COURT FILE NO.: 20-A10000

DATE: 2022/09/01

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Droog

BEFORE: Justice J. Hooper

COUNSEL: Carl Lem, for Her Majesty the Queen

Vanessa Garcia, for Mr. Droog

HEARD: July 6, 2022

SUMMARY CONVICTON APPEAL

rEASONS FOR dECISION

Nature of the Proceedings

[1] The Crown appeals the acquittal of the respondent by Crewe J. of the Ontario Court of Justice on November 26, 2021 of an 80+ charge: R. v. Droog (26 November, 2021) Ottawa (Ont. C.J.). Crewe J. also acquitted the respondent of impaired driving. The Crown is not appealing that result.

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

[3] The appellant seeks an order allowing the appeal and substituting a conviction on the 80+ charge. In the alternative, the appellant seeks a new trial.

Decision

[4] For the reasons that follow, the appeal is allowed, and a conviction will be entered under s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. As the Crown is seeking the minimum sentence for that conviction, the court will impose that sentence pursuant to ss. 686(4)(b)(ii) and 822(1) of the Criminal Code.

Background Facts

[5] On the afternoon of April 29, 2020, the respondent tried to purchase alcohol from the LCBO at College Square in Ottawa. The respondent was known to the LCBO employees and, as a result of their assessment of his intoxication, was refused service. Two of the LCBO employees, Alex Hopkins and Laura Cunningham, testified at trial that they observed the respondent leave the parking lot in his car. Ms. Cunningham called the police to report the matter.

[6] Shortly before 4:00 p.m., police were dispatched to the College Square LCBO. S/Sgt Brenda McGillvray was in the area at the time of this dispatch but, with other officers attending to the LCBO, S/Sgt McGillvray drove to the address of the vehicle’s registered owner. The address was a unit in an apartment building, with a parking lot in the back.

[7] As S/Sgt McGillivray drove around the parking lot, she noted the subject vehicle with a man sitting in the driver’s seat. That man was subsequently identified as the respondent. S/Sgt McGillvray parked her vehicle in such a manner as to block the respondent’s vehicle, preventing him from driving away, in case he was impaired. S/Sgt McGillvray agreed that, at this point in time, the respondent was not free to go. It was approximately 4:07 p.m. The trial judge made a finding that this was the time of detention.

[8] The respondent stepped out of his vehicle as S/Sgt McGillvray approached. She explained why she was there. She confirmed the respondent was the owner of the vehicle and obtained the driving documents. She asked if he had been to the LCBO and if he had been drinking. The respondent replied, “I may have had one beer.” S/Sgt McGillvray pressed him by asking, “Are you sure you had just one” and he replied that maybe he had had two beer. She asked him if had bought anything at the store and he said wine. Two large bottles of red wine could be observed in the car.

[9] S/Sgt McGillvray testified that she noticed a stale odour of alcohol on the respondent and his eyes were bloodshot. While she felt she was close to having reasonable and probable grounds to arrest the respondent for impaired operation, she elected to make an Approved Screening Device (“ASD”) breath demand.

[10] At 4:09 p.m., S/Sgt McGillvray radioed for an ASD to be brought to her location. While she and the respondent waited, S/Sgt McGillvray explained her suspicions, the call from the LCBO, and the need for a roadside breath test to measure alcohol concentration. S/Sgt McGillvray did not explicitly advise the respondent that he was under investigative detention, nor did she advise him of his right to counsel. According to the transcripts of her testimony, S/Sgt McGillvray did not elicit any further information from the respondent while they waited for the ASD to be brought on scene.

[11] Shortly after S/Sgt McGillvray called for the ASD, Cst McConnachie arrived with the ASD device. Cst McConnachie was briefed and read the respondent the ASD demand. It was now 4:14 p.m. Cst McConnachie explained to the respondent that he was under investigative detention and read him his right to counsel at 4:15 p.m.

