Court File and Parties

Court File No.: CR-24-045 (Owen Sound)
Date: 2025-03-05
Court: Ontario Superior Court of Justice

Between:

His Majesty the King
Respondent

- and -

Zachary Telford
Applicant

Appearances:
Anya Shahabi, for the Applicant
Elizabeth Barefoot, for the Respondent

Heard: February 19 and 21, 2025

Judge: Peter Sproat

Ruling – Sections 8, 9 and 10(b) Charter Application

Introduction

[1] On December 23, 2023, the police received a report of a suspicious vehicle parked at a convenience store in Meaford. Cst. Lewis attended. The Applicant was in the driver’s seat and appeared to be asleep. He was arrested for impaired operation, and ultimately charged with possession of fentanyl which was found on his person. He was also charged with possession of psilocybin, possession of methamphetamine for the purpose of trafficking, and possession of fentanyl for the purpose of trafficking as a result of drugs found in a search of his vehicle.

[2] The Applicant argues that the drugs should be excluded from evidence as a result of sections 8, 9 and 10(b) Charter breaches.

The Evidence on the Application

[3] Cst. Lewis, Cst. McIsaac, Cst. Innes and Sgt. Starzecki testified on the application.

[4] As of December 23, 2023, Cst. Lewis had approximately six months of service. When he attended the scene, he knocked fairly loudly on the driver’s side window, but there was no response. When he opened the door, he inquired as to what was going on and whether Mr. Telford was okay. Mr. Telford lifted his head and he was holding keys in his right hand. He said he had a history of losing consciousness. EMS personnel were on the scene and conducted an assessment of Mr. Telford. They asked him if he knew where he was and he incorrectly stated that he was in Owen Sound, which is 30 km away. The car was filled with various belongings, including liquor bottles. Mr. Telford said he was living in the vehicle.

[5] Cst. Lewis listened during the EMS assessment, and at one point stepped away to call Cst. McIsaac to inquire when he would arrive on scene. Cst. Lewis testified that his grounds to arrest for impaired operation were that Mr. Telford was unconscious on arrival, he thought he was in Owen Sound, he said he had not been parked there for long whereas dispatch had received a report that he had been there for one hour, he fumbled getting out his health card, in getting out of the vehicle, he held on to the door for balance, he swayed as he walked, and there was a slight slur to his speech. There was an odour of alcohol, and the EMS personnel also reported smelling alcohol.

[6] As soon as the EMS completed their assessment, Cst. Lewis arrested Mr. Telford at 9:22 p.m.

[7] Before being put in the cruiser Mr. Telford was searched incident to the arrest. A zip lock baggie containing a pink substance was found in one of his pants pockets. As an inexperienced officer, Cst. Lewis was not sure what kind of illicit drug it was. Cst. McIsaac arrived on scene at 9:17 p.m. He assisted with the arrest.

[8] Following the arrest, Cst. McIsaac remained at the scene, waiting for a tow truck to pick up Mr. Telford’s vehicle. He then followed the tow truck to the Meaford detachment of the OPP, where there was a garage in which he would be able to search the vehicle incident to arrest. At 11:47 p.m., Cst. McIsaac began his search of Mr. Telford’s vehicle at the Meaford detachment.

[9] Following the arrest, Cst. Lewis drove Mr. Telford to the Chatsworth detachment, arriving at 10:05 p.m. He went to Chatsworth because he had been advised that Cst. Kieswetter would attend there to do a breath test.

[10] Sgt. Starzecki was the supervising officer that night. He was at the Chatsworth detachment when Cst. Lewis brought Mr. Telford in. Cst. Lewis showed him the baggie seized from Mr. Telford at the scene in the search incident to arrest. Sgt. Starzecki, who had five years of experience in drug investigations, believed that the substance in the bag was fentanyl. He advised Cst. Lewis to arrest Mr. Telford for possession of fentanyl. At approximately 10:21 p.m., Cst. Lewis advised Mr. Telford he was charged with possession of fentanyl, and he was cautioned and again advised of his right to counsel.

