COURT FILE NO.: 18-A13093

DATE: 20210525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

TAYLOR GARDNER

Respondent

Carl Lem, for the Appellant

Solomon Friedman, for the Respondent

HEARD: March 10, 2021

SUMMARY CONVICTION APPEAL

REASONS FOR JUDGMENT

Aitken J.

Nature of Proceedings

[1] The Crown appeals the acquittal of the Respondent by Brown J. of the Ontario Court of Justice on October 30, 2019 of the charge of “over 80”: R. v. Gardner (30 October 2019), Ottawa, 18-13093 (Ont. C.J.) [“Gardner, 2019 OCJ”]. Brown J. also acquitted the Respondent of impaired driving by virtue of a reasonable doubt as to whether his ability to drive was impaired by alcohol. The Crown is not appealing that result.

[2] The grounds for appeal are that the trial judge erred with respect to his findings of breaches under ss. 10(a) and (b) of the Charter[^1] and his exclusion of the breath readings under s. 24(2) of the Charter.

[3] The Appellant seeks an order allowing the appeal and substituting a conviction or, in the alternative, ordering a new trial.

Background Facts

[4] On October 7, 2018, Constable Cochrane was travelling westbound in the passing lane on Montreal Road in Ottawa at a speed of approximately 90 kph when another vehicle quickly gained on him and, at the last moment, swerved into the right lane narrowly missing the back right bumper of the cruiser. Constable Cochrane estimated that the vehicle was going at a speed of at least 130 kph – well over the speed limit. Constable Cochrane activated his emergency lights and attempted to pull over the other vehicle. The driver of the other vehicle cooperated in stopping. The time was 2:39 a.m.

[5] Constable Cochrane approached the vehicle on the driver’s side and spoke to the driver through the window, advising him that he had been pulled over due to the speed at which he was driving. For the most part, the driver continued to look forward as the two men were speaking and as the driver passed his driver’s licence and registration to Constable Cochrane. The driver was the Respondent. There were two passengers in the vehicle – a male in the front seat and a female in the rear on the passenger side.

[6] Constable Cochrane observed that the Respondent’s eyes were glassy and that, when the Respondent looked at Constable Cochrane briefly, he appeared to be staring right through him rather than looking at him. Constable Cochrane also noted a strong odour of alcohol coming from the vehicle. Constable Cochrane asked the Respondent if he had been drinking alcohol, and the Respondent denied that he had done so.

[7] Constable Cochrane told the Respondent to exit the vehicle. The officer wanted to determine if the odour of alcohol was coming from the Respondent or from his passengers. Constable Cochrane did not advise the Respondent why he was asking him to exit the vehicle. At this point, the Respondent was detained and Constable Cochrane was engaged in a drinking and driving investigation under the Criminal Code, R.S.C. 1985, c. C-46.

[8] Constable Cochrane directed the Respondent over to the sidewalk near the front passenger side of Constable Cochrane’s vehicle. Constable Cochrane asked the Respondent where he was coming from and where he was going – a simple question that he anticipated the Respondent would answer, thereby letting Constable Cochrane smell his breath. The Respondent replied that he was coming from a friend’s house and was going downtown. Constable Cochrane could detect an odour of alcohol coming from the Respondent’s breath. Constable Cochrane told the Respondent that he suspected him of having consumed alcohol, and he immediately demanded the Respondent undergo a test with an approved screening device (“ASD”).

[9] At 2:43 a.m., Constable Cochrane read the Respondent the ASD demand. Constable Cochrane explained how the ASD operated and demonstrated how to blow into it. After a couple of unsuccessful attempts, the Respondent provided a sufficient sample that registered a fail. On the basis of that fail, at 2:46 a.m., Constable Cochrane arrested the Respondent for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Code.

[10] When asked why he had made the ASD demand of the Respondent, Constable Cochrane testified:

It was a totality of – of everything that I had observed at the time, including the odour of alcohol that was directly coming from his breath once he was removed from the vehicle, as well as the abnormal speed that he had initially been observed going and the proximity to my vehicle, that it was kind of a totality that there was a possibility that there was alcohol in his blood, given, again, given the breath and given the totality of my observations.

[11] Following the arrest, the Respondent was searched and placed in Constable Cochrane’s cruiser. Constable Cochrane then returned to the Respondent’s vehicle to advise the two passengers that they would have to find another way home. The front male passenger appeared intoxicated and was a bit mouthy, aggressive, and verbally confrontational. At one point, he stood on the opposite sidewalk and simply stared at Constable Cochrane. The female passenger in the backseat was cooperative and, ultimately, was able to control the male passenger. Constable Cochrane waited until the two had left the Respondent’s vehicle and were a sufficient distance away that he was no longer concerned about them. At 2:49 a.m., Constable Badinski arrived on scene with a trainee officer. Constable Cochrane asked her to deal with the towing of the Respondent’s vehicle and searching the vehicle for inventory.

[12] Constable Cochrane then returned to his cruiser. He made some notes in his duty book, recording some of the times and details to that point relating to the Respondent. At 2:58-2:59 a.m., Constable Cochrane read the Respondent his rights to counsel, caution, and breath demand. The Respondent answered yes to understanding his right to counsel. Constable Cochrane did not ask the Respondent the second part of the normal instruction regarding rights to counsel, namely: “[d]o you wish to call a lawyer now?” Constable Cochrane explained that, at that time, his common practice in situations where the accused would be brought to the station for a breathalyzer test, was not to ask this second question because the detainee would only be given the opportunity to contact counsel once he was at the police station. Therefore, whether the detainee responded yes or no to the question was irrelevant. Constable Cochrane advised that, shortly after these events, he was advised to ask both questions related to right to counsel in cases involving drinking and driving offences – and that has been his practice since.

[13] Constable Cochrane knew that the Respondent had a cell phone and therefore the means to call a lawyer; however, Constable Cochrane provided three reasons why an accused could not be given the opportunity to contact counsel at the roadside; (1) confidentiality could not be ensured; (2) the goal was to get the accused person to the station as soon as practicable; and (3) the obligation of the officer to provide access to counsel “as soon as possible” meant “as soon as it’s safe to do so and … the environment is controlled enough to provide it.”

[14] Constable Cochrane acknowledged that the Respondent posed no safety risk to him. The Respondent was cooperative throughout his dealings with Constable Cochrane. After the Respondent was arrested, he was handcuffed, searched, and placed in the confined space in the back of the cruiser. Meanwhile, the two passengers remained in the Respondent’s vehicle, as instructed, and were not posing any problems for Constable Cochrane. When he went to see them after arresting the Respondent, the passengers left the vehicle on his instruction and moved to the far side of the street.

[15] Between 2:59 a.m. and 3:28 a.m., the Respondent was driven to cell block, paraded before the Sergeant, searched by the special constables, and asked about his lawyer of choice. The Respondent indicated that he wanted to consult Kimberly Hyslop. Constable Cochrane made the call but got no answer. He left a message on voicemail saying that the Respondent was in custody and wanted a call back. The Respondent indicated that he did not want to speak to another lawyer. He was placed in a temporary holding area awaiting a call back from Ms. Hyslop. In the meantime, Constable Cochrane from 3:33 a.m. to 3:42 a.m. provided the breath technician with his grounds for demanding a breath sample.

[16] At 3:43 a.m., Constable Cochrane again called Ms. Hyslop and received no answer. He did not leave a further message. Constable Cochrane asked the Respondent if he had another lawyer to call, which he did not. Constable Cochrane advised the Respondent that they could wait a little bit longer but, ultimately, samples must be taken as soon as practicable, and the Respondent had the right to call a lawyer before that happened. Constable Cochrane offered to call another lawyer, if the Respondent wished.