[12] Following the reading of the right to counsel, Cst McConnachie asked the respondent “Do you want to call a lawyer now?” to which the respondent answered, “I don’t know”. Cst McConnachie did not follow up on that response as, in his view, it was not a positive response and therefore placed no duty on him to take further steps. He thereafter administered the ASD test which registered a “Fail” at 4:16 p.m.

[13] Cst McConnachie arrested the respondent at 4:17 p.m. on the 80+ charge. The accused was searched, handcuffed, and placed in the back of the police cruiser, but was not read his right to counsel again until 4:33 p.m. Cst McConnachie admitted he should have read the right to counsel a second time, immediately after the arrest. He could not explain why he had not done so in the 16-minute period that elapsed, except that he forgot. There was no evidence of any further information elicited from the respondent during this 16-minute gap.

[14] Following this second reading of the right to counsel, the respondent was again asked, “Do you want to call a lawyer?” The respondent replied, “I don’t know at this point.”

[15] The Crown concedes that the failure to immediately read the right to counsel after the respondent’s arrest was a breach of the respondent’s s. 10(b) Charter right.

[16] The respondent was transported by Cst McConnachie to the police station and paraded before the cell block sergeant. A call with a lawyer was arranged, and the respondent eventually spoke to counsel at 5:15 p.m.

[17] At the police station, Cst Walker, the Qualified Technician, became involved. Cst Walker met with Cst McConnachie for a briefing at 5:40 p.m. and was satisfied, based on the information he received during that briefing, that there were grounds for a breath demand. It was at this point that the police officers realized Cst McConnachie had forgotten to read the formal breath demand to the respondent. Cst McConnachie read the demand to the respondent at 5:50 p.m. but did not offer the respondent a second call with his counsel.

[18] Cst Walker took custody of the respondent at 5:53 p.m. He confirmed that the respondent had spoken to a lawyer and “that he was okay with the legal counsel that he’d been provided”. He then read his own breath demand to the respondent at 5:54 p.m. or 5:55 p.m. He was satisfied the respondent understood what was required of him. The respondent provided two suitable breath samples registering:

(1) 228 mg of alcohol in 100 mL of blood at 5:58 p.m.; and

(2) 220 mg of alcohol in 100 mL of blood at 6:22 p.m.

[19] As a result of these breath samples, the respondent was also charged with impaired driving.

Reasons for Judgment of the Trial Judge

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

[21] Having considered all of the evidence, the trial judge found four breaches of the respondent’s s. 10(b) Charter right, which can be summarized as follows:

(a) Section 10(b) breach #1: S/Sgt McGillvray failed to read the respondent his right to counsel immediately upon detaining him to investigate a report that he had driven while impaired;

(b) Section 10(b) breach #2: Cst McConnachie further breached the respondent’s right to counsel because, when he first read the respondent his right to counsel (before the ASD), the respondent indicated he did not know whether he wished to call a lawyer, and the officer did not follow up with further questions. Instead, the officer administered the ASD.

(c) Section 10(b) breach #3: When the respondent failed the ASD test, and was arrested for 80+, Cst McConnachie did not read the right to counsel again until 16 minutes after the arrest;

(d) Section 10(b) breach #4: When the respondent spoke to his lawyer at the police station, he had not yet been explicitly read the breath demand under s. 320.28(1)(a)(i) of the Criminal Code. The court found the officers breached the respondent’s s. 10(b) Charter right by not initiating a second call to counsel after reading the breath demand to the respondent.

[22] The trial judge concluded that these breaches were serious and that they had a serious impact on the respondent’s Charter rights. When weighing the inquiries to be made under R. v. Grant 2009 SCC 32, [2009] S.C.R. 353 (“Grant”), the trial judge found the factors supporting exclusion outweighed the factors supporting inclusion. As a result, he excluded the breathalyzer evidence under s. 24(2) of the Charter. With that evidence excluded, the trial judge acquitted the respondent of both charges.

