I. Overview

[1] Nathan Coates is being tried before me on an indictment that charges him with four criminal offences, all arising out of a motor vehicle accident that occurred in the early evening of September 29, 2019. It is alleged that Mr. Coates was driving a van that struck and seriously injured a motorcyclist, and that he then failed to remain at the accident scene.

[2] Mr. Coates stands charged as follows:

Count 1: causing bodily harm while operating a conveyance and while committing an offence under s. 320.14(1) of the Criminal Code, contrary to s. 320.14(2);

Count 2: having a blood alcohol concentration of over 80 mg/100 ml blood within two hours of operating a conveyance, contrary to s. 320.14(1)(b);

Count 3: dangerous operation of a conveyance causing bodily harm, contrary to s. 320.13(2); and

Count 4: failing to stop after an accident and render assistance, contrary to s. 320.16(1).

[3] Mr. Coates was arrested a few kilometres away from the accident scene at the side of the road beside his disabled van. He was taken to a police station, where he was ultimately compelled to provide breath samples. The breath tests results show that he had a blood alcohol concentration well above the legal limit. The defence has brought a pre-trial application seeking to have the breath test evidence excluded under s. 24(2) of the Charter, alleging that Mr. Coates’s ss. 8, 9 and 10 Charter rights were breached in various ways.

[4] As I will now explain, I am satisfied that some, although not all, of the Charter breaches the defence alleges have been made out. I have also concluded that in the circumstances here the balance of relevant factors favours excluding the breath test evidence under s. 24(2).

II. Factual background

A. The initial accident report

[5] At approximately 7:15 pm on the evening of Sunday, September 29, 2019, the York Regional Police received a 911 call from Stewart Sweeney, who was badly injured and using his cell phone to call from the side of Highway 7. Mr. Sweeney reported that he had been riding his motorcycle westbound when he was struck by an oncoming van just west of York-Durham Line. He reported that his leg and shoulder were injured and that he was in “a lot of pain”, and that he could not feel his arm. The police dispatcher sent out a radio report advising officers that it “looks like it is going to be a hit and run”.

[6] Over the next fifteen minutes Mr. Sweeney remained on the phone while paramedics and police officers went to the accident scene and tried to find him at the side of the road. The paramedics arrived shortly before 7:30 p.m. and the first police officer, PC Clarke, got there a few minutes later. PC Clarke advised the police dispatcher that Mr. Sweeney’s “leg is totally messed up”, and that he was going to be taken to Sunnybrook Hospital. He also reported that there was debris all over the road, and confirmed that Mr. Sweeney had been travelling west along Highway 7 and that the other vehicle involved in the collision had been going east.

[7] A few minutes later, after confirming that the vehicle that struck Mr. Sweeney’s motorcycle had not remained at the scene, the police dispatcher advised all units that the accident scene would be “locked down” and that “major collision” would be notified. Det. Sgt. Chi Bhatt,[^1] who is the head of the York Regional Police’s Major Collision Investigation Unit (MCIU), explained in his testimony on the Charter voir dire that the MCIU investigates motor vehicle collisions where there has either been a fatality or a life-threatening injury, or when there has been a serious injury and another motorist involved in the accident fails to remain at the scene.

[8] At 7:35 p.m. that evening Det. Sgt. Bhatt received a call at home from Staff Sgt. Graham, who was the duty officer at the YRP’s Real Time Operations Centre (RTOC). Det. Sgt. Bhatt explained in his testimony that the RTOC is responsible for arranging staffing in response to emergency calls, and that Staff Sgt. Graham called him that evening so that he could organize an MCIU team to investigate the accident.

[9] Staff Sgt. Graham reported that there was a motorcyclist in the ditch who had sustained serious injuries and was likely to lose his foot, but Det. Sgt. Bhatt did not know the source of this information. He proceeded to call two other MCIU officers, Det. David Pozzobon, who ultimately became the officer in charge of the investigation, and Det. Cst. Derek Cadieux,[^2] who is trained as an accident reconstructionist, and they arranged to meet at police headquarters.

B. Information received about Mr. Coates’s van

[10] At around this same time, the YRP dispatcher began receiving reports about a damaged vehicle parked on the side of Highway 7 some ways east of York-Durham Line. One of these reports was called in by Steven Middleton, a tow truck driver with Impact Towing. He was off duty and was driving his personal vehicle that evening but had a two-way radio with him. He had passed by the accident site driving east, and when he saw a damaged van at the side of the road further to the east he had stopped and spoken to the driver.

[11] PC Clarke made a radio call advising the dispatcher:

I’ve just got a passerby says that car that hit this gentleman is just east of York-Durham Town Line. The guy’s hammered.

The dispatcher responded that they had also received a call about a vehicle in that location, and asked PC Clarke if his person had said how far east the vehicle was. Another officer, PC Melinda Finn, responded that she thought she had seen a vehicle on the side of York-Durham Line just south of the accident site. PC Clarke added that a “guy in a white BMW was trying to hold him down, just keep him there”, and that this was “one of the tow truck guys that I’m talking to right now”. An entry on the police mobile data terminal at 7:44 p.m. states:

Compl from Impact Towing off with veh silver Nissan @APMB852 suspects driver is impaired 2-3 km east of town line believed to be involved in this MVC.

C. PC Zec is sent to find the van

[12] The dispatcher advised that she would try to find a unit who could look for the reported vehicle at the side of the road. PC Pavol Zec, who had been on a different call, radioed an offer to assist. He turned on his cruiser’s overhead lights, which activated his in-car camera, and drove a short distance to the accident site on Highway 7 west of York-Durham Line, where he stopped and asked A/Sgt. Dana Cuff, who was the senior officer at the scene:

Where’s the witness that you were talking about? Is he over there, on York Durham Line?

A/Sgt. Cuff replied: “He’s with the possible …”. PC Zec responded:

OK, cause I’m going to be arresting this guy, transport him, so I’ll get Randy to deal with that, then.

PC Zec then radioed another officer, PC Randy Lo, who responded that he was already assigned to a different call.

[13] PC Zec drove east from the accident site. Mistakenly believing that the suspect vehicle was on York-Durham Line rather than on Highway 7, he turned and drove south for some distance on York-Durham Line before radioing the dispatcher to confirm whether he was looking in the right area. The dispatcher responded that the vehicle PC Zec was looking for had actually been reported on Highway 7, east of York-Durham Line and west of Brock Road. PC Clarke, who by this time was following the ambulance that was taking Mr. Sweeney to Sunnybrook Hospital, made a radio call confirming this, which he addressed to the “unit going to the drunk driver”.

[14] After receiving this information PC Zec doubled back and returned to Highway 7. PC Finn, who by this time was at the Highway 7/York-Durham Line intersection stopping westbound traffic, radioed PC Zec to ask if he wanted her to follow him and provide backup, but he declined her offer and said he would call her if he needed assistance.

[15] After turning east onto Highway 7, PC Zec asked the dispatcher at 7:58 p.m. if the vehicle he was looking for was really “all the way at Brock Road, ‘cause that’s pretty far”. The dispatcher responded that this information had come from the Impact Towing caller, who was on scene, but that she was not sure if the information about it being as far as Brock Road was accurate. PC Zec added he had seen debris on the road east of York-Durham Line “from his car, possibly”. A short while later, at 7:59 p.m., the dispatcher instructed PC Finn to follow PC Zec, advising: “We’re getting another call that this male party is trying to take off from our citizen helpers”. PC Zec recalls that he sped up when he heard this, and the sound of his engine revving is audible on his in-car camera recording.

D. PC Zec arrests Mr. Coates

[16] Soon afterwards PC Zec arrived at the location on Highway 7 where Mr. Coates’s van and two other vehicles were parked on the south side of the road. Mr. Middleton’s vehicle was parked directly in front of the van, and a tow truck Mr. Middleton had called to the scene was parked behind the van. The in-car video shows two men standing beside the driver’s side door of the van. Based on what happens later on the video recording, they can be identified as Mr. Coates and Mr. Middleton.

[17] PC Zec pulled his cruiser alongside the van at 19:59:50, as shown on the in-car video time stamp. He testified that at this point he noticed that the front left corner of the van was badly damaged and that the vehicle did not look driveable. At 19:59:56 the in-car camera’s audio track records the sound of PC Zec’s door opening and then closing. He then can be heard asking “Where’s the driver”, and someone off-camera replies: “Right there. 253, 100%”.

[18] Mr. Middleton, whose preliminary inquiry evidence was adduced as evidence on the Charter voir dire, testified at the preliminary inquiry that did not recall saying this to PC Zec, but he agreed that the term “253” – which is the section number of the previous Criminal Code impaired driving provision – is a tow truck driver’s radio code for impaired driver, and he acknowledged using this phrase earlier when he was talking to the police dispatcher. I am satisfied that the inference can readily be drawn that Mr. Middleton must have also been the person who said this to PC Zec.

[19] PC Zec explained in his voir dire testimony that the expression “253” would have meant nothing to him at the time since he mainly worked at a desk job and had only limited experience with impaired driving cases. He testified that he instead recalled Mr. Middleton saying: “He’s hammered”. After listening to his in-car camera’s audio recording, which does not reveal Mr. Middleton or anyone else speaking these words, PC Zec explained that he now “remember[ed] his lips saying that in a whispering voice”.

[20] PC Zec then asked: “This guy’s the driver?”. Mr. Middleton replied: “Yes, he’s the one that hit the bike up the street”. During this exchange PC Zec is still off camera at the driver’s side of his cruiser, and Mr. Middleton is also off camera on the opposite side of the cruiser, at the side of road.

[21] PC Zec can then be seen walking from left to right across the front-facing car camera’s field of view, towards the side of the road. He points his finger and can be heard asking someone off camera if he is the driver of “that car”. Someone, apparently Mr. Coates, replies: “That car?”, and another person, apparently Mr. Middleton, replies that it is his vehicle. At 20:00:12 PC Zec passes off camera to the right.

[22] A few seconds later, at 20:00:18, a ratcheting sound can be heard on the recording, which PC Zec identified in his voir dire testimony as the sound of him handcuffing Mr. Coates.

[23] At 20:00:40 the rear seat camera in PC Zec’s cruiser shows the rear driver’s side door opening and Mr. Coates, whose hands are cuffed behind him, getting into the back seat. PC Zec can then be seen walking in front of his cruiser and radioing PC Finn to tell her that she can slow down, reporting: “I have him in custody, everything’s good”. The dispatcher then radios for PC Zec to confirm that he has the “male party in custody”, and he confirms that he does, adding “one under arrest”.

[24] At 20:01:56 PC Zec can be heard on the recording making a radio report submitting the van’s licence plate number. He then drives his cruiser forward and parks it at the side of the road ahead of Mr. Middleton’s vehicle. At 20:03:05 the video shows PC Zec opening the rear door and directing Mr. Coates to get out so he can search him. He proceeds to go through Mr. Coates’s pockets while they both stand in front of the cruiser, and at one point PC Finn comes over to assist. The video footage shows PC Zec taking various items out of Mr. Coates’s pockets and putting them on the hood of the cruiser. At 20:04:58 he puts Mr. Coates back in the rear of the cruiser.

[25] At 20:06:04 PC Zec can be seen returning to the front of his cruiser with some bags and using them to bag Mr. Coates’s property, which is still sitting on the hood of the cruiser. This takes him less than a minute, and at 20:06:57 he can be heard telling Mr. Coates: “Nathan, I have all your property here, OK?”. PC Zec explained in his voir dire testimony that by this time he had recognized Mr. Coates as a fellow YRP officer whose name he knew. PC Zec then asks Mr. Coates to confirm that he heard what PC Zec just said to him, and Mr. Coates replies: “Yep”.

