R. v. Bennett, 2021 MBPC 67

CITATION: R. v. Bennett, 2021 MBPC 67 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) V. Mitrovic & K. Harrison for the Crown - and - ) ) Collin Bennett ) ) R. Wolson Q.C. & K. Minuk for the Accused ) ) Reasons for decision on voir dire , ) Delivered November 26, 2021 Carlson, P.J.

INTRODUCTION [ 1 ] Collin Bennett is charged with five offences, as follows: • two counts of operating a conveyance while impaired by alcohol, and thereby causing bodily harm, contrary to s. 320.14(2) of the Criminal Code ; • two counts of having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance, and thereby causing bodily harm, contrary to s. 320.14(2) of the Criminal Code ; and • operating a conveyance while prohibited from doing so, contrary to s. 320.18 of the Criminal Code . [ 2 ] The Crown alleges that in the early morning hours of October 13, 2019 Mr.

Bennett, while subject to a driving prohibition, and while impaired by alcohol, was driving two passengers home after a party, on an all-terrain vehicle (ATV), near Lundar, Manitoba. During the ride, the ATV rolled, as a result of which the two passengers sustained some injuries. [ 3 ] Mr. Bennett pleaded not guilty to all charges. [ 4 ] Mr. Bennett filed a Notice of Application alleging that rights guaranteed to him by sections 8 , 9 and 10 of the Canadian Charter of Rights and Freedoms (the “ Charter ” ) were breached by the police officers who dealt with him prior to, on, and after his arrest. [ 5 ] Mr.

Bennett seeks, as a remedy for any breach or breaches found by the court, to have certain evidence – specifically, comments made by him, and the certificate confirming his blood alcohol concentration when breath tests were conducted, excluded from the trial evidence pursuant to section 24(2) of the Charter . [ 6 ] The Crown says there were no Charter breaches, and, if there were, none of the evidence should be excluded. [ 7 ] At the outset of trial, a voir dire was entered into, to deal with the Charter application and also the issue of voluntariness of Mr.

Bennett’s comments to police. [ 8 ] It was agreed by counsel that all evidence found to be admissible will be applied to the trial evidence mutatis mutandis. [ 9 ] This is the court’s decision on the voir dire issues. THE EVIDENCE ON THE VOIR DIRE [ 10 ] The Crown called five witnesses on the voir dire. [ 11 ] Mr. Bennett, as is his right, did not testify, and elected not to call any evidence on the voir dire. [ 12 ] The two civilian witnesses, Lindsay Thorgilsson and Payton Law, were the two passengers on the ATV at the time of the

rollover. They were friends of Mr. Bennett, and he was driving them home from a party on an ATV, when the ATV hit some snow and rolled. They both sustained some injuries, and were placed together in an ambulance, separate from Mr. Bennett, right after emergency medical services personnel (EMS) attended the scene of the rollover. [ 13 ] The Crown called three police officers to testify. [ 14 ] RCMP Constable Maxime Belanger and Constable Walter Chartier were on call on October 13, 2019. They were posted to the Ashern detachment, which covered the Lundar area.

At about 3:10 a.m., they received a dispatch call to attend to a single motor vehicle rollover in the area of Lundar, Manitoba. They attended the scene in separate marked police cruisers, both in police uniform. The scene was a bit south of the town of Lundar, on a gravel road. When they arrived, they observed an ATV on its side off the road on the north side. Beside it was a plastic tray containing debris from the scene. Two ambulances and a fire truck were on scene. Constables Belanger and Chartier had some discussion with EMS as soon as they arrived. [ 15 ] Constable Chartier went to the ambulance that Ms.

Thorgilsson and Ms. Law were in. Constable Belanger went to the other ambulance. [ 16 ] Inside the ambulance that Constable Belanger went to were two paramedics and a male Constable Belanger recognized, and identified, as the accused, Collin Bennett. Constable Belanger made some observations of Mr. Bennett while the paramedics assessed him. At 4:05 a.m. the paramedics finished their assessment. At that time, Constable Belanger gave Mr. Bennett the police caution, advising him he was a police officer, that Mr. Bennett need not say anything, and that anything Mr. Bennett did say may be used in evidence against him.