[23] In his reasons, the trial judge indicated that, had the breathalyzer evidence been included, he would have had no hesitation in convicting the respondent on both the 80+ charge and the charge of impaired driving.

Analysis

Standard of Review

[24] Aitken J. in R. v. Gardner, 2021 ONSC 3468, 485 C.R.R. (2d) 338, heard a similar summary conviction appeal with the appellant arguing in Gardner, as he does here, that the trial judge erred in his application of legal standards to the facts. Aitken J. stated, and I adopt, the following standard of review:

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

The Section 10(b) Charter Breaches

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

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

[26] Although, the trial judge made factual findings regarding the officers’ delay in informing the respondent of his right to counsel, he failed to consider whether the obligation to inform the respondent of this s. 10(b) Charter right was subject to concerns for the officer or public safety, or subject to a reasonable limitation prescribed by law and justified under s. 1 of the Charter. In my view, this was an error in law.

The First Breach - Was this a roadside stop?

[27] Counsel for both the appellant and the respondent agree that if the events that took place after S/Sgt McGillvray blocked the respondent’s vehicle are equivalent to a roadside stop, there can be no s. 10(b) Charter breach until the completion of the ASD. Therefore, the issue is whether this was a roadside stop, or something analogous thereto.

[28] The law is well-settled that police are not required to advise detained motorists at the roadside of their right to counsel when determining if they have grounds to conduct an impaired screening or make evidentiary demands under ss. 320.27 and 320.28 of the Criminal Code. Although, on its face, this is a breach of s. 10(b) of the Charter, it has been held that this breach is justified under s. 1 (see R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R 640, R. v. Saunders, (1988), 1988 CanLII 197 (ON CA), 27 O.A.C. 184; R. v. Orbanski; R. v. Elias, [2005], 2 S.C.R. 3, 2005 SCC 37 (“Orbanski”). Charron J. in Orbanski (starting at para. 24), noted that numerous factors justify allowing the police to use investigative measures before the right to counsel is exercised:

(a) Driving is a licensed activity;

(b) There are unique challenges associated with protecting the public from impaired driving;

(c) Impaired drivers present a continuing danger to the public, so effective intervention is particularly important for community safety;

(d) The need for regulation and control is achieved through an interlocking scheme of federal and provincial legislation; and

(e) Additional constitutional protections will attach if the roadside screening process results in an arrest.

[29] The respondent argues that this was a pedestrian stop, not a roadside stop. Therefore, all of the respondent’s rights under s. 10(b) of the Charter remained. In making this argument, the respondent relies on the following findings of fact:

(i) The respondent had already stopped his vehicle as he had reached his destination. Therefore, the vehicle was not stopped at the instance of the police.

(ii) When S/Sgt Millvray noticed the respondent’s vehicle and approached in her own, both vehicles were in a parking lot, not a roadway.

(iii) As S/Sgt Millvray exited her vehicle and approached the respondent’s vehicle, the respondent exited his. He did not exit at the officer’s request.

[30] In furtherance of this argument, the respondent relies on R. v. Irving, 2018 ONCJ 270 (O.C.J.) (“Irving”) and R. v. Roworth, (Dec. 7, 2020, unreported) (“Roworth”). Both are distinguishable on their facts.

[31] In Irving, Mr. Irving was driving a black pickup truck, witnesses described as swerving. One witness called 911 and provided the licence plate. A police officer was dispatched to the address of the registered owner where he located the pickup truck parked in the driveway. Because he could not see the driver, the officer knocked on the house door, and asked to speak to Mr. Irving. Mr. Irving eventually came to the door. The court found that during the exchange between the officer and Mr. Irving, Mr. Irving became detained, yet he was not advised of his right to counsel. The court found this to be a breach under s. 10(b) of the Charter. It was upheld on appeal.