[17] The Respondent followed Constable Cochrane out of the holding cell and reviewed the list of defence counsel. He selected Elena Davies and indicated that if she did not respond, he would try Kristen Robbins. Constable Cochrane called Elena Davies at 3:47 a.m. but received no answer. He did not leave a message because he understood that the Respondent wanted Ms. Hyslop as his lawyer and, otherwise, just wanted to speak to an actual lawyer. Constable Cochrane called and reached Kristen Robbins at 3:48 a.m. The Respondent spoke to Ms. Robbins from 3:49 a.m. to sometime before 4:12 a.m. He indicated that he was content with the call.

[18] The Respondent was with the breath technician, Constable Wallace, from 4:12 a.m. to 4:46 a.m. Constable Wallace observed that the Respondent appeared to be very sleepy. He was quiet. His face was flushed. There was an odour of alcohol present. The Respondent seemed steady on his feet, his conversation was good, and his speech was good. Constable Wallace gave the Respondent the caution, the breath demand, and the secondary caution. The Respondent answered yes to all questions. The Respondent also confirmed that he had spoken to legal counsel and that he was satisfied with the advice given. After running the necessary control tests on the Intoxylizer equipment, Constable Wallace took two samples of the Respondent’s breath, one at 4:18 a.m. and one at 4:40 a.m. before returning the Respondent to Constable Cochrane’s custody at 4:46 a.m. The first reading was 160 milligrams of alcohol per 100 millilitres of blood. The second reading was 140 milligrams of alcohol per 100 millilitres of blood.

Reasons for Judgment of Trial Judge

[19] The Respondent’s defence was based on several alleged breaches of his Charter rights which, it was argued, should result in the exclusion of the breathalyzer results under s. 24(2) of the Charter.

[20] In thorough, well-crafted, reasons, the Trial Judge found as follows:

• The Respondent’s s. 10(a) Charter rights were breached when Constable Cochrane told him to exit his vehicle without telling the Respondent that he was now conducting an investigation under the Code relating to drinking and driving and not simply an investigation into a speeding violation under the Highway Traffic Act.[^2]

• The informational component of the Respondent’s s. 10(b) Charter rights was breached when Constable Cochrane failed to immediately notify the Respondent of his right to counsel following arrest when there were no valid concerns for the officer’s own safety or the public’s safety.

• The implementational component of the Respondent’s s. 10(b) Charter rights were breached when Constable Cochrane failed to advise the Respondent how long they could wait to hear back from the Respondent’s lawyer of choice (Kimberly Hyslop) and that Constable Cochrane was obliged to hold off eliciting further evidence from the Respondent until he had spoken with counsel; and when Constable Cochrane failed to ask the Respondent whether he wanted Constable Cochrane to leave another message on Ms. Hyslop’s voice-mail or try calling her a further time.

[21] The trial judge concluded that these breaches were serious and each had a serious impact on the Respondent’s Charter rights. Although the trial judge determined that society’s interest in adjudication on the merits favoured inclusion of the breathalyzer evidence, which he considered reliable and important, he concluded that the factors supporting exclusion outweighed those supporting inclusion, and he excluded the breathalyzer evidence under s. 24(2) of the Charter. With the breathalyzer evidence excluded, the trial judge acquitted the Respondent of both the over 80 and the impaired driving charges.

Analysis

Standard of Review

[22] The Appellant submits that the trial judge erred in his application of legal standards to the facts of this case. This raises a question of law, and the applicable standard of review is that of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 7-9; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; and R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 54. A fresh analysis is required – not of the judge’s factual findings – but as to whether those facts as found by the trial judge amounted to one or more breaches of the Respondent’s Charter rights.

Issue #1: The Section 10(a) Breach

[23] Section 10(a) of the Charter states that “[e]veryone has the right on arrest or detention to be informed promptly of the reasons therefor.”

[24] In deciding whether the Respondent’s s. 10(a) Charter rights were breached, the trial judge referred to the seminal case of R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, 1991 CarswellBC 417, where, at paras. 26 and 30, Chief Justice McLachlin stated:

The right to be promptly advised of the reason for one’s detention embodied in s. 10(a) of the Charter is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counsel conferred by s. 10(b) of the Charter. As Wilson J. stated for the Court in R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53, “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”. In interpreting s. 10(a) in a purposive manner, regard must be had to the double rationale underlying the right.

When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

[25] This approach of putting substance over form when considering whether there has been a breach of s. 10(a) Charter rights was reaffirmed in R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, 112 C.C.C. (3d) 193, at paras. 31-32.

[26] In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21, the Supreme Court of Canada summarized the requirement under s. 10(a) as follows: “[a]t a minimum, individuals who are detained for investigative purposes must … be advised, in clear and simple language, of the reasons for the detention”. However, appellate courts have concluded that this statement has not overruled or modified the approach taken in Evans. As stated by the Ontario Court of Appeal in R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 16:

… a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed. [Emphasis added.]

[27] Subsequently, in R. v. Katerberg, 2019 ONCA 177, 437 C.R.R. (2d) 69, at para. 7, the Ontario Court of Appeal reiterated the test as follows:

It has been repeatedly stated that there are no technical requirements as to what a police officer needs to say to a detained person to discharge his or her s. 10(a) obligations. Rather, it is the substance of what the accused can reasonably be supposed to have understood which must govern: see R. v. Roberts, 2018 ONCA 41, 360 C.C.C. (3d) 444, at para. 78; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-888.

See also R. v. Carrier, 2008 ABCA 134, 90 Alta. L.R. (4th) 279; R. v. Lund, 2008 ABCA 373, 70 M.V.R. (5th) 43; and R. v. Rhodenizer 2018 ABCA 224, 415 C.R.R. (2d) 169 (Alta. C.A.).

[28] Some of the relevant findings of fact made by the trial judge in this case relating to this issue are the following:

• Constable Cochrane stopped the Respondent’s vehicle because it had been speeding.

• Constable Cochrane advised the Respondent that he had been stopped for speeding.

• Constable Cochrane asked the Respondent whether he had consumed any alcohol that evening, and the Respondent denied any alcohol consumption.

• There was a strong odour of alcohol coming from the vehicle, but Constable Cochrane could not tell whether it was coming from the Respondent or from one of the two passengers in the vehicle.

• Constable Cochrane asked the Respondent to exit the vehicle. He did so for the purpose of determining whether the odour of alcohol was coming from the Respondent.

• Constable Cochrane did not tell the Respondent that this was why he was asking him to exit the vehicle.

• Constable Cochrane did not tell the Respondent that he was now investigating him for a suspected drinking and driving offence under the Code.

• At this point, the Respondent was detained.

• After the Respondent exited the vehicle, Constable Cochrane engaged him in conversation to ascertain whether the Respondent had alcohol on his breath.

• Constable Cochrane detected alcohol on the Respondent’s breath and immediately made an ASD demand.

[29] Most importantly, the trial judge noted that the fact that, prior to the Respondent getting out of the vehicle, Constable Cochrane had asked him whether he had consumed any alcohol that evening, “does not mean that the Respondent knew just why it was that he was being asked to step out of the motor vehicle”: Gardner, 2019 OCJ, at p. 14. The way the trial judge worded this conclusion leaves some doubt as to where he was placing the onus of proof, but I believe what he was conveying was that he was satisfied in all the circumstances that the Respondent could not be expected to understand the reason for his detention from what had transpired prior to his being asked to get out of the vehicle.

