R. v. Brown, 2020 ONCJ 193

ONTARIO COURT OF JUSTICE CITATION: R. v. Brown , 2020 ONCJ 193 DATE: 2020 04 11 Durham Region Court File No.: 18-IS29013 BETWEEN: HER MAJESTY THE QUEEN — AND — DARIN JOSEPH BROWN Before Justice Susan C. MacLean Heard on October 8, 9, 10 and November 8, 2019 Judgment with Reasons to Follow provided on January 21, 2020 Reasons for Judgment released on April 11, 2020 David Morgan......................................................................................

Counsel for the Crown Paul Affleck........................................................................... for the Defendant Darin Brown MacLean, J.: Overview of the Case [ 1 ] At 11:30 a.m. on Monday June 25, 2018, Mark Morissette, a transport driver who had stopped for lunch, found Darin Brown sitting in the driver’s seat of his motor vehicle stopped in the middle of the road on Fox Avenue in Oshawa. Mr. Brown appeared to be sleeping or passed out behind the wheel. The music on his car radio was blaring. Mr. Morissette was concerned so he called 9-1-1. An ambulance attended. P.C.

Ryan Bandstra #2751, a Durham Regional Police Service (D.R.P.S.) officer, one of the officers who attended the scene, became the officer in charge of the investigation. He had been a police officer since September of 2017 working with a coach officer and on his own since January of 2018, so he was relatively inexperienced at the time of this investigation. [ 2 ] Based on what he had been told and his own observations of Mr. Brown, P.C. Bandstra arrested Mr. Brown for drug impaired driving and placed him in his police cruiser.

He also requested that a Drug Recognition Evaluator (D.R.E.) officer attend the scene to run tests to indicate the level of drug impairment, but he was advised that none was available that day. P.C. Bandstra then searched Mr. Brown's vehicle and located a small purse beside the driver’s seat which amongst other items appeared to contain drugs which the officer believed might be crack Cocaine or “crystal meth”. Continuity of these drugs was not in issue. These drugs were submitted to Health Canada for analysis.

Exhibit 5 is the Certificate of Analyst from Health Canada dated May 8, 2019 indicating that the drugs analyzed as Methamphetamine rather than what the police suspected was Cocaine. The original information included a count of possession of Cocaine; however, the Crown withdrew that charge at trial, leaving only the drug impaired driving charge to be tried. It was an admitted fact that the registered owner of the vehicle was Laura Brown, who is Darin Brown's wife (see Exhibits 2 and 3). No photos were ever taken of the interior of the vehicle. [ 3 ] Mr.

Brown was advised at the scene and when paraded in front of St. Sgt. Elliott at the police station that he was being charged with a drug impaired driving offence. He was also eventually charged with possession of Cocaine, but was not informed of that offence

before consulting duty counsel at the police station. Although P.C. Bandstra and St. Sgt. Elliott spoke with him about the drugs that hadbeen found in his car, the first time he was made aware of being charged with a drug offence was hours later, when he was released fromthe police station. [4] Following his arrest, P.C. Bandstra took Darin Brown to the Whitby police station. P.C. Bandstra tried again to obtain theassistance of a D.R.E. as he was driving back to the police station, but was told again that none was available. Once at the station, Mr.Brown was placed in a cell and eventually paraded before St. Sgt.

Robert Elliott. St. Sgt. Elliott believed that recent amendments to theCriminal Code had come into effect permitting the police to demand a blood sample. These amendments in

Part I of Bill C-46 had, in fact, come into force on Thursday, June 21, 2018, just 4 days prior to Mr. Brown's arrest on June 25th. St. Sgt. Elliott called the DurhamRegion Crown Attorney’s office to obtain legal advice about the changes in the law, when they came into effect, and to seek assistance informulating a proper blood demand. The legislative changes were so recent that the D.R.P.S. had not yet developed any protocols or awording for a blood demand. [5] During the parade, Mr. Brown asked to speak with duty counsel. That request was facilitated and Mr. Brown had a privateconversation with duty counsel.

While that call was taking place, St. Sgt. Elliott was obtaining the legal advice described above from theCrown Attorney’s office. It was only after the call to duty counsel was completed, that Mr. Brown was informed he would be taken to ahospital for a blood sample to be taken by a medical professional, and a formal blood demand was read to him by P.C. Bandstra. He wastold if he failed to comply, that he would be charged with Refuse. Mr. Brown was not given the opportunity to consult a lawyer againafter the blood demand was read to him.

The videotape of the parade and the subsequent blood demand were played as evidence duringthe trial. [6] Mr. Brown was transported to Lakeridge Health Oshawa hospital for the blood samples to be taken. Initially the hospital wasunwilling to take the samples, as they were unaware of the recent changes in the law and no protocols had been developed between thepolice and hospital yet. After a few hours of conversations back and forth between the police and the hospital, however, they agreed totake the samples, but only if Mr. Brown consented.

When asked if he would consent, he verbally agreed and the samples were taken andturned over to P.C. Bandstra. A significant trial issue was the nature of the consent and the failure of the police to provide Mr. Brownwith a further opportunity to consult counsel before consenting to the taking of his blood samples. [7] P.C. Andrew Chmelowsky #3252 received Mr. Brown's blood samples (4 vials), from P.C. Bandstra at the hospital. He sealedthe bag, kept the evidence in his custody and turned it directly over to Det. Cst.

Janovitz #3434, who later delivered the blood to theCentre of Forensic Sciences (C.F.S.) for analysis. The continuity of the blood samples was in issue until later in the trial when it wasconceded. [8] Galiena Tse, a Toxicologist from the Centre of Forensic Sciences testified about the results of the analysis of Darin Brown'sblood samples. There were 4 drugs found in his blood: Methamphetamine, Amphetamine (likely a metabolite), Methadone andLorazepam.

She testified about the effects that these drugs could have on an individual. [9] The Defence elected to call no evidence on either the Charter Application or the Trial. At the completion of the evidence, theparties agreed to file written submissions on all issues. I thank Counsel for their very helpful work.

History of the Proceedings [10] The trial could not be completed on the original three days scheduled for it on October 8, 9 and 10, 2019, so the date ofNovember 8, 2019 was added. [11] Following the completion of the trial, the parties were asked to prepare written submissions and transcripts of all of theevidence were ordered. Unfortunately, Mr. Affleck became very ill with the flu in December 2019 and was therefore delayed in filinghis submissions on time.

In addition to this, I experienced a very serious back issue in late December, which prevented me from sittingand typing at a computer for any length of time and writing my Reasons. This lasted for a few weeks, which left me with insufficient timeto complete my written Reasons for the Charter Ruling and for the final Judgment, although I did have sufficient time to thoroughlyreview the case and make the required decisions. On January 21, 2020, therefore, I informed the parties of my decisions for both, andadvised that I would provide my written Reasons to follow.

The parties were informed that I was granting the Charter Application andexcluding the blood samples and their analysis by Ms. Tse, the Toxicologist from the Centre of Forensic Sciences. I also advised theparties that I was left with a reasonable doubt about whether Mr. Brown's ability to operate a motor vehicle was impaired by a drug andacquitted him. [12] I had hoped to finalize and release my Reasons within one month of January 21, 2020, prior to commencing a two-month longarmed robbery trial with 6 co-accused, which started at the beginning of February 2020.

The completion of my written Reasons was delayed further, however, because after releasing my decision on January 21st I came across the very recent decision of the Ontario Courtof Appeal in R. v. Tahmasebi, [2020] O.J. No. 333 decided on January 29, 2010, approximately one week after my decision was given. In fairness to both parties, and out of an abundance of caution, shortly after reading that decision, I contacted them by email through ourjudicial secretary, giving them an opportunity to make further written submissions on the impact of the Tahmasebi case on the Charter s.10(

b) issue of whether Mr. Brown had a right to further consultation with Counsel. I also invited the parties to make submissions as towhether I am functus given that I had acquitted Mr. Brown but had not yet delivered my Reasons. I asked for all submissions to be sent to my judicial secretary by February 12, 2020 at the latest, however, learned that Mr. Morgan was out of his office until February 18th. Itherefore revised the due date to February 26, 2020 for the Crown. already rendered my verdict. The Defence elected to make no submissions regarding the Tahmasebi case in the circumstances.