[11] An agreed statement of fact was filed that included:

a) Cst. Kieswetter arrived at the Chatsworth detachment at 9:40 p.m., and by 10:30 p.m. was set up to administer a breath test.

b) The test was delayed so that Mr. Telford could speak to duty counsel.

c) Cst. Kieswetter observed Mr. Telford to have bloodshot eyes, be generally unsteady, with “delayed speech” and slight slurring of words.

d) Breath samples were taken at 11:16 p.m. and 11:39 p.m., and Mr. Telford’s blood alcohol concentration (“BAC”) was zero.

[12] At approximately 11:42 p.m., Cst. Kieswetter advised Cst. Lewis that the breath sample indicated there was no alcohol. Cst. Lewis then spoke to Sgt. Starzecki, who reviewed his complete involvement that evening, and the decision was made to make a demand for a drug recognition evaluation (“DRE”). The demand was made at 12:11 a.m. At 12:16 a.m., Cst. McIsaac advised Sgt. Starzecki that, in a search of the vehicle, he had uncovered a large amount of what appeared to be fentanyl. Sgt. Starzecki then decided that he would go to the Meaford detachment to supervise the vehicle search. He arrived at 1:04 a.m.

[13] Cst. Innes, qualified DRE officer, was located in Kincardine. It was, therefore, decided that Mr. Telford would be transported from Chatsworth to the Walkerton detachment, which was roughly halfway between the two locations.

[14] Cst. Innes performed the DRE between 1:38 a.m. and 2:31 a.m. and determined that Mr. Telford was under the influence of a narcotic analgesic and cannabis. As such, he read a demand for blood at 2:33 a.m. Blood samples were taken at the Walkerton Hospital at 3:01 a.m. which tested positive for illicit drugs, including fentanyl.

[15] Following the DRE, Mr. Telford was returned to the Chatsworth detachment at 3:58 a.m. Cst. Lewis had to do a CPIC check and prepare documents such as a notice of possible suspension of his licence, documents related to the impoundment of his vehicle and the release documents. He testified that, as an inexperienced officer, it took him longer than it would now.

[16] By 6:03 a.m., the decision had been made to release Mr. Telford, and Cst. Lewis called his emergency contact. There was no answer, but the emergency contact called back at 7:00 a.m. Cst. Lewis then awakened Mr. Telford, explained the release and related documents to him, and he was released at 7:20 a.m.

Alleged Charter Breaches

No Reasonable Grounds for Arrest

[17] Ms. Shahabi submitted that Mr. Telford was detained almost immediately, given that Cst. Lewis smelled alcohol after he opened the door of Mr. Telford’s vehicle. It is a reasonable inference that, with an individual who reports a history of losing consciousness and who was found unconscious, the EMS personnel took the lead role and conducted their assessment, which included taking Mr. Telford’s blood pressure. Cst. Lewis was listening during most of the assessment.

[18] I do not believe that Mr. Telford was being detained by the police during the EMS assessment. Mr. Telford was co-operating with EMS personnel and voluntarily remaining in place. If I am incorrect, and this can be considered a detention, the obligation to advise of the right to counsel immediately must take into account the fact that Mr. Telford was being assessed for what could be a serious medical condition. In that context, it would not have been appropriate for Cst. Lewis to interrupt and delay the medical assessment to advise Mr. Telford that he was being detained and had the right to counsel.

[19] At the conclusion of the EMS assessment, Cst. McIsaac was also on scene. The officers had a brief discussion and concluded that there were grounds to arrest for impaired operation.

[20] There were various strong indicators that Mr. Telford was impaired, as set out above at paragraphs 4 and 5. Ms. Shahabi in effect asks me to reject much or all of this evidence, due to the fact that his BAC proved to be zero.

[21] Nothing was elicited in cross-examination that would cause me to doubt the credibility and reliability of Cst. Lewis’ and Cst. McIsaac’s evidence. The fact that they detected a smell of alcohol, yet the blood alcohol concentration (“BAC”) was zero, is explained by the fact that Mr. Telford was living out of his vehicle, and it contained a number of liquor bottles.

[22] The fact that the BAC was zero does not negate the compelling evidence that Mr. Telford was, in fact, impaired. There were, therefore, reasonable and probable grounds for his arrest for impaired operation.

No Justification or Search of Vehicle After Blood Alcohol Concentration was Zero

[23] My analysis that concludes that there were reasonable and probable grounds for arrest also effectively determines this issue.