Mr. Bennett advised he understood. Constable Belanger then asked Mr. Bennett some questions. Mr. Bennett provided answers, including that he had been driving the ATV. [ 17 ] During the questioning, Mr. Bennett asked Constable Belanger if he could go outside the ambulance to urinate. Constable Belanger told him he could. He did so, and returned to the ambulance within a couple minutes. [ 18 ] On Mr. Bennett’s return to the ambulance, at 4:22 a.m., Constable Belanger formed the opinion Mr.

Bennett had been operating a conveyance while impaired by alcohol, and at 4:23 a.m. he arrested him for impaired operation of a conveyance by alcohol. Constable Belanger provided notice of arrest at 4:23 a.m., right to counsel at 4:25 a.m., police caution at 4:26 a.m., and made a breath demand at 4:27 a.m. Mr. Bennett replied that he understood. When asked if he wanted to call duty counsel or any other lawyer, Mr. Bennett replied “yes”. [ 19 ] Mr. Bennett was asked by the paramedics if he wanted to be assessed by a doctor and he said yes, so Mr.

Bennett and Constable Belanger travelled to the Eriksdale Hospital in the ambulance with the paramedics, arriving there at 4:48 a.m. [ 20 ] On arrival at the hospital, Mr. Bennett was put into an emergency room where he was assessed by nurses and by a doctor. Constable Belanger sat in the hallway outside the room, waiting for Mr. Bennett to be medically cleared. At some point, Mr. Bennett was taken into an x-ray room for x-rays to be taken. [ 21 ] Constable Chartier had no interaction with Mr. Bennett on scene.

At 4:15 a.m., Constable Chartier, who remained on scene after the ambulances had departed, called for a tow truck and called the on call traffic analyst. Constable Chartier left the scene at 4:54 a.m. and went to the Eriksdale Hospital to join Constable Belanger. [ 22 ] Constable Chartier joined Constable Belanger at the hospital at 5:13 a.m., while Constable Belanger was still waiting for Mr. Bennett to be medically cleared. [ 23 ] At 6:00 a.m. Mr. Bennett was medically cleared. Constables Belanger and Chartier then escorted Mr.

Bennett to the police car, outside the hospital. [ 24 ] Based on some photographs that Constable Chartier showed Constable Belanger on his phone of Ms. Thorgilsson and Ms. Law’s injuries, Constable Belanger says he then formed the opinion that Mr. Bennett had been operating a conveyance while impaired, causing bodily harm. In the police car, with Constable Chartier present, Constable Belanger arrested Mr. Bennett for impaired operation of a conveyance causing bodily harm. He provided notice of arrest at 6:02 a.m., made a breath demand at 6:03 a.m., and advised Mr. Bennett of his right to counsel at 6:04 a.m.

When Mr. Bennett responded “no” to being asked if he wanted to call counsel, Constable Belanger says he read Mr. Bennett what he referred to as a “Prosper Warning” from an insert to his notebook. Constable Belanger says that Mr. Bennett said “no thank you” when again asked if he wanted to contact duty counsel or some other lawyer. Constable Belanger gave the police caution again at 6:07 a.m. Mr. Bennett responded “yes” when asked if he understood. The officers then drove, with Mr.

Bennett, from the hospital in Constable Chartier’s police vehicle, directly to the Lundar RCMP detachment, arriving at 6:21 a.m. [ 25 ] Constable Chartier had called Constable Parnelli Parnes, who was a qualified breath technician, to attend the Lundar detachment to conduct the breath tests. Constable Parnes arrived at 6:24 a.m. Constables Belanger and Chartier and Mr. Bennett were already there. Constable Parnes checked the breathalyzer instrument to confirm it was working properly. It was.

He then spoke with Constable Belanger to verify certain matters, including whether all legal rights had been provided to Mr. Bennett. He then spoke to Mr. Bennett to obtain identification and some information. Some questions and answers were exchanged, and Constable Parnes made some observations of Mr. Bennett. Constable Parnes had Mr. Bennett confirm that he had been read the breath demand and had been provided with right to counsel, both of which were answered in the affirmative by Mr. Bennett. Constable Parnes asked Mr. Bennett if he wanted to contact a lawyer or a free Legal Aid lawyer and Mr.

