R. v. Kavanagh, 2017 ONSC 637

Court File No.: 22/16 Date: 2017-01-30 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Barry Kavanagh, Appellant

Counsel: Simon McNaughton, for the Crown, Respondent (Appellant by Cross-appeal) Charles Shortt, for the Appellant (Respondent by Cross-appeal)

Heard: January 6, 2017 at Woodstock

Reasons for Judgment

Heeney R.S.J.:

[1] The case out of which this summary conviction appeal arose has all the appearances of a garden variety "over 80" case. On May 30, 2014, the Appellant was driving his motor vehicle when he was stopped at a RIDE program. He admitted to consuming alcohol, had a strong odour of alcohol on his breath, glassy and bloodshot eyes and slurred speech. The officer asked him to pull over to the side of the road. When he exited the vehicle, he had to use the doorframe to support himself, was unsteady on his feet, and while standing at the rear of the vehicle he was swaying from side to side.

[2] Based on those indicia of impairment, he was arrested for impaired driving at 11:17 p.m. and shortly thereafter was given a proper demand for a breath sample, along with his rights to counsel. He was taken to the Ingersoll detachment, where he was put into contact with a Legal Aid lawyer and received advice. He provided two breath samples into an Intoxilyzer 8000C machine, and the results were as follows: 149 mg. of alcohol in 100 ml. of blood at 00:28 a.m. and 137 mg. of alcohol in 100 ml. of blood at 00:50 a.m.

[3] He was charged with both impaired driving and driving with more than 80 mg. of alcohol in 100 ml. of blood, and given the necessary paperwork, including a notice of impoundment of his vehicle and a 90-day suspension of his license. That process was completed by about 1:24 a.m.

[4] He was then transported to the Tillsonburg detachment, which already had people in custody and therefore had civilian guards on duty, which was not the case in Ingersoll. The officer-in-charge, Sgt. Jo-anne MacDonald, was made aware of the Appellant's breath readings and his initial signs of impairment, and determined that he should be held in custody until he was sober, for his own safety. He was released the following morning at 9:05 a.m.

[5] At trial the Crown invited the trial judge, Graham J., to enter an acquittal on the impaired driving charge. A significant factor in that regard was the evidence that the Appellant had a medical problem with his knee, which accounted for his mobility issues.

[6] The Appellant was convicted of driving with more than 80 mg. of alcohol in 100 ml. of blood, contrary to s. 253(1)(b) of the Criminal Code.

[7] He now appeals on two grounds: first, that the trial judge erred in failing to exclude the results of the Intoxilyzer due to a breach of the Appellant's right to privacy while he was consulting with counsel; and second, that the trial judge erred in failing to exclude the Intoxilyzer readings by reason of the overholding of the Appellant in custody for about 7 ½ hours, following completion of his Intoxilyzer tests and the necessary paperwork.

[8] It should be noted that the Appellant did not seek the exclusion of the Intoxilyzer results at trial based on overholding, but instead sought a stay of proceedings under s. 24(1) of the Charter. That application was dismissed. However, the trial judge did find that his continued detention was arbitrary, and constituted a breach of his s. 9 Charter rights.

[9] The remedy imposed by the trial judge was the imposition of a conditional discharge, which was a disposition below the mandatory minimum fine of $1,000 prescribed by s. 255 (1)(a) of the Code. The Crown has cross-appealed on the sentence imposed, relying on caselaw which states that mandatory minimums must be respected absent egregious misconduct by state agents, and where a sentence reduction outside the mandatory minimum is the sole effective remedy. The Crown argued that this case does not fall within that narrow exception.

[10] I will deal with the privacy issue first.

[11] The right to counsel protected under s. 10(b) of the Charter includes the right to consult with counsel in private. The onus of proving a breach of that right lies on the Appellant, on a balance of probabilities.

[12] The Appellant's call to Legal Aid duty counsel took place in the cell block, which was otherwise entirely empty. Signs were posted advising that the premises were monitored by audio and video surveillance, and the arresting officer can be seen on the cell block videotape pointing out the location of a camera to the Appellant. The Appellant could hear the rumbling of voices of the police officers coming from the other side of the closed cellblock door, although he could not make out what was being said. He testified that he did not feel comfortable with his conversation with duty counsel because he did not believe he had any privacy.