[26] At 20:07:42, PC Zec can be heard telling Mr. Coates that he will read him his right to counsel. He proceeds to advise him: “I’m arresting you for impaired operation of a motor vehicle, by alcohol”. He can then be heard reading out the standard-form right to counsel information from the back of his memo book. When PC Zec asks Mr. Coates if he understands, Mr. Coates replies: “I understand”. PC Zec then asks if he wants to call a lawyer now, and Mr. Coates replies: “No”. PC Zec then reiterates that Mr. Coates will be charged with “impaired operation of a motor vehicle by alcohol” and proceeds to caution him, and Mr. Coates again confirms that he understands.

[27] Importantly, PC Zec did not follow up his readings of the s. 10(b) information and the caution by making a breath demand. He explained in his voir dire testimony that he meant to compel Mr. Coates to provide breath samples once he was brought to the police station, but simply forgot to make the breath demand at the roadside. However, the in-car camera audio recording does not reveal him saying anything to Mr. Coates about his having to provide breath samples.

[28] At 20:11:45 PC Zec radioed that he would be transporting his prisoner to 5 Division. The in-car camera shows him then doing a U-turn, and before driving away he can be heard speaking to PC Finn about whether emergency services are needed. He asks: “Nathan, do you want EMS”, to which Mr. Coates replies: “No”. Mr. Coates has no obvious injuries that are observable on the in-car camera video, but the defence has adduced evidence that he was later diagnosed with a concussion.

E. Mr. Coates’s arrival at 5 Division and booking

[29] The in-car camera audio recording shows that PC Zec and Mr. Coates did not have any further conversation during the drive to 5 Division. PC Zec’s cruiser can be seen pulling into the 5 Division sallyport at 8:26 p.m., but Mr. Coates can then be seen waiting in the back seat of the cruiser until 8:42 p.m., apparently because the booking sergeant was busy dealing with another matter.

[30] Meanwhile, PC Chad Scott, a breath technician, had heard the accident reports on the radio. Anticipating that he might be called in, he went to 5 Division and was already in the parking lot when he was contacted at 8:29 p.m. and directed to attend the station.

[31] The booking video, which was filed as an exhibit on the voir dire, does not have an audio recording, but the conversation at the booking desk between the staff sergeant, PC Zec and Mr. Coates is captured on the audio track of the in-car recording from PC Zec’s cruiser, which at this point was still parked in the sallyport.

[32] The staff sergeant can be heard on the recording asking Mr. Coates if “the officer told you what you’re under arrest for”, to which Mr. Coates inaccurately replies: “No”. There is then some discussion about removing Mr. Coates’s handcuffs, after which the staff sergeant directs PC Zec to tell Mr. Coates the reason for his arrest, and PC Zec responds: “Impaired operation of a motor vehicle by alcohol”.

[33] The staff sergeant then comments to Mr. Coates that PC Zec “probably read your rights to counsel”, and Mr. Coates replies: “Yeah”. This leads to the following exchange:

STAFF SERGEANT: Okay. So just bear with me. You want to speak to a lawyer?

MR. COATES: Yeah

STAFF SERGEANT: If you have a lawyer, that’s fine, we can call them. If you have somebody in mind but you don’t have the number, we can certainly look them up for you, and they’re also – you can also have Duty Counsel, that’s free legal advice.

MR. COATES: Yeah.

STAFF SERGEANT: Or you can opt to not speak to anybody, okay? So do you have a lawyer?

MR. COATES: No.

STAFF SERGEANT: Is there somebody you’d like to speak with or Duty Counsel?

MR. COATES: Just duty counsel.

STAFF SERGEANT: Duty Counsel? That’s fine.

[34] The staff sergeant proceeds to ask Mr. Coates a series of questions, including whether he has had any alcohol or drugs that day, to which Mr. Coates replies: “Alcohol, yes, drugs, no”. PC Zec then can be heard asking Mr. Coates to remove the drawstring from his sweatpants and take off his shoes. He then asks if Mr. Coates wants him to call his wife or anyone else on his behalf, but Mr. Coates declines this offer. At 8:46 p.m. PC Zec can be seen on the booking video leading Mr. Coates to the door in the hallway going to the holding cells.

[35] Importantly, neither PC Zec or the staff sergeant said anything to Mr. Coates at any point during the booking process about the police intending to compel him to provide breath samples, even though by this time PC Scott had already been summoned to 5 Division for that purpose and was in the breath room readying his equipment.

[36] After PC Zec moved his cruiser out of the sallyport he came back into the station and called duty counsel, leaving a message. He was not sure exactly when he made this call but concluded from his notes that it must have been at some point before 9:11 p.m., when he told PC Scott that he had done this.

[37] PC Zec testified that in his message to duty counsel he said only that Mr. Coates had been arrested for impaired operation of a motor vehicle, but did not mention that there had been an accident or that the other motorist involved had been seriously injured. There is also no evidence that PC Zec told duty counsel that the police intended to compel Mr. Coates to provide breath samples, or that he revealed in his message that neither he nor any other officer had yet made a breath demand.

F. Information Det. Sgt. Bhatt received before he attended the accident scene

[38] At 8:00 pm, Det. Sgt. Bhatt was advised by the ROTC sergeant that a civilian witness had located a male with a damaged vehicle not far from the scene, and that the damaged vehicle was owned by a YRP officer, Mr. Coates, but that it was not yet known if he was the driver.

[39] At around 8:15 p.m., while PC Zec was still transporting Mr. Coates to 5 Division after arresting him, Det. Sgt. Bhatt had several phone conversations with A/Sgt. Cuff, who was still at the accident scene. She reported that the injured motorcyclist had been taken to hospital and would need to have part of his foot amputated, and that the suspect driver had been arrested for impaired operation and was being transported to 5 Division.

[40] Det. Sgt. Bhatt agreed that he knew at this point that the charges against the driver of the van would need be upgraded from the offence of impaired operation simpliciter for which he had been arrested. He frankly acknowledged that he should have taken steps to ensure that this was communicated to the arresting officer or someone else at 5 Division so that the arrestee, whose identity Det. Sgt. Bhatt did not yet know, could be informed of his increased jeopardy. By way of explanation rather than as an excuse, Det. Sgt. Bhatt noted he had been busy at the time organizing his investigative team so they could get to the accident scene while it was still relatively undisturbed.

[41] A few minutes after he arrived at police headquarters Det. Sgt. Bhatt was informed by the ROTC sergeant that the arrested driver was indeed Mr. Coates. Det. Sgt. Bhatt then spoke by phone with Mr. Middleton, and at 8:45 p.m. he and his team left police headquarters to drive to the accident scene.

G. PC Zec’s discussions with PC Scott

[42] By shortly after 9:00 p.m. PC Scott had finished testing the approved instrument, an Intoxilyzer 8000C, and considered himself ready to proceed with the breath test once he had obtained PC Zec’s grounds from him, and once Mr. Coates had spoken to duty counsel.

[43] Events in the breath room were also video-recorded, and unlike the booking desk video the video from the breath room has its own audio track. The breath room video shows PC Scott receiving a phone call at 9:02 p.m., which is evidently from a senior officer who he addresses as “sir”, and whose phone number he writes down. Det. Sgt. Bhatt made a note about calling PC Scott at 5 Division and asking to be notified once he had the breath test results. Although Det. Sgt. Bhatt noted making this call half an hour later, at 9:30 p.m., the video does not show P.C Scott receiving any other phone calls during this time frame, and I think it can reasonably be inferred that the call PC Scott can be seen receiving at 9:02 p.m. was made by Det. Sgt. Bhatt while he and his team were still driving from headquarters to the accident scene,

[44] At approximately 9:10 p.m. the breath room video shows PC Zec entering and starting to give PC Scott his grounds for arrest. Some nine minutes into this conversation, at 9:19 p.m., PC Zec can be heard telling PC Scott that he did not make a breath demand after he arrested Mr. Coates. PC Scott explained in his voir dire testimony that when PC Zec told him this he was unsure what to do, since he had never previously dealt with a situation where the arresting officer had not made a breath demand at the roadside.

[45] A few seconds after PC Zec revealed his omission to the breath technician he can be heard on the audio recording being paged, evidently about the callback from duty counsel. He then leaves the breath room and can be seen answering the call at the front desk, routing it to the phone room and taking Mr. Coates to the phone room from the cells.

[46] The video shows Mr. Coates entering the phone room at 9:21 p.m. PC Zec stands outside in the hallway for several minutes before returning to the breath room at 9:26 p.m. and asking PC Scott if he should do the breath demand now. PC Scott’s reply is that he can do this if he wants, but that PC Scott would be making his own breath demand after Mr. Coates was brought to the breath room. PC Zec confirmed for PC Scott that Mr. Coates was still speaking to duty counsel.

[47] At 9:28 p.m. Mr. Coates can be seen coming out of the phone room. PC Zec then takes him back to the cells. The officers agreed that PC Zec did this because PC Scott had previously told him that he needed some time to enter the time of the offence into the Intoxilyzer. At 9:31 p.m. PC Scott can be heard telling PC Zec to bring Mr. Coates into the breath room, which PC Zec then proceeds to do.

[48] When Mr. Coates arrives in the breath room PC Scott reads a breath demand, at 9:32 p.m., and then begins administering the breath tests. At the conclusion of the breath test process he can be heard telling Mr. Coates that he has blown over, with readings that will be truncated to 140 mg/ml blood. PC Scott then can be seen and heard calling Det. Sgt. Bhatt at 10:04 p.m. and advising him of the breath test results.

H. The Major Collision Unit’s investigation of the accident scene

[49] Det. Sgt. Bhatt and his team arrived at the accident scene at 9:30 p.m. and conducted a walk-through, during which they noticed debris and what appeared to be human flesh on the roadway. The accident reconstructionist, DC Cadieux drew conclusions from the location of the debris that led him to believe that the van had probably been travelling in the oncoming lane.

[50] The MCIU team then drove to the location where the van was parked, where they noticed significant front-end damage on the driver’s side and what appeared to be human flesh near the driver’s side door. This confirmed their belief that the van was the other vehicle involved in the accident. These observations led Det. Sgt. Bhatt to conclude that he now had grounds to also charge Mr. Coates with dangerous driving causing bodily harm.

[51] Det. Sgt. Bhatt and Det. Pozzobon then drove to 5 Division to do paperwork. They had decided by this time that Mr. Coates would be held for a bail hearing. At 10:40 p.m., Det. Sgt. Bhatt spoke to PC Clarke, who confirmed that the victim would be having his left foot amputated.

I. Det. Sgt. Bhatt and Det. Pozzobon re-arrest Mr. Coates

[52] At 11:25 p.m. Det. Sgt. Bhatt and Det. Pozzobon went into the holding cells at 5 Division to advise Mr. Coates that he was facing more serious charges, and that he would be held for a bail hearing. Det. Pozzobon audio-recorded this conversation.

[53] Det. Sgt. Bhatt can be heard on the recording introducing himself and telling Mr. Coates that he understood that he had been advised he was “under arrest for impaired”, and then saying: “The reason I’m here is to let you know what your jeopardy is”. Det. Sgt. Bhatt then explains to Mr. Coates that he is being charged with impaired operation causing bodily harm, “over 80” cause bodily harm, dangerous operation cause bodily harm, and fail to stop at an accident, and that he will be held for a bail hearing.

[54] Det. Pozzobon then can be heard asking Mr. Coates if he wants to make a statement at some point that night, but Mr. Coates declines this offer.