Ireceived no response from Mr. Morgan by February 26, 2020 so had my judicial secretary contact him again by email that day asking for a response on February 27, 2020. On February 27, 2020, I received the Crown’s response sent late on the 26th. It was written by Mr.Paul Murray, Deputy Crown, rather than Mr. Morgan, who was the Crown at trial. Mr. Murray informed me that it is the Crown’s

position that my decision acquitting Mr. Brown on January 21, 2020 was a final ruling and that I am therefore, functus officio . They took the position that in these circumstances it would be inappropriate for the Crown to make further submissions. Mr. Murray also advised that the Crown had already initiated a

Summary Conviction Appeal [prior to receiving these Reasons]. On February 27, 2020, I advised the parties through my judicial secretary that having now received the positions of both parties I could finalize my Reasons and would have them released within approximately one month. I could not finalize and release them immediately in light of my ongoing responsibilities to the legally complex two-month long trial which I had currently been dealing with. That trial had to be suddenly suspended in mid-March due to the Covid-19 Coronavirus Directive requiring all trial matters to be adjourned.

Since then, there have been frequently evolving issues as our Court has been developing new policies and procedures (such as remote courts) to address the pandemic. I have been finalizing these Reasons while also reviewing the significant amount of information being sent out about the illness, and the protocols and procedures being put in place by the Ontario Court of Justice at provincial and local levels. This has delayed my completion of these Reasons for a few weeks. [ 14 ] For the reasons articulated further below, I have determined that the facts of the Tahmasebi case are distinguishable from Mr.

Brown's case, and therefore it would not have altered my Charter Ruling with respect to the police obligation to provide Darin Brown with a further opportunity to consult a lawyer. It is therefore, unnecessary for me to consider whether I am functus officio because of the fact that I have already acquitted Mr. Brown with these Reasons to follow. [ 15 ] These are my Reasons for both the Charter Ruling and my final decision at Trial. The Issues and Positions of the Parties [ 16 ] In their written submissions the Defence and Crown fully set out the issues being raised and their respective positions.

The issues raised on this trial are summarized as follows: 1) Did the police breach s. 10(

a) of the Charter by failing to inform Darin Brown that he was being charged with possession of Cocaine until he was released from the police station several hours after his arrest? The Defence submits that the police breached s. 10(

a) by this failure. The Crown submits that even though the police did not advise Mr. Brown of the possession charge until his release, he was aware of his jeopardy since he had been told that the police had found drugs in the vehicle; it is argued the possession charge did not amount to a new and more serious turn in the investigation. 2) Did the police breach s. 10(

b) of the Charter by failing to inform Darin Brown that he was being charged with possession of Cocaine before he consulted duty counsel? The Defence submits that by failing to inform Mr. Brown of this offence he was not aware of the full extent of his jeopardy when he consulted duty counsel. The Crown takes the position that since Mr. Brown knew that the drugs had been found in the vehicle which he was driving, that he had a full opportunity to consult with duty counsel about the potential of being charged with possession of drugs. 3) Did the police breach s. 10(

b) of the Charter by failing to provide Darin Brown with a further opportunity to consult counsel after a blood demand was made at the police station? The Defence submits that the police had a duty to provide Mr. Brown with a further opportunity to consult counsel when they decided to make a demand for samples of his blood. The Crown argues that since Mr. Brown had already spoken with duty counsel and indicated he was satisfied with the call, that the police had no further obligation to provide access to counsel and that the demand for blood was not a new or non-routine procedure. 4) Did the police breach s. 10(

b) of the Charter by failing to provide Darin Brown with a further opportunity to consult counsel when the hospital refused to take blood samples without his consent and before Mr. Brown was asked to consent? The Defence argues that given the hospital’s position that they would not take Mr. Brown's blood samples unless he consented, that the police should have given Mr. Brown the opportunity to consult counsel again to receive advice about whether he should consent or not. The Crown’s position is that there was no obligation on the police to provide Mr.

Brown with a further opportunity to consult counsel while at the hospital before being asked to consent. 5) Did the police breach s. 8 of the Charter when they seized Darin Brown's blood samples at the police station without obtaining a valid consent from Mr. Brown? The Defence concedes that P.C. Bandstra had reasonable grounds to arrest Mr. Brown for the offence of drug impaired driving and abandoned that s. 8 issue in written submissions. The Defence still argues, however, that Mr.

Brown's “consent” to the taking of the blood samples at the police station was a completely invalid consent at law, and the that Crown cannot prove on a balance of probabilities that it was a valid consent. It is argued that this amounts to an unlawful seizure of his blood. The Crown submits that the consent given by Mr. Brown at the police station was still valid at the time the blood samples were received and he repeated his consent verbally. The Crown’s position is that the hospital’s internal requirements that Mr.

Brown consent do not invalidate the seizure of the blood samples taken pursuant to a lawfully authorized blood demand. 6) If any breaches are found to have occurred, should the blood samples received from Darin Brown and the results of their analysis be excluded pursuant to s. 24(2) of the Charter ? The Defence submits that given the evolving nature of the breaches and their cumulative effect, that the evidence of the blood samples should be excluded.

The Crown takes the position that if any breaches are found to have occurred, that they are not serious enough to warrant exclusion of the evidence. 7) If the evidence of the analysis of the blood samples received from Darin Brown is excluded, is there still sufficient evidence to prove beyond a reasonable doubt that he had the care or control of a motor vehicle while his ability to due so was impaired by a drug? The Crown submits that even if the Court excludes the blood analysis, there is still sufficient evidence proving drug impaired care or control beyond a reasonable doubt.

The Defence takes the position that there is insufficient evidence of impairment in this case, and submits that even if there is some evidence of physical symptoms, that there is no proof beyond a reasonable doubt that any impairment is due to consumption of a drug. [ 17 ] Some of the important issues in this case turn on the fact that the blood demand was made pursuant to legislation that came into effect just days before Darin Brown's arrest on June 25, 2018. Bill C-46 received Assent on June 21, 2018. Prior to the amendment, a blood demand could only be made by a D.R.E. officer, following an evaluation .

Commencing June 21, 2018 (up to December 17, 2018 when further amendments came into effect), the Criminal Code provision was revised to permit any police officer with the proper

grounds to demand a sample of blood. Following June 21, 2018. the relevant section 254(3.1) read as follows (emphasis added):

(3.1) 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 paragraph 253(1)(

a) as a result of the consumption of a drug or a combination of alcohol and a drug , or has committed an offence under subsection 253(3), the peace officer may, by demand made as soon as practicable, require the person (

a) To submit, as soon as practicable, to an evaluation conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose; or (

b) to provide , as soon as practicable , the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person’s blood drug concentration , or the person’s blood drug concentration and blood alcohol concentration, as the case may be, and to accompany the peace officer for that purpose. [ 18 ] The new legislation in s. 254(4) also provided that the blood samples may only be taken by a qualified medical practitioner or qualified technician “who is satisfied that taking the samples would not endanger the person’s life or health”.

This language is the same for the legislation prior to the amendments. [ 19 ] Prior to the June 21, 2018 amendments, s. 254(2) permitted an officer with reasonable grounds with respect to alcohol or drugs, to make a demand for a person to provide breath samples or demand that they perform physical coordination tests. The only provision for a blood sample demand to be made for alcohol impaired situations was when a person was physically incapable of providing a breath sample or it would be impracticable to obtain a breath sample (see former section 254 (3)(1)(ii)).

The former s. 254(3.1) also allowed an officer to make a demand for a drug recognition evaluator officer to evaluate the person. Under s. 254(3.4), where the D.R.E. had grounds based on their evaluation, they could demand either oral fluid or urine samples following the evaluation.

Section 254(3.4)(b), allowed the D.R.E. to make a blood demand following an evaluation by the D.R.E., provided it would not put the person’s health at risk as set out above in s. 254 (4). [ 20 ] Although the Defence challenges whether the evidence is sufficient to amount to proof beyond a reasonable doubt that Darin Brown was impaired by a drug, there is no issue being raised about whether P.C. Bandstra had reasonable grounds to make the demand for the blood samples under the new amendments.

Evidence of Impairment by Drug and Grounds for Arrest [ 21 ] Mark Morissette, a transport driver, was working on Monday, June 25, 2018, doing a regular run delivery. Around 11:30 a.m. he was on his way to have lunch at the McDonald's in the Walmart on Laval Drive in Oshawa. This is in the plaza just to the east of Fox Avenue, the street where he came across Darin Brown in his vehicle, a silver Saab with License Plate BELW053. It was an admitted fact that this is Mr. Brown's License Plate for the car registered in his wife’s name. [ 22 ] Mr.

