His Majesty the King v. Andrew Borko

SCA Court File No.: 3/23 Date: 2024-04-04

Ontario Superior Court of Justice Summary Conviction Appeals (Toronto Region)

Between: His Majesty the King, Respondent – and – Andrew Borko, Appellant

Counsel: Matthew Morley, for the Crown Adam Little, for the appellant

Heard: 17 January 2024, at Toronto by video conference

Reasons for Decision (On appeal from the decision of Justice Geraldine Sparrow of the Ontario Court of Justice dated 15 November 2022)

Mew J.

[1] On a rainy afternoon in September 2020, Police Constable Yuning Deng was in a squad car on traffic patrol on Bloor Street West, in the city of Toronto. He pulled up behind a Dodge Caravan minivan that had stopped at a red light but was encroaching on the pedestrian crosswalk. When the traffic light turned green, the vehicle ahead proceeded in an erratic fashion, swerving left and right and crossing over the line dividing the two eastbound lanes of Bloor Street West. At 4:46 p.m., [1] Officer Deng activated his emergency lights. The Dodge Caravan turned onto Cosmo Road and stopped.

[2] During the two minutes that followed, PC Deng spoke to the driver of the Dodge Caravan, who identified himself as the appellant, Andrew Borko. The officer explained to Mr. Borko that he had been stopped because his driving behaviour was abnormal. While talking to Mr. Borko, PC Deng testified that he could smell an odour of alcohol on Mr. Borko’s breath. Mr. Borko denied any consumption of alcohol when asked.

[3] After obtaining the appellant’s driver’s licence, ownership and insurance information, PC Deng returned to his police car to run checks on Mr. Borko’s licence and driving record. Because PC Deng did not have an approved screening device (“ASD”) with him, he called his sergeant, Steve Aguiar, requesting that an ASD be brought to the scene.

[4] At 4:54:46 – so between five and six minutes later – PC Deng returned to Mr. Borko’s vehicle and read a standard ASD demand. At the time this demand was made, PC Deng still did not have an ASD with him.

[5] By 4:59, Sergeant Aguiar had arrived with an ASD. The screening test was administered. The device registered a fail. Mr. Borko was arrested at 5:04.

[6] The appellant was taken to 23 Division police station, where he provided breath samples resulting in readings of 164 mg of alcohol per hundred millilitres of blood and 161 mg of alcohol in 100 mL of blood.

[7] Mr. Borko was charged, and subsequently convicted following a trial, with operating a motor vehicle with a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 320.14(1)(b) of the Criminal Code.

[8] Andrew Borko now appeals that conviction. He asserts multiple breaches of the Criminal Code requirements relating to the investigation of offences involving the operation of conveyances by persons having alcohol in their body, and consequent breaches of his rights under sections 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”). As a result, he asserts that the trial judge should have excluded the evidence of the breath sample results and acquitted him.

Additional Background Facts

[9] Following his arrest, the appellant was handcuffed, searched incident to arrest, and placed in PC Deng’s police car. At 5:06, Mr. Borko advised PC Deng that he had a bladder issue and needed to urinate. Between 5:07 and 5:11, PC Deng accompanied Mr. Borko to a place nearby where he was able to urinate behind a nearby bush. They returned to the police car at 5:11:10.

[10] At 5:17, PC Deng read Mr. Borko his right to counsel provided by to s. 10(b) of the Charter, and also read him the standard police caution. Mr. Borko said that he understood and wanted to speak with duty counsel. PC Deng told him that this would happen at the police station.

[11] At 5:21, PC Deng read Mr. Borko a formal breath demand. Mr. Borko advised that he understood.

[12] PC Deng, with Mr. Borko in his custody, left the scene at 5:34 p.m. They arrived at the 23 Division police station at 6:00 p.m. Upon arrival, PC Deng was advised that there were two other individuals who would be booked before Mr. Borko. As a result, PC Deng’s police vehicle, with himself and Mr. Borko onboard, remained at the sally port at 23 Division for 39 minutes.

[13] Once inside 23 Division, at 6:40, Mr. Borko needed to use the washroom. PC Deng took him to a washroom where Mr. Borko was able to urinate. However, unbeknownst to PC Deng, who was not familiar with 23 Division, Mr. Borko’s use of the washroom was video recorded. PC Deng testified that he believed he had taken Mr. Borko to a private washroom which did not have a camera. When he was shown video of Mr. Borko at the toilet, he agreed that he should have pointed out the camera and offered a privacy shield. He also confirmed that a caution about cameras and privacy shields would normally be read out at the beginning of the booking, but this had not happened prior to Mr. Borko’s visit to the washroom because there had been an urgent need to accommodate Mr. Borko’s bladder issue.