[32] In Roworth, a Home Depot employee noticed Mr. Roworth in the store’s garden department, heard Mr. Roworth slurring, and smelled alcohol on him. This prompted a call to the police. An officer was dispatched to Mr. Roworth’s home address where she saw Mr. Roworth’s vehicle parked, and the man, later identified as Mr. Roworth, backing a different vehicle into the driveway. As the officer watched, Mr. Roworth exited the second vehicle and entered his home. The officer subsequently spoke to Mr. Roworth.

[33] The fact that the alleged impaired driver was found by police in his home in both Irving and Roworth distinguishes these cases from the one now on appeal. A more analogous fact situation can be found in R. v. Ndaye, 2019 ONSC 4967, 56 M.V.R. (7th) 137 (“Ndaye”). In that case, the police received a call regarding a minor motor vehicle accident in a parking lot of an apartment building. The driver, who allegedly had caused the accident, was asleep in the vehicle, with the engine running. Witnesses thought he was impaired, and an officer was dispatched to investigate. Paramedics arrived on scene first and were able to rouse the driver, Mr. Ndaye. A few minutes later, a police officer arrived with Mr. Ndaye already out of his vehicle, walking around the parking lot. While the factual circumstances were not typical of a roadside stop, the court found, at para. 64, that the decision of Orbanski, allowing the temporary suspension of s. 10(b) rights, was the “controlling judicial precedent”.

[34] Relying on Orbanski, the court in Ndaye stated at para. 69:

[A]ccording to s. 48(1) of the Highway Traffic Act, a police officer “may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify” making a demand under s. 254 of the Criminal Code. Section 254 is the provision of the Criminal Code that broadly authorizes police officers to make various demands of persons, based on the proper grounds, to gather types of evidence that would permit officers to assess a person’s level of sobriety or drug and/or alcohol impairment.

[35] Further at para. 70, the court continued:

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

[36] The respondent argues that, while the trial judge was silent on the issue of whether this was a roadside stop, by finding s. 10(b) Charter breaches before the ASD, the trial judge implicitly made a factual finding that this was not a roadside stop. In my view, if such a factual finding can be implied, it was in error, particularly following the decision of R. v. Sillars, 2022 ONCA 510. In that case, released two days before this appeal was heard, one of the issues before the Court of Appeal was whether Mr. Sillars’ s. 10(b) Charter right was breached by the police’s failure to advise him or his right to counsel before the ASD test.

[37] The facts in Sillars had nothing to do with a roadside stop. Mr. Sillars was being investigated for operating a canoe, “a vessel”, while impaired. The canoe capsized, and a young boy died. The ASD demand was made several hours after the canoe had capsized. Mr. Sillars was not advised of his right to counsel until after he refused the ASD and was arrested.

[38] In dismissing the appeal in relation to s. 10(b), the Ontario Court of Appeal held:

Section 254(2) empowers an officer to demand a breath sample for analysis using an ASD. A “fail” on the ASD provides grounds to demand breath samples for analysis by means of an “approved instrument” (e.g., Intoxilyzer) under s. 254(3). The courts have long held that the right to counsel is suspended during compliance with the screening demand: see Thomsen; R. v. Seo, (1986), 1986 CanLII 109 (ON CA), 54 O.R. (2d) 293 (C.A).

[39] The respondent was behind the wheel of his parked vehicle when S/Sgt McGillvray approached. By this time, the police had sufficient information to investigate the respondent for impaired driving. The ASD demand was properly made. Therefore, the trial judge erred in finding that the delay by S/Sgt McGillvray to read the respondent his right to counsel was a breach of s. 10(b) of the Charter, as this was during a time when the respondent’s right to counsel was temporarily suspended.

The Second Breach – “I don’t know”

[40] Cst McConnachie read the right to counsel to the respondent on two occasions. The first reading was just prior to performing the ASD. Following this first reading, the respondent was asked if he understood and replied in the affirmative. When asked if he wanted to call a lawyer, the respondent answered, “I don’t know.”