Morissette was travelling northbound on Fox where he would normally pull over to the right, park his transport vehicle and walk over to get lunch in the plaza. Mr. Brown's vehicle was parked and stopped in a live lane of traffic. Mr. Morissette believed it in a centre lane between the northbound and southbound lanes, although there is nowhere to turn from that lane. Another male who used a walker was also stopping to investigate what the problem was. Mr. Morissette parked his transport ahead of that other male, put his brakes on the tractor and exited.

He spoke to the male with the walker briefly and then walked over to Mr. Brown's vehicle, after cautioning the older male to be careful where he walked in case Mr. Brown's vehicle moved and put his safety at risk. [ 23 ] When Mr. Morissette approached Mr. Brown's vehicle, he heard that the music was on and was very loud. The vehicle was running and the hazard lights/4-way flashers were on. Mr. Brown was seated in the driver’s seat with the chair in an upright position. He was laying back with his chin down and his eyes closed . Mr. Morissette identified Mr. Brown in court.

Darin Brown was wearing a baseball cap, had red-reflective sunglasses on and appeared to be in his mid to late twenties. It was fairly evident to him that Mr. Brown was not conscious or aware, so he called 9-1-1. The 9-1-1 operator asked him to observe the driver and asked whether he was breathing. The 9-1-1 operator also asked if there were any signs of open liquor but he told them that he just noticed a Tim Horton's cup in the car. Mr. Morissette did not try to rouse or shake Mr. Brown in any way because he was concerned for his own safety. Mr.

Morissette stayed close to his own vehicle, and advised the male with the walker to do so as well while waiting for the first responders. At no time did Mr. Brown wake up while they were waiting. A couple of cars came northbound and southbound and they waved them by and kept them moving. [ 24 ] Mark Morissette was present when the police and ambulance arrived. He believes the ambulance and the police arrived within seconds of each other. He observed the first officer on scene reach into the car and try to rouse Mr. Brown, who appeared to wake up. Mr.

Morissette agreed in cross-examination that he saw the officer “wake up” the driver. Another cruiser arrived on scene. Mr. Morissette saw the police questioning Darin Brown briefly after removing him from his car but could not recall if it was one or more officers. Mr. Morissette remained with the male who had the walker, and they were about one and a half car lengths away from where the police were dealing with Mr. Brown. [ 25 ] P.C. Bandstra was dispatched to the location where Mr. Brown's vehicle was stopped at approximately 11:35 a.m.

He was a relatively new officer, having commenced his training in September of 2017. He had been on the road independently for approximately 6 months at the time of this incident. He had been an officer about 2 years by the time he testified. The nature of the call for was a car

parked in the middle of the road at Fox Street and Laval, with the driver passed out. This hearsay is only relevant to the officer’s grounds. P.C. Bandstra did not note the time that he arrived on scene, but he believes he arrived after another police unit and the ambulance. He parked his cruiser and exited. He observed Mr. Morissette's tractor trailer and the other male’s sedan parked facing north. [ 26 ] P.C. Bandstra also observed Darin Brown's motor vehicle stopped straddling the northbound and southbound lanes (not in a centre lane as Mr. Morissette described).

He saw EMS attending to a male, (identified as Mr. Brown in court). Mr. Brown was leaning up against the driver’s side door with his back on the vehicle. The officer suspected this male was the driver. P.C. Bandstra believed he was trying to determine if this was an impaired call, which is what it had been called in as. He also knew it could be a medical episode that would require EMS to transport the male to the hospital. He watched the paramedics assess Mr. Brown. The paramedics were not called as witnesses at trial, so I do not have the assistance of their observations of Mr. Brown. [ 27 ] P.C.

Bandstra said he was dealing with safety issues because of the vehicle parked in the middle of two live lanes of traffic. He observed that Mr. Brown's vehicle was still turned on and running. He shut the car off. He looked in to the van and found 2 child car seats strapped to the back bench of the van. He confirmed that there were no children or other persons present in the vehicle. The Arrest and Charter Rights Provided at the Scene [ 28 ] As indicated earlier, P.C.

Bandstra had been told by the 9-1-1 dispatcher that the incident involved a car parked in the middle of the road at Fox Street and Laval, with the driver passed out. In formulating his grounds for arrest, P.C. Bandstra was also informed by Mark Morissette that he was the tractor trailer driver who had come across Darin Brown's motor vehicle. He told the officer that he saw the male sitting upright in the driver’s seat with his head slouched forward in a sleeping position. The radio was blaring in the vehicle, and nobody else was present in the vehicle. [ 29 ] P.C.

Bandstra did not see if other officers interacted with Mr. Brown. He was observing Mr. Brown's behaviour as he was interacting with the paramedics. He believed EMS were completing their assessment and they informed the officer that Mr. Brown was medically cleared. By this point P.C. Bandstra was confident from his observations of Mr. Brown and the information he had received from Mr. Morissette that Darin Brown was the driver of the motor vehicle straddling both lanes. Mr. Brown identified himself as Darin Brown with an Ajax address. [ 30 ] The officer observed that Mr.

Brown had a difficult time standing and was resting his back against the panel of the driver’s door. He could stand on his own but required the assistance of the vehicle to keep him in that spot . He had no injuries. The weather was clear and warm, the sun was out, it had not rained and the road was not wet. The road was flat and level. [ 31 ] Mr. Brown was wearing black and red sports shoes, dark coloured wash jeans, a black t-shirt, a dark-coloured baseball hat and a pair of sunglasses. P.C. Bandstra requested that Mr. Brown remove his sunglasses, which he did. The officer was within 4 inches of Mr. Brown. P.C.

Bandstra observed that Mr. Brown's pupils were pinpoint in nature . The officer knew that pupils exposed to bright light will normally contract. It was bright and light out so the officer assumed his pupils would contract, but after a number of seconds they did not return to their normal size and remained very pinpoint, very tight and very noticeable. The officer also noticed that Mr. Brown's eyes continued to shift back and forth rapidly . In re-examination the officer testified that when his sunglasses were removed Mr.

Brown's pupils were pinpoint which would be expected, but that they would normally return to a normal size since he was wearing a hat with a brim covering his eyes. So, he continued to observe Mr. Brown's pupils. [ 32 ] While I accept as reasonable the officer’s evidence that he believed these observations of Mr. Brown's eyes to be symptoms of drug impairment, they go only to his grounds for the arrest, as no evidence was called at trial by an expert or D.R.E. to explain these observations as proof of impairment by drugs. The Crown never sought to qualify P.C.

Bandstra as an expert in this area to allow me to rely on it for trial purposes. In cross-examination P.C. Bandstra testified that he had received some medical training as a police officer and he had also been a part-time firefighter for eight years during which he received emergency medical training that went beyond First Aid. He was taught about pupils in terms of medical episodes and impairment, and had dealt with instances of observing pupils in relation to heart attacks, strokes and medical diagnoses.

The officer conceded that he is not an expert in this area and while having some experience looking at pupils, he had not been trained in how to go through tests to determine whether there is a drug in somebody’s system, in the manner that D.R.E. officers are trained to make observations of a person’s eyes (see transcript of October 9, 2019 at page 9 line 18 to page 11 line 5). For example, P.C. Bandstra agreed he did not know what type of drug the symptom of pinpoint pupils was connected to, but he had been trained it might be connected to drug use.

As discussed later in these Reasons, the Crown never asked their expert Toxicologist what the significance of pinpoint pupils or rapid shifting of eyes means in relation to drug use. [ 33 ] P.C. Bandstra testified that while he engaged in conversation with Mr. Brown that he was having a difficult time grasping what was going on, although he was able to respond to and answer questions. The officer did not note the specific questions he asked. The officer suspected Darin Brown was impaired and was trying to determine if he had consumed alcohol but he had no alcohol on his breath. When the officer asked Mr.

Brown where he thought he was, he told the officer he was unable to recognize where he was and started to look around to try and find a bearing to indicate where he was [this statement goes only to grounds and not proof of the impaired driving since it is prior to being given his Rights to Counsel]. He stepped away from the vehicle in an attempt to walk down the street to try and find a road sign or some other indicator. As he walked away from his vehicle, he was unsteady on his feet. Mr. Brown also swayed while standing in one spot. [ 34 ] Mr. Brown told P.C.