[30] Both at trial and in this court, the Appellant relied on such cases as R. v. Kumarasamy, 2011 ONSC 1385, 15 M.V.R. (6th) 44; R. v. Borer, 2015 ONSC 4592, 86 M.V.R. (6th) 319; R. v. Osinski, 2017 ONCJ 395, 139 W.C.B. (2d) 460; and R. v. Gardner, 2018 ONCA 584, 361 C.C.C. (3d) 408 [“Gardner, 2018 OCA”], in urging that the appropriate application of the law regarding s. 10(a) of the Charter to the above facts results in a finding that there was no breach of the Respondent’s s. 10(a) rights. All these cases can be differentiated on the facts from the case at hand.

[31] In Kumarasamy, which involved the police stopping a motorist for erratic driving and ultimately arresting him for impaired driving, the trial judge concluded that the driver’s s. 10(a) rights had not been violated at the time of the stop but had been violated when the officer failed to tell the driver the reasons for his detention when he asked the driver to step out of his vehicle so that the officer could further investigate whether the driver was intoxicated. On appeal, Dambrot J. found that the trial judge had made an error in law when she found a violation of the driver’s s. 10(a) rights. Dambrot J. explained at paras. 52, 53, and 65:

The respondent was obviously aware that it was late at night, that he had consumed alcohol, that there was an odour of alcohol in his car, and that he was driving erratically … He could not help but know that P.C. MacKay stopped him because of a concern about his unsafe driving, and that the officer would suspect that his erratic driving might have been the result of the excessive consumption of alcohol. This case falls squarely within what was said in Nguyen: even if the officer had said nothing to the respondent, the circumstances of this case are such that the respondent knew why he was stopped.

But this is not a case where the officer said nothing to the respondent. Immediately upon approaching the respondent, the officer demanded that he produce his licence, ownership and proof of insurance. Once this was accomplished, the officer asked him if he had had anything to drink that night. When the respondent replied that he had had a few beers, the officer asked when that was. P.C. MacKay did not say in words what he said at trial – that he detained the respondent for public safety reasons, with the intention of ensuring that he was a licensed driver with proper documentation, and assessing why he was driving in an unsafe manner – whether he was impaired by alcohol or drugs, or had a medical problem, or was just tired. But based on what he did say, in addition to what the respondent knew of his own driving, the respondent would necessarily have known precisely why he was detained.

From the beginning, the reason for the detention of the respondent was to stop the respondent’s unsafe driving and to give P.C. MacKay the opportunity to investigate the cause of it. One obvious potential cause was alcohol. The fact that the officer smelled alcohol in the car increased his suspicion that alcohol was the cause, and focused his attention on that possibility. It goes without saying that an arrest for impaired driving or some similar criminal offence, which might have been the ultimate outcome of the investigation from the beginning, was becoming more likely. But in no sense did the reason for detention change at this point. There was no obligation under s. 10(a) for the officer to communicate anything new to the respondent [when he asked him to get out of the car].

[32] In Borer, another summary conviction appeal, Ray, J. upheld the decision of Paciocco, J. (as he then was) that the accused had not proven on a balance of probabilities that her s. 10(a) rights had been violated when she was not explicitly told that she was being investigated for a drinking and driving offence after having initially been subject to a traffic stop under the Highway Traffic Act. At para. 5 of the summary conviction appeal decision, Ray J. cited the following passage from the decision of Paciocco J.:

As soon as the officer began to ask you questions about your alcohol consumption, how much you had to drink and where you had been, it certainly was evident to you that he was pulling you over not just for the purposes of the initial transaction. But that, in the course of this conversation, your response that you had been drinking changed the circumstances to one where you were potentially in jeopardy for alcohol driving offences. That would have been obvious to you.

I am not persuaded that the law requires him to be explicit about that, given the context of events – pulling you over for a Highway Traffic Act violation, then asking you routine questions about alcohol consumption, receiving an affirmative response. If this violation of s. 10(a) by not informing you of the change in the purpose of the detention, it is a very ephemeral breach, …

[33] In Osinski, the officer who pulled the motorist over did so because he suspected the motorist had been drinking based on the erratic way he was driving. The officer noticed the smell of alcohol coming from the driver’s breath, his watery eyes, his red flushed face, and his shaking body and hands. The officer immediately questioned the driver as to how much he had to drink and when he had had his last drink. The officer did not specifically tell the driver why he had pulled him over. The driver acknowledged having had two beers, the last being two hours earlier. Rahman J. acknowledged that there were two lines of authority as to whether an officer is obliged to positively inform an accused person of the reason for his or her detention or whether the requirements under s. 10(a) of the Charter can be met through a consideration of all of the circumstances, including whatever the officer said to the detainee. Rahman J. concluded that there was no breach of s. 10(a) rights. In doing so, he referenced the following quote from R. v. Clayton, 2017 ONCJ 199, 379 C.R.R. (2d) 11, at para. 18:

The section 10(a) question can also be summarily resolved. First, it is common knowledge that driving a vehicle on a public road is a highly regulated activity and motorists may be expected to be stopped with a view to determining their entitlement and capacity to drive: R. v. Weik, [2012] M.J. No. 181 (Man. Q.B.). Not only do police officers have the statutory authorization to determine a driver’s sobriety, they have a legal duty to do so: R. v. Orbanski, 2005 SCC 37 (S.C.C.). In my view, general statements and inquiries made by an investigating officer at the roadside will be a sufficient signal to the driver as to why he or she has been detained and will usually provide sufficient information about the detention to satisfy section 10(a) of the Charter. There is no need for a formal declaration as to the reason for the detention in a motor vehicle roadside investigation because it should be assumed that drivers will know they can be stopped and investigated to check license and registration, vehicle fitness and motorist sobriety.

[34] In Gardner, 2018 OCA, the police had been notified that a named individual was likely driving a green pickup truck while impaired. An officer drove around the neighbourhood looking for the vehicle. He saw a pickup truck approaching but could not decipher its colour. The officer stopped the vehicle, approached, and asked the driver to roll down his window and identify himself. The officer advised the driver that he was looking for an impaired driver. The officer could smell the odour of alcohol emanating from the vehicle. He asked the driver if he had been drinking. The driver responded that he had. Since there were passengers in the vehicle, the officer asked the driver to step out of the vehicle so that the officer could determine whether the smell of alcohol was coming from the driver’s breath. Once the driver was outside the vehicle, the officer could smell alcohol on his breath. The officer made a demand for a roadside breath sample. The Court of Appeal concluded, at para. 26, that there was no breach of the driver’s s. 10(a) Charter rights because:

… almost immediately upon stopping the respondent’s vehicle, Constable Lieverse advised the respondent that he was looking for an impaired driver. He then proceeded to ask questions of the respondent that were directly related to that purpose. There cannot have been any doubt in the respondent’s mind as to why his vehicle was stopped. Consequently, there is no basis for a finding that either the temporal or informational elements of the respondent’s s. 10(a) rights were breached: R. v. Roberts, 2018 ONCA 411, at para. 63.

[35] In all these cases, there was a finding of fact that the drivers of the vehicles would have known why they were being detained. Those findings were based in part on the admission that each driver made to the police officer that he or she had been drinking alcohol prior to being stopped and the officer’s obvious interest in then assessing the driver’s sobriety. Once the driver told the officer that he or she had been drinking, the driver knew that drinking and driving was on the officer’s radar and that anything further the officer asked or said could encompass an investigation into the driver’s sobriety. There could be no question in the driver’s mind that he or she was facing potential jeopardy for driving while impaired.

