Mr. Kellerman’s residence without a warrant or an invitation, contrary to section 8 of the Charter.
The police unlawfully searched Mr. Kellerman’s residence by looking for alcohol and seizing his car keys without a warrant, contrary to section 8 of the Charter.
PC Anderson unlawfully searched Mr. Kellerman’s vehicle, contrary to section 8 of the Charter.
PC Podyma did not have reasonable grounds to arrest Mr. Kellerman for impaired operation. There was insufficient evidence of impairment to support the low reasonable and probable grounds threshold. Therefore, contrary to sections 8 and 9 of the Charter, Mr. Kellerman was unlawfully and arbitrarily arrested.
As soon as Mr. Kellerman was detained, the police were obligated to advise the reasons for his detention, contrary to section 10(a) of the Charter.
PC Podyma delayed the informational component of Mr. Kellerman's rights to counsel for approximately 12 minutes, contrary to section 10(b) of the Charter.
The Right to Silence and Voluntariness – Pre-cautioned statements, the right to silence and the failure to call all persons in authority who had contact with Mr. Kellerman
[24] The Crown seeks to tender statements made by Mr. Kellerman to the breath technician. During the voir dire, the booking sergeant did not testify as he is now retired. The issue is whether the failure to call this officer is fatal to the Crown's ability to establish voluntariness.
[25] The Crown suggested at one point in the trial that it intended to rely on Mr. Kellerman’s pre-cautioned utterances at the door, which were captured on the officers’ body-worn cameras.
[26] I would want to first address the statements made to the officers at the door and the right to silence.
Right to silence at the door
[27] The Defence argued that Mr. Kellerman’s right to silence was violated when officers questioned him at his front door without first cautioning him or advising that he was not obligated to speak. However, I have rejected this argument for the following reasons.
[28] The officers attended Mr. Kellerman’s residence to investigate a report of impaired driving. Their initial purpose was to identify the driver of the vehicle reported in the 911 call, not to gather incriminating evidence.
[29] Police, like any member of the public, are permitted to approach a residence and knock on the door to communicate with the occupant. This includes asking preliminary investigative questions.
[30] Mr. Kellerman voluntarily answered the door and engaged in conversation. He was not detained at that point and was free to decline to speak or close the door.
[31] I find no evidence that Mr. Kellerman was psychologically detained during the initial interaction. He showed no signs of intimidation and continued to engage with the officers freely.
[32] I emphasized that any statements made before Mr. Kellerman was cautioned could not be used to incriminate him at trial. They could only be used to assess whether the officers had reasonable grounds to proceed with an arrest or breath demand.
[33] To be clear, the Crown cannot rely on any conscripted evidence, such as Mr. Kellerman’s pre-cautioned statements at the front door, 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.)
[34] 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 the person; such derivative use would violate the right against self-incrimination. Soon after, Parliament responded by enacting section 320.31(9) of the Criminal Code.
[35] Police are empowered to investigate drivers for impaired driving both at common law and pursuant to provincial highway legislation. Evidence obtained from questioning the driver or compelled roadside sobriety tests before the detained person can access counsel goes only to the officer’s grounds for making 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 s. 320.31(9) of the Criminal Code.)
The Evidence
The booking hall
[36] After Mr. Kellerman was booked and consulted with duty counsel, he waited on a bench at 10:38 p.m. while PC Podyma communicated her grounds to the breath technician. The booking video captured the exchange between Mr. Kellerman and the booking sergeant, although there was no audio recording. During the approximately 12 minutes, he initially sat on the bench and spoke with the booking officer before lying down on his back on the floor in the booking hall, where he stretched. The booking sergeant remained at his desk, several feet away, watching his video monitor as he occasionally observed and engaged with Mr. Kellerman, who continued his exercise routine.
The breath room
[37] Mr. Kellerman was brought into the breath room at 11:02 p.m. The breath technician confirmed that he had spoken to duty counsel. He was cautioned that if any other police officer had previously spoken to him, it should not influence his conversation with the breath technician, followed by the formal breath demand. Mr. Kellerman’s interactions in the breath room were routine. He was friendly, relaxed, and very talkative with the breath technician. During the procedure, they discussed a range of topics, including the recent success of the Buffalo Bills and the Toronto Maple Leafs, his health, playing music at Doolans and the Clarkson Pump and Patio, bitcoin, stocks, bonds, debt, a new cancer-fighting drug, as well as his children.
[38] At 11:17 p.m., Mr. Kellerman was asked, “What happened tonight?” He explained that he was at his friend’s home in Erin Mills, near Burnhamthorpe, watched the Bills game until 6:30-7:00 p.m., drank three Caesars, and then drove home. When he got home, he drank a couple of shots of Rye in his car before going into his house. He estimated that the police showed up 20-30 minutes later.
The positions of the parties
[39] The Defence argues that, due to the absence of an audio recording during the 13 minutes, the Court is uncertain about what was said between the booking sergeant and Mr. Kellerman. The failure of the Crown to call this officer raises a reasonable doubt about the voluntariness of the statements in the breath room.
[40] The Crown submits that it has discharged its burden of proving the voluntariness of Mr. Kellerman’s statement to the breath technician. There were no promises, inducements, or threats made to Mr. Kellerman. He was also further cautioned that he did not have to say anything in the breath room after speaking to duty counsel.
The applicable legal principles
[41] Where the Crown seeks to tender a statement made by an accused to a person in authority, the Crown must establish the voluntariness of that statement beyond a reasonable doubt. Broadly speaking, this means calling every person in authority who had meaningful contact with the accused up until the statement was given. However, whether the failure to call a witness who had meaningful contact with the accused will result in the Crown's failure to meet its burden depends on the circumstances of the case.
[42] In R. v. Healy, 2020 ABCA 197, the Alberta Court of Appeal held that calling witnesses is discretionary since the issue is not the number of witnesses called to testify, but whether the evidence can adequately explain the context of the statement. The Court, at para. 67, held:
[...] Not all persons in authority who may have had contact with the accused must be called as witnesses; however, the Crown must call sufficient evidence to account for all surrounding circumstances leading to a subsequent statement. Necessary proof of surrounding circumstances "depends upon the circumstances of the case and upon what other evidence is available." In that case, there was "no evidence at all of the surrounding circumstances leading to the statement" such that this Court could "know how he was treated or what was said to him or by whom. [Emphasis added]
[43] In R. v. Bools, 2016 ONCA 554, the Court of Appeal for Ontario recognized that there was no rule of law that the Crown must call each and every police officer who had any contact with the appellant before giving his statement: “… While the unexplained absence of a witness may raise a reasonable doubt, this is to be assessed by the trial judge on the basis of the record.” In dismissing the ground of appeal relating to the admission of the appellant’s statement, the Court of Appeal also noted that the trial judge had the benefit of the video of the appellant’s statement, the testimony of several witnesses regarding their contact with the appellant from the time of his arrest up until the time the statement was made, and his mother’s evidence about how he had behaved in the past after overdosing on his medication.
[44] In R. v. Menezes, Justice Hill stated at para. 19:
There is no absolute rule that every person in authority irrespective of the degree of contact with the accused need be called on a confessional voir dire. Each case turns on its own facts. A flexible rule designed to examine the role of any police officer with real investigatory or custodial contact generally promotes meaningful scrutiny of relevant governmental conduct.
[45] In R. v. Fulford, 2024 ONSC 1436, the Court similarly considered whether the Crown had met its onus in establishing that the accused’s statement was voluntary where not all witnesses who had contact with the accused were called. The Court considered the nature of the contact between the accused and the officers who were not called to testify, as well as the videotape of the statement itself. In all of these circumstances, the Court found the Crown had met its burden and the statement was admitted.
[46] In R. v. L.S., 2021 ONSC 3928, the Court similarly found that the failure to call all witnesses was not fatal to proving voluntariness, where there was no evidence that the officers who were not called had said anything to the accused. The Court held that, notwithstanding the various dealings they had with the accused (searching him, placing him in the cell), it was rank speculation that they said anything to him which influenced his statement to the police such that a reasonable doubt was raised as to the voluntariness of the accused’s subsequent statement.
[47] In R. v. King, [2025] N.B.J. No. 19, the accused appealed his conviction of criminal negligence causing death concerning the death of a young employee on one of his construction sites. His statement to workplace investigators was admitted at trial. One ground of appeal related to the trial judge’s admission of the statement, notwithstanding the Crown’s failure to call one of the investigators – who had since retired and was unavailable. The New Brunswick Court of Appeal dismissed this ground of appeal, finding that two investigators had conducted the investigation; the other investigator was present for almost all of the interactions, and that this investigator and a third investigator were able to provide evidence of the ‘context’ in which the accused agreed to speak with the investigators. The Court of Appeal held that:
20 Two of the three individuals involved in the investigations were able to provide context for the statements. As discussed in Healy, the standard is not that all potential witnesses must be called, but rather that the Crown must call sufficient witnesses to provide adequate evidence regarding the surrounding events. Therefore, it was sufficient that only one of the investigators gave evidence at the voir dire.
[48] In R. v. Kisil, 2009 ONCJ 424, the Defence argued the Crown had not proved the voluntariness of the accused’s statement to the breath technician because the officer who lodged the accused in the cell before the breath testing did not testify. The Court dismissed the argument, as this officer was neither involved in the interrogation of the accused nor in taking his statement. The statement was ruled admissible.
[49] In R. v. C.B., [2013] O.J. No. 1501, the police officer who escorted the accused from the holding cell to the interview room was found to be an immaterial witness who was not necessary on the voluntariness voir dire. The Court in that matter also considered that the accused stated he had not said anything to this officer during the six minutes it took the officer to transport the accused.
[50] Conversely, if the person in authority had a meaningful presence in the accused’s “surrounding circumstances” in making the statement, in that case, failure to call this witness might raise a reasonable doubt regarding the voluntariness. In R. v. Bou-Chahine, [2013] O.J. No. 4737, the Crown’s failure to call the officer who accompanied the arresting officer to the accused’s home raised a reasonable doubt regarding voluntariness. At the time of arrest, the accompanying officer spoke to the 19-year-old accused’s mother, who was visibly upset. No details were provided about this conversation, which took place within earshot of the accused and the arresting officer. The Court determined that certain persons in authority were required to testify to establish proof of voluntariness; these were persons who:
- have legally meaningful contact with the accused, i.e. officers who had real investigative or custodial contact with the accused,
- any officer who had contact and would have been in a position to affect whether the accused gave a statement,
- any officer who would have been in a position to influence the giving of a statement of the accused and if not, was that person's absence explained satisfactorily,
- any officer who is not sufficiently remote from the taking of the statement,
- any officer who, if failed to be called, would leave a material evidentiary gap as to all the surrounding circumstances leading to the confession. Where material evidentiary gaps are present, it is not for the accused to prove that something untoward took place; it is for the Crown to prove it did not.