Bandstra that he had been up all night with his kids and argued that was one of the reasons he appeared to be tired and for the situation. This statement, again, goes only to grounds, and Darin Brown did not testify at all so there is no evidence from the Defence on this issue for the trial. Having his own young children, the officer empathized with being up with children all night and waited for Mr. Brown to wake up. In spite of this explanation, however, P.C. Bandstra concluded that he had sufficient grounds to arrest Mr. Brown for impaired care or control of a motor vehicle.

He advised that his grounds were based on all of the signs including: Mr. Brown relied on his vehicle for stability, his pupils were pinpoint, he swayed as he stood and was unsteady when he walked and he had been observed by Mr. Morissette in the condition he described over the wheel and in a live lane of traffic. The arrest for that offence took place at 11:53 a.m. and the officer informed Mr. Brown that he was being arrested for the offence of “impaired operation of a motor

vehicle by drug” because he did not observe any signs of alcohol impairment. While Mr. Brown appeared to understand the officer couldn’t be completely sure that he was “fully able to take in the whole totality at the time” . In cross-examination P.C. Bandstra testified that he did not ask Mr. Brown to do any sobriety tests at the roadside because he believed he had enough grounds for the impairment arrest without them. He agreed that he had never dealt with Darin Brown before so didn’t know how he normally appeared. [ 35 ] Mr. Brown was placed in handcuffs and walked to the cruiser and placed in the back seat.

As he walked there, he was having difficulty walking and maneuvering . At 11:55 a.m. the officer read him the Rights to Counsel and Caution from the rear of his notebook. P.C. Bandstra can't recall if he was seated in the cruiser while he did this or standing at the back door of the cruiser with the door opened beside where Mr. Brown was seated. At the beginning of the Caution, P.C. Bandstra told Mr. Brown he was “investigating him” for “impaired operation of a motor vehicle by drug”. There is no issue being raised about the informational component of either apart from what he was told about the offence. Mr.

Brown said he understood the Caution. When read the Rights to Counsel he was told, “I am arresting you for impaired operation of a motor vehicle by drug…”. He said he understood. When asked if he wanted to call a lawyer Mr. Brown “wasn’t giving a clear definition as to what he wanted”. The officer noted that he said, “I think I should call a lawyer”. The officer informed him that in order to afford him privacy in his call that he would be given that opportunity when he was taken to the Whitby police station. The officer knew Mr. Brown would be asked again by the parade Sergeant. [ 36 ] P.C.

Bandstra asked over dispatch for a Drug Recognition Evaluator (D.R.E.) officer to attend the scene since they are trained to run a series of tests that would indicate the level of impairment by a drug. The officer was informed that there was no D.R.E. working that day. [ 37 ] P.C. Robinson and P.C. Waldman had also been present at the scene. P.C. Bandstra testified that he saw no other officer interact with Mr. Brown while at the scene. After Mr. Brown had been read his rights, P.C. Bandstra and P.C. Robinson went back to Mr.

Brown's vehicle to search it incident to arrest based on the drug impairment. [ 38 ] In Darin Brown's vehicle, P.C. Bandstra located a small purple and silver sparkled zippered pouch, like a child’s purse. The purse was next to the driver’s seat between the two front seats. He opened that pouch and found 2 syringes with orange caps covering the needles. They were loose in the purse. In addition to the two syringes there were two other packages in some sort of bags, one containing what the officer described as a “staired” or “starie” cup (a small well, almost like a spoon).

The second package contained in the purse was a hard, white crystal-like substance which the officer believed was indicative of crack cocaine or “crystal meth”. P.C. Bandstra seized the small purse. He and P.C. Robinson were searching the car together and looked in the back seat but nothing else was located. [ 39 ] P.C. Bandstra had done a pat-down search of Mr. Brown before placing him in the cruiser but nothing was located. That search had been done for officer safety and the individual’s safety, being in contact with drugs or anything that could harm. [ 40 ] After searching the vehicle P.C.

Bandstra returned to the cruiser. “For officer safety purposes as wall as informing Mr. Brown of what I had located, [I] informed him that the drugs were located and where they were located in the vehicle”. He did not ask him any questions about the drugs, but noted that when he told Mr. Brown about the drugs that Mr. Brown's demeanour changed from being puzzled to being more concerned about what was going on. It is important to note that for the reasons described below, I find that P.C. Bandstra never at any point advised Mr.

Brown before he consulted a lawyer that he was under arrest for any offence in relation to possession of the drugs. [ 41 ] P.C. Robinson offered to deal with the towing of Mr. Brown's vehicle while P.C. Bandstra took Mr. Brown back to the Whitby police station. P.C. Bandstra left the scene at 12:05 p.m. to transport Darin Brown to 18 Division. For the second time P.C. Bandstra requested that a D.R.E. officer be obtained, but the situation had not changed and there was still none available. While transporting Mr. Brown he noticed in his rear-view mirror that Mr.

Brown was squinting his eyes and keeping his eyes shut for lengthy periods of time. In the shady cruiser P.C. Bandstra noted this as a further sign of impairment. The officer took the most direct route and arrived back at the police station at 12:17 p.m. The Right to Counsel Issues at the Whitby Police Station [ 42 ] Once P.C. Bandstra arrived at 18 Division in Whitby at 12:17 p.m., Mr. Brown was placed in a cell and remained there until he was removed from the cell to be paraded at 12:29 p.m. before St. Sgt. Elliott. [ 43 ] St. Sgt. Elliott was the officer in charge of the C Platoon at 18 Division in Whitby.

One of his duties was to the officers he was supervising. St. Sgt. Elliott had been an officer with the D.R.P.S. for 21 years at the time he testified, and had been a Staff Sergeant for 9 years of that time. Before becoming a police officer, he had been an advanced care paramedic in Oshawa for Oshawa Ambulance and then subsequently Durham E.M.S. He had made no notes of his involvement in Mr. Brown's investigation at the time of the events, but testified that he had an independent recollection and could remember the events “quite vividly”.

At some later point he prepared a will- say which was provided to the Defence just a few weeks before the trial commenced. The video of Mr. Brown's parade and the blood demand capture some of his involvement on June 25, 2018, however there is no audiotape of his conversations with P.C. Bandstra when they were alone, since only those portions when Mr. Brown was present were being recorded. Both St. Sgt. Elliott and P.C. Bandstra had to testify from memory about their discussions with one another, since neither made any notes of these conversations at the time. [ 44 ] St. Sgt.

Elliott testified that he regularly monitors and uses his computer to read the calls which his officers are dealing with. On this date he was aware his officers had been dispatched to the call involving Mr. Brown. As it was happening, he was reading the call card on his computer. This officer was permitted to testify about hearsay matters, only with respect to the information he received and his next investigative steps, not for the truth of what he was told or read. The call came in for a vehicle parked in the middle of Fox Street in Oshawa.

There was a lone occupant, the driver, who was passed out or asleep or unconscious behind the wheel. He was not awake and lucid. P.C. Bandstra had arrested that person who was Darin Brown for “impaired operation by drug”. Mr. Brown was brought to the Whitby station to be paraded before St. Sgt. Elliott. [ 45 ] The statements made by Mr. Brown to St. Sgt. Elliott and P.C. Bandstra during the parade are not admissible as proof at trial on the drug impaired driving charge as they were made preceding the exercise of his Rights to Counsel through his conversation with duty

counsel (they are Charter protected). The conversation is very relevant, however, to the alleged Charter breaches. The video of the booking procedure and subsequent blood demand is contained in Exhibit 1.1 on the trial (the portions played at trial are noted on the transcripts below). As indicated, the audio was only being recorded during those portions when the booking Sergeant turned on the recording switch. Exhibit 1.2 is the transcript of the audio portions of the booking video. [ 46 ] P.C. Bandstra confirmed that the video accurately depicts what transpired with Mr. Brown during the booking procedure.

The small bag with the drugs is seen on the video where P.C. Bandstra places it inside Mr. Brown's hat which the officer has set down on the sergeant’s booking desk. The video begins playing at 12:20 p.m., however the audio portion commences at approximately 12:29 p.m. when P.C. Bandstra has gone to bring Darin Brown out of his cell to be paraded. Prior to that St. Sgt. Elliott and P.C. Bandstra are seen speaking with one another at the parade desk near the booking screen. St. Sgt. Elliott said that P.C.

