REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

somji j

Overview

[1] The Appellant, Yared Tadesse, seeks to overturn his conviction for care and control of a motor vehicle while having more than 80 milligrams of alcohol in 100 milliliters of blood contrary to s. 253(1)(b) of the Criminal Code (“over 80”).

[2] The Appellant argued at trial that the police investigating the incident, namely Cst. MacTavish beached his constitutional rights under ss. 8, 9, and 10(b) of the Charter and as a consequence of which the breath samples should have been excluded pursuant to s. 24(2) of the Charter. The Appellant argued that one, the officer did not have reasonable and probable grounds for his arrest contrary to ss. 8 and 9 of the Charter; two, that he was not informed of his right to counsel without delay and that his right to counsel was not implemented without delay contrary to s. 10(b) of the Charter; and three, the breath samples were not taken pursuant to a breath demand made “as soon as practicable” but rather an hour after his arrest contrary to ss. 8 and 10(b) of the Charter.

[3] On July 8, 2019, the trial judge, the Honourable Justice Wadden, dismissed all three Charter claims and found the Appellant guilty of the offence of over 80. The Crown did not seek a conviction on the impaired charge and, the Appellant was found not guilty on that count. The Appellant argues that the trial judge made several errors of law in dismissing the Appellant’s Charter claims and seeks to have the conviction set aside and a new trial ordered pursuant to s. 813 of the Code.

[4] The issues to be decided on appeal are as follows:

a. Did the trial judge err in failing to provide sufficient reasons on the reliability of Cst. MacTavish’s evidence?

b. Did the trial judge err in finding the principles in Guenter were applicable in this case and if so, did he err in failing to articulate why?

c. Did the trial judge apply the wrong legal standard on whether or not the Appellant was informed of his right to counsel “without delay”?

d. Did the trial judge make palpable and overriding errors in his factual findings to find that the Appellant had received his right to counsel “without delay”?

[5] All legislative references are to the Criminal Code unless otherwise specified.

Brief Facts

[6] On February 28, 2018, a civilian witness was sleeping and awoke to find a vehicle with lights on in his driveway. He recognized neither the car nor the driver. He grabbed the keys to his own truck and pushed the panic button which elicited a blare horn but there was no reaction from the driver. He then rapped on the window of the vehicle which was running the lights on. The only response he got from the male driver was that he started rocking and back and forth, making a loud noise, and stating something he could not make out. Concerned that it was a medical distress situation, the civilian called 911.

[7] Cst. Amanda MacTavish, a police officer which the Appellant concedes has a great deal of experience in impaired driving cases, was dispatched at 1:00 am about a possible impaired person behind the wheel of a vehicle at a residence. She arrived at the scene at 1:05 am. She approached the vehicle, saw the window was open five inches, and observed the driver rocking violently back and forth in the driver’s seat. She asked the driver if he was okay and he provided a vulgar response “fuck you”. She then opened the driver’s side door and stuck her head in and could smell a strong odor of alcohol in the vehicle. The driver, subsequently identified as the Appellant, was speaking at a high rate of speed and in incomplete sentences. She could not understand what he was saying. She testified she also observed the driver had bloodshot eyes, but acknowledged later in cross-examination that she made this observation upon him exiting the vehicle. She asked the driver to exit the driver’s seat, and as he exited, he shifted his legs and upper body towards her and slid his body out of the vehicle. On the basis of the observations just described, she formed the opinion that he was impaired and arrested him for impaired care and control at 1:08 am. When asked specifically what indicia she relied on in forming her grounds for arrest, she stated it was the following four observations of the Appellant:

i. rocking back and forth violently in his seat;

ii. speaking quickly and in incomplete sentences;

iii. strong odor of alcohol coming from the vehicle when she stuck her head in the vehicle; and

iv. and having bloodshot eyes.

[8] Cst. MacTavish walked the Appellant slowly back to the police cruiser and noted that she had to slow her speed to match his ability to walk and that he was walking with his buttocks sticking out and his upper body bent forward. Another officer who had arrived at the scene, Cst. Sweet, searched the Appellant. Cst. MacTavish then placed the Appellant in the back of her vehicle. She made some preliminary notes in her notebook of what had transpired, and at 1:15 am she read the Appellant his right to counsel. When she asked the Appellant if he understood, he replied, “One hundred percent. Yes.” There is no evidence to suggest that Cst. MacTavish she attempted to elicit statements from the Appellant regarding the offence while he was seated in the back of the police vehicle and before she gave him his right to counsel.

[9] Cst. Sweet also testified at trial. He indicated that he arrived at 1:06 am at which time Cst. MacTavish already had the driver outside the vehicle and was arresting him. The arrest was completed at 1:08 am. The Appellant argues that if Cst. Sweet’s evidence is accepted, it suggests Cst. MacTavish had an even shorter time period to form her grounds.

[10] Cst. Sweet also observed indicia of impairment on the Appellant. In particular, there was an odour of alcohol emanating from his breath and the Appellant would not answer any questions directed from Cst. MacTavish except to say repeatedly that he was not driving. Cst. Sweet could not recall the questions being asked by Cst. MacTavish, but acknowledged that he noted in his Investigative Action that she asked the driver why he was parked at this residence.