[51] In R. v. Bonsu, [2022] O.J. No. 5841, a search warrant was executed inside the accused’s home. Members of the Emergency Task Force (ETF) entered the house first, with guns drawn. Three minutes later, members of the Guns and Gangs (G&G) Unit entered. Shortly thereafter, the accused told the officers that the drugs and guns in the house were his. The Crown sought to lead the statement into evidence but did not call any evidence regarding what occurred during the three minutes that the ETF were in the residence, before the entry of the G&G officers. Although the preliminary inquiry judge found that there were no threats or inducements by the G&G officers, there was a material gap in the evidence as to what occurred during the time the ETF officers were present, such that the Crown did not discharge its onus in proving the statement voluntary.
Analysis
[52] What I have gleaned from the caselaw is that whether the Crown’s failure to call all witnesses on a voluntariness voir dire is fatal depends on whether the Crown has otherwise called sufficient evidence to account for all surrounding circumstances leading to the statement. The trial judge may consider all of the evidence heard on the voir dire, including the evidence of other officers who were present for the interaction with the ‘uncalled’ officer(s); the role of the ‘uncalled’ officers; their involvement with the accused; the lack of evidence as to whether they may have influenced the accused (such that the concern would be impermissible speculation); and any video or audio or other evidence of the statement itself.
[53] Counsel argued that the booking sergeant was not merely a bystander whose evidence was not inconsequential in determining voluntariness. (See: R. v. Jeganathan, [2014] O.J. No. 6438, at para. 9, and R. v. Dehaney, (unreported) April 10, 2013.) At most, the evidence suggests that the booking sergeant was alone with Mr. Kellerman for 13 minutes in the booking area within full view of a surveillance video recording camera. The idea that this officer, who had no direct involvement in a routine impaired driving investigation, would have made a threat or promise to Mr. Kellerman to induce him to make statements inside the breath room seems quite far-fetched to me. (See: R. v. McGregor, [2015] O.J. No. 6441.)
[54] As long as I can determine that the statement was made voluntarily, based on the evidence, the statement is admissible, regardless of who did or did not testify. (See: Kisil, paras. 8-13.) There were no threats, promises or inducements made to Mr. Kellerman. I observed no oppressive circumstances, far from it. The environment was friendly and professional. Mr. Kellerman had an operating mind. There was no police trickery.
[55] Mr. Kellerman displayed a relaxed and carefree attitude while in the booking hall and the breath room. He was comfortable in the presence of the booking sergeant to the extent that he exercised in full view.
[56] He did not display any fear or discomfort while in the breath room. He engaged in friendly conversation with the breath technician.
[57] I disagree with counsel that the statements in the breath room were involuntary and should be excluded from the trial based on the Crown's failure to call the booking sergeant. The statements in the breath room were voluntary.
Section 9 - Did PC Podyma have reasonable and probable grounds to arrest Mr. Kellerman?
The evidence
[58] The grounds cited by PC Podyma included the 911 call that a red vehicle was swerving within its lane. The caller provided the police with the licence plate. Upon arriving at the registered owner’s address, 1060 Walden Circle, Unit #38, in the City of Mississauga, both officers confirmed that a red Toyota Corolla with the matching licence plate was parked in the driveway facing the townhouse. The front driver’s side tire was deflated.
[59] PC Anderson reported to PC Podyma that the hood was “lukewarm,” suggesting the recent operation of the vehicle. PC Podyma knocked on the front door. Mr. Kellerman answered the front door. PC Podyma asked if Mr. Kellerman had recently driven the vehicle. Mr. Kellerman responded that he had. PC Podyma advised Mr. Kellerman that someone had called in that he had been swerving all over the road and the description of his vehicle was provided. Mr. Kellerman had confirmed that he had been drinking that evening at a friend’s place to watch the Buffalo Bills game. He claimed that he arrived home approximately an hour ago.
[60] At this point, PC Anderson was heard saying to PC Podyma, “There were enough grounds.” Mr. Kellerman admitted that he had been drinking Coors Lite. At this point, Mr. Kellerman was asked to provide his identification. As he turned around to retrieve his wallet, PC Podyma remarked, “Just so you know, I am investigating an impaired driving incident, so I caution you that anything you say may be used against you.”
[61] At 9:38 p.m., after confirming his identity with his driver’s licence, PC Podyma advised Mr. Kellerman to get his shoes as he was under arrest for “impaired operation of a vehicle.”
[62] PC Podyma testified that during her interaction with Mr. Kellerman, she observed that Mr. Kellerman had an odour of alcohol on his breath, bloodshot eyes, and slurred speech.
[63] PC Podyma observed that as Mr. Kellerman walked back to retrieve his wallet, he was unsteady and stumbled into the door. However, the body-worn camera video did not seem to corroborate this observation.
[64] PC Anderson stood directly behind PC Podyma during her interaction with Mr. Kellerman and heard him admit that he had been driving and drinking at a friend’s home. She also observed that Mr. Kellerman’s eyes were bloodshot, and he was slightly swaying.
Positions of the parties
[65] Counsel argued that the reasonable and probable grounds were not objectively established and, therefore, the arrest occurred inside Mr. Kellerman’s home without a warrant or proper grounds.
[66] The Crown submitted that Mr. Kellerman’s detention became lawful once the reasonable and probable grounds were formed based on the police officer’s observations and admissions. The arrest was supported by numerous grounds, including a civilian complaint with specific details and corroborated vehicle details, the presence of the matching vehicle at the registered owner’s home, the accused’s admission that he had just driven, admission to consuming alcohol, and physical signs consistent with impairment as observed by trained officers.
Applicable Legal Principles
[67] Pursuant to section 495(1) of the Criminal Code, a peace officer may make a warrantless arrest where, on reasonable grounds, he believes that the person has committed an indictable offence. This power of arrest has two components. First, the officer must subjectively believe that there are reasonable grounds to arrest. Secondly, this belief must be objectively reasonable concerning the information available to the officer at the time. (See: R. v. Storrey, [1990] S.C.R. 241.)
[68] Reasonable grounds, whether to arrest or make a breath demand, must be based upon the totality of the circumstances known to the officer at the time. It is sufficient that the officer subjectively believes that the driver's ability to operate a motor vehicle is slightly impaired due to the consumption of alcohol or drugs and that such belief is objectively reasonable. Allowance must be made for the context of an arrest, as police acting in the field, in a dynamic situation, may not have the luxury of detached reflection. (See: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) at paras. 36-57.)
[69] Where one or both of these elements are absent, the arrest and resulting detention is unlawful and, therefore, a breach of the detainee's right to be free from arbitrary detention as provided by section 9 of the Charter. (See: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 54.)
Analysis
[70] The officers were responding to a legitimate civilian complaint that contained specific details: erratic driving, a clear description of the vehicle, and a matching licence plate.
[71] Upon arrival, officers asked non-coercive preliminary questions which do not constitute detention under s. 9 of the Charter. (See: R. v. Suberu, 2009 SCC 33; R. v. Mann, 2004 SCC 52.) Mr. Kellerman voluntarily provided his identity, confirmed he had just arrived home, admitted to drinking, and confirmed he had been driving the vehicle. Only after these admissions and observations did the officers formally arrest him.
[72] During their interaction with Mr. Kellerman, both officers remained outside the house. Mr. Kellerman stood at the front door of his home.
[73] I reject that Mr. Kellerman was psychologically detained in these circumstances. He was always free not to answer any of the officers’ questions. He could have closed the door on the officers. However, Mr. Kellerman displayed no signs of confusion or intimidation when he initially answered the officers’ questions. Moreover, he continued to engage with the officers, asking questions and eventually freely moving inside his home.
[74] Based on the totality of her observations, PC Podyma testified that she believed Mr. Kellerman was impaired by alcohol.
[75] In my view, PC Podyma had reasonable and probable grounds based on objectively discernible facts, considering the totality of the circumstances. There had been a report of a red vehicle swerving on the road. The licence plate matched the vehicle that was found in the driveway of Mr. Kellerman’s home. The hood was lukewarm. Mr. Kellerman admitted to drinking alcohol at his friend’s house and then driving home. He smelled of alcohol, his eyes were bloodshot, and his speech was slurred. It was observable that Mr. Kellerman’s speech was slurred and slow on the body-worn camera. However, I cannot say that his eyes were bloodshot.
[76] While reasonable and probable grounds must be objectively based on facts, there is also a subjective requirement for the officer.
[77] The testimony must provide subjective grounds to support the requisite grounds relied upon by the officer. PC Podyma testified that she had observed bloodshot eyes, slurred speech, an odour of alcohol on his breath and Mr. Kellerman’s admission that he had consumed alcohol and had recently driven home when she advised that she was arresting Mr. Kellerman. The only reasonable inference from this constellation of facts is that PC Podyma had subjectively believed Mr. Kellerman was driving while his ability to do so was impaired by alcohol. As I found earlier, this belief was objectively supported.
[78] Accordingly, I find no violation of Mr. Kellerman’s ss. 8 and 9 Charter rights.
Did PC Podyma unlawfully enter the residence and arrest Mr. Kellerman without a Feeney warrant and invitation? Did the police unreasonably search Mr. Kellerman’s residence?
The evidence
[79] The police attended Mr. Kellerman’s home to investigate the offence of impaired driving. After speaking with Mr. Kellerman at the threshold of the door, PC Podyma formed grounds to believe that he was the driver of the vehicle and that he was impaired at the time of driving. He was advised that he was being arrested for impaired operation and to get his shoes. At that point, PC Podyma entered the house while he went to the stair area to put on his shoes.