[14] Between 6:49 and 7:03, Mr. Borko underwent booking procedures with Sergeant Strachan. During the booking he was advised that if he needed to use the toilet, he could request a privacy cover. He responded “no, just water”.

[15] At 7:05, Mr. Borko was lodged in a cell. Having declined a privacy cover, he once again was recorded using the toilet.

[16] The recordings taken when Mr. Borko was using the toilet did not disclose anything in terms of intimate body parts or bodily functions.

[17] At 7:38, PC Deng called duty counsel. Duty counsel called back at 7:56 and spoke with Mr. Borko until 8:07.

[18] As 8:11, Mr. Borko provided a first breath sample to the breathalyzer technician, resulting in a reading of 164 mg of alcohol in 100mL of blood. The second reading, taken at 8:32, yielded a rating of 161 mg of alcohol in 100 mL of blood.

[19] Mr. Borko was released from custody at 11:09 p.m.

The Trial Judge’s Decision

[20] The trial judge, relying on R. v. Quansah, 2012 ONCA 123 and R. v. Bui, 2014 ONSC 6955, found that the thirteen minutes between the time that PC Deng formed a reasonable suspicion of impairment and the demand for, and taking of, a breath sample (from 4:49 until 5:02) constituted a lawful demand pursuant to s. 320.27(1)(b) of the Criminal Code. Having so found, the trial judge concluded that there had been no violation of the appellant’s Charter rights under sections 8, 9 or 10(b) as a result of the delay in administering the test.

[21] The trial judge was also of the view that while the delay between the time of Mr. Borko’s arrest and being read his s. 10(b) Charter rights could not be fully explained or justified by reference to the approximately four minutes during which Mr. Borko was taken to urinate, the delay constituted only a minor breach of the “informational” component of his right to counsel.

[22] The trial judge rejected an argument that PC Deng breached his constitutional obligation to facilitate Mr. Borko’s requested access to a lawyer at the first reasonably available opportunity when he failed to provide access to counsel for 40 minutes while Mr. Borko was in the police car outside of the sally port. The trial judge also found that the 24-minute delay between entry to the police station and lodging Mr. Borko in the cell was reasonable in the circumstances (which included Mr. Borko making an urgent trip to the washroom). The trial judge agreed that the 30-minute gap between Mr. Borko being lodged and PC Deng calling duty counsel was unexplained, but nevertheless also constituted only a “relatively minor” breach of the implementation of Mr. Borko’s right to counsel.

[23] The trial judge also found that, while the recording of Mr. Borko’s use of the toilet was a breach of his right to be secure against unreasonable search or seizure, pursuant to s. 8 of the Charter, the seriousness of that breach was mitigated by the circumstances. These included the efforts by PC Deng to respond to Mr. Borko’s urgent need to use the facilities, his lack of familiarity with the cells (specifically, the fact that there was a camera in the toilet which he took Mr. Borko to), as well as Mr. Borko’s later rejection of a privacy shield.

[24] In her analysis under s. 24(2) of the Charter, the trial judge concluded that the breaches of Mr. Borko’s Charter rights were not serious, that the impact of the three breaches was relatively minimal, and that exclusion of the breathalyzer evidence would not be proportionate to the three Charter breaches that she had found, when society’s interest in the prosecution of drinking and driving events is, in cases such as the incident case, high.

[25] Finally, the trial judge rejected arguments that Mr. Borko’s s. 8 Charter rights were violated because the breath samples were not obtained “as soon as practicable” in accordance with s. 320.28(1) of the Criminal Code.

Grounds of Appeal

[26] The appellant alleges that the trial judge erred:

a. By not finding that there were multiple breaches of the appellant’s Charter rights under sections 8, 9, 10(a) and 10(b); b. In finding that the ASD demand was made “immediately” and in accordance with s. 320.27(1) of the Criminal Code; c. By finding that the ASD test was administered “immediately” in accordance with ss. 320.27(1)(b) and 320.27(2) of the Criminal Code; d. By not finding that his right to counsel breach began earlier; e. By failing to find that his s. 8 Charter rights were violated because the breath samples were not obtained as soon as practicable in accordance with s. 320.28(1) of the Criminal Code; and f. By failing to exclude the breath samples’ evidence under s. 24(2) of the Charter.