[55] Det. Sgt. Bhatt can also be heard telling Mr. Coates that his parents had come to the station, but that he is not sure if they were still there. He also informs Mr. Coates that he will be transferred to another police division to be held until his bail hearing the next morning. Det. Sgt. Bhatt explained in his voir dire testimony that this transfer was being done as a courtesy to Mr. Coates, since he worked out of 5 Division and they did not think he would want to be held in custody there overnight.

[56] Det. Sgt. Bhatt and Det. Pozzobon left the cell area but quickly realized that they had forgotten to re-advise Mr. Coates of his right to counsel. They then returned to the cells and Det. Pozzobon began making a new audio recording.

[57] Det. Sgt. Bhatt can be heard on the second recording explaining to Mr. Coates:

The reason I came back is I just told you what the new charges, or what the full breadth of the charges are. Based on the fact that your jeopardy has changed slightly, you are privy to speak to counsel again, OK. Would you like to speak to duty counsel again?

Mr. Coates replies: “Sure”, and Det. Sgt. Bhatt says they will arrange it.

[58] Det. Sgt. Bhatt explained in his voir dire testimony that he did not know why he told Mr. Coates that his jeopardy had changed “slightly”, and he acknowledged that this was a “very poor choice of words” and a “major faux pas”.

III. Analysis

A. The burden of proof

[59] Charter applicants must ordinarily establish on a balance of probabilities that their rights have been infringed by the state. However, warrantless searches and seizures are presumptively unreasonable and violate s. 8 of the Charter. The Crown must prove on a balance of probabilities that a particular warrantless search or seizure was reasonable. This requires the Crown to establish, among other things, that it was authorized by law.

[60] The reversal of the usual burden of proof in warrantless search and seizure cases can have further implications for which party bears the burden in relation to breaches of the s. 9 Charter right against arbitrary detention. As Paciocco J.A. explained in R. v. Gerson-Foster, 2019 ONCA 405 at para. 75:

Warrantless searches are presumptively unreasonable, and where, as here, the Crown seeks to rebut that presumption by claiming a search was lawfully conducted incident to an arrest, the Crown must show that the arrest was lawful: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 87. In order to avoid inconsistent outcomes on the same issue because of conflicting burdens, where the arrest the Crown is relying upon to justify the search incident to arrest is subject to an s. 9 challenge, the Crown will carry the burden on both of the overlapping ss. 8 and 9 claims and must prove that the arrest was legal: R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 82-83; R. v. Brown (1996), 1996 CanLII 1794 (ON CA), 47 C.R. (4th) 134 (Ont. C.A.); R. v. Besharah, 2010 SKCA 2, 251 C.C.C. (3d) 516, at paras. 32-35.

[61] The situation in this case is somewhat different, since the Crown seeks to justify the warrantless seizure of Mr. Coates’s breath samples under s. 320.28 of the Criminal Code, not under the common law search incident to arrest power. However, s. 320.28 requires police officers to have reasonable grounds to believe that person being subjected to a breath demand has “operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol”. This is the same the legal standard that authorizes an officer to make a warrantless arrest of the person under s. 495 for committing the s. 320.14(a) offence of impaired operation of a conveyance. An unlawful arrest violates s. 9 in the same way that an unlawful search or seizure violates s. 8: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 55.

[62] Since the Crown bears the burden under s. 8 of justifying the warrantless seizure of breath samples, I think that the need to avoid inconsistent outcomes requires the burden under s. 9 to also shift to the Crown. In summary, it is the Crown’s burden to demonstrate that the arrest of Mr. Coates and the seizure of his breath samples were both lawful.

B. The alleged Charter breaches

1. Section 9: Did PC Zec have reasonable grounds to arrest Mr. Coates for impaired operation of a conveyance?

[63] It is undisputed that PC Zec arrested Mr. Coates for operating a conveyance while impaired by alcohol, but not for any other offences. The defence argues that the officer did not have sufficient grounds to justify the arrest on this basis.

[64] Although PC Zec did not tell Mr. Coates that he was under arrest until several minutes after he first handcuffed him, I am satisfied that he arrested him when he took hold of Mr. Coates’s person and handcuffed him with the intention of arresting him: see R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217 at para. 24. PC Zec did this approximately 12 seconds after he got out of his cruiser.

[65] For the arrest to be lawful, PC Zec must have subjectively believed that he had sufficient grounds to arrest Mr. Coates for impaired operation, and his grounds must have been objectively reasonable. As Jamal J. recently explained in R. v. Tim, 2022 SCC 12:

The applicable framework for a warrantless arrest was set out in R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51. A warrantless arrest requires both subjective and objective grounds. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint. The objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer. The police are not required to have a prima facie case for conviction before making the arrest (see also R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 24; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, at para. 28; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 45-47; R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 73).

[66] Assessing the adequacy of PC Zec’s grounds requires me to weigh the credibility and reliability of his testimony. He was in many respects a problematic witness. He was defensive and combative during cross-examination, seeming to approach most questions that were put to him as if he sensed a trap. Of particular concern, PC Zec seemed intent on walking back much of his evidence at the preliminary inquiry, where he had frequently agreed that suggestions put to him by defence counsel were “fair”. He explained in his voir dire testimony that he had only meant by this that these suggestions were possible, not that he agreed with them. I do not find this explanation very plausible, and formed the impression that PC Zec was trying to adjust his evidence to bolster what he understood to be the Crown’s position on this Charter application.

[67] That said, some aspects of PC Zec’s evidence about what he knew and believed at the time he arrested Mr. Coates are confirmed by other evidence, including his in-car camera video recording and the evidence of other witnesses.

[68] Before PC Zec arrived at the location of Mr. Coates’s van, he knew that there had been an accident involving a collision between a van and a motorcycle, and he knew that the van had driven away from the scene leaving a trail of debris. He also knew that the accident occurred at around 7:15 p.m., which would have been around dusk at that time of year, and that the weather and road conditions had been good.

[69] PC Zec had also received a radio call advising that the civilians at the scene where the van was parked were reporting that the driver was trying to leave. When he arrived at this location, he immediately noticed that the van was badly damaged on the driver’s side and appeared to be undriveable. PC Zec’s observations about the condition of the van were later confirmed by Det. Sgt. Bhatt, whose voir dire evidence was not challenged and who impressed me as an entirely credible witness.

[70] PC Zec did not have any information about exactly how the collision had occurred. However, even without direct evidence that the van driver was at fault for the accident, I think that the fact that there had been an accident on an evening when driving conditions were good, coupled with the van driver’s failure to remain at the scene, went some considerable distance towards giving him reasonable grounds to believe that the van driver was impaired.

[71] In R. v. Bush, 2010 ONCA 554, Durno J., sitting as an ad hoc member of the Ontario Court of Appeal, observed (at para. 48) that “[t] test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol”: see also R. v. Stellato, 1993 CanLII 3375 (Ont. C.A.), aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. He noted further (at para. 54):

That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case: Rhyason, supra at para. 19 [R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108]

[72] In this case, I think the van driver’s apparent flight from the accident scene is an important circumstance that compensates to a considerable extent for PC Zec’s lack of concrete information about exactly how the accident occurred. It does so, in my view, in two analytically distinct ways.

[73] First, the van driver’s failure to remain at the scene after the collision supports the inference that he may have believed that he was facing some legal jeopardy and was for that reason trying to flee. While a driver who had not been drinking that night might still have believed that he or she was in legal trouble, a driver who had been drinking would have had an especially strong reason to try to delay being apprehended for as long as possible, to allow his body to clear the alcohol from his system. I think a knowledgeable and experienced police officer would recognize that there is a strong correlation between flight from an accident scene and impairment by alcohol. PC Zec was, by his own admission, neither knowledgeable nor experienced when it came to impaired driving investigations. Even so, I think the correlation between flight and possible impairment would still have been apparent to him.

[74] Second, the driver’s behaviour in leaving the scene supports the inference that he may not have been thinking clearly, particularly after PC Zec saw the van and observed how badly damaged it was. It can reasonably be inferred that a sober driver would have been more likely to recognize that trying to flee in an undriveable vehicle would not succeed.

[75] Neither of these inferences are dispositive, since there are other possible reasons why a non-impaired driver might leave an accident scene or exhibit signs of disordered thinking, including the possibility that the driver is in shock or has sustained an injury. However, the reasonable grounds standard “is not an onerous test” (Bush, supra at para. 46), and chains of reasoning that support the inference of even slight impairment can contribute to reasonable grounds even if there are other possible competing explanations.

[76] I am also satisfied that before PC Zec arrived at the location where the van was parked by the side of Highway 7, he knew from the radio transmissions that a passerby had previously told PC Clarke that the driver of the van was “hammered”. It is clear from PC Clarke’s other radio communications that he was speaking to Mr. Middleton at this time, and I think it can be reasonably inferred that it was Mr. Middleton who described Mr. Coates to PC Clarke as “hammered”.

[77] I reach this last conclusion even though I do not accept PC Zec’s evidence that Mr. Middleton whispered these same words to him when he first arrived at the scene. It is clear from the in-car camera recording that when PC Zec got out of his cruiser Mr. Middleton said to him: “253, 100%”, and undisputed that Mr. Middleton meant by this to convey his opinion that the van driver was drunk. However, PC Zec testified that this comment went over his head because he did not know what “253” meant.

[78] I think it is unlikely that Mr. Middleton would have also whispered “he’s hammered” to PC Zec. Indeed, I think it is implausible that Mr. Middleton would have tried to whisper anything to the officer while they were standing on opposite sides of his cruiser, nor do I find if plausible that PC Zec could have heard Mr. Middleton whisper anything that he said so quietly that it was not picked up on the in-car camera audio recording. PC Zec’s explanation in his voir dire testimony that he had been reading Mr. Middleton’s lips strikes me as most likely an after-the-fact rationalization that he only came up with after he realized that the words “he’s hammered” cannot be heard on the in-car camera audio recording.

[79] All that said, I think that PC Zec probably honestly believed when he first came to court that Mr. Middleton had said these words to him, at least up until the time that he saw and heard the in-car camera recording in court, for what was apparently the first time. In my view, the most likely explanation for why PC Zec thought Mr. Middleton said this is that he has conflated what he heard on the earlier radio call from PC Clarke with what he now remembers Mr. Middleton saying to him when he first arrived at the scene where the van was parked.

[80] I do not think anything ultimately turns on whether Mr. Middleton told PC Zec directly that he thought the van driver was “hammered”, as well as saying this to PC Clarke, who then repeated the comment over the air. On either scenario the source of the information remains exactly the same.

[81] I am satisfied that regardless of exactly how PC Zec received the information about Mr. Middleton’s opinion about the van driver’s sobriety, he knew when he arrived at the scene that a civilian witness of unknown reliability, but who had been with the van driver for some time and had had some opportunity to make observations, had expressed the opinion that the drive was significantly intoxicated. As Dickson J. (as he then was) observed in Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 SCR 819 at p. 840, “[o]rdinary people with ordinary experience are able to know as a matter of fact that someone is too drunk to perform certain tasks, such as driving a car.”

[82] I also do not think it matters that when Mr. Middleton later testified at the preliminary inquiry, he substantially resiled from the categorical and confident assertions he had made about Mr. Coates’s level of intoxication to the police that night, namely, telling PC Clarke, “he’s hammered”, and then telling PC Zec, “253, 100%”. PC Zec was entitled to rely on the information Mr. Middleton had given to the police as it was conveyed to him, even if Mr. Middleton’s claims later turned out to be exaggerated.

[83] That said, Mr. Middleton had no established track record of providing accurate information, and the possibility that his claims might not be wholly reliable reduced the weight that PC Zec could properly place on Mr. Middleton’s opinion regarding the driver’s level of intoxication.