[11] Cst. Sweet searched the Appellant after which he was placed in the cruiser. In cross-examination, the Appellant’s counsel asked Cst. Sweet if he inquired with Cst. MacTavish whether she had read the Appellant his rights to which he replied, he didn’t believe so because “when I got there she’s in the process of arresting him, brought to the cruiser and then placed in the back of the cruiser, which would be the time that we would get the opportunity to read him his rights to counsel.” Cst. Sweet explained in re-examination that, in his experience, after a person is arrested, the officers will secure the person and once the situation is safe and the person is in the back of the police car, it is then that they will read out the right to counsel.

[12] Cst. MacTavish proceeded to take the Appellant to the detachment. Cst. MacTavish testified that she observed that there was an odour of alcohol inside her vehicle, that the Appellant was snoring, and that at other times, he was asking her what was in her hands. Cst. MacTavish arrived at the detachment at 1:30 am.

[13] After going through the steps of booking the Appellant into the station, the Appellant was provided an opportunity to speak to counsel at 1:50 am. The Appellant specifically requested to speak with Counsel David Amber who was also his trial lawyer. The Appellant completed his call with counsel almost 20 minutes later at 2:09 am. Upon completing the call with counsel, the Appellant was taken to the breath technician room at 2:12 am.

[14] Cst. MacTavish acknowledged that she forgot to read the roadside breath demand at the scene. She only came to realize this when reviewing her notes and discussing the grounds with the breath technician. As a result, she gave the Appellant his breath demand 2:12 am, an hour after he was brought to the station and had already spoken to counsel. She testified that in her own experience as a breath technician, she has been in situations where arresting officers have brought persons to her without having read the breath demand. In those instances, she has instructed the officers to read the breath demand. It was her understanding that an officer is entitled to correct the situation by ensuring the demand is given before the sample was taken.

[15] Cst. MacTavish’s explanation of what transpired at the breath room was corroborated by the breath technician Cst. Poirier. Cst. Poirier testified that Cst. MacTavish realized she had made a mistake in forgetting to give the breath demand at the scene, and upon realizing this, Cst. Poirier had her give the demand. Cst. Poirier testified that he also repeated the demand as his practice as a breath technician, and the Appellant indicated he understood. Cst. Poirier testified that he usually reviews whether the arrested person had a call with counsel and if there is any indication the person misunderstood the advice or was dissatisfied with the call, he will provide an opportunity for second call. In this case, the Appellant did not indicate he was dissatisfied with his call to counsel nor did he seek speak to counsel again.

[16] Cst. Poirier also observed the Appellant to have an odour of alcohol present on him and bloodshot eyes. He found the Appellant to be walking slowly, but did not observe the Appellant to have the strange posture described to him by Cst. MacTavish. In noting the Appellant’s possible degrees of intoxication– none, slight, or obvious – he noted slight. The Appellant provided breath samples with readings of 125 mgs and 145 mgs of blood alcohol.

[17] The Appellant was returned into the care of Cst. MacTavish at 2:46 am. Once lodged in cells, Cst. MacTavish testified that she proceeded at 2:48 am to make more detailed notes in her notebook about the events.

Issue 1: Did the trial judge err in law by failing to provide sufficient reasons with respect to the reliability of the primary officer Cst. MacTavish?

Standard of review

[18] Sufficiency of reasons is a question of law. On a pure question of law, an appellate court is free to replace the opinion the trial judge with its own. Thus, the correctness standard applies to appeals based on questions of law: R v Sheppard, 2002 SCC 26, [2002] SCJ No. 30 at para 41; Housen v Nikolaisen, 2002 SCC 33 at para 9; Mylonopoulos v Conway, 2022 ONSC 5107 at para 8.

Analysis

[19] Defence argues that while the trial judge addressed Cst. MacTavish’s credibility in his reasons, he failed to address the reliability of her evidence which was critical because there are numerous inconsistencies in Cst. MacTavish’s evidence that undermines the reliability of her evidence and therefore her grounds of impairment and arrest. If the arrest was found to be unlawful, then consequently, the Appellant’s Charter rights were breached, and the breath samples should not have been admitted.

[20] Counsel identified the following inconsistencies. First, counsel argues there was a discrepancy between Cst. MacTavish’s testimony and her notes about whether dispatch informed her the Appellant was banging his head on the steering wheel (what she said in-chief) or against the window (what she recorded in her notes). In cross-examination Cst. MacTavish testified she could no longer recall which it was. I find this inconsistency is of little consequence because the banging of the head was not one of the indicia the officer relied on in forming her grounds. In fact, Cst. MacTavish pointed out in cross-examination that while she observed the Appellant violently rocking back and forth, she made no observation of him hitting anything and was reluctant to adopt that he did such a thing. She sought to clearly distinguish between what had been relayed to her from dispatch (rocking and hitting something) and what she herself observed (rocking only). She relied only on her own observations in forming her grounds.

[21] Second, counsel argues that Cst. MacTavish failed to make a contemporaneous note that the driver was violently rocking back and forth. I disagree. Cst. MacTavish testified that she did make a note of this indicia at page 131 of her notebook. She explained she made two sets of entries in her notebook, the first were preliminary notes made at 1:15 am when she entered the police cruiser and the second were more detailed notes once she had completed her dealings with the Appellant and he was lodged in cells at 2:48 am. The suggestion by counsel that only “contemporaneous” notes can be relied on and that contemporaneity requires the notes to be taken within a requisite time frame of the observations made by the officer is not founded in law.