[13] The trial judge found as a fact that the conversation between the Appellant and duty counsel was not overheard by the police, so there was no actual breach of his right to privacy. That factual finding has not been challenged on this appeal. However, the Appellant can still establish a breach if he can establish that he believed that he could not instruct counsel in private and, further, that such a belief was reasonably held in the circumstances: R. v. Cairns, 2004 17588 (ON CA), [2004] O.J. No. 210 (C.A.) at para. 10.

[14] The trial judge dealt with this issue at paras. 155 – 162 of his reasons:

The defence submits that Mr. Kavanagh['s] right to consult counsel in private was breached. He had been provided with a phone while situated in a cell that was video monitored. He had been directed to signs which indicated that the premises were both audio and video taped. The police were in an adjoining room. Mr. Kavanagh could hear their voices. He testified that this impeded his conversation with Duty Counsel. He is certain they could hear and see him as an officer entered the cell area moments after the phone call was completed. He did not mention his concerns to the officers as he felt he had no choice and had been told by Duty Counsel not to make any statements.

Justice Schwarzl provides a helpful summary of the law in R. v Hume, 2013 ONCJ 380, [2013] O.J. No 3243:

The applicant bears the burden of establishing on a balance of probabilities that his Charter right was violated: R. v. Cairns, 2004 17588 (ON CA), [2004] O.J. No. 210 (C.A.) at para. 10.

The right to privacy is inherent in the right to retain and instruct counsel. The police have a duty to provide privacy to the detainee during his or her consultation with counsel: R. v. Playford (1988), 1987 125 (ON CA), 40 C.C.C. (3d) 142 (Ont. C.A.); R. v. Gilbert (1998), 1988 7127 (ON CA), 40 C.C.C. (3d) 423 (Ont. C.A.); R. v. McKane (1987), 1987 6794 (ON CA), 35 C.C.C. (3d) 481 (Ont. C.A.); R. v. Peyton, 2007 ONCJ 431. However, privacy is rarely absolute and depends upon the purpose that privacy seeks to serve. As Duncan J. noted in R. v. Bhullar, 2013 ONCJ 3261 at para. 14:

... In the context of right to counsel, privacy serves to protect the privilege that attaches to lawyer-client communications and also serves to encourage an uninhibited consultation, which in turn may be vital to the advice to be given.

An actual lack of privacy breaches the s. 10(b) right: R. v. Carroll (2002), 24 M.V.R. (4th) 248 (O.C.J.). Even without an actual invasion of privacy, there will be a section 10(b) Charter infringement where the applicant establishes that he believed he could not retain and instruct counsel in private and that his belief was reasonable in all the circumstances: Cairns, supra; R. v. Burley, 2004 9437 (ON CA), [2004] O.J. No. 319 (C.A.); Playford, supra at page 158. The presence of the camera without more is not enough to found either a breach in fact or a reasonable belief in a breach by the Accused: Cairns, supra.

In considering the reasonableness of a belief in a lack of privacy, it is reasonable to expect the detainee to make his concerns known to the police. This is consistent with the detainee's obligation to be reasonably diligent in exercising his section 10(b) Charter rights: R. v. Burley, supra at para. 21-24; Peyton supra at para. 20-21.

The determination of whether the privacy component of section 10(b) of the Charter was violated requires an examination of the totality of the circumstances.

I have also reviewed R. v. Deveau, [2013] O.J. No. 5424 (O.C.J.) affirmed at [2014] O.J. No. 3034 (Ont. Sup. Ct.), R. v Schaump 2015 ONSC 3113, [2015] O.J. No. 2558 (O.C.J.), R. v Carroll, [2002] O.J. No. 1215 (O.C.J.), R. v Sirelpuu, [2011] O.J. No 3268 and R. v Edgecombe, 2015 ONCJ 403, [2015] O.J. No. 3979 (O.C.J.). R. v Ogbaldet, [2010] O.J. No. 4487 (O.C.J.) stands in contrast to this analysis and is not referred to. It appears the Honourable Court was not asked to consider Burley, supra.

I am also aware of the unreported decision of R. v Todd Keast, (November 7, 2006) where a defendant spoke to counsel in the Breath Room, which was equipped with audio and video equipment. The defendant did not testify and there was no evidence they told him the audio equipment was shut off for the phone call to the lawyer. By failing to warn him that they were not watching or listening to the conversation s. 10(b) was breached.