[80] Mr. Kellerman asked how long this process would take. The officers advised approximately two hours. Mr. Kellerman asked to use the washroom. The officers agreed to allow him to use the washroom before transporting him to 11 Division, which was approximately 10 minutes away. Mr. Kellerman gestured to the officers to follow him to the second-floor bathroom. As Mr. Kellerman entered the bathroom, he was told to leave the door ajar.
[81] Before exiting the house, the police seized his car keys as the vehicle was going to be impounded.
The positions of the parties
[82] The Defence’s position is that the police unlawfully entered Mr. Kellerman’s residence when they arrested him. Furthermore, once the police gained entry into Mr. Kellerman’s home, they scanned the surroundings with their flashlights, searched for alcohol, and seized his car keys. This constituted a breach of his ss. 8 and 9 Charter rights. The circumstances indicate that the admission of any evidence would bring the administration of justice into disrepute and, therefore, ought to be excluded pursuant to section 24(2) of the Charter.
[83] The Crown’s position is that Mr. Kellerman has not established a violation of his ss. 8 and 9 rights when the police arrested him. Alternatively, even if the police conduct infringed his rights, the circumstances are such that the admission of the accused’s statement in evidence would not bring the administration justice into disrepute.
[84] The Crown submits that the officers did not enter the residence unlawfully or without reasonable justification. The accused left the door open voluntarily and did not object to the officers’ limited entry, which was incidental to his request to retrieve his identification, use the bathroom, and collect his items. The police did not rummage through any private spaces or inspect drawers or cabinets.
[85] Moreover, the observations made inside the residence were incidental and in plain view—not the product of an active or warrantless search (See: R. v. Mellenthin, 1992 SCC 50, [1992] 3 S.C.R. 615). The officers’ limited use of flashlights was primarily for officer safety and observation in low-light conditions, rather than a deliberate investigatory search.
[86] Their action falls within the expectations of s. 8 protections in the context of a lawful arrest, where limited entry and observation are incidental to arrest and not intrusive or exploratory (See: Cloutier v. Langlois, 1990 SCC 122, [1990] 1 S.C.R. 158).
[87] While Mr. Kellerman was in the washroom, the door was slightly ajar, and the officers did not point their body-worn cameras into the bathroom, nor did they peek or look in on Mr. Kellerman. They stood at the door for officer safety and to maintain proximity and continuity with Mr. Kellerman. There was minimal interference with Mr. Kellerman’s privacy.
The applicable legal principles: Re: Feeney warrant and implied invitation
[88] Generally, police are not entitled to enter a person’s home to effect an arrest without a Feeney warrant[^1] unless they are in hot pursuit, there are exigent circumstances, or they have the express or voluntary consent of the homeowner. A Feeney warrant is required (absent the exceptions noted above) where police attend a house to arrest someone (i.e., they already have grounds to believe the person inside has committed an offence).
[89] The Feeney decision does not stand for the proposition that police cannot attend a home to engage in an investigation. On the contrary, police are not only permitted but are duty-bound to investigate crimes, including questioning any person, whether suspected or not, from whom useful information can be obtained. (See: R. v. Esposito, 1985 ONCA 118, [1985] O.J. No. 1002.) The implied invitation to knock is a corollary of this proposition.
[90] In R. v. Ndikurivo, 2018 ONSC 7592, the Court held at para. 137:
…The attendance of a police officer to a dwelling house is governed in part by the “implied invitation to knock” principle as explained in Evans v. The Queen, 1996 SCC 248, 104 C.C.C. (3d) 23; this provides that the police, as does any member of the public, have a right to approach the front door of a residence to knock for the sole purpose of communicating with the occupants. This implied licence ends at the door of the dwelling; it does not include authority to effect a warrantless entry to arrest.
The police officer’s purpose or intention in attending a dwelling is a significant consideration.
I take this from paras. 25 and 26 of the Ontario Court of Appeal’s decision in R. v. Reid, 2016 ONCA 6471:
In my view, the facts do not support Mr. Reid’s assertion that Sergeant Dey entered the unit to arrest him. Rather, and as the trial judge found, Sergeant Dey was investigating…various possible criminal acts. As such, this case is distinguishable from those cases recognizing that a Feeney Warrant is required where police enter a dwelling for purposes of arresting an occupant.
Because I could reject Mr. Reid’s starting premise that Sergeant Dey needed a Feeney Warrant before entering the apartment, the balance of his argument that his detention and arrest were illegal because they flowed from the officer’s illegal entry into the apartment, cannot stand.
[91] The implied knock investigation applies to police officers attending on a person’s property to investigate an offence, as was the case here. In this instance, after speaking with Mr. Kellerman, the officers formed the requisite grounds to believe that he was the driver of the vehicle and that he was impaired at the time of driving. The question is whether their subsequent entry into the house breached the accused’s Charter rights.
[92] In R. v. Renouf, 2013 SKPC 34, the situation was similar to the case here. The police attended the accused’s apartment in the investigation of a motor vehicle offence. After speaking with the accused at the threshold of the door, the officer entered approximately five feet into the house. The officer then read an ASD demand to the accused. The accused sought to exclude evidence of the subsequent breath tests, alleging the officer’s attendance and entry constituted a Charter breach. The Court found:
[21] In my view, Cst. Forrester had the right to enter this property and approach the apartment door, I adopt the reasoning of Provincial Court Judge Barley in R. v. Hyde, 2010 ABPC 30, approved by Provincial Court Judge Kerby in R. v. Chomik, 2011 ABPC 152, at paragraph 43 “...there is no doubt that the police have the right to enter onto a person’s property for the purpose of communicating with them. They can approach the door of the residence, knock and speak to anyone who chooses to answer the door and speak and reply...this right extends to a person on a driveway. However, the occupant may tell the police to leave...”
[23] In R. v. Evans (1996), 1996 SCC 248, 45 C.R. (4th) 210, [1996] 1 S.C.R. 8, the Supreme Court of Canada considered the scope of activities authorized by the implied invitation to knock. Sopinka J. stated at pages 217 to 218:
15 In determining the scope of activities that are authorized by the implied invitation to knock, it is important to bear in mind the purpose of the implied invitation. According to the British Columbia Court of Appeal in R. v. Bushman (1968), 1968 BC CA 802, 4 C.R.N.S. 13, the purpose of the implied invitation is to facilitate communication between the public and the occupant. As the Court in Bushman stated, at p. 19:
The purpose of the implied leave and licence to proceed from the street to the door of a house possessed by a police officer who has lawful business with the occupant of the house is to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant.
[24] I agree with this statement of the law. In my view, the implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. The "waiver" of privacy rights embodied in the implied invitation extends no further than is required to effect this purpose. As a result, only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized by the "implied licence to knock". Where the conduct of the police (or any member of the public) goes beyond that which is permitted by the implied licence to knock, the implied "conditions" of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder.
[28] In R. v. Van Wyk, [1999] O.J. No. 3515, the intention was to identify the driver of the truck that caused the accident and that was found to be within the invitation to knock. At paragraph 26, Mr. Justice Hill states as follows:
A police investigator is at liberty, and indeed is obliged, in the execution of lawful duties, to ask questions to solve a crime. This entirely appropriate exercise by the police of their investigatory function, directed to any person whether suspected or not, includes inquiries directed to the identity of the party who may have committed an offence. [emphasis added]
[29] Justice Hill goes on at paragraph 33 and states:
Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government, in the sense of unwitting disclosure by the occupant, until he or she chooses to speak. The police intent of facilitating communication, even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory or in breach of s. 8 of the Charter.
[30] In the within case, Cst. Forrester did not snoop around the perimeter of the residence, or try to look in the window, or gain evidence in any other way.
[31] Cst. Forrester was involved in a Criminal Code investigation of impaired driving that had occurred very recently. She had reason to believe the offence had been committed by someone driving a specific vehicle, with a specific licence plate, which was now parked in the parking lot at this apartment address on Algoma. She had received information that the owner of this vehicle resided in apartment number 4. …
[32] However, the difference in the present case [to Macooh, a case involving hot pursuit] is that here Cst. Forrester found no one in the truck with the licence plate number she had been given. However, she was told by a tenant that the owner of the truck lived in apartment 4 and she was let into the building.
[33] Cst. Forrester’s purpose at apartment 4 was to communicate with the occupant. She was investigating a criminal offence of impaired driving that had occurred very recently. As a result of the conversation with Mr. Renouf, Cst. Forrester was satisfied he was the owner and driver of the truck. In other words, the person who was possibly impaired.
[34] As Mr. Renouf was talking to the police officer and providing this information he was backing up into his apartment. She testified she entered, at the most, five feet into the apartment. She noticed an unopened beer on the counter and also noted Mr. Renouf was looking for something in his apartment, which was likely his driver’s licence and registration which she had requested. It was at this time she observed Mr. Renouf had slurred speech, bloodshot eyes, and was visibly upset. No doubt these observations could have been made from the doorway or entrance to the apartment. She testified the apartment was very small.
[35] Therefore, at this point, Cst. Forrester testified she had sufficient information to believe that Mr. Renouf was impaired and had been operating a motor vehicle. However, despite the above noted conclusion, Cst. Forrester was of the opinion that she should make an ASD demand on Mr. Renouf. …
[37] The Crown submits that the Court of Appeal decision of R. v. Grotheim, 2001 SKCA 116, is right on point. In that case the police officer had received a dispatch about an accident in the town of Outlook. He discovered a tree which had been struck and noticed tracks leading to Grotheim’s driveway where a truck was parked. He noticed bark from the tree stuck in the front of this vehicle. He knocked on the door of this house where he knew Mr. Grotheim lived. He was told to “come in” and the police officer entered the house. The police officer did not proceed very far from the door when Mr. Grotheim approached him about a work order from an auto shop. When asked by the police officer, Mr. Grotheim admitted he had been driving the truck. The police officer also noted slurred speech, bloodshot eyes, and from his previous knowledge of this individual, the officer was positive Mr. Grotheim was displaying signs of intoxication. At that point the officer decided that Mr. Grotheim had committed a criminal offence, an indictable offence of impaired driving, and that it was his duty to place Mr. Grotheim under arrest to preserve any evidence. The demand for a breath test was made after arrest in the police vehicle. The Court of Appeal concluded that the police officer was authorized to arrest Mr. Grotheim in his home. …[emphasis added]
[93] Similarly, in R. v. Moser, 2012 ONCJ 209, the police attended the accused’s residence, having reasonable grounds to believe he had been driving while impaired. While the Court found that, generally, police have an implied invitation to knock on a door, their purpose in doing so was not to initiate communication or investigation – it was to effect an arrest. The accused also revoked the implied investigation. The Court then considered the accused’s reasonable expectation of privacy, stating:
[65] Assuming then that there was some reasonable expectation of privacy in the detached garage on the part of Mr. Moser and further assuming that the invitation to knock had been revoked by his comments once the door was open the court still must consider the circumstances surrounding the door being opened in the first place which are as follows:
- There was a legitimate concern that an impaired driver had left the bar.