[27] The trial judge’s decision on questions of law is subject to a “correctness” standard of review; her findings of fact are entitled to deference, absent a palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33.

Roadside Breath Sample Screening

[28] When a driver is pulled over by a police officer for a suspected traffic offence, there is almost inevitably a discussion between the officer and the driver. If the officer has reasonable grounds to suspect that a driver has alcohol in his or her body, the officer may, by demand, require the person to perform prescribed physical coordination tests and/or to immediately provide samples of breath by means of an approved screening device: s. 320.27(1) of the Criminal Code.

[29] Section 10(b) of the Charter provides that everyone has the right upon arrest or detention to retain and instruct counsel without delay and to be informed of that right. However, stops to provide breath samples are meant to be brief. While drivers stopped for this purpose are being detained, courts have recognised a limit on the right to counsel guaranteed by s. 10(b) of the Charter during such detention. This limit is justified under s. 1 of the Charter, because what is now s. 320.27 of the Code reflects the balance struck by Parliament between the safeguarding of drivers’ constitutional rights and the public interest in eradicating impaired driving: R. v. Woods, [2005] 2 S.C.R. 205, 2005 SCC 42, at para. 29.

[30] The appellant argues that the trial judge erred in finding that both the breath screening device demand made by PC Deng, and the obtaining of the subsequent breath samples using the ASD, were lawful.

[31] Specifically, the appellant takes the position that both the ASD demand and the obtaining of the breath sample should have occurred immediately after PC Deng formed reasonable grounds to suspect that the appellant had been driving while having alcohol in his body.

[32] Section 320.27(1) of the Criminal Code provides as follows:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol…:

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose…

[33] As is apparent from reading the section, there is an explicit requirement that, following a demand, a person is “to immediately provide” a sample or samples of breath. However, the section, and its predecessors, have also been interpreted as including what is often referred to as the “implicit” immediacy requirement in relation to the making of the ASD demand. This is explained in Joseph F. Kenkel, Impaired Driving in Canada, 6th ed. (Toronto: LexisNexis, 2021), at §3.3(1)(o):

Section 320.27 does not direct that a screening demand be made within any particular time. The only time component is the requirement that the subject person must comply “immediately” with the screening demand. However, appellate courts have found that it is implicit that the demand must be made by the police officer as soon as they form the reasonable suspicion that the driver has alcohol or a drug in their body.

[34] Were it not for the implicit and explicit requirements of immediacy, s. 320.27(1) would not pass constitutional muster, because it authorises roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Charter: Woods, at paras. 14-15.

[35] In Quansah, the Court of Appeal had held that the implicit immediacy requirement must always be considered contextually. Applying Quansah, the trial judge found that certain tasks inherent in a traffic stop, as undertaken by PC Deng, were justifiable steps taken between the formation of suspicion and the making of the ASD demand. She wrote:

I agree that Deng could have made the demand before getting in his cruiser, calling for a device and checking the accused’s identity and driving record. However, in my view, his actions were not unreasonable. He clearly wanted to get a device to the scene quickly, and confirm the accused’s identity and driving record with the check of his driver’s licence. Ordering the device promptly and confirming its arrival was obviously important as were confirmations of identity.

[36] The appellant and the Crown agree that the recent decision of R. v. Breault, 2023 SCC 9, has qualified certain aspects of the Ontario Court of Appeal’s decision in R. v. Quansah. However, they disagree on whether the discussion in Breault of the immediacy requirement in s. 320.27(1) of the Criminal Code applies to both the “demand” (or “implicit”) and “compliance” (or “explicit”) components of the subsection.

[37] The Supreme Court in Breault disavowed what it regarded as a broadening of the immediacy requirement to allow for the time “reasonably necessary to enable the officer to discharge his or her duty” (Quansah, at para. 47). At para. 51, Côté J. wrote:

It follows that the approach adopted by the Ontario Court of Appeal in Quansah needs to be qualified. It is true that the immediacy requirement is not met where the length of the detention was such that the stopped driver could realistically have consulted counsel. It is also true that, in the reverse case, the analysis is not at an end, because there are situations in which the immediacy requirement is not met even though there was not enough time to consult counsel (Quansah, at paras. 34‑35). However, with respect, the Ontario Court of Appeal broadened the immediacy requirement unduly by finding that it must allow for the time “reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)” (Quansah, at para. 47). “Forthwith” is not synonymous with “time reasonably necessary”; this word must be given an interpretation consistent with its ordinary meaning, except in the unusual circumstances referred to by Fish J. at para. 43 of Woods.