The cells were obviously monitored by video. At the time there were no audio capabilities despite posted signs indicating to the contrary. In my view it was reasonable for police to maintain video monitoring. There are valid safety and security reasons for doing so [R. v Bhullar at paragraph 16].

Upon being handed the phone the officer left the cell area and appears to close the door. The officer only returns once the call is completed. Mr. Kavanagh was concerned that officers in adjoining room could hear his conversation but it does not appear he could hear their actual words. Flink testified that one could not hear an actual conversation in the cells unless people were yelling. It stands to reason that police should be able to hear yelling coming from prisoner cells.

Having reviewed the booking room video it is apparent that the officers are not watching Mr. Kavanagh while he was on the phone. Wilson reacts almost immediately once the call is completed however. It is clear that Wilson is seated at the desk inches away from the phone from which the call was transferred. I am unable to say whether he was monitoring the call in that manner. I am uncertain how Wilson knew when the call was terminated. However I accept Flink's evidence that one cannot hear actual conversations from the cell. Mr. Kavanagh did not hear actual words spoken. I am satisfied that there was no actual invasion of privacy that interfered with his exercise of his rights to counsel.

The posted signs indicated that the cells were audio monitored and the video shows Flink pointing to the camera. Although the conversation with Duty Counsel is brief Mr. Kavanagh never looks at the video camera. He also does not look to see if the doors are closed. He glanced briefly to his side and only looked out the window once the call was completed. He made no complaint to any police officer. I have no evidence he discussed his concerns with Duty counsel. I therefore reject his evidence that he reasonably believed that he could not communicate with counsel in private.

[15] The trial judge's rejection of the Appellant's evidence, that he believed that he could not communicate with counsel in private, ends the inquiry. It is not necessary to go on to determine whether such a belief is reasonable in the circumstances, because such a belief has not been found to have been held by the Appellant.

[16] The Appellant relies on R. v. Vernon, 2015 ONSC 3943 to suggest that the trial judge erred in law by holding that a complaint by the Appellant to the police was a necessary precondition to a finding of a breach of privacy. Ellies J. said the following, at para. 44:

In summary, I conclude that there is no positive obligation on a detainee to express dissatisfaction with the advice of duty counsel or to continue to request an opportunity to speak with counsel of choice in order to establish a breach of that right under s. 10(b). Indeed, in my view, it would be improper to impose such an obligation where, as here, the validity of any waiver of the right is in issue.

[17] That case did not involve an alleged breach of privacy, but rather turned on the arresting officer's failure to wait longer than one minute after the accused left a message at his lawyer's office before the officer placed a call to duty counsel.

[18] In any event, the trial judge in the case at bar did not consider a complaint by the Appellant to the police to be a precondition to a finding of a s. 10(b) breach. As is evident from a review of his reasons, above, he merely considered the failure to complain as one of several factors, in drawing the factual conclusion that the Appellant did not believe his privacy was compromised.

[19] The trial judge was correct to take this factor into consideration. In Cairns, supra at para. 14, the failure of the accused to raise a concern about the lack of privacy was one of the factors expressly relied upon by the Court of Appeal in upholding the trial judge's finding of fact that there was no reasonable belief in a breach of privacy on the part of the accused:

The latter conclusion by the trial judge is a finding of fact. In our view, based on the evidence, the trial judge was entitled to reach the conclusion he did. The appellant was informed of her right to counsel; she was provided with the opportunity to speak with duty counsel by telephone in a room alone; she spoke with counsel for several minutes; she gave no indication to the officer of any concern that her conversation was not private; she made no inquiry of the officer of the status of the camera; she did not suggest that her conversation was inhibited; duty counsel did not complain. This case can be compared with R. v. Carroll (2002), 24 M.V.R. (4th) 248 where Lane J. found that the appellant had established that his belief that his conversation with counsel could be heard by officers was reasonable.

[20] No palpable or overriding error has been demonstrated by the Appellant that would entitle this court to interfere with the trial judge's finding of fact in this regard. This ground of appeal is dismissed.