Bennett said no. Constable Parnes read him the police warning, and then asked Mr. Bennett what he had had to drink and when, and obtained responses. Constable Parnes then explained to Mr. Bennett how to give proper breath samples. [ 26 ] Mr. Bennett was observed, and two breath samples were taken, separated by a fifteen minute observation period. Constable Parnes prepared a Certificate of Qualified Technician, which he gave to Constable Belanger to serve on Mr. Bennett. [ 27 ] At 7:11 a.m. based on the breath readings, Constable Belanger advised Mr. Bennett he was under arrest for having a blood

alcohol concentration equal to or exceeding 80 mg of blood in 100 mL of alcohol within two hours of ceasing to operate a conveyance. He served Mr. Bennett with the Certificate of Qualified Technician provided to him by Constable Parnes. This Certificate was marked as an exhibit in the voir dire . Mr. Bennett was released at 7:35 a.m. CREDIBILITY AND RELIABILITY ASSESSMENTS [ 28 ] The court can accept some, all, or none of the testimony of a witness. [ 29 ] Police officers have challenging jobs.

They are expected to assess situations on arrival at a scene, ensure the safety of persons there or dispatch them for medical attention if needed, conduct investigation, interview witnesses, make arrests, and then deal with persons in custody. They must ensure compliance with Charter rights of persons under certain detentions or arrest.

And, they are expected to take accurate notes, as things are unfolding, as to everything that is said and done. [ 30 ] Because of all these parts of the job, it is not surprising that sometimes, all the material aspects as to what happened at a crime scene, or after, are not in an officer’s notes. Nor is it surprising that sometimes an officer may not remember, by the time a matter gets to court, months or sometimes even years later, every detail as to what happened during a particular incident or arrest.

After all, police officers deal with many incidents and with many people day after day. [ 31 ] Having said that, at a trial, the court has to figure out, as best it can, what happened. That, as in this case, means making some findings as to what officers did or did not say, what officers did or did not hear, and what officers did or did not do. Coming to those findings includes assessments as to how reliable certain evidence is, and how credible certain evidence is, and even how credible a witness is overall. [ 32 ] Constable Parnes was then an RCMP officer but is now an officer with the Winnipeg Police Service.

He performed the breath tests, had some conversations with both Constable Belanger and Mr. Bennett, and made some observations of Mr. Bennett just before the breath tests were administered. He had notes, qualified technician notes, and had prepared a report. He had a good recollection and his evidence was straightforward. He was asked some questions on cross examination, to which he candidly acknowledged he did not know the answer. I accept his evidence, as both reliable and credible. [ 33 ] Constable Chartier was the “backup” officer.

He is now retired, and at the time of this incidence, he was very experienced, having been an officer for over 19 years. He was very clear in his evidence when he could not remember something and candidly agreed that this happened some time ago. He did not have extensive notes and there were things he could not recall. He did not try to fill in gaps where he did not recall. But the details he could recall were clearly presented and he was confident in their accuracy. His evidence was not really challenged on cross-examination.

I accept his evidence as credible and reliable. [ 34 ] Constable Belanger was the lead investigator. At the time, he had been an RCMP member for 14 months. He is the officer who had the significant interactions with Mr. Bennett. He had notes made at the time of interactions. He prepared a report about nineteen hours later. And he prepared a Prosecutor’s Information Sheet. I have concerns about some of his evidence.

The reasons I have concerns include that Constable Belanger in some instances, gave evidence as to facts that he later admitted he could not actually recall; he gave evidence contrary to the evidence of the other officers whose evidence I accept; and it became clear that Constable Belanger did not fully appreciate some of his constitutional obligations to Mr. Bennett, as a detainee, and then an arrestee.

Those concerns cause me to question the reliability of some of his evidence, which in turn, impact on his credibility on some significant points. [ 35 ] Ultimately, although I accept some of Constable Belanger’s evidence (including the observations of Mr.