[84] PC Zec testified that he obtained the balance of his grounds by making observations of Mr. Coates at the scene. Specifically, he maintains that he smelled alcohol on Mr. Coates’s breath, noticed that he had glossy eyes, and observed him swaying.

[85] For several different reasons I have reservations about accepting most of PC Zec’s evidence about making these observations. First, his interaction with Mr. Coates before he arrested him was extremely brief, lasting no more than about twelve seconds. Even more troubling, PC Zec’s comments to A/Sgt. Cuff at the accident scene a few minutes earlier suggest that he had already made up his mind ahead of time that he would arrest Mr. Coates as soon as he found him. On all the evidence, I am not confident that PC Zec really made any serious attempt to look for indicia of impairment before he arrested Mr. Coates. Based on the in-car camera video, if PC Zec had exited his cruiser with the intention of arresting Mr. Coates already full formed in his mind, it is difficult to see how he could have carried out the arrest any more quickly than he actually did. PC Zec essentially makes a beeline for Mr. Coates and immediately handcuffs him.

[86] Second, some of the observations PC Zec says he made are difficult to reconcile with the other evidence that has been adduced on the voir dire. His claim that he noticed Mr. Coates briefly swaying, whether from side to side or front to back, is hard to square with the in-car camera video and the video from 5 Division, both of which show Mr. Coates exhibiting no signs of unsteadiness on his feet. PC Scott also observed no unsteadiness or other physical coordination difficulties when he later saw Mr. Coates in the breath room. Moreover, PC Zec’s evidence that he noticed that Mr. Coates’s eyes were glossy and droopy is at odds with PC Scott’s observation that his eyes were slightly bloodshot but otherwise normal. Although PC Zec’s further evidence in his voir dire testimony that he also noticed that Mr. Coates’s eyes were red does accord with PC Scott’s own observations in the breath room, the reliability of this part of PC Zec’s evidence is badly undermined by his apparent failure make a contemporaneous note of this detail, or mention observing it when he testified at the preliminary inquiry.

[87] However, I do accept PC Zec’s testimony that he smelled the odour of alcohol on Mr. Coates’s breath. This is something PC Scott later also noticed in the breath room. I am also mindful that while PC Scott and Mr. Coates were strangers, PC Zec was acquainted with him as fellow YRP officer, although they did not know each other especially well. I recognize that this may have better equipped PC Zec to observe subtle and perhaps difficult to describe signs of impairment in Mr. Coates that evening. As Dickson J. noted in Graat, supra at p. 837:

[I]it may be difficult for the witness to narrate his factual observations individually. Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent.

[88] Even though I do not accept all of PC Zec’s evidence, I do accept that he subjectively believed he had sufficient grounds to arrest Mr. Coates for impaired operation, as he did. The critical question I must consider is whether, on the evidence that I accept on a balance of probabilities, the information that PC Zec had gave him objectively reasonable grounds to believe that Mr. Coates’s “ability to drive was even slightly impaired by the consumption of alcohol”.

[89] While I see this as a fairly close case, I think that the Crown has met its burden of justifying the arrest. The unexplained accident in my view looms large. Since Mr. Coates and Mr. Sweeney had collided while driving in opposite directions, it was clear that one of them most have crossed the centre line. The collision took place in the early evening hours, in good weather and with clear road conditions. Even though PC Zec had no direct evidence about who was at fault, he knew that Mr. Coates had failed to remain at the accident scene and that he had driven away in a badly damaged vehicle, which suggested both that he might be trying to escape liability and that he was not thinking clearly, since his van had been rendered undriveable and he was forced to stop only a few kilometres away. PC Zec also had reports from a witness of unknown reliability that Mr. Coates was “hammered”, and that he was giving some indication that he might try to flee on foot.

[90] In my view, when PC Zec arrived and smelled alcohol on Mr. Coates’s breath for himself, the constellation of factors and information he had in his possession at that point gave him reasonable grounds to believe that Mr. Coates’s ability to drive was impaired by alcohol.

[91] Even if I am wrong in this conclusion, I should note that PC Zec did plainly have reasonable grounds to arrest Mr. Coates for a different offence: namely, failing to stop a conveyance after an accident. Since PC Zec does not seem to have ever turned his mind to the possibility of arresting Mr. Coates on this alternative charge, the Crown cannot now rely on it to justify the arrest under s. 9 of the Charter. However, the fact that Mr. Coates could have been lawfully arrested in any event would still be a significant factor in the s. 24(2) remedial analysis, particularly when assessing the impact of the arrest on his Charter-protected interests under the second branch of the test in Grant, supra.

2. Were Mr. Coates’s s. 10(b) rights infringed at the time of his arrest?

[92] The defence argues further that Mr. Coates’s s. 10(b) Charter rights were infringed at the time of his arrest in two different ways. First, the defence objects to PC Zec’s delay in advising Mr. Coates of his right to counsel until after he had bagged and secured Mr. Coates’s seized property, although Mr. Lindsay fairly acknowledges that any s. 10(b) breach arising from this relatively brief delay would properly be characterized as minor.

[93] Section 10(b) required that Mr. Coates be informed of his right to counsel “without delay”. However, PC Zec was entitled to take action to address legitimate public and officer safety concerns before he carried out his s. 10(b) informational duties. His initial decision after he first put Mr. Coates in the back seat of his cruiser to then move the vehicle off the road and out of traffic strikes me as an entirely reasonable public safety precaution, and his subsequent decision to then have Mr. Coates exit the vehicle to be searched can also be justified on officer safety grounds. Indeed, the defence takes no issue with either of these initial delays.

[94] Mr. Lindsay contends that after PC Zec returned Mr. Coates to the cruiser after searching him, he ought at that point to have read him his rights immediately instead of waiting until he after he had bagged and put away Mr. Coates’s property. He argues that PC Zec could have delegated the task of dealing with the property to PC Finn, or alternatively had her read Mr. Coates his rights while he secured Mr. Coates’s property.

[95] While I agree that PC Zec might possibly have been able to do one of these things, I am not satisfied on the evidence before me that either were necessarily viable options. PC Finn was not called to testify, and PC Zec’s evidence was that he did not know what she was doing while he was bagging Mr. Coates’s property. She might well have been occupied with other pressing tasks, such as dealing with the two civilian witnesses who were still at the scene.

[96] While PC Zec could perhaps still have read Mr. Coates his rights immediately after he returned him to the back seat of his cruiser, doing so would have meant leaving the seized property on the hood of the vehicle, assuming that PC Finn was not able to deal with it. This would have created a risk that items might be blown away by the wind from passing vehicles. In these circumstances, I am not prepared to find that it was unreasonable for PC Zec to choose to take steps to safeguard Mr. Coates’s property before he read him his rights, which ultimately delayed Mr. Coates’s receipt of his rights by less than three minutes. In my view, the steps PC Zec took to safeguard the seized property can properly be characterized as part of the search incident to arrest, which was itself based on officer safety grounds and justified a brief delay in advising Mr. Coates of his right to counsel.

[97] I would also note that even if the brief delay caused by PC Zec prioritizing putting away Mr. Coates’s property did infringe Mr. Coates’s s. 10(b) Charter rights, the breach had no discernible impact on his protected interests, since when he was informed of his right to counsel three minutes later, he responded that he did not want to speak to a lawyer. Mr. Coates later changed his mind about this when he got to the police station, but there is no reason to think that he would have made a different decision at the roadside if he had been read his right to counsel three minutes earlier. I would also note that even after Mr. Coates purported to waive his right to counsel at the roadside, PC Zec did not try to elicit any self-incriminatory statements from him.

[98] Mr. Lindsay’s second argument is that PC Zec breached Mr. Coates’s s. 10 rights in a different way by only informing him that he was under arrest for impaired operation simpliciter, rather than for the more serious offence of impaired driving causing bodily harm.

[99] I am not satisfied that any breach of Mr. Coates’s s. 10 rights crystallized at the point that PC Zec arrested him for only the lesser offence.

[100] I reach this conclusion even though I have great difficulty accepting PC Zec’s voir dire evidence that he had paid no attention to the radio and mobile data terminal communications in which the extent and seriousness of Mr. Sweeney’s injuries were discussed by other officers, and that he accordingly did not know that Mr. Sweeney had been badly hurt. The main problem I have with this testimony is that at the preliminary inquiry PC Zec gave diametrically contrary evidence, describing in some detail how he had heard PC Clarke’s radio reports about Mr. Sweeney’s condition and how he could “tell by the tone in his voice that the injury was bad”. PC Zec’s efforts in his voir dire testimony to resile from his previous evidence were strained to the point of being nearly nonsensical. I was left with the strong impression that he had decided in the intervening months that it would be better for the Crown’s position on the Charter application if he took the position that he had known nothing at all about the extent of Mr. Sweeney’s injuries, as a means of justifying his decision to only arrest Mr. Coates for impaired operation simpliciter.

[101] Nevertheless, while I tend to think that PC Zec very probably did have grounds to arrest Mr. Coates for impaired operation of a conveyance causing bodily harm, it is undisputed that he did not do this. I am not satisfied that he made a considered decision that he lacked sufficient grounds to arrest Mr. Coates for the more serious charge, as he now claims. Rather, I think that that the possibility of arresting Mr. Coates for the more serious charge simply did not occur to PC Zec at the time, in much the same way that he seems not to have realized that he also had grounds to arrest Mr. Coates for failing to stay at the accident scene, which he plainly did.

[102] PC Zec gained no discernible tactical advantage from only arresting Mr. Coates on the impaired operation simpliciter charge, and I am satisfied that he did not deliberately refrain from arresting Mr. Coates on the more serious charge in pursuit of some improper purpose. In this regard, I find it significant that PC Zec made no attempt to question Mr. Coates about the accident even after Mr. Coates had waived his right to counsel at the roadside.

[103] Since grounds for arrest must be subjectively held by the arresting officer as well as being objectively reasonable, I am not satisfied that PC Zec can be said to have misled Mr. Coates about the reason for his arrest or the extent of his jeopardy. For whatever reason, I accept that PC Zec did not turn his mind to the possibility of Mr. Coates facing more serious charges. In my view, Mr. Coates’s jeopardy only changed later, when the senior officer who was leading the police investigation, Det. Sgt. Bhatt, turned his own mind to the issue and decided that Mr. Coates should be charged with more serious offences.

[104] I will now briefly address the question of whether PC Zec’s failure to make a breath demand at the roadside triggered any breaches of Mr. Coates’s Charter rights.

[105] PC Zec’s evidence is that he simply forgot to make the demand because he usually worked at a desk job and was inexperienced about making impaired operation arrests. Despite my reservations about other aspects of his evidence, I accept his testimony on this particular point.

[106] As I see it, PC Zec’s failure to make a demand did not give rise to any immediate breaches of Mr. Coates’s Charter rights. Section 320.28(1) is framed in permissive rather than mandatory language, and police officers are not obliged to make breath demands in every case where they have grounds for doing so.[^3] However, when officers fail to make a breath demand “as soon as practicable”, as s. 320.28(1) requires, they run the risk that any breath demand that they or another officer make later may be unlawful. I will address later in my reasons the question of whether the breath demand that PC Scott eventually made at the station an hour and a half after Mr. Coates’s arrest was a lawful demand. However, I think that any s. 8 Charter breach that might arise from the late demand would only crystallize at the point that breath samples were actually seized from Mr. Coates.

