COURT FILE NO.: CR-20-00000181-00

DATE: 2021 07 21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Patrick Quilty, for the Crown/ Respondent

• and -

RAMANDIP SEERA

David Locke and Glen Henderson, for the Accused/ Applicant

HEARD: June 2 and 3, 2021

REASONS FOR JUDGMENT

Dennison J.

Contents

A. Introduction. - 1 -

B. Alleged Charter Breaches Prior to the Breath Test - 3 -

Civilian Observations. - 4 -

The Dispatch Call - 4 -

The Applicant’s Arrest for Impaired Care and Control - 5 -

The Search Incident to Arrest - 9 -

At the Station. - 13 -

C. Assessing the Alleged Charter Breaches. - 18 -

Issue #1: Did PC Singh Violate the Applicant’s ss. 10(a) & 10(b) Charter Rights before the Applicant was Arrested?. - 19 -

Position of the Parties. - 19 -

Analysis. - 20 -

Issue #2: Did PC Singh have Reasonable Grounds to Arrest the Applicant for Impaired Care and Control of a Motor Vehicle?. - 25 -

Position of the Parties. - 25 -

Analysis. - 27 -

Issue #3: Was the Search Incident to Arrest Lawful?. - 38 -

Issue #4: Did PC Singh Violate the Applicant’s s. 10 (b) Rights after the Applicant’s Arrest for Impaired Care and Control?. - 38 -

Position of the Parties. - 38 -

Analysis. - 39 -

Issue #5: Did PC Singh Violate the Applicant’s s. 10(b) Rights at the Police Station? - 43 -

Position of the Parties. - 43 -

Analysis. - 44 -

Issue #6: Did DC Schembri Violate the Applicant’s s. 10(b) Charter Rights?. - 49 -

Position of the Parties. - 49 -

Relevant Facts. - 50 -

Analysis. - 51 -

D. Should the Evidence be Excluded Pursuant to s. 24(2) of the Charter?. - 55 -

i) Was the evidence obtained in a manner that violated the Applicant’s Charter rights? - 55 -

Position of the Parties. - 55 -

Analysis. - 56 -

i) The Firearm…………………………………………………………………. - 57 -

ii) Failure to Provide Breath Sample……………………………………….. - 58 -

iii) Applying the Grant Factors. - 60 -

Position of the Parties……………………………………………………….. - 61 -

Analysis. - 63 -

a. Seriousness of State Misconduct - 63 -

b. Impact of the Breaches…………………………………………………... - 67 -

c. Society’s Interest in Adjudication on the Merits of Justice. - 68 -

d. Balancing the Factors……………………………………………………...- 68 -

E. Voluntariness/Hearsay Application. - 69 -

A. Introduction

[1] This application under the Canadian Charter of Rights and Freedoms (“Charter”) involves the police’s response to a possible impaired driver which resulted in the discovery of a firearm.

[2] Police responded to a call that two individuals who were parked in the parking lot at the Rexdale Mall were drinking and smashing beer bottles. Within a minute of arriving, PC Singh arrested the applicant, the driver of the vehicle, for impaired care and control at 6:58 a.m. He took the applicant back to his police cruiser. Upon searching the applicant, PC Singh located a firearm with ammunition in a satchel strapped to the applicant. PC Singh charged the applicant with various firearm offences at approximately 7:04 to 7:05 a.m.

[3] Two other officers arrived at the same time that PC Singh located the firearm. The other officers attended to the passenger and arrested him for public intoxication. PC Singh read the applicant his rights to counsel at 7:11 a.m., after the passenger was in the other police cruiser and after PC Singh had secured the firearm in an exhibit bag. The applicant indicated he wished to speak to a lawyer.

[4] There is a video of the scene taken from the end of the Rexdale Mall that is some distance away that shows the police arresting the applicant and the passenger of the vehicle.

[5] Back at the police station, PC Singh placed a call to the applicant’s father to see if he had a lawyer. The applicant told police he did not want to speak to anyone after he was told that his father did not have a lawyer. The applicant was again advised of his rights to counsel but did not want to speak to counsel. The applicant then refused to provide a breath sample.

[6] Three hours later, DC Schembri interviewed the applicant. The applicant was again advised of his rights to counsel. The applicant again requested his father be contacted. His father did not have counsel. Ultimately, the applicant spoke to duty counsel for a minute before being interviewed.

[7] The applicant submits that several of his Charter rights were violated during the course of his arrest. He seeks to exclude the firearm and the evidence that the applicant failed to provide a breath sample pursuant to s. 24(2) of the Charter.

[8] The following issues need to be determined on the Charter application:

1. Did PC Singh violate the applicant’s s. 10(a) and 10(b) Charter rights before the applicant was arrested for impaired care and control?

2. Did PC Singh have reasonable and probable grounds to arrest the applicant for impaired care and control of a motor vehicle?

3. Did PC Singh violate the applicant’s s. 8 rights by searching the applicant incident to his arrest?

4. Did PC Singh violate the applicant’s s. 10(b) rights after the applicant’s arrest for impaired care and control at the scene?

5. Did police violate the applicant’s s. 10(b) rights at the police station prior to the applicant’s failure to provide a breath sample?

6. Did PC Schembri violate the applicant’s s. 10(b) rights when taking a subsequent statement from the applicant?

7. Should the evidence of the firearm and/or the evidence of the applicant failing to provide a breath sample be excluded pursuant to s. 24(2) of the Charter?

[9] The Crown also filed a voluntariness and hearsay application seeking to admit the applicant’s statements regarding his identity because he has an identical twin brother.

[10] I decided both applications as a case management judge pursuant to s. 551.1 of the Criminal Code, R.S.C. 1985, c. C-46.

B. Alleged Charter Breaches Prior to the Breath Test

[11] The parties agree that the credibility and reliability of PC Singh’s evidence is crucial on the Charter application. All of the Charter breaches, except for the alleged s. 10(b) Charter breach involving DC Schembri, involve PC Singh. It is necessary to review PC Singh’s evidence in detail. His evidence must be considered in light of the other officers’ evidence and the video in determining PC Singh’s credibility and reliability.

Civilian Observations

[12] On February 23, 2019, between 6:40 and 6:50 a.m., Michael Persaud observed two individuals in a sedan. They were animated and having fun and he did not think anything of it until he heard a loud crash like bottles smashing on the ground. This came from the car. He suspected a DUI and called 911.

The Dispatch Call

[13] At approximately 6:54 a.m., PC Singh received information from police dispatch that there were two males parked in the southwest corner of the parking lot at the Rexdale Mall who were drinking and smashing beer bottles. It was a possible “intox” call. At the time of this incident, PC Singh had been an officer for approximately 2 years.

[14] PC Botham testified that he received information that there were two possibly intoxicated individuals drinking in a parking lot in the plaza associated with a white sedan. They were smashing bottles. More information came that the vehicle was a white four door Volkswagen, licence plate BTY H147. The information was updated at 6:56 a.m. that the individuals were in the vehicle and both males were East Indian.

The Applicant’s Arrest for Impaired Care and Control

[15] PC Singh testified that based on the information he received from dispatch, he believed he had grounds to arrest the individuals for public intoxication before he arrived on scene.

[16] PC Singh arrived on scene at 6:58 a.m. He observed the white sedan in the parking lot. There were two occupants in the front seats of the vehicle. PC Singh testified that the engine was running. PC Singh approached the vehicle and told the driver to turn the car off. The key was in the ignition. In cross-examination, PC Singh said he could hear the engine. PC Singh agreed that he did not see any running lights because he was looking at the driver. PC Singh agreed that it was possible that the vehicle was not running, but just in the accessory position.

[17] PC Singh testified that when he approached the vehicle the driver-side window was down, and he saw several smashed beer bottles. He explained in cross-examination that there was more glass than would have come from just one bottle. He saw the neck of one bottle. The parking lot was dry, but the ground was freshly wet. The glass was dark brown. PC Singh agreed that you could not see the broken glass in the video.

[18] PC Singh agreed that he directed the applicant to get out of the car based on his belief that the applicant was “publicly intoxicated and possibly impaired.”

[19] PC Singh agreed that when he walked up to the applicant, he did not tell the applicant that he was under arrest for public intoxication or advise the applicant that he was investigating a complaint or ask to see the applicant’s driver’s licence. PC Singh explained that he did not tell the applicant why the applicant was being detained because he wanted the applicant out of the vehicle so that the applicant could not drive off. After the applicant exited the vehicle, the investigation started towards impaired care and control.

[20] PC Singh explained that he defines intoxicated to mean that you have been drinking, maybe not to the point of being impaired. PC Singh believed the applicant was impaired based on the applicant’s actions and the way he behaved.

[21] PC Singh testified that he believed that the applicant opened the driver’s door. He did not recall opening the door himself. PC Singh agreed that the door was opened almost immediately upon PC Singh’s arrival, which is also shown on the video.

[22] PC Singh testified that based on his notes it appeared that the applicant asked him after he exited the vehicle “what did I do” but he did not recall when the applicant said that. PC Singh was shown his transcript from the discovery where he said the applicant asked “what did I do” in response to PC Singh’s direction to turn off the car and step out. PC Singh agreed it was fair to say that is what happened.

[23] PC Singh agreed that when the door was opened, he was standing beside the door close to where the driver is seated. PC Singh agreed that he had his left hand on the door and that the space between PC Singh and the applicant was minimal. PC Singh testified that the applicant’s path to exit the vehicle was clear. There was about two feet.

[24] PC Singh testified that the applicant leaned back into his seat as if to gain strength to get out of the car. PC Singh agreed that the applicant did not brace himself or use the door to get out of the vehicle. He was slower getting out than he needed to be. PC Singh testified that the applicant had trouble getting out of the car and that he stumbled getting out of the car. PC Singh testified that he placed his hands on either side of the applicant to balance him. He told the applicant to move to the rear driver-side door. PC Singh stated that he kept his hands on the applicant because he was concerned the applicant would fall as he seemed unbalanced when he exited the vehicle.

[25] In cross-examination, PC Singh was shown the video of the scene. The video does not show the applicant getting out of the car. PC Singh agreed that the video did not show him holding the applicant with both hands but just one. He stated that he recalled using both hands. PC Singh reiterated that he kept his hand on the applicant because he did not want him to fall but he agreed that it was more of guiding than a strong grip holding the applicant up.