[22] Determining whether notes are/are not contemporaneous will vary in each factual situation depending on the officer’s circumstances in dealing with a suspect. Cst MacTavish explained that she would only have taken notes if in a safe position, but she would not have been in a safe position while dealing with the Appellant and having a notebook in her hand. She made an initial set of notes when the Appellant was secured in the back of the police cruiser, but at the same time, she was also mindful of having to process the Appellant, give him an opportunity to exercise his right to counsel, and obtain breath samples. The fact that she waited until the Appellant was lodged in cells to write more detailed notes does not warrant a finding that she did not make an entry in her notes or that the second set of notes made at the detachment are not worthy of any weight. I find the trial judge was entitled to consider that the second set of notes made at the detachment were indeed the officer’s notes and that they were consistent with the indicia of impairment she testified to.

[23] Third, Cst. MacTavish testified that the driver said “fuck you” when she asked him if he was okay, but counsel argues this is not referred to at all in her notes made either in the cruiser or the detachment. However, it is consistent with her Investigative Action (“IA”) which was prepared at 3:42 am that same night. In her Crown synopsis, which the officer also prepared that night at 4:42 am, she wrote the Appellant said “fuck you” after her arrest. The absence of a note may affect the weight to be afforded to an officer’s evidence, but judges should not automatically reject an officer’s evidence as a form of discipline for taking poor notes. Consideration must be given to the gaps, the nature of the omission, the explanation for the omission, the overall degree of completeness of the notes, the interval between making the notes and testimony, and the existence of confirmation for the missing note. R v Gill, 2015 ONSC 7872, 347 C.R.R. (2d) 249 at para 45. Here, the comment was not referenced in notes, but was referenced in the IA and synopsis. The absence of this indicia in the notes is not determinative of the reliability of the officer’s evidence.

[24] Finally, while I agree there is a discrepancy between her testimony and synopsis as to when precisely this “fuck you” comment was made and that this comment was not referenced at all in either set of notes, I find this discrepancy is of little consequence because this also was not one of the indicia of impairment that Cst. MacTavish relied on.

[25] Fourth, counsel argues that there is a discrepancy between what the officer testified were her grounds and what she told the breath technician were her grounds. In particular, counsel argues that Cst. Poirier never observed the Appellant walk in the awkward manner with his bum sticking out as described by Cst. MacTavish. That might be the case, but there is nothing in the evidence to suggest that Cst. MacTavish told Cst. Poirier that she relied on the Appellant’s manner of walk in forming her grounds. This may simply have been one of several observations she made of the Appellant after the arrest like snoring in the car and reported to the technician.

[26] Furthermore, upon review of the transcript, it does not appear that Cst. Poirier is ever asked by trial counsel to delineate what specifically Cst. MacTavish relayed to him were her grounds for arrest and what her other observations were of the Appellant following the arrest. While it is correct that Cst. Poirier referred to the Appellant’s manner of walking when asked about the information provided to him by Cst. MacTavish, he also stated there were other indicia reported to him such as smell of alcohol. I do not find, as suggested by Appellant’s counsel, that there is a clear inconsistency was elicited as between the testimony of these two officers.

[27] Finally, and perhaps most emphasized by defence counsel, is the discrepancy on the timing of events as between Cst. MacTavish and Cst. Sweet. Cst. MacTavish stated the arrest was made at 1:08 am while Cst. Sweet stated it was made at 1:06 am. The Appellant argues that that Cst. MacTavish’s reasonable and probable grounds crystallized when the Appellant exited the vehicle and she smelled alcohol from the car. If Cst. Sweet’s timeline is accepted, it suggests that she formed her grounds in one minute.

[28] Before addressing this argument, it is important to correct Appellant’s counsel’s assessment of the “crystallization” of the officer’s grounds. Cst. MacTavish did not smell the alcohol when the Appellant existed the vehicle, but rather when she opened the car door and stuck her head in the vehicle. In addition, the Appellant was at that time mumbling and speaking at a high rate of speed and she could not make out what he was saying. It is then that she asked the Appellant to exit the vehicle. She agreed in cross-examination that it was upon the Appellant exiting the vehicle that she observed his bloodshot eyes. She then concluded he was impaired and proceeded to arrest him.

[29] The Appellant argues that when one considers the inconsistencies in her evidence as discussed above, Cst. Sweet’s evidence of the timeline should be accepted and consequently, Cst. MacTavish had an even narrower time frame of one minute rather than the three minutes to form her grounds. Counsel argues that given this issue was specifically raised at trial, it was incumbent upon the trial judge to address in his reasons the above-noted inconsistencies and the timing discrepancy in assessing her reliability. Justice Wadden’s reasons refer only to Cst. MacTavish’s credibility and there is no reference to the term “reliability”. There is also no logical connection between the “what” and the “why” in light of the arguments raised at trial. Counsel argues the insufficiency of reasons on reliability prevents an appellate court from being able to engage in a meaningful consideration of whether or not the decision is tainted by a palpable and overriding error. I respectfully disagree.