[107] I will reiterate that even though PC Zec told Mr. Coates at the roadside that he was being arrested for impaired operation, the in-car camera recording shows that he did not say anything to Mr. Coates, either formally or informally, that would have put Mr. Coates on notice that the police would be requiring him to provide breath samples once he got to the station.

3. Were Mr. Coates’s s. 10(b) rights violated when he first arrived at the police station?

[108] When Mr. Coates first arrived at the police station, the staff sergeant at the booking desk asked him if he had been read his right to counsel at the roadside. Mr. Coates replied in the affirmative, and although he had earlier told PC Zec that he did not want to speak to a lawyer, he now indicated to the staff sergeant that he did.

[109] The staff sergeant proceeded to explain that if Mr. Coates had a particular lawyer in mind they could call that person, and if necessary, look up his or her number, and that his other options were to speak to duty counsel or to decline to get any legal advice. When asked, Mr. Coates indicated that he did not have a lawyer, and when he was then asked if there was “somebody you’d like to speak with or Duty Counsel”, he replied: “Just Duty Counsel”.

[110] In the written outline of his argument that Mr. Lindsay filed in support of his oral submissions, he suggested that the threefold choice the staff sergeant presented to Mr. Coates were constitutionally deficient because it excluded a fourth option, namely, the police giving Mr. Coates access to tools that would allow him to search for a private lawyer who he might prefer over duty counsel. However, Mr. Lindsay did not press this point in oral argument, nor was it squarely raised in his original factum. In view of my conclusions on some of the other Charter issues that he has raised, which I consider dispositive of the admissibility of the disputed evidence in this case, I do not propose to address the question of when, if ever, the police must inform detainees that they can use the internet or a legal directory or some other search tool to look for private counsel, even when a detainee has not expressly asked to be allowed to do this.

[111] The proposition that the s. 10(b) information that is routinely given to all detainees should be expanded in this manner has already been rejected by some judges of this court: see R. v. Ruscica, 2019 ONSC 2442 and R. v. Persaud, 2020 ONSC 3413. While I will not address this issue further here, I previously explained in my reasons in R. v. Doobay, 2019 ONSC 2442 at paras. 53-56 why I do not think the possibility of s. 10(b) informational rights being expanded beyond what is currently required is foreclosed by binding appellate authority. Whether such an expansion is justified or advisable is a question I will leave for another day.

[112] However, I will also observe that in this case there is no evidence that Mr. Coates would have acted any differently even if he had been given additional information about how he could try to find private counsel.

4. Did the delay in advising Mr. Coates of his increased jeopardy violate his s. 10(b) Charter rights?

[113] In R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138 at pp. 152-53, the Supreme Court of Canada, per Wilson J., noted that “[a]n individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.” In R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at p. 892, McLachlin J. (as she then was) noted that “the accused's decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces”, and held that:

[T]he police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.

[114] However, McLachlin J.’s holding in Evans must be read in conjunction with her comments in R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714 at p. 729, a judgment released a few weeks before Evans, where she observed that an accused who waives his or her right to counsel:

… need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.

[115] In the case at bar, PC Zec told Mr. Coates that he was being arrested only for impaired driving simpliciter. While it is reasonable to think Mr. Coates must have known that he had collided with a motorcycle, I do not think it can be inferred that he would necessarily have realized that the motorcyclist had been badly injured. I agree with Mr. Lindsay that impaired driving causing bodily harm is a “significantly more serious offence” than impaired driving simpliciter, particularly when the injury that is being alleged falls at the upper end of the broad spectrum of injuries that are captured by the statutory definition in s. 2 of the Criminal Code, which defines bodily harm to mean “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.

[116] The difference between Mr. Coates’s actual jeopardy and what he was told by PC Zec about the reason for his arrest was not as stark as it was in Evans, where a man who had been arrested for selling a small quantity of marijuana became “the prime suspect in … two murders” (Evans, supra at p. 876 S.C.R.]. However, I think the situation here is also distinguishable from that in Smith, supra, where it was undisputed that the accused had shot the victim and knew that he had been very badly injured, even though he did not specifically know that the victim had died. In this case Mr. Coates may not have turned his mind to the probable impact of the accident on the motorcyclist, and even if he did, he might have interpreted PC Zec’s decision to arrest him for only impaired operation simpliciter as an indication that the motorcyclist had somehow managed to escape serious injury.

[117] In these circumstances, I do not think the police could count on Mr. Coates figuring out the true extent of his jeopardy by himself. Rather, once Det. Sgt. Bhatt made the decision to significantly upgrade the gravity of the charges that Mr. Coates would face, it became his duty to ensure that Mr. Coates was informed of this increased jeopardy without delay. Indeed, in his voir dire testimony Det. Sgt. Bhatt forthrightly recognized that this was his obligation, and frankly acknowledged that he had failed to fulfil it.

[118] Unlike the situation in Smith, supra, where the accused waived his right to counsel, the main concern here is whether Mr. Coates, who asserted his right to counsel at the station, had all the information he needed to obtain fully informed legal advice.

[119] In my view, this concern is significantly heightened by the police delay in making a breath demand. In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 SCR 173 at p. 216, Lamer C.J.C. observed that “the scope of available legal advice in the impaired driving context is necessarily limited”, since in most cases a lawyer will have to tell a person subjected to a breath demand that he or she is legally required to comply by providing breath samples. However, Lamer C.J.C. also noted that:

…in a situation where a lawyer believes that the client may have a defence to a refusal charge under s. 254(5), such as a lack of reasonable and probable grounds by the police to make the demand, the lawyer can advise his or her client to refuse to blow.

[120] In the case at bar, Mr. Coates needed legal advice about whether a breath demand made an hour and a half after his arrest would be lawful, having regard to the statutory requirement in s. 320.28(1) of the Code that breath demands must be made “made as soon as practicable”. He then had to balance the risk that he might be committing an offence if he refused to provide breath samples against the danger that complying with a possibly unlawful demand might give the state incriminatory evidence that could ultimately be ruled admissible under s. 24(2) of the Charter even if it was obtained in breach of his s. 8 rights. In my view neither he nor his counsel could properly weigh the pros and cons of these two options without knowing the seriousness of the charges that Mr. Coates faced.

[121] Mr. Coates and his counsel also needed to know the true extent of his jeopardy for a second important reason. In R. v. Jarrett, 2021 ONCA 758 at para. 52, Zarnett J.A. explained:

Although the right to immediately consult counsel exists in part so that the accused can obtain advice about self-incrimination and the legality of searches, it extends to considerations beyond these, including obtaining reassurance and advice about how long detention may last and how liberty may be regained.

[122] The gravity of the charges that would be laid against Mr. Coates was highly germane to these latter issues. If the motorcyclist had been badly injured, the police were much more likely to decide to hold Mr. Coates for a bail hearing, as they ultimately did. Without proper information about the seriousness of the injuries and extent of Mr. Coates’s jeopardy, duty counsel could not properly advise him about the steps he would likely need to take to obtain his release.

[123] For the Crown, Mr. Giordano argues that the MCU investigation that resulted in the upgraded charges should be viewed as separate from the investigation for impaired driving simpliciter that led to Mr. Coates’s initial arrest by PC Zec, such that Mr. Coates’s jeopardy on the more serious charges should only be seen as arising at the point that he was formally arrested on these charges by Det. Sgt. Bhatt and Det. Pozzobon later in the evening.

[124] I think this characterization would be highly artificial. The MCU is not a separate police agency, but a specialized investigative unit of the York Regional Police, the same police force that employs PC Zec. Before Mr. Coates was subjected to the breath test procedure – and, indeed, before any breath demand was made of him – Det. Sgt. Bhatt had instructed the breath technician to share the test results with him. Importantly, Det. Sgt. Bhatt did not suggest that he saw his team’s investigation as separate and distinct from the initial investigation that led to Mr. Coates’s arrest, nor did he try to take shelter behind any such distinction. To the contrary, he frankly acknowledged that he should have passed on his charging decisions to the officers who were dealing directly with Mr. Coates, so that Mr. Coates could be told about his increased jeopardy without delay.

[125] Mr. Giordano also argued that the even after the investigators learned about the extent of Mr. Sweeney’s injuries, they had to first conduct a more fulsome investigation and satisfy themselves that his injuries were caused by the collision with Mr. Coates’s vehicle before they became obliged to tell Mr. Coates that he would be facing more serious charges.

[126] In my view, this submission is contrary to both the police evidence and to common sense. In the circumstances here, I think the possibility that Mr. Sweeney’s serious injuries had some different cause than the collision that had knocked him off his motorcycle and into the ditch was entirely fanciful. Moreover, the police do not seem to have ever been in any doubt themselves about how Mr. Sweeney had been injured. The MCU still needed to conduct a rigorous investigation to try to determine as best as possible exactly how the accident had occurred and who was at fault, but there was never any real question in the officers’ minds that the bodily harm Mr. Sweeney had suffered was caused by the collision, and they very quickly satisfied themselves that this collision had been with Mr. Coates’s van.

[127] In my view, Mr. Coates’s s. 10(b) Charter rights were infringed once Det. Sgt. Bhatt decided that more serious charges were warranted but took no steps to ensure that Mr. Coates was informed of this, or that he had his right to counsel restated for him. On Det. Sgt. Bhatt’s evidence, I think this breach can properly be viewed as having crystallized at least by 8:30 p.m., since by this time Det. Sgt. Bhatt had determined in his own mind that upgraded charges were justified and Mr. Coates had also arrived at 5 Division, although he was still waiting in the sallyport in the back of PC Zec’s cruiser.

[128] While I appreciate that Det. Sgt. Bhatt was busy organizing the MCU investigation, it would have only taken a brief phone call for him to direct officers at 5 Division to convey the essential information to Mr. Coates and re-read him his s. 10(b) rights. The MCU investigation was obviously important, but so was compliance with the police’s Charter duties. I do not see this as a case where the exigencies of the investigation made it impracticable for the police to carry out their Charter obligations in a timely way, and Det. Sgt. Bhatt did not suggest otherwise in his testimony.

[129] I find that a related but analytically distinct s. 10(b) breach then occurred after 9:32 p.m., when PC Scott made the breath demand and immediately began performing the breath test. As Lamer J. (as he then was) explained in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at p. 12:

[T]he right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right.

Although PC Scott made the breath demand shortly after Mr. Coates had spoken with duty counsel, neither Mr. Coates nor duty counsel had been told the true extent of Mr. Coates’s jeopardy. In my view, in these circumstances Mr. Coates’s consultation with duty counsel did not exhaust his s. 10(b) rights. Until he was given the opportunity to obtain legal advice from counsel that was informed by an accurate understanding of his jeopardy, the police were required to hold off from compelling Mr. Coates to provide self-incriminatory evidence. In fairness to PC Scott, I should reiterate that he also had not been told that Mr. Coates’s jeopardy had changed, even though by this time he had spoken directly to Det. Sgt. Bhatt.

[130] I would note further that the evidence adduced on the voir dire showed that when Mr. Coates spoke to duty counsel at 9:21 p.m., none of the police officers who had dealt with him up to that point had told him that the police would be trying to compel him to provide breath samples. Although Mr. Lindsay did not point to this failure as the basis for finding a free-standing s. 10(b) breach, I think that this conclusion necessarily follows from the Supreme Court of Canada’s right to counsel jurisprudence. I also think that the issue was raised with sufficient clarity in the evidence and oral argument that it would not be unfair to the Crown to draw this conclusion.

[131] In their majority reasons in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 at para. 50, McLachlin C.J.C. and Charron J. explained:

The initial advice of legal counsel will be geared to the expectation that the police will seek to question the detainee. Non-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation. It follows that to fulfill the purpose of s. 10(b) of providing the detainee with the information necessary to making a meaningful choice about whether to cooperate in these new procedures, further advice from counsel is necessary: R. v. Ross, [supra].