[26] PC Singh agreed that he was close to the applicant, and the applicant almost walked in a side-step and could not turn and walk forward. When the video showed the applicant with his hands in his pocket, PC Singh believed that is when he asked the applicant for his identification.

[27] After being shown the video, PC Singh agreed that you cannot tell from the video that the applicant was leaning against the car, but that was his recollection. He said the applicant’s upper body was swaying and agreed that could not be seen from the video.

[28] When the applicant was out of the vehicle, PC Singh asked the applicant questions, but he could not recall what they were or whether the applicant responded. PC Singh noted an odour of alcohol on the applicant’s breath and that his eyes were red and bloodshot.

[29] PC Singh arrested the applicant for impaired care and control of a motor vehicle at 6:59 a.m.

[30] PC Singh explained that his grounds for the arrest were based on the call, and the observations he made at the scene. There was smashed beer bottles, the ground was wet around the bottles, the applicant had difficulty getting out of the car and was unbalanced to the point where PC Singh put his hands on the applicant because PC Singh was concerned that the applicant might fall. PC Singh also smelled an odour of alcohol on the applicant and the applicant had red and bloodshot eyes.

[31] PC Singh agreed that the applicant’s speech was not slurred. PC Singh described the applicant’s speech as fair and slow. PC Singh did not recall telling PC Baron that the applicant had slurred speech.

The Search Incident to Arrest

[32] After the applicant was arrested, he was handcuffed and taken to PC Singh’s cruiser. There is no indication on the video that the applicant had difficulty walking to the police cruiser. PC Singh conducted a pat down search of the applicant before placing him in the cruiser. PC Singh located a lighter and marijuana. PC Singh took out the applicant’s wallet and confirmed his identification.

[33] It was PC Singh’s evidence that he was about to place the applicant in the cruiser when he realized that he missed a pocket on the applicant’s sweater. PC Singh felt a large bulge. PC Singh told the applicant to get out of the vehicle and put his hands on the applicant to pull him out. The applicant was wearing two sweaters and a tee-shirt. Under the two sweaters there was a black satchel. PC Singh asked the applicant what was in the bag. The applicant said, “I do not know.” PC Singh agreed that he had not given the applicant his rights to counsel at this point. When PC Singh opened the bag, he saw a black handgun and ammunition. PC Singh stated that he saw the gun and asked him if it was real. The applicant yelled “its real, its real.” PC Singh told the applicant not to move while PC Singh took the bag off.

[34] PC Singh testified that PC Botham arrived at approximately 7:03 a.m. The video shows the time of approximately 7:02 a.m. PC Singh pulled the firearm out of the bag and put it on the top of the cruiser, and advised the applicant that he was under arrest for carrying an unauthorized firearm and mischief at approximately 7:04 to 7:05 a.m. The basis of the mischief charge was the smashing of the bottles. PC Singh testified that he had not thought of that offence when he originally arrested the applicant for impaired care and control.

[35] PC Botham testified that when he arrived, he went over to PC Singh and asked him what he needed and what he had. PC Singh told him the driver had a gun strapped to his chest and that he needed PC Botham to attend to the other passenger. PC Botham testified that he saw the satchel but was not focused on the gun because he knew there was a potential threat with the passenger who was not in control.

[36] PC Botham went over to the passenger. PC Davis was already with the passenger. PC Botham arrested the passenger for public intoxication and cautioned him for mischief for smashing the bottles. PC Botham testified that he had no reason to disbelieve the complainant and he had grounds from PC Singh. Given the urgency of the situation, he acted on the grounds in good faith. PC Botham made some quick observations such as the smell of alcohol and that the passenger was swaying. PC Botham agreed that he normally would not arrest a passenger for public intoxication in a vehicle.

[37] PC Singh stated that when PC Davis arrived, PC Singh advised him to arrest the passenger for public intoxication. This was based on the information on the call. PC Singh agreed he had no direct contact with the passenger. PC Singh then placed the applicant in the back of the cruiser. He let the other officers know what was found and what the applicant was in custody for. PC Singh did not know how to prove the firearm safe. Another officer had to prove it safe.

[38] PC Davis testified that he saw the gun when he arrived. Based on the video, PC Davis had the other party out of the vehicle by 7:02 a.m. He agreed that it was possible that PC Singh told him to get the other party out of the vehicle. PC Davis explained this was his first year as a police officer and his notes are not up to the standard they are now. He also explained that he was the third unit to arrive on scene and his duty was to make sure the officers were safe until other officers arrived. He believed the passenger had the gun.

[39] PC Davis recalled that PC Botham attended and arrested the other individual. DC Davis could not recall what he was arrested for. PC Davis said that he saw a smashed whiskey bottle beside the car. He could not recall what colour the glass was.

[40] After the officers had arrested the passenger, PC Singh put the property, including the firearm, into the property bags, and got back into the vehicle. PC Singh read the applicant his rights to counsel at 7:11 a.m. The applicant stated that he understood his right to counsel and to duty counsel. PC Singh advised the applicant that he could apply to legal aid. When asked if he would like to call a lawyer now, the applicant said yes. When asked if he had a specific lawyer, the applicant said no, and that he wanted to speak to his father. PC Singh also cautioned the applicant and gave him the breath demand at 7:12 a.m. PC Singh asked the applicant how much he had to drink but the applicant did not respond.

[41] PC Singh testified that he understood the requirement to read the rights to counsel immediately. He explained that there was a second person in the vehicle, and he wanted to get that person secured before he read the applicant his s. 10(b) rights. He acknowledged that PC Botham and PC Davis were dealing with the passenger. PC Singh testified that he also did not know how to safety the firearm so he had to wait until another officer could assist him.

[42] At 7:23 a.m., PC Singh turned over the gun and bullets to PC Botham. At that point, PC Singh tried to figure out which station to take the applicant to for the breath test. PC Singh was instructed to take the applicant to 21 Division instead of 22 Division. On the drive to the station, the applicant pleaded his case and asked PC Singh to help him out because they were of the same ethnic background. The applicant asked PC Singh to call his father and ask if he has a lawyer because the applicant did not have one. PC Singh did not recall asking the applicant any questions on the way back to the station. He told the applicant that he could not help him.

At the Station

[43] PC Singh and the applicant arrived at 21 Division at 7:34 a.m. The applicant was placed in the cells at 7:39 a.m.

[44] PC Singh agreed that there is a policy in Peel Regional Police that accused persons do not speak to non-lawyers. He agreed that he could have put the applicant on the speaker phone when he spoke to the applicant’s father.

[45] PC Singh called the applicant’s father at 7:45 a.m. PC Singh initially testified that he called the applicant’s father to see if he could provide a lawyer. PC Singh explained he called the father and explained to the father that the applicant had asked PC Singh to call him to see if the father had a lawyer. The father advised that he did not have a lawyer. PC Singh told the applicant that the father did not have a lawyer. The applicant said that he wanted to remain silent and not speak to counsel.

[46] In cross-examination, PC Singh testified that there were actually two calls with the father. PC Singh recalled that the father called back before the breath test to say that he did not have a lawyer. There was no mention of the second call in PC Singh’s notes. PC Singh believed the father called back, but he could not confirm that. PC Singh agreed at the discovery that the father did not have a name or number of a lawyer and did not mention that the father called back. PC Singh gave the following answers in relation to whether the father called back or not.

Q. You didn’t tell him he’s [father] looking; he’s trying to get back to us before, you didn’t tell him that, did you?

A. I think that was, so when I wrote down that that was kind of the conclusion from what the call back was. I’m not to sure uh the time calling back occurred, uh I think that was just the conclusion was he did not have a lawyer.

Q. When you told us earlier that the father said, “I don’t have a lawyer, but I am going to find one and do I call you out, call you back”, right?

A. Yeah, so no so I had, I think I wrote that he would call back within a couple of minutes he would call back here, and I think we had conversation afterwards, uh I think he said he would call back and its accurate that he didn’t have a lawyer, I think he asked around.

Q. So, how many calls did you make to the father?

A. It would’ve been two.

Q. Can you tell us when they were?

A. The first phone call I had was 7:45. I don’t have the second phone call.

Q. But you didn’t call the father back, did you?

A. I’m not, I’m not completely sure.

Q. You would’ve written it down if you did, right?

A. I believe so, possibly.

Q. Right, and did the father call back?

A. I can’t recall, I can’t recall if it was a call back or if it was at that time.

Q. And the call to the father was at what time?

A. 7:45 I believe.

Q. Right. So, it doesn’t look like there was a lot of time given for the father to check for a lawyer before my client is taken out of the breath room, right?

A. I believed he called back or (inaudible) I believe that there was sufficient amount of time at that point that, uh that he didn’t have a lawyer for his son.

Q. Well there’s nothing in your notes anywhere that suggest a call back, from his father, you really say the call back today for the first time. Do you see anywhere in your notes that the father called back to say I don’t couldn’t find a lawyer?

A. No I didn’t.

Q. No, neither do I. You didn’t mention that in the Discovery either that you were going to ask questions specifically about the right to counsel, right?

A. No, I don’t believe so.

Q. So in fairness, you don’t recall him calling back, do you?

A. No I don’t, I believe the idea, but I can’t confirm it though.

Q. Huh. When did you remember that?

A. I think its just uh during the whole uh experience of testifying situation.

Q. Right. And so, I’m just suggesting here that, the father never... you didn’t mention that to him before. Did he call, did he call back?

A. I can’t uh can’t 100% say.

Q. Did you tell Mr. Seera, I mean I think it would be worth Mr. Seera to know that the dad is trying every avenue, right? That he can’t find a lawyer, right?

A. Yeah, I would have told him what information his father had given me at the time.

Q. I’m suggesting that Mr. Seera’s father said, ‘look I got to look for a lawyer, I’ll get back to you if I find one,’ but you didn’t tell Mr. Seera that, is that possible? Is that likely?

A. Its possible, I don’t believe it’s likely I believe that I believe that whatever information I was given at that time I would have addressed to him, now not necessarily would have made him make that decision at that point to not have a lawyer, because if I told him that his father was looking for a lawyer he would have waited.