Bennett in the ambulance, which were set out in his notes), where there are uncertainties about actions he took because he says he cannot recall, or where there is other evidence to cast doubt on the accuracy of his evidence, I give his evidence little credence. [ 36 ] Some examples of Constable Belanger’s evidence that cause concern are: • He was adamant at first on cross examination that he did not know when he got into the ambulance, that Mr. Bennett was the driver of the ATV.

When it was put to him on cross examination, that the EMS workers on scene had told both he and Constable Chartier that the male had been driving, according to the females, he said that he had not been present when that was said. But, then he agreed that he did not recall. Constable Chartier testified that they were both together when they were told Mr. Bennett was the driver. Constable Chartier had notes that they were provided this information. • He was adamant he did not know, while on scene, that the females had sustained injuries.

He said he did not know they had injuries until at the hospital when Constable Chartier showed photos on his phone. He denied that when a traffic analyst was called to the scene, that meant there were injuries. Yet Constable Chartier testified that he and Constable Belanger were both told, together, on scene that the females had sustained injuries. And Constable Chartier agreed that a traffic analyst was only called when there were injuries. • He testified that he wrote down what Mr. Bennett said in answer to his questions. On cross examination, he agreed that what he had written in his notes was a

summary, in his own words, of what Mr. Bennett had said. • He explained that his

summary was accurate because he has a “photographic memory”. Yet there are important pieces of evidence that he admits he cannot recall. • Constable Belanger said he read Mr. Bennett a Prosper warning on his second arrest. Constable Chartier, who was present, testified he did could not recall Constable Belanger do that. Constable Parnes testified that Constable Belanger did not tell him that Mr. Bennett had initially requested to speak to counsel, or that he had read Mr. Bennett a Prosper warning.

Constable Parnes said he would have expected to have been told both of those things. • The evidence Constable Belanger gave about his efforts, or lack thereof, to facilitate right to counsel, was in many particulars, just either not believable, or meant he did not understand his obligations.

[37] Some of the comments Constable Belanger made during his testimony lead me to question whether he has an accurateunderstanding as to some of his Charter obligations. Some examples of this are: • Constable Belanger testified that Mr. Bennett was free to leave when they were in the ambulance, pre-arrest. But then, he agreedon cross examination, that if Mr. Bennett had tried to leave the ambulance, he would have not let him. This makes me question whetherConstable Belanger understands what detention, for Charter purposes, means. • He said he did not provide Mr.

Bennett with his right to counsel pre-arrest because Mr. Bennett was not arrested yet. While Iappreciate the Crown position that indeed Mr. Bennett was not under detention until his arrest, Constable Belanger’s evidence makes mewonder if he knows he has a Charter imposed duty to provide a suspect with right to counsel not only on arrest, but also on certaindetentions. • The evidence Constable Belanger gave as to all the reasons why he did not provide Mr.

Bennett with the opportunity to speak tocounsel make me wonder if he appreciates the nature of his Charter obligation to facilitate an accused’s call to counsel without delay. ISSUES TO BE DECIDED ON THE VOIR DIRE [38] First, the voluntariness of Mr. Bennett’s comments made to Constable Belanger and then later, to Constable Parnes, must bedetermined. [39] Next, there are a number of Charter issues. Ultimately, those issues are whether Mr. Bennett’s

section 8, 9 and/or 10(a)and/or 10(

b) Charter rights were breached by police, and if so, whether evidence should be excluded pursuant to s. 24(2) of the Charter. [40] There is a plethora of sub-issues to be decided before being able to conclude what, if any Charter breaches took place. [41] This is a case in which pieces of evidence were gathered at different stages of Mr. Bennett’s interactions with police.

If therewas a s. 10 breach early on, after which Constable Belanger gathered answers to questions which contributed to his grounds for arrest,and that evidence is ultimately excluded pursuant to s. 24(2), such exclusion would have a domino effect and result in s.8 and s. 9breaches where there might be none if the evidence is admitted. For the purpose of determining whether breaches occurred at variousstages of interaction, I am going to analyze the evidence on the basis it is all to be considered.

