COURT FILE NO.: 67/18

DATE: 20190823

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

BRUNO NDAYE

Scott Clarke, for the Crown, respondent

Tyler MacDonald, for the accused, appellant

HEARD: May 28, 2019

K.L. Campbell J.:

REASONS FOR JUDGMENT

[Summary Conviction Appeal]

I

Overview

[1] The main issue on this appeal is the admissibility of the Intoxilyzer results of the appellant’s breath samples under s. 24(2) of the Canadian Charter of Rights and Freedoms.

[2] On June 18-19, 2018, the appellant, Bruno Ndaye, was tried by the Honourable Mr. Justice H. Borenstein, of the Ontario Court of Justice, on charges of impaired driving and driving with a blood-alcohol level in excess of 80 mgs. of alcohol per 100 mls. of blood. The offences allegedly took place in Toronto on April 26, 2017. The trial was a blended proceeding. The trial judge heard from four witnesses, namely, (1) the arresting police officer, Cst. Farhan Ali; (2) the qualified technician, Cst. William Niziol, who obtained the breath samples from the appellant; (3) a paramedic, Peter Panagokos; and (4) the appellant, Bruno Ndaye.

[3] At trial, the appellant sought the exclusion of the Intoxilyzer results of his breath samples under s. 24(2) of the Charter on the basis that his rights under ss. 8 and 10(b) of the Charter were violated. Defence counsel argued that the arresting police officer did not advise the appellant of his right to counsel immediately upon being detained, and that the officer only obtained the necessary “reasonable grounds” to arrest the appellant during the time period immediately after his detention. The appellant argued that, once the evidence obtained in violation of s. 10(b) of the Charter was properly excised from consideration, there was also a violation of s. 8 of the Charter. The appellant argued that, in the result, the Intoxilyzer results of his breath samples should be excluded from evidence. Alternatively, defence counsel argued that, based upon the testimony of the appellant, the trial judge should have a reasonable doubt about whether the appellant knew he had consumed alcohol before driving his motor vehicle, and that the appellant should also be acquitted on that basis.

[4] The Crown argued that the arresting police officer did not violate any of the constitutional rights of the appellant guaranteed by either s. 8 or s. 10(b) of the Charter, but that, if he did, the evidence of the Intoxilyzer results of the appellant’s breath samples should be admissible in any event under s. 24(2) of the Charter. These results established that the appellant had a blood-alcohol level in excess of the legal limit. Further, the Crown argued that the testimony of the appellant, that he did not know that the “punch” he consumed earlier that night contained alcohol, was simply incredible and should be rejected, and that the appellant should be found guilty of both of the alleged offences.

[5] After hearing the evidence and the submissions of counsel, the trial judge reserved judgment. Subsequently, on July 27, 2018, Borenstein J. delivered written reasons for judgment in which he found the appellant not guilty of the offence of impaired driving, but guilty of the offence of driving with a blood-alcohol level in excess of 80 mgs. of alcohol per 100 mls. of blood. See R. v. Ndaye, 2018 ONCJ 557, [2018] O.J. No. 4285.

[6] In these reasons, the trial judge found that the arresting officer breached the appellant’s rights under s. 10(b) of the Charter, in that he failed to properly advise him of his right to counsel after detaining him. However, Borenstein J. concluded that, even after excluding the additional evidence secured by the arresting police officer in the minutes following his detention of the appellant, there remained “ample” reasonable and probable grounds justifying the arrest of the appellant and the officer’s demand that the appellant provide samples of his breath suitable for analysis. There was, accordingly, no violation of s. 8 of the Charter.

[7] With respect to the admissibility of the Intoxilyzer results under s. 24(2) of the Charter, Borenstein J. concluded that: (1) the violation of the right to counsel was “not particularly serious” in itself, but was “significantly aggravated” and rendered “serious” by the credibility problems he found in relation to the testimony of the arresting police officer concerning his detention of the appellant; (2) the violation of s. 10(b) of the Charter had “no impact” on the Charter-protected interests of the appellant, because the arresting police officer still had the necessary reasonable and probable grounds even absent any potential consideration of the evidence the officer gathered following the breach of s. 10(b) of the Charter; and (3) the reliable and important evidence provided by the Intoxilyzer results of the appellant’s breath samples “also favours admission.” Ultimately, Borenstein J. concluded that “[b]alancing these factors, … the evidence of the breath samples should not be excluded.” Indeed, excluding the readings would be “overkill.”

[8] The trial judge explained that, given the “credibility” concerns he had identified about the testimony of the arresting police officer, he would not rely upon his testimony unless it was “corroborated by other evidence or compelling in the context of the circumstances of this case.” This approach resulted in the appellant being found not guilty of the offence of impaired driving, as the evidence did not convince the trial judge of the alleged guilt of the appellant beyond a reasonable doubt. Borenstein J. noted that, given his decision to place little reliance on the officer’s evidence, to also exclude the Intoxilyzer results of the appellant’s breath samples would be “overkill” in that it would be unduly “punitive” and amount, effectively, to a stay of proceedings.

[9] In the result, on August 17, 2018, the trial judge sentenced the appellant to a fine of $1,500 and prohibited him from the operation of a motor vehicle for a period of 12 months.

[10] The appellant now appeals against his conviction for driving with a blood-alcohol level in excess of 80 mgs. of alcohol per 100 mls. of blood. Defence counsel contends that the trial judge erred in his legal analysis under s. 24(2) of the Charter, and in his conclusion that the Intoxilyzer results of the appellant’s breath samples were admissible. While I agree that the trial judge erred in one aspect of his analysis, I disagree that he ultimately reached the wrong conclusion. Indeed, I have concluded that Borenstein J. reached the correct conclusion that the evidence was admissible. In the result, as the Intoxilyzer results of the appellant’s breath samples were properly admitted by the trial judge, the appeal against conviction must be dismissed.

II

The Relevant Factual Background

1. Introduction

[11] The relevant factual background of this case was carefully outlined by the trial judge in his reasons for judgment, as well as his findings and conclusions regarding the credibility and reliability of the various witnesses. See R. v. Ndaye, at paras. 1-23. Those relevant facts are, essentially, as follows.

[12] At approximately 6:30 a.m. on April 26, 2017, the authorities received an emergency 911 call about an impaired driver asleep in a Honda Accord motor vehicle, located in the parking lot of an apartment building located at 33 Rosehill Avenue in Toronto. The Honda Accord was locked, but its engine was running. It had apparently rolled into another parked motor vehicle, a GMC Terrain sport utility vehicle. The driver of the Honda Accord was “unresponsive.”

2. The Evidence of the Paramedic – First on the Scene

[13] Peter Panagakos and his partner, both experienced paramedics with the Toronto Paramedic Services, arrived on the scene at approximately 6:40 a.m. on April 26, 2017. Mr. Panagakos testified that he found the appellant asleep or unconscious, reclined in the driver’s seat of the Honda Accord. The engine of the vehicle was still running. The Honda was parked in such a way that the right side of the vehicle was perpendicular to (and blocking) three parked cars and the front of the vehicle was also up against a fence. The Honda Accord was not only making contact with the fence, but it was also in contact with one of the parked cars.