[132] In one sense the compulsion of breath samples can be seen as a “routine procedure” in impaired operation cases, in that that most people who are arrested for impaired operation are also subjected to breath demands. However, s. 320.28(1) expressly requires breath demands to be made “as soon as practicable”, and the vast majority of such demands are made at the roadside, well before the detainee first speaks to counsel. Even in cases where the arresting officer forgets to make a formal breath demand at the roadside, most detainees are either told informally that they will be required to provide breath samples at the police station or else have a formal breath demand made to them at the station before they first speak to counsel, or both: see, e.g., R. v. Intaev, 2015 ONCJ 166 at para. 10; R. v. MacIntosh, 2017 ONSC 3287; R. v. Brewster, 2022 YKTC 6 at paras. 64-68.

[133] In exceptional cases where the police have never given a detainee any indication that he or she will be made to provide breath samples before the detainee consults with counsel, I do not think the police can simply assume that the detainee will have received proper legal advice about the compelled breath test regime. In my view, in this situation it becomes incumbent on the police to give the detainee a further opportunity to consult with counsel once the breath demand is finally made: see, e.g., R. v. Kyoz, 2014 ONCJ 611 at para. 7; R. v. Schlamp, 2015 SKQB 348 at paras. 23-25.

[134] In this case, there is no evidence that any police officer told Mr. Coates that he was going to be made to provide breath samples at any time before he was taken to the phone room at 9:21 p.m. to speak with duty counsel. However, the breath technician, PC Scott, knew that PC Zec had not made a breath demand either at the roadside or at the station.

[135] In my view, when Mr. Coates was then brought to the breath room and PC Scott read him the breath demand at 9:32 p.m., which PC Scott knew was the first time any officer had done so, he should have accompanied this with a fresh recitation of Mr. Coates’s s. 10(b) rights and given him a further opportunity to speak to counsel if he wished, to ensure that Mr. Coates received legal advice about the breath test procedure specifically. I think that PC Scott’s failure to do this triggered a further breach of Mr. Coates’s s. 10(b) Charter rights at that point.

[136] Mr. Lindsay also argue that there was an additional breach of Mr. Coates’s s. 10(b) rights when PC Zec failed to ask him after he finished speaking with duty counsel whether he was satisfied with the advice he had received, which the officer acknowledged was something he had been trained to do. While asking this question might be a good police practice, I do not think it is required by s. 10(b) of the Charter. Rather, I think that PC Zec’s failure to make this inquiry of Mr. Coates is at most a factor that can be considered in the s. 24(2) analysis (see, e.g., R. v. Wilding, 2007 ONCA 853 at paras. 12-13), although it is not one I would assign any significant weight to in this case.

5. Was PC Scott’s breath demand unlawful, such that the warrantless seizure of the breath samples violated Mr. Coates’s s. 8 Charter rights?

[137] Section 320.28(1) of the Criminal Code permits a police officer with “reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol” to compel the person to provide breath samples “by demand made as soon as practicable”.

[138] The language of s. 320.28(1) is similar to the wording of the previous breath demand provision, s. 254(3), which formed part of the old Criminal Code impaired driving regime. Section 254(3) required the police officer to have grounds to believe that the subject had committed a drinking and driving offence within the previous three hours, a temporal requirement that s. 320.28(1) eliminates. This latter change is of no consequence in the case at bar.

[139] It is undisputed that PC Zec never made any breath demand of Mr. Coates, either at the roadside or after he brought Mr. Coates to 5 Division. The only breath demand that was ever made to Mr. Coates was made by the breath technician, PC Scott, who did so immediately before he began administering the breath test.

[140] In R. v. Guenter, 2016 ONCA 572, the Ontario Court of Appeal held that the wording of s. 254(3) permits the Crown to rely on a demand made by the breath technician even when the arresting officer has made a late demand or, as in this case, has never made any demand. However, the Crown must still demonstrate that the breath technician’s demand was “made as soon as practicable” once he or she formed the required grounds.

[141] Writing for the Court in Guenter, Brown J.A. recognized “the close inter-relationship between the operation of s. 254(3) and the need for officers to ensure that a detained person can exercise his s. 10(b) rights in a meaningful way” (at para. 89). In my view, this inter-relationship should be understood as informing the meaning of the “as soon as practicable” requirement in s. 320.28(1). One of the reasons Parliament has required breath demands to be made quickly is to ensure that detainees can get legal advice about whether they should submit to the testing process. When considering whether a late demand made by a different officer was made as soon as practicable – a phrase the Ontario Court of Appeal has interpreted as meaning “within a reasonably prompt time”[^4] – I think it is appropriate to consider not only whether the demand could realistically have been made sooner, but also whether doing so would have allowed the detainee to obtain legal advice about the breath test procedure before the test was conducted.

[142] In Guenter, as in the case at bar, the arresting officer also forgot to make a breath demand at the roadside. However, when breath technician in Guenter discovered this, he “told [the arresting officer] to read one before the [accused] called his lawyer”, and she then did so. The accused then spoke to his lawyer at length, and afterwards the breath technician made another breath demand, which he did shortly after he formed his grounds by receiving information from the arresting officer. The trial judge’s conclusion, upheld by the Court of Appeal, was that the arresting officer’s late breath demand was unlawful but that the breath technician’s subsequent demand met the statutory requirement that it be made “as soon as practicable” after he formed his grounds.

[143] The case at bar unfolded very differently. PC Zec told PC Scott that he had forgotten to make a breath demand at the roadside while the two officers were waiting for a callback from duty counsel, which came in moments later. However, unlike the breath technician in Guenter, PC Scott did not direct PC Zec that he should make a breath demand before Mr. Coates spoke to duty counsel. He also did not direct PC Zec to bring Mr. Coates to the breath room so that he could make the demand himself, even though by this time he already received PC Zec’s grounds from him. Instead, PC Scott allowed PC Zec to take Mr. Coates to the phone room without taking any steps to ensure that Mr. Coates was told that he would be subjected to a breath demand afterwards.

[144] PC Zec returned to the breath room a few minutes later, while Mr. Coates was still on the phone with duty counsel, at which time he specifically asked PC Scott if he should make a breath demand now. However, PC Scott again did nothing. Instead of directing PC Zec to make a breath demand immediately, before Mr. Coates had finished his consultation with duty counsel and hung up the phone, PC Scott merely said that PC Zec could make a demand if he wanted, but that PC Scott would be making his own demand later in any event.

[145] The net result was that unlike the accused in Guenter, who knew before he spoke to counsel that the police intended to compel him to provide breath samples, Mr. Coates was only told this after he had finished speaking with duty counsel.

[146] As Durno J. noted in R. v. Dhaliwal, 2005 CanLII 8716 at para. 16 (Ont. S.C.J.), determinations about whether a demand was made as soon as practicable “must be made on a case specific basis”. In the circumstances here, I am unable to conclude that PC Scott made his demand as soon as practicable. He acknowledged that he had formed his grounds to make a demand by 9:19 p.m. He also knew at this time that PC Zec had not yet made a breath demand, and he knew that PC Zec was about to take Mr. Coates to the phone room to speak duty counsel. However, rather than taking any steps to ensure that someone made the demand before Mr. Coates obtained legal advice, as the breath technician in Guenter did, PC Scott did nothing until after Mr. Coates had finished speaking to duty counsel.

[147] In my view, it was not only “practicable” for PC Scott to make his demand before Mr. Coates spoke to duty counsel, but it was essential that he do so to ensure that Mr. Coates could properly obtain legal advice about whether he had to comply with the demand. By choosing to wait until after Mr. Coates finished speaking with duty counsel, PC Scott in my view failed to act with “reasonable promptness”.

[148] It follows that I am not satisfied that the Crown has met its burden of establishing that PC Scott’s breath demand, or the warrantless seizure of Mr. Coates’s breath samples that followed, it were lawful. I accordingly find that the seizure was unreasonable and violated Mr. Coates’s s. 8 Charter rights.

6. Were Mr. Coates’s s. 10(b) rights infringed when Det. Sgt. Bhatt advised him of the upgraded charges?

[149] As I have already discussed, I agree with Mr. Lindsay that Det. Sgt. Bhatt had a positive duty to inform Mr. Coates of his increased jeopardy several hours earlier than he did, and that his failure to comply with this obligation led to two analytically distinct breaches of Mr. Coates’s s. 10(b) Charter rights: one arising from the failure to convey this information to Mr. Coates and re-advise him of his s. 10(b) rights, and the second arising from the police failure to hold off conducting the breath test until the information and fresh right to counsel advice had been provided to him.

[150] Mr. Lindsay argues further that when Det. Sgt. Bhatt did finally inform Mr. Coates of the enhanced charges at around 11:25 p.m., at which time he offered him a further chance to speak with duty counsel, Det. Sgt. Bhatt and Det. Pozzobon committed three additional breaches of Mr. Coates’s s. 10(b) rights.

[151] First, Mr. Lindsay argues that Det. Pozzobon breached Mr. Coates’s s. 10(b) rights when he asked Mr. Coates if he wanted to make a statement, which the detective did a few minutes before he and Det. Sgt. Bhatt returned to the cells and re-advised Mr. Coates of his right to counsel.

[152] While I agree that the officers had a duty to hold off from trying to elicit self-incriminatory information from Mr. Coates until he was re-advised of his s. 10(b) rights and had the chance to speak to counsel again, I do not think that Det. Pozzobon breached this duty when he asked Mr. Coates if he would “like an opportunity to speak to us at some point today”. In my view, this comment merely raised the possibility that Mr. Coates might opt to make a statement at some unspecified point in the future. It would not have suggested to him that he was under any pressure to make a statement then and there. The situation would have been entirely different if Det. Pozzobon had begun questioning Mr. Coates while they were in the cells, or if Mr. Coates had agreed to make a statement and the officers had taken him to an interview room without re-advising him of his right to counsel. However, neither of these things happened. Det. Sgt. Bhatt also pointed out that if the police had taken Mr. Coates to an interview room to make a video-recorded statement, standard protocol would have required them to begin the interview by re-advising him of his right to counsel on video.

[153] Second, Mr. Lindsay submits that Det. Sgt. Bhatt undermined the force of his restatement of Mr. Coates’s s. 10(b) Charter rights by inaccurately telling Mr. Coates that his “jeopardy has changed slightly”. While I agree that Det. Sgt. Bhatt’s comment was inaccurate and potentially misleading, as the officer himself acknowledged, I also accept his evidence that he did not say these words on purpose to try to discourage Mr. Coates from speaking to counsel again. Indeed, it is undisputed that a few minutes earlier Det. Sgt. Bhatt gave Mr. Coates an accurate summary of the new charges he faced without saying anything that downplayed their gravity.

[154] Det. Sgt. Bhatt’s lack of an improper purpose would not be determinative if there was any realistic prospect that his unfortunate choice of words had the unintended effect of dissuading Mr. Coates from consulting with counsel again. But they evidently did not, since Mr. Coates accepted the officers’ invitation to arrange a further consultation with duty counsel for him. In these circumstances, while I agree that it would have been better if Det. Sgt. Bhatt had not said what he did, I do not think his comment breached Mr. Coates’s s. 10(b) Charter rights.

[155] I think Mr. Lindsay’s third argument has more substance. Det. Sgt. Bhatt did not tell Mr. Coates that he had the right to speak to any lawyer he chose, but only offered him the chance of having a further consultation with duty counsel. Mr. Lindsay argues that by effectively steering Mr. Coates back to duty counsel, Det. Sgt. Bhatt failed to properly re-inform him of the full scope of his s. 10(b) rights.