[36] That is not how communications went in the case at hand. Here, when Constable Cochrane asked the Respondent whether he had consumed any alcohol earlier, the Respondent denied that he had. Up to this point, the Respondent had been told by Constable Cochrane that he had been stopped because he had been speeding. The Respondent provided the documents requested by Constable Cochrane without difficulty. He answered the officer’s questions without, for the most part, looking at the officer or speaking directly to him, thus affording the officer minimal opportunity to assess the Respondent for signs of intoxication. The trial judge concluded, on the basis of all the evidence that, in the absence of a clear statement from Constable Cochrane as to why the Respondent was being detained, he could not find that the Respondent necessarily knew the reason for his detention and appreciated that it now included an investigation as to whether he was driving while impaired. That finding was open to the trial judge to make on the evidence in this case. Further in my analysis, however, I will come back to the point that the Respondent lied to Constable Cochrane about whether he had consumed any alcohol.

[37] Both at trial and in this court, the Respondent relied heavily on the analysis of s. 10(a) rights provided in R. v. Mueller, 2018 ONSC 2734, 30 M.V.R. (7th) 129, to support a finding that there was a breach of the Respondent’s s. 10(a) rights. At para. 33 of Mueller, Schreck J. stated that an evaluation of a claim regarding a s. 10(a) Charter violation requires consideration of the following:

(1) Did the police impart information to the accused as to the reasons for his detention?

(2) If so, was the information imparted by the police, when considered in all of the circumstances, sufficient to allow the accused to understand why he was being detained and the extent of his jeopardy such that he is able to make meaningful decisions about whether to submit to the detention and whether and how to exercise his right to counsel?

(3) In considering this question, a court should not assume that the accused had engaged in the wrongdoing for which he is being investigated.

[38] There is no question that the Mueller and Kumarasamy decisions, both penned by eminent jurists, offer different perspectives about the scope of a detainee’s s. 10(a) Charter rights.

[39] In Kumarasamy, Dambrot J. implies that, even if the police say nothing to the driver about the reason for his or her detention, there is no s. 10(a) breach if the driver must have understood the reason for the detention based on all of the circumstances. Furthermore, in assessing those circumstances, the court can consider what the driver knew about his or her own activities leading up to the detention, such as the consumption of alcohol and erratic driving. Finally, when the police stop a vehicle to investigate unsafe driving, it is understood by everyone that the police will be trying to determine the cause of such unsafe driving – including whether the driver was impaired by alcohol. The reason for the stop and the nature of the investigation does not change when it becomes apparent to the police that alcohol may have played a role.

[40] By contrast, in Mueller, Schreck J. insists that the police are obliged to advise the driver, in some fashion, about the reason for the detention; it is not enough that the driver understand the reason from all of the circumstances. If the driver is initially stopped for offences under the Highway Traffic Act but then is further detained while the police are investigating potential drinking and driving offences under the Code, the police must advise the driver of the change in jeopardy. Finally, in considering all the circumstances when assessing whether there has been a s. 10(a) violation, the court cannot include knowledge that the driver would have about his or her activities that could form the actus reus of charges.

[41] Having found that there was evidence upon which the trial judge in this case could rely to support his finding of fact that the Respondent would not necessarily have understood why he was being detained, I see no need to choose which line of authorities I prefer on this issue. Even if the trial judge had followed the approach adopted in Kumarasamy, he would have found a breach of the Respondent’s s. 10(a) rights. However, I will come back to these two approaches to defining s. 10(a) rights in my analysis under s. 24(2) of the Charter.

[42] The Appellant has failed to establish any error of law committed by the trial judge regarding a breach of the Respondent’s s. 10(a) Charter rights.

Issue # 2: The Section 10(b) Informational Breach

[43] Section 10(b) of the Charter states that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”. In assessing whether the informational component of the Respondent’s s. 10(b) rights was violated, the trial judge started by referring to the leading case of R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 2, where the Supreme Court of Canada stated:

The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) [of the Charter] seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

[44] The Appellant argues that, in purporting to apply this standard of compliance, the trial judge erred in: (1) misapprehending the evidence as to what occupied Constable Cochrane’s time between the Respondent’s arrest at 2:46 a.m. and Constable Cochrane reading him his rights to counsel at 2:58 a.m.; and (2) not taking into consideration whether concerns for public safety justified the 12-minute delay. There is no merit to these arguments.

[45] The trial judge accurately summarized Constable Cochrane’s evidence that between 2:46 a.m. and 2:58 a.m., he was occupied in speaking with the two passengers in the Respondent’s vehicle, advising them to exit the vehicle and make their own way home, speaking with Constable Budzinski when she arrived on scene, and completing some administrative paperwork back in his own vehicle – all before he advised the Respondent of his right to counsel. The trial judge made no error in determining, based on all the evidence, that there were no concerns for officer safety that justified the 12-minute delay in advising the Respondent of his rights.

[46] As to concerns for public safety, Constable Cochrane provided no evidence that any such concerns existed. There was no other evidence to the effect that Constable Cochrane needed to address such concerns prior to advising the Respondent of his rights. It is noteworthy that, at trial, the issue of public safety was not raised or argued by Crown counsel. It was officer safety that was the focus of the Crown’s submissions. Consequently, there was no reason why the trial judge should have addressed the issue of public safety concerns in his reasons.

[47] The Appellant has failed to establish any error of law committed by the trial judge in concluding that the informational component of the Respondent’s s. 10(b) rights was breached.

Issue #3: The Section 10(b) Implementational Breach

[48] In assessing whether the implementational component of the Respondent’s s. 10(b) rights was violated, the trial judge appropriately started by referring to the leading case of R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429. In Willier, McLachlin C.J. and Charron J. set out key principles relating to the right to counsel of one’s choice under s. 10(b) of the Charter and the corresponding obligations on the police to facilitate that choice. The principles are the following:

• “While the right to choose counsel is certainly one facet of the guarantee under s. 10(b), the Charter does not guarantee detainees an absolute right to retain and instruct a particular counsel at the initial investigative stage regardless of the circumstances.” (para. 24)

• “The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society” (para. 34, quoting Lamer J., as he then was, in R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368, at p. 385).

• “… s. 10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s. 10(b) is to provide detainees an opportunity to mitigate this legal disadvantage.” (para. 28)

• “[The implementational duties of the police] require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel … What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole.” (para. 33)

• “Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black [R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138]. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended …” (para. 35)

[49] The trial judge reiterated these principles in his reasons for judgment: Gardner, 2019 OCJ, at pp. 33-34. However, he then went on to say, at p. 35, that: “where the police choose to maintain exclusive control over the means by which a detainee can locate counsel of choice, the police will be expected to act as diligently as a detainee who wishes to find and contact a lawyer”, taking guidance from such cases as R. v. Ali, 2018 ONCJ 203, 29 M.V.R. (7th) 143, at para. 59; R. v. Manuel, 2018 ONCJ 381, 29 M.V.R. (7th) 288, at paras. 35-38; R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, at para. 43; and R. v. Panigas, 2014 ONCJ 797, 305 C.R.R. (2d) 18, at para. 52. The trial judge went on to acknowledge that this does not mean that the police are obliged to do everything and anything that detainees might do for themselves to contact counsel; the standard is whether the police took all steps that were reasonable in the circumstances. Nevertheless, in my view, this notion that, when the police control the means of contact with counsel, they have an expanded obligation to facilitate access to counsel over and above the requirement of reasonable diligence in all the circumstances, appears to inform the trial judge’s analysis of Constable Cochrane’s obligations in this case.