Q. Right, but to be clear the father said I’ll have a look and I’ll get back to you if I find one, right, I think we can agree on that?

A. That’s what uh I think, but I think based on my notes its more its more likely what I have in my notes is the response that was given to me.

Q. That what?

A. That he didn’t have a lawyer or that they didn’t have any lawyer available or that they didn’t have a lawyer, or or for his son.

[47] In re-examination, PC Singh testified that he was “not completely sure” that the applicant’s father said he would call back with the name of a lawyer

[48] PC Baron was the breath technician that day. He testified that while he was in the process of getting the instrument ready, he overheard the applicant in the booking area, and that the officers were having difficulty figuring out what to do about counsel. PC Baron believed that the father did not have a lawyer for the applicant so he asked the applicant if they could call another lawyer or duty counsel at approximately 7:48 a.m. PC Baron had no discussions with the father. The applicant said he had the right to remain silent. PC Baron asked a few follow-up questions and the applicant refused to answer, so PC Baron told him that they would discuss it in the booking room on video.

[49] PC Singh testified that he did not give the applicant a Prosper warning after the applicant said he did not want to speak to anyone. At the time, PC Singh was not familiar with Prosper warnings. PC Singh explained that he understands now that if a person wants to speak to a lawyer and they later waive that right, you have to give them a warning that they have a right to speak to a lawyer.

[50] At 7:54 a.m., PC Singh advised PC Baron of the grounds for his arrest. PC Baron recalled PC Singh stating that the applicant was slurring. PC Singh did not recall saying this.

[51] At approximately 8:00 a.m., the applicant entered the breath room. PC Baron reviewed the applicant’s rights to counsel and explained to him that his father did not have a lawyer, but the police would assist in putting the applicant in contact with another lawyer or duty counsel. Despite PC Baron’s efforts, the applicant refused to speak to counsel.

[52] PC Baron testified that he felt he was at an impasse with the applicant. The applicant did not want counsel. His responses to PC Baron were head shakes, shrugs, and guttural noises. After trying repeatedly to have the applicant take up the officer’s offer to speak to counsel with no success, PC Baron made the breath demand. The applicant refused and he was charged with failing to provide a breath sample.

[53] PC Baron explained in his evidence that he had an obligation under law to collect the sample as soon as practicable because the body is constantly eliminating alcohol so collecting the sample as soon as practicable provides the most accurate evidence.

[54] PC Baron testified that he noticed an odour of alcohol on the applicant’s breath and that the applicant’s eyes were bloodshot. He described the applicant’s speech as fair. He noticed that the applicant had some thicker hanging consonant sounds when speaking but not what he would consider classic slur. It is very subtle, but it is something that a breath technician after doing thousands of breath tests notices.

[55] PC Baron agreed that he never spoke to the applicant before and did not know his normal speech pattern. He also agreed that he did not notice that the applicant was unsteady on his feet.

C. Assessing the Alleged Charter Breaches

[56] This was a blended Charter and voluntariness application. The onus on the party varies depending on what Charter right is engaged. I will address the onus when considering each of the various alleged Charter breaches.

[57] In considering this Charter application, I am following the guidance of the Supreme Court of Canada in R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 4, that when dealing with roadside stops, as in this case,

[i]t is necessary for the court to proceed step by step through the interactions of the police and the [applicant] from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.

[58] As noted above, the credibility and reliability of PC Singh’s evidence is crucial in deciding this application. I generally found that PC Singh was trying to be truthful in giving his evidence. He readily conceded facts that he did not recall and propositions that were put to him. There were however inconsistencies in his evidence, and facts that he did not recall, which must be carefully considered in determining the reliability and credibility of his evidence. I will address the various concerns in my analysis.

Issue #1: Did PC Singh Violate the Applicant’s ss. 10(a) & 10(b) Charter Rights before the Applicant was Arrested?

Position of the Parties

[59] The applicant submits that he was detained at 6:58 a.m. when PC Singh ordered the applicant out of his vehicle. The applicant’s s. 10(a) Charter rights were therefore violated because the applicant was not immediately advised of the reason for his detention, despite the applicant asking what he did. PC Singh did not tell the applicant that he was investigating a complaint. PC Singh had already made up his mind that he had reasonable and probable grounds to arrest the applicant for public intoxication, which aggravates the s. 10(a) breach and shows that PC Singh acted with tunnel vision.

[60] The applicant also submits that, because PC Singh was going to arrest the applicant for public intoxication, PC Singh was required to provide the applicant with his s. 10(b) rights at the time of the applicant’s detention. The applicant’s s. 10(b) rights were not suspended because the detention was not for a roadside sobriety check.

[61] The respondent concedes that when PC Singh ordered the applicant out of his vehicle he was detained. The respondent submits that the one-minute delay between the time the applicant was detained until his arrest for impaired care and control complies with the immediacy requirement in s. 10(a). The respondent also submits that the absence of evidence of what the officer said is not sufficient to find that the applicant was not told of the reason for his detention.

[62] The respondent submits that even if the applicant was detained prior to his arrest, the applicant was not entitled to be given his s. 10(b) rights because PC Singh was investigating the applicant for impaired care or control of a motor vehicle. A driver’s s. 10(b) rights are suspended during a traffic stop to investigate sobriety. During this suspension, the police are entitled to ask questions and to direct the driver to exit the vehicle.

Analysis

[63] There was nothing improper with PC Singh attending the applicant’s vehicle to investigate the applicant for impaired care and control. The police have the authority to randomly stop persons for sobriety checks on roadways and in public parking lots: R. v. Orbanksi, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 41; R. v. Nield, 2015 ONSC 5730, at para. 50, leave to appeal denied, 2017 ONCA 722. PC Singh did not stop the vehicle randomly. He attended the vehicle based on information that the two people in the vehicle were possibly intoxicated and smashing glass bottles.

[64] Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 3.

[65] A detention arises where the police have suspended a person’s liberty interest through “a significant physical or psychological restraint”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Psychological detention can arise where an individual is legally required to comply with police direction or where “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant, at paras. 30-31; Suberu, at para. 22.

[66] The Crown fairly concedes that the applicant was detained when PC Singh told the applicant to get out of the car. I agree. Prior to that point the applicant was not detained. The police car did not block in the applicant’s vehicle to prevent the applicant from leaving. However, once PC Singh attended to the vehicle and directed the applicant to exit the vehicle, a reasonable person would believe they had no choice but to comply with the demand.

[67] PC Singh also testified that in his mind the applicant was detained at that time. PC Singh was not conducting an open-ended investigation and providing general assistance. The applicant was the target of his investigation.

[68] PC Singh’s direction for the applicant to get out of the car was authoritative. A reasonable person would not believe they had a choice to refuse, particularly when the applicant asked what he did and was not told the reason for having to get out of the car. The video also shows the relatively close proximity PC Singh maintained with the applicant from the time PC Singh told the applicant to get out of the car until the applicant was arrested for impaired care and control. See Suberu, at paras. 4, 28, 33; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at paras. 36-37.

[69] The applicant does not suggest that the initial interaction with PC Singh was an arbitrary detention. The applicant’s position is that the police had an obligation to advise the appellant why he was required to get out of the car and that the failure to do so breached s. 10(a) of the Charter.

[70] Section 10(a) of the Charter states that “[e]veryone has the right upon arrest or detention to be informed promptly of the reasons therefor”. It is the applicant’s onus to demonstrate that his s. 10(a) rights were violated.

[71] The Crown submits that promptly or immediately does not mean instantaneously. What is immediate must be considered in the circumstances and be based on common sense: R. v. Tosun, 2021 ONSC 2895, at para. 38.

[72] I find that PC Singh violated the applicant’s s. 10(a) Charter rights. While PC Singh could not recall the details of his conversation with the applicant, he agreed that the applicant asked what he did wrong while he was sitting in the car. PC Singh testified that he did not tell the applicant the reason for his detention. When the applicant asked what he did wrong, PC Singh should have advised the applicant that he was investigating a complaint about drinking and smashing bottles.

[73] When police ask an individual to exit the safety of their own vehicle, police should generally advise the individual of the reason they are being directed to do so. Being detained by police is intimidating for most people, even during a routine traffic stop. Citizens have a right to know why police are detaining them.

[74] In concluding that the applicant’s s. 10(a) rights were violated, I do not mean to suggest that in all situations police must advise a driver of the reason for the detention before they request an individual to exit a vehicle. In particular circumstances, the police may be justified in delaying telling a person why they are being detained, such as where there is a gun complaint, and the police need to secure the individual for officer or public safety. That was not the situation when PC Singh directed the applicant to get out of his vehicle.

[75] The applicant also submits that his s. 10(b) rights were violated because the officer’s initial intention was to arrest the applicant for public intoxication and not impaired driving. Therefore, there was no limit on the applicant’s right to counsel. I disagree. It is clear from PC Singh’s evidence that when he arrived on scene, he was investigating the applicant for public intoxication and impaired driving. I accept PC Singh’s evidence that he directed the applicant to get out of the vehicle because he believed the applicant was “publicly intoxicated and possibly impaired.”

[76] PC Singh was legitimately investigating the applicant for public intoxication and impaired operation when he approached the applicant’s vehicle. PC Singh had a general power, and in fact a duty, to investigate the sobriety of the applicant based on the information he received and the observations of the broken bottles that were wet on the ground.

[77] The right to counsel pursuant to s. 10(b) of the Charter is triggered when an individual is detained. There is no issue that the applicant was detained by PC Singh. However, the right to counsel is not absolute. It is subject to reasonable limits pursuant to s. 1 of the Charter: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 33.

[78] In Orbanski, at para 52, the Supreme Court of Canada held that s. 10(b) Charter rights are incompatible with the operational requirements of investigating sobriety during a brief roadside detention, up to and including a demand for a roadside test: see also R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at paras. 47-48.

[79] When investigating sobriety, police are entitled to direct someone to exit the vehicle. Police are also entitled to ask questions without having to advise the detainee of their s. 10(b) rights: see R. v. Roberts, 2018 ONCA 411, 47 C.R. (7th) 405, at para. 83. The fact that PC Singh noticed the smell of alcohol and other indicia of impairment before giving the applicant his rights to counsel does not render this evidence inadmissible in determining if PC Singh had reasonable and probable grounds to arrest the applicant. The gathering of this information is necessary for the officer to carry out his duties to ensure public safety on the roads, as explained in Orbanksi, at paras. 48-49.