[30] Justice Wadden was alive to trial counsel’s argument that Cst. MacTavish’s testimony was not sufficiently credible and reliable because of the narrow time frame she would have had to make her observations based on the time discrepancy between her evidence and that of Cst. Sweet. Justice Wadden specifically refers at paragraph six of his decision to this argument and counsel other’s arguments undermining Cst. MacTavish’s reliability such as her lack of contemporaneous notes, that her recollection was confused, and that she was unclear on some points such as when the “fuck you” comment was made. Justice Wadden states:

[6] Firstly, with respect to the reasonable and probable grounds for the arrest for impaired care or control, and the subsequent demand, the defence acknowledges that if the evidence of Cst. MacTavish were accepted they would meet the threshold for reasonable and probable grounds. However, he says that the officer's testimony is not sufficiently credible and reliable to accept her evidence that her observations were made prior to arrest. He points out that Cst .MacTavish testified that the arrest was at 208 am, but the second officer on scene Cst. Sweet testified it was at 206 am, leaving a shorter window for Cst. MacTavish to have formed her grounds…. Counsel takes the position that Cst. MacTavish arrived on the scene with the preconceived idea she would arrest the accused. Counsel points out that Cst. MacTavish lacked clear recollection in some areas and pointed to a lack of contemporaneous notes, especially with respect to the "fuck you" comment. [emphasis mine]

[31] Nonetheless, Justice Wadden goes on to find that upon assessing Cst. MacTavish’s evidence as a whole, he found her to be a credible witness whose evidence he accepted. He states at para 7 as follows:

[7] In assessing Cst. MacTavish's evidence as a whole, I find her to be a credible witness whose evidence I accept. Cst. MacTavish is an experienced officer who has deal with over fifty impaired investigations as a patrol officer and breath technician. I accept that an investigative action may contain more detail than duty book notes, and that officers may given differing accounts of time by a few minutes. These do not cause me to reject her as a credible witness. The essence of her testimony is that she came upon a driver behaving irrationally and speaking incoherently, who was parked in the driveway of a house to which he had no connection. [emphasis mine]

[32] I find it is clear from these passages that the trial judge was alive to counsel’s arguments on the reliability of Cst. MacTavish’s evidence based on what counsel alleged were certain inconsistencies in her evidence and in the officers’ differing accounts of time by a few minutes. He was entitled to accept her evidence despite notwithstanding these issues.

[33] Furthermore, as stated by the Honourable Justice Karakatsanis in R v GF, appellate judges are to review reasons functionally and contextually: R v GF, 2021 SCC 20, [2021] SCJ No. 20 at para 69 and 76. If trial reasons do not explain the “what” and the “why” but there is a clear answer to those questions in the record, there will be no error of law: GF at para 70. Here, as discussed above at paras 20 to 27, I find that many of the inconsistencies alleged by counsel do not necessarily constitute inconsistencies, and even if they did, they were inconsequential. The only clear inconsistency elicited at trial by counsel is that Cst. MacTavish agreed in cross-examination that she observed bloodshot eyes at the time the Appellant existed the vehicle and not when she put her head in vehicle as testified to in chief. This alone does not undermine the reliability of her evidence with respect to the grounds for arrest.

[34] Furthermore, the fact that the term “reliability” was not used in paragraph seven of the trial judge’s decision is not determinative. It was clear from paragraph six that Justice Wadden was well aware that counsel was challenging both the credibility and reliability of Cst. MacTavish’s evidence wherein the judge states counsel “says that the officer's testimony is not sufficiently credible and reliable to accept her evidence that her observations were made prior to arrest.” As Karakatsanis J reminds us in GF, the term “credibility” is often used in the broader sense to mean the believability of the evidence and includes both truthfulness and accuracy. Provided the trial judge turned their mind to the relevant factors that go to believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns, there is no requirement that they utter the word ‘reliable’: GF at para 82.

[35] Finally, having found Cst. MacTavish to be a credible and experienced officer with respect to impaired driving, it is unclear on what basis the trial judge should have preferred Cst. Sweet’s evidence on the timeline of events. Cst. Sweet could have equally been mistaken about whether his arrival time was 1:06 am. The trial judge raised this question himself. Justice Wadden had to address the timing discrepancies not only in the context of when the arrest occurred, but also in assessing whether right to counsel was given without delay. In his reasons on that issue, Justice Wadden states that while defence counsel urges him prefer the evidence of Cst. Sweet that the arrest was at 1:06 am, he had “… no reason to doubt the reliability of Cst. MacTavish’s evidence or prefer Cst. Sweet’s over hers:” Trial decision at para 11.

[36] Here, I find the trial judge was alive to counsel’s arguments on the reliability of Cst. MacTavish’s evidence even if he did not use the term in his concluding remarks about the assessment of her evidence with respect to the time of arrest. Furthermore, while the trial judge did not explain or delve into each inconsistency alleged by counsel at trial and whether it undermined her reliability as a witness, I find the answers to those questions are clear in the record and, as discussed above, do not necessarily constitute inconsistencies or if they are do, they are of little consequence. Finally, as pointed out by the Crown, the indicia of impairment observed by Cst. MacTavish were corroborated in different respects by observations made by the civilian witness, Cst. Sweet, and Cst. Poirier throughout the course of the evening and were consistent with someone who might be impaired lending reliability to Cst. MacTavish’s account. For all these reasons, I find that the trial judge did not err in accepting Cst. MacTavish’s observations of impairment and her finding that there were reasonable and probable grounds for the Appellant’s arrest based on those observations.

[37] This ground of appeal is dismissed.

Issue 2: Did the trial judge err in finding this case was akin to R v Guenter and in failing to provide sufficient reasons explaining why?

Standard of review

[38] As already noted the correctness standard applies to appeals based on errors of law.

Defence position

[39] At trial, counsel for the Appellant argued that this case was distinct from R v Guenter, 2016 ONCA 572 and that the failure of Cst. MacTavish to provide a breath demand at the scene could not be cured by a later breath demand later from the breath technician. In both instances, the breath demand would not have been made “as soon as practicable” as per s. 254(3) and moreover, it was made after the Appellant exercised his right to counsel.