[50] There have been several summary conviction appeal courts that have rejected this notion of an enhanced “minimum standard”: see R. v. Persaud, 2020 ONSC 3413, 464 C.R.R. (2d) 138, at paras. 89-101; R. v. Wijesuriya, 2020 ONSC 253, 459 C.R.R. (2d) 235, at paras. 40, 52,58-59, 73; R. v. Blackett, [2006] O.T.C. 689, 36 M.V.R. (5th) 223 (Sup. Ct.), at paras. 23-24; R. v. Casselman, [2005] O.J. No. 5484 (Sup. Ct.), at para. 16; and R. v. Jurewicz (2001), 13 M.V.R. (4th) 275, 49 W.C.B. (2d) 471 (Ont. S.C.), at para. 23. I join their ranks.

[51] In my view, the assertion that police officers are obliged to meet some elevated standard of conduct when they are the ones controlling the telephone, initiating the calls to counsel, and possibly leaving messages with call centres or on answering machines, is contrary to jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal: see Willier, at paras. 24, 28, 33-35; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, 23 C.R.R. (2d) 193, at p. 192; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at paras. 17-19; R. v. Canavan, 2019 ONCA 567, 46 M.V.R. (7th) 181, at paras. 16-17; R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 175 O.A.C. 54, 178 C.C.C. (3d) 23 (C.A.), at para. 6; and R. v. Littleford (2001), 2001 CanLII 8559 (ON CA), 147 O.A.C. 123, 86 C.R.R. (2d) 148 (C.A.), at para. 8.

[52] The finding of facts that the trial judge made respecting the implementational component of s. 10(b) in this case bear repeating:

• Once at the station, the Respondent indicated that he wanted to consult Kimberly Hyslop.

• Constable Cochrane called Ms. Hyslop at 3:28 a.m. but got no answer. He left a message on voicemail saying that the Respondent was in custody and wanted a call back. The Respondent indicated that he did not want to speak to another lawyer. The Respondent was placed in a temporary holding cell awaiting a call back from Ms. Hyslop.

• At 3:43 a.m., Constable Cochrane again called Ms. Hyslop and received no answer. He did not leave a further message because he had already left one. Constable Cochrane asked the Respondent if he had another lawyer to call, which he did not.

• Constable Cochrane advised the Respondent that they could wait a bit longer if the Respondent wished but, ultimately, breath samples must be taken as soon as practicable, and the Respondent had the right to call a lawyer before that happened. Constable Cochrane offered to call another lawyer if the Respondent wished.

• In response to this offer, the Respondent came out of the holding cell and reviewed the list of defence counsel kept at cell block. He selected Elena Davies and indicated that if she did not respond, he would try Kristen Robbins.

• Constable Cochrane called Elena Davies at 3:47 a.m. but received no answer. He did not leave a message because he understood that the Respondent wanted Ms. Hyslop as his lawyer and otherwise just wanted to speak to an actual lawyer.

• Constable Cochrane called and reached Kristen Robbins at 3:48 a.m. The Respondent spoke to Ms. Robbins from 3:49 a.m. to sometime before 4:12 a.m. He indicated that he was content with the call. He did not ask to speak with any other lawyer.

[53] The trial judge focused on the fact that, following the second call to Ms. Hyslop, Constable Cochrane did not precisely define for the Respondent the timeline to which he was referring when he said that they could wait a bit longer for a call back, if the Respondent wished. The trial judge found that the message Constable Cochrane gave to the Respondent was that they were not going to wait “indefinitely” or “for hours” for a call back because breath samples had to be obtained as soon as practicable. This message to the Respondent was in keeping with the obligations of the police under s. 10(b), as explained in jurisprudence from the Supreme Court of Canada.

[54] The trial judge went on to criticize Constable Cochrane for not being clear in his own mind as to how long he would wait for a call back from Ms. Hyslop before telling the Respondent that he must consider other options for getting legal advice, had the Respondent insisted on waiting for a call back. The trial judge stated at p. 37:

In my view, this is highly problematic. The effect of … this is that Mr. Gardner was denied the information he required to make a meaningful decision, in other words, to wait a specified period of time longer where the police could not compel his participation any further, as opposed to simply choosing to speak with new counsel. What Mr. Gardner was told was that the officer was not going to wait all morning, that the samples were going to be taken, but that his right to speak to counsel needed to be exercised first. The clear implication of the officer’s approach was that he needed to move forward with new counsel. It is unlikely in these circumstances that Mr. Gardner understood that his right to speak with his chosen counsel could still be facilitated. The conditions for such an outcome were not made clear to him.

[55] In essence the trial judge inferred that, since Constable Cochrane did not specifically define for the Respondent what waiting “a bit longer” for a call back from Ms. Hyslop actually meant when contrasted with waiting “indefinitely”, “for hours”, or “all morning”, the Respondent was led to believe that he needed to move forward right away with new counsel. With respect, this was not a reasonable inference that could be drawn from the evidence.

[56] It is important to remember the other factual findings made by the trial judge. Prior to his moving on to consider other lawyers, the Respondent knew that: (1) Constable Cochrane had called Ms. Hyslop’s number twice, fifteen minutes apart, and had left a message; (2) Ms. Hyslop had not called back; (3) it was approximately 3:45 a.m.; (4) Constable Cochrane was willing to give the Respondent longer to wait for a call back; (5) Constable Cochrane was also willing to call any other lawyer the Respondent wished; (6) the Respondent was entitled to legal advice before he submitted to a breathalyzer test; and (7) that breathalyzer test was supposed to happen as soon as practicable.

[57] It must be noted that the Respondent chose not to testify on the voir dire. Therefore, there is no direct evidence as to what he was thinking when he came out of the holding cell to look at the list of defence counsel posted at cell block. Based on the circumstantial evidence, there were several possible reasons why the Respondent decided to do so at that time. However, it could not be inferred that he did so because Constable Cochrane had led him to believe that he could not wait longer for a call back from Ms. Hyslop. The unchallenged evidence of Constable Cochrane was that he had specifically told the Respondent that they could wait longer for a call back. The trial judge accepted that evidence.

[58] Furthermore, I have not been referred to any caselaw where higher courts have said that there is an obligation on the police to define for an accused precisely how long they are prepared to wait for a call back before suggesting to the accused that he or she call another lawyer or consult duty counsel. The police are obliged to afford an accused a reasonable opportunity to speak to counsel of choice – what is reasonable in a particular case will depend on all of the circumstances. Constable Cochrane had not yet told the Respondent that time was up and that he needed to choose another lawyer or consult duty counsel. After having been told that he could wait a bit longer for Ms. Hyslop to call back, the Respondent had a number of options. He could have chosen to wait longer. He could have asked how much longer he could wait. Or, he could have decided, for any number of reasons, that he would try to connect with other defence counsel. The Respondent did not say anything to Constable Cochrane at the time to indicate what he was thinking. Instead, he exited the cell and went to look at the list of defence counsel.

[59] One principle not referenced by the trial judge in this portion of his reasons is that an accused person is obliged to exercise reasonable diligence in seeking legal advice: Willier, at para. 33; Richfield, at paras. 7-12; McCrimmon, at para. 18; Persaud, at para. 112; R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 65; R. v. Pileggi, 2021 ONCA 4, at para. 91; and R. v. Wilson, 2016 ONCJ 25, 95 M.V.R. (6th) 165, at para. 24. Included in this concept is the expectation that the accused person will communicate his or her wishes in terms of wanting to wait for a particular lawyer to call back, not being willing to speak to another lawyer, and not being satisfied with the legal advice received from another lawyer.