[41] The trial judge found that the respondent’s response of “I don’t know” to the question of whether he wanted to contact a lawyer demonstrated confusion. At paragraph 69 of his reasons, the trial judge held:

[69] If a detainee displays some level of confusion or misunderstanding of a constitutionally guaranteed right or its implementation, it seems to me that the officer who has custody of the detainee and thus represents the sole conduit through which the detainee can gain a more fulsome understanding of the right and/or of how he can exercise said right, it is incumbent upon the officer to at least seek a more fulsome reply to the circumstances therein. Asking simply: “what do you mean by you don’t know?” may suffice, depending on the answer to that question.

[42] The finding of confusion, rather than ambivalence or equivocation, was open to the trial judge to make and requires deference.

[43] The appellant argues that whether or not the respondent demonstrated confusion in his response to speaking to legal counsel is of no consequence, because the right to counsel was still suspended until the ASD was completed, see analysis above. In other words, the argument remains the same; there can be no Charter breach if there is no Charter right at the time.

[44] In R. v. Soule, [2018] ONSC 5809, 421 C.R.R. (2d) 78 (“Soule”), the officer also provided the right to counsel at a time when he was not required to do so. The trial judge in Soule held that once the officer told the respondent he could call counsel, he was duty-bound to provide the full informational requirements, facilitate contact with counsel, and hold off eliciting evidence. The officer in Soule failed to do this. The trial judge found this to be a breach. On appeal, the appellate court disagreed and held that “the conduct of the officer cannot create a right that does not otherwise exist”: see Soule at para. 34. The court’s rationale in Soule was further explained starting at para. 36:

[36] Cst. Gill advised the respondent of his right to counsel when the officer was not required to do so, and at a time when the respondent has no right to counsel. There cannot be a breach of an alleged right which did not exist in the first place. The gratuitous and unnecessary giving of rights to counsel cannot give rise to a Charter right which does not otherwise exist: see R. v. Hanley, 2012 ONCJ 667 aff’d [2013] O.J. No. 6693 (S.C.)

[45] I agree with the analysis by the appellate judge in Soule. Cst McConnachie was under no obligation, prior to completing the ASD, to provide the right to counsel. Even if the respondent’s response suggested confusion, there was no obligation on Cst McConnachie, at this time, to take any further proactive steps to ensure the respondent understood. As a result, the trial judge erred in finding this constituted a second breach of the respondent’s s. 10(b) Charter right.

The Third Breach – the 16-minute delay

[46] The appellant concedes that immediately upon arresting the respondent, Cst McConnachie was required to re-read the right to counsel. Cst McConnachie failed to do so, and offered no justification for waiting 16 minutes to inform the respondent of this right, other than forgetfulness.

[47] Upon providing the post-arrest right to counsel 16-minutes after the respondent’s arrest, Cst McConnachie once again asked the respondent if he understood, to which he received an affirmative reply. Cst McConnachie then asked if the respondent wanted to speak to a lawyer. The respondent’s answer was “I don’t know at this point.”

[48] There are two aspects to the right to counsel under s. 10(b) of the Charter. First, the police must immediately inform the accused of this right (the “informational component”). Second, if the accused decides to exercise this right (i.e. advising that he or she would like to speak to counsel), the police have an obligation to facilitate a consult with counsel as soon as possible (the “implementation component”).

[49] The appellant concedes that this 16-minute delay breached the respondent’s s. 10(b) Charter right, but only the informational component. The appellant argues that the implementation component of s. 10(b) – the facilitation of the exercise of that right – was not breached as, notwithstanding the confusion in the respondent’s answer, a call with duty counsel was arranged as soon as possible once the respondent arrived at the police station.