[38] In both Breault and the present case, the officer who made the demand did not have an ASD with him at the time the demand was made. The trial judge relied on the decision of Trotter J., sitting as a summary conviction appeal judge in R. v. Bui, where it was held that a seven-minute delay between the making of an ASD demand and the arrival of the device would not constitute non-compliance with what, under the legislation then in force, was referred to as the “forthwith” requirement. The Court of Appeal came to a similar conclusion in R. v. Degiorgio, 2011 ONCA 527.

[39] In Breault, it was held that a demand made in the absence of an ASD is not presumed to be valid. As the Court explained, at para. 65:

When a detained driver has to respond to a demand to provide a breath sample, the driver must be able to know whether the demand is valid and whether refusing will result in criminal liability. [Citation omitted.] In a context where the driver is unable to retain and instruct counsel, it cannot legitimately and realistically be expected that the driver will agree in advance to comply and will then be capable of determining when the delay in the delivery of an ASD justifies a refusal.

[40] The Crown, as respondent on this appeal, concedes that as a result of the decision in Breault, the absence of an ASD at the time the demand was made rendered it impossible for the appellant to immediately provide samples of breath. Hence, the demand was invalid.

[41] However, the Crown argues that Breault only overruled the Court of Appeal’s decision in Quansah insofar as the compliance, or explicit, component of s. 320.27(1) of the Code is concerned.

[42] The Crown offers the following rationale for this approach:

As the trial judge held, tasks inherent in a traffic stop, such as verifying a driver’s identification, licence status, ownership, and insurance, are justifiable steps between the formation of suspicion and the making of the ASD demand. From the perspective of a detained motorist and their rights, it matters not whether an officer checks their documents before or after alcohol screening; either way, they will be detained at roadside. On the other hand, a police officer acting alone at roadside has legitimate safety reasons to find out who they are dealing before alerting the motorist to the possibility of a breath search.

As a matter of both public and officer safety, the police are entitled to a brief delay to determine the identity of the driver and ascertain fundamental investigatory details before making an ASD demand.

[43] In other words, a “time reasonably necessary” standard would apply to making a screening demand. Immediacy, in its literal sense, would, as I understand the respondent’s position, only kick in when an ASD demand is made.

[44] Breault was concerned with the administration of breath testing using an ASD. But as I read it, the decision in Breault addresses both the implicit and explicit requirements of what is now s. 320.27(1). Breault seeks to rein in the more elastic interpretation of “immediately” employed in Quansah, and applied to both the implicit and explicit immediacy requirements.

[45] As a practical matter, from the perspective of a detained motorist and their rights it matters not whether an officer checks their documents before or after alcohol screening, because either way, they will be detained at roadside. The appellant had presented his documents. PC Deng had already formed his reasonable suspicion that the appellant had consumed alcohol. He was effectively detained while they were checked in any event. There was no compelling reason, on the occasion in question (absent the presence of an ASD), not to make a screening demand there and then.

[46] Furthermore, one is bound to ask whether the argument could be made that “time reasonably necessary” could, depending on the circumstances, include time taken to request and obtain an ASD. While that would likely not be in keeping with the spirit of Quansah, the potential for abuse is nevertheless evident.

[47] In my view, to now try to separate out the implicit from the explicit, given the overarching constitutional concerns, would be to inject uncertainty into the application of s. 320.27(1) which the judgment in Breault sought to limit.

[48] Band J. of the Ontario Court of Justice was of a similar view in R. v. Moskalyk, unreported, 18 December 2023, where he states, at para. 19:

… Breault discusses both the implicit and explicit requirements of the section. … so did Quansah, by relating the concept of reasonable necessity to the entire time frame, starting from reasonable suspicion: see para. 47. As a result, I am of the view that an ASD demand must be made immediately, in the ordinary sense of that term, subject only to unusual circumstances.

[49] As a consequence of the refinements implemented by Breault, the trial judge’s finding that the ASD demand met the requirements of s. 320.27(1) cannot stand. PC Deng’s demand was, as the Crown concedes, invalid.

[50] The invalid ASD demand meant that the appellant was detained at roadside without having been informed of rights to counsel. Absent the excised results of the ASD testing, PC Deng did not have objectively reasonable grounds to arrest the appellant, take him back to the station, and require him to provide further breath samples. There were, therefore, cascading or “consequential” breaches of the appellant’s ss. 8, 9, and 10(b) Charter rights, because the ASD demand was not valid.