Bandstra was giving him information such as the arrest time and incident number to complete the booking sheet on the computer. St. Sgt. Elliott could not recall any relevant discussion taking place when they moved off-screen and went to the report writing room. [ 47 ] St. Sgt. Elliott testified he was aware that Mr. Brown had been arrested for “impaired operation of a motor vehicle by drug” and that there was no suspicion of alcohol. He knew that P.C.

Bandstra, “had also located a quantity of drugs on the accused in his search subsequent to arrest… We believed that the powdery substance was Methamphetamine .” (see transcript of October 10, 2019 at page 25 lines to 26). On the video St. Sgt. Elliott says the drugs were found in the vehicle, not on Mr. Brown. It is odd that St. Sgt. Elliott testified they believed the drugs to be Methamphetamine , when in fact Mr. Brown was eventually charged with and released that day on a possession charge in relation to Cocaine . Perhaps St. Sgt.

Elliott was reconstructing his memory in light of the later analysis which showed the drugs to be Methamphetamine. [ 48 ] St. Sgt. Elliott was also aware that there were no D.R.E. officers available at all that day in Durham Region with either the D.R.P.S. or the Ontario Provincial Police (O.P.P.) operating out of the Whitby station. The D.R.E. officers with the D.R.P.S. normally work out of the Traffic Unit located in the basement of the Whitby police station, the same Division where Mr. Brown was taken to be paraded. St. Sgt.

Elliott was able to see that two calls had been made requesting a D.R.E. officer without success. A detailed review of the evidence about the failure of the police to advise Mr. Brown that he was being charged with possession of Cocaine before he spoke to a lawyer is set out below. [ 49 ] Parts of the audio on the parade and blood demand videos were difficult to hear in court, so the Crown arranged later on for both transcripts to be prepared, which are of great assistance in making out what is said.

Exhibit 1.2 is the complete transcript of the Booking Video which reads as follows: Subject Name: BROWN, Darren Joseph Date: 25.06.2018 Start Time: 12:20:00 EST Stop Time: 13:14:20 Duration: 0:44:46.0 Location: 18 Division - Booking Participants: Cell Sergeant (St. Sgt. Elliott): CS Darren Joseph BROWN: DB Police Officer (P.C. Bandstra): PO Relevant conversation begins at 12:29:12 (Unintelligible noises and conversations heard throughout interview) CS: Turn your radio down, please. (Pause) Hi. Uh, just come on up here, man. That’s okay , you can go ahead and take his handcuffs off. Are they on? PO: Yeah.

CS: Okay, well take ‘em off. Um, everything’s on audio and video in here, okay? Just to let you know, the camera is there, there’s audio there. There’s a camera right there. Okay? All this gets recorded. Um, what’s your name? DB: Darren BR…Joseph BROWN. CS: Okay, Darren. I’m just gonna go over everything here. (Pause) Yeah, they’ll be a little bit red. Hey, Darren, we’ll go over

everything. Um, have you been told why you’ve been arrested? DB: Yes. CS: Why were you arrested? DB: Uh, for being under the influence. CS: Yep. It’s called Impaired Care and Control. DB: Okay. CS: And, and basically, it’s, it’s just that. The accusation is that you were in care and control of a motor vehicle and you were impaired by drug. ‘Kay, I’m not asking you to agree or disagree. It’s just, do you understand what that means? DB: Yes. CS: Okay. It’s just the same as drunk driving except with drugs. Okay? DB: ‘Kay. CS: So, you understand that? DB: Yes. CS: Okay.

You know you can call a lawyer or Duty Counsel, if you want? DB: Yes. CS: Would you like to call a lawyer or Duty Counsel, at all? DB: Yes. CS: Okay. Who would you like to call? DB: Uh, I, is there a list that I can pick from? I don’t… CS: So, I’ll explain. So, um, lawyer, if you have a lawyer, that’s one (1) thing. Just name that lawyer, we’ll look him up. We could give you the phonebook if you wanted, you could look up a li…a list of lawyers.

Um, Duty Counsel are lawyers that are paid for by the province of Ontario that you can talk to for for free, for free legal advice, in private, in that room, right there, if you wanna talk to them.

Those are all your options for lawyers. Um, any, anything like that if you have, if there’s a lawyer ya know, but you can’t remember the name, just let us know who to call and we’ll find out. (Pause) DB: Um. (Pause) I don’t know if… if I get the, the Duty Counsel, can I switch afterwards? CS: So, what we’ll do… DB: It’s just like, would he be comin’ down now, and… CS: They won’t come, no one’s gonna come in here and see you, you can talk to them on the phone. DB: Okay. CS: ‘Cause what’s gonna happen here, we’re gonna go through testing and stuff for, for the drugs, okay?

Um, you have a chance to speak to the officer, if you want to, but that can be used against you in court. DB: Mm hmm. CS: Okay? It could be taken down in evidence, recorded and used against you. But, but, again, if you wanna talk to the officer, you’ll, you fe…feel free. So, if you wanna talk to the lawyer and get advice from a lawyer, absolutely. DB: Alright, yeah. Yeah, I dunno CS: So, if, would you like to start with Duty Counsel? And, and then after that, find out if you’re satisfied with that call or not. DB: I think that’d be the best way to do that.

CS: Okay. (Pause) DB: I just wouldn’t want something little that I said or did or… CS: (Sniffs) Yep. DB: …to incriminate myself, that’s all. CS: Okay. Yep, that’s no problem. That’s all your right to do, right? Ya know, you can…if you don’t wanna talk, you don’t have to talk. That’s fine. Are you on any criminal charges right now?

DB: (Shakes head) CS: Nope. For your own safety, while you’re here, have you consumed any alcohol today? DB: (Shakes head) CS: Okay. And again, I know you’re here for Impaired, but these questions, right now, are just to make sure that you’re safe in these cells. I wanna make sure you didn’t just chug a forty (40) pounder of vodka before you came in and I have to worry about your s…your, your health. You know what I’m sayin’? So, no alcohol. Any non-prescribed drugs? DB: No. CS:. Okay. (Clears throat) Any illnesses? Do you have a cold, the flu, anything like that?

DB: (Shakes head) (Pause) CS: Any medical conditions? Heart problems, breathing problems, epilepsy, diabetes? DB: Uh, medical plo…problems, no. CS: Okay. DB: Some physical ones CS: Okay, what’s your physical problems? DB: Uh, my right A C L and my meniscus. Uh, my right hip and my left shoulder. CS: Okay. Uh, how long, are these old injuries? Or? DB: Uh, everything in the last seven (7) years. CS: Okay. Have you had surgery on them or anything? DB: Surgery on the, right hip, or right knee, left shoulder and scoped, uh, right hip. CS: Okay. How long ago was that?

Or they just scoped and then scoped on your knee and stuff?

DB: On, scope on the, the hip? Or… CS: Yeah, yeah. The hip, sorry. DB: Uh, say, two (2) years ago. CS: Okay. (Pause) You, right knee and hip, right? And left shoulder? DB: Correct. (Pause) CS: (Clears throat) Are they bothering you right now? DB: Pardon? CS: Are those injuries bothering you right now? DB: Yeah. CS: Okay. Do you have pain with them every day? DB: (Nods head) CS: Okay. Are you on any medication for them? DB: No. That’s what I’m gettin’ off. CS: Okay. (Pause) Do you have any fresh injuries or is there anything else I need to know? DB: Any, any, what?

CS: Do you have any fresh injuries or is there anything else you think I need to know? DB: Uh, yeah, I just got bit by a Rottweiler on the weekend. CS: O kay. DB: On my right hand. CS: And is there anything else I need to know?

DB: Uh, I’m on antibiotics for that. Um, gave me a tetanus shot, antibiotics shot. And, uh, big horse pills, as well, for seven (7)… CS: Yeah. DB: For seven (7) days. CS: Yeah, okay. DB: but I have to see the psychiatrist for the mental part of it. CS: Okay. Um, how, how is that? Are you having any, is there any problems today? Like, do you have any, today, how are you feelin’? DB: Not bad. CS: I’m just, what I’m, what I’m askin’, I don’t wanna pry too much in your safe…or in your, in your history and stuff. I wanna make sure you’re safe while you’re here. That’s all I’m asking.

When it comes to drugs or alcohol, and when it comes to your state of mind, how you’re feelin’ right now. I mean, a lot ah people don’t necessarily come to the police station, under arrest, and feel good about it. But if you’re having problems already, I wanna, I wanna see how you’re doing. That’s all I wanna check on. And if you’re gonna be alright while you’re here. Any thoughts? (Pause) You sure? DB: (Nods head) CS: Okay. (Pause) Um, so, the officers recovered some narcotics from your vehicle. [NOTE: While asking this question, St. Sgt.