[40] The trial judge disagreed. He accepted Cst. MacTavish had forgotten to provide the breath demand at the scene and had been directed by Cst. Poirier to do so when they were reviewing the grounds for arrest. He found Cst. Poirier’s own delay in making the demand was accounted for by the Appellant completing his exercise of his right to counsel and Cst. MacTavish completing her dealings with the Appellant including reading him the demand. Consequently, the trial judge found this case was similar to Guenter and that the breath technician’s demand was a valid for the purposes of s. 254(3): Trial decision at paras 18 to 20.

[41] Section 254(3) states:

254.(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood…and

(b) if necessary, to accompany the peace officer for that purpose.

[42] In R v Guenter, the Ontario Court of appeal confirmed that where an arresting officer forgets to read the breath demand at the time of the arrest, a subsequent demand by a breath technician can cure the error if made promptly. In Guenter, the arresting officer did not provide the accused with a breath demand at the scene of the accident. Upon arrival at the police station, the breath technician asked the officer if she had provided the demand and she replied she had not. The technician instructed the arresting officer to provide one before the accused called his counsel. The accused was then read the demand by the arresting officer an hour after the arrest. After the accused spoke to his counsel, he was handed over to the breath technician who repeated the breath demand. The trial judge accepted the arresting officer’s evidence that she simply forgot to make the demand and the omission was a “simple error, inadvertence, and nothing more.” While the trial judge agreed that the arresting officer had not made the demand as “soon as practicable” as per s. 254(3), he found the requirements of s. 254(3) were nonetheless met because the breath technician, who was also a peace officer, had made a breath demand as soon as practicable after he formed the proper grounds and within the requisite three hours: Guenter at paras 73-74.

[43] On appeal, the Ontario Court of Appeal reiterated the comments of the Supreme Court of Canada in R v Deruelle, 1992 CanLII 73 (SCC), 1992 2 S.C.R. 663 at p. 677, that “s. 254(3) is not a model of clarity”: Guenter at para 87. S. 254(3) refers to the term peace officer which can include both an investigating officer and a breath technician. The court stated that generally, the language of s. 254(3) reflects the general practice that the breath demand is to be made at the scene of a stop or accident, and the person then accompanies the officer to the police station to provide the breath sample: Guenter at para 87.

[44] The Court of Appeal went on to state that given 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, linking the making of the demand to the timing of the detention has a “certain practical attractiveness,” but “that is not how s. 254(3) reads:” Guenter at para 89. There is nothing in the Criminal Code or in the jurisprudence that supports the proposition that the Crown must prove the “who, what where and when’ of the demand: Guenter at para 89. Therefore, the interpretation of s. 254(3) in Deruelle would permit a trial to judge to find that a demand made by a breath technician who has formed reasonable grounds within the requisite three-hour time limit could meet the requirement of s. 254(3) that the demand be made “as soon as practicable”: Guenter at para 90. Given the trial judge in Guenter understood that the breath technician was satisfied that the arresting officer had reasonable and probable grounds to arrest the accused and that the technician made his demand immediately following his formation of reasonable grounds, the trial judge was entitled to find that the demand of the breath technician was made as soon as practicable in accordance with s. 254(3): Guenter at paras 92 and 93.

[45] Counsel for the Appellant argues that in Guenter, unlike here, the arresting officer had provided the later breath demand before the accused spoke to counsel. Therefore, the facts and case of Guenter are distinguishable. Counsel argues the trial judge erred in failing to address this factual discrepancy or considering what the impact would be on the Appellant’s exercise of right to counsel. The Crown argues that based on Guenter itself and the Supreme Court’s decision in R v Sinclair, 2010 SCC 35 about which situations trigger a second right to counsel, the issue is settled in law and the trial judge was not obliged to address it further in his reasons.

[46] There are several problems with the Appellant’s arguments. First, the fact that the trial judge disagreed with counsel that Guenter was distinguishable does not mean that he did not consider the issue. When trial counsel argued the issue, the trial judge specifically asked him whether he was arguing a further right to counsel was required. He also asked if Guenter had been included in the book of authorities provided and if not, requested the citation be provided. The following exchange between the trial judge and trial counsel illustrates that the trial judge properly understood counsel’s argument:

THE COURT: So, are you, you’re saying that there was the reading of the breath demand, uh, in the breath room...

MR. ANBER: Right.

THE COURT: ...which was, uh, after the mistake of not reading.... Is your argument then that there was required to be a further, uh, reading of rights to counsel, at that point?

MR. ANBER: The – what I’m arguing is that the right to counsel that did take place could not have been a complete implementation of the right to counsel; having him being not been aware of, of, of the breath demand.

[47] Second, the trial judge was entitled to come to the finding that he did. There is nothing in the decision of the Ontario Court of Appeal in Guenter to suggest that it is necessary for the corrective/later demand to be made before the accused speaks to counsel in order to meet the requirements of s. 254(3). While the court noted that there was a “certain practical attractiveness” to linking the timing of the demand to the timing of detention, it did not read such a requirement into the provision. The Court confined itself to the wording of s. 254(3) that entitles a peace officer – which could include a breath technician - upon being satisfied that there are reasonable grounds to believe a person has committed an offence within three hours due to the consumption of alcohol, to make a breath demand as soon as practicable thereafter. The court did not read into the legislation a requirement that the breath demand must be made before the arrested person has exercised his or her right to counsel.