[80] The applicant’s s. 10(a) Charter rights were breached for one minute prior to his arrest for impaired care and control. The applicant’s s. 10(b) Charter rights were not violated prior to his arrest for impaired care and control.

Issue #2: Did PC Singh have Reasonable Grounds to Arrest the Applicant for Impaired Care and Control of a Motor Vehicle?

Position of the Parties

[81] The applicant submits that PC Singh did not have reasonable and probable grounds to arrest him. PC Singh had already made up his mind before he arrived on scene that he had reasonable grounds to arrest the applicant for public intoxication and this tainted his decision to arrest the applicant for impaired care and control of a motor vehicle. The officer’s tainted view of the evidence is also demonstrated by his instruction to PC Davis to arrest the passenger for public intoxication when PC Singh had no grounds to do so. The broken glass was on the driver’s side of the vehicle and PC Singh had no dealings with the passenger and could not know if the passenger had been drinking.

[82] The applicant submits that at best the officer had sufficient suspicion to believe the applicant had consumed alcohol and could have made a demand pursuant to s. 320.27(1) of the Criminal Code. It is the applicant’s position that the evidence of PC Singh is not credible or reliable. The video undermines PC Singh’s evidence that he had reasonable grounds to arrest the applicant. The video demonstrates inconsistencies in PC Singh’s evidence and does not show the applicant having any difficulties walking to the police cruiser.

[83] Crown counsel submits that the police had reasonable grounds to believe the applicant committed the offence of impaired care and control of a motor vehicle when the officer’s grounds are viewed cumulatively. PC Singh received information that two individuals were drinking and smashing beer bottles, which demonstrated a lack of judgment. When PC Singh arrived, he observed the applicant in the driver’s seat and saw what he believed to be beer bottles. The applicant had difficulty in getting out of the vehicle when directed to do so, to the point that PC Singh used his hand to steady the applicant. PC Singh noticed the applicant had an odour of alcohol and red bloodshot eyes. PC Singh also testified that the applicant was leaning on the car to balance himself.

[84] The Crown submits that any inconsistencies in PC Singh’s evidence are minor and to be expected given the passage of time and the detail asked of the officer.

Analysis

[85] An arrest is lawful if there are reasonable and probable grounds to believe that an offence has been committed. Reasonable and probable grounds do not amount to proof beyond a reasonable doubt or to a prima facie case, but it requires more than a suspicion. It is credibly based probability: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para 37, citing R. v. Censoni (2001), 22 M.V.R. (4th) 178 (Ont. S.C.), at para. 31 and R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 23.

[86] The arresting officer must subjectively have reasonable and probable grounds to believe that an offence has been committed. The officer’s belief must be supported by objective facts. The objective standard “is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest”: Bush, at para. 38, citing R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at p. 250.

[87] Reasonable and probable grounds must be assessed in the context in which they apply. For example, information that would meet the reasonableness standard for an arrest may not meet the reasonableness standard for a search warrant. The dynamics of the two situations are very different. The decision to arrest may often be made quickly and in rapidly changing situations, whereas there is more time to prepare a written search warrant: Bush, at para. 43, referring to R. v. Golub (1997), 1997 CanLII 6316 (ON CA), 34 O.R. (3d) 743, at paras. 18-19.

[88] It is not required that a detainee “be in a state of extreme intoxication before the officer can establish reasonable and probable grounds to arrest” for an impaired driving offence: Bush, at para 47, citing R. v. Deighan (1999), 45 M.V.R. (3d) 90 (Ont. C.A.), at para. 1. The driver’s ability to control the motor vehicle must be at least slightly impaired by alcohol: Censoni, at para. 47; R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d, 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. “[S]light impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like”: Censoni, at para. 47.

[89] In considering whether there were reasonable and probable grounds to believe a suspect’s ability to operate a motor vehicle was impaired, the court considers the totality of the circumstances. There is no checklist or mathematical equation to make this determination: Censoni, at paras. 44-46. The court considers the factors that suggest impairment and the factors that do not. However, the absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: Bush, at para. 56.

[90] There is also no minimum time period before an officer can objectively obtain reasonable and probable grounds. There is also no requirement that a roadside sample be taken before an officer can form reasonable and probable grounds to arrest for an impaired driving offence: Bush, at paras. 69-70.

[91] It is the Crown’s onus to demonstrate that PC Singh had reasonable and probable grounds to arrest the applicant because the applicant’s arrest provided the authorization to search the applicant, which resulted in the seizure of the firearm.

[92] I am satisfied that PC Singh subjectively believed he had grounds to arrest the applicant for impaired care and control given his testimony.

[93] The key issue to determine is whether there are objective grounds for the applicant’s arrest. In making this determination, the court must determine if PC Singh’s evidence of his interactions with the applicant are credible and reliable having regard to any inconsistencies in PC Singh’s evidence, any inconsistencies between PC Singh’s evidence and the other officers, and the video tape.

[94] After considering all of the evidence, I am satisfied that there were objective reasonable grounds to arrest the applicant for impaired care and control for the following reasons.

[95] First, there is no dispute that the applicant was in the driver’s seat of the vehicle, demonstrating that the applicant was in care and control of the vehicle. Section 320.35 of the Criminal Code creates a presumption that an individual who is in the driver’s seat of a motor vehicle is operating it. PC Singh’s evidence on this point is confirmed by the video.

[96] Second, I accept PC Singh’s evidence that the keys were in the ignition when he approached the vehicle. PC Singh testified that he asked the applicant to turn the car off and that the engine was running. It was suggested to PC Singh in cross-examination that the car was on accessory mode. He agreed it was possible. It is not clear from the video whether the vehicle was running but the car lights were not on. Whether the engine was running or on accessory mode does not undermine PC Singh’s evidence that the keys were in the ignition, and he asked the applicant to turn the car off. PC Singh’s evidence was not undermined on this point.

[97] Third, there are objective facts to support an inference that the applicant had been recently drinking alcohol. The information received by police was that there were two individuals, associated with the white sedan, drinking and smashing beer bottles. When PC Singh arrived on scene, he saw the two individuals in the white sedan, the broken glass near the driver’s side of the vehicle and the wet ground where the bottles had been broken. This demonstrated that the information the police received was reliable.

[98] Fourth, it is reasonable to infer that the applicant smashed what turned out to be a whiskey bottle outside his driver side window of his vehicle given the observations of PC Singh. This conduct demonstrates poor judgment as the applicant threw the bottle onto a public parking lot in the presence of several members of the public.

[99] I find that PC Singh was mistaken that there were beer bottles smashed on the ground. I do not find this to be a significant inconsistency. PC Singh testified that he saw beer bottles smashed on the ground, including one neck of a bottle, and that the glass was brown. PC Davis testified that he later observed a broken whiskey bottle and there was only one neck of a bottle. PC Davis could not recall the colour of the glass. PC Singh’s evidence is consistent with the seizing officer that there was only one neck of a bottle. One might draw an inference, albeit incorrect, that brown glass came from beer bottles, particularly if the glass was not inspected closely, which PC Singh did not do.

[100] I also do not find there to be a major inconsistency in PC Singh’s evidence about whether he opened the car door or whether the applicant did. PC Singh testified in chief that he believed he opened the door but was open to the suggestion in cross-examination that it was in fact the applicant who opened the door. It is difficult to tell who opened the door from the video. This is an inconsequential fact and I do not find that it detracts from PC Singh’s credibility or reliability.

[101] Fifth, I accept PC Singh’s evidence that the applicant had to lean back to gain momentum to get out of the vehicle and that it took the applicant longer than it should have to get out of the vehicle. PC Singh’s recollection of the applicant’s motion getting out of the car was consistent and unshaken on cross-examination.

[102] Sixth, I accept PC Singh’s evidence that the applicant stumbled when he got out of the vehicle and that PC Singh assisted the applicant because he thought the applicant might fall.

[103] The applicant suggested that PC Singh tried to mislead the court and exaggerate how unstable the applicant was by testifying that he had two hands on the applicant when the video clearly shows that PC Singh only had one hand on the applicant. I do not find that PC Singh was intentionally exaggerating his evidence to provide stronger grounds for the applicant’s arrest. Despite being aware of the video, PC Singh’s recollection, albeit incorrect, was that he placed two hands on the applicant.

[104] I do not find the inconsistency about whether PC Singh had one hand or two hands on the applicant to be a serious inconsistency. PC Singh was consistent in his evidence that the reason he put his hands on the applicant was because the applicant stumbled, and he did not want the applicant to fall. His evidence on that point was not shaken. PC Singh testified that he would not have been physical with the applicant if the applicant had not stumbled. Whether PC Singh used one or two hands is not a major inconsistency and does not undermine PC Singh’s evidence that he had to assist the applicant because he stumbled when getting out of the vehicle.

[105] Counsel for the applicant submitted that the reason the applicant the applicant stumbled was because PC Singh impeded the applicant’s exit from the vehicle. I do not accept this as a reasonable inference based on the evidence. PC Singh denied this in his evidence. He stated that the applicant had a clear exit from the vehicle. A review of the video does not assist in resolving this issue. The video shows that PC Singh is close to the door, but the video is too far away to say he impeded the applicant from getting out of the car. I accept PC Singh’s evidence that he did not impede the applicant’s exit from his vehicle.

[106] Seventh, I accept PC Singh’s evidence that the applicant was leaning on the car for balance. The video shows the applicant close to the vehicle and it appears that the applicant is leaning on the vehicle. It was suggested to PC Singh that the natural reaction if someone were close to you would be to lean away from them. PC Singh agreed. The video shows that PC Singh is close to the applicant, though how close is difficult to tell. The applicant had enough space to go into his pockets and retrieve his wallet. It is possible that the applicant was leaning back to have more space, but the more reasonable inference is that the applicant was leaning on the car for balance because he was impaired, given the other indicia present. I note that the video confirms PC Singh’s evidence in chief that he directed the applicant to the back of the driver’s side of the car.