Then at the end, if required, I will circleback to the impact a Charter breach early in the Constable Belanger’s interactions with Mr. Bennett would have on whether there weresubsequent breaches. VOLUNTARINESS Were Comments by Mr. Bennett made Voluntarily? [42] At issue are two sets of comments made by Mr. Bennett to police. [43] First, when Mr. Bennett was in the ambulance at the scene of the ATV rollover, with Constable Belanger, before beingarrested, Mr. Bennett provided answers to a series of questions that Constable Belanger asked him. [44] Second, when Mr.

Bennett was at the Lundar detachment, just prior to providing breath samples, he answered a series ofquestions that Constable Parnes asked him. [45] In order for these answers to questions posed by police officers to be admissible, the Crown must prove beyond a reasonabledoubt that they were made by Mr.

Bennett voluntarily. [46] To determine whether comments were made voluntarily, all the circumstances surrounding the making of the comments mustbe considered, including whether the police made any threats, promises or inducements to the person, whether the statement was made inan atmosphere of oppression, whether the accused had an operating mind when they made the statement and whether the police usedtrickery to obtain the comments. If the accused’s free will is overborne by these or other factors, the comments are not admissible (R. v.Oickle, 2000 SCC 38 , [2000] 2 SCR 3 at para. 1; R. v.

Azizi, 2016 MBQB 195 at para. 14). [47] The evidence of both Constables Belanger and Parnes was that they did not raise their voices, and that they made no threats,promises or inducements to Mr. Bennett. Both said there was no sort of physical restraint. None of this was challenged, and I accept thatevidence. [48] Defence counsel argued that, in the ambulance, Mr.

Bennett was in shock as he had just been involved in a collision, and thathe had some injuries, and that by the time he was interacting with Constable Parnes, he had been taken from location to location and wasfeeling defeated. [49] In my view, those circumstances are not sufficient to have caused Mr. Bennett’s free will to be overborne. The evidence isthat Mr. Bennett was coherent, responsive, cooperative, not in apparent distress, and not seriously injured. [50] I also have to be satisfied as to the accuracy of what those comments were. Both officers provided Mr.

Bennett’s comments,based on what was in their respective notes. Although I have some concerns about parts of Constable Belanger’s evidence, I am preparedto accept both officers’ evidence as to what Mr. Bennett said in response to their respective questions. [51] I am satisfied beyond a reasonable doubt that the comments made by Mr. Bennett, being responses to questions posed by bothConstables Belanger and Parnes, were made voluntarily. Their admissibility is subject to the rulings later in this decision as to whetherany Charter breaches result in the comments being excluded from evidence. CHARTER ISSUES

The Charter provisions alleged to have been breached [52] The relevant provisions of the Charter are as follows: Search or seizure

Section 8 - Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment

Section 9 - Everyone has the right not to be arbitrarily detained or imprisoned. Arrest or detention

Section 10 - Everyone has the right on arrest or detention. (

a) To be informed promptly of the reasons therefore; (

b) To retain and instruct counsel without delay and to be informed of that right; and (

c) To have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. The onus to prove Charter breaches [53] The accused has the onus to prove, on a balance of probabilities, a breach of his Charter right under s. 9 of the Charter (R. v.Collins, SCC). [54] While an accused has the onus, on a balance of probabilities, to establish his s. 10 Charter right(

s) have been infringed, theCrown has to prove that police told an accused of his reason for detention (s. 10(a)), and that if a detainee or arrestee invokes the right tocounsel, that the police provided reasonable opportunity to exercise that right. (R. v.

Luong, 2000 ABCA 301 at para. 12). [55] As to the alleged s. 8 Charter breach, because the search (the taking of the breath samples) was warrantless, it is presumed tobe unreasonable unless it can be justified. [56] The Crown bears the burden of proving, on a balance of probabilities, that the search was reasonable and did not violate Mr.Bennett’s s. 8 Charter right. [57] A search will be reasonable, and therefore justified, if it is authorized by law, if the law itself is reasonable and if the mannerin which the search was carried out is reasonable (R. v. Collins, (SCC), [1987] 1 SCR 265 at 278; R. v.