- The driver was riding a motor vehicle with a licence plate associated with the address where the police attended.
- That information was received promptly by the police and acted upon in the same manner. They arrived at the residence noted to the plate owner very shortly after the information had been received from dispatch which in turn was received shortly before from the bar employee.
- The arrival of Cst. Gardner and the exit of Mr. Moser from the garage took place over a very short period of time. …
- Cst. Gardner attempted to gain access with permission. When that failed the unlocked door was opened. Cst. Gardner only made a minimal intrusion into the garage with no intention to arrest within the garage for the reasons he noted.
- I find that Mr. Moser voluntarily exercised his options and made a decision to exit the garage pursuant to the command and/or request of the officers. The further observations by Cst. Smith took place outside of the garage and Cst. Smith relied on no other information other than his own observations and the information received from dispatch to affect the arrest.
[66] Given the evolving case law and the facts in this particular case, it is the court’s ultimate finding that there has not been a breach of Mr. Moser’s s. 8 rights by virtue of Cst. Gardner lifting the garage door and opening it and stepping a minimal distance into the garage and thereafter requiring Mr. Moser to exit. His actions were, in effect, reasonable steps to take in the circumstances here. If there is a concern about Cst. Gardner’s actions at all, it is his position that he had grounds to arrest. However, he had near grounds and they were certainly enhanced once he had an ability to observe Mr. Moser who had purposefully and intentionally tried to avoid such observations by the officer by closing the door when the officer’s presence was readily apparent. Further, it is clear that Cst. Smith, the arresting officer, relied on nothing other than the presence of Mr. Moser and his own observations and the information from the bar in affecting the arrest as noted.
[94] The Court in Moser did not find a Charter violation in these circumstances.
Analysis
[95] While I agree with the submission of counsel for Mr. Sahota that citizens have the right to be promptly informed of the reason for police attendance and why they may be under investigation, I disagree with the assertion that this was denied to Mr. Kellerman.
[96] The evidence, as I find it on this point, is clear. Officers attended Mr. Kellerman's residence for the purpose of communicating with him in the investigation of a possible impaired driver. He was informed of this by PC Podyma shortly after he opened the door, as they were investigating a driver who was weaving all over the road.
[97] PC Podyma's questions focused on confirming the driver's identity and whether he had been drinking that evening. It was implicit from those questions that this was an investigation into impaired driving.
[98] Counsel also submits that the police unlawfully crossed the threshold of the houses without Mr. Kellerman’s consent and a warrant.
[99] In R. v. Desrochers, 2008 ONCA 255, the Court dismissed the appeal in an endorsement. The Court recognized that the trial judge affirmed a summary conviction appeal from the Superior Court of Justice, finding that a police officer's entry into a home to conduct a preliminary investigation was not unconstitutional. The summary conviction court found it permissible for a police officer to knock on a residence door and make inquiries.
[100] In the present case, PC Podyma and PC Anderson attended the residence to investigate a report of a possible impaired driver. I accept and find as a fact that their purpose for attending the residence was to speak with the potential driver of the red vehicle. They had received a description of the driving from dispatch, as well as a description of the motor vehicle, including the licence plate. The officers knocked on the door of Mr. Kellerman's residence. He immediately answered to the name "Robert." They ultimately spoke with Mr. Kellerman to inquire if he was the operator of the red vehicle in the driveway. While speaking with Mr. Kellerman, PC Podyma noticed signs of impairment, including bloodshot eyes, slurred speech, and a strong odour of an alcoholic beverage emanating from Mr. Kellerman.
[101] I accept and find as a fact that the officers did not attend the residence to gather evidence of Mr. Kellerman's impairment. At that point, they were trying to ascertain who the driver of the motor vehicle was. They engaged Mr. Kellerman in conversation to determine just that. Mr. Kellerman was free to choose whether to communicate with the officers.
[102] I note that the officers did not encroach on the residence beyond knocking and engaging in a conversation. They did not enter the residence. They did not exhibit any coercive conduct capable of exercising compulsion upon Mr. Kellerman. They did not engage in any other form of search beyond accessing the door. They were never asked to leave the property.
[103] In my view, the officers were permitted to attend Mr. Kellerman's residence to speak with him about their investigation, even if that conversation included investigative questioning.
[104] In the result, I do not find a breach of Mr. Kellerman's section 8 rights based on the police's attendance at the door of his residence.
[105] The Defence additionally argued that the officers exceeded any implied licence to attend Mr. Kellerman's residence by traversing beyond the front door of the residence.
[106] When PC Podyma crossed the threshold of the front door, she stepped only a few feet into the front hall, as Mr. Kellerman put on his shoes.
[107] In considering this argument, I note the comments of Justice McKinnon in the R. v. Desrochers, 2007 ONSC 12896, summary conviction appeal, at para. 18:
While citizens are entitled to a high expectation of privacy with respect to their homes, a criminal is not immune from arrest in his own home and there are strong policy considerations militating against making a home a sanctuary against arrest and encouraging individuals to see the police: see Eccles v. Bourque, 1974 SCC 191, [1975] 2 S.C.R. 739 at 743; R. v. Macooh, 1993 SCC 107, [1993] 2 S.C.R. 802 at para. 32.
[108] While Mr. Kellerman did not specifically invite the officers into his house, and he did not consent to their entry, I am not convinced that his consent was required. Even if the entry was not consensual, it does not necessarily follow that a Charter breach occurred. I adopt the very compelling logic of Justice Duncan in the decision of R. v. Golubentsev, 2007 O.J. No. 4608 (C.J.), at paragraphs 18 to 26.
[109] It would be entirely impractical for PC Podyma to obtain a (Feeney) search warrant. Given the nature of the timing and timelines involved in drinking-driving investigations, it would be necessary for the police to act as quickly as possible to preserve evidence, considering the dissipation of alcohol from the body, and the opportunity to consume additional alcohol (or claim to do so), all of which renders immediate action imperative.
[110] There was no violation of section 8 of the Charter.
Did the police violate Mr. Kellerman’s right to privacy by demanding that he keep the washroom door open while still recording this interaction, contrary to section 7 of the Charter?
The evidence
[111] After being arrested at his home, Mr. Kellerman requested to use the bathroom before being transported to the police station. PC Podyma allowed him to do so, citing concerns about his age, health, and the undesirability of him urinating in the cruiser. Both officers—PC Podyma and PC Anderson—were female. No male officer was called to supervise. The bathroom door was left ajar, and the officers’ body-worn cameras continued to record during this time. Mr. Kellerman was not informed that he was being recorded. There is no evidence that the officers deliberately tried to observe him while he was using the toilet.
Position of the Parties
[112] The Defence submits that the officers made no effort to shield Mr. Kellerman’s privacy (e.g., turning off cameras, closing the door, or averting their gaze).
[113] There was no operational necessity to record him at this moment. The officers could have waited or called a male officer to supervise the situation.
[114] The Crown submits that allowing Mr. Kellerman to use his bathroom was a humane and practical choice, given his age and health. The door was left ajar for officer safety and to prevent Mr. Kellerman from destroying evidence or harming himself. The officers did not attempt to observe him directly. The body-worn camera footage did not capture any intimate acts. Once under arrest, Mr. Kellerman’s expectation of privacy was diminished, especially in a custodial context.
Applicable legal principles: Re: Right to privacy
[115] Once a person has been arrested and is in custody, the police have a positive duty to carefully monitor their actions to protect both the detainee and themselves. When individuals are in custody outside a police-controlled environment, the officers must also ensure that the person does not harm themselves, harm the police, or flee. In cases of impaired driving, there may also be a concern that the accused does not consume additional alcohol after their arrest but before providing breath samples.
[116] There are many cases which have considered a person’s reasonable expectation of privacy, particularly where they need to use the washroom while at a police station. While these cases are not directly on point because they arise in circumstances where the accused is at the station, they are helpful in the context of this case. The Courts have found:
A person in the custody of the police will have a substantially reduced expectation of privacy. (See: Weatherall v. Canada (AG), 1993 SCC 112, [1993] S.C.J. No. 81 (para. 5); R. v. Beare; R. v. Higgins, 1988 SCC 126, [1987] S.C.J. No. 92 (para. 59).)
People in custody have a substantially reduced expectation of privacy. However, some expectations remain, particularly when it comes to using the washroom. (R. v. Mok, 2012 ONCJ 291).
Analysis
[117] The following factors should be considered when assessing whether Mr. Kellerman’s right to privacy was breached by allowing him to use the bathroom in his own home while the female officers kept the door ajar:
Was the decision to let Mr. Kellerman use the washroom at home, rather than taking him to the police station, reasonable in the circumstances?
Whether it would have been realistic to call a male officer to attend the scene to guard the bathroom, and the impact on rights to counsel and timeliness of the request for breath samples?
Whether the officers tried to – or were able to – see the accused while on the toilet?
Whether the officers did everything they could to safeguard his privacy to the extent possible, i.e., what efforts did the police make to help preserve the privacy of the person in custody (while they used the facilities)? (See: R. v. Wilczewski, 2023 ONSC 3820.)
Was there a blatant disregard of police policies to preserve Mr. Kellerman’s privacy?
Is the issue systemic?
[118] PC Podyma testified that she considered Mr. Kellerman’s age and health when deciding to allow him to use the washroom instead of waiting until they arrived at 11 Division. She noted that he appeared to be an older man and expressed concern about the discomfort or indignity of having him urinate in the back of the cruiser, given her past experiences. In my view, that was a compassionate and reasonable position to take under the circumstances.
[119] The suggestion that a male officer should have been called to supervise Mr. Kellerman while he was in the washroom was unrealistic without causing undue delay, especially considering the time-sensitive nature of the breath demand procedures under Section 320.27 of the Criminal Code.