[107] It was suggested to PC Singh that the applicant had to walk sideways because PC Singh was so close to the applicant and that this would explain why the applicant was unbalanced. PC Singh agreed that the applicant could not turn and walk forward. While this may provide a possible reason for why the applicant was unbalanced at that point, it does not undermine PC Singh’s evidence that the applicant stumbled when getting out of the car or that he leaned against the car for balance.

[108] I also do not find that PC Singh’s earlier observations of the applicant are undermined because the applicant was steady on his feet on the video or at the station. The video is taken from such a distance that smaller movements such as swaying cannot be seen. The fact that the applicant cannot be seen swaying in the video is not surprising given that PC Singh never suggested that the applicant was falling down drunk.

[109] Eighth, PC Singh observed the smell of alcohol on the applicant and that the applicant had red, bloodshot eyes. I do not find that the fact that PC Singh cannot recall the conversation he had with the applicant undermines his evidence that he smelled an odour of alcohol on the applicant’s breath. PC Singh’s observations of the applicant were confirmed by PC Baron, who observed that the applicant had an odour of alcohol on his breath and bloodshot eyes back at the police station.

[110] In assessing the credibility and reliability of PC Singh’s evidence, I have also considered that PC Baron testified that PC Singh told him that the applicant’s speech was slurred. PC Singh did not recall saying this. I do not find this to be a situation of PC Singh exaggerating his evidence. His recollection was that the applicant’s speech was fair but slow. This is consistent with PC Baron’s evidence. PC Singh did not rely on slurred speech as a ground for the applicant’s arrest. PC Baron also noted that the applicant spoke with longer consonants, which is not classical slurring but is a sign of impairment that as a breath technician he recognized.

[111] In assessing the reliability and credibility of PC Singh’s observations of the applicant, I have also considered the inconsistencies and lack of recollection about his telephone conversation(s) with the applicant’s father, which I will discuss in greater detail below when addressing the alleged Charter breaches at the police station.

[112] The applicant submits that PC Singh rushed to arrest the applicant and his belief that he had grounds to arrest the applicant for public intoxication before he arrived on scene tainted his observations. I do not accept this submission. PC Singh explained that he believed that intoxication and impairment were different. While he believed he had grounds to arrest the applicant for public intoxication before he arrived, he testified that the investigation turned into an investigation for impaired and control once the applicant exited the vehicle. PC Singh had an opportunity to observe the applicant before he arrested him for impaired care and control and observed several indicia of impairment that provided the grounds to arrest the applicant. There is no requirement that a roadside screening test be conducted before a person is arrested for impaired driving. Once PC Singh had reasonable and probable grounds to arrest the applicant for impaired care and control, he was entitled to do so: see Bush, at para. 56.

[113] I also do not find the fact that PC Singh directed PC Davis and/or PC Botham to arrest the passenger for public intoxication and mischief demonstrates that PC Singh had tunnel vision with respect to arresting the applicant. At the point that PC Singh directed PC Davis to arrest the passenger for public intoxication and mischief, the police had just located a firearm. PC Singh had information that two individuals were drinking and smashing bottles. Section 31 of the Liquor Licence Act, R.S.O. 1990, c. L.19, states that a person can be arrested without a warrant if they are intoxicated in a place to which the general public is invited or permitted access, where it is necessary for the safety of any person. In the circumstances, the police were justified in investigating the passenger for public intoxication.

[114] I also do not find that the applicant’s reliance on R. v. Cooper (1993), 46 M.V.R. (2d) 231 (Ont. C.J.), assists in this case. The facts of each case must be considered cumulatively in determining if there were reasonable and probable grounds to arrest an accused. The facts in Cooper are different than the facts in this case.

[115] In Cooper, MacDonnell J., as he then was, held that the officer did not have reasonable and probable grounds to arrest the accused. MacDonnell J. held that the fact that the accused had an odour of alcohol on his breath did not assist in determining impairment. In addition, the officer’s evidence of slurred speech and glossy eyes did not assist as the officer could not know the applicant’s normal state. When these factors were considered, along with the absence of any unusual driving and no unsteadiness of the accused on exiting the vehicle, MacDonnell J. held there was no objective basis to find reasonable and probable grounds.

[116] In the present case, there is the additional conduct of the applicant smashing alcohol bottles on the ground, demonstrating poor judgment. The ground was still wet, suggesting that the applicant was drinking in the vehicle, which also suggests poor judgment. Moreover, as I have explained, I accept PC Singh’s evidence that the applicant had difficulties getting out of the vehicle.

[117] As such, I am satisfied that based on totality of the circumstances there was an objective basis to arrest the applicant for impaired care and control for the reasons discussed above and the applicant’s s. 9 Charter rights were not breached.

Issue #3: Was the Search Incident to Arrest Lawful?

[118] PC Singh conducted a nonintrusive pat down search of the applicant after he arrested the applicant for impaired care and control and before putting him in the police cruiser, to look for further evidence and for officer safety. When putting the applicant into the vehicle, PC Singh noticed a pocket he did not initially search and found a bulge under the applicant’s sweater. PC Singh then conducted a more thorough search and located the firearm.

[119] Given my findings that there were reasonable and probable grounds to arrest the applicant for impaired care and control, the search incident to arrest was lawful and there was no s. 8 Charter violation. The firearm was lawfully seized.

Issue #4: Did PC Singh Violate the Applicant’s s. 10 (b) Rights after the Applicant’s Arrest for Impaired Care and Control?

Position of the Parties

[120] The applicant submits that his s. 10(b) rights were violated because the applicant was not immediately advised of his rights to counsel upon his detention by the police at 6:58 a.m. until 7:11 a.m. The applicant submits that there was no reason to delay reading the applicant his s. 10(b) rights after he was arrested for the impaired offence. The video clearly shows that when the other two officers were present, the situation was under control and therefore there was no basis for PC Singh delaying giving the applicant his s. 10(b) rights.

[121] The Crown submits that PC Singh was entitled to search the applicant before providing the applicant with his s. 10(b) rights. Once the firearm was discovered, the situation was fluid and rapidly unfolding. PC Singh justifiably wanted to ensure that the scene was safe before he gave the applicant his rights to counsel.

Analysis

[122] Once an individual is detained, s. 10(b) of the Charter guarantees an individual the right to retain and instruction counsel “without delay.” Section 10(b) imposes both informational and implementational duties on the police. The informational component requires the police to advise the detainee of their right to retain and instruct counsel without delay. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. Police are also required to refrain from eliciting incriminating information until the detainee has had a reasonable opportunity to contact counsel or has unequivocally waived that right: Suberu, at para. 38.

[123] The following timeline arises from the video and the testimony of the various officers:

6:58 a.m. PC Singh arrived on scene.

6:59 a.m. PC Singh arrested the applicant for impaired care and control.

6:59-7:03 a.m. Search incident to arrest of applicant; firearm located. PC Davis and PC Botham arrived on scene.

7:04-7:05 a.m. Applicant arrested for firearm offences.

7:05-7:06 a.m. PC Davis and PC Botham arrested and searched passenger who is placed in PC Botham’s cruiser. PC Singh remained by police cruiser with firearm.

7:06-7:10 a.m. PC Singh appears to be looking for an exhibit bag and places exhibits in car.

7:11 a.m. PC Singh reads the applicant his s. 10(b) rights.

[124] I do not find that the period of time from the applicant’s arrest at 6:59 a.m. until 7:05 a.m., when PC Singh located the firearm and arrested the applicant for the firearm offences, violated the applicant’s s. 10(b) rights.

[125] PC Singh was entitled to conduct a search of the applicant before reading the applicant his s. 10(b) rights. The applicant was lawfully searched incident to his arrest. PC Singh testified that he searched the applicant for further evidence and for officer safety. PC Singh conducted a brief pat down search of the applicant and located marijuana and a lighter. As PC Singh placed the applicant in the cruiser, he noticed a pocket that he had not searched and discovered a bulge under the applicant’s sweater. PC Singh was entitled to conduct a more thorough search. PC Singh seized the firearm around the same time as PC Davis and PC Botham arrived on scene.

[126] Once the gun was located, the situation changed. Public and officer safety may impact both the informational and implementational obligations in s. 10(b): R. v. Pileggi, 2021 ONCA 4, 153 O.R. (3d) 561, at paras. 61-62, referring to Suberu, at para. 2.

[127] PC Singh arrested the applicant for the firearm offence at approximately 7:04 to 7:05 a.m. I find that PC Singh was justified in not reading the applicant his s. 10(b) rights from the time of the applicant’s arrest until 7:06 a.m. when the passenger was securely placed in PC Botham’s police cruiser.

[128] I do not accept the applicant’s submission that because there were two other officers present dealing with the passenger, PC Singh should have given the applicant his s. 10(b) rights. Events were unfolding in a fluid manner. It was reasonable for PC Singh to be outside of his cruiser ready to assist the other officers with anything that may arise with the passenger, given that one firearm had already been located. This short delay was reasonable given the circumstances.

[129] PC Singh testified that he was liaising with the other officers as to what he found. PC Singh explained that there was still a second person in the vehicle, and PC Singh wanted to get him secured before PC Singh did anything else. This was PC Singh’s first time discovering a firearm.

[130] PC Botham also stressed the importance of dealing promptly with the passenger. PC Botham testified that when he arrived, he saw the gun strapped to the applicant and PC Singh told PC Botham to go deal with the passenger. PC Botham was not concerned about the applicant because he was already in handcuffs. PC Botham was worried about the other person who may also have had a weapon.

[131] PC Singh testified that when he searched the applicant and found the firearm, the applicant yelled, “it’s real it’s real”. Even if PC Singh had asked the applicant if the firearm was real, as suggested, I do not find that would be a breach of s. 10(b) because asking such a question when the officer’s and public’s safety is in issue is a justifiable inquiry.

[132] I do find that PC Singh violated the applicant’s s. 10(b) rights by failing to advise the applicant of his rights at 7:06 a.m. once the passenger was secure in the police cruiser. From 7:06 to 7:11 a.m., PC Singh was dealing with the exhibits, including the firearm. Another officer could have assisted with the exhibits so that PC Singh could give the applicant his s. 10(b) rights.