[14] Mr. Panagakos called out to the appellant a couple of times, but he received no response. It was only when Mr. Panagakos knocked “quite loudly” on the driver’s window of the Honda Accord that he managed to awaken the appellant and make eye contact with him. When Mr. Panagakos asked if he needed help, the appellant said “no” and fell back asleep. When Mr. Panagakos suggested that he come outside of the vehicle, so that they could assess his “vital signs” in the ambulance, the appellant declined, repeatedly saying that he was “good.” When Mr. Panagakos asked, for his own safety, that the appellant put his vehicle in park and turn it off, the appellant started moving the automatic transmission of his vehicle between park, drive and reverse “several times.” According to Mr. Panagakos, the appellant seemed to be “having difficulty” getting his vehicle into the appropriate gear, or he was “confused” as to his actions. Eventually, the appellant put the transmission into reverse, and he backed-up his vehicle a few feet. He then put the transmission into park. At this point, Mr. Panagakos asked the appellant if he realized that he had “crashed his car,” but the appellant did not respond.

[15] Mr. Panagakos testified that, during their interactions, the appellant seemed a “little bit confused” and “slow to respond.” He was “not acting normally” – he was not “fully alert.” The appellant seemed to have “no recognition” of the paramedic’s role and was not complying with his requests. With respect to the appellant’s eyes, Mr. Panagakos testified that the appellant seemed to have “difficulty focusing,” and his eyes looked “blurred” and “glossy” and “glazed.” Mr. Panagakos did not notice the appellant “stumbling” as he moved, or “slurring” his words.

[16] According to Mr. Panagakos, after the appellant reversed his vehicle a few feet, the appellant exited his Honda Accord and started to walk toward the apartment building at 33 Rosehill Avenue, which adjoined the parking lot. When Mr. Panagakos again persistently suggested that the appellant enter the ambulance so that he could be assessed, the appellant repeatedly refused, simply saying that he was “good.” It was at that point that an officer with the Toronto Police Service arrived on the scene. Mr. Panagakos directed the attention of the officer towards the appellant and advised the officer as to the nature of his interactions with the appellant.

[17] In his reasons for judgment, the trial judge indicated that he had “no concerns about the credibility or reliability” of the testimony of Mr. Panagakos and accepted his evidence.

3. The Evidence of the Arresting Police Officer

[18] Constable Farhan Ali of the Toronto Police Service testified that he arrived on the scene at approximately 6:43 a.m. on April 26, 2017. He explained that he had been dispatched to this location in response to a call about “an impaired driver” who was “passed out” and “unresponsive” in his vehicle, that was locked with the engine running. The vehicle had rolled into a parked car.

[19] By the time Cst. Ali arrived on the scene, a Toronto Fire Services truck and an ambulance were already on the scene. The Honda Accord was not parked in any designated parking space, but rather was in an “odd position” blocking the front of three properly parked vehicles. One of these vehicles, a GMC Terrain, had been struck by the Honda Accord.

[20] When the paramedic told the officer that the appellant was the “driver” of the Honda Accord, Cst. Ali “called out” to him and approached him. Cst. Ali testified that as he approached the appellant, he told him that he was there to “investigate the collision” involving the Honda Accord. The appellant appeared to be “very disoriented and flustered.” He was “sweating” and appeared to be in some “medical distress.” Cst. Ali asked the appellant if he was “okay,” and the appellant responded affirmatively. He said that he did not need the ambulance.

[21] Cst. Ali then asked the appellant to accompany him back to his “scout car” so that he could investigate the collision. When he asked for the appellant’s identification, the appellant “fumbled” as he repeatedly shuffled through a bunch of cards that he pulled from his pocket, eventually producing an Ontario Health card with his photograph. The officer then verified the identification of the appellant by means of the police database system. Cst. Ali then asked the appellant if he had keys for the Honda Accord, and the appellant produced them from his pocket and gave them to the officer.

[22] At approximately 6:45 a.m., Cst. Ali formed the suspicion that the appellant had been drinking and moved somewhat closer to him. At that point, Cst. Ali detected the odour of an alcoholic beverage on the appellant’s breath. For the next few minutes Cst. Ali questioned the appellant about the collision. He did not first advise the appellant of his right to counsel. Cst. Ali asked the appellant about “what happened” in relation to the collision, but the appellant denied that there had been any collision. When the officer showed him the damage to the two vehicles (i.e. the Honda Accord and the GMC Terrain), the appellant appeared “surprised.” As the officer spoke to the appellant, Cst. Ali noticed that the appellant was somewhat “incoherent” in the sense that he was “very delayed” in his responses. Further, the appellant’s eyes were “very bloodshot and red,” and appeared “glassy and watery.” The appellant denied having fallen asleep behind the wheel of the Honda Accord, explaining that he was just there to see his girlfriend.

[23] Cst. Ali testified that, at approximately 6:49 a.m., he believed that he had reasonable and probable grounds to believe the appellant had care and control of a motor vehicle while his ability was impaired by alcohol. Cst. Ali explained that his conclusion in this regard was based upon the following considerations:

1. The appellant appeared to be very disoriented, confused and incoherent.

2. The appellant fumbled through the cards that had been in his pocket and was delayed in finding his photo identification.

3. The appellant appeared confused about the collision and denied it, even when he was shown the damage to the two vehicles involved.

4. The appellant appeared to be sweating profusely as if in some medical distress.

5. The appellant’s eyes were bloodshot, glassy and watery.

6. The appellant had a strong odour of alcohol coming from his breath.

7. The paramedic identified the appellant as the person who had been in the driver’s seat of the Honda Accord just minutes prior to the arrival of the police officer.

[24] Cst. Ali testified that, having formed these reasonable and probable grounds at 6:49 a.m., he advised the appellant that he was under arrest for having the care and control of a motor vehicle while impaired by alcohol. The appellant was then handcuffed, and the officer conducted a “pat down” safety search of the appellant. As this was happening, the appellant asked if he was going to be charged, and Cst. Ali again explained the reason for his arrest. Cst. Ali then placed the appellant in the back seat of the police scout vehicle, turned on the in-car camera system and advised the appellant that he was being audio and video recorded. Cst. Ali then advised the appellant of his right to counsel, pursuant to s. 10(b) of the Charter, as that right was detailed in the back of his police memo book. The appellant indicated that he wanted to speak to a lawyer. Cst. Ali advised him that he would call a lawyer for him as soon as he could afford the appellant some privacy to speak to the lawyer. Cst. Ali also “cautioned” the appellant about providing any statements to the police. When Cst. Ali then demanded that the appellant provide breath samples into an approved instrument, the appellant agreed, but inquired several times whether they could “work something out” or whether it was “too late” for that.

[25] A second police vehicle arrived on the scene at approximately 7:00 a.m. and, after those officers were briefed, Cst. Ali and the appellant left the scene, heading for the location of the nearest “Traffic Services” breath technician. They arrived at that location at approximately 7:26 a.m., and the appellant was booked into the location between 7:33 and 7:55 a.m. Shortly thereafter, the appellant provided the name of the lawyer that he wanted to contact and, between 8:04 and 8:10 a.m., the appellant was permitted to speak privately with that lawyer on the telephone in an interview room.

[26] Cst. Ali testified that, thereafter, the appellant was taken across the hall into the “breath tech room,” where the qualified breath technician, Cst. William Niziol, was waiting. At 8:21 a.m., the appellant provided his first breath sample into the Intoxilyzer, which yielded a blood-alcohol reading of 104 mgs. of alcohol per 100 mls. of blood. After the appellant was permitted to make another phone call, the appellant provided his second breath sample into the Intoxilyzer, at 8:47 a.m., which sample produced a blood-alcohol reading of 93 mgs. of alcohol per 100 mls. of blood. He was then taken to 53 Division and was provided with all the paperwork, including the certificate of qualified technician, at 12:30 p.m.