Right to Counsel

[51] The appellant alleges breaches of both the informational and implementational elements of his right under s. 10(b) of the Charter to retain and instruct counsel without delay and to be informed of that right.

[52] The trial judge found that the unexplained delay between the appellant failing the ASD screening test at 5:04 and being read his rights at 5:17 was a “minor breach” of the informational component of his section 10(b) right. The respondent does not challenge that finding.

[53] A logical extension of the impact of Breault is that the appellant should have been read his rights as soon as he was detained at the roadside after PC Deng had formed a reasonable suspicion that he had consumed alcohol (at which time he should also have made the ASD demand), so at, or shortly after, 4:49. The extent to which such a delay could be regarded as more than “minor” is addressed further in the section 24(2) analysis section of these reasons.

[54] As already noted, the trial judge also found that there was a “relatively minor” breach of the appellant’s s. 10(b) rights at the implementation stage because of the unexplained 33-minute gap between Mr. Borko being lodged in a cell and PC Deng calling duty counsel.

[55] The appellant argues that the 39–40-minute delay while he was in the police car waiting outside the sally port was unreasonable and thus constituted an earlier s. 10(b) breach. He says that PC Deng should have begun taking steps to facilitate his rights to counsel, including turning off the in-car camera (“ICC”) in the police car, or giving him the option to speak to a lawyer without privacy.

[56] The appellant’s argument is grounded on the principle that the duty to facilitate access to a lawyer arises immediately upon the detainee's request to speak to a lawyer, and that an arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity: R. v. Taylor, 2014 SCC 50, at para. 24.

[57] The appellant had said that he wanted to speak to a lawyer at or around 5:17.

[58] The trial judge rejected the appellant’s argument that the breach of his right to speak with counsel crystallised when PC Deng failed to facilitate the exercise of his right during the 39-minute wait outside of the sally port:

In my view, Deng was justified in not providing access to counsel in the cruiser. As he said, privacy is hard to provide, a recording device was running, he could not be certain when they would gain entry to booking, and he did not know if there was enough time to call duty counsel and provide a proper opportunity to get advice with an interpreter’s assistance. Twenty-three Division was clearly busy. A wait was inevitable. In my view, the delay in the cruiser was, as Deng said, part of police practice and reasonable.

[59] In Taylor, at para. 24, Abella J. wrote: "The burden is on the Crown to show that a given delay was reasonable in the circumstances [references omitted]. Whether a delay in facilitating access to counsel is reasonable is a factual inquiry”.

[60] The trial judge’s factual findings are entitled to deference reviewable only for palpable and overriding error. While the appellant criticises the trial judge’s finding that PC Deng did not know if there was enough time for the appellant to call duty counsel while they waited at the sally port, I agree with the respondent that this was a permissible inference for the trial judge to draw from the officer’s testimony. Indeed, when PC Deng did call duty counsel, there was then an 18-minute interval until duty counsel called back and spoke to the appellant, a conversation which lasted for eleven minutes.

[61] The appellant also argues that the officer was not sufficiently proactive in facilitating the right to counsel. He did not determine whether the appellant had a functioning mobile phone (there was some evidence that he did, but no information about whether it was charged or otherwise functional). He could (contrary to his training) have turned off the on-board recording equipment in the police car, or given the appellant the option of calling counsel while the recording system remained on.

[62] Each of these possibilities needs to be considered having regard to all of the circumstances, which included uncertainty as to how long the wait to enter the booking area would be. Ultimately, the trial judge held that it was not reasonably feasible to facilitate a call to duty counsel in the police vehicle outside the police station. I see no reason to interfere with the trial judge’s finding in that regard.

Failure to Obtain Breath Samples as Soon as Practicable

[63] Section 320.28(1) of the Code imposes an obligation on the police to make a demand for a breath sample “as soon as practicable” and for the person to whom the demand is made to provide a sample as soon as practicable.

[64] The trial judge rejected an argument that the ASD “as soon as practicable” requirements attract Charter scrutiny. In R. v. Riley, 2023 ONSC 5967, Akhtar J. came to a similar conclusion.

[65] An application for leave to appeal the decision in Riley – which, as a matter of horizontal stare decisis I would be expected to follow – is pending. Counsel agreed to waive argument on the issue on this appeal, while reserving the right to raise the issue should there be appellate review of my decision.