[133] At 7:11 a.m., PC Singh gave the applicant his s. 10(b) rights. The applicant stated that he wanted to speak to his father. At 7:12 a.m., PC Singh asked the applicant if he had anything to drink. PC Singh should not have asked that question because by that time the applicant had stated he wanted to call his father so his father could find a lawyer. PC Singh had a duty to hold off asking questions of the applicant.

[134] I accept PC Singh’s evidence that on the car ride to the station, the applicant asked PC Singh to do him a favour and that he only wanted to speak to his father and that PC Singh did not ask any further questions about the offences.

[135] Ultimately, I find that PC Singh violated the applicant’s s. 10(b) rights in two respects after the applicant’s arrest for impaired care or control. He unduly delayed providing the applicant with his s. 10(b) rights for approximately five minutes after the passenger was secure. He also should not have asked the applicant how much he had to drink after the applicant stated he wanted to contact a lawyer.

Issue #5: Did PC Singh Violate the Applicant’s s. 10(b) Rights at the Police Station?

Position of the Parties

[136] The applicant submits that the court should find that the applicant’s father told PC Singh that he would call PC Singh back with the name of a lawyer and that PC Singh did not convey this information to the applicant. The applicant’s s. 10(b) rights were therefore violated because the police failed to hold off demanding that the applicant provide a breath sample until the father called back.

[137] The applicant further submitted that it would have been prudent to allow the applicant to speak to his father on speaker phone because this would have avoided any confusion as to what the father told PC Singh. Given PC Singh’s lack of recollection of the call(s) with the father, the court should find that the applicant’s s. 10(b) rights were violated.

[138] The Crown submits that the applicant has not met his onus in demonstrating that the applicant’s s. 10(b) rights were violated at the police station. The Crown submits that PC Singh is wrong in his recollection that the father said he would call him back and did not do so. There is nothing in the officer’s notes or in his previous testimony to suggest that this was the case. There is no basis to find that the father was going to call back later with the name of a lawyer. This is demonstrated by the fact that three and a half hours later DC Schembri contacted the father again at the request of the applicant. The father still did not have a lawyer and the applicant then agreed to speak to duty counsel.

[139] The Crown further submits that the applicant was not diligent in pursing his right to speak to counsel once he was told that his father did not have a lawyer. Therefore, the police did not need to hold off in requesting that the applicant provide a breath sample.

Analysis

[140] Where a detainee expresses a desire to exercise their right to counsel, police have a duty to facilitate a reasonable opportunity for the detainee to contact counsel and to refrain from questioning the detainee until that reasonable opportunity is provided. The detainee must also be reasonably diligent in attempting to contact counsel: Where a chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 33-34.

[141] Section 10(b) does not create a right to speak to any person you wish. Therefore, the fact that the applicant was not permitted to speak to his father directly is not a s. 10(b) breach. Peel Regional Police appear to have a policy that an accused person cannot speak to a family member directly. I do not comment on this policy because there may be good reason in certain circumstances not to permit an accused to contact a family member, such as where there is a risk of the destruction of evidence. Regardless of the rationale for the policy, what must be assessed is whether the police took reasonable steps to provide the applicant with a reasonable opportunity to exercise his rights to counsel and whether the police were required to hold off demanding a breath sample in this case.

[142] I find that the applicant has not met his onus of establishing on the balance of probabilities that PC Singh violated the applicant’s s. 10(b) rights at the police station.

[143] The applicant stated that he wanted police to contact his father because his father would have a lawyer. PC Singh contacted the father at 7:45 a.m. when they returned to the station. There is no complaint about how quickly PC Singh placed the call.

[144] There is a significant discrepancy in PC Singh’s evidence as to whether there was one call with the father or two. I do not find PC Singh’s evidence reliable about the number of telephone calls he had with the father. Ultimately, I do not need to determine if there was one call or two because I am not satisfied on the balance of probabilities that the conversation between PC Singh and the father established that the father would call back later with the name of a lawyer. Rather, I am satisfied on the balance of probabilities that whether one or two calls were had with the father, the bottom line was the father did not have a lawyer for his son. I have come to this conclusion for the following reasons.

[145] First, I find that it is more likely than not that the father told PC Singh that he did not have a lawyer based on PC Singh’s evidence, which includes the following:

• PC Singh communicated the conversation he had with the father to the applicant. The information conveyed was that the father did not have a lawyer’s name.

• PC Singh agreed that he could not recall if the father called back or if he said it at the initial call.

• PC Singh testified that he believed the father called back but he could not confirm it.

• PC Singh admitted that he was not 100% sure that the father called back.

• PC Singh explained that while it was “possible” that PC Singh did not tell the applicant that his father was going to call back if he found a lawyer, he did not believe it likely.

• PC Singh believed that whatever information he was given at that time he would have told the applicant so that the applicant could decide what to do. If PC Singh were waiting to hear back from the father, the applicant would have waited.

• PC Singh testified that he would have told the applicant what the father told him at the time.

• PC Singh further explained that “based on my notes its more likely what, I have in my notes is the response that was given to me” that the father did not have a lawyer available.

[146] Second, there is no evidence from the father to suggest that he was trying to locate a lawyer after speaking to PC Singh.

[147] Third, three and a half hours later when PC Schembri contacted the father, the father still did not have a lawyer. PC Schembri did not recall the father saying he was trying to obtain a lawyer. One would think that if the father were actually looking for a lawyer, he would have either indicated that he had found a lawyer at that point given the seriousness of the situation.

[148] I am also satisfied that there was no requirement that the police hold off demanding that the applicant provide a breath sample.

[149] After the applicant was told that his father did not have a lawyer, the applicant stated that he did not want to speak to any other counsel or duty counsel. Given that the applicant asserted his right to counsel and waived his right to counsel when his father did not provide a name of a lawyer, police were required to tell the applicant of his right to contact a lawyer or duty counsel: R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at pp. 274-275.

[150] The applicant did not seriously contest the fact that PC Baron gave the applicant a proper Prosper warning. Prior to the breath demand, PC Baron made significant efforts to convince the applicant to contact another lawyer or to speak to duty counsel. The applicant refused. PC Baron went to great lengths to try to convince the applicant to speak to a lawyer prior to the breath demand. It was the applicant’s fully informed choice not to speak to counsel prior to refusing to provide a breath sample.

[151] Nothing turns on the fact that the police did not wait a significant period of time from when the applicant was given the Prosper warning until the breath demand was made. It is clear from the video that the applicant did not wish to speak to counsel. In the circumstances, the police are not required to hold off making a breath demand. The applicant was not diligent in trying to obtain counsel.

[152] The applicant was required to provide a breath sample as soon as practicable, pursuant to s. 320.28(1) of the Criminal Code, because alcohol is continuously eliminated from the body. If a detainee’s counsel of choice is not available, the detainee may still speak to duty counsel, but the detainee cannot delay providing a sample. In this case, PC Baron was justified in making the breath demand when he did.

Issue #6: Did DC Schembri Violate the Applicant’s s. 10(b) Charter Rights?

Position of the Parties

[153] The applicant submits that DC Schembri violated the applicant’s s. 10(b) rights by asking him if he had a twin brother after the applicant indicated that he wished to speak to counsel during the applicant’s interview. DC Schembri was assigned to interview the applicant. There were two purposes to the interview – to establish the identity of the applicant, because the applicant had a twin, and to obtain more information about the firearm. DC Schembri’s actions were deliberate.

[154] The Crown submits that DC Schembri did not violate the applicant’s s. 10(b) rights. The applicant waived his right to speak to counsel at the time of the breath demand and did not diligently pursue his right to counsel prior to speaking to DC Schembri.

Relevant Facts

[155] The applicant was twice advised of his right to counsel prior to his interview with DC Schembri.

[156] DC Schembri arrived at 21 Division at 11:00 a.m. He was briefed about the situation and then commenced his interview with the applicant. The purpose of the interview was to establish the applicant’s identity because he had an identical twin brother and to learn any further information about the firearm.

[157] Prior to the interview, DC Schembri reread the applicant his rights to counsel. At 11:47 a.m. the applicant stated that he wanted to speak to his father because his father would get a lawyer. The applicant agreed that if his father did not have a lawyer, he would speak to duty counsel. PC Schembri asked for the applicant’s father’s telephone number and if anyone was home. PC Schembri also asked the applicant if he had any brothers and sisters. The applicant said he had a sister and a twin brother. PC Schembri asked the applicant his brother’s name, and the applicant answered the question. DC Schembri testified that he asked the questions more for interest and when he asked those questions establishing the applicant’s identity was not top of mind.

[158] DC Schembri left the room and spoke to the applicant’s father. DC Schembri called the father and the father told him that no lawyer had been secured at that time and “it looks like we went to duty counsel.” DC Schembri did not recall if the father said he was attempting to obtain a lawyer. DC Schembri arranged for the applicant to speak to duty counsel. There was some delay in reaching duty counsel. The applicant was not questioned during this time. Ultimately, the applicant spoke to duty counsel for a few minutes at approximately 12:43 p.m. The interview then took place. During the interview, DC Schembri said that he needed to make sure the applicant was not his brother. The applicant stated, “there’s no way I could be my brother.”

[159] The father, brother, and sister attended at 21 Division, but DC Schembri could not recall how that happened. DC Schembri spoke to the applicant’s brother, who confirmed the applicant’s identity.

Analysis

[160] It is the applicant’s onus to demonstrate on the balance of probabilities that his s. 10(b) rights were violated and that the applicant acted with reasonable diligence in the exercise of his right to choose counsel: Prosper, at pp. 281-282.

[161] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 2, the Supreme Court of Canada held that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). The police must give an additional opportunity to speak to counsel where there is a material change in the detainee’s situation: Sinclair, at para. 43.

[162] The Supreme Court recognized that the initial consultation will be geared to the fact that the police will seek to ask questions. New procedures such as a line up or a polygraph will not generally fall within the scope of an initial consultation for the purpose of s. 10(b). In addition, where there is a change in jeopardy or where the detainee did not appear to understand their right to counsel, the police are generally required to provide a further opportunity to consult with counsel to fulfill the purpose of s. 10(b): Sinclair, at paras. 50-52.

[163] The police provided the applicant with a reasonable opportunity to consult with counsel. The applicant was properly advised of his s. 10(b) rights twice before being interviewed by DC Schembri.