[50] The respondent argues that both the informational and implementation aspects of s. 10(b) were breached because, if the respondent had been given the right to counsel immediately after his arrest, a call with counsel could have been arranged prior to the transport to the police station. A hypothetical was put forth during this appeal of the respondent being given a cell phone and allowed time alone in the back of the police cruiser to exercise his right. I have been provided with no authority that facilitating the right to counsel would include the obligation to provide a cell phone in the rear of a police cruiser, while the accused person is likely handcuffed, in a non-private setting, which is not properly secured. I do not accept that hypothetical as the standard to be applied. The respondent was placed in the back of the police cruiser, transported to the station, paraded before the cell block sergeant, and then, notwithstanding his confused answer regarding whether he wanted to call a lawyer, a call with a lawyer was arranged on his behalf.

[51] As stated by Aitken J. in Gardner:

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

[52] There is no analysis within the trial judge’s reasons of the impact of the 16-minute delay other than it occurred, and, given the respondent did not testify on the Charter application, there was no evidence to suggest he felt his access to counsel had been thwarted. There is also no evidence that any further information was elicited from the respondent between the time of his arrest and his consult with counsel.

[53] As a result, I find that only the informational aspect of s. 10(b) of the Charter was breached.

[54] The respondent argues, quite correctly, that an accused being informed of his right to counsel is important in and of itself. The trial judge was very concerned that police officers, including Cst McConnachie and Cst Walker, too often failed to take their obligation of reading this right seriously. This is relevant to the analysis of whether this breach is of such sufficiency as to warrant the exclusion of the evidence under s. 24(2) of the Charter.

The Fourth Breach – the failure to arrange a re-consultation with counsel

[55] The fourth breach found by the trial judge related to the formal breath demand being given after the respondent’s call with counsel.

[56] While the appellant argued that the respondent was aware he was being taken to the station for breath samples, it was conceded that the formal breath demand was not made until Cst Walker, the Qualified Technician, reminded Cst McConnachie of its necessity. The formal breath demand was made at 5:50 p.m. By then, the call between the respondent and counsel, which took place at 5:15 p.m., was over.

[57] The trial judge found that, given the demand should have been made prior to the phone call with counsel, the respondent should have been read his right to counsel a third time and a re-consultation with counsel should have been arranged. The failure to do this was found by the trial judge to be a fourth breach of the respondent’s s. 10(b) Charter right.

[58] There is no reference in the trial judge’s analysis to the Ontario Court of Appeal’s decision in R. v. Tahmasebi, 2020 ONCA 47, 149 O.R. (3d) 453 (“Tahmasebi”). In that case, Mr. Tahmasebi was originally arrested for dangerous driving causing bodily harm. While getting paraded at the station, he told the Staff Sergeant that he was taking an opioid analgesic. As a result, he was additionally charged with impaired driving causing bodily harm, and re-read his right to counsel. Mr. Tahmesebi spoke to duty counsel following this new charge. After this call, Mr. Tahmesebi was turned over to a Drug Recognition Expert (“DRE”), who made a DRE demand, conducted the evaluation and, based on the outcome of that evaluation, issued a urine demand. Upon being given a urine demand, Mr. Tahmesebi asked to speak to counsel again. That request was refused.

[59] Mr. Tahmesebi made a similar argument before the Court of Appeal that this respondent made to the trial judge – that the DRE demand and urine demand (in this case, the breath demand) marked a point where the investigation took a new and more serious turn, making the earlier legal advice inadequate in light of the current situation. The Court of Appeal disagreed at para. 35:

The consequences of foreseeable investigative procedures in an impaired driving investigation – the prospect that compliance with either a DRE demand or oral fluid or urine sample demand may yield evidence that incriminates the accused and that non-compliance may be an offence – is not a new jeopardy arising from a new and more serious turn of events. It is not a discrete change in the purpose of the impaired driving investigation to an offence not contemplated at the time the appellant exercised his right to counsel. Just as the procedures themselves are foreseeable at the time of the initial consultation, the jeopardy arising from them is also foreseeable and within the expected subject matter of the initial consultation.