Exclusion of the Breath Sample Evidence Due to Charter Breaches

[66] The decision of the trial judge applied the law that bound her at the time, principally Quansah. Given the Crown’s concession that the ASD demand was not valid when it was made, there was a breach of the appellant’s Charter right to be secure against unreasonable search and seizure (section 8), which led to consequential breaches of his rights under sections 9 (arbitrary detention) and 10(b). It is also conceded that the trial judge’s application of section 24(2) of the Charter (exclusion of evidence bringing the administration of justice into disrepute) is not entitled to deference. That said, her findings of fact continue to attract deference, absent palpable and overriding error or a material misapprehension of evidence.

[67] In order to be entitled to the exclusion of evidence under s. 24(2), the applicant must establish that the evidence was “obtained in a manner” that infringed the Charter.

[68] In R. v. Grant, 2009 SCC 32, at paras. 72-86, the Supreme Court directed courts considering the admissibility of evidence obtained in violation of an accused person’s Charter rights to examine and consider:

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter protected interests of the accused; and
3. Society’s interest in an adjudication on the merits.

[69] An initial Charter breach can result in what has been described as a “cascade” of subsequent Charter violations. In R. v. Zacharias, 2023 SCC 30, Rowe and O’Bonsawin JJ. for the majority explained the difference between “cascading” and independent breaches of Charter rights:

[47] Where an arrest is unlawful because it is premised on the results of a Charter breach, it is the initial Charter breach that renders what follows unlawful. In other words, there is a situation of linked or “cascading” Charter breaches (see Blanchard, 2011 NLCA 33, 308 Nfld. & P.E.I.R. 91], at para. 34). We use the term “consequential” to refer to such breaches in the s. 24(2) analysis because the subsequent arrest is unlawful only as a consequence of the “initial” breach or breaches that preceded it.

[48] Importantly, an arrest that can be viewed only as a consequential breach is distinct from state action that is characterized by additional or independent misconduct, including conduct that can be considered an “independent” breach of the Charter (such as failing to give an arbitrarily detained accused their right to counsel upon arrest). In those circumstances, the subsequent state action is of a different character and will be factored into the s. 24(2) analysis differently.

[70] The respondent also argues that the “fresh start” approach articulated by the Supreme Court in R. v. Beaver, 2022 SCC 54, applies. Under the “fresh start” approach, evidence will not be regarded as having been “obtained in a manner” that breached the Charter when the police have made a “fresh start” from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous.

[71] Applying the “fresh start” approach, the respondent submits that the fact that the appellant spoke to duty counsel with an interpreter, fully to his satisfaction, before providing breathalyser samples drew a clear wedge between the s. 10(b) violations and the breathalyser evidence, such that the evidence was not obtained in a manner that violated the appellant’s rights. This argument, which was advanced at trial, was not considered by the trial judge because she had decided not to exclude the evidence in any event.

[72] The appellant refers me to the caution expressed by Paciocco J.A. in R. v. Davis, 2023 ONCA 227, that the application of the “fresh start” doctrine “must be sensitive to the facts of each case” (at para. 36), adding that a relevant consideration in applying the “fresh start” doctrine is whether the subsequent compliance by the police dispelled the effect of the initial breach. He continues (at para. 38): “[b]y parallel consideration, the ‘fresh start’ doctrine has more obvious application in cases where the impact of an earlier Charter violation has been effectively dispelled by subsequent Charter compliance that occurs before the discovery of the subject evidence”.

[73] In Davis, the court was dealing with an argument that a summary conviction appeal court should, of its own volition, have undertaken a “fresh start” analysis, despite it not having been raised as an issue on appeal. Tellingly, though, the court offered, as an example of a clear case for the application of the “fresh start” approach, the Court of Appeal’s decision in R. v. Manchulenko, 2013 ONCA 543. There, “the accused ultimately fully enjoyed the implementational right to counsel he was initially deprived of, when he spoke to counsel before providing the subject breath test. The subsequent compliance was with the identical right that had initially been breached, and it occurred before the evidence was obtained. In the end, the initial breach had no effect …”: Davis, at para. 39.

[74] The respondent urges me to regard the Court of Appeal’s discussion of the “fresh start” approach in Davis as obiter and that a correct application of Beaver would lead to the conclusion that the “fresh start” approach mitigates the breaches of the appellant’s s. 10(b) rights, arising, initially, from the delay in informing Mr. Borko of his right to counsel, followed by the unexplained delay between Mr. Borko being lodged in a cell and PC Deng calling duty counsel (a “relatively minor breach”, according to the trial judge).