[120] The door was left ajar, and the officers’ body-worn cameras were recording. However, there was no evidence that the officers deliberately tried to observe Mr. Kellerman while he was using the toilet. The officers maintained a respectful distance and did not attempt to view the intimate act of urination; therefore, the severity of the privacy intrusion has been significantly reduced.
[121] Although the police did not inform Mr. Kellerman that he was being recorded, the cameras were not aimed at the area; instead, they directed their cameras away and minimized exposure.
[122] Although the police did not reference or follow any policy regarding privacy during bathroom use, I cannot conclude whether there was a blatant disregard for internal policies or best practices, if any existed. I am skeptical that this issue is systemic, given the unusual circumstances in this case—an arrest in the home and a request to use the washroom before leaving.
[123] I accept that the officers needed to maintain visual contact with Mr. Kellerman for safety reasons, as he was under arrest and had not yet been searched. Courts have occasionally allowed limited intrusions into privacy when justified by legitimate safety concerns, particularly in custodial settings. Mr. Kellerman was lawfully arrested; therefore, his expectation of privacy was diminished, especially in the context of police supervision. Given the presence of officers and the ongoing investigation, a reasonable person in Mr. Kellerman’s position would not expect complete privacy while in custody and under observation.
[124] I find that the officers allowing Mr. Kellerman to use his bathroom was a humane and reasonable accommodation, especially if the alternative was to delay transport or deny access. Ideally, in the future, the body-worn camera could be turned off to guarantee the detainee’s privacy further, but as I have said before, the camera did not capture the intimate act in this case.
[125] I find there was no violation of Mr. Kellerman’s right to an exception of privacy, contrary to section 7 of the Charter.
Search of Mr. Kellerman’s vehicle: Re: seizing the keys and the inventory search
The evidence
[126] After Mr. Kellerman was arrested and removed from the home, the police took his car keys and did an ‘inventory’ search of the car, which revealed an open bottle of Rye in the front part of the vehicle.
[127] PC Podyma initially testified that Mr. Kellerman handed her the keys. Later, she said that was incorrect, and possibly PC Anderson gave her the keys. Ultimately, PC Podyma admitted that she did not remember who had given her the keys or exactly how she had come into possession of them. PC Anderson testified that PC Podyma found the keys and gave them to her, but she was also not sure about the exact sequence.
[128] The body-worn camera footage showed that while escorting Mr. Kellerman to the cruiser, PC Podyma took the keys from the shelf near the front door and handed them to PC Anderson. The house key was removed and placed with Mr. Kellerman's wallet. The police informed him that the keys were being taken because his car was being towed.
[129] PC Anderson testified that the purpose of the search was to secure Mr. Kellerman’s vehicle since he was now under arrest and in custody. She claimed it was standard procedure to ensure there were no valuables or hazards left in the vehicle.
[130] During this search, she found an open bottle of Canadian Club Rye in the center console.
Positions of the parties
[131] The Defence argued that this was not a valid inventory search but rather an evidentiary search conducted without a warrant or legal justification.
[132] The Crown argued that the search was administrative, not investigative. It was conducted to secure the vehicle and document its contents after Mr. Kellerman was taken into custody.
The applicable legal principles
[133] There is a difference between the search of a vehicle incident to arrest and an ‘inventory’ search. The former is to protect the police, the accused or the public and is conducted for valid law enforcement purposes incident to a person’s arrest. The latter occurs most often when a vehicle is being seized or impounded and is conducted to ensure a proper accounting of what is in the vehicle at the time it is removed from the accused’s custody.
[134] A search incident to arrest is lawful if it meets three key criteria established under common law and affirmed by the Supreme Court in cases like R. v. Caslake, 1998 SCC 838, [1998] 1 SCR 51. First, the arrest must be lawful. Second, the search must be truly incidental to the arrest, meaning it must be conducted for a valid law enforcement purpose such as ensuring officer safety, preventing escape, or preserving evidence. Third, the search must be reasonable in scope and manner, tailored to the circumstances and not overly intrusive. These principles are grounded in Section 8 of the Canadian Charter, which protects individuals against unreasonable search and seizure.
[135] Cloutier v. Langlois, 1990 SCC 122 was an early SCC decision which considered the issue of a search incidental to arrest as extending to the surroundings of the search location. The Court held that the power to search an arrested person extended to encompass a search of the “surroundings of the arrest location,” to ensure that the evidence found on the accused and “in his immediate surroundings” is preserved. (See: para. 187.) However, the Court was careful to note that the power to search incidental to arrest was not automatic or unlimited, stating at para. 186:
This power [to be permitted to search incident to an arrest] does not impose a duty. The police have some discretion in conducting the search. Where they are satisfied that the law can be effectively and safely applied without a search, the police may see fit not to conduct a search.
The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of an object that may be a threat to the safety of the police, the accused or the public, or that may facilitate escape or act as evidence against the accused. The purpose of the search must not be unrelated to the objectives of the proper administration of justice, which would be the case for example if the purpose of the search was to intimidate, ridicule or pressure the accused in order to obtain admissions.
The search must not be conducted in an abusive fashion and in particular, the use of physical or psychological constraint should be proportionate to the objectives sought and the other circumstances of the situation. [emphasis added]
[136] The Court emphasized that a search that did not meet the above objectives could be characterized as unreasonable and unjustified at common law.
[137] Since Cloutier, supra, the Supreme Court of Canada has considered various iterations of the issue. See, for example, R. v. Stillman, 1997 SCC 384, at para. 35 (preservation of evidence from destruction by a detainee and the discovery of evidence could be valid objectives, but did not include an invasive search and seizure of hair and buccal samples and teeth impressions); R. v. Caslake (motor vehicle searches); R. v. Golden, 2001 SCC 83 (strip searches); and R. v. Nolet, 2010 SCC 24 (motor vehicle searches).
[138] In Caslake, a case involving the search of a motor vehicle, Lamer CJC summarized the importance of the limit that the search must be truly incidental to the arrest, at para. 25:
. . . If the law on which the Crown is relying for authorization is the common law doctrine of search incident to arrest, then the limits of this doctrine must be respected. The most important of these limits is that the search must be truly incidental to the arrest. This means that the police must be able to explain, within the purposes articulated in Cloutier, supra (protecting the police, protecting the evidence, discovering evidence), or by reference to some other valid purpose, why they searched. They do not need reasonable and probable grounds. However, they must have had some reason related to the arrest for conducting the search at the time the search was carried out, and that reason must be objectively reasonable. . . .
[139] In Caslake, the majority of the Court held that an inventory search of a motor vehicle conducted in accordance with RCMP policy was not consistent with a valid police objective, as articulated in Cloutier. Interestingly, the majority held that if the police had searched the vehicle with the stated objective of obtaining evidence which could be used at the accused’s trial relating to the drug charges for which he had been arrested, the search would have been incidental to his arrest.
[140] In R. v. Nolet, 2010 SCC 24, the SCC held that a vehicle search, conducted to discover evidence related to the offence for which the accused had been arrested, constituted a lawful search pursuant to the power to search incidental to arrest. The Court confirmed that a search incident to arrest does not require reasonable and probable grounds, and the basis of the warrantless search is not exigent circumstances, but rather, connection or relatedness. (See: paras. 51 and 52.) See also: R. v. Fearon, 2014 SCC 77 at para. 71, R. v. Tontarelli, 2009 NBCA 52, and R. v. Ibrahim, 2021 MBCA 12, which confirm that exigent circumstances are not required. Even after the accused has been removed from the vehicle, searched at the roadside, and placed under arrest, a subsequent search of the vehicle is permissible as incident to arrest to preserve or gather evidence related to the arrest or for public or officer safety. (See: R. v. Polashek (1999), 1999 ONCA 3714; R. v. MacDonald, 2014 SCC 3 at paras. 33, 41-42; R. v. Majedi, 2009 BCCA 276 (para. 25).)
[141] It should be noted that the courts have emphasized the need for a reasonable, identifiable purpose for the search, and cautioned that undertaking a search for the sake of “due diligence, or completeness, runs the risk of impacting the privacy rights of an individual where there is no legal basis to do so”: (See: R. v. Johnstone, 2020 BCSC 316 at para. 70.)
[142] Therefore, while searches that are truly incidental to a lawful arrest do not themselves have to be based upon reasonable and probable grounds, the police must, when undertaking such searches, be seeking “to achieve some valid purpose connected to the arrest.” This will turn on what the police are searching for and why they are searching for it. The police must have in mind, when searching, one of the purposes for a valid search incident to arrest and must reasonably believe that this purpose may be served by the search that is undertaken. (See R. v. Caslake, at paras. 19-25; R. v. Nolet, at paras. 49-52; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721 (C.A.) at para. 38.)
[143] The jurisprudence appears clear that a search incident to arrest can include a search of the motor vehicle of the accused where the arrest took place when the accused was in or had care and control of the vehicle at the time of the arrest, and the search was rationally related to the reason for the arrest. This may include searching the passenger compartment, the trunk, or even removing interior panels. (See: R. v. Pearson, 2017 ONCA 389; R. v. Stonefish, 2019 ONCA 914; R. v. Smellie, 1994 BC CA 1612, 53 BCAC 202.) Indeed, Fearon suggests there is no categorical limit on searches incident to arrest. Cromwell J. explained, at paras. 13 and 14, that:
This question about the scope of the power to search incident to arrest cannot be answered in too categorical a fashion. As Lamer C.J. explained in Caslake, the permissible scope of a search incident to arrest turns on several different aspects of the search including the nature of items seized, the place of search and the time of search in relation to the time of arrest: paras. 15-16. Each of these aspects may engage distinct considerations that cannot be addressed in very general terms. . . . It follows that the permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest. The courts will rarely be able to establish any categorical limit applicable to all arrests and all purposes incidental to them.
There is no question that there is a common law police power to search incident to arrest. . . . To determine the precise scope of this common law power, the Court must weigh the competing interests involved, particularly whether the search “is reasonable in light of the public purposes served by effective control of criminal acts on the one hand and on the other respect for the liberty and fundamental dignity of individuals”: Cloutier v. Langlois, 1990 SCC 122, [1990] 1 S.C.R. 158, at pp. 181-82; Caslake, at para. 17. The Court’s task is “to delineate the scope of the common law power . . . in a way that is consistent with the Charter right to be protected against unreasonable search and seizure”: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 87.
