ONTARIO COURT OF JUSTICE

DATE: 2025-02-11
COURT FILE No.: Brampton – Central West 23-31109507

BETWEEN:
His Majesty the King
— AND —
Rajiv Quinless

RULING ON CHARTER APPLICATION

Before Justice A. Neil Singh
Heard on January 23-24, 2025
Reasons for Judgment released on February 11, 2025

Counsel:
Lawrence Eikelboom — counsel for the Crown/Respondent
Tarinpal Dhaliwal — for the defendant/Applicant Rajiv Quinless

TABLE OF CONTENTS

• INTRODUCTION ........................................................................................................ 1
• FACTUAL BACKGROUND ....................................................................................... 2
• DISCUSSION ............................................................................................................. 3
  • Issue #1 - There is no s.8 & 9 breach. PC Mitton was permitted to rely on the ASD results ........ 3
  • Issue #2 - There is no s.10(a) breach. The Applicant was properly informed of the reasons for his arrest .... 4
  • Issue #3 - There was no s.10(b) Charter breach from any delay in reading Mr. Quinless his Right to Counsel .... 5
  • Issue #4 - There is a s.10(b) breach from Mr. Quinless being impermissibly steered to duty counsel ........ 6
  • Issue #5 - There is a breach of Mr. Quinless’ right to consult privately with counsel .................. 8
  • Issue #6 - The evidence must be excluded to maintain confidence in the administration of justice ........ 9
• CONCLUSION ........................................................................................................... 12

INTRODUCTION

[1] Rajiv Quinless is charged with having an excess blood alcohol concentration within two hours of ceasing to operate a conveyance on August 23, 2023. The defence conceded that the Crown has proven its case against Mr. Quinless subject to this Court’s rulings on the admissibility of his breath readings and utterances made to the police.

[2] The defence argued that Mr. Quinless’ breath readings and utterances should be excluded because of a series of alleged Charter breaches that occurred after he was initially detained. Additionally, the defence contests the voluntariness of Mr. Quinless’ utterances to the police.

[3] Unsurprisingly, the Crown asserts there were no Charter breaches. Mr. Quinless’ utterances were voluntary. There is no basis for the exclusion of any evidence. Alternatively, if there are any Charter breaches, a s.24(2) analysis would demand the inclusion of the evidence. Mr. Quinless should therefore be found guilty of the charge before the Court.

[4] I find that that there have been numerous breaches of Mr. Quinless’ right to counsel. The interests of justice, including the long-term repute of the administration of justice requires that I exclude the evidence. Mr. Quinless will be found not guilty.

[5] These are my reasons.

FACTUAL BACKGROUND

[6] On August 23, 2023, the Peel Regional Police Service were contacted by Mr. Quinless’ ex-girlfriend who believed he was driving under the influence of alcohol. The complainant advised that Mr. Quinless was driving a black Ford F-150. She also provided a home address for Mr. Quinless. The police attended.

[7] When police arrived at around 1:00 a.m., Mr. Quinless was located outside his vehicle. PC Mitton cautioned Mr. Quinless that he was under investigation for impaired driving. When asked, Mr. Quinless confirmed he had been drinking earlier in the evening at a banquet hall. PC Mitton went back to her cruiser, returned with an approved screening device (ASD), and made demand that Mr. Quinless provide a sample into the ASD. He failed.

[8] At 1:03 a.m., Mr. Quinless was arrested for “impaired driving.” At no point during his interactions with PCs Mitton and Dickinson was Mr. Quinless advised he was under arrest for an “80 Plus” or “Excess Blood Alcohol” charge.

[9] PC Dickinson immediately brought Mr. Quinless to his cruiser, searched him incident to arrest and put him in the back of the vehicle. He obtained his notes, got into his vehicle, and started reading Mr. Quinless his rights to counsel at 1:07 a.m. He followed immediately after with a police caution and breath demand.

[10] Mr. Quinless understood everything communicated to him. He initially declined the opportunity to speak to a lawyer. He did, however, change his mind when he was being booked into cells at 22 Division.

[11] After speaking to Duty Counsel, Mr. Quinless was turned over to PC Marc Purdy, a qualified technician who administered the approved instrument breath tests. Mr. Quinless provided two suitable samples into an approved instrument that registered truncated readings of 170 mg of alcohol per 100 mL of blood.