[75] An obvious distinguishing feature in the present case is that there were multiple breaches of the appellant’s Charter rights. Even if the appellant’s informational and implementational s. 10(b) rights could be regarded as identical to the rights that were subsequently upheld, the other breaches form part of the chain of events leading to the obtaining of the breathalyser evidence that the appellant seeks to have excluded. As noted in Beaver, at para. 99, whether evidence remains tainted by a Charter breach, despite subsequent Charter compliance, requires a “holistic” approach, “based on whether there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence”.

[76] Ultimately, employing case-specific factual inquiry into the existence and sufficiency of the connection between the Charter breach and the evidence obtained, the instant case is not, in my view, a “clear case” for the application of the “fresh start” approach.

Seriousness of the Charter-infringing State Conduct

[77] The appellant’s Charter rights were infringed in several respects:

a. Breach of the implied and express immediacy requirement in relation to the making of the ASD demand resulting in the appellant’s unlawful arrest and, hence, breaches of his rights under sections 8, 9 and 10(b) of the Charter; b. A further reach of the informational component of the appellant’s section 10(b) rights as a result of the delay in informing him of his right to counsel; c. A breach of the implementational component of the appellant’s section 10(b) rights as a result of the unexplained 33-minute delay between the appellant being lodged in a cell and the call to duty counsel; d. Breach of the appellant’s section 8 right to be secure against unreasonable search or seizure as a result of the presence of security cameras when he used a toilet at the police station.

The Traffic Stop and Arrest

[78] PC Deng should have informed Mr. Borko as soon as he formed a reasonable suspicion that Mr. Borko had consumed alcohol in the previous three hours. Having done so, he should have required Mr. Borko to take a sobriety test and/or provide a sample of his breath. Instead, there was a five-to-six-minute delay in making the ASD demand, and when it was made, compliance by Mr. Borko was rendered impossible because PC Deng did not have a device with him. The detention of Mr. Borko following the making of the ASD demand was therefore unlawful, as was his arrest seven to eight minutes after the ASD demand had been read. Compounding that, the appellant was not provided with the informational component of his s. 10(b) right until 30 minutes after the initial traffic stop.

[79] In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, 2009 SCR 34, the Supreme Court, considering the spectrum of police conduct, stated, at para. 22:

Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern.

[80] As Paciocco J.A. said in Davis, at para. 51, an officer “truly respectful of Charter rights attends to and exercises care in complying with settled and simple Charter precedents”.

[81] In evaluating PC Deng’s conduct, it is noteworthy that he had been on the job as a police officer for just four months. The trial judge found him to be “straightforward, honest, detailed and careful”. Both the delay in administering the ASD demand and the taking of the appellant’s breath sample were, arguably, compliant with the Charter precedents as they then stood. Immediately after arresting the appellant, there was an urgent need to find somewhere for Mr. Borko, who had a bladder condition, to urinate. Compounding the situation further, it was pouring with rain. The delay in informing the appellant of his right to counsel, while unexplained, was not, on the evidence (or any reasonable inference that could be derived from it) the product of an unreasonable lack of good faith on the officer’s part.

[82] Having regard to all of the circumstances, the breaches of Mr. Borko’s Charter rights which occurred in the thirty minutes following the traffic stop fall at the lower end of the seriousness spectrum.

Subsequent Breaches

[83] The subsequent breaches were also, as found by the trial judge, relatively minor. In particular, the privacy breach at the police station, while regrettable, was the result of a combination of the urgency caused by Mr. Borko’s bladder condition and PC Deng’s lack of familiarity with the facilities at 23 Division (he seemingly only learned about the presence of a camera in the place where he took Mr. Borko to use the bathroom during the course of giving evidence at trial).

[84] In R. v. Buhay, [2003] 1 S.C.R. 631, 2003 SCC 30, at para. 47, the Supreme Court reminded appellate courts that the findings of a trial judge which are based on an appreciation of the testimony of witnesses should be shown considerable deference. The Court continued that “[i]n s. 24(2) findings, this will be especially true with respect to the assessment of the seriousness of the breach, which depends on factors generally established through testimony, such as good faith and the existence of a situation of necessity or urgency”.

[85] I see no reason to revisit the trial judge’s evaluation of the seriousness of those breaches.

Conclusion on Seriousness

[86] Even when aggregated with the breaches that occurred in the first thirty minutes, the overall presentation is one of a series of unintentional and situational delays that do not betray undue carelessness, neglect or lack of respect for Charter rights on the officer’s part.

[87] My evaluation of the seriousness of the Charter-infringing state conduct weighs in favour of the admission of the evidence of the breathalyser results.