[164] At the scene, PC Singh read the applicant his rights to counsel, the caution, and the breath demand. The applicant indicated he understood and said he wanted to speak to his father to obtain a lawyer. After being told that his father did not have a lawyer, the applicant waived his right to speak to counsel.

[165] PC Baron gave the applicant a Prosper warning to ensure that the applicant understood what he was giving up by waiving his right to speak to counsel. PC Baron also reminded the applicant that he faced charges of impaired operation of a motor vehicle, possession of a restricted firearm and mischief. PC Baron tried repeatedly to encourage the applicant to speak to another lawyer or duty counsel before demanding that the applicant provide a breath sample. The applicant declined to exercise his right to speak to counsel.

[166] The applicant did not act diligently in pursing his rights to counsel prior to the interview with DC Schembri. The applicant was clear that he did not want to speak to any other lawyer aside from one provided by his father. His father did not provide the police with the name of a lawyer. The applicant did nothing further to speak to counsel in the three and a half hours prior to the interview.

[167] While it was generous of DC Schembri to review the applicant’s right to counsel prior to interviewing the applicant and to contact the father again, DC Schembri was not constitutionally required to readvise the applicant of his rights to counsel. As explained in Sinclair at para. 28, once a detainee decides “not to avail himself of the opportunity to consult that has been provided. The right to choose whether to cooperate with the police, the basic purpose of s. 10(b), has been respected in the event of a valid waiver, and there is consequently no breach.” The applicant’s circumstances had not changed since he was first advised of his right to counsel. The applicant’s jeopardy had not changed since he was arrested for the firearm offence. The evidence from the breath technician video does not suggest that the applicant was so impaired that he did not initially understand his s. 10(b) rights and no new procedures were introduced.

[168] However, once DC Schembri made the decision to readvise the applicant of s. 10(b) rights and provide the applicant with an opportunity to speak to counsel, DC Schembri should have held off asking further questions once the applicant indicated that he wished to speak to counsel. DC Schembri’s actions were similar to that of an additional Proper warning. After being re-advised of his right to counsel, the applicant changed his mind and no longer wished to waive his right to speak to counsel.

[169] The situation in this case is different from Sinclair. In Sinclair, the appellant had already exercised his right to speak to counsel and wished to speak to counsel again and have counsel present during the police interview. The majority of the Supreme Court of Canada held that the appellant’s s. 10(b) rights were not violated because the appellant had exercised his right to speak to counsel and the purpose of s. 10(b) had been fulfilled. In this case, the applicant never previously exercised his right to speak to counsel. The police re-extended the opportunity for the applicant to speak to counsel prior to a further interview and the applicant took the police up on their further offer.

[170] In concluding that DC Schembri violated the applicant’s rights to counsel, I do not wish to suggest that DC Schembri should not have readvised the applicant of his rights to counsel. I strongly believe that DC Schembri’s decision to readvise the applicant was prudent and fair to the applicant. However, DC Schembri erred by asking the few questions he did about the applicant’s brother after the applicant indicated he wished to speak to counsel because DC Schembri knew that identity was an issue for the interview.

[171] For these reasons, I find that DC Schembri violated the applicant’s s. 10(b) rights by asking questions about the applicant’s family and brother after the applicant indicated he wished to speak to counsel.

D. Should the Evidence be Excluded Pursuant to s. 24(2) of the Charter?

i) Was the evidence obtained in a manner that violated the Applicant’s Charter rights?

Position of the Parties

[172] The applicant submits that the firearm and the evidence of the applicant’s failure to provide a breath sample were obtained in a manner that violated the applicant’s Charter rights and both should be excluded pursuant to s. 24(2) of the Charter. There is both a temporal and contextual connection between the Charter infringements and the discovery of the firearm and the evidence of the refusal to provide a breath sample.

[173] The Crown submits that the firearm was not obtained in a matter that violated the applicant’s Charter rights because the firearm was seized pursuant to a lawful arrest. It is also the position of the Crown that if there are any other Charter breaches, they are too remote and tenuous to the seizure of the firearm.

[174] With respect to the evidence that the applicant failed to provide a breath sample, the Crown submits that that evidence cannot be excluded because it forms the actus reus of the offence.

Analysis

[175] Section 24(2) of the Charter is not engaged unless the evidence was “obtained in a manner” that infringed the Charter. Because this is a threshold issue the court applies a generous and broad approach in determining if the evidence was obtained in a manner that infringed the Charter. The court must consider the “entire chain of events” between the police and the accused. The connection between the discovery of the evidence and the Charter breach may be sufficient if both events are part of the same transaction or course of conduct. The connection between the evidence and the Charter breach may be “temporal, contextual, causal or a combination of the three”. However, the connection must be more than tenuous: see R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-56.

[176] “Contextual” is defined in Pino, at para. 74, “to mean pertaining to the surroundings or situation in which something happens.”

[177] A temporal link will also often suffice to engage s. 24(2) of the Charter, but it is not determinative if the connection between the securing of the evidence and the breach is too remote. If both the temporal connection and the causal connection are tenuous, the court may conclude that the evidence was not obtained in a manner that infringed a Charter right. However, “the temporal connection may be so strong that the Charter breach is an integral part of a single transaction.” In those cases, “a causal connection that is weak or even absent will be of no importance”: R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40.

i) The Firearm

[178] There is no causal connection between the Charter breaches and the seizure of the firearm because it was seized during a lawful search.

[179] I am not satisfied that there is a sufficient contextual or temporal connection between the s. 10(a) breach and the seizure of the firearm to engage s. 24(2) of the Charter. The s. 10(a) breach lasted for less than a minute. The police had a fresh start when the applicant was arrested and advised of the reason for his detention and arrest. The firearm was located as a result of a lawful search incident to arrest. The lawful arrest of the applicant severed the link between the original taint and the discovery of the firearm: R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at paras. 68-69, referring to R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 2-3.

[180] I am, however, satisfied that there is a sufficient contextual and temporal connection between the subsequent s. 10(b) breach that occurred at the scene after the seizure of the firearm. That breach occurred shortly after the firearm was located and arose from a failure to provide the applicant with his s. 10(b) rights for both the impaired care and control and the firearm offence.

[181] Similarly, I am satisfied that there is a sufficient contextual connection between the s. 10(b) breach by DC Schembri and the firearm because the interview was in relation to the firearm offence.

ii) Failure to Provide Breath Sample

[182] There is no causal connection between the s. 10(a) and s. 10(b) breaches and the applicant’s failure to provide breath samples.

[183] There is also not a sufficient contextual or temporal connection between the s. 10(a) and s. 10(b) breaches and the applicant’s failure to provide breath samples to engage s. 24(2) of the Charter. While the applicant was not initially advised why he was detained, less than a minute later he was advised of the reason he was detained when he was lawfully arrested for impaired care and control.

[184] The applicant’s section 10(b) rights were improperly delayed by approximately five minutes. However, back at the station, the applicant was again advised of his s. 10(b) rights prior to the demand to provide a breath sample. I find that the fact that the applicant was re-advised of his s. 10(b) rights prior to providing a sample severs the link between the original Charter breaches and the failure to provide the breath sample. The applicant was given a fresh start and an opportunity to contact counsel to obtain advice about how to exercise his rights. He declined to do so. As explained by Watt J.A. in Manchulenko, at paras. 68-70:

[68] In some circumstances, conduct by investigators prior to a second statement may sever the link between the original taint and the subsequent statement. In other words, investigators may attempt a “fresh start” in order to insulate the second statement from the taint that rendered the earlier statement inadmissible. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from the earlier Charter breach. Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of the evidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was “obtained in a manner that infringed or denied” any enumerated Charter right of the person charged.

[69] Where the evidence tendered for admission is a subsequent statement to persons in authority, a consultation with counsel may have the effect of severing the subsequent statement from an earlier breach of the right to counsel. But no bright line rule automatically immunizes the subsequent statement from the prior Charter breach. The effect of the later consultation on a determination of whether the subsequent statement was “obtained in a manner” that infringed an accused’s right to counsel requires and falls to be decided on the basis of a fact-specific inquiry.

[70] No principled reason exists to confine the “fresh start” jurisprudence to cases involving successive statements made to persons in authority. The rationale that underpins the “fresh start” principle is the same irrespective of the specific form the evidence proposed for admission takes. [Citations omitted; emphasis added.]

[185] I also find that there is no contextual connection between the s. 10(b) breach by DC Schembri and the evidence that the applicant refused to provide breath samples. The interview conducted by DC Schembri had nothing to do about the impaired investigation. The interview was about the firearm. In light of the lack of contextual connection, I also find that the temporal connection is too remote to engage s. 24(2) given the three and a half hour gap between the breach and the gathering of the evidence.

[186] Given my findings that the evidence of the applicant failing to provide a breath sample was not obtained in a manner that violated the applicant’s Charter rights, it is not necessary that I determine if the evidence of the failure to provide a breach sample cannot be excluded because it is the actus reus of the offence, at this stage of the analysis.

iii) Applying the Grant Factors

[187] In the event that I am wrong in my analysis that the evidence in this case was not “obtained in a manner” that violated the applicant’s Charter rights, I have considered whether the firearm and the evidence of the failure to provide breath samples should be excluded pursuant to s. 24(2). I have considered the impact of the Charter breaches individually and cumulatively in my s. 24(2) Charter analysis.

[188] Under the s. 24(2) Charter analysis, the court must consider the effect of admitting the evidence on society’s confidence in the administration of justice, having regard to the following factors laid out in Grant, at para. 71:

a) the seriousness of the Charter-infringing state conduct;

b) the impact of the breach on the Charter-protected interests of the accused; and

c) society’s interest in the adjudication of the case on its merits.

[189] As the Supreme Court of Canada made clear in Grant and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, evidence cannot be found to be admissible solely on the grounds that the offence is serious, and the evidence is reliable and central to the Crown’s case. The Court of Appeal for Ontario, in R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at para. 56, held that “there is no ‘firearms exception’ requiring that guns obtained in breach of Charter rights be admitted into evidence”. The test for considering whether to exclude evidence obtained contrary to the Charter remains the same. The court must bear in mind the long-term and prospective repute of the administration of justice, focusing less on the particular case than on the impact over time of admitting evidence obtained by infringement of the constitutionally protected rights of the accused.