[60] In Willier, the accused had been unable to reach his lawyer of choice and accepted the police’s offer to put him in touch with duty counsel. Subsequently, he alleged a violation of his s. 10(b) Charter rights to counsel of choice, alleging that the advice he received from duty counsel was insufficient to satisfy his right to legal counsel. McLachlin C.J. and Charron J. stated at para. 42:

… s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier’s conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity.

[61] The evidence here is that the Respondent did not ask Constable Cochrane how much longer he could wait for a call back. He came out of the holding cell on his own accord. He reviewed the list of lawyers that was kept at cell block and chose two other lawyers from whom he was willing to seek legal advice. He provided instructions to Constable Cochrane about the order of preference. He spoke to Kristen Robbins for up to 20 minutes. Finally, he advised Constable Cochrane that he was satisfied with the advice that he had received. He did not advise the breathalyzer technician that he was dissatisfied with the legal advice he had received and still wished to speak to Ms. Hyslop. The Respondent was not a passive participant in this process.

[62] Furthermore, an important general principle relating to Charter applications that the trial judge did not acknowledge is that the onus is on an accused person to prove a breach of his or her Charter rights on a balance of probabilities. The trial judge’s reasons relating to the implementational component of s. 10(b) of the Charter places the onus on the Crown to establish that the time the police afforded to the Respondent to contact his lawyer of choice was reasonable rather than putting the onus on the Respondent to establish on a balance of probabilities that he was not afforded reasonable opportunity to reach his chosen lawyer.

[63] The importance of identifying who has the onus of proof was brought home in Littleford. In that case, after being arrested for impaired driving and advised of his right to counsel, the accused indicated that he had his own lawyer whom he wanted to consult. The accused provided the arresting officer with his lawyer’s office number. The officer called the number. There was no answer. The officer left a message. This was at 12:53 a.m. Without being asked to do so by the accused, the officer then called and left a message for duty counsel and received a call back shortly thereafter. The officer explained to duty counsel that the accused did not wish to speak with duty counsel as he believed they were only students. He told duty counsel that the accused had been unable to contact his own personal lawyer. The officer then told the accused that duty counsel was on the phone for him. The officer took the accused into a booth where the accused spoke to duty counsel for a little while. The accused made no further requests to contact his own lawyer and did not complain after speaking to duty counsel, but voluntarily gave breath samples at 1:29 a.m.

[64] The trial judge and the summary appeal court judge both found that there had been no breach of the accused’s s. 10(b) Charter rights. The Ontario Court of Appeal agreed, stating at para. 8:

On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant’s position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The Trial Judge made a finding that speaking to duty counsel “seemed to satisfy him at the time”. There is no basis on the record to disturb that finding.

[65] Additionally, in the case at hand, although the trial judge at p. 36 acknowledged that in cases of driving over the legal limit the court should consider the time pressures on police officers to ensure that an accused has the opportunity to obtain legal advice before being asked to submit to a breathalyzer test, the trial judge did not consider this factor during his analysis respecting the implementational component of the Respondent’s s. 10(b) rights. That it was a relevant consideration was apparent in that one argument raised by the Defence at trial was that the Respondent’s breath samples were not taken as soon as practicable after the time when the offence was alleged to have been committed, as required at the time under s. 258(1)(c)(ii) of the Code (since repealed). As stated in Smith, at p. 135, Charter rights must be exercised in a way that is reconcilable with the needs of society. One need of society is for there to be a fair and efficient way in which to obtain and process breathalyzer evidence in the discouragingly large number of drinking and driving cases being processed by the police and the courts.

[66] In conclusion, the trial judge erred at law in his analysis of the implementational component of the Respondent’s s. 10(b) Charter rights in: (1) reversing the onus of proof so that it was on the Crown and not the Respondent; (2) ignoring the requirement of reasonable diligence on the part of the accused in exercising his s. 10(b) rights; (3) placing an elevated obligation on the police to advise the accused in advance of how long they were prepared to wait for a call back from counsel of choice; and, considering the unchallenged evidence of Constable Cochrane as to what he had told the Respondent (4) drawing an unreasonable inference as to why the Respondent tried to reach counsel, other than Ms. Hyslop, when he did rather than waiting longer for a call back.

[67] This results in my being required to assess whether the implementational component of the Respondent’s s. 10(b) was breached. I respectfully disagree with the trial judge’s conclusion in this regard. Applying Willier, Littleford, and the other jurisprudence referred to above, I find that the Respondent has not met his onus of establishing on a balance of probabilities that the police failed to implement his s. 10(b) rights as required under the Charter. That conclusion is based on the following findings of fact made by the trial judge.

[68] At 3:28 a.m., as soon as the Respondent had been processed at cell block, Constable Cochrane called Ms. Hyslop at the Respondent’s request and left a message. When she had not returned the call within 15 minutes, Constable Cochrane called Ms. Hyslop again and again received no answer. Constable Cochrane kept the Respondent informed as to the efforts he was taking to reach Ms. Hyslop. There was no evidence that Constable Cochrane was referred to any other number where he could reach Ms. Hyslop – either from her message or from the Respondent. Constable Cochrane told the Respondent that they could wait a bit longer for a call back from Ms. Hyslop, though they could not wait indefinitely, for hours, or all morning. Constable Cochrane also explained to the Respondent that he needed to have legal advice before he submitted to a breathalyzer test but also the requirement for the police to obtain the breath samples as soon as practicable. Constable Cochrane offered to call another lawyer, if the Respondent wished.

[69] The Respondent did not say to Constable Cochrane that he wanted to wait longer for a call back from Ms. Hyslop. The Respondent, for reasons that were not put into evidence on the voir dire, decided to come out of the holding cell and look at the list of defence counsel kept at cell block. The Respondent chose two other lawyers and told Constable Cochrane the order in which he wanted him to call them. Constable Cochrane could not reach the first lawyer but managed to reach the second, Ms. Robbins. The Respondent had a conversation of some length with Ms. Robbins. He advised Constable Cochrane following this conversation that he was satisfied with the legal advice received. He gave the same message to the breathalyzer technician. At no time did the Respondent indicate that he was dissatisfied because he had to speak to Ms. Robbins instead of Ms. Hyslop. Prior to providing breath samples, the Respondent did not ask again either Constable Cochrane or the breathalyzer technician to attempt to contact Ms. Hyslop.

Issue # 4: The Application of Section 24(2)

[70] In arriving at his decision to exclude the breathalyzer results under s. 24(2) of the Charter, the trial judge relied on all three breaches that he found under ss. 10(a) and (b) of the Charter. I have determined that the trial judge erred in finding a breach of the implementational component of the Respondent’s s. 10(b) right to counsel. Because the trial judge erred in law in assessing the nature and extent of the Charter breaches, his conclusion to exclude the evidence does not attract appellate deference. It falls on this court to consider that issue afresh: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 73; R. v. Le, 2019 SCC 34, at para. 138; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 129; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 42; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 162, 166; and R. v. Adler, 2020 ONCA 246, 388 C.C.C. (3d) 114, at para. 40.

[71] The starting point is that the evidence which the Respondent seeks to have excluded must be obtained “in a manner” that infringed one of the Respondent’s Charter rights or freedoms. The connection may be temporal, causal, contextual or a combination of the three: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; Manchulenko, at paras. 72-73; and Pileggi, at paras. 98-101. In my view, there was at least a temporal connection between both breaches and the collection of the breath samples at the police station: see Thompson, at para. 79. More importantly, however, was the connection between Constable Cochrane asking the Respondent to get out of his vehicle so that he could smell his breath (without the Respondent understanding why he was being directed to exit the vehicle) and the Respondent ultimately being asked to provide breath samples at the station. Constable Cochrane acknowledged that, in his mind, he did not have grounds to make an ASD demand of the Respondent until the officer had isolated him from the other passengers in the vehicle and had detected the odour of alcohol on the Respondent’s breath. The fail reading from the ASD then gave Constable Cochrane grounds to arrest the Respondent on the over 80 charge and to ask him to undergo a breathalyzer test at the station.