Impact of the Breaches on the Charter Protected Interests of the Appellant

[88] The trial judge found that the impact of the three breaches which she found to have occurred was relatively minimal. The implementation of the right to counsel had ultimately been facilitated before the tests in a respectful manner. The breach of the right to bodily privacy should always be considered to have some impact, but on all of the evidence, including the appellant’s rejection of a privacy shield on a second occasion, the trial judge concluded that it did not have a high enough impact to mandate exclusion.

[89] While I would not disturb these findings of the trial judge, the breaches associated with the traffic stop and arrest do need to be re-evaluated in light of Breault.

[90] In R. v. Taylor, 2017 ONSC 2489, at para. 25, Wollcombe J. served a reminder that where an accused is deprived of the right to counsel before providing a breath sample, while no one knows where such advice, if given, may have led, the impact of the Charter infringing conduct on an accused cannot be trivialised.

[91] In the recent case of R. v. McColman, 2023 SCC 8, the Supreme Court considered the effect of a police stop which was unlawful because it was effected while the accused was on private property and therefore outwith their statutory authority to conduct a random sobriety stop. As a result of the unlawful stop, the accused was arrested and brought to the police station, where he was detained for several hours. Wagner C.J. and O’Bonsawin J. concluded, at para. 68, that the impact of the unlawful stop favoured exclusion of the subsequently obtained evidence, including the officer’s observations of signs of impairment, the accused’s statements about his alcohol consumption, and the results of two breathalyser tests: the unlawful police stop constituted a “marked, although not egregious, intrusion” on the accused’s Charter-protected interests.

[92] I would apply similar reasoning to the impact of the Charter-protected interests of Mr. Borko, and conclude that the overall impact of the breach of those interests, while not egregious, favours the exclusion of the evidence.

Society’s Interest in an Adjudication on the Merits

[93] As the appellant states in his factum, while “courts have always acknowledged the serious problem posed by impaired driving, persons accused of such offences are still entitled to the full protection of the Charter no matter what the charge is”.

[94] There were multiple breaches of the appellant’s Charter-protected rights, albeit cascading down from the initial unlawful detention. Although none of the breaches, taken individually, could be regarded as serious violations, their cumulative effect nevertheless raises the level of concern about the state conduct involved.

[95] The appellant argues that in the face of the number of different constitutional violations in this case, admitting the evidence would be contrary to society’s interest in having a justice system that is above reproach.

[96] In Grant, the Court held, at para. 110:

The third line of inquiry -- the effect of admitting the evidence on the public interest in having a case adjudicated on its merits -- will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.

[97] In the present case, two breathalyser samples provided by the appellant more than three hours after his arrest, yielded a blood-alcohol level more than twice the legal limit.

[98] I therefore disagree with the appellant. In my view, the exclusion of this highly reliable evidence would run contrary to the strong societal interest in combatting the scourge of impaired driving. Accordingly, the third Grant factor strongly favours the admission of the evidence.

Balancing the Factors

[99] In Grant, at para. 127, the Supreme Court put forward a “general rule” to guide the weighing and balancing process that courts are required to undertake:

As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused's protected interests, the trial judge may conclude that it should be admitted under s. 24(2). On the other hand, deliberate and egregious police conduct that severely impacted the accused's protected interests may result in exclusion, notwithstanding that the evidence may be reliable.

[100] In the present case a new, well-meaning, but inexperienced officer, followed the law and proper procedure, as he understood it. While there were unexplained delays in both the informational and implementational aspects of the appellant’s section 10(b) rights, a reasonable person would not view those shortcomings, absent any evidence of bad faith or knowing disrespect on the officer’s part for the appellant’s rights, as bringing the administration of justice into disrepute.

[101] Although I find that the second Grant factor favours exclusion, even if the cumulative weight of the first two factors could be said to still tip the balance in favour of exclusion, the third Grant factor firmly tips the balance towards inclusion. Ultimately, I come to the same conclusion as the Supreme Court did in McColman, at para. 73:

In light of the reliability and importance of the evidence as well as the seriousness of the alleged offence, the third line of inquiry pulls strongly in favour of inclusion. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system.

Conclusion

[102] For the foregoing reasons, I would dismiss the appeal.

Mew J.

Released: 4 April 2024

Note

[1] There is a discrepancy of 1-2 minutes between some of the times recorded in PC Deng’s notes, and those recorded by the onboard video system in his police car. These discrepancies are not material for the purposes of this appeal. I have, however, used the times recorded by the video system for the purposes of the following summary.