Position of the Parties

[190] The applicant submits that applying the Grant factors the firearm and the evidence of the failure to provide a breath sample should be excluded pursuant to s. 24(2). The law with respect to s. 10(b) is well settled, which aggravates the seriousness of the breaches. In this case, there was a continual pattern of disregard for the applicant’s Charter rights from the commencement of the investigation and there is a pattern more generally of the Peel Regional Police disregarding s. 10(b) rights. When the various breaches are considered cumulatively, they are serious Charter infringements which favour exclusion of the evidence.

[191] The impact of the Charter breaches is also serious because the Charter breaches continued from the time of the applicant’s initial detention until he was at the police station.

[192] The applicant concedes that the firearm is reliable evidence. However, in this case the seriousness of the Charter breaches and the seriousness of the impact of the Charter breaches mean that the third inquiry will seldom tip the scale in favour of admission. The administration of justice would be brought into disrepute if the firearm and evidence of failing to provide breath samples were admitted.

[193] The Crown submits that none of the Charter breaches were serious. The delay in providing the applicant his s. 10(b) rights at the scene was reasonable given the situation and the fact that this was the first time that PC Singh discovered a firearm as a police officer. The Crown submits that there is no evidence of systemic disregard for the rights to counsel on the part of the Peel Regional Police. In this case, the police made significant efforts to attempt to convince the applicant to speak to counsel.

[194] It is the position of the Crown that any impact of the breaches was minimal. The s. 10(a) breach was of a short duration. No evidence was obtained by any s. 10(b) breach at the scene. The information obtained by DC Schembri was available from multiple sources and the applicant ultimately spoke to duty counsel before being interviewed by police, limiting the impact of the prior s. 10(b) breach.

[195] With respect to the third factor, the Crown submits that society has a high interest in seeing the impaired care and control and firearm offences tried on their merits. When the three Grant factors are considered, the refusal and the firearm should be admitted.

Analysis

a. Seriousness of State Misconduct

[196] This factor involves a determination of whether the admission of the evidence would send a message to the public that courts condone serious state misconduct. Inadvertent or minor violations may minimally undermine public confidence in the rule of law. In contrast, wilful or reckless disregard for Charter rights or egregious conduct “will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: Grant, at para. 74. As noted in Grant, at para. 72: “The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to disassociate themselves from that conduct”.

[197] I begin with the s. 10(a) Charter breach. On its face, the failure to advise the applicant as to why he was detained by police is a serious violation. However, the seriousness of the violation was significantly minimized because within a minute the applicant was advised that he was being arrested for impaired care and control. I find that the s. 10(a) breach is moderate. I do not find that PC Singh acted with a flagrant disregard for the applicant’s Charter rights. PC Singh explained that he wanted to get the applicant out of the car so that the applicant did not take off. This was a poor judgment call made quickly in the circumstances.

[198] Turning to the s. 10(b) Charter breach at the scene. I do not find the approximate five-minute period where PC Singh delayed reading the applicant his s. 10(b) rights and looked for exhibit bags to secure the firearm, to be a flagrant disregard for the applicant’s s. 10(b) rights. This was the first time this officer had ever discovered a firearm during an arrest. It appears that PC Singh was trying to ensure that the firearm was dealt with properly and made that a priority. PC Singh was misguided in not asking another officer to deal with the firearm, after the passenger was arrested and secured and the firearm was rendered safe. PC Singh should have read the applicant his rights to counsel. I find this breach to be moderately serious.

[199] Similarly, I do not find that PC Singh blatantly disregarded the applicant’s s. 10(b) Charter rights when he asked the applicant if he had anything to drink. I find that this was a slip as opposed to an intentional effort to obtain evidence from the applicant after he expressed his wish to speak to counsel. PC Singh asked this one question. He should not have done that. However, he did not continue to question the applicant further, minimizing the seriousness of the breach. On the car ride back to the station, PC Singh held off asking further questions of the applicant, respecting the applicant’s right to counsel. It was the applicant who talked to PC Singh to convince the officer to help him out. Once at the station, the police acted on the implementation of the applicant’s s. 10(b) right: Pileggi, at para. 117.

[200] I find that the s. 10(b) breach by DC Schembri was not serious. DC Schembri had asked for the applicant’s father’s phone number and in that context asked who was at home and who were members of his family. I accept DC Schembri’s evidence that when he asked those questions, proving identification was not top of mind. DC Schembri did not ask any substantive questions about the firearm before the applicant spoke to counsel.

[201] I do not accept the applicant’s submission that PC Singh’s conduct is yet another example of Peel Regional Police’s blatant disregard for complying with detainees’ s. 10(b) rights. The arrest of the applicant unfolded in an unexpected manner. PC Singh had to make quick decisions in a very stressful situation.

[202] This is not like R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, or R. v. Sandhu, 2017 ONCJ 226, 378 C.R.R. (2d) 306. In Thompson, the Court of Appeal held that the police’s decision to delay reading the applicant’s right to counsel for 11 minutes while the police searched the appellant’s car incident to the appellant’s arrest violated s. 10(b) of the Charter. The Court of Appeal expressed concern that the officers appeared to believe their obligation was to advise the appellant of his rights to counsel as soon as practicable: at paras. 90-96. This belief by the officers in Peel Regional Police appeared to be a systemic issue, as discussed in Sandhu, at paras. 8-11.

[203] In Sandhu, the officers also testified that they believed they had to provide the accused with the rights to counsel as soon as practicable: at para. 4. In that case, the officer arrested the accused and placed her in the back of his police cruiser. He then went and had a conversation with the passengers of the vehicle and advised them they would have to find an alternative means home. The officer then returned to his police cruiser and wrote his notes before he advised the accused of her rights to counsel. The delay was 9 minutes.

[204] In this case, PC Singh testified that he understood that the applicant was to be given his rights to counsel immediately. PC Singh made a judgement call to personally secure and properly make the firearm an exhibit before reading the applicant his rights to counsel. He should have delegated this task to another officer, but I do not find that this was a blatant disregard for the applicant’s rights. PC Singh did not go speak to other members of the public or write up his notes before he read the applicant his s. 10(b) rights. He waited until the scene was secure and then secured the firearm before providing the applicant with his s. 10(b) rights. The fact that PC Singh contacted the applicant’s father upon returning to the station to facilitate the applicant obtaining counsel further demonstrates that PC Singh was not acting with flagrant disregard for the applicant’s s. 10(b) rights.

[205] These factors do not favour exclusion of the evidence.

b. Impact of the Breaches

[206] The impact of the breach of the applicant’s s. 10(a) Charter rights was minimal given the short period of time the breach lasted. The breach ended when the applicant was advised that he was being detained because he was under arrest for impaired care and control.

[207] The impact of the s. 10(b) breach at the scene was moderate. While I appreciate the significance to an accused person of being provided their rights to counsel immediately, this was not a situation where the applicant waited for hours to have access to counsel as in R. v. Miller, 2019 ONSC 7417. Here, there was a delay of approximately five minutes in providing the applicant with the informational component of his s. 10(b) rights.

[208] Similarly, the impact of PC Singh asking the applicant if he had anything to drink was minimal. The question was not answered, and PC Singh did not attempt to ask further questions of the applicant.

[209] The impact of DC Schembri asking the applicant about his family and brother had minimal impact on the applicant’s Charter rights. The applicant’s identity was available from several other sources.

[210] These factors do not favour exclusion of the evidence.

c. Society’s Interest in Adjudication on the Merits of Justice

[211] The firearm is real evidence that is critical to the Crown’s case. The admission of the firearm would enhance the truth-seeking function of the trial.

[212] The evidence of the applicant’s failure to provide a sample is also crucial to proving the charge of failing to provide a breath sample. As such, the admission of this evidence also enhances the truth-seeking function of a trial.

[213] These factors do not favour exclusion of the evidence.

d. Balancing the Factors

[214] As stated by Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, when the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence.

[215] The Charter violations were not the most serious. PC Singh and PC Schembri did not act with flagrant disregard for the applicant’s rights. The impact of the Charter breaches on the applicant were also not on the serious end of the spectrum and in fact were minimal. The evidence of the firearm and failure to provide a breath sample are crucial to the truth seeking function of the criminal justice system. The long-term repute of the administration of justice does not favour exclusion of either the firearm or the evidence of failing to provide a breath sample.

[216] The applicant’s application to have the firearm and evidence of the failure to provide a breath sample is dismissed.

E. Voluntariness/Hearsay Application

[217] The Crown brought an application to introduce the statements of the applicant confirming his identity. The Crown also sought to introduce the statement made by the applicant’s brother, pursuant to the self-identification exception to the hearsay rule.

[218] The parties did not spend any time in oral submissions on the voluntariness and hearsay application. The applicant fairly concedes that the identification evidence is a recognized exception to the hearsay rule and would be admissible at trial.

[219] Self identification evidence is one of the traditionally recognized exceptions to the hearsay rule. The exception is that evidence where an individual identifies themselves by a particular name is admissible to show that they are that individual: R. v. Farah and Khattak, 2016 ONSC 2081, 30 C.R. (7th) 148, at paras. 55-57; R. v. Henry, 2006 CanLII 34718 (Ont. S.C.). Therefore, the evidence that the brother and the applicant gave to the police regarding their identities is admissible at trial.

[220] I am also satisfied that the statements made by the applicant on video are voluntary after considering the evidence and reviewing the video. There is no evidence that any officer who had contact with the applicant made any threats or promises to the applicant. The police readvised the applicant of his rights to counsel before taking the statement. The applicant does not appear to be upset. The tone of the interview was not aggressive in any way. While the applicant answered some more general questions, he invoked his right to silence as it related to the offence and therefore did not succumb to the pressure to falsely confess to the allegations. See R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.

[221] The Crown’s voluntariness and hearsay application is granted.

Dennison J.

Released: July 21, 2021

COURT FILE NO.: CR-20-00000181-00

DATE: 2021 07 21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Respondent

• and -

RAMANDIP SEERA

Accused/Applicant

REASONS FOR JUDGMENT

Dennison J.

Released: July 21, 2021