DISCUSSION

[12] The issues I need to determine with respect to the alleged Charter breaches are as follows:

1. Did PC Mitton impermissibly rely on the ASD test results leading to breaches of ss. 8 and 9 of the Charter?
2. Was there a violation of Mr. Quinless’ s.10(a) right to be informed of the reason for his arrest when he was told he was under arrest for “impaired driving” instead of “excess blood alcohol”?
3. Was there a violation of Mr. Quinless’ s.10(b) right to counsel when he was informed of his right approximately 4 minutes after his arrest at 1:07 a.m.?
4. Was Mr. Quinless impermissibly “steered” to duty counsel by the cells’ officer at 22 Division?
5. Was Mr. Quinless denied the opportunity to consult with counsel in private contrary to his right under s.10(b) of the Charter?
6. If there are any Charter breaches, should the evidence be excluded pursuant to an analysis under s.24(2) of the Charter?

Issue #1 – There is no s.8 & 9 breach. PC Mitton was permitted to rely on the ASD Results

The Argument

[13] The defence argues that because Mr. Quinless had recently smoked and consumed food, the reliability of the ASD was called into question. PC Mitton could therefore not rely upon them as accurate and did not have reasonable and probable grounds (RPG) for the arrest and subsequent breath demand. The defence asserts that this results in breaches of ss.8 and 9 of the Charter.

[14] The Crown position is that PC Mitton was entitled to rely upon the ASD results. The ASD test provided RPG for an arrest and the subsequent breath demand. There is no breach of ss. 8 and 9 of the Charter.

Analysis

[15] PC Mitton had an ASD with her. She tested it at the start of her shift. The result of her self-test was appropriate. When she inspected the ASD, PC Mitton confirmed the ASD was within its calibration window. It was PC Mitton’s evidence that the ASD would not accept a sample if it were outside of its appropriate calibration window. At the start of the testing procedure, she again conducted a self-test and received an appropriate result. She did not receive any error messages from the ASD on that day prior to Mr. Quinless’ test. She was satisfied the ASD was functioning properly.

[16] There are numerous factors that might call into question the reliability of an ASD test result. The police, however, are not constitutionally obligated to eliminate all potential issues that may affect an ASD’s reliability. The failure to do so does not, in and of itself, deprive the officer of reasonable grounds based on an ASD fail. The analysis is case-specific.[1]

[17] PC Mitton did not observe any evidence of Mr. Quinless having recently consumed food, nor did she observe anything to suggest he had been recently smoking. I note that she did not detect the odour of cigarette smoke on Mr. Quinless.[2]

[18] Although Mr. Quinless testified that he had smoked in his vehicle on the way home and that he was eating, the timing of his food consumption and smoking are unclear. He also never vocalized these things to the officer. While Mr. Quinless was not obligated to say anything, there was nothing in the circumstances to suggest PC Mitton knew or ought to have known that he had recently smoked or eaten food. She was satisfied that the ASD was in proper working order, that the circumstances permitted her to receive a suitable sample from Mr. Quinless, and that any sample could be relied upon as accurate.

[19] In these circumstances, PC Mitton was entitled to rely on the ASD results for her RPG to arrest Mr. Quinless. There is no Charter breach. The Applicant’s claim regarding the ASD’s reliability is dismissed.

Issue #2 – There is no s.10(a) breach. The Applicant was properly informed of the reasons for his arrest

The Argument

[20] The Applicant submits a breach of his s.10(a) Charter right when he was advised that he was under arrest for “impaired driving” instead of an “excess blood alcohol” charge.

[21] The Respondent submits that there is no functional difference between the charges. Being advised of “impaired driving” was sufficient information for Mr. Quinless to understand the reason for his detention and his jeopardy.

Analysis

[22] There is no question the officers advised Mr. Quinless of the wrong charge wording. They did, however, make it clear that he was under arrest for a drinking and driving offence.

[23] Section 10(a) of the Charter does not require the detainee to be advised of the specific charge wording. A person will be properly advised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understand the reason for their detention and the extent of their jeopardy. The issue is whether what the accused was told, viewed reasonably in all the circumstances, was sufficient to permit [them] to make a reasonable decision to decline or submit to arrest,” or in the alternative, to meaningfully exercise the right to counsel under s. 10(b).[3]

[24] In my view, there was no breach of s.10(a) here. Substance trumps form. Mr. Quinless was given sufficient information, in basic language, to understand why he was under arrest. The specific charge wording was not required. The information provided by the police was more than enough to meet the concerns Section 10(a) of the Charter seeks to address.