[60] At para. 39, the Court of Appeal rejected the similar argument the respondent makes before this appellate court – that a new category of cases be created in which there is an entitlement to a second consultation with counsel:

For the reasons above, neither a DRE demand under what was then s. 254(3.1), nor an oral fluid or urine sample demand under what was then s. 254(3.4), is a change of circumstances from those facing a person detained on a charge of impaired driving. A person who has received legal advice (assumed to be sufficient and correct) after such a charge does not face a new or emergent situation when either demand is made. Because the demands are foreseeable and the initial advice would be expected to address them and their consequences, it would not be appropriate to create a new category of cases in which there is an entitlement to a second consultation with counsel to cover the circumstances in the case at bar.

[61] Counsel for the respondent on this appeal was also trial counsel. When asked whether the Tahmasebi decision was before the trial judge, counsel confirmed that it was, but conceded that, in fairness to the trial judge, it was only referred to in passing. That is unfortunate. Had the case been thoroughly reviewed with the trial judge, the reasons by the Court of Appeal would have been found binding and dispositive of the issue.

[62] This appellate court is bound by the Court of Appeal decision in Tahmasebi. Therefore, the trial judge’s finding of the fourth breach of the respondent’s s. 10(b) Charter right cannot stand as it is an error in law.

Section 24(2) Analysis

[63] As stated in Gardner at para. 70: “Because the trial judge erred in law in assessing the nature and extent of the Charter breaches, his conclusion to exclude the evidence does not attract appellate deference. It falls on this court to consider that issue afresh: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 73 [other citations omitted].”

[64] The only breach that remains is Breach #3, being the 16-minute delay between the respondent’s arrest and the post-arrest reading of his right to counsel.

[65] The respondent argues if, at the end of this court’s analysis, this 16-minute delay is the only remaining breach, this is of sufficiency to justify the exclusion of the breathalyzer evidence under s. 24(2) of the Charter.

[66] To exclude evidence under the Charter, the evidence must be obtained in a manner that infringed one of the respondent’s Charter rights or freedoms. That requires some form of connection – temporal, causal, or contextual: Gardner at para. 71; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19, 21. The appellant argues that there is no such connection on these facts because the failure to re-read the right to counsel (Breach #3) was corrected after 16-minutes, and well before the breath samples were obtained. Further, even if the respondent’s answer, “I don’t know right now”, demonstrates possible confusion, this was also corrected by the facilitation of a call with counsel as soon as practicable once the respondent reached the police station.

[67] In R. v. Karst, 2009 CanLII 65374 (Ont. S.C.) at para. 19, the Superior Court Justice found that both s. 10(a) and s.10 (b) of the Charter were breached when, for 13-14 minutes, Mr. Karst was not free to leave, and not provided reason for his detention, nor his right to counsel. The court found there was a temporal connection between these breaches and the ultimate collection of breath samples but was further satisfied that the Crown had established these breaches had been corrected with subsequent compliance. The court thereafter adopted a passage of Professor Roach’s Constitutional Remedies in Canada, Canada Law 1994:

If the purposes of the Charter have been met by subsequent compliance or are not implicated in obtaining the evidence, then the court can safely conclude that the evidence was not obtained in a manner that violated the Charter.

[68] The delay in reading the right to counsel post-arrest was corrected when Cst McConnachie read the respondent this right at 4:33 p.m. The respondent exercised his right to counsel at 5:15 p.m. The breath samples were taken at 5:58 p.m. and 6:22 p.m. I find that, on these facts, there is not sufficient connection between the 16-minute delay and the collection of the breath samples to justify their exclusion.

[69] Even if I am wrong, and the breach was not corrected by subsequent compliance, or there was a sufficient connection between the Charter breach and the collection of the evidence, I find the breath samples should still be admitted under Grant’s s. 24(2) Charter analysis.