Elliott is seen on the video holding up the small purse with the drugs seized by P.C. Bandstra from the vehicle driven by Darin Brown] Do you have any more on your person? DB: (Shakes head no) CS: ‘Kay. (Pause) So, what has to happen is my partner will place a call to Duty Counsel, they call back. And then when they call back, we’ll put you in contact with them. Okay? And then we’ll talk after that. (Pause) And while you’re, while you’re here, if you need to use the washroom or get a drink of water, just let us know, there’s one here and you can use one in private, okay? DB: A glass of water would be great.

CS: I mean, we just got a fountain. I’ll, I’ll go see if we have any bottled water. How’s that? That alright?

DB: Okay. CS: Alright. I’ll check that ____ first. Anything else? Anything you need to… DB: (Shakes head) CS: Okay. Relevant conversation ends at 12:37:19 [Emphasis added] [ 50 ] The parade finished at 12:37 p.m. At 12:30 p.m. the call was made to duty counsel and a message left by P.C. Bandstra on the answering service. P.C. Bandstra testified in cross-examination that Duty Counsel was advised that Mr. Brown was under arrest for “impaired by drug”. At 12:40 p.m. Duty Counsel D. Paul returned the call and was transferred to the cell area for Mr.

Brown to speak with them in privacy in a cell designed for that purpose. Mr. Brown remained in a holding cell in between the time that the parade video ended and when he was brought out to speak to duty counsel. [ 51 ] The video shows that immediately upon Darin Brown exiting the privacy room after his consultation with duty counsel was completed, a blood demand was made to him by P.C. Bandstra. Mr. Brown had been arrested at 11:53 hours and the blood demand was made at 13:15 hours, just over 1 hour and 20 minutes later. P.C. Bandstra testified that this was the first blood demand that he had ever made.

He had not made a blood demand under this new legislation before this. He was not aware of whether there was a new directive or policy put in place by the Durham Regional Police Service regarding the new legislation that had just come in. Exhibit 1.3 is a transcript of the blood demand video and interaction that took place. It reads as follows: Subject Name: BROWN, Darren Joseph Date: 25.06.2018 Start Time: 13:12:00 EST Stop Time: 13:14:20 Duration: 02:20.0 Location: 18 Division - Booking Participants: Cell Sergeant (St. Sgt. Elliott): CS Darren Joseph BROWN: DB Police Officer (P.C.

Bandstra): PO Relevant conversation starts at 13:12:17 (Unintelligible noises and conversations heard throughout interview) CS: O kay, uh, so you talked to Duty Counsel, right? DB: Yes. CS: You satisfied with that now? DB: Yes. CS: Okay. So, um, what’s gonna happen, the officer’s gonna read a Demand here. The law changed, like, in the past few days. So,

these officer…officer’s just gonna read you a Demand here, on audio and video. Okay? PO: Kay? I demand that you provide such samples of your blood, in the opinion of the qualified medical practitioner or qualified technician are necessary to determine the concentration, if any, of drugs in your blood. And that you accompany for this purpose now. The blood samples will only be taken under the direction of a qualified medical practitioner and if the qualified medical practitioner is satisfied that the taking of the samples will not endanger your life or health. Do you understand? DB: Yes. PO: ‘Kay.

CS: Okay, so, so what that means, the law’s changed , so, because we’re trying to combat Impaired Driving by Drug now, what’s gonna happen is he’s made a Lawful Demand and we’re gonna take you to the hospital and a medical, a qualified medical technician will draw your blood and we’re gonna take a sample of that for the testing of drugs, presence of drugs in your blood . Okay? Do you understand all that? DB: Yes. CS: Okay. So, will you, you’ll accompany the officer? If you don’t, you’ll be charged with Refuse and that’s a criminal charge and it’s right in the

section of impaired driving, okay? DB: Yeah. CS: I just wanna make sure you understand everything ‘cause this is all new to us, as well . So, and again, you get a qualified medical practitioner, your safety’s paramount, so, you know, if a qualified medical practitioner thought there was any safety concerns, then they won’t draw your blood . So, you’ll, you understand all of this? DB: Yes, I do. CS: Okay. So, the officer will pick you up and we’ll go from there . DB: Okay . CS: Alright? PO: Okay? So, just take a seat in here for now… Relevant conversation ends at 13:14:07 [Emphasis added] [ 52 ] P.C.

Bandstra agreed that at the time Mr. Brown was put in touch with duty counsel that no demand of any sort had been made of him before the consultation took place. No breath demand had been made because there were no signs of alcohol impairment and thus no grounds for that demand. No D.R.E. demand had been made because no D.R.E. officer was available that day. Most importantly, no blood demand had been made yet. (See transcript of October 8, 2019 at page 125 lines 21 to page 126 line 10). In cross- examination P.C.

Bandstra agreed that in normal circumstances a breath demand or demand for Standard Field Sobriety Tests would be

made at the roadside before a person under arrest consulted with their lawyer, unlike in this case where the blood demand was made after consulting duty counsel and over 1 hour and 20 minutes after the arrest (as distinguished from the forthwith requirements for breath demands in alcohol impaired cases). When asked about this issue in cross-examination P.C.

Bandstra testified in part as follows (see transcript of October 9, 2019 at page 24 line 25 to page 25 line 14): Q. …If you make a demand that he provide a sample of breath or blood, he needs advice on what to do going forward, correct? … [long pause by the officer before answering] A. In normal circumstances, he would have been read the demand prior to speaking to duty counsel. This was, in my opinion, an abnormal circumstance. This is not typical.

I had no – I was unaware of this law, this was something that Staff Sergeant Elliott came to – to fall under doing some research which I was not – did not have time to do. That hospital wasn’t aware – there’s a lot of unknowns and questions that were going in and that’s – that’s where the delay occurred. MR. AFFLECK: Q. If it was unknown to you, did you expect that it would be known to Mr. Brown, the change in the law – you couldn’t have expected that, right? A. That’s correct. [Emphasis added] [ 53 ] St. Sgt.

Elliott similarly agreed that when a person is arrested for impaired by drug that there are different types of demands that could be made. One demand would be to submit to a Drug Recognition Evaluator examination. Another would be a blood demand. The officer agreed that if Mr. Brown refused to comply with the demand for blood samples he could be charged with refusal. St. Sgt. Elliott agreed that at the time Mr. Brown spoke with duty counsel he was not told he would be subject to either a demand for examination by a D.R.E. or for a blood sample.

He agreed that normally a person would speak to a lawyer after a demand had been made, so that they could get legal advice about whether or not to comply with the demand. He agreed that in some circumstances a person might also need legal advice before consenting to the giving of a bodily sample. When asked in cross-examination about his understanding of the purpose of legal advice in relation to a demand would be, and whether Mr. Brown should have been put in touch with counsel again, St. Sgt.

Elliott testified as follows (see transcript of November 8, 2019 at page 7 lines 6 to 27; and page 8 line 25 to page 11 line 3): Q. So, to your knowledge then, just to sum up, at the time the demand was made, you had not told him that he was going to be charged with possession of a drug, correct? A. I did not. Q. And he did not know, to your knowledge, what sort of demand was going to be made of him before he spoke to duty counsel? A. He didn't - he did not, from my perspective. Q.

And you would agree with me that the purpose of the right to counsel is so that an individual can get meaningful legal advice, when a demand is made that they comply with police direction? A. Only if they want that. Q. So your position is, they only get the right to speak to counsel after a demand is made if they want to speak to counsel?

A. In this case, sir, it's my opinion that I fully explained everything to Mr. Brown. He understood his jeopardy and he consented to the blood demand. Q. That he consented to the blood demand? A. He consented to the - to have the blood drawn by way of demand. … Q. Okay. So, when you say you were there when he consented, you mean you were there when he appeared to understand the demand made of him? [as seen on the video] A. Yes, sir. I was in the cells. He appeared to understand the demand and comply with that lawful demand. Q.

There was no wording, that you knew of on the date that the demand was made, to actually formulate that demand, correct? A. That is correct. Q. In fact, to your knowledge, and I'm going to be really up front about this, and we have talked a lot about it, so that's when asked question, that's something that was actually formulated by a lawyer for the Crown Attorney, in consultation with you, over the phone in the moment, right? A. Correct, we did the best we could. Q. Right. No, I understand. But even the Crown didn't know what the correct wording would be.