[25] An arrest for the wrong offence (“80 plus” or “impaired” as the case may be) does not invalidate a breath demand where the requisite grounds exist. It has also been found that it does not constitute an arbitrary arrest or detention under s.9.[4]

[26] Logic would dictate that there would be no s.10(a) Charter breach in those circumstances either. Mr. Quinless was aware he was under arrest for a drinking and driving offence. The officer clearly had the grounds to make a breath demand pursuant to s.320.28(1) which covers both the “impaired” and “80 plus” offences. Given the significant overlap between the “impaired” and “80 plus” offences, Mr. Quinless was adequately advised of the reasons for his arrest.[5]

[27] There is no breach of Section 10(a) of the Charter. The Applicant’s claim, in this regard, is dismissed.

Issue #3 – There was no s.10(b) Charter breach from any delay in reading Mr. Quinless his Right to Counsel

The Argument

[28] Mr. Quinless argues that there was an impermissible delay in the police providing him with his rights to counsel upon arrest. Since there were no pressing safety concerns, the police were not permitted to delay providing Mr. Quinless with the informational component of his right to counsel. It should have been done immediately.

[29] The Crown argues that Mr. Quinless was read his rights to counsel immediately within the requirements of the law. Mr. Quinless was arrested and searched incident to arrest. He was then read his rights to counsel. Searching Mr. Quinless was an appropriate police action that justified the very brief delay in providing him with his rights to counsel.

Analysis

[30] Mr. Quinless was arrested at 1:03 a.m. He was immediately handcuffed to his rear by PC Dickinson and walked to the rear of his cruiser. He searched him incident to arrest at 1:04 a.m. As the search was ending, PC Mitton asked Mr. Quinless if there was anything he wanted from his vehicle as it was going to be towed. This took mere seconds and did not impede PC Dickinson in any meaningful way. Mr. Quinless was placed into the rear of PC Dickinson’s cruiser at 1:05 a.m. PC Dickinson obtained his impaired driving investigation notes from the front passenger seat of his cruiser. He made his way to the driver’s seat, stopping only momentarily to receive Mr. Quinless’ keys from PC Mitton. At 1:07 a.m., PC Dickinson commenced reading Mr. Quinless’ his rights to counsel.

[31] Rights to counsel are to be provided to arrested persons immediately upon arrest. This requirement is not absolute but is subject to concerns for officer or public safety.[6]

[32] Mr. Quinless was arrested, searched incident to arrest, and read his rights to counsel in very short order. There was no meaningful delay in Mr. Quinless receiving his rights to counsel. The officers were permitted to search him incident to arrest. Although he was very polite and extremely compliant, the officers did not know Mr. Quinless and had never dealt with him before. PC Dickinson’s limited safety concerns were valid and justifiable in the circumstances.

[33] Any delay that occurred did not result in a breach of Mr. Quinless’ s.10(b) Charter right.

Issue #4 – There is a s.10(b) breach from Mr. Quinless being impermissibly steered to duty counsel

The Argument

[34] Mr. Quinless argues that he was impermissibly steered to Duty Counsel. Mr. Quinless requested to speak to his brother to get help in securing counsel. The cells’ officer however, steered him to duty counsel instead of accommodating his request. In doing so, Mr. Quinless was subject to a breach of his s.10(b) Charter right.

[35] The Respondent submits that there is no breach in this regard. Mr. Quinless accepted duty counsel and spoke to them. He never expressed any dissatisfaction with his call to Duty Counsel. He never requested access to a lawyer list or an internet search to find counsel. In addition, it is unclear what Mr. Quinless said to the cells’ officer and whether his request to call his brother was understood as relating to his wish to access counsel.

Analysis

[36] Mr. Quinless provided unchallenged evidence regarding his access to counsel at the station. He advised that during conversation with the cells’ officer (who remains unknown), he asked to speak to his brother. Mr. Quinless testified that he did so because his brother graduated from a university program where many of his professors were counsel, and he would be able to assist him in retaining a lawyer.

[37] In fairness, however, Mr. Quinless could not confirm what specifically he articulated to the cells’ officer. To the best of his recollection, he told the officer that he wanted to contact his brother to get some advise on how to move forward with this. Ultimately, he was unsure of what he said to the officer specifically.