[27] In cross-examination, Cst. Ali initially confirmed that he was on the scene to investigate a potential impaired driver and the apparent motor vehicle collision. Cst. Ali also agreed that he stopped and detained the appellant in order to conduct this investigation. However, when he was asked why he did not immediately advise the appellant of his right to counsel, Cst. Ali explained that he was obliged to provide the right to counsel when detaining someone for a criminal offence, and he maintained that he initially detained the appellant only to investigate the motor vehicle collision, not the possible impaired driving. Cst. Ali testified that he believed that he was not required to advise a driver of their right to counsel if he was investigating them for a possible “provincial offence” under the Highway Traffic Act, R.S.O. 1990, chap. H.8, involving a “fender-bender.” Cst. Ali agreed, however, that he knew that his investigation related to a “collision involving a potential impaired driver.” Nevertheless, Cst. Ali maintained that he formed his grounds to believe that the appellant was “impaired” as his investigation progressed, and he provided the appellant with his right to counsel “as soon” as he realized that the appellant was impaired.

[28] Subsequently in cross-examination, Cst. Ali testified that the appellant was not initially even detained – he was free to leave if he wanted – but he simply “chose to stay” and voluntarily “cooperate” and answer the officer’s questions about the collision and provide his identification.

[29] In his reasons for judgment, the trial judge noted that while Cst. Ali’s evidence was “impressive” in-chief, the defence cross-examination of the officer on the topic of detention “undermined his credibility.” More particularly, Borenstein J. observed as follows:

For example, [Cst. Ali] initially agreed he was there to investigate the collision and potential impaired allegation. He agreed he detained the appellant at 6:45 a.m. When asked why he did not give the appellant his right to counsel, he replied that he does not give right to counsel for collision investigations, only for criminal investigations. He then maintained that he was not investigating the potential impaired allegation. When challenged on that, he maintained that he was not investigating the impaired allegation until he formed his grounds. That was not credible. He received a call about an impaired driver, asleep in a parked car, who rolled into another car. He was there to investigate that allegation. He tried to answer by conflating the formation of grounds with whether he was investigating the matter. When the evidence evolved to the point that this was not an HTA [Highway Traffic Act] investigation, he changed his evidence again and said the appellant was not detained. In short, the cross-examination on the issue of detention undermined [Cst. Ali’s] credibility. As a result, I am prepared to rely on his evidence only where it is corroborated by other evidence or compelling in the context of the circumstances of the case.

4. The Evidence of the Qualified Breath Technician

[30] The qualified breath technician, Cst. William Niziol, testified that the Certificate of a Qualified Technician that he prepared, certifying the results of the analysis of the appellant’s breath samples from the approved instrument, the Intoxilyzer 8000C, incorrectly noted the year as 2016 rather than 2017. Cst. Niziol also testified that he dealt with the appellant, essentially, between 8:10 and 8:51 a.m. on April 26, 2017, and he agreed that the odour of alcohol he detected on the appellant’s breath at that time was neither strong nor weak – but was somewhere in between. Cst. Niziol also agreed that he did not then note that the appellant was perspiring. He also agreed that the appellant’s speech at that time was good, not slurred, and the appellant was not stumbling, and his attitude was quiet. Cst. Niziol described the appellant’s eyes as “bloodshot” and that his pupils were “dilated.” Cst. Niziol described the overall effects of alcohol on the appellant as “slight.”

[31] In his reasons for judgment the trial judge indicated that he had “no concerns about the credibility or reliability” of the testimony of Cst. Niziol and accepted his evidence.

5. The Testimony of the Appellant – Bruno Ndaye

[32] The appellant testified he had been working late, for his nursing agency, the night before this incident. After work he attended a house party, hosted by a friend, arriving shortly after midnight. He stayed there for approximately one hour, socializing with the others in attendance.

[33] The appellant explained that, when he arrived at the party, he was hungry and headed straight for the food, consuming some “jerk chicken.” The food was very hot and spicy, so he helped himself to some “punch” from a nearby jug. More specifically, the appellant testified that he quickly consumed two large, red plastic “Solo” cups full of this punch. The punch was “very refreshing” so the appellant drank each cup of punch in “one gulp.” He did not smell the punch before consuming it. The appellant assumed that it was non-alcoholic punch. The other alcoholic drinks were set up in the kitchen area. The appellant claimed that he did not taste any alcohol in the punch and did not think that it contained any alcohol. Indeed, he did not even suspect that it might have contained alcohol. Further, the appellant testified that at no point during the night – while at the house party or at any time thereafter – did he ever feel “drunk.”

[34] The appellant testified that when he left the party, shortly after 1:00 a.m., he planned to visit his girlfriend Nicole, who lived in the apartment building where he ultimately parked his Honda Accord. The appellant thought that he arrived at the parking lot next to her apartment building at approximately 2:00 a.m. The appellant testified that he called Nicole on his cell phone as he arrived at the parking lot, but she did not answer. The appellant did not know where to park in that parking lot as the parking spots were all assigned, so he parked up against a temporary construction fence, blocking three cars on his right. The appellant continued to repeatedly try to contact his girlfriend, but she did not answer his calls. Ultimately, the appellant reclined his driver’s seat and, waiting for Nicole to return his calls, he fell asleep in his vehicle.

[35] The appellant testified that, at one point during the night, someone woke him up, telling him that he was not properly parked and that he could not park in that location. When the appellant tried to move his car, it somehow “slid” into the fence, scratching the front of the car. The appellant then moved his vehicle back from the fence, and closer to the other parked cars, but he did not think that he ever made any contact with any of the parked cars. By this time the man that had knocked on his window had walked away, and the appellant was very tired. After again repeatedly trying to unsuccessfully contact his girlfriend, the appellant again reclined his driver’s seat and went back to sleep.

[36] The appellant testified that, subsequently, he was awakened by a paramedic “banging” on the window of his vehicle. He was telling the appellant to “park the car.” The appellant tried to show the paramedic that his vehicle was already in the “park” position, but the paramedic continued to tell him to put the vehicle in park. In the result, the appellant reversed his vehicle before again putting the transmission into park when the paramedic yelled “stop.” He then removed the keys from the ignition as the paramedic suggested.

[37] According to the appellant, he then engaged in a brief conversation with the paramedic, telling him that he was not hurt, was just sleeping in his car, and did not need any help or medical assistance. The appellant then exited his vehicle and started walking towards the apartment building where his girlfriend lived. He thought he would try to phone her again, or try to get her to “buzz” him into her building. At that point, the appellant explained, the police officer arrived, and the paramedic pointed the officer in the appellant’s direction and said, “it’s him.” The officer then yelled at the appellant to “stop” and “hold it right there.” The appellant testified that, thereafter, the police officer asked him for his identification, told him to accompany him to the police scout car, questioned him about what he had been doing at that location, and demanded production of his car keys. The appellant explained that he denied “drinking” that night or being involved in any “accident.” The appellant testified that the police officer was giving him orders, and he felt that he had no choice but to follow those orders – he was certainly not “free to leave.” The appellant also testified that, if he had been given the opportunity of contacting a lawyer, he would have done so.

[38] The appellant denied sweating profusely or providing delayed responses to questions that were asked of him. Further, the appellant denied feeling in any way “drunk or inebriated at all.”