Mann, 2004 SCC52). [58] There is no issue that the law itself is reasonable as it combats the societal scourge caused by drunk drivers. There is no issueraised as to the manner in which the search was carried out. The issue is whether the taking of the breath samples from Mr. Bennett was“authorized by law”. [59] If an officer acts in accordance with the requirements of s. 320.28(1) of the Criminal Code, then the obtaining of breathsamples from an accused is authorized by law. [60]

Section 320.28(1) of the Criminal Code provides as follows: If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it wasimpaired to any degree by alcohol …the peace officer may, by demand made as soon as practicable, (

a) Require the person to provide, as soon as practicable, (

i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of anapproved instrument… Consideration of the sub-issues When was Mr. Bennett “detained” by police? [61] A “detention” for the purposes of s. 9 and s. 10 of the Charter means a suspension of a person’s liberty interest by asignificant physical or psychological restraint (R. v. Grant, 2009 SCC 32). [62] There is no evidence in this case that Mr. Bennett was physically restrained by Constable Belanger while in the ambulance. [63] A psychological detention may arise when: (

i) A person has a legal obligation to comply with a restrictive request or demand; or

(ii) A reasonable person would conclude by reason of the state conduct that he had no choice but to comply. (Grant; R. v. Le, 2019 SCC 34, para. 25) [64] Mr. Bennett argues that he was psychologically detained in the ambulance prior to his arrest, because a reasonable person inhis circumstances would conclude by reason of Constable Belanger’s words and actions that he had no choice but to remain where hewas and not leave. [65] The Crown says Mr. Bennett was not detained until Constable Belanger arrested him. The Crown says that while ConstableBelanger was observing, and then talking to, Mr.

Bennett in the ambulance pre-arrest, he was just in the very initial stages of aninvestigation, and had not yet narrowed down that Mr. Bennett was the driver of the ATV. [66] Indeed, detention of a person does not happen every time there is an interaction with police. In Grant, the Supreme Court ofCanada said at para. 38: In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves askingquestions of a person who is implicated in the occurrence and, consequently, is at risk of self- incrimination.

This does not preclude thepolice from continuing to question the person in the pursuit of their investigation. [67] In R. v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460, the Court held that Mr. Suberu was not detained until his arrest. The court said the interaction prior to arrest was “of a preliminary or exploratory nature”, where the officer was in the process of sortingthings out, and had not yet zeroed in on the individual as a person whose movements must be controlled” (paras. 31-32). [68] In R. v.

Guenter, 2016 ONCA 572, the Ontario Court of Appeal agreed the accused was not detained when he madecomments to police because it was during the initial stages of an accident investigation by police who had just arrived and were trying tosort things out. [69] Constable Belanger said when he got into the ambulance with Mr. Bennett, he did not know who the driver of the ATV was.This is one of those points of Constable Belanger’s evidence that I cannot accept.

The evidence of Constable Chartier was that when bothofficers arrived on scene and, together, spoke to the firefighters, they were told that their information was that the male was the driver ofthe ATV. This information is in Constable Chartier’s notes. Constable Belanger first testified that he was not with Constable Chartierwhen Constable Chartier spoke with the firefighters. But then, he agreed that he could not recall whether he was told about the malebeing the driver. I accept the evidence of Constable Chartier.

He was certain this was the case, and Constable Belanger agreed he couldnot recall. [70] Although Constable Belanger did not verbally interact with Mr. Bennett while the paramedics were doing their assessment ofMr. Bennett, his investigation was progressing, in that he was listening to what Mr. Bennett told the paramedics and was makingobservations of Mr. Bennett. By the time the paramedics finished assessing Mr. Bennett, Constable Belanger had observed a strongodour of liquor on Mr. Bennett’s breath, noted that he had slurred speech while talking to the paramedics and observed that Mr. Bennetthad watery eyes.