[21] The other ground of appeal alleges that the trial judge erred in failing to exclude the Intoxilyzer results, based upon a breach of the s. 9 Charter rights of the Appellant. The breach relates to the fact that the Appellant was held in custody for about 7½ hours until he was sober, before being released.

[22] As already noted, the Appellant did not request at trial that the Intoxilyzer results be excluded pursuant so s. 24(2) of the Charter. Instead, he requested that proceedings be stayed pursuant to s. 24(1).

[23] The trial judge found that overholding the Appellant constituted a breach of his s. 9 Charter right not to be arbitrarily detained or imprisoned. As to the request for a stay, the trial judge correctly noted the following, at para. 178 of his reasons:

A stay of proceedings is the most drastic remedy a criminal court can order. It permanently halts the prosecution. It should rarely be granted and only in the clearest of cases [R. v Babos, 2014 SCC 16, [2014] 1 SCR 309 at paras 30 – 32].

[24] He went on to review the relevant jurisprudence and concluded that a stay was not appropriate in this case. That ruling has not been challenged on this appeal.

[25] However, the request for a stay under s. 24(1) has now morphed into an application under s. 24(2) for the exclusion of the Intoxilyzer results, by reason of the decision of the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389. That decision softened the requirement in s. 24(2) that the evidence sought to be excluded must have been "obtained in a manner that infringed or denied any rights or freedoms" guaranteed by the Charter. Laskin J.A., speaking for the court, held that that requirement should be approached in a generous manner, consistent with the purposes of s. 24(2). He held that:

• The court should consider the entire chain of events between the accused and the police;
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct; and,
• The connection between the evidence and the breach may be causal, temporal or contextual, or a combination thereof.

[26] The Court of Appeal in that case excluded evidence of marijuana discovered in the trunk of the accused's car, based on three Charter violations: a s. 8 violation, arising out of a dangerous and unnecessary masked take-down at gunpoint; a s. 10(b) violation, arising out of misinforming the accused about her right to counsel, which occurred shortly after her arrest; and a further s. 10(b) violation, based on the fact that her right to consult counsel was delayed for nearly 5½ hours after her arrest. The connecting factor was that the discovery of the marijuana and the Charter breaches were part of the same transaction, i.e. Ms. Pino's arrest.

[27] For purposes of this case, the important feature of Pino is that it held that s. 24(2) can be used to exclude evidence that was obtained prior to the breach, and is not causally connected to the breach, so long as the evidence and the breach are connected in the sense described above.

[28] Pino had not been released when the trial judge decided the case at bar. Had it been, the Appellant undoubtedly would have sought the exclusion of the Intoxilyzer evidence, rather than a stay. The Crown does not object to the Appellant seeking this relief on appeal.

[29] The starting point for a consideration of this issue is to determine whether there was a s. 9 Charter breach. The Crown argues that the trial judge erred in law in coming to this conclusion, and failed to follow clear, binding authority from the Court of Appeal that the conduct of the police did not constitute arbitrary detention.

[30] The provisions governing release from custody are found in s. 498 of the Criminal Code, the relevant portions of which are as follows:

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[31] It is common ground that keeping a person in custody contrary to s. 498 constitutes arbitrary detention, and a breach of s. 9 of the Charter.

[32] At para. 165 of his reasons, the trial judge said this:

While it is open to the police to hold an accused following breath tests, the decision to do so must be a reasonable one based on relevant factors: R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) at para. 93.

[33] He then quoted part of paragraph 93 from the decision of Durno J. in Price, which sets out a non-exhaustive list of factors that should be considered by the officer-in-charge in determining whether to release or not. For completeness, the entire paragraph is set out here:

While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

[34] The trial judge then engaged in the following analysis, at paras. 171 – 173 of his reasons:

Sgt. MacDonald testified that the readings obtained informed her decision to detain Kavanagh until he was sober. It is clear that she did not consider there to be any alternative. As discussed above, there may be situations where high readings will trump other considerations. However this is not one of those situations. The readings were indeed high but Kavanagh did not show any signs of being unable to understand what was happening and showed no significant indicia of impairment. He did have someone who could have picked him up from the Detachment. She did not consider any of these factors.

I have no doubt that she was genuinely concerned for Mr. Kavanagh's safety. However that was based on her understanding of her legal and moral obligation rather than an individual assessment of Mr. Kavanagh. She had no meaningful direct dealings with him. She made no inquiries.