[24] Cst. McIsaac began his search of the vehicle at 11:47 p.m. By this time, Mr. Telford had been arrested for impaired operation and possession of fentanyl. A search of the vehicle incident to those arrests was clearly lawful. In fact, Cst. McIsaac located what tested to be fentanyl and methamphetamine, which can cause impairment.

No Justification for DRE

[25] Section 320.28(2) C.C. provides that a police officer may, by demand made “as soon as practicable”, submit to a DRE evaluation. Section 320.28(4) C.C. provides that the DRE officer may make a demand that the person provide a blood sample.

[26] The OPP DRE 12 Step Guide indicates that step one is a breath test for alcohol. The officer qualified to administer that test was in Chatsworth. The DRE evaluation officer travelled to Walkerton to conduct the evaluation there at the earliest opportunity. While the DRE evaluation was conducted 4.5 - 5.5 hours after Mr. Telford had been driving, much of the delay was the result of this being a rural area which necessitated considerable travel time. The results of the blood test were, however, supportive of the DRE opinion that Mr. Telford was impaired by drugs.

Unreasonable Delay in Facilitating Consultation with Duty Counsel

[27] Cst. Lewis was under no obligation to attempt to facilitate a call to duty counsel from his cruiser immediately following the arrest. There was no obligation to provide Mr. Telford with the officer’s own cell phone.

[28] Cst. Lewis testified that he and Cst. McIsaac were the only officers in their zone working that evening. While no officer had a specific note or recollection, on balance, I am satisfied there were no additional officers at the Meaford detachment that evening. As such, I accept as reasonable Cst. Lewis’ explanation that, for officer safety reasons, one officer would not take an accused person to a vacant detachment to make a call.

[29] It was, therefore, necessary to take Mr. Telford to Chatsworth. Cst. Lewis testified that, while he arrived at the Chatsworth detachment at 10:05 p.m., duty counsel was not called until 10:32 p.m., and Mr. Telford did not speak to duty counsel until 10:43 p.m.

[30] Cst. Lewis acknowledged that upon arriving at the station, he prioritized making notes and consulting Sgt. Starzecki regarding the nature of the substance seized from Mr. Telford’s pants. Cst. Lewis explained that the consultation with Sgt. Starzecki was because he knew duty counsel would want to know details of all the charges. In addition, some time was taken in re-arresting Mr. Telford for possession of fentanyl based on the pink substance found in the baggie that was found on his person at the time he was initially arrested.

[31] I agree that there was about a 20-minute unreasonable delay, and that this breached Mr. Telford’s s. 10(b) right to instruct counsel “without delay”, which the courts have interpreted to mean “immediately.”

[32] As this is the only Charter breach that I find, it is convenient to now address s. 24(2). In reviewing the Grant factors, this is not a close call.

[33] The seriousness of the breach is at the low end of the scale. Cst. Lewis was an inexperienced officer acting in good faith. There was no attempt to question Mr. Telford prior to him consulting duty counsel. The breach had no practical impact on Mr. Telford’s Charter protected rights. Nothing that duty counsel could say or do would have any impact on the vehicle search for, and discovery of, drugs. Drugs such as fentanyl are a public health hazard, and the evidence sought to be introduced is physical evidence. Society has a strong significant interest in an adjudication on the merits. Taking these factors into account, it is clear to me that admitting the drugs and other items seized would not bring the administration of justice into disrepute.

Unreasonable Delay in Releasing Accused from Custody

[34] Ms. Shahabi had submitted that Mr. Telford should have been released after it was determined, at 11:39 p.m., that his BAC was zero. For reasons set out above, I do not accept that submission. This leaves the delay from 3:58 a.m. on December 24, 2023, until he was released at 7:20 a.m. Cst. Lewis, during this time, was engaged in discussions leading to the decision to release Mr. Telford and in completing tasks that had to be completed before Mr. Telford could be released.

[35] Cst. Lewis called Mr. Telford’s emergency contact just after 6:00 a.m., but the contact did not call back until 7:00 a.m. to indicate she would pick Mr. Telford up, and he was released at 7:20 a.m. There was no point in awakening Mr. Telford earlier, as it would be unsafe for him to leave the detachment, on foot, in the cold and darkness of winter. There was no unreasonable delay in releasing Mr. Telford and, as a result, there was no Charter breach.

Conclusion

[36] The application to exclude evidence is, therefore, dismissed.

Released: March 5, 2025

Peter Sproat