[48] In R v Sinclair, the Supreme Court highlights three situations where a person has a right to reconsult counsel: a change in jeopardy, the prospect of being subject to a non-routine procedure, and circumstances where it appears the accused did not understand his right to counsel or police undermined the legal advice received: R v Sinclair, 2010 SCC 35 at paras 49 to 52. The Crown’s position then and now is that none of these three situations were present in this case. When the trial judge asked trial counsel if he was arguing there should have been a rereading of the right to counsel after the breath demand was made, trial counsel replied that there could not have been a “meaningful implementation” of right to counsel but did not argue that indeed, this was a situation that warranted a second right to counsel because it fell into any of the categories set out in Sinclair. In its closing submission at trial, the Crown relied on Sinclair and argued that this was not a situation where after Cst. Poirier’s breath demand would have been entitled the Appellant to a second right to counsel.

[49] Recently, in R v Tahmasebi, a case decided after this trial, the Ontario Court of Appeal stated that a drug evaluation demand or urine sample demand and the offence of impaired driving are integrally related. These procedures that follow upon arrest would be within the expectation of a lawyer advising a person charged with impaired diving. That such demands are made would be within the expected topics of advice counsel would give a person charged with impaired driving. Hence, a request for a drug evaluation demand was not considered a non-routine procedure that would trigger a second consultation with counsel: 2020 ONCA 47 at paras 24, 26, and 39. The Crown argues, and I would agree, that a breath demand is an even more routine and foreseeable procedure to be covered by the initial advice a person would receve upon being charged for impaired driving. While from the Appellant’s perspective, the issue raised was a controversial area of law that might warrant, as suggested in R v GF, more in the form of reasons, I am not persuaded that it necessarily was: GF at para 75.

[50] In this case, the Appellant spoke with counsel for 20 minutes at the station prior to being given the breath demand. The call would, nonetheless, have been in the context of being arrested for impaired driving and as stated in Tahmasebi, the breath demand would have been within the expected topics of discussion. Furthermore, Cst. Poirier testified that when he would have reviewed with the Appellant whether he was satisfied with the call he had with his lawyer, there was no indication by him that he wasn’t. As per Sinclair, the reading of the breath demand was not a procedure that would trigger a second right to counsel. The trial judge was alive to the Appellant’s argument that a further right to counsel should have been given after the breath demand as reflected in his own questions to counsel and his request for the case of Guenter. Based on the record before him, I find the trial judge did not err in concluding that he could rely on Guenter that a corrective breath demand at a later date is permissible, and that the trial judge’s reasons are clear as to why he was satisfied that Cst. Poirier made a valid demand for the purposes of s. 254(3). This ground of appeal is therefore dismissed.

Issue three: Did the trial judge err in law by applying the wrong legal standard on whether or not the Appellant was informed of his right to counsel “without delay”?

Standard of review

[51] The application of a legal standard to the facts of a case is a question of law and therefore the correctness standard applies to the trial judge reviewing the issue on appeal.

Analysis

[52] The Appellant argues that the trial judge erred in imposing a standard of “reasonableness” rather than “immediacy” when assessing whether the Appellant’s right to counsel without delay was breached under s. 10(b) of the Charter. Counsel argues the trial judge erred in finding that it was acceptable for the officer to secure the Appellant’s and her own safety before reading the Appellant his right to counsel.

[53] On the issue of right to counsel without delay, the trial judge concluded at paragraphs 14 and 15 as follows:

[14] As stated by my colleague Henschel J. in R. v Rossi [2017] ONCJ 443, at para. 35, "An arrest is a volatile situation and officers must be given some discretion about how to best proceed in dealing with individual accused. [ ... ] Courts [ ... ] should be reticent to dissect every second of contact with an arrestee where the officers are diligently moving towards the provision of the rights to counsel."

[15] I do not find that the delay of seven minutes was unreasonable in this case or was contrary to the direction of the Supreme Court in R v Suberu. Cst. MacTavish was ensuring officer and public safety, including that of the accused, during the seven minute delay, in which there was no attempt on her part to elicit statements or evidence from the accused.

[54] The parties do not dispute that the legal standard for assessing whether someone’s right to counsel “without delay” has been breached is a standard of immediacy, i.e. an officer is expected to provide a person being arrested his right to counsel immediately upon arrest. The one exception may be in circumstances where officer or public safety is at issue: R v Suberu, 2009 SCC 33, [2009] 2 SCR 460 at para 42. The safety exception is narrow and to be determined by whether or not the officer had to take steps to address safety concern prior to reading a person their right to counsel: Suberu. As the Supreme Court stated at para 42 of Suberu:

…In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[55] As the Crown correctly points out, there have been several cases where lower courts have considered the reasons and length of the delay in determining whether rights to counsel were provided immediately.

[56] In Turcotte, McInnes J reviewed the different results in different cases about what “immediately” means in practical terms and concluded that the Supreme Court of Canada could not have intended that immediately means “instantaneously”. In his view, the terminology “immediately” was likely intended to ensure officers did not suspend the right to counsel information until after an investigative interview of the detainee: R v Turcotte, 2017 ONCJ 716 at paras 16-18. As explained by McInnes J, a short delay of a person in the back of a cruiser is while an officer attends to other tasks is less likely to run afoul of the obligation under s. 10(b) than an investigative interview of the detainee:

On the other hand, the context in which the Suberu Court came to interpret "without delay" as synonymous with "immediately" is important to a correct understanding of what "immediately" means in practical terms. Viewed in that light, I do not think the Court intended it to mean the same thing as, say, "instantaneously".