In these circumstances, I find that his continued detention was arbitrary and a violation of his s. 9 Charter rights.

[35] The evidence from Sgt. MacDonald was that she was concerned for the safety of the Appellant if she were to release him, given his high blood alcohol readings, and it was therefore in the public interest to detain him. She was asked about the option of releasing him into the care of someone else, and she had this response:

If he was drunk at home and I had no interactions with him, I would have no obligations to him. But the fact that he drove a motor vehicle, was arrested, came into our custody, then my obligations to him are legal and moral and I can't circumvent them by having someone else take him and take the risk of, okay so nothing's going to happen. Because I'm still basically the one – putting it in layman's term, I'm on the hook for that.

[36] Can high blood alcohol readings, on their own, constitute a sufficient reason for continued detention, so as to render such detention lawful and not arbitrary?

[37] In R. v. Sapusak, [1998] O.J. No. 3299 (Ont. Gen. Div.), Thomas J. dealt with an appeal where the accused had two readings of 130 mg. of alcohol in 100 ml. of blood, and was detained in custody for between 6 and 7 hours thereafter. The sole reason offered for the detention was that it was to ensure that his blood alcohol content was below 50 mg. when he was released.

[38] At para. 10, Thomas J. said this:

Although it is possible that the appellant could have been released earlier, the failure of the officer in charge to do so was not a contravention of s. 498 of the Criminal Code and did not constitute an arbitrary detention within the meaning of s. 9 of the Charter, in my respectful opinion. The officer in charge made a decision not to release the appellant in the public interest until his blood alcohol level was safely below 50 mgs. It was not an arbitrary decision on his part which resulted in an arbitrary detention.

[39] That decision was appealed to the Court of Appeal, reported at [1998] O.J. No. 4148. Morden A.C.J.O. made the following endorsement for the court:

We are not persuaded that the police in light of the 130 mg. reading, were not justified in detaining the appellant for his own protection. However, in the event that there was an arbitrary detention, it could not, in our view, be a basis for excluding the breathalyzer evidence since there was no temporal or causal connection between the breach and the obtaining of the evidence. Further, this is not of those clearest of cases that would justify a stay of the proceedings. Leave appeal is granted but the appeal is dismissed.

[40] That decision is clear and binding authority for the proposition that detaining an individual for his own protection for 6 to 7 hours, based solely on readings of 130 mg., does not constitute arbitrary detention. Applied to the case at bar, it leads to the conclusion that detaining the Appellant for his own protection for 7 ½ hours, based solely on somewhat higher readings of 149 mg. and 137 mg., does not constitute arbitrary detention.

[41] The comments of Durno J. are interesting, although perhaps not quite as helpful as they appear at first blush. Several of the factors cited – the administrative license suspension, the impounding of the accused's car, and the poor judgment exhibited by drinking and driving – are present in virtually every case of "over 80", and are not a variable factor, like a blood alcohol reading, that demands active consideration by the officer-in-charge. Furthermore, the suggestion that an accused with a high blood alcohol content can simply be off-loaded by the police to a civilian is open to valid debate. The comments of Sgt. MacDonald, that once the individual is in custody she is "on the hook" to look out for his safety, are compelling. If an accused with a high blood alcohol content were released to a friend or family member, and then fell and seriously injured himself due to his alcohol consumption, the police should have a valid concern as to whether they might be held liable for his injuries. Even worse would be the situation where the accused chose to get behind the wheel of a different vehicle after his release, notwithstanding the efforts of his chaperone.

[42] However interesting or persuasive Price may be, reliance on that decision in the case at bar, in the face of contrary, binding authority from the Court of Appeal that is directly on point, amounts to reversible error.

[43] I conclude that the trial judge's finding that there was a breach of the s. 9 Charter rights of the Appellant is an error of law, and cannot stand. Given that, the Appellant's argument that the Intoxilyzer results should have been excluded as a result of that breach must be dismissed.

[44] Had I upheld the finding of a s. 9 breach, I would not have excluded the Intoxilyzer readings under s. 24(2) of the Charter. In my view, the readings were not "obtained in a manner that infringed or denied" the s. 9 rights of the Appellant, within the meaning of that phrase as defined by Pino.