He formulated - formulated it along, in consultation with - with yourself, right? A. Well, I can't testify as to what he did or did not know, as far as - as a demand, sir. Q. Sure. A. Only our - our discussion about it. Q. It was formulated between the two of you over the phone, and then read out to Mr. Brown? A. That is correct. Q. Okay. And that was because you needed some advice from a Crown lawyer about how to make the demand, it being so new? A. I would - I would agree with that. Q. Okay. And that still didn't , you would agree with me, cause you to say to Mr. Brown, "I'm going to call duty counsel again for

you. We made this new demand. Let's just call duty counsel again for you and get some legal advice on it." You didn't do that? A. No, I did not. Q. You would agree with me that that would have been possible? A. If he asked for it, yes . Q. Your position is, he would have to ask for it for you to do it? A. No, that's - my position is, in the circumstances, sir, I explained everything to him. He understood it and he complied with the demand. There was no further jeopardy. He did not make any requests either. Q. Correct.

But you didn't advise him that he had a - I know you didn't think he did - he had a right to, but you didn't advise him that he had a right to speak to counsel again, right? A. Because I didn't think he did. Q. All right. And so, you were basically relying on him approaching you to say, "I would like to speak to duty counsel again"? That's what you were - only in that circumstance would you have given him a right to consult with duty counsel again. Does that sum up what your... A.

If his jeopardy had changed or if there was confusion as to the lawful demand, then that was a different discussion, but we did not have that. I made the lawful demand. He understood and he complied with the demand. He had already spoken with duty counsel and I was satisfied with that. Q. And again, I - I try not to beat dead things, but here I go; up to that point of the demand being made, he had already spoken to counsel, right? A. Yes. Q. And when he spoke to counsel, there had been no demand made at all, for anything from him? A. At that point, yes. Q. Not a drug recognition examiner examination, right? A.

That's right. Q. And not blood, right? A. That's correct.

[Emphasis added] [ 54 ] St. Sgt. Elliott had also testified earlier that based on his dealings with Mr. Brown at the time the blood demand was read that he “absolutely without a doubt understood what P.C. Bandstra had read to him and my explanation of it” and that he was consenting to the taking of his blood (see transcript of October 10, 2019 at page 40 line 24 to page 41 line 1). [ 55 ] It is of concern that St. Sgt. Elliott appeared to have little insight into the fact that even though he believed he had explained what was going to happen to Mr. Brown, that Mr.

Brown might need independent legal advice about whether to comply with the blood demand. St. Sgt. Elliott appeared to believe that what he had said to Mr. Brown was sufficient, without regard to the purposes of consulting counsel [see the detailed discussion about these purposes below under the topic of the Right to Further Consultation with Counsel]. A review of the Exhibit 1.3 transcript set out fully in paragraph 51 above, shows that Mr. Brown was acknowledging he understood the demand, the consequences of a refusal, and the procedures which would be followed to take the blood samples.

At no point did he indicate he was consenting to what was to take place. It is of concern that St. Sgt. Elliott interpreted Darin Brown's acquiescence to and compliance with the blood demand to amount to consent to blood samples being taken. [ 56 ] It is very important to the issues on the Charter application that I have concluded that the police were contemplating demanding a blood sample before the parade in front of St. Sgt. Elliott, but never informed Mr. Brown of this before he consulted with duty counsel.

The evidence is a bit inconsistent on when the decision to make a blood demand first arose, but it was finalized while Mr. Brown was still consulting duty counsel. [ 57 ] P.C. Bandstra testified in examination-in-chief that when he spoke to St. Sgt. Elliott before the parade took place with Mr. Brown, he told P.C. Bandstra that the law had changed regarding blood demands. P.C. Bandstra did not know when the law had changed. At page 83 of the October 8, 2019 transcript at lines 2 to 5, P.C. Bandstra testifies, “So, just for the record, when I’ll proceed to speak to St. Sgt. Elliott.

It was brought to my attention that the legislation had recently changed in relation to the blood demand or drug-related impairments.” At line 10 he clarifies that this took place before the parade. P.C. Bandstra testifies further at lines 23 to 25 that before the parade St. Sgt. Elliott had already been in the process of figuring out what was going to happen with the investigation where no D.R.E. was available. He informed P.C. Bandstra that the law had recently changed within the past 3 or 4 days of Mr. Brown's arrest. He told P.C.

Bandstra that the procedure was that where a D.R.E. was not available, a blood demand would be made and the blood would be drawn by a qualified medical practitioner or if the person refused to have a blood sample taken, they would be charged with an offence of refusing. During his evidence in examination-in-chief it appeared that all of this conversation took place before Mr. Brown was paraded. None of this conversation was recorded because the audio remained in the turned off position for the video until Mr. Brown was paraded. At page 89 of the transcript P.C.

Bandstra was asked further questions about his conversation with St. Sgt. Elliott before the parade. He testified that there was no discussion by either of them that the blood demand should be read to Mr. Brown before he spoke to a lawyer . [ 58 ] In cross-examination P.C. Bandstra was very unclear about the exact timing of the discussion with St. Sgt. Elliott, and he had made no note of when it was determined that a blood demand was going to be made (See transcript of October 8, 2019 at page 115 line 27 to page 117 line 13). P.C.

Bandstra made no note of the time at which it was decided that a blood demand would be made to Mr. Brown. He also made no note of when that decision was made in relation to Mr. Brown's call with duty counsel. P.C. Bandstra at this point in his evidence believed it was a decision made while Darin Brown was speaking with duty counsel, not after he spoke with duty counsel (see transcript of October 8, 2019 at page 124 lines 5 to 24). In cross-examination he testified that he did not think of knocking on the door to advise Mr.

Brown that a blood demand was going to be made because of respecting his rights to consult a lawyer in privacy. He had never seen any officer interrupt a call with a lawyer. See transcript of October 8, 2019 at page 118 lines 17 to page 120 line 26 which reads in part: Q. So, it would have been very possible to simply knock on the door and say, Mr. Brown, you’re on the phone to duty counsel, something you got to know here. We’re making a demand you supply a blood sample. That could have been done, right? A. I have never done that myself due to privacy concerns. That was just, I’ve never done that. Q.

So, you could have knocked on the door, without opening it up, right. I’m just asking, not if you had done it before, if you could have. You could have knocked on the door, right, without opening it? A. Physically yes, I could have. Yes, however it’s, I’ve never done it, it’s to me duty counsel is a conversation, a private conversation between the individual and counsel in this, and to disrupt that conversation. I’ve, I’ve never done, that’s.... Q. That’s because of an ongoing concern for the rights of the accused, I’m taking it. That you wouldn’t want to interrupt this private conversation? A. That’s correct.

Q. So, in equal measure, you would want to make sure, out of an abundance of caution, about the rights of the accused, that Mr. Brown was able to discuss with his lawyer the fact that the police are demanding that he supply a sample of his blood, right? A. As he, as he had just spoken to duty counsel it was not something that I’d considered at that time, no. [ 59 ] When St. Sgt. Elliott testified, he described the setup for the privacy room in the Whitby police station.

There is a smaller cubicle totally enclosed with a door, which is inside a holding cell with a door which is locked when someone is consulting a lawyer. He explained that to get the attention of a person who was consulting a lawyer by phone inside the privacy cubicle, it would require unlocking the outer cell door after knocking on it to get the attention of the person in the inner room. The officer would then announce that they should stop speaking with the lawyer so that nothing could be overheard and then also knocking on the inner door to the cubicle to interrupt a call in-progress. St. Sgt.

Elliott had only done this once in his career when a call seemed to be taking an unusually long time on an impaired case. On that occasion, once he knocked on the second door, he learned that the call had, in fact, finished quite some time before. I accept that it would be highly unusual for the police to interrupt a private call with a lawyer for any reason. [ 60 ] St. Sgt. Elliott described P.C. Bandstra as “a very astute officer” who likes to be thorough. While Mr. Brown was consulting with duty counsel, P.C. Bandstra had gone to St. Sgt.

Elliott's office to discuss the fact that there had been no alcohol demand and no D.R.E. officers available and he wanted to discuss what they should do in the circumstances where they simply had the opinion of an officer about physical impairment without any evidence to back it up. St. Sgt. Elliott testified that they could have had Mr. Brown do several sobriety tests at the police station such as walking down the middle of the big yellow line seen on the floor in the parade video. He said they did not do this because he knew the law was changing regarding impaired situations. [ 61 ] St. Sgt.