In my respectful view, the holding in Suberu that police have a duty to facilitate s. 10(b) including its informational component "immediately" was intended primarily to overrule that specific proposition and to make it clear that providing the right to counsel information could not be suspended until after an investigative interview of the detainee, even a brief one…

In my view, an important consideration in determining whether a short delay runs afoul of the obligation to effects. 10(b) "without delay" is whether and to what extent this purpose is engaged on the facts of the case. It is, of course, far more directly and clearly engaged by an investigative interview than by an officer leaving an arrestee in the back seat of the cruiser for a short number of minutes while she attends to other pressing tasks: Turcotte at paragraphs 12, 14, and 16 [emphasis mine].

[57] Similarly in R v Gowan, Kurke J. sitting as a summary appeal judge, held that a 10-minute delay between arrest and rights to counsel as the officer searched for the arrested person’s missing wallet did not breach the immediacy requirement: 2019 ONSC 3791 at paras 24 & 27. Similarly, in R v Selvashanmugathasan, 2019 ONCJ 23 at para 24, the court found that a delay of 2-3 minutes before giving the right counsel because the officer expedited the facilitating of the breathalyzer process did constitute a breach of the right to counsel without delay.

[58] In R v Rossi, the case relied on by Justice Wadden, Henschel J. held that a 7-minute delay between arrest and right to counsel because of time for arrest, search, retrieval of the accused’s cell phone, and letting accused settle down did not breach the immediacy requirement of rights to counsel: Rossi, [2017] OJ No. 3494 (OCJ) at paras 7, 9, 28, 30 and 31.

[59] There have also been decisions by courts where a short delay caused by an officer doing other tasks has been found to breach the “without delay” requirement of s. 10. The Appellant specifically points to R v Gordon, a decision by the Honourable Justice Hill of the Ontario Superior Court of Justice which he argues was binding on the trial judge: 2018 ONSC 1297. In Gordon, Hill J reviewed the right to counsel without delay in the context of an arrest of a motorist for a drug crime. While Hill J was prepared to accept that generalized officer safety concerns justified a few second’s delay that it took to secure the suspect’s driver’s license and have him step onto the street, the officers were constitutionally required to immediately provide the motorist his 10(a) and 10(b) Charter rights he had exited the vehicle and was no longer in a position to drive off: Gordon at para 53. In this case, the 10(a) right was provided by an officer at the time of arrest, i.e. he was informed of the reasons for his arrest or detention, but the arresting officer did not proceed to inform the motorist of his 10(b) right to retain and instruct counsel without delay. Rather, he handed over the motorist to a second officer who placed him in a police vehicle and read the standard caution and right to counsel.

[60] The Appellant’s counsel is correct that Rossi was a lower court decision, but it is one that is consistent with other trial decisions where judges have found that a short delay before providing the right to counsel while an officer processes the person being arrested or attends to other tasks will not necessarily constitutes a s. 10 breach. It is not disputed that there are also contrary trial decisions where on the application of the Suberu standard of immediacy, the trial judge has found that the delay was not justified. Gordon is one example as are the decisions in R v Dwyer, 2018 ONCJ 338; R v Davis, 2018 ONCJ 147. The point in referencing these cases is to illustrate that in applying the immediacy standard set out in Suberu, trial courts have varied on whether a temporal delay in providing the right to counsel following arrest constitutes a breach of s. 10(b) of the Charter. As stated in Turcotte, immediately does not mean instantaneously and consideration must be given to the overall circumstances of the arrest and most importantly, whether information is being elicited from the person arrested given one central purpose of the 10(b) provision is to minimize the risk of self-incrimination on the part of the arrested person.

[61] The trial judge was well aware of the governing principles on without delay. That he chose to rely on the decision and outcome in Rossi as opposed to the decision and outcome in Gordon is not determinative. The trial judge was not required to reconcile every court decision on the application of the Suberu principles. In referencing both Suberu and Rossi, it was clear that the trial judge was alive to the immediacy principle set out in Suberu, was satisfied Cst. MacTavish was taking steps to secure his and her safety, that she was diligent in moving towards providing the right to counsel once it was safe to do so, and most importantly, that she was not eliciting incriminating information from the Appellant with respect to the offence.

[62] Similarly, I find that the trial judge’s failure to reference the decision in R v La does not constitute an error. In R v La, the Ontario Court of Appeal stated that a general theoretical concern for officer safety and destruction of evidence will not justify a suspension of the right to counsel. Rather, the assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination:” R v La, 2018 ONCA 830 at para 39. This principle is not disputed. However, in this case, there was some evidence, as discussed above, upon which the trial judge was entitled to find that the unpredictable behaviour of the Appellant warranted having him searched and safely placed in the car before the right to counsel was read out.

[63] I find the trial judge was entitled to conclude the delay of seven minutes was reasonable under the circumstances. While the trial judge did not specifically account for the time Cst. MacTavish took to make a few preliminary notes before reading the right to counsel, the trial judge’s references to Suberu and Rossi decisions indicate he was well aware of the governing principles. It is clear from his reasons, when read in conjunction with the trial record, why he came to the finding that in these circumstances there was no s. 10(b) breach.