[72] Although it is arguable that the s. 10(b) breach was rectified once the Respondent was advised of his rights and had the opportunity to speak to counsel, the same “fresh start” argument[^3] does not apply to the s. 10(a) breach because Constable Cochrane was clear that, prior to the Respondent exiting his vehicle and answering some questions, the officer did not believe that he had grounds for an ASD demand. Thus, the breach of the Respondent’s 10(a) rights was directly linked to the ASD test which, in turn provided the basis for the breathalyzer tests at the station. It was one chain of events.

[73] In R. v. Muddei, 2021 ONCA 200, at para. 75, Doherty J.A. reiterated the focus of a s. 24(2) analysis:

The s. 24(2) analysis requires the exclusion of the evidence if its admission would, in all the circumstances, bring the administration of justice into disrepute. The focus of the inquiry is on the long-term impact of the admission of constitutionally tainted evidence on the repute of the justice system in the broad sense. The accused carries the onus to demonstrate the evidence should be excluded: Grant, at paras. 67-70.

See also Le, at paras. 139-140.

[74] I will proceed with the three lines of inquiry mandated under Grant, at paras. 71-86.

Seriousness of the Charter-infringing state conduct

[75] It is a serious issue when a detained motorist does not know why he is being detained and does not understand that he is facing potential jeopardy under the Code, and not just under the Highway Traffic Act. However, the seriousness of that lack of understanding does not necessarily translate into the seriousness of the Charter-infringing conduct on the part of the police officer that contributed to that lack of understanding. As reviewed above, there is a marked difference of opinion between well-respected jurists as to what, exactly, a police officer at a traffic stop must say to a motorist before asking the motorist to exit the vehicle in circumstances where, prior to the request being made, the officer has detected the odour of alcohol in the vehicle and has asked the motorist if he has been drinking alcohol.

[76] It is understandable that police officers are unclear as to the extent of their obligations when jurists in numerous cases have provided divergent guidelines. As Doherty J.A. explained in Muddei, at para. 77: “[the state] conduct will fall along a continuum of blameworthiness ranging from a deliberate breach through various levels of negligence to a breach committed in good faith and reasonably. The more blameworthy the conduct, the stronger the argument for excluding the evidence: Grant, at paras. 72-75”. See also Thompson, at para. 83.

[77] In my view, Constable Cochrane’s conduct in asking the Respondent to exit his vehicle without first explaining that he was now investigating him for drinking and driving was closer to the end of the continuum reflective of a breach committed in good faith and reasonably. It was not unreasonable for Constable Cochrane to assume that the Respondent would appreciate Constable Cochrane was concerned that he may have been drinking and driving. I cannot find that Constable Cochrane was deliberately or even negligently breaching the Respondent’s s. 10(a) Charter rights when there are examples from all levels of court where comparable behaviour on the part of police officers has been found not to amount to a breach of a motorist’s Charter rights.

[78] Another factor which I take into account in considering the seriousness of the breach is that the only reason why Constable Cochrane felt he did not have sufficient grounds to make an ASD demand while the Respondent was still in the vehicle was because the Respondent lied to the officer about whether he had consumed alcohol earlier in the night. Constable Cochrane was simply exercising the powers given to him under s. 48(1) of the Highway Traffic Act to the effect that police officers are authorized not only to stop a motorist for the purpose of determining whether or not there is evidence to justify making a demand under s. 254 [now s. 320.27] of the Code, but also to take reasonable steps to determine whether there is evidence to justify making either a demand for a breath sample for a roadside screening test or a breathalyzer demand: R. v. Smith (1996), 1996 CanLII 1074 (ON CA), 28 O.R. (3d) 75, 105 C.C.C. (3d) 58, at p. 73; R. v. Troester (2000), 2000 CanLII 4197 (ON CA), 133 O.A.C. 120, 146 C.C.C. (3d) 445 (C.A.), at paras. 8-10. Had the Respondent answered honestly about his consumption of alcohol, Constable Cochrane could have moved directly to make an ASD demand, and there would have been no breach of the Respondent’s s. 10(a) rights. This observation does not ignore the right of a suspect or accused person to remain silent when questioned by the police; however, the right to remain silent so as not to incriminate oneself is not so expansive as to include a constitutional right to lie to the police.

[79] The trial judge found that the s. 10(a) breach in this case was “particularly troubling, given its prevalence in the drinking and driving cases [he has] heard in this jurisdiction, and given that it is a Charter violation that so infrequently receives redress under s. 24(2) of the Charter”. In my view, the trial judge could not rely on a bald statement of this nature as part of the justification for him to conclude that the breach he identified in this case was particularly serious. The Crown had no way of knowing to which cases the trial judge was referring. The Crown had no opportunity to analyze the facts of those cases to distinguish them from the case at hand, if appropriate. Contrast the trial judge’s statement in this case with the same message given by Schreck J. in R. v. Sandhu, 2017 ONCJ 226, 378 C.R.R. (2d) 306, at paras. 8-11 and M. Jamal J.A. in Thompson, at para. 93, where the judges referred to specific cases where similar situations had arisen in the jurisdiction to justify their conclusions that there was a systemic problem.

[80] It was open to the trial judge to highlight how frequently s. 10(a) obligations are the subject of Charter applications in the courts, to offer his guidance on the nature of such obligations, and to opine on the need for clear direction from higher courts to reduce uncertainty in this area. However, he could not make the leap he did from his personal experience presiding over such cases, in regard to which no details were provided, to his finding of seriousness in the circumstances of this case. As stated by the Ontario Court of Appeal in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at para. 51:

The only facts a trier of fact may consider in making his or her decision in a case is the evidence adduced in the courtroom. Facts that satisfy the criteria for judicial notice are the only exception to that rule: Paciocco, at p. 573; Justice David Watt, Watt’s Manual of Criminal Evidence 2020 (Toronto: Thomson Reuters, 2020), at §14.01. As this court cautioned in R. v. Potts (1982), 1982 CanLii 1751 (ONCA), 36 O.R. (2d) 195 (C.A.), at p. 204, leave to appeal refused, [1982] S.C.C.A. No. 301, “a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more.” Accordingly, unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge.

[81] Although the wording in the relevant part of the trial judge’s reasons is a little vague, I am interpreting his findings as being that the Respondent did not understand why he was being detained and the extent of the jeopardy he was facing. This means that Constable Cochrane did not do what was needed to ensure that the Respondent had the necessary understanding. I agree with the trial judge that this was more than a technical breach but, at the same time, I find that in all the circumstances of this case, it was a minor breach. The level of seriousness of the breach supports inclusion of the evidence.

[82] Respecting the breach of the informational component of the Respondent’s s. 10(b) Charter rights, I agree with the trial judge that, although Constable Cochrane was not acting deliberately to defeat the Respondent’s rights, he was acting negligently. He should have realized the importance of cautioning the Respondent and advising him of his rights to counsel at the earliest opportunity which, in the circumstances of this case, was immediately following arrest. This was a clear departure from what is expected of officers following the arrest of suspects. As the Court of Appeal has emphasized in recent case law, the law around the informational component of s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and to carry them out: see Thompson, at para. 90, quoting R. v. Noel, 2019 ONCA 860, 158 W.C.B. (2d) 366, at para. 34. The moderate seriousness of this unnecessary breach supports exclusion of the evidence, but only to a moderate extent.