[39] In his reasons for judgment, the trial judge indicated that he “had problems” with the appellant’s “credibility.” Borenstein J. concluded that the appellant’s evidence, that he did not know he consumed alcohol on the night in question, “was not credible, particularly when he then added that he was not even suspicious that there was alcohol” in the punch at this late-night, adult, house party. The trial judge, more specifically, stated that he simply did “not believe” the appellant on this “significant” point. Moreover, Borenstein J. noted that, at one point in his evidence, the appellant “volunteered that it occurred to him that he was being investigated by the officer.” The trial judge concluded that he “did not believe that evidence and it seemed as though [the appellant] volunteered that point gratuitously to try to assist in his Charter application.” Borenstein J. also concluded that the appellant was “unnecessarily combative with the Crown and unwilling to yield the obvious points in cross-examination” and that all of this “detracted from his credibility as a witness.” The trial judge added that he did “not at all believe or have a doubt that he did not know he consumed any alcohol.”

III

The Positions of the Parties at Trial

[40] At trial, defence counsel argued that Cst. Ali detained the appellant almost immediately upon his arrival on the scene in the parking lot, to investigate the appellant as a potential impaired driver who had been involved in a collision, and yet Cst. Ali failed to promptly advise the appellant of his right to counsel, as required by s. 10(b) of the Charter. Further, defence counsel argued that once the information gathered from the appellant during the four or five minutes following the detention is excluded from consideration, Cst. Ali did not have the necessary reasonable and probable grounds to arrest the appellant or to demand that he provide samples of his breath for purposes of analysis in an approved instrument. This resulted, defence counsel argued, in a violation of the appellant’s right to be secure against unreasonable search and seizure as provided by s. 8 of the Charter.

[41] With respect to the application of s. 24(2) of the Charter, defence counsel argued that the Intoxilyzer results of the appellant’s breath samples should be excluded from evidence given the gravity of the violations of the appellant’s rights, especially given the “dishonest and misleading” testimony of Cst. Ali, and the combined impact of these violations upon the appellant’s Charter-protected interests.

[42] Defence counsel argued that, in any event, the testimony of the appellant that he did not knowingly and voluntarily consume any alcohol that night should at least raise a reasonable doubt in the mind of the trial judge as to the appellant’s liability for the alleged offences.

[43] In response, at trial the Crown argued that while Cst. Ali stopped the appellant to talk to him about the apparent motor vehicle collision in the parking lot, the appellant was not detained. Accordingly, the officer was not obliged to immediately provide the appellant with his right to counsel under s. 10(b) of the Charter. Further, the Crown argued that it was only during the few minutes that followed that the grounds “crystalized,” causing Cst. Ali to conclude that he had reasonable and probable grounds to arrest the appellant for impaired driving and demand that he provide samples of his breath suitable for analysis in an approved instrument.

[44] In the alternative, the Crown argued that, based upon R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, even if the appellant was detained from the outset of his interaction with the police officer, Cst. Ali was not obliged to immediately provide the appellant with his right to counsel because the officer was conducting a brief road-side motor vehicle investigation of a potentially impaired driver in the interests of public safety.

[45] In the further alternative, the Crown argued that even if there were a violation of the appellant’s right to counsel, and the information about the appellant that Cst. Ali acquired thereafter was excluded from consideration, the officer nevertheless still had the necessary reasonable and probable grounds to arrest the appellant and demand that he provide samples of his breath.

[46] The Crown argued that, in any event, even if there was a violation of ss. 8 and 10(b) of the Charter, the evidence should still be admitted under s. 24(2) of the Charter as: (1) Cst. Ali acted in “good faith” in a “nebulous area” when it is not always clear when there is a detention that requires the right to counsel, and the officer testified truthfully in his trial testimony, so that any potential Charter violations were not particularly serious; (2) the impact of any violations on the Charter-protected interests of the appellant were not serious, as any denial of the appellant’s right to counsel was “very short,” lasting but a few minutes, and taking breath samples is acknowledged to be a “non-intrusive search; and (3) the Intoxilyzer results of the appellant’s breath samples are “reliable evidence” that his “essential to the Crown’s case,” and that “drinking [and] driving obviously is of great concern to the public.”

[47] With respect to the testimony of the appellant that he did not knowingly consume alcohol, the Crown argued that his evidence was incredible and should be “dismissed in its entirety.” Further, the Crown argued that it had been established beyond a reasonable doubt that the appellant was impaired by alcohol.

IV

The Reasons for Judgment by the Trial Judge

[48] In the result, the trial judge found the appellant not guilty on the charge of impaired driving, but guilty of the charge of driving with a blood-alcohol level in excess of 80 mgs. of alcohol per 100 mls. of blood. In so doing, the trial judge concluded that the Intoxilyzer results of the breath samples provided by the appellant were admissible under s. 24(2) of the Charter. More particularly, Borenstein J. drew all of the following conclusions (see R. v. Ndaye, at paras. 24-42):

1. The appellant was detained by Cst. Ali from 6:45 a.m., after the officer called him over and took his identification and his car keys.

2. This detention was for the purpose of investigating a potential impaired driving charge, as well as a motor vehicle collision.

3. Cst. Ali did not immediately inform the appellant of his right to counsel upon his detention at 6:45 a.m., but rather only did so at 6:49 a.m., after questioning the appellant about the collision and forming his grounds for arrest.

4. Cst. Ali should have given the appellant his right to counsel immediately upon detaining him at 6:45 a.m. The officer did not need to advise him of his right to counsel before asking him if he was “okay” or whether he needed medical attention, but the officer should have done so before asking the appellant about the motor vehicle collision. Accordingly, there was a violation of the appellant’s rights under s. 10(b) of the Charter.

5. The indicia of impairment that Cst. Ali relied gathered in his post-detention interaction with the appellant about the motor vehicle collision, and relied upon in discussing his grounds for arresting the appellant and demanding that he provide samples of his breath, should be excised from consideration due to the violation of s. 10(b) of the Charter by the officer.

6. Nevertheless, Cst. Ali continued to have, both subjectively and objectively, “ample” reasonable and probable grounds to arrest the appellant and demand that he provide breath samples suitable for analysis in an approved instrument. Accordingly, there was no violation of s. 8 of the Charter, and the breath demand was made lawfully by Cst. Ali.

7. The violation of s. 10(b) of the Charter in this case was “not particularly serious” in itself, in that it was “only four minutes” in duration, and it had “little impact” on the appellant’s Charter-protected interests, given that there “remained sufficient grounds for the arrest.” However, the seriousness of the s. 10(b) Charter violation was “significantly aggravated” by Cst. Ali’s testimony about the “detention” of the appellant. Accordingly, viewed as a whole, the Charter-infringing conduct of Cst. Ali was “serious.”

8. The violation of the appellant’s right to counsel under s. 10(b) of the Charter had “no impact” on the appellant’s Charter-protected interests because “there remained” the necessary “reasonable grounds” justifying the appellant’s arrest and the demand for his breath samples.

9. The third prong of the governing s. 24(2) analysis, society’s interest in an adjudication on the merits, “also favours admission” of the evidence of the Intoxilyzer results of the appellant’s breath samples.

10. Finally, Borenstein J. concluded that, balancing these factors, the evidence of the appellant’s “breath readings should not be excluded.” In reaching this conclusion, the trial judge noted that he had “excluded the evidence that was obtained as a result of the breach” (i.e. the indicia of impairment gathered by Cst. Ali after the violation of s. 10(b) of the Charter). The trial judge also noted that his assessment of the testimony of Cst. Ali must lead to the acquittal of the appellant on the charge of “impaired driving.” Finally, the trial judge commented that excluding the evidence of the Intoxilyzer results of the appellant’s breath samples would be “overkill” and be “punitive” as it would amount effectively to a stay of proceedings.