Issue 4: Did the trial judge make palpable and overriding errors in his factual findings to conclude that the Appellant had received his right to counsel “without delay”?

Standard of review

[64] Sufficiency of evidence to meet a legal construct is a question of fact or mixed fact and law and therefore, the standard of review requires that an appellate court not interfere with a trial judge’s findings of fact unless the trial judge has made a palpable and overriding error: Housen v Nikolaisen, 2002 SCC 33, at para 10.

Analysis

[65] The Appellant argues that the trial judge made several palpable and overriding errors in his factual findings to find the right to counsel was provided without delay. I will consider each of these in turn.

[66] First, counsel argues that the trial judge’s finding on the need to ensure safety issue was not supported by the evidence. I disagree. Trial counsel suggested to Cst. MacTavish in cross-examination that the Appellant wasn’t posing any specific safety concerns to which Cst. MacTavish replied “an impaired person can be unpredictable. Uh, based on what I was seeing, uh, it, it coulda been possible.” It is clear from this statement that Cst. MacTavish perceived the Appellant’s behaviour to be unpredictable. Given the descriptions of the Appellant’s erratic behaviour by the civilian, Cst. MacTavish, and Cst. Sweet, that concern was well founded and supported by the evidence before the trial judge.

[67] Second, the Appellant argues that the trial judge failed to consider all the evidence in assessing safety because he did not refer in his reasons to the fact that fact that the area was very well lit and there were two officers present. The trial judge is not required to refer to every fact in evidence. Moreover, trial counsel did not cross-examine Cst. MacTavish on these facts to undermine her claim that she was concerned for safety nor did he highlight these facts in his closing submissions to the judge.

[68] Similarly, the trial judge was not required to find that the accused’s own safety required him to be searched, handcuffed, and lodged in the cruiser in order to find that safety concerns warranted the delay in providing counsel. Trial counsel did not cross-examine Cst. MacTavish to elicit such evidence nor was such an argument made at trial. Moreover, one cannot ignore the dynamic situation of an arrest. As Cst. Sweet explained, commonly an officer will take steps to secure the safety of a person and themselves prior to reading the right to counsel. As he candidly stated, “It’s not something that we pull em’ out of a car “You’re under arrest” and then we read him right then and there….”

[69] Third, the Appellant argues that the trial judge misapprehended the evidence when he concluded that Cst. MacTavish did not elicit further statements from the Appellant while he was in the cruiser and before reading him his right to counsel.

[70] Here, the trial judge found, and the evidence demonstrates, that Cst. MacTavish spent the seven minutes of time between arresting the accused and giving him his right to counsel, in escorting the accused to the vehicle, having him searched by another male officer to ensure officer and public safety, placing the Appellant in the police cruiser, jotting down a few notes, and then reading the Appellant his right to counsel before heading to the detachment. The trial judge found the seven minutes of delay was not unreasonable and met the requirements of “without delay” as per s. 10 of the Charter and the governing jurisprudence. Part of the delay was caused by the slow pace in which the Appellant made his way to the car, a fact that was observed by both Cst. MacTavish and Cst. Sweet.

[71] The reason for ensuring the right to counsel is provided immediately is to minimize the risk of an arrested person engaging in self-incrimination: Suberu at paras 40 and 41. The trial judge was aware of this and for this reason added the remark that there was no evidence that Cst. MacTavish elicited statements from the Appellant while he was in the cruiser. That factual finding is supported by Cst. MacTavish’s evidence. There was indeed no evidence that Cst. MacTavish interviewed the appellant for the purpose of obtaining evidence with respect to the offence for which he was arrested. While there was some evidence from Cst. Sweet that Cst. MacTavish had been asking the Appellant while walking to the cruiser what he was doing at the residence, little turned on this question and none of what he said was relied upon in any form at trial by the officers.

[72] Finally, the Appellant argues that the trial judge misapprehended the evidence about whether the officer did “anything else not directly related to securing the accused in her cruiser” because he failed to mention that Cst. MacTavish took time to write her preliminary notes. The trial judge was clearly trying to make the point, as stated in Rossi, that Cst. MacTavish was diligently moving in the direction of providing the Appellant his right to counsel. On these facts, that Cst. MacTavish took a few minutes to make jot down some notes is not determinative of the issue of whether the right to counsel was given without delay.

[73] I find that the trial judge did not make any palpable or overriding errors that warrant appellate intervention in this case. This ground of appeal is accordingly dismissed.

Order

[74] The appeal is dismissed.

Somji J.

Released: September 9, 2022

COURT FILE NO.: 18-9889-AP

DATE: 2022/09/09

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Yared Tadesse

Appellant

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Somji J.

Released: September 9, 2022

R. v. Tadesse, 2022 ONSC 5128

Case Summary

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Overview

Brief Facts

Issue 1: Did the trial judge err in law by failing to provide sufficient reasons with respect to the reliability of the primary officer Cst. MacTavish?

Standard of review

Analysis

Issue 2: Did the trial judge err in finding this case was akin to R v Guenter and in failing to provide sufficient reasons explaining why?

Standard of review

Defence position

Issue three: Did the trial judge err in law by applying the wrong legal standard on whether or not the Appellant was informed of his right to counsel “without delay”?

Standard of review

Analysis

Issue 4: Did the trial judge make palpable and overriding errors in his factual findings to conclude that the Appellant had received his right to counsel “without delay”?

Standard of review

Analysis

Order

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 6

Legal Tests 1

Legislation 2