Inventory Searches
[144] In R. v. Nicolosi, 1998 ONCA 2006, the Court of Appeal concluded that inventory searches of vehicles after arrest are not automatically justifiable as a search incident to the arrest. This is so because inventory searches do not necessarily serve the criminal law objectives which justify the power to search as an incident of arrest. (See also: R. v. Wint, 2009 ONCA 52.)
[145] In R. v. Dunkley, 2016 ONCA 597, the accused had parked his vehicle in the parking lot of a commercial establishment. He was unaware that police officers had followed him to that location to question him about robberies. The Court of Appeal overturned his conviction and concluded he had not parked the vehicle with the intent of abandoning it, and the subsequent warrantless search was unlawful. In doing so, the Court offered a summary of the basic principles concerning warrantless inventory searches:
i) In Caslake, the Supreme Court declined to decide whether there should be an inventory exception under s. 8 of the Charter;
ii) The police have a responsibility to keep an impounded vehicle safe. To do so, they must have the authority to search and inventory the contents;
iii) Applying R. v. Wint, 2009 ONCA 52, the fact the police may have been looking for something else while conducting an inventory search, does not prima facie render the search unlawful;
iv) When itemizing visible property, the police have the authority to open bags or other containers in order to itemize their contents (Wint at paras. 14-15); and
v) An inventory search of a vehicle will be unconstitutional where there is no statutory authority invoked for the search (Nicolosi, at para. 34; Caslake, at para. 30; R. v. Nolet, 2010 SCC 24, at para. 53).
[146] The police, when impounding a motor vehicle, are entitled to search it to itemize property of apparent value. In doing so, the police are also permitted to itemize the contents of items, such as purses and bags, found within the vehicle.
[147] In R. v. Lukasci, 2011 ONCJ 758, at para. 22, the Court found that an inventory search could include the vehicle’s glove compartment:
Although Wint did not speak directly to a search of the trunk of a vehicle, in my view a search of the trunk or glove compartment or centre console falls within the spirit of Wint’s recognition of a reasonable power to survey the property in the vehicle, including its contents. In that sense, I believe Wint has overtaken any narrow reading of Nicolosi, and recognizes a reasonable search power to inventory and document property for which the police are responsible throughout the vehicle, whether or not it is in plain view.
Analysis
[148] The police are generally entitled to extend a search incident to an arrest to include the vehicle in which the accused was travelling. While the accused is typically arrested in this vehicle, this is not always the case if there is a temporal location.
[149] It would be harder to justify the search of the vehicle as a proper “inventory” search, as the vehicle was not being seized or impounded by police.
[150] Mr. Kellerman was not found in his vehicle at the time of the arrest, although the officers noted that the vehicle was ‘still warm’ in the driveway. This lack of immediate temporal connection is not fatal, and delay and distance do not automatically rule out a search from being incidental to arrest. Still, they may cause the court to draw an adverse inference. However, that inference may be rebutted by a proper explanation. (See: Caslake, para. 27.)
[151] In this case, Mr. Kellerman was under arrest and his vehicle was being impounded. The seizure of his car keys was incidental to his lawful arrest. The search of his car was administrative and not for investigative purposes. PC Anderson's search of the console for valuable items was proper. (See: Lukasci and Wint.) Opening the centre console and seizing the bottle of Rye was not an unreasonable search and seizure.
[152] There was no violation of section 8 when the police seized Mr. Kellerman’s car keys and searched his car before impounding it.
Was Mr. Kellerman informed of the reasons for his detention or arrest, contrary to section 10(a) of the Charter?
Was the delay of the informational component of Mr. Kellerman's rights to counsel for approximately 12 minutes, contrary to section 10(b) of the Charter?
The evidence
[153] Mr. Kellerman was arrested at approximately 9:38 p.m. He was not informed of his rights to counsel until 9:50 p.m. by PC Podyma while seated in her cruiser. This is a 12-minute delay. During that time, Mr. Kellerman put on his shoes and was permitted to use his upstairs washroom. He was asked if he needed his medication, where his house, car keys, and his cellphone were. He was escorted from the house, handcuffed, and searched before his rights to counsel were read to him in the cruiser.
[154] PC Podyma admitted that she did not immediately advise Mr. Kellerman of his rights to counsel. She explained that she needed her yellow notebook to read the caution properly. She also said Mr. Kellerman requested to use the bathroom, and she prioritized that. She acknowledged she could have told him, “You have the right to call a lawyer,” but chose not to.
[155] However, PC Anderson confirmed the delay and described it as “typical” in such situations. She did not express any concern about the timing or suggest that there was any urgency.
Positions of the Parties
[156] The Defence submits that the officers failed in their obligations to inform Mr. Kellerman of the reasons for his arrest and detention.
[157] The Defence argues that the delay in informing Mr. Kellerman of his rights to counsel was unjustified and unlawful. There were no officer or public safety concerns that justified the delay. During the delay, he made certain incriminating statements. The delay reflects a systemic disregard for constitutional rights.
[158] The Crown submits that Mr. Kellerman was informed of his rights to counsel promptly upon his arrest, and implementation occurred as soon as practicable, at 11 Division. The police were justified in delaying the informational component to allow Mr. Kellerman to use the washroom. After the caution, PC Podyma said, “Come outside so we can arrest you and read you your rights to counsel.” Furthermore, after Mr. Kellerman used the washroom, PC Podyma said, “Let’s go outside so I can read the rights to counsel.”
[159] The delay was brief and did not prejudice his ability to speak to duty counsel eventually.
[160] In brief, the Crown submits that the delay was for practical and compassionate reasons. It was not tactical, but rather a matter of respecting Mr. Kellerman’s dignity and health.
[161] If there is a finding of a breach, the Crown argues that officers acted in good faith and not for any malevolent purpose. The evidence should not be excluded.
Applicable legal principles: Sections 10 (a) and (b) – informing the detainee of the reasons for detention and delayed rights to counsel
[162] Sections 10(a) and 10(b) of the Charter states the following:
Everyone has the right to on arrest or detention.
(a) To be informed promptly of the reasons therefor.
(b) To retain and instruct counsel without delay and to be informed of that right.
[163] The purpose of section 10(a) is to ensure that an individual understands the legal jeopardy they face so that they may make informed decisions, including whether to exercise their right to counsel under section 10(b). The information provided need not be in precise legal language, but it must be sufficient to allow the detainee to understand the nature of the investigation or the reason for the arrest.
[164] If the stop or detention is not part of a check-stop program or under provincial highway legislation, the police officer must have articulable cause or “reasonable grounds” to detain a driver. (See R. v. Mann, 2004 SCC 52, at para. 33.)
[165] The reasons for detention must be explained to the detainee "in clear and simple language." (Mann, at para. 21.)
[166] Police are authorized to check drivers' sobriety by provincial legislation and at common law. Physical sobriety tests, roadside questioning regarding alcohol consumption, and roadside questioning to assess whether the driver’s speech is slurred are all reasonable roadside investigative procedures. Any investigative procedure must be performed at the detention site, with dispatch, with minimal inconvenience and no danger to the detainee's safety. (See: R. v. Smith, 1996 ONCA 1074, [1996] O.J. No. 372 (C.A.).)
[167] Doherty J.A. of the Ontario Court of Appeal described reasonable grounds to detain as “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.” (See: R. v. Simpson, 1993 ONCA 3379, [1993] O.J. No. 308 at para. 61.)
[168] In R. v. Nguyen, 2016 ONSC 4980, the Court held that a statement such as “you are being investigated for an impaired incident” was sufficient to satisfy section 10(a), even if the precise statutory language was not used.
[169] Police have an obligation, upon arrest, to advise the person arrested of their right to counsel without delay. Without delay refers to both informing the detainee of their right to counsel and implementing that right. The words “without delay” in section 10(b) have been interpreted to mean immediately, “subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter.” This is to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and to assist them in regaining their liberty. (See: R. v. Suberu, 2009 SCC 33, para. 41.)
[170] At para. 42, the Court closed the door on the flexibility of reading the rights to counsel 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.
[171] Regrettably, this decision did not resolve the ongoing litigation concerning the timing of the right to counsel.
[172] Where officers delay reading the accused their right to counsel, there may be a section 10(b) breach. The following cases have considered the issue.
[173] Justice Schwarzl reviewed the applicable caselaw in R. v. Braich, 2022 ONCJ 81, a case in which there was a five-minute delay between arrest and RTC:
[17.] When an individual is arrested or detained, s. 10(b) of the Charter guarantees the individual the right to retain and instruct counsel “without delay” and to be informed of that right. Subject to concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter, “without delay” means “immediately”: R. v. Bartle, 1994 SCC 64, [1994] 3 S.C.R. 173; R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33; R. v. Rover, 2018 ONCA 745; R. v. Thompson, 2020 ONCA 264, [2020] O.J. No. 1757 (C.A.).
[18.] The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate: R. v. Rover, at paras. 27 and 28; R. v. La, [2018] O.J. No. 5357 (C.A.), at paras. 38 and 39.
[19.] Some Ontario Provincial Court judges have held that delays of between five and seven minutes in providing rights to counsel after arrest where no conspicuous safety concerns exist can be justified where the officer first tends to investigative, rather than administrative, duties such as searching the arrestee incident to arrest, lodging the arrestee in a police car, arranging for other officers to assist, arranging a tow, or checking the arrestee’s criminal history: R. v. Singh, [2017] O.J. No. 3017 (O.C.J.); R. v. Foster, 2017 ONCJ 624; R. v. Rossi, 2017 ONCJ 443; R. v. Turcotte, [2017] O.J. No. 5607 (O.C.J.); R. v. Selvashanmugathasan, [2019] O.J. No. 261 (O.C.J.); R. v. Agnihotri, [2019] O.J. No. 4133 (O.C.J.); R. v. Bhimlal, [2021] O.J. No. 1759 (O.C.J.); R. v. Coates, [2021] O.J. No. 2774 (O.C.J.); R. v. Brown, [2021] O.J. No. 4695 (O.C.J.).