V

Analysis

1. The Scope of Appellate Review

[49] The law is clear that a trial judge’s determination concerning the admissibility of evidence under s. 24(2) of the Charter is owed “considerable deference” by an appellate court where the trial judge has considered the proper factors and has not made any unreasonable findings. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77. It is only where the trial judge has committed some error of law, or has overlooked or misapprehended relevant evidence or factors, or has reached an unreasonable conclusion that an appellate court will find it necessary and appropriate to engage in a “fresh” analysis under s. 24(2) of the Charter. See R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 42-48; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 43; R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64; R. v. Szilagyi, 2018 ONCA 695, 142 O.R. (3d) 700, at para. 41; R. v. James, 2019 ONCA 288, 145 O.R. (3d) 321, at para. 37.

2. The Legal Error by the Trial Judge

[50] The appellant contends that the trial judge erred in his analysis of the admissibility of the Intoxilyzer results of his breath samples under s. 24(2) of the Charter, in that he treated other “non-remedies” as an appropriate substitute for the exclusion of the evidence that the appellant sought. More particularly, the appellant argues that: (1) the credibility finding by the trial judge about the “detention” testimony of Cst. Ali; (2) the acquittal of the appellant in relation to the charge of impaired driving; and (3) the exclusion of the indicia of impairment gathered by Cst. Ali after the appellant was detained without being provided with his right to counsel, were no proper substitute for the exclusion of the Intoxilyzer results. Ultimately, the Crown conceded that some of the “unfortunate” and “problematic” language used by the trial judge was in error.

[51] I am generally in agreement with the joint submission of the parties in relation to this issue. More particularly, in my view the trial judge erred in taking into account his acquittal of the appellant on the charge of impaired driving, based on his adverse credibility assessment of Cst. Ali, in his assessment of the admissibility of the Intoxilyzer results of the appellant’s breath samples under s. 24(2) of the Charter. In my opinion, the trial judge was legally obliged to consider the question of the admissibility of the Intoxilyzer results under s. 24(2) of the Charter without regard to his ultimate conclusion in relation to the potential liability of the appellant for the charge of impaired driving. The following two reasons justify this conclusion.

[52] First, questions of admissibility must be resolved before questions of potential criminal liability are determined. This is so simply because courts cannot properly determine questions of criminal liability until it is determined what evidence may properly be considered in that assessment.

[53] This case, like so many other alleged “drinking and driving” cases, proceeded conveniently, on the agreement of counsel, as a “blended proceeding,” with evidence relating to the issues of admissibility and liability adduced together, so as to make the most efficient use of court resources. However, this agreement did not permit the trial judge to draw his conclusions regarding the liability of the accused for some or all of the alleged offences before determining the admissibility of the evidence that would found such conclusions regarding liability. If trial judges were allowed to proceed in this fashion, these important time-saving agreements between counsel, to adduce all of the evidence in relation to all questions of admissibility and liability simultaneously and just once, would soon cease. Defence counsel would, with good reason, begin to insist on having the issues of the admissibility of evidence resolved first by way of pre-trial motion – and only after such issues are resolved, participate in the trial of the issues regarding liability. Of course, this would result in the inefficient litigation of issues, and needlessly waste valuable court time and resources. Accordingly, even in blended trial proceedings, trial judges must keep analytically distinct the questions of admissibility and liability. Again, questions of admissibility must be determined before questions of potential criminal liability.

[54] Second, as a matter of law, alternative remedies are not legally relevant to the question of the admissibility of evidence under s. 24(2) of the Charter. Accordingly, in the present case, the “alternative remedy” of an acquittal on the “impaired driving” charge against the appellant cannot properly impact upon the admissibility of the Intoxilyzer results of his breath samples under s. 24(2) of the Charter in relation to the “over 80” charge.

[55] In this regard it is important to recall that the Supreme Court of Canada determined, in its early Charter jurisprudence, that the existence of such “other remedies” short of exclusion of the evidence is not a relevant consideration in an analysis under s. 24(2) of the Charter. More particularly, in R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, 245 C.C.C. (3d) 1, at p. 268, Lamer J., as he then was, delivering the judgment of the majority of the Court, called the availability of other remedies “irrelevant” in that, “[o]nce it has been decided that the administration of justice would be brought into disrepute by the admission of the evidence, the disrepute will not be lessened by the existence of some ancillary remedy.” See also R. v. Genest, 1989 CanLII 109 (SCC), [1989] 1 S.C.R. 59, 45 C.C.C. (3d) 385, at pp. 82-83.[^1]

[56] In the result, I conclude that the trial judge erred in using his acquittal of the appellant on the charge of impaired driving, based on his adverse credibility assessment of Cst. Ali, in his analysis regarding the admissibility of the Intoxilyzer results under s. 24(2) of the Charter.

[57] Given this finding, the conclusion reached by the trial judge regarding the admissibility of the Intoxilyzer results is entitled to no deference, and it is necessary and appropriate to engage in a “fresh” analysis under s. 24(2) of the Charter, accepting the reasonable factual findings made by the trial judge. See R. v. Riley, 2018 ONCA 998, 370 C.C.C. (3d) 496, at para. 26.

[58] I reject the argument, however, that the trial judge erred in excising from his consideration of the defence allegation that Cst. Ali also violated s. 8 of the Charter, the indicia of impairment gathered by Cst. Ali after the appellant was detained without being provided with his right to counsel. In so doing, the trial judge was simply trying to assess whether or not Cst. Ali had the necessary reasonable and probable grounds to arrest the appellant and demand that he provide samples of his breath, absent any information that he may have gathered following the s. 10(b) Charter violation. Logically, if the arresting police officer still possessed the necessary grounds to arrest the appellant and demand samples of his breath before any potential violation of s. 10(b) of the Charter, then the subsequent s. 10(b) Charter violation could have no impact on the s. 8 Charter rights of the appellant. This was, accordingly, a legally and logically relevant factor for the trial judge to consider in determining whether there was any s. 8 Charter violation in the factual circumstances of this case. I note in passing that I agree with the conclusion reached by the trial judge that there was no violation of s. 8 of the Charter in this case.

3. The Three-Pronged Legal Standard Governing Section 24(2) of the Charter

[59] According to the leading Supreme Court of Canada decisions in R. v. Grant and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, there is a three-pronged test that must be applied when considering the admissibility of evidence under s. 24(2) of the Charter. More specifically, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. The court must, nevertheless, consider all of the circumstances of each individual case in conducting this balancing assessment. See also R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-113; R. v. Beaulieu, at paras. 5-8; R. v. Côté, at paras. 45-48; R. v. Cole, at paras. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 45-52; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 75-81; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 37-42; R. v. Mian, at paras. 78-89; R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at paras. 64-71.

4. The Seriousness of the State Conduct

a. The “Not Particularly Serious” Violation Found by the Trial Judge

[60] Under the first prong of the test, the court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. A significant departure from the standard of conduct expected of police officers will weigh in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75; R. v. Taylor, at para. 39.

[61] In my view, the violation of the appellant’s constitutional rights under s. 10(b) of the Charter in the circumstances of the present case could only fairly be characterized as very minor.

[62] The trial judge concluded that the appellant was detained by Cst. Ali starting at approximately 6:45 a.m., after the officer called him over, obtained his identification and secured his car keys. The trial judge also found as a fact that this detention was for the purpose of investigating a potential impaired driving charge, as well as a motor vehicle collision. The trial judge noted that the officer did not immediately inform the appellant of his right to counsel upon detention, but only did so approximately four minutes later, at 6:49 a.m., after questioning the appellant about the collision and forming his grounds for arrest. Borenstein J. concluded that Cst. Ali should have given the appellant his right to counsel before asking him about the motor vehicle collision. This failure resulted in the violation of the appellant’s rights under s. 10(b) of the Charter. Borenstein J. also concluded that the violation of s. 10(b) of the Charter in this case was “not particularly serious” in itself, in that it was “only four minutes” in duration, and it had “little impact” on the appellant’s Charter-protected interests, given that there “remained sufficient grounds for the arrest.”