[38] Mr. Quinless’ evidence was that the cells’ officer responded that they could get him out of custody quicker if he went with Duty Counsel. The cells’ officer advised him that most lawyers’ offices would be closed at that late hour,[7] but Duty Counsel was available 24/7 and they could get him on the phone with them sooner, thus reducing his time in custody. Logically, Mr. Quinless felt that if he went with Duty Counsel, he could get out of there quicker. Mr. Quinless agreed and went with Duty Counsel.

[39] I accept Mr. Quinless’ evidence. I believe him. Mr. Quinless was consistent and unshaken in cross-examination. He was fair in his evidence. An example of Mr. Quinless fairness was evident when he conceded he did not remember exactly what he told the cells’ officer about contacting his brother. He made admissions against his interest as well. For instance, he admitted during the voir dire that he was in fact driving the vehicle, when he was found outside of it, and no one could definitively place him behind the wheel. This admission and his fair testimony enhances his credibility.

[40] I find that the cells’ officer impermissibly steered Mr. Quinless to Duty Counsel. Although Mr. Quinless conceded that he did not know exactly what was said between himself and the cells’ officer, I find that the conversation was about accessing counsel. Otherwise, why would the cells’ officer tell Mr. Quinless that they could get him out of custody sooner if he went with Duty Counsel? The context of the conversation must have concerned counsel to garner such a response from the officer. That is the only logical conclusion from the flow of their conversation.

[41] Mr. Quinless sought to exercise his right to counsel of choice through a third party who he felt would assist him in securing counsel. Our law permits this.[8] Rather than implement his request, the cells’ officer undermined Mr. Quinless’ choice. In doing so, the cells’ officer made duty counsel the obvious option when he tied the right to counsel to Mr. Quinless’ ongoing deprivation of liberty.

[42] Suggesting Duty Counsel to Mr. Quinless was impermissible for two reasons. First, Mr. Quinless was trying to contact his brother to assist him in securing counsel. As stated above, the officer must have understood this given his subsequent suggestion to go with Duty Counsel. By not calling his brother, the cells’ officer failed in his implementation duty of Mr. Quinless’ right to counsel. Secondly, the cells’ officer tied Mr. Quinless exercise of his right to counsel to his s.7 liberty interests. Mr. Quinless was faced with a choice: extend his time in custody to access counsel of choice or get out of jail quicker with 24/7 Duty Counsel. In doing so, the cells’ officers funneled Mr. Quinless to Duty Counsel.

[43] This is not a situation where Mr. Quinless tried to reach his brother, or counsel, and after a reasonable amount of time was offered Duty Counsel and accepted. No initial call was made. The exercise of Mr. Quinless’ choice of counsel was linked to his ongoing incarceration. He was told he could get out of jail quicker if he went with Duty Counsel.

[44] Mr. Quinless was denied a call to access counsel of choice. He was then steered to Duty Counsel through an inducement related to his liberty. The result is a clear breach of his s.10(b) Charter right.

Issue #5 – There is a breach of Mr. Quinless’ right to consult privately with counsel

The Argument

[45] Mr. Quinless argues he was denied a meaningful opportunity to speak to counsel in private. He believed the counsel room was being audio and video recorded. In addition, the door to the counsel room was ajar. The fact that Mr. Quinless felt that he was not speaking to counsel in private, regardless of whether this was the case, is a breach of his right to counsel.

[46] The Crown counters that Mr. Quinless was not actually audio recorded and there was no evidence he was overheard. Further, Mr. Quinless confirmed in the breath room he had spoken to Duty Counsel, and the conversation was completely private. Mr. Quinless did not raise any concerns about his consultation with Duty Counsel to PC Purdy.

Analysis

[47] When Mr. Quinless first arrived at 22 Division, he testified that he was told that the entire area was audio and video recorded. Mr. Quinless stated he was never advised the counsel room where he consulted with Duty Counsel was not audio recorded. Mr. Quinless testified that while speaking to Duty Counsel the door to the room was ajar. He did not feel that he had any privacy when consulting with counsel.

[48] On the other hand, when he entered the breath room, the following exchange took place between PC Purdy and Mr. Quinless:

PC Purdy: So, I do have the understanding that you did have to speak to duty counsel, correct?
Rajiv Quinless: Yes sir.
PC Purdy: And that conversation you had with that duty counsel there is totally private, ok?
Rajiv Quinless: Yes sir.
PC Purdy: Did you understand the advice that that lawyer gave you?
Rajiv Quinless: Yes sir.
PC Purdy: Are you satisfied with that advice?
Rajiv Quinless: Yes sir.

[49] The Applicant bears the onus of establishing a breach of his right to consult with counsel in privacy. In cases where there is no actual invasion of privacy, there may still be a s.10(b) breach where the Applicant establishes they believed they could not retain and instruct counsel in private, and that this belief was reasonably held in the circumstances.[9]

[50] Mr. Quinless has met his burden. I accept the Applicant’s testimony that he was told that everything in the station was being audio and video recorded. No one told him that the counsel room was not being audio recorded. The record establishes that the counsel room was video recorded. Mr. Quinless believed he was not afforded privacy due to the audio/video recording and the counsel room door being ajar.

[51] Mr. Quinless was consistent and unshaken in cross-examination. His evidence in this area was unchallenged, and in the absence of evidence that he was advised the counsel room was not being recorded, his belief that he was not speaking privately with counsel is entirely reasonable.

[52] I have reviewed the breath room video several times. I am satisfied that PC Purdy was not asking Mr. Quinless if his conversation with Duty Counsel was in private, but rather, he was telling him that it was. PC Purdy said that the conversation with Duty Counsel was “totally private, ok?” Mr. Quinless’ response, “Yes sir” can, at best, be seen as the Applicant’s acknowledgment of PC Purdy’s previous statement. In coming to this conclusion, I reject the Respondent’s submission that Mr. Quinless confirmed that he knew he was speaking to counsel in private. Unfortunately, by that point in time, Mr. Quinless had already consulted with counsel in a manner he felt did not afford him privacy.

[53] The defence has established a breach of s.10(b) of Mr. Quinless right to consult privately with counsel.

Issue #6 – The evidence (breath readings and utterances) must be excluded to maintain confidence in the administration of justice

[54] Having found multiple breaches of Mr. Quinless’ right to counsel, I now assess whether the evidence at issue (Mr. Quinless breath readings and utterances) ought to be excluded from evidence.

[55] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. In addressing this goal, the s.24(2) analysis is focused on three lines of inquiry.

1. The Seriousness of the Charter-Infringing Conduct

[56] This line of inquiry focuses on the state conduct. The conduct can range from unintentional minor violations to willful or reckless disregard for Charter rights. The more serious the state misconduct, the greater the need for the Court to disassociate itself from it.[10]

[57] The steering of Mr. Quinless to Duty Counsel is a very serious breach. The police ignored Mr. Quinless request to call his brother so that he could try to access counsel. Instead, they induced him to engage with duty counsel. In doing so, the officer engaged Mr. Quinless’ liberty interests. Mr. Quinless was left to choose between exercising his right to counsel as he wished and his liberty. This complete departure from long settled Charter standards cannot be considered good faith. At its highest, it is a reckless disregard for the Charter. This behaviour would undermine public confidence in the rule of law, and risk bringing the administration of justice into disrepute.

[58] The privacy breach is only moderately serious. There is no evidence that Mr. Quinless’ consultation was overheard or that he was otherwise not provided with adequate privacy to consult with counsel. He was simply left with the reasonable impression that his call with counsel was not in private. There is no evidence to find that this was done purposefully. On the contrary, this appears to be the result of police inadvertence more than anything else.

[59] Due to the seriousness of the conduct regarding accessing counsel of choice and the subsequent steering to duty counsel, this line of inquiry strongly favours exclusion.

2. The impact of the breach on the Charter-protected interests of the Accused

[60] The impact of the breach on Mr. Quinless was significant. The right to counsel is a lifeline for the detained. It is essential in providing support and advice on several issues, including the right against self-incrimination.[11] I also note that the limited scope of legal advice in impaired driving cases does not mitigate the seriousness of a breach on a s.24(2) analysis.[12]

[61] Immediately after the Charter breaches, Mr. Quinless provided breath samples and made inculpatory utterances. He was denied the opportunity to access his lifeline through his brother. He was also induced to speak with Duty Counsel with his ongoing incarceration hanging over his head. Finally, he reasonably felt as though he was unable to consult with counsel in private.

[62] At the same time, I recognize that the breath testing procedure is minimally intrusive. I also note that had Mr. Quinless been permitted to speak to his brother, and then counsel of choice privately, he would have inevitably provided the breath samples. I cannot say the same for his utterances however, given Mr. Quinless’ belief that he was not afforded privacy in speaking with counsel.

[63] What troubles me though, is the police connecting Mr. Quinless’ exercise of his right to counsel to his liberty. Mr. Quinless was wrongly induced to opt for Duty Counsel instead of his first choice. The impact of this breach on his Charter-protected interests was significant.

[64] The more serious the incursion is, the greater the case is for exclusion to avoid the public perceiving individual Charter rights as merely second-class or unimportant constitutional protections – a situation that would negatively impact the long-term repute of the administration of justice.[13]

[65] This line of inquiry therefore pulls strongly in favour of exclusion.

3. Society’s interests in the adjudication of the case on its merits

[66] The final line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission or exclusion of the evidence. Relevant factors include the reliability of the evidence, the importance of the evidence to the prosecution’s case, and the seriousness of the offence at issue.[14]

[67] There is no question that the evidence at issue is crucial to the Crown’s case. While the Crown would be able to proceed absent the utterances, without the breath readings, their case would be gutted, ending the prosecution. The breath reading evidence is also highly reliable.

[68] It is also without question that impaired driving offences are among the most serious in our community. Drinking and driving destroys lives, ruptures families, and decimates our collective feeling of safety and security. It is also entirely preventable. Every time someone drinks and drives, the risk to human life is real.

[69] These factors would tend to suggest a strong pull in favour of inclusion of the evidence. However, under this line of inquiry, I must also consider the negative impact of admitting the evidence on the administration of justice. In each case, it is the long-term repute of the administration of justice that must be assessed. While the public has a heightened interest in a determination on the merits where the offence is serious, it also has a vital interest in maintaining a justice system above reproach.[15]

[70] In this case, given the seriousness of the breach related to contacting counsel, including the improper inducement tethered to Mr. Quinless’ liberty, what would otherwise have been a very strong pull in favour of inclusion has been blunted. While there is still a pull in favour of inclusion, it is only moderate given society’s interest in having a justice system being beyond reproach.

4. Balancing

[71] When I balance the lines of inquiry, I find that the long-term repute of the administration of justice demands exclusion of the evidence. That is because admitting the evidence would bring the administration of justice into disrepute. The breath samples and utterances are therefore excluded.

CONCLUSION

[72] Given my ruling, it is unnecessary for me to determine the issue of voluntariness. The application to exclude the breath readings and utterances under s.24(2) of the Charter is granted.

[73] At this point, I stress that I would have reached the same conclusion had I found no breach to Mr. Quinless’ right to consult with counsel in private. The breaches relating to Mr. Quinless being funneled to duty counsel through an engagement of his liberty is so troubling that it would make the case for exclusion on its own.

[74] The charge is dismissed. Mr. Quinless, you are free to go.

Released: February 11, 2025
Signed: Justice A. Neil Singh

Footnotes

[1] R. v. Teja, [2024] ONCJ 540 at paras 8-9.
[2] Nor did PC Dickinson.
[3] R v. Roberts, 2024 ONCA 411 at para. 78.
[4] R v. Kranz, 2021 ONSC 25 at paras 62-64.
[5] The overlap between “impaired” and “80 plus” is particularly significant because it is well settled that an offender cannot be convicted of both offences arising out of the same factual circumstances pursuant to the principles of R v. Kienapple, [1974] 1 SCR 729.
[6] R v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para 42.
[7] Mr. Quinless arrived at 22 Division at approximately 1:37 a.m.
[8] R v. Underhill, [1992] OJ No 1840 (S.C.J.); R v. Bothwell, 2017 ONSC 2316 at para 13.
[9] R. v. Cairns, [2004] O.J. No. 210 (C.A.) at para 10.
[10] R v. Tomaszewicz, 2024 ONCJ 661 at para 136.
[11] Ibid at para 150.
[12] R v. McElwain, 2020 ONSC 344 at para 9.
[13] R v. Grant, 2009 SCC 32, [2009] S.C.J. No.32 at para 76.
[14] Ibid at para 79.
[15] R v. McColman, 2023 SCC 8 at paras 69-70.