[156] In response, Mr. Giordano argues that when a detainee has already chosen to speak to a particular lawyer there is nothing wrong with the police addressing a change of circumstance by giving the detainee a chance to reconsult with that same lawyer.

[157] Mr. Lindsay points out that in Evans, supra at pp. 892-93 S.C.R., McLachlin J. spoke of the police “advis[ing] the accused of his or her right to counsel a second time”, without any qualifications. While I agree that this language supports Mr. Lindsay’s position to some extent, I do not think Evans is necessarily dispositive of the issue, which did not squarely arise on the facts of that case. The accused in Evans had declined to speak to any lawyer when he was first advised of his right to counsel, and the police had then failed to provide him with any restatement of his s. 10(b) rights when his jeopardy changed. For both reasons, the question of whether it would have been sufficient for the police to have offered Evans the chance to speak to the same lawyer whom he had already spoken to earlier simply did not arise.

[158] However, I think that Mr. Lindsay’s argument is supported by a purposive analysis. Detainees’ choice of counsel can be influenced by their understanding of their jeopardy. People who have initially opted to speak with duty counsel, or to a private lawyer who is not a criminal law expert, may reasonably want to re-think their decision and seek advice from a criminal lawyer once they learn that they are facing more serious charges.

[159] Changing lawyers may be an especially sensible choice if the detainee’s change in jeopardy also affects his or her prospects of being released from custody. A detainee who initially opts to speak to duty counsel but later learns that the police plan to hold him or her for a bail hearing might reasonably now want to consult with a lawyer who can attend court and represent him or her at the bail hearing.

[160] A detainee’s perception of his or her options may also be affected by the passage of time. People arrested in the middle of the night may choose to speak to duty counsel because they do not think their counsel of choice will be available, and they may want to reconsider their choice if they are then given the chance to have a further consultation with counsel during regular business hours.

[161] For all these reasons, I think that a purposive analysis supports the conclusion that detainees who become entitled to receive a fresh restatement of their s. 10(b) rights due to a change of circumstances should in general be told expressly that they can speak to any lawyer they want. They should not be led to believe that their only option is to speak to the same lawyer who they first spoke with or, if they initially spoke to someone from the 24-hour duty counsel hotline, to another lawyer from that service.

[162] It follows that Mr. Coates’s s. 10(b) Charter rights were infringed when Det. Sgt. Bhatt presented him in the cells only with the option of having a further consultation with duty counsel. Even though Mr. Coates had been content to get legal advice from duty counsel when he was first arrested, he should have been given the option of reconsidering this choice now that he knew he would be facing significantly more serious charges. His situation had also changed because he now knew that the police meant to hold him for a bail hearing, which might reasonably have caused him to want to speak with a different lawyer who could appear on his behalf in court the next morning. Mr. Coates’s understanding of his options might also have changed, since he now knew that his parents were aware of his predicament and had come to the police station. He might well have chosen to seek their help finding and contacting private counsel if he had been told that he had this option.

[163] For all of these reasons, I agree with Mr. Lindsay that the police could not simply assume that Mr. Coates would remain content with consulting with duty counsel, and that there was a further breach of his s. 10(b) rights when he was not expressly told that he could speak to any lawyer he wanted and that he did not necessarily have to keep getting legal advice from duty counsel.

7. Summary of conclusions on Charter breaches

[164] In summary, I am satisfied that Mr. Coates’s s. 10(b) Charter rights were infringed at multiple points during his detention, in a variety of different ways. Specifically:

i) There was an initial infringement of his s. 10(b) rights when Det. Sgt. Bhatt, having decided that Mr. Coates would be charged with more serious offences than the one for which he had been arrested, failed to take timely steps to have Mr. Coates advised of his increased jeopardy and given a fresh recitation of his right to counsel;

ii) There was then a further infringement of his s. 10(b) rights when PC Scott proceeded with the breath test even though Mr. Coates had not yet been told of his increased jeopardy and given a new opportunity to consult with counsel;

iii) An analytically distinct infringement of Mr. Coates’s s. 10(b) rights occurred when PC Scott proceeded with the breath test immediately after making his breath demand, even though he knew that no officer had made a breath demand of Mr. Coates before he spoke with duty counsel, raising serious doubt about whether Mr. Coates would have received legal advice about the breath test process;

iv) There was then a final infringement of Mr. Coates’s s. 10(b) rights when Det. Sgt. Bhatt, after finally and belatedly advising Mr. Coates of his increased jeopardy and telling him about the police decision to hold him for a bail hearing, failed to also tell him that he had the option of speaking to a lawyer other than duty counsel.

[165] I am also satisfied that the seizure of breath samples from Mr. Coates was unlawful and violated his s. 8 Charter rights. Although I have found that PC Zec had adequate grounds to arrest Mr. Coates for impaired operation, which also would have given him grounds to make a lawful breath demand at the roadside, he did not do so, nor did he make a breath demand at any time thereafter. As I have explained, I am not satisfied that PC Scott’s subsequent breath demand was made “as soon as practicable” in the circumstances of this case, since he could have made it earlier, after he formed his grounds but before Mr. Coates spoke to duty counsel.

C. Section 24(2)

[166] When deciding whether evidence obtained in a manner that infringes the Charter should be excluded from evidence under s. 24(2) on the grounds that its admission would bring the administration of justice into disrepute, courts must consider the three lines of inquiry outlined by McLachlin C.J.C. and Charron J. in their majority reasons in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

1. Seriousness of the violation

[167] The first Grant line of inquiry focuses on “the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter”: Grant, supra at para. 73. There is a spectrum of seriousness, with “inadvertent or minor violations of the Charter” lying at the low end, and “wilful or reckless disregard of Charter rights” at the high end.

[168] I am satisfied that none of the officers involved in this case deliberately set out to violate Mr. Coates’s Charter rights. Rather, I think that the constitutional problems that arose following Mr. Coates’s arrest were caused by a combination of carelessness and poor communication between the different officers involved.

[169] Det. Sgt. Bhatt, who made the decision that Mr. Coates should face more serious charges, failed to communicate this to the officers at 5 Division who would have been able to inform Mr. Coates about his increased jeopardy in a timely manner. Conversely, since PC Zec and PC Scott were never informed that Mr. Coates’s jeopardy had increased, they could not have known that they were obliged to hold off administering the breath test until Mr. Coates was informed of the new and more serious charges and given a chance to discuss them with counsel.

[170] PC Zec compounded the constitutional problems by not alerting PC Scott to his failure to make a breath demand at the scene until just moments before he first took Mr. Coates to the phone room to speak to duty counsel. His inexperience with drinking and driving investigations may have led to his not grasping the significance of this omission, but PC Scott, who was taken by surprise by PC Zec’s revelation, proceeded to drop the ball himself by not taking timely action to make sure that a demand was made before Mr. Coates spoke to counsel, so he could obtain legal advice about the breath test regime.

[171] PC Scott then proceeded to make the breath demand and conduct the breath test even though he knew that nobody had told Mr. Coates before he spoke to duty counsel that he would be subjected to a breath demand. He ought in my view to have realized that Mr. Coates needed to have a further chance to consult with counsel to obtain legal advice about the breath test demand and the test procedure. Moreover, PC Scott ought to have realized that his own breath demand, which came some thirteen minutes after he formed his own grounds, was not made “as soon as practicable”, particularly since he could have made it before Mr. Coates first spoke to duty counsel, which would have enabled him to get legal advice about the breath test regime.

[172] It is certainly possible that Mr. Coates received this legal advice anyway, but I cannot speculate about what legal advice was given or not given to him by duty counsel.

[173] Later that evening, Det. Cst. Bhatt and Det. Pozzobon failed to appreciate that the changed circumstances, which they had belatedly recognized required Mr. Coates to be given a fresh recitation of his right to counsel, might also cause him to rethink his choice of counsel, particularly since Mr. Coates now knew that he was going to be held for a bail hearing the next morning.

[174] While this collection of police errors and omissions does not put this case at the highest end of the spectrum of seriousness, they cannot in my view be dismissed as “minor” even though they were inadvertent rather than deliberate. As the Grant majority observed at para. 75, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith”. In my view, the police ought to have collectively recognized that much more needed to be done to ensure that Mr. Coates had the chance to obtain meaningful advice from counsel before he participated in a procedure that was designed to elicit compelled self-incriminatory evidence from him, particularly since their own errors had raised a serious question about whether this procedure was being conducted lawfully.

[175] While I recognize that Det. Sgt. Bhatt had other important responsibilities to attend to that evening, I do not think this serves as an extenuating factor. Assembling his team and getting them to the scene to investigate as soon as possible was plainly important, but it was also critical that Mr. Coates’s Charter rights be fully respected. Det. Sgt. Bhatt was not in a position where he was forced to choose between these two imperatives, since he could have fulfilled his Charter obligations simply by making a phone call, and indeed could have done so during the phone call that he did make to PC Scott that evening. To his credit, Det. Sgt. Bhatt took responsibility for his omissions and has recognized that he made mistakes.

[176] As the Grant majority explained at para. 72, the first line of inquiry:

… requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

In my view, this factor weighs in favour of exclusion on the facts of this case, although less strongly than it would if the evidence showed that the police had acted with deliberate and conscious disregard for Mr. Coates’s Charter rights, rather than out of a combination of carelessness and ignorance. Det. Sgt. Bhatt’s acceptance of responsibility for his failures lessens to some extent the need for the court to distance itself from the infringements of Mr. Coates’s rights, but it does not in my view go so far as tip the balance in favour of admission.

[177] Mr. Lindsay argues that PC Zec’s lack of testimonial candour strongly weighs in favour of exclusion under this branch of the Grant analysis. I agree that PC Zec’s testimony left much to be desired, particularly when his evasiveness and defensiveness is contrasted with Det. Sgt. Bhatt’s refreshing frankness. However, I do not see this as weighing as strongly in favour of exclusion as Mr. Lindsay suggests, for two main reasons.

[178] First, I do not think the problems with PC Zec’s voir dire testimony are quite as severe as those in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, where the trial judge found that a police officer who knew that he lacked sufficient grounds to conduct a vehicle search had then given a “contrived” and “incredible” explanation for his actions at trial.[^5] In contrast, while I am not prepared to affirmatively accept all of PC Zec’s voir dire testimony, I am satisfied that he did at least subjectively believe that he had sufficient grounds to arrest Mr. Coates, and that the grounds he did have were objectively reasonable. Unlike the situation in Harrison, I am not prepared to go so far as to find that PC Zec deliberately lied when he testified before me.

[179] Second, PC Zec was not personally responsible for any of the Charter breaches that I have found occurred in this case, although his failure to make a timely breath demand set the stage for some of them. The officers who I find directly caused these breaches, Det. Sgt. Bhatt and PC Scott, I also find to be wholly credible witnesses.

[180] Since the goal of the first branch of the Grant inquiry is to distance the court from the Charter breaches that have been identified, I think it would have been considerably more aggravating if the officers who had been directly responsible for the breaches I have found were also found to have attempted to mislead the court. To the extent that PC Zec’s evidence can be viewed as less than forthright, he was only something of a peripheral actor in the particular Charter breaches I have identified.

[181] In summary, I find that the first branch of the Grant inquiry weighs in favour of exclusion, although less strongly as it would have done if I had concluded that the breaches I have identified were deliberate, or if Det. Sgt. Bhatt and PC Scott had been less than honest in their own testimony. Det. Sgt. Bhatt’s candour and willingness to accept responsibility for his failures also gives me some confidence that he, at least, will be more careful in the future and will try to avoid repeating his mistakes. This reduces to some extent the need for the court to disassociate itself from the breaches, but in my view does not eliminate it altogether.