[63] I agree that this violation of s. 10(b) of the Charter, as found by the trial judge, is “not particularly serious” standing alone. The appellant was not advised of his right to counsel for approximately four minutes while Cst. Ali questioned him about the collision in the parking lot and tried to ascertain whether the appellant was an impaired driver and whether sufficient grounds existed to demand samples of the appellant’s breath suitable for analysis. This was a brief investigative interaction between Cst. Ali and the appellant.

[64] In accurately assessing the true extent of this s. 10(b) violation, it is important to recall that, in R. v. Orbanski; R. v. Elias, at paras. 1-3, 23-28, 40-53, 55-58, the Supreme Court of Canada held that police officers are lawfully entitled to briefly detain a driver for purposes of inspecting their drivers licence and determining whether their ability to operate a motor vehicle may be impaired by alcohol or drugs, as permitted by provincial legislation and the common law, without immediately advising such a driver of their right to counsel, or affording such a driver of the opportunity to exercise their right to counsel. The Supreme Court held that such a driver is immediately detained when they are stopped by the police, and the law, according to statute and common law, which permits the police to administer physical sobriety tests and question such a driver about their prior alcohol consumption, infringes s. 10(b) of the Charter. However, the Supreme Court held that these laws are justified as a “reasonable limit” on the right to counsel within the meaning of s. 1 of Charter. In reaching this conclusion, the Court held, essentially, that detecting and deterring impaired driving is an important and compelling objective, such reasonable screening measures are rationally connected to this objective, infringe the right to counsel no more than necessary to achieve that objective, and that this limit on the right to counsel is proportionate given that driving a motor vehicle is a highly regulated activity and that there are limits on the scope of such roadside screening and limited uses that can be made of evidence collected during that screening process. See also R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at paras. 45-49; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 45; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 25-26; R. v. Gardner, 2018 ONCA 584, 361 C.C.C. (3d) 408, at paras. 18-27.

[65] In the factual circumstances of the present case, Cst. Ali was not engaged in a typical roadside stop of a citizen driving a motor vehicle on a highway or other roadway. Nevertheless, in my view the decision in R. v. Orbanski; R. v. Elias remains the controlling judicial precedent as to the extent of the s. 10(b) Charter violation in this case, especially having regard to the following considerations.

[66] First, the 911 emergency call that summoned the police and the paramedics to the parking lot of the apartment building 33 Rosehill Avenue complained about an “impaired driver” asleep in a Honda Accord, which had been involved in some kind of collision with another motor vehicle. Accordingly, as the trial judge concluded, when Cst. Ali arrived on the scene he was there to investigate a collision that involved a potentially impaired driver.

[67] Second, one of the paramedics that arrived on the scene at approximately 6:40 a.m., just before the arresting police officer, found the appellant asleep or unconscious, reclined in the driver’s seat of the Honda Accord, with the engine of the vehicle still running, and with the vehicle blocking other parked vehicles and being in direct physical contact with a fence and another vehicle. According to s. 258(1)(a) of the Criminal Code, R.S.C. 1985, chap. C-46, the appellant, by occupying the driver’s seat of the Honda Accord, was presumptively “deemed to have had the care or control of the vehicle,” and there was no evidence that the appellant was not sitting in the driver’s seat for the purpose of putting it in motion. Indeed, when the paramedics arrived, the engine of the Honda Accord was still running, and the appellant put his vehicle in motion, from his position in the driver’s seat, during his interaction with the paramedic.

[68] Third, the paramedic who first interacted with the appellant in his vehicle found him to be initially unresponsive, but later found him to be “confused” and “slow to respond.” He was simply “not acting normally” – he was not “fully alert.” The appellant seemed to have “difficulty focusing,” and his eyes looked “blurred” and “glossy” and “glazed.” The paramedic also watched the appellant have “some difficulty” operating the transmission of the vehicle. The paramedic passed this information on to Cst. Ali upon his arrival on the scene and told him that the appellant was the driver of the Honda Accord.

[69] Fourth, according to s. 48(1) of the Highway Traffic Act, a police officer “may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify” making a demand under s. 254 of the Criminal Code. Section 254 is the provision of the Criminal Code that broadly authorizes police officers to make various demands of persons, based on the proper grounds, to gather types of evidence that would permit officers to assess a person’s level of sobriety or drug and/or alcohol impairment. For example, s. 254 authorizes police officers, with proper grounds, to demand that persons: (a) provide samples of their breath for testing in an approved screening device or in an approved instrument; (b) provide samples of their blood to a qualified medical practitioner or qualified technician; (c) perform physical coordination tests; and (d) submit to a drug evaluation by a evaluating officer. As expressly noted by the Supreme Court of Canada in R. v. Orbanski; R. v. Elias, at para. 42, “[s]creening measures such as questioning drivers about prior alcohol consumption and requesting them to perform sobriety tests” have been “found to be authorized under s. 48(1) of the Ontario Highway Traffic Act.” See, for example, R. v. Saunders (1988), 1988 CanLII 197 (ON CA), 41 C.C.C. (3d) 532, 63 C.R. (3d) 37 (Ont.C.A.); R. v. Ratelle (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, 105 C.C.C. (3d) 58 (C.A.); R. v. Weintz, 2008 BCCA 233, 233 C.C.C. (3d) 365, leave refused, [2008] S.C.C.A. No. 362; R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 83.

[70] Fifth, as stated in s. 48(18) of the Highway Traffic Act, for purposes of this section, the term “driver” includes any “person who has care or control of a motor vehicle.” Of course, a person may have the care of control of a motor vehicle in many different geographic locations – on private driveways and parking lots, as well as on public streets and roadways. In other words, the term “driver” in relation to the exercise of this particular police power is not restricted (unlike the term “driver” as defined in s. 1 of the Highway Traffic Act) to any “person who drives a vehicle on a highway.” Accordingly, the police power granted by s. 48(1) of the Highway Traffic Act may properly be exercised in relation to a driver, such as the appellant, who has the care or control of a motor vehicle in a private parking lot. This makes perfect sense from a policy perspective as impaired drivers can be just as dangerous to members of the public in private parking lots as they are on our public streets and highways.

[71] It is noteworthy that this broad definition of “driver” for purposes of the application of the police power in s. 48(1) was not legislatively added to the Highway Traffic Act until 2009. See S.O. 2009, chap. 5, s. 15(11).[^2] Earlier jurisprudence holding that this police power did not extend to private parking lots was based upon the narrow definitions of “driver” and “highway” provided generally in s. 1 of the Highway Traffic Act, which restricted the exercise of such power to “any person who drives a vehicle on a highway” (which did not include private parking lots). See, for example, R. v. Tresham (1998), 1998 CanLII 14756 (ON SC), 34 M.V.R. (3d) 313, 52 C.R.R. (2d) 367 (Ont.Ct.Gen.Div.); R. v. Sergalis, [2009] O.J. No. 4823, 90 M.V.R. (5th) 116 (S.C.J.); R. v. Campbell, 2009 ONCJ 157, [2009] O.J. No. 1534; R. v. Cordeiro, 2009 ONCJ 529, [2009] O.J. No. 4923, at paras. 8-16. Subsequent jurisprudence has not expressly considered the potential impact of this section-specific legislative amendment to the term “driver.” See, for example, R. v. Hajivasilis, 2013 ONCA 27, 114 O.R. (3d) 337, at para. 13; R. v. Heer, 2013 ONSC 7257, [2013] O.J. No. 6432, at paras. 2-3, 12-17, 23-28; R. v. Vander Griendt, 2015 ONSC 6644, 331 C.C.C. (3d) 135, at paras. 2-5, 13, 17-21. As I have indicated, in my view, given the broader definition of the term “driver” in s. 48(18) of the Highway Traffic Act, the police power conveyed in s. 48(1) of the Highway Traffic Act may properly be exercised in relation any “driver” who has the care or control of a motor vehicle in a private parking lot.