[70] In Grant, the Supreme Court of Canada identified three lines of inquiry guiding the consideration of whether the admission of evidence, tainted by a Charter breach, would bring the administration of justice into disrepute:

(1) The seriousness of the Charter-infringing conduct;

(2) The impact of the breach on the Charter-protected interests of the accused; and

(3) Society’s interest in the adjudication of the case on its merits.

Seriousness of the Charter-infringing state conduct

[71] The trial judge was correct in expressing his concern that Cst McConnachie, an officer with 15 years of experience, did not understand the need to provide the right to counsel immediately upon making the arrest. This is a marked departure from what is expected of experienced police officers. The law around the informational component of s. 10(b) of the Charter is clear and settled. Suberu was decided in 2009. As stated by the Ontario Court of Appeal in Thompson at para. 90 (adopting R. v. Noel, 2019 ONCA 860):

[T]he law around s. 10(b) is clear and well settled. It is not difficult for police to understand their obligations and to carry them out.

[72] My comments in the analysis above, restricting the s. 10(b) Charter breach to only an informational breach, not an implementation breach, is not meant to infer that the informational component is not important. In Gardner, Aitken J. found that a 12-minute delay in providing the right to counsel was of sufficient seriousness to support the exclusion of the evidence, but only to a moderate extent.

[73] A 16-minute delay also supports the exclusion of evidence, again to a moderate extent.

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

[74] The respondent has provided this court with cases where a single breach under s. 10(b) was found to be sufficiently impactful on the accused to justify the exclusion of breath samples:

• R v. Kou, 2019 ONCJ 966 – 7 minute delay

• R. v. Mitchell 2018 ONCJ 121, 406 C.R.R. (2d) 290 – 11 minute delay

• R. v. Sandhu 2017 ONCJ 226, 378 C.R.R. (2d) 306 – 9 minute delay

[75] Those decisions highlight the frustration trial judges have with police officers who still fail to comply with the immediacy requirement under s. 10(b) of the Charter. In this case, Crewe J. also expressed concern for the systemic nature of this breach. His frustration, however, must be read in conjunction with the fact that he found four breaches of the same s. 10(b) Charter right as stated at para. 86 of his reasons:

[86] The second factor considers the impact of the breach upon the Charter-protected interests of the detainee. Here, multiple breaches of the right to counsel cannot be classified as minimal or non-obtrusive.

[76] In my view, the impact of this singular s. 10(b) Charter breach on the interest of the accused was minimal. The impact does not support the exclusion of the breathalyzer evidence.

Society’s interest in adjudication on the merits

[77] The third line of inquiry under Grant was analyzed by the Supreme Court of Canada in R v. Le, 2019 SCC 34, [2019] 2 S.C.R. at para. 142:

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

[78] I agree with and adopt the comments by Aitken J. in Gardner at para. 90:

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

[79] Breathalyzer results are highly relevant, reliable, and minimally intrusive: see Grant, at para. 111. In my view, the public would have a difficult time understanding how a 16-minute post-arrest delay of informing the respondent of his right to counsel would result in the exclusion of this evidence, especially when the respondent had been informed of this right minutes before he was arrested, prior to the ASD test being performed. In addition, the breathalyzer evidence was only secured after the respondent had exercised his s. 10(b) Charter right and had consulted with counsel.

[80] As a result, I find that the third part the Grant inquiry supports inclusion of the evidence.

Conclusion

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

Disposition

[82] The appeal is allowed and the decision of Crewe J. on s. 320.14(1)(b) of the Criminal Code is set aside. A conviction will be entered against the respondent on that count.

[83] At the end of his submission, counsel for the appellant confirmed that the sentence being sought is the mandatory minimum of a $2,000 fine and a one-year suspension of his driver’s licence. That sentence will be imposed.

Justice J. Hooper

Date: September 1, 2022

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