[20.] Other Ontario Provincial Court decisions have gone the other way in similar circumstances: R. v. Davis, [2018] O.J. No. 1220 (O.C.J.); R. v. Ranger, [2019] O.J. No. 3203 (O.C.J.); R. v. Krasausks, [2020] O.J. No. 5580 (O.C.J.); R. v. Pillar, [2020] O.J. No. 3791 (O.C.J.); R. v. Toth, [2021] O.J. No. 2350 (O.C.J.); R. v. Davidson, [2021] O.J. No. 3559 (O.C.J.).
[21.] Having reviewed the authorities, I find that determining the question of whether rights were given immediately must not be based solely on time, but also an examination of all the circumstances. Context is important because immediately does not always mean instantly: R. v. Fisk, [2020] O.J. No. 707 (O.C.J.) at para 51; R. v. Kuznetsoff, 2021 ONCJ 124, [2021] O.J. No. 1125 (O.C.J) at para. 21 … . [emphasis added]
[22.] In this case the five-minute delay in providing rights to counsel was the result of several factors.
[23.] One factor is that P.C. Clapham took time to complete the arrest by taking physical control of the Defendant. She then took time to search him, handcuff him, and put him into the back of her car. No evidence was led as to how long this process took, but it would be reasonable to think this would take only a minute or two especially since the Defendant was cooperative and did not hinder the officer.
[24.] Another factor is that the officer also took time to speak to P.C. Drinkwalter about handling the search and tow of the Defendant’s car. She also called dispatch to arrange for a breath technician. No evidence was led on the time taken to perform these activities, but I find that a reasonable amount of time would be a minute or two for these events to unfold.
[25.] I find that these first two factors were brief investigative functions that took a few minutes or so. As such they did not undermine the immediacy of the provision of rights to counsel. This case is different from the situation in R. v. Kou, [2019] O.J. 6811 (O.C.J.) where retrieving a notebook from a duty bag was done at the officer’s leisure. It is also different from R. v. Odrowski, [2019] O.J. No. 6018 (O.C.J.) where the court found the officer’s decision to delay reading rights by putting the screening device away and jotting things in his notebook to be unreasonable. In these two cases, the trial judges clearly felt that the officer’s languid approach violated the immediacy requirement of providing rights to counsel. Here, the officer’s conduct in searching incident to arrest involved an inherent consideration of safety even though she did not articulate this. I also find that P.C Clapham’s discussion with her partner regarding the defendant’s car involved unarticulated safety considerations. Even though the car was on the shoulder, it was on a busy road. Discussions to deal with its search and removal not only protected the safety of other motorists, but also the safety of the defendant’s automobile.
[26.] Another factor is that P.C. Clapham wanted to ensure that when she read rights to counsel, they were not going to be interrupted and that it was done in a private environment. She wanted to remove distractions like dealing with his car or calling dispatch from interfering with her duty to ensure that the Defendant not only received, but understood, his rights. This provides important context because the officer appears to have been alive to the idea that reciting the rights without ensuring comprehension is futile. I find that in this case, being given his rights immediately included a consideration of doing so at a time when, and in a place where, the officer could be sure he understood those rights. Implicit in these circumstances is that it was quieter in the officer’s car than standing on the side of the road. Once she completed the brief investigative tasks the officer gave her full attention to the defendant: R. v. Pileggi, [2021] O.J. No. 32 (C.A.) at para. 62. That said, the officer could have given his rights to counsel prior to calling for a breath technician, but any delay caused by this task was minimal and did not negate the overall immediacy of providing the defendant with his right to counsel.
[27.] The final factor in the delay of giving rights was the mixed evidence of P.C. Clapham. She said that she was trained that rights to counsel are to be given as soon as practicable after arrest but also right away. I find that the officer believed that she had to give the person their right to counsel right away provided that the person could hear and understood those rights. This belief was completely reasonable. At no point did she suggest she felt she could delay the reading of rights as a matter of convenience to her.
[28.] The situation before me is similar that in R. v. Agnihotri, [2019] O.J. No. 4133 (O.C.J.) where Rahman J. found no breach in a four-minute delay where the officer took time to deal with the Defendant’s car and where the officer testified that he wanted to place the applicant in the cruiser where there was some peace and quiet to read his rights.
[29.] Based on the constellation of factors in this case, I find that the Defendant has not shown on a balance of probabilities that the delay of five minutes between his arrest and receiving rights to counsel resulted in a breach of his s.10(b) Charter rights. If the postponement in reading his rights was sufficient to shift the burden to the Crown to show that the delay was reasonable, they have done so for the reasons I have stated: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at para. 24.
[174] In R. v. Bhimlal, 2021 ONCJ 203, there was a five-minute delay between arrest (following failed roadside test) and the rights to counsel. The Court accepted that, subject to concerns for officer or public safety, “without delay” means “immediately”. However, the Court acknowledged that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to public safety or the need to preserve evidence. The Court found there was no breach, but not before canvassing a series of cases on the issue:
[44] Counsel for Mr. Bhimlal provided me with a number of cases where seven-minute delays were held to be an infringement of the accused person’s section 10(b) rights.
[45] In R. v. Sandhu, 2017 ONCJ 226, Schreck J. found a breach where the seven-minute delay occurred while the officer spoke to the arrestee's passengers.
[46] In R. v. Simpson, [2017] O.J. No. 2594, OCJ Schreck J. found a breach where the arresting officer delayed informing the impaired driving arrestee of his right to counsel for seven minutes while he retrieved the arrestee's wallet and some unspecified object from the center console of his vehicle. In this case, Crown counsel conceded that this was a violation of section 10(b).
[47] In R. v. Campbell, 2017 ONCJ 570, Felix J. found a breach where there was a seven minute delay while the officer determined his legal authority to tow the arrestee's vehicle from a private driveway, summoned another officer to assist with towing, counted money he had seized from the arrestee and secured open liquor.
[48] Crown counsel referred me to cases going the other way.
[49] In R. v. Singh, [2017] O.J. No. 3017 (O.C.J.), Botham J. found no breach in a five-minute delay for a pat-down search, and running the arrestee's name on the officer's in-car computer did not lead to a breach.
[50] In R. v. Foster, 2017 ONCJ 624, Jaffe J. found no breach in a five-minute delay while the officer conducted a pat-down search and lodged the arrestee in the back of the cruiser.
[51] In R. v. Rossi, 2017 ONCJ 443, Henschel J. found no breach where the female arresting officer delayed for seven minutes so a male officer could search the arrestee incident to arrest and so she could retrieve his cell phone at his request and calm him down so he would be able to absorb what she was telling him about his right to counsel.
[52] In R. v. Turcotte, [2017] O.J. No. 5607 (O.C.J.), McInnes J. found no breach in a five minute delay during which the police officer handcuffed the man, performed a pat-down search incident to arrest and stored the man's property. During this interaction he asked the defendant where his car keys were. The defendant replied he had left them on the ground near "the corner of the building" which was evidently a short distance from where his truck and the police cruiser were parked. The officer then moved his police cruiser close to the corner of the building to ensure nothing happened to the keys before he had the chance to search for them and he initiated arrangements for another officer and a tow truck to attend and he entered the defendant's particulars into his in-car computer system to determine if there were any outstanding warrants, charges or prior judicial interim release orders and the like. Taking these steps comported with the immediacy requirement.
[53] In R. v. Agnihotri, [2019] O.J. No. 4133 (O.C.J.), Rahman J. found no breach in a four minute delay. His reasons were as follows:
9 Further, the four-minute delay in advising the applicant of his right to counsel after he was arrested did not breach the immediacy requirement of s. 10(b). The requirement to read a detained person his or her right to counsel immediately does not mean it must happen instantaneously after arrest. Context matters. The officer explained that he wanted to place the applicant in the cruiser where there was some peace and quiet. While it is true that he briefly called for assistance to have the car towed, one minute before advising the applicant of his right to counsel, that does not mean it was not done immediately. This is not a case where the officer did several non-urgent, administrative tasks before advising the applicant of his right to counsel. In the context of this arrest, the four-minute delay did not fall afoul of the immediacy requirement. There was no breach of s. 10(b) of the Charter.
[54] In R. v. Fisk, 2020 ONCJ 707, O’Marra J. held that the immediacy requirement dictated that the accused should have been provided with meaningful rights to counsel while he waited for the arrival of the ASD. Relevant to the present case however, he went on to state that:
51 In my view, the applicant did not prove on a balance of probabilities that there was a further section 10(b) violation as a result of a delay of four (4) minutes between the time of the "fail" and the arrest, to the time that the right to counsel was provided to the applicant seated inside the cruiser. The right to counsel is to be provided 'immediately not instantaneously'. Police officers are not required to hand cuff the accused with one hand and with the other hand read the right to counsel from their notebooks. Besides, the police did not attempt to elicit any evidence from the applicant during this period that would have been admissible. (See: R. v. Culotta, 2018 ONCA 665, [2018] O.J. No. 3946 (Ont. C.A.) at para. 35.)
[175] In R. v. Taylor, 2014 SCC 50, the accused rolled his truck, injuring three passengers. He was arrested for dangerous driving causing bodily harm, treated at the scene, and taken to the hospital, where he was treated for over four hours. Although he was read his rights to counsel at the scene, no effort was made during this time to facilitate his access to counsel. The Court ruled that the police have a duty to provide phone access to the detainee to contact counsel “at the earliest practical opportunity.”
[176] In R. v. Hansraj, 2022 ONCJ 258, there was an 11-minute delay between arrest and the reading of the rights to counsel. During that time, police were speaking with each other, trying to determine if the passenger in the accused’s car should also be arrested. The Court found that their ‘further investigation’ into the passenger did not justify the delay in reading the accused the information component of his rights to counsel and a breach was found.
[177] In R. v. Tharmalingam, 2022 ONCJ 304, there was a 5-minute delay between arrest and reading of the rights to counsel. Following the accused’s arrest for impaired driving, the officer placed him in the cruiser and then returned to the accused’s vehicle, where he retrieved the accused’s driver's licence, cell phone, and called for a tow. It was unclear whether the phone was retrieved at the request of the accused or the police officer’s initiative. The Court found that there was no evidence of officer safety or intervening actions of others on the scene, which might have otherwise accounted for the delay. The Court found the delay breached the accused’s Charter rights. However, the Court also found that the officer did not intentionally find other things to do to delay providing the accused with their rights to counsel; the delay was not excessively lengthy; and the officer did not attempt to elicit a statement from the accused before informing them of their rights to counsel. In balancing other factors, the Court dismissed the Charter application to exclude evidence.