[72] In summary, given that Cst. Ali: (1) arrived on the scene to investigate a motor vehicle collision that may have involved an impaired driver; (2) had good reason to believe that the appellant was in care and control of the Honda Accord that had been involved in the collision; and (3) had good reason to suspect that the appellant’s ability to operate a motor vehicle may have been impaired by alcohol – the officer was lawfully entitled to briefly detain the appellant pursuant to the statutory power legislatively provided by s. 48(1) of the Highway Traffic Act for the purpose of determining whether or not there was evidence to justify making a demand under s. 254 of the Criminal Code. See R. v. Boughen (2002), 166 O.A.C. 37, 30 M.V.R. (4th) 261 (C.A.); R. v. Calder [2002] O.J. No. 3021, 29 M.V.R. (4th) 292 (S.C.J.), affirmed, 2004 CanLII 36113 (ON CA), [2004] O.J. No. 451, 47 M.V.R. (4th) 20 (C.A.); R. v. Ackerman, 2014 NLCA 26, 349 Nfld. & P.E.I.R. 316; R. v. Guillemin, 2017 BCCA 328, 19 M.V.R. (7th) 8. Further, while the officer was briefly engaged in determining whether or not there was evidence to justify making a demand of the appellant under s. 254 of the Criminal Code, Cst. Ali was not required to provide the appellant with his right to counsel.

[73] In these circumstances, the only police investigative conduct by Cst. Ali that went beyond what was permitted by the authority of R. v. Orbanski; R. v. Elias was the brief questioning of the appellant by Cst. Ali about the motor vehicle collision – assuming that this questioning was not undertaken by Cst. Ali to try to “assess whether the driver’s speech [was] slurred” as part of his assessment of the appellant’s level of impairment.” See R. v. Orbanski; R. v. Elias, at para. 48; R. v. Ratelle, at p. 74. Accordingly, as I have already noted, this violation of s. 10(b) of the Charter, as found by the trial judge, was a very minor one.

b. The Trial Testimony of Constable Ali

[74] The trial judge concluded that the seriousness of the s. 10(b) Charter violation was “significantly aggravated” by Cst. Ali’s testimony surrounding his “detention” of the appellant. In the result, the trial judge concluded that, viewed as a whole, the Charter-infringing conduct of Cst. Ali was “serious.”

[75] I agree that the violation of s. 10(b) in the present case, as found by the trial judge, was seriously aggravated by the trial testimony of the arresting officer. See R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 2-3, 91-98, 102-103. Given that the “integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry” under s. 24(2) of the Charter, there are “[f]ew actions [that] more directly undermine both of these goals than misleading testimony in court from persons in authority.” See R. v. Harrison, at para. 26, citing the dissenting judgment of Cronk J.A. (see R. v. Harrison, 2008 ONCA 85, 89 O.R. (3d) 161, at para. 160).

[76] In the present case, Cst. Ali did not appear to appreciate, with precision, the extent of his legal obligations to provide the right to counsel to detained individuals, and the permissible scope of his investigations prior to providing individuals with their rights under s. 10(b) of the Charter. More significantly, Cst. Ali provided conflicting testimony as to the purpose or purposes of his unfolding investigation in an apparent effort to explain his actions in a manner that was constitutionally compliant. Initially, Cst. Ali testified that he arrived on the scene to investigate a motor vehicle collision involving a potential impaired driver and detained the appellant for the purpose of conducting this investigation. Subsequently, however, when he was questioned about his failure to immediately advise the appellant of his right to counsel, Cst. Ali explained that he only detained the appellant in relation to his investigation of the motor vehicle collision, not any potential impaired driving, and he explained that he was only obliged to provide the right to counsel when detaining someone for a criminal offence. It was only during his collision investigation that Cst. Ali formed the grounds to believe that the appellant was impaired, at which point he provided the appellant with his right to counsel. Subsequently, Cst. Ali testified that the appellant was not even initially detained, but rather was free to leave if he wanted, but that he stayed voluntarily.

[77] Borenstein J. concluded, in his reasons for judgment, that this evolution of Cst. Ali’s testimony “undermined his credibility” to the extent that he was prepared to rely on the testimony of Cst. Ali only where it was “corroborated by other evidence” or “compelling in the context of the circumstances of the case.”

c. Conclusion

[78] As I have indicated, I agree with the conclusions of Borenstein J. that the breach of s. 10(b) of the Charter, as aggravated by the inconsistent explanatory testimony of Cst. Ali, collectively results in a serious violation of the Charter rights of the appellant and strongly favours the exclusion of the Intoxilyzer results of the appellant’s breath samples.

5. The Impact of the Charter Violation on the Appellant

[79] As to the impact of the Charter violation, the second prong of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the appellant. The impact of the Charter violation may range from “fleeting and technical to profoundly intrusive.” Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, at paras. 76-78.

[80] The trial judge concluded that the violation of the appellant’s right to counsel under s. 10(b) of the Charter had “no impact” on the appellant’s Charter-protected interests because, even excluding from consideration the information that Cst. Ali gathered after the violation of s. 10(b) of the Charter, “there remained” the necessary “reasonable grounds” that legally justified the appellant’s arrest and the demand for his breath samples. I agree with the conclusions reached by Borenstein J. in relation to this issue.

[81] Recall that the violation of s. 10(b) of the Charter in this case, as found by the trial judge, was for a duration of approximately four minutes. Further, the appellant was ultimately permitted to speak privately to counsel on the telephone before he was asked to provide samples of his breath suitable for analysis in an approved instrument.

[82] In addition, the trial judge concluded, correctly in my view, that even excluding from consideration the limited information gathered by Cst. Ali after the violation of s. 10(b) of the Charter, the officer still had ample reasonable and probable grounds to arrest the appellant and demand that he provide suitable samples of his breath for analysis in an approved instrument. Recall that based upon the information that Cst. Ali gathered (from the paramedic and from his own observations), and which he was lawfully entitled to gather, according to R. v. Orbanski; R. v. Elias, – without providing the appellant with his right to counsel: (1) the appellant appeared to be very disoriented and confused; (2) the appellant fumbled through the cards that had been in his pocket and was delayed in finding his photo identification; (3) the appellant appeared to be sweating profusely as if in some medical distress; (4) the appellant’s eyes were bloodshot, glassy and watery; (5) the appellant had a strong odour of alcohol coming from his breath; and (6) moments before the officer arrived, the appellant had been in care and control of a vehicle, having been seated in its driver’s seat with its engine running, after the vehicle had been involved in a collision with a parked vehicle. As I have indicated, the trial judge was quite correct in concluding that this collection of circumstances provided Cst. Ali with “ample” justification to arrest the appellant and demand that he provide samples of his breath for analysis. Accordingly, there was no violation of s. 8 of the Charter in the circumstances of the present case.