The impact of the breach on the Charter-protected interests of the accused

[83] Section 10(a) of the Charter is intended to protect the accused’s right to decide whether to submit to the detention or arrest and to complement the accused’s right to counsel. An accused can only exercise his or her right to counsel in a meaningful way if he or she knows the reasons for the detention or the arrest. There is no question that, if an accused person is unaware of the jeopardy he or she is facing upon detention or arrest and, at this early step in proceedings has not yet had the benefit of legal counsel, the accused person is in a vulnerable position and has to rely on his or her own judgment and assessment of circumstances in deciding how to act so as to protect himself or herself from arbitrary arrest or detention and from self-incrimination.

[84] The trial judge stated: “I cannot say that, had Mr. Gardner been aware of the reason for his detention and his now changed jeopardy, he would have answered the police officer’s questions in the circumstances”: Gardner, 2019 OCJ, at p. 39. I take this finding to be that the Crown had not satisfied the trial judge that, had Mr. Gardner been aware that he was detained on a suspicion of drinking and driving, he would have responded to Constable Cochrane’s questions about where he had been and where he was going that night. Although that is not the conclusion that I would have drawn in all the circumstances, I accept that finding of fact by the trial judge.

[85] Although the trial judge did not address the issue, there was also evidence that supported the conclusion that, had the Respondent been promptly advised of the reason for his detention and had refused to answer any questions posed by Constable Cochrane, the officer likely would have pursued other avenues as part of his drinking and driving investigation. He likely would have taken the Respondent’s refusal to answer any further questions or speak to him as being an additional factor in considering whether he was justified in making an ASD demand or in conducting other sobriety tests. It is highly unlikely that Constable Cochrane, at approximately 2:30 a.m., would have allowed the Respondent to be on his way without doing an ASD test, after the officer had observed the Respondent’s driving, had seen the glassy and far-away look in his eyes, and had detected a strong odour of alcohol coming from the vehicle. For him to have done so would have been an abrogation of his duties regarding public safety. Thus, I cannot conclude that the violation of the Respondent’s s. 10(a) rights ultimately had any significant negative impact on his interest in not incriminating himself.

[86] In terms of knowing the jeopardy the Respondent was facing for the purpose of making decisions regarding legal advice and counsel, once the Respondent was out of the vehicle, only a minute or two passed before Constable Cochrane made an ASD demand. That alerted the Respondent that he was under investigation for drinking and driving. At that point, the Respondent had all the information he required to properly instruct counsel, and the slight delay in his being advised of the reason for his detention had no impact on being able to get appropriate legal advice.

[87] Respecting the breach of the informational component of the Respondent’s s. 10(b) rights, I conclude that the impact was minimal. After Constable Cochrane arrested the Respondent, he left him alone in the back of the cruiser while he attended to other matters. As the trial judge found, this would have had a negative psychological impact on the Respondent. However, Constable Cochrane did not engage in any conversation with the Respondent. He did not elicit any information or admissions from the Respondent. Constable Cochrane offered several reasons why, even had the Respondent been advised of his right to counsel immediately upon arrest and had indicated he wished to speak to counsel while in the back of the police cruiser, he would not have been able to do so until he reached the station. The Respondent’s right to counsel, which exists to protect his right to remain silent and not to incriminate himself, was not negatively impacted as a result of the delay of 12 minutes prior to Constable Cochrane reading the Respondent his rights to counsel and the cautions: see Thompson, at para. 100; Pileggi, at para. 120; Karafa, at para.87; and Karst, at para. 26.

[88] I have not been persuaded that the impact of the two breaches on the Respondent’s Charter-protected interests was significant. The impact does not support exclusion of the breathalyzer evidence.

Society’s interest in an adjudication on the merits

[89] In Le, the Supreme Court of Canada, in explaining the interaction of the three inquiries mandated under Grant, stated at para. 142:

The third line of inquiry becomes particularly important where one, but not both, of the two inquiries pull toward the exclusion of the evidence. Where the first and second inquiries, taken together, make a strong case for exclusion, the third inquiry will seldom if ever tip the balance in favour of admissibility (Paterson, at para. 56). Conversely, if the first two inquiries together reveal weaker support for the exclusion of the evidence, the third inquiry will often confirm that the administration of justice would not be brought into disrepute by admitting the evidence.

[90] In cases where drinking and driving is alleged, there is a very strong societal interest in having a trial on the merits. For decades, a concerted effort has been mounted to stop people from driving while intoxicated. In the domain of criminal law, there is now an entire part of the Code (Part VIII.1) devoted to offences relating to conveyances that was enacted in 2018. These new provisions reflect how determined Canadians are to eradicate the carnage done on our roads by impaired drivers. There is very little tolerance in society to see those charged with drinking and driving offences avoid criminal responsibility where there is clear evidence of guilt. Thus, for the admission of breathalyzer evidence to likely bring the administration of justice into disrepute, there must be a finding that the breach of one or more Charter rights was truly serious and/or that the impact of that breach or those breaches was truly significant: see Karst, at para. 27.

[91] The breathalyzer evidence is critical in this case in regard to both the over 80 and the impaired driving charges. As explained by the trial judge, in the circumstances of this case, the exclusion of the breathalyzer evidence necessarily results in an acquittal on both counts: Gardner, 2019 OCJ, at pp. 50-51.

[92] In addition to being essential evidence, the breathalyzer results are highly relevant and reliable. As well, the taking of breath samples is minimally intrusive: Grant, at para. 111; R. v. Wilding, 2007 ONCA 853, 233 O.A.C. 47, at para. 8; Manchulenko, at para. 100; R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224, at paras. 29-32.

[93] It is particularly in regard to the long-term impact on the repute of the justice system that the circumstance of the Respondent lying to Constable Cochrane about not having consumed alcohol would draw attention. The public would have a difficult time understanding why the breathalyzer results for the Respondent would be excluded, resulting in his acquittal, whereas the identical test results for an accused person in identical circumstances, but who did not lie to the police, would be admitted in evidence, resulting in that person’s conviction. Most reasonable people with an understanding of Charter values and the importance of the rule of law would have trouble accepting that outcome and would question the justice system that allowed it.

[94] Balancing the considerations under the three lines of inquiry mandated by Grant, I conclude that, although the Respondent established that there was a breach of his s. 10(a) Charter rights and of the informational component of his s. 10(b) Charter rights, he has not established on a balance of probabilities that the admission of the breathalyzer evidence in these proceedings would bring the administration of justice into disrepute.

Disposition

[95] The appeal is allowed. Based on the authority given to a summary conviction appeals court under ss. 813(b)(i), 822(1), and 686(4)(b)(ii) of the Code:

• the decision of Brown J. regarding the over 80 charge is set aside;

• a conviction is entered against the Respondent respecting the offence of over 80; and

• a date may be set for sentencing through the office of the trial coordinator.

Aitken J.

Released: May 25, 2021

COURT FILE NO.: 18-A13093

DATE: 20210525

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Appellant

– and –

TAYLOR GARDNER

Respondent

SUMMARY CONVICTION APPEAL

REASONS FOR JUDGMENT

Aitken J.

Released: May 25, 2021

[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^2]: R.S.O. 1990, c. H.8.

[^3]: See Manchulenko, at paras. 62-78; R. v. Karafa, 2014 ONSC 2901, 311 C.R.R. (2d) 30, at paras. 93-100; and R. v. Karst, [2009] O.J. No. 4974, 90 M.V.R. (5th) 95 (Sup. Ct.), at paras. 16-19 for discussions of the “fresh start” concept.