2. Impact of the breaches on Mr. Coates’s Charter-protected interests

[182] The second branch of the Grant inquiry:

…focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.

See Grant, supra at para. 76.

[183] In this case, I think the different Charter breaches that occurred before Mr. Coates provided the breath samples need to be considered together when assessing their combined impact on his Charter-protected interests.

[184] Mr. Coates’s main Charter-protected interest at stake was his right not to be unlawfully compelled to help the state build a case against him. His s. 10(b) Charter rights were largely, although not exclusively, directed at guarding his right against self-incrimination. As the Supreme Court of Canada has held, one of the main purposes of the right to counsel is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43; R. v. Sinclair, supra at para. 26.

[185] Specifically, in this case Mr. Coates badly needed legal advice about whether he should accede to the police demand that he give them potentially self-incriminatory breath samples. Because of how the investigation unfolded and the repeated police failures to comply fully with their s. 10(b) obligations, I am not satisfied that he ever received a fair opportunity to obtain the legal advice he needed.

[186] First, Mr. Coates was not told that the police meant to compel him to provide breath samples until after he spoke to duty counsel. Once PC Scott finally made a breath demand, he did not offer Mr. Coates a chance to speak to counsel again. I appreciate that most people arrested for impaired operation made to provide breath samples, and that duty counsel might well have given Mr. Coates advice about his legal obligation to comply with a lawful breath demand even though no breath demand had yet been made. However, it is also conceivable that duty counsel interpreted the fact that the police had not yet made a breath demand of Mr. Coates as an indication that they were for some reason not planning to do so in his case. Duty counsel also might have assumed that if the police did go on to make a breath demand, they would also give Mr. Coates a further chance to speak with counsel before proceeding with the breath test. I cannot properly speculate about what legal advice Mr. Coates may have received or not received: R. v. Bartle, supra at pp. 216-17.

[187] Although Mr. Coates is a police officer himself, no evidence was adduced about the duties he performed or his training. I am not prepared to infer that his status as a police officer gave him any special knowledge about the breath test regime, particularly in view of PC Zec’s evidence of his own ignorance when it came to impaired driving investigations. In any event, any personal knowledge Mr. Coates might have had about the breath test regime cannot in my view serve as a substitute for properly informed legal advice, or support the conclusion that Mr. Coates was not prejudiced by the breaches of his s. 10(b) rights: see Bartle, supra at pp. 203-07.

[188] Second, there was considerable doubt in this case about whether Mr. Coates would be legally obliged to provide breath samples on the strength of a late demand. When Mr. Coates first spoke with duty counsel, which he did approximately an hour and a half after his arrest, no breath demand had yet been made of him. Since breath demands must be made “as soon as practicable”, there was a serious question about whether any demand that the police proceeded to make of Mr. Coates would be lawful. In particular, the lawfulness of any demand that was made by the breath technician would depend in part on exactly when he formed his grounds, which neither Mr. Coates nor duty counsel would have had any way to know.

[189] Faced with this factual uncertainty, duty counsel had to advise Mr. Coates about the pros and cons of his two options, namely, blowing or refusing. On the one hand, if Mr. Coates provided breath samples, he might be giving the police incriminatory evidence against himself, which could potentially be ruled admissible under s. 24(2) even if the breath demand was later found unlawful. It was also possible that Mr. Coates might exculpate himself by blowing under.

[190] On the other hand, if Mr. Coates refused to provide breath samples, he would have a valid defence to a refusal charge if the demand were later found unlawful, but if the demand were found lawful he would have committed a criminal offence with consequences that would be just as serious as the charges he would face if he blew over.

[191] Mr. Coates’s choice between these two options depended on careful balancing of various factors, including (i) the likelihood that any future breath demand would be found lawful at trial; (ii) whether Mr. Coates was likely to incriminate himself by providing breath samples; and (iii) the potential jeopardy he faced either way.

[192] In my view, duty counsel needed to know the true extent of Mr. Coates’s jeopardy to give him proper and meaningful legal advice. Mr. Coates also needed to know this to make an informed decision between the options counsel presented to him. Neither received this critical information until after Mr. Coates had provided the self-incriminatory breath samples.

[193] I cannot speculate about what legal advice duty counsel actually gave to Mr. Coates, or whether he followed it. However, I think it reasonably possible that the advice he received could have been different if the police had complied fully with their s. 10(b) obligations. If Mr. Coates’s Charter rights had been fully respected, I think it is reasonably possible that he might now be confronted with a significantly different case to meet.

[194] The breath test procedure itself was only minimally intrusive and did not significantly interfere with Mr. Coates’s protected privacy interests: R. v. Jennings, 2018 ONCA 260 at paras. 29-32. However, the breaches of his s. 10(b) rights affected different protected interests: see R. v. Skurski, 2019 ONSC 2943 at paras. 29-39. Mr. Coates was subjected to what I have found was an unlawful breath demand that led to him providing self-incriminatory evidence. If he had received the fully informed legal advice to which he was entitled, it is reasonably possible both that he would not have provided the state with this evidence, and that he would have been acting lawfully in refusing to help the police build a case against him.

[195] In this context, I think the combined impact on Mr. Coates’s protected interests of the Charter breaches that I have found occurred before he provided the breath samples was significant, and that this weighs strongly in favour of excluding the breath test results.

[196] The final breach of Mr. Coates’s 10(b) rights, which I have found occurred later that evening when the police failed to advise him that he had the right to speak to a lawyer other than duty counsel, affected his protected interests differently and requires a separate analysis.

[197] By this time Mr. Coates had already provided breath samples, and there is no evidence that the police did anything in the wake this last s. 10(b) breach to have him incriminate himself further. This final breach accordingly had no discernible impact on Mr. Coates’s protected right against self-incrimination.

[198] However, s. 10(b) also protects other interests. As Doherty J.A. explained in R. v. Rover, 2018 ONCA 745 at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

[199] In this case, Mr. Coates had just been told that he was facing upgraded charges and that he would be held in custody overnight for a bail hearing. Although he was allowed to speak with duty counsel a second time, I expect that it would have given him some psychological comfort if he had been able to speak to a lawyer who could appear in court the next morning and represent him at the bail hearing. It is unclear whether Mr. Coates would have taken advantage of this opportunity if it had been offered to him by Det. Sgt. Bhatt and Det. Pozzobon, and there is no evidence that it would have made any difference to the actual outcome of the bail hearing. Nevertheless, I think that the potential psychological value of the lost opportunity cannot be discounted entirely.

[200] In my view, the impact of this final s. 10(b) violation on Mr. Coates’s protected interests would not strongly favour exclusion of the breath sample evidence if this breach stood alone, particularly since there is no causal link between it and the earlier production of the breath samples by Mr. Coates. However, I think that the existence of this further s. 10(b) breach, and its potential impact on Mr. Coates’s psychological well-being, adds some small further weight to the balance on the side of exclusion.

3. Society's interest in the admission of the evidence and an adjudication on the merits

[201] The third Grant line of inquiry requires consideration of the impact of excluding the breath sample evidence on society’s interest in having the case against Mr. Coates adjudicated on its merits.

[202] This inquiry favours admission here, as it usually does in drinking and driving cases. The breath sample evidence is reliable evidence of Mr. Coates’s guilt on the over 80 charge, and is essential to the Crown’s case on this one count. Drinking and driving is a serious social problem and there is a strong public interest in having over 80 charges tried on their merits. This societal interest is heightened since the risk to the public in this case materialized into a serious and life-changing injury to Mr. Sweeney.

[203] However, as Doherty J.A. explained in R. v. McGuffie, 2016 ONCA 365 at para. 63, (citations omitted):

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence … If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility:

In this case, the second Grant inquiry strongly favours exclusion, and the first Grant inquiry also favours exclusion, albeit less strongly.

[204] I also think that it is an important consideration that excluding the breath sample evidence will not entirely eviscerate the Crown’s case against Mr. Coates. It will prevent the prosecution from pursuing a finding of guilt on the “over 80” charge in Count 2, and will preclude the Crown from using the breath sample evidence to prove the commission of the more serious offences that have been charged in Counts 1 and 3. However, the Crown will still be able to try to prove Mr. Coates’s guilt on either or both of these counts on the basis of other evidence, including any independent evidence the prosecution may have to establish that he was drinking before the accident. Moreover, excluding the breath sample evidence will have no impact at all on the Crown’s ability to prosecute Mr. Coates for the fail to remain offence charged in Count 4.

4. Summary of conclusions on s. 24(2)

[205] On balance, I find that even though the third Grant factor favours inclusion, the weight of the other two factors tips the scale in favour of exclusion as a means of safeguarding the long-term repute of the administration of justice. Excluding the breath sample evidence will still allow the prosecution of Mr. Coates to proceed, but will avoid the harm to the repute of the administration of justice that would result if the court appeared to be “condon[ing] state deviation from the rule of law by failing to dissociate [itself] from the fruits of that unlawful conduct”: Grant, supra at para. 72.

IV. Disposition

[206] In the result, Mr. Coates’s Charter application is granted. The breath test results will be excluded from evidence at his trial under s. 24(2).

The Honourable J. Dawe

Released: June 1, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NATHAN COATES

RULING ON CHARTER APPLICATION

Dawe J.

Released: June 1, 2022

[^1]: I will refer to Det. Sgt. Bhatt by his rank as it was in September 2019, rather than by his current rank of Inspector. [^2]: Now Det. Cadieux. I will refer to him by his rank as it was in September 2019. [^3]: For example, an arresting officer might properly choose not to make a breath demand if he or she knows that there is no realistic prospect of being able to take the arrestee to a place where an approved instrument and a qualified technician are available. [^4]: See R. v. Squires, 2002 CanLII 44982 at para. 31 (Ont. C.A.). [^5]: See R. v. Harrison, 2008 ONCA 85 at para. 99, per Cronk J.A., dissenting.

R. v. Coates, 2022 ONSC 3262

Case Summary

I. Overview

II. Factual background

A. The initial accident report

B. Information received about Mr. Coates’s van

C. PC Zec is sent to find the van

D. PC Zec arrests Mr. Coates

E. Mr. Coates’s arrival at 5 Division and booking

F. Information Det. Sgt. Bhatt received before he attended the accident scene

G. PC Zec’s discussions with PC Scott

H. The Major Collision Unit’s investigation of the accident scene

I. Det. Sgt. Bhatt and Det. Pozzobon re-arrest Mr. Coates

III. Analysis

A. The burden of proof

B. The alleged Charter breaches

1. Section 9: Did PC Zec have reasonable grounds to arrest Mr. Coates for impaired operation of a conveyance?

2. Were Mr. Coates’s s. 10(b) rights infringed at the time of his arrest?

3. Were Mr. Coates’s s. 10(b) rights violated when he first arrived at the police station?

4. Did the delay in advising Mr. Coates of his increased jeopardy violate his s. 10(b) Charter rights?

5. Was PC Scott’s breath demand unlawful, such that the warrantless seizure of the breath samples violated Mr. Coates’s s. 8 Charter rights?

6. Were Mr. Coates’s s. 10(b) rights infringed when Det. Sgt. Bhatt advised him of the upgraded charges?

7. Summary of conclusions on Charter breaches

C. Section 24(2)

1. Seriousness of the violation

2. Impact of the breaches on Mr. Coates’s Charter-protected interests

3. Society's interest in the admission of the evidence and an adjudication on the merits

4. Summary of conclusions on s. 24(2)

IV. Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 3