[178] In R. v. Tsivin, 2016 ONCJ 72, there was a 27-minute period between arrest and the rights to counsel, which was only given at the station. The arresting officer explained that the accused spoke Russian, so he arranged for a Russian-speaking officer to meet them at the police station. The contact between the police and the accused in the interim was perfectly professional and courteous. The police did not gather evidence in the 27 minutes before the rights to counsel was given. The Court also observed that, had the police not provided the language interpretation services, they would have been exposed to a constitutional claim of language comprehension. The Court found that, within this Catch-22 situation, the police conduct was appropriate.
[179] In R. v. Odrowski, 2019 ONCJ 852, an 8-minute gap occurred between the arrest and the rights to counsel, during which time the officer put the ASD away, took some time to jot down notes, and another officer conducted a pat-down search of the accused. The officer testified that he thought the obligation to provide rights to counsel was “as soon as practicable”. The trial judge found a breach of section 10(b), concluding that there was no justifiable reason for the delay, such as concerns for officer or public safety. However, evidence of breath samples was admitted following section 24(2) analysis.
[180] In R. v. Alipourbati, 2022 ONCJ 202, there was a 26-minute delay between the arrest and reading of the rights to counsel. This was a dynamic situation and an evolving investigation. A breach of s. 10(b) was found, but the handgun was admitted into evidence following a 24(2) analysis. The ruling was recently upheld on appeal: 2025 ONCA 64.
Analysis
[181] In these circumstances, I am not prepared to find a violation of sections 10(a) and (b) of the Charter. I will explain why.
[182] First, I see no merit in the argument that Mr. Kellerman was not advised in plain language of the reasons for his detention. PC Podyma advised Mr. Kellerman within seconds of opening the door that she was “investigating an impaired incident. I just want to caution you that, so anything you say might be used.”
[183] The officers used plain language in addressing Mr. Kellerman. This was stated clearly and promptly after she formed her grounds for arrest. The body-worn camera footage confirms that this occurred at the time of arrest, and that Mr. Kellerman responded appropriately, indicating he understood the nature of the arrest.
[184] Although Mr. Sahota argued that the officer did not use the term “criminal offence” or explain the full legal implications, the law does not require such precision. The officer’s language was clear and sufficient to convey the essential reason for the arrest.
[185] Moreover, Mr. Kellerman’s responses—such as inquiring about the duration of the process and discussing his medical needs—demonstrate that he understood he was in police custody and the nature of the investigation.
[186] I find that Mr. Kellerman was informed promptly and clearly of the reason for his arrest. The information provided was sufficient to satisfy the requirements of section 10(a) of the Charter.
[187] Accordingly, there is no breach of section 10(a).
[188] Regarding the delay in providing the informational component of the rights to counsel, I begin by examining what transpired during the 12 minutes between the arrest and PC Podyma informing Mr. Kellerman of his rights to counsel. I observed the following events on the body-worn camera:
- At 9:38 p.m., Mr Kellerman was advised he was under arrest for impaired operation.
- PC Podyma explained her grounds, asked him not to say anything further, come outside, and get his shoes.
- Mr. Kellerman asked what he had done while driving that was so bad. He did not understand why he was being arrested.
- He returned to his front hall, searched for his most comfortable shoes, and sat down to put them on.
- PC Podyma asked if he was on any medication and whether he needed it. Mr. Kellerman inquired how long he was going to be “detained.” He was informed that he was under arrest and that it may take a few hours at minimum. PC Podyma stated that she still needed to read him his rights to counsel.
- At 9:40 p.m., Mr. Kellerman announced that he had to go “pee”.
- Mr. Kellerman was still asking questions and displayed exasperation.
- At 9:41 p.m., Mr. Kellerman finally put on his shoes. At this point, both he and the officers went upstairs.
- Mr. Kellerman was in the washroom from 9:41:15 p.m. until 9:43:10 p.m., or approximately two minutes.
- As he exited the washroom, PC Podyma asked him if he had any house keys to lock up. They went downstairs to the front hall area. Mr. Kellerman began searching for the house key in his jacket. The officers found his car keys that had the house key attached. It was removed and placed with his wallet. He was asked if he had a cell phone to call someone afterwards.
- At 9:45 p.m., he was followed upstairs to search for his cellphone. He informed the officers that he had all his medical information on it.
- He was asked about what medication he needed to bring with him. Mr. Kellerman began pulling out pieces of paper and said, “It's all right here.” He proceeded to inform them that he had Lupus and was on blood thinners. The officers inquired if he had taken his medication. After attempting to recall when he took his blood thinner, both the police and Mr. Kellerman were satisfied that he did not need to bring any medication with him.
- Mr. Kellerman tried to look for his car keys, and the police told him that they already had the car keys.
- At 9:47:15 p.m., Mr. Kellerman was escorted outside and handcuffed. The police locked his front door.
- At 9:47:45 p.m., Mr. Kellerman asked again what was happening, and PC Podyma advised him that he needed to get in the car, and she would read him his “rights”. He was walked to PC Podyma’s cruiser.
- At 9:48:35 p.m., PC Anderson searched Mr. Kellerman’s vehicle.
- At 9:49:06 p.m., he was placed in the cruiser.
- The police secured his property.
- At 9:50:06 p.m., PC Podyma sat in the cruiser with the property bag.
- At 9:50:46 p.m., PC Podyma commenced the rights to counsel from her yellow notes.
[189] As previously stated, determining whether Mr. Kellerman was informed immediately of his right to counsel is not based solely on a measure of time; an examination of all the circumstances is required.
[190] The majority of the 12 minutes was spent assisting Mr. Kellerman by ensuring he had everything he needed, including his phone, making sure his health was not compromised or jeopardized without his medication, ensuring his house was secure, ensuring he had shoes on, and fulfilling his request to use the washroom, as well as answering his questions to clear up his confusion about what was occurring. At the same time, they reiterated that they needed to remove him from the house and into the cruiser to read him his right to counsel.
[191] A portion of the delay was due to officer safety concerns related to handcuffing and searching Mr. Kellerman and securing his property.
[192] The police were accommodating his needs. As PC Podyma testified, Mr. Kellerman was older and had health issues.
[193] The court should not second-guess every step taken by a police officer during an arrest. The officer may need to listen to the arrested person and respond to them; see R. v. Rossi, 2017 ONCJ 443, at paras. 34 and 35.
[194] PC Podyma did not need to inform Mr. Kellerman of his rights to counsel before placing him in the police cruiser, nor was she obligated to summarize those rights rather than read them verbatim from the back of her yellow notes. Such an approach could result in officers providing incomplete or incorrect information. The information regarding the right to counsel is crucial. It was appropriate for PC Podyma to delay reading the rights until the police could address Mr. Kellerman’s personal and health concerns and clarify his confusion, ensuring they were in a secure location where she could clearly and thoroughly convey the rights to counsel to Mr. Kellerman and Mr. Kellerman could understand the information.
[195] I find that PC Podyma informed Mr. Kellerman, without delay, of his rights to counsel. Considering Mr. Kellerman’s personal circumstances and health issues, as well as his exasperation regarding his situation, the delay in providing information about the right to counsel does not constitute an infringement or denial of Mr. Kellerman’s 10(b) rights and was justified.
Conclusion
[196] There will be a finding of guilty on the over 80 count.
Impaired Driving
The evidence
[197] PC Podyma testified that she detected a strong odour of alcohol on Mr. Kellerman’s breath. His eyes were bloodshot, red, and glassy, and his speech was slurred during their conversation. She observed Mr. Kellerman stumble into the doorway and stagger backward; however, this was not visible on the body-worn camera footage. She later admitted that the lighting was poor, and the hallway was cluttered. Mr. Kellerman acknowledged having consumed two Coors Light beers and revealed in the breath room that he had been driving earlier that evening from his friend’s home after the Bills game.
[198] PC Anderson testified that she noted a faint smell of alcohol when standing closer to Mr. Kellerman. She confirmed that his eyes appeared red. She observed that he was swaying slightly while standing. She did not specifically describe slurred speech. PC Anderson located an open bottle of liquor in the centre console of Mr. Kellerman’s vehicle.
[199] PC Champagnie observed that Mr. Kellerman had a noticeable odour of alcohol. His entire face was flushed red, and he had red-rimmed, watery eyes. He was co-operative, polite, talkative, and at times excited. Mr. Kellerman appeared balanced when entering the breath room, and his speech was described as “fair.”
[200] The body-worn, booking and breath room videos also detailed the characteristics of Mr. Kellerman’s intoxication.
[201] In the body-worn video, Mr. Kellerman slurred his words, appeared disoriented and confused, and often could not answer simple questions.
[202] In the booking video, there were no signs of staggering, swaying, or stumbling, but his decision to lie on the floor of 11 Division to stretch and exercise was inappropriate and irrational.
[203] In the breath room video, Mr. Kellerman was composed, respectful, and cooperative; however, I also observed that Mr. Kellerman slurred his words, laughed, and chortled with PC Champagnie.
The Applicable Legal Principles
[204] The test for impaired operation of a motor vehicle has been set out in R. v. Stellato, 1993 ONCA 3375, [1993] 78 C.C.C. (3d) 380 (ON CA), affirmed 1994 SCC 94, 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.
[205] The “Stellato test” is now incorporated into the wording of s. 320.14(1)(a) of the Criminal 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; R. v. Bush, 2010 ONCA 554.)
[206] 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
[207] The Crown is not required to prove a specific level of impairment—only that the accused’s ability to operate the vehicle was affected in some way by alcohol.
[208] Here, the Crown has met that burden. The combination of physical symptoms, the admission of alcohol consumption, and the contextual evidence supports the conclusion that Mr. Kellerman’s ability to operate a motor vehicle was impaired.
[209] There will be a finding of guilt for operating a motor vehicle while impaired.
Conclusion
[210] Mr. Kellerman is guilty of both counts on the Information. I will hear submissions on the Kienapple issue.
Released: June 10, 2025
Signed: Justice P.T. O’Marra
[^1]: Section 529.3 of the Criminal Code was enacted in response to the SCC’s decision in R. v. Feeney. It provides as follows:
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.
Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer
(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.