[83] It is also important to appreciate that the collection of the appellant’s breath samples for analysis was accomplished by means of an “approved instrument” within the meaning of s. 254(1) of the Criminal Code. This procedure has long been judicially acknowledged as a relatively non-intrusive procedure, which has no more than a slight impact upon the Charter-protected interests of Canadian motorists. See, for example, R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321, at para. 90; R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 175 O.A.C. 54, 178 C.C.C. (3d) 23 (C.A.), at paras. 16-18.

[84] Significantly, in R. v. Grant, McLachlin C.J.C. and Charron J., writing for the majority of the Supreme Court of Canada, described the collection of breath sample evidence in drinking and driving cases, at para. 111, as a “relatively non-intrusive” procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the appellant. Indeed, the Supreme Court in R. v. Grant generalized, again at para. 111, that in the absence of some egregious, deliberately inflicted Charter violation, with a “high” impact upon the appellant’s privacy, bodily integrity and dignity, reliable breath sample evidence will “often” be admitted under s. 24(2) of the Charter, given that the “method of collection is relatively non-intrusive.”[^3]

[85] Accordingly, the second factor in the s. 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples. See, for example, R. v. Taylor, 2010 ONSC 4850, 1 M.V.R. (6th) 103, at para. 44, leave denied, 2011 ONCA 681, [2011] O.J. No. 4838; R. v. McDowell, 2012 ONSC 7028, 40 M.V.R. (6th) 317, at paras. 50-54; R. v. Manchulenko, at para. 100; R. v. Rehill, 2015 ONSC 6025, 89 M.V.R. (6th) 215, at paras. 33-37, 45-48; R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, at para. 98; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224, at paras. 26-33; R. v. Walsh, 2019 ONSC 2337, 154 W.C.B. (2d) 365, at paras. 29-37.

[86] In any event, in my view, the collection of the appellant’s breath samples by means of an “approved instrument” in the present case was a relatively non-intrusive procedure which had minimal, if any, impact on the appellant’s Charter-protected interests. Accordingly, this second prong of the s. 24(2) analysis strongly favours the admission of the Intoxilyzer results of the appellant’s breath samples. See R. v. Grant, at paras. 106, 111.

6. The Importance and Reliability of the Evidence to a Trial on the Merits

[87] Under the third avenue of inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84.

[88] As the Supreme Court of Canada observed in R. v. Grant, at para. 110, this third area of inquiry under the governing s. 24(2) analysis “will usually favour admission in cases involving bodily samples,” as such evidence is generally reliable and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission of the evidence.

[89] In my opinion, that approach is directly applicable in the circumstances of the present case. The Intoxilyzer results of the appellant’s breath samples provide completely reliable evidence that is vital to an accurate determination of the merits of the case. If this evidence is excluded, the Crown’s case necessarily fails in relation to the “over 80” charge. On the other hand, if the evidence is admitted, the Crown is able to establish that the appellant was, in fact, operating his motor vehicle with an unlawful blood-alcohol concentration. In my opinion, the societal interest in a criminal trial on its merits would be seriously undermined if such highly reliable and critical evidence were excluded. Of course, the public has long had a very strong interest in dealing with “drinking and driving” cases on their merits. Accordingly, this third aspect of the governing analysis under s. 24(2) of the Charter also strongly favours admission of the evidence. See R. v. Grant, at para. 106.

7. Conclusion

[90] There is no overarching rule that governs how to balance these three critical factors in ultimately determining the admissibility of the evidence under s. 24(2) of the Charter. The three factors are designed, however, to encapsulate consideration of all of the circumstances of the case. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of “decision tree.” See R. v. Grant, at paras. 85-86.

[91] In all of the circumstances of this case the balancing of the three predominant factors has driven me to conclude that the Intoxilyzer results of the appellant’s breath samples are properly admissible under s. 24(2) of the Charter, and that the trial judge was correct in ultimately reaching this same conclusion. The first prong of the analysis, as I have indicated, pulls strongly in favour of the exclusion of the evidence, especially considering the misleading nature of the evolving trial testimony of the arresting officer. However, the Charter violation in this case had virtually no impact on the Charter-protected interests of the appellant, and the exclusion of the reliable Intoxilyzer evidence obtained from the appellant’s breath samples would wholly undermine the truth-finding function of the trial process as the appellant, who is clearly guilty of driving his motor vehicle with an illegal blood-alcohol concentration, would be acquitted in the result. Accordingly, both of the remaining two prongs of the analysis pull strongly in favour of the admission of the evidence. In the result, in my view, after considering all of the circumstances of this case, it is the exclusion of this evidence (not its admission) that would bring the administration of justice into disrepute.

VI

Conclusion

[92] Accordingly, as I agree with the ultimate conclusion reached by Borenstein J., that the Intoxilyzer results of the appellant’s breath samples were properly admissible into evidence under s. 24(2) of the Charter, the appeal must be dismissed.

[93] An order shall issue accordingly.

Kenneth L. Campbell J.

Released: August 23, 2019

COURT FILE NO.: 67/18

DATE: 20190823

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

BRUNO NDAYE

REASONS FOR JUDGMENT

K.L. Campbell J.

Released: August 23, 2019

[^1]: In R. v. Omar, 2019 SCC 32, 54 C.R. (7th) 436, at para. 1, the majority of the Supreme Court of Canada recently suggested that “on another occasion” it “may be necessary to consider whether other remedies than the exclusion of evidence may be granted” under s. 24(1) of the Charter “when s. 24(2) is in issue.” However, unless and until the Supreme Court of Canada reverses its early Charter jurisprudence, such alternative remedies will remain legally irrelevant.

[^2]: The legislative debates surrounding the enactment of this provision provide little assistance in its interpretation. When first introducing this legislation (Bill 126), the Minister of Transportation at the time, James J. Bradley, suggested that, if passed, this legislation would “keep drinking and suspended drivers off our roads.” During the second reading of the Bill, his Parliamentary Assistant, Michael A. Brown, indicated that this legislation would give the police “more effective enforcement tools that they need to help keep our roads safe” and would “take a tougher approach to dealing with drivers who continue to get behind the wheel of a car … when they are impaired.” During the third reading of Bill 126, Mr. Bradley indicated that this legislation would “give our police services the tools they need to keep Ontarians safe.” See Legislative Assembly of Ontario, First Session of 39th Parliament, Hansard – Official Report of Debates, November 18, 2008, at pp. 4030-4031; December 3, 2018, at p. 4441; April 8, 2009, at p. 5979.

[^3]: Interestingly, this is entirely consistent with the position in the United States. In Birchfield v. North Dakota, 579 U.S. 1, 136 S.Ct. 2160 (2016) the Supreme Court of the United States again concluded, as it had in Skinner v. Railway Labour Executives’ Assn., 489 U.S. 602, 109 S.Ct. 1402 (1989), at pp. 625-626, that the taking of breath samples does not implicate significant privacy concerns. In reiterating this conclusion, in Birchfield, at pp. 20-22, the Supreme Court noted that the physical intrusion is “almost negligible” as it does not require any piercing of the skin and entails a “minimum of inconvenience.” Indeed, the court observed that providing a breath sample requires no more effort than “blowing up a party balloon” or using a “straw to drink a beverage.” The court also observed that the exhalation of breath is a natural process, that is necessary for life, and that humans “have never been known to assert a possessory interest in, or any emotional attachment to, any of the air in their lungs.” Further, the court observed that breath tests reveal only “one bit of information, the amount of alcohol in the subject’s breath,” and the process of providing a breath sample is not an experience likely to cause any embarrassment.