In my view, at that point Constable Belanger had conducted the preliminary investigation. [71] As soon as the paramedics finished their assessment, Constable Belanger read Mr. Bennett the police caution. Then he startedquestioning Mr. Bennett. The caution told Mr. Bennett that he did not have to say anything. But the caution also included theinformation that whatever Mr. Bennett did say could be used against him as evidence. In my view, the investigation in Mr.

Bennett’scase was significantly further past the preliminary stage than in Grant, Suberu and Guenter when questions by the officer started beingasked. [72] It is clear that both Mr. Bennett and Constable Belanger thought that Mr. Bennett was detained in the ambulance. Mr.Bennett, before leaving the ambulance to go outside and urinate, sought, and was granted, permission of Constable Belanger to do so.Constable Belanger, although he first testified that Mr. Bennett was free to leave, he then agreed that if Mr. Bennett had tried to leave, hewould have told him he was being detained for investigation.

Although their respective subjective views are not determinative, giventhat the analysis is an objective one, they are relevant. [73] In my view, Mr. Bennett was detained in the ambulance by the time that Constable Belanger gave him the police caution. Bythat time, Constable Belanger had gathered information such that the investigation was beyond its very preliminary stage. I find that heknew that Mr. Bennett was the driver of the ATV, and he had made observations of indicia of impairment. Mr. Bennett was in aconfined space, an ambulance, with a uniformed police officer. His vehicle was not available to him.

He was out in the country in themiddle of the night. He had just been told that whatever he might say may be used as evidence against him. [74] At that point, in my view, a reasonable person in Mr. Bennett’s position would not think he was free to leave. It was at thatpoint that Mr. Bennett was under detention. Was Mr. Bennett’s pre-arrest detention “arbitrary”? [75] As long as the detention of Mr. Bennett was lawful, it was not arbitrary. An investigative detention that takes place inaccordance with common law powers is lawful and not arbitrary (R. v. Mann, 2004 SCC 52, para. 20).

In my view, Constable Belangerdid have sufficient information to detain Mr. Bennett for investigative purposes. He knew that Mr. Bennett was the driver of the ATV,that his breath smelled of alcohol and that he had slurred speech. Accordingly, although Mr. Bennett was detained prior to arrest, suchdetention was not arbitrary, such that there was no s. 9 Charter breach.

Was there a breach of Mr. Bennett’s s. 10 Charter rights on detention? [76] Mr. Bennett’s s. 10 Charter rights crystalized at the moment of detention. The right to counsel arises on arrest “or detention”. [77] Constable Belanger did not, at that point, promptly inform Mr. Bennett the reason for his detention. By failing to do so, asrequired by s. 10(

a) Charter, Mr. Bennett’s s. 10(

a) Charter right was infringed. [78] The Supreme Court of Canada in R. v. Bartle, (SCC), [1994] 3 SCR 173, held that

section 10(

b) of theCharter imposes three duties on state authorities who arrest or detain people. These are: 1. To inform the detainee of the right to retain and instruct counsel without delay; 2. To provide a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and 3. To refrain from eliciting evidence from the detainee until that reasonable opportunity had been exercised. [79] The first duty is informational.

The second and third are implementational, and only arise if a detainee expresses the wish toexercise the right. [80] There were no urgent or dangerous circumstances in this case. [81] On detention, Constable Belanger did not inform Mr. Bennett of the right to retain and instruct counsel without delay. Byfailing to do so, Constable Belanger infringed Mr. Bennett’s s. 10(

b) Charter right. [82] It is noteworthy that some of the answers Mr. Bennett provided to questions asked of him by Constable Belanger during theperiod of detention and before arrest, and provided information based on which Constable Belanger formed his grounds to arrest Mr.Bennett. The impact of this will be addressed later. [83] I note that when asked why he did not see the need to give Mr. Bennett his right to counsel in the ambulance pre-arrest,Constable Belanger said it was because Mr. Bennett was not under arrest yet. Constable Belanger agreed that Mr.

Bennett was not freeto leave during that pre-arrest time. That evidence leads the court to the concerning question as to whether Constable Belangerrecognized that he had a duty to provide right to counsel on detention, or thought he did not have such a duty until arrest. Did Constable Belanger have “reasonable and probable grounds” to arrest Mr. Bennett for impaired operation? [84] Although the court found that Mr. Bennett was detained pre-arrest and should have been given his s. 10(

a) and 10(

b) Charterrights, and notes that Mr. Bennett provided answers to questions posed by Constable Belanger during the time after detention and beforearrest, which answers were used by Constable Belanger in forming his grounds to arrest Mr. Bennett, since a decision as to whether ornot those answers will be excluded from evidence has not yet been made, the court is going to consider, for the purposes of deciding thes.8 issue, that those answers do form part of the evidence. [85] The court accepts that Constable Belanger had reasonable grounds to believe Mr. Bennett had operated the ATV.

He hadbeen provided that information by the emergency services personnel on scene. Also, Mr. Bennett had admitted he was the driver whenquestioned in the ambulance by Constable Belanger. [86] But, did Constable Belanger have reasonable grounds to believe that while operating the ATV, Mr. Bennett’s ability tooperate it was impaired to any degree by alcohol? [87] The information and observations Constable Belanger relied on to form his opinion were a combination of observations madeand information provided in three sets of circumstances – first when he arrived on scene; second when he observed Mr.

Bennett beingassessed by the paramedics, with Constable Belanger present and observing but not directly interacting with Mr. Bennett; and then afterthe paramedics had finished their assessment and Constable Belanger was interacting directly with Mr.

Bennett. [88] The information Constable Belanger testified he had and observations he made were as follows: • When he arrived on scene, he saw the ATV rolled over at the side of the road, and observed debris from the crash, including threeempty Bud Lite beer cans. • While in the ambulance, even before speaking to him, and while the paramedics were doing their assessment of Mr. Bennett theofficer smelled a strong odor of liquor on Mr. Bennett’s breath. • In answering questions of the paramedics, the officer noted Mr. Bennett’s o speech was slurred; and that o Mr.

Bennett had watery eyes. [89] After the paramedics completed their assessment Mr. Bennett answered questions posed by Constable Belanger and providedinformation that he had been driving, who his passengers were, that the rollover happened, and that he called 911 within minutes of therollover. During this conversation, the officer smelled an even stronger odour of liquor from Mr. Bennett’s breath. He noted slurredspeech. He noted watery eyes.

[ 90 ] When Mr. Bennett exited the ambulance and went outside to urinate, the officer observed he had some trouble getting out and had to hold onto the bars on the ambulance, and he had difficulty walking a straight line. [ 91 ] It was at that point, after accumulating all those observations and information, that Constable Belanger formed the opinion that Mr. Bennett had been operating a conveyance while impaired by alcohol. [ 92 ] Although I have some concerns about parts of Constable Belanger’s evidence, I do accept his evidence as to observations and comments as being accurate. He did have notes. Although he said the notes were a

summary, they were made relatively soon after the incident. His evidence as to comments and observations in my view, were not shaken on cross examination. [ 93 ] Although Constable Belanger agreed on cross-examination with suggestions that specific indicia could be explained by other circumstances (for example, an unsteady gait may have been due to ruts in the snow outside), in my view, Constable Belanger’s subjective belief was an objectively reasonable one on the totality of the evidence. I am satisfied that Constable Belanger had reasonable and probable grounds to arrest Mr.

Bennett for impaired operation of conveyance. Was there a breach of Mr. Bennett’s s. 10 Charter rights on arrest? [ 94 ] On arresting Mr. Bennett in the ambulance, Constable Belanger did comply with his s. 10 (

b) informational duty, telling Mr. Bennett that he had the right to retain and instruct counsel without delay. [ 95 ] Mr. Bennett immediately responded that he did want to exercise that right, thereby triggering the implementational duties required of Constable Belanger under s. 10 (b). [ 96 ] Constable Belanger never permitted Mr. Bennett to exercise his right to counsel. [ 97 ] At no point from the time Mr. Bennett said he wanted to contact counsel at 4:25 a.m. until he was re-arrested at 6:02 a.m. just after his release from the hospital and while in the police vehicle, did Mr.

Bennett tell Constable Belanger that he