Elliott testified that when dealing with Mr. Brown's matter, he believed that new amendments were coming into effect but didn’t know when they would be coming into force, so he consulted with the Durham Region Crown Attorney’s office. He dealt briefly with Assistant Crown Attorney, Deanna Bronowicki, who referred the officer to David Parke, an Assistant Crown Attorney who has specialized expertise in this legal area. Mr. Parke had been involved in this legislative change with the Federal government. [ 62 ] Before calling the Crown, St. Sgt.

Elliott already knew that D.R.E. officers and regular officers were going to be given certain powers, including having the ability to make a demand for blood in certain circumstances. St. Sgt. Elliott said he tried to read legal updates sent to the police by the Crown Attorney’s office every week or two. He testified, “It’s a very convoluted

section of the Criminal Code , many moving parts, but, for a police officer on the road, I knew that at some point they would be able to make a blood demand” (see transcript of October 10, 2019 at page 33 lines 12 to 30). The officer searched the internet and found Bill C-46 which contained the amendments. [ 63 ] After speaking with the Crown’s office, St. Sgt. Elliott believed that the new amendments were in force one business day before Mr. Brown was arrested on Monday June 25, 2018. St. Sgt. Elliott testified that it was while Mr.

Brown was in the cell and while he was consulting with duty counsel , that he was consulting with the Durham Crown’s office to obtain advice. He described the advice he received from Assistant Crown Attorney David Parke and how the blood demand was formulated (see transcript of October 10, 2019 on page 34 line 12 to page 36 line 30): Q. And what did you learn when you spoke to the Crown’s office? A. I learned the law had changed, I believe it was one business day prior .

It was now Monday, June 25th at noon hour when this was occurring and it was my understanding that the law came into force -- the new legislation, Your Honour, came into force the previous Friday, I believe it was. Q. Okay. A. So, one business day before this occurred. I was advised that the law was now in force, the police could lawfully make a demand for blood and get that blood drawn but I also know that no police services in Canada --and I’ll only speak to Durham, but there was no policies, no procedures, nobody was prepared for this.

Nobody even knew about the changes in the policing world, in Durham Regional Police specifically , Your Honour. So, I spoke to the Crown. I said, “Well, we have no demand to make. There’s nothing crafted for this.” Q. Well, let me stop you there because wasn’t -- I mean, blood demands were possible before this. Was there not a standard blood demand? A. There was a standard blood demand and it was for alcohol impairment or drug -- where somebody could not proceed with -- with the breath test due to injuries or medical conditions, then the police could make a lawful demand...

Q. Okay. A. ...for blood. So... Q. But there wasn’t a lawful demand specific -- was there a lawful demand specific to the circumstances that you were facing on this day? A. I -- I eventually discovered that there was a lawful demand to be made that day. Q. And in terms of the wording of that demand, was that already -- like, I -- I -- we heard -- saw on the video that P.C. Bandstra read something out of his book. A. Yes. Q. Was that something that was just preprinted and already in his book that day? A.

It would have been part of a demand, probably part of the alcohol demand combined with the -- with that blood demand, the qualified medical practitioner aspect. We just had to craft something so that Mr. Brown was given the proper -- proper demand for that blood and there was nothing at that time in any police notebook. There was nothing that had been crafted. There was no communication from my police department or from the Crown Attorney’s office indicating, “The law just changed. Here’s a new demand.” All this was brand new and we did the best we could under the circumstances. Q.

Your conversation with the Crown, was that over the phone? Was it via e-mail? How did you receive this information? A. It was over the phone. Q. Okay. Did you receive any specific information about the law either in writing or from over the phone? A. I did. I received over the phone the advice that the law had changed. The -- the Assistant Crown Attorney I spoke with was fortunate enough he had sat -- he -- on this justice committee when the law was changing so he -- we were able to discuss that. So , he was -- he had the knowledge. Even a lot of the other Crowns did not have the knowledge . Q.

And I’ll just skip this. I spoke to this Crown Attorney yesterday and told him this would come up and he was okay with it. Who is the Crown that you spoke to? A. It was David Parke. Q. Thank you. So, you received this information and, based on this information you received that you could make a lawful blood demand, what did you decide to do at that point? A. We crafted a demand that sounded like a good lawful demand. The Crown approved. Constable Bandstra read the demand forthwith to the accused as soon as we knew that we could do that and he was subsequently taken to the hospital to have the blood drawn.

Q. And this -- in terms of speaking to the Crown and the crafting of the demand, was this all -- did this occur before P.C. Bandstra arrived with Mr. Brown to that station or was this while Mr. Brown was temporarily back in the cell and then speaking to duty counsel? A. It was while Mr. Brown was at the station and between the time he was in the cell and -- and speaking with duty counsel. [Emphasis added] [ 64 ] It appears from St. Sgt. Elliott's evidence that he would have known before Mr. Brown was actually put in touch with duty counsel that the police were considering making a demand for samples of his blood.

P.C. Bandstra similarly testified that he believed St. Sgt. Elliott had been consulting someone and obtaining advice about what the next steps were going to be before the blood demand was made (see transcript of October 9, 2019 at page 19 line 30 to page 21 line 9). He said he didn’t know, however, who St. Sgt. Elliott was consulting with. [ 65 ] St. Sgt. Elliott also testified that in addition to speaking to Assistant Crown Attorney, David Parke, on the telephone, that Mr. Parke also emailed him specific sections of the law so that the officer could satisfy himself as to when the law had changed.

The officer said he read it thoroughly and determined that the law had changed effective the Friday immediately preceding June 25, 2018. Exhibit 7 is a copy of some email correspondence between the officer and Crown’s office. Mr. Parke emailed St. Sgt. Elliott at 1:54 p.m. on June 25, 2018 with a copy of Bill C-46 attached. There was no substantive legal advice contained in the emails. The advice that St. Sgt. Elliott obtained from Mr. Parke was given only over the telephone. While there is some lack of clarity in St. Sgt. Elliott's evidence it appears that the telephone calls were taking place while Mr.

Brown was speaking with duty counsel. The advice included crafting a correct wording for the blood demand (see cross-examination in transcript of November 8, 2019 at page 9 at lines 2 to 25). [ 66 ] On October 10, 2019 at trial, Mr. Morgan on behalf of the Crown initially advised that there was no privilege being asserted with respect to the discussions which took place between the Durham Region Crown’s office and St. Sgt. Elliott. The emails in Exhibit 7 were then disclosed to Defence Counsel and they were entered as an exhibit.

The Defence then sought a “will say” from David Parke about those discussions, following which Mr. Morgan consulted his colleague. Mr. Morgan then reversed his position and stated that the Crown was now asserting privilege regarding the telephone conversations which took place between St. Sgt. Elliott and Mr. Parke. By the time the trial resumed on November 8, 2019, St. Sgt.

Elliott had been given an opportunity to seek legal advice from the D.R.P.S. in- house lawyer and advised the Court during his continuing evidence that privilege was not being claimed by the police (see transcript of November 8, 2019 at page 1 line 24 to page 2 line 10). Mr. Parke was not called as a witness (nor was it necessary to do so). [ 67 ] What asked what his memory of the conversations with Mr. Parke were, St. Sgt. Elliott gave the following evidence (see transcript of October 10, 2019 at page 48 lines 2 to 32): Q. …with respect to your phone call when you got in touch with Mr.

Parke, what was your conversation to the best of your recollection? A. My conversation with Mr. Parke was I informed him of the exact circumstances we were in, that there were no DREs available in the region, alcohol was not involved, we had good signs of physical impairment and I -- I said to him, “I know we can do further signs of sobriety on video, on audio in the cells if we -- if it’s required, but I know that the law is changing and when does it come into force?” And he informed me that it came into force -- I think it was assented to on the Thursday. Thank you.

And I think it came into force on the Friday and this was now the Monday, the 25th. So assented to on the 21st, came into force on the 22nd and this was now the morning of the 25th. So... Q. And -- oh, sorry. Continue if there’s anything else. A. And then I said, “Is there anything else -- is there anything else we can do?” and he -- he informed me that the law was in force. He informed me we could do a blood demand. I said there was no direction right now to -- to myself or the police service to my knowledge on this legislative

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