[45] In Pino, the evidence and the Charter breaches were part of the same transaction, which was the dangerous, armed and masked take-down and arrest of Ms. Pino. The marijuana was discovered in her trunk immediately after, and as a direct result of, the arrest. The s. 8 breach was part and parcel of the manner of the arrest itself. The first s. 10(b) breach occurred within minutes of her arrest, when she was misinformed about her right to counsel. The second s. 10(b) breach began to occur shortly thereafter, and continued for 5½ hours until she was finally given an opportunity to consult counsel.

[46] In the case at bar, the arrest transaction was completed by Constable Flink, who formed the requisite grounds, gave a proper demand and took the Appellant into custody for purposes of the breath test. No Charter breach occurred during this transaction. The second transaction involved the exercise, by the Appellant, of his right to counsel, and again no breach occurred during the course of that. The third transaction involved the taking and analysing of breath samples, which was done by the qualified Intoxilyzer technician, Constable Goodlett. No breach occurred during that transaction. The next transaction involved formally charging the Appellant, and serving him with various documents. That was, once again, done by Constable Flink, and involved no Charter breach. The final transaction was keeping the Appellant in custody until he was sober. That was the decision of the officer-in-charge, Sgt. MacDonald. If a breach occurred, it was committed by her, and took place at some point between about 1:30 a.m. and 9:05 a.m., when it could be said that it was no longer in the public interest to detain the Appellant.

[47] There is simply no connection – causal, temporal or contextual – between obtaining the Intoxilyzer results and the decision, made subsequently, to keep the Appellant in custody for his own protection.

[48] The disconnect between the gathering of the evidence and the Charter breach is particularly evident when one considers that any such breach would have been committed by Sgt. MacDonald. The evidence was obtained by virtue of a valid breath demand having been given by Constable Flink, and by samples having been properly taken and analyzed by Constable Goodlett. Sgt. MacDonald had nothing whatsoever to do with that transaction.

[49] I would not find the necessary connection simply by reason of the fact that there was a continuous detention from the time of the roadside demand until the Appellant was released, as did Hawke J. in R. v. Lorenzo, 2016 ONCJ 634. It is difficult to imagine a Charter breach scenario where such a connection would not be present. Suppose that a Charter breach was committed against an accused charged with murder, on the third day of his continuous detention. Would that lead to the exclusion of his confession properly obtained on day #1?

[50] While Laskin J.A. directs the court to consider the entire chain of events, that does not mean the mere fact that the obtaining of the evidence and the Charter breach can both be found somewhere on that chain will suffice to support a conclusion that the evidence was obtained in a manner that breached the individual's rights. The obtaining of the evidence and the Charter breach must still be found to be part of the "same transaction or course of conduct". In the case at bar, the decision by Sgt. MacDonald to keep the Appellant in custody was not part of the transaction that generated the Intoxilyzer results, nor was it part of the course of conduct of the two other officers who, together, generated the Intoxilyzer results.

[51] As to the Crown's cross-appeal, it has essentially been decided as a result of my ruling that there was no s. 9 breach. It is unnecessary to engage in a legal analysis as to whether the trial judge was entitled to impose a sentence below the mandatory minimum as a remedy for the Charter breach, since the finding of a Charter breach has been reversed. Nevertheless, the appeal as to sentence must be allowed and the sentence vacated, since it is untenable at law, given that it is contrary to the statutory minimum.

[52] The remaining question is whether to remit the matter to the trial judge to impose the sentence that ought to have been imposed, or instead to impose the appropriate sentence now. The trial judge clearly indicated that, but for the Charter breach, he would have been disposed to impose a sentence that was in line with the statutory minimum.

[53] For reasons of judicial economy if nothing else, I am satisfied that the appropriate course of action is to impose the sentence that should have been imposed, in accordance with the statutory minimum.

[54] Accordingly, the appeal by the Appellant is dismissed. The cross-appeal by the Crown is allowed, and the sentence of a conditional discharge is set aside. In its place, the Appellant shall pay a fine of $1,000, with 6 months to pay. The judgment of the trial judge is otherwise affirmed.

"T. A. Heeney R.S.J."

T. A. Heeney R.S.J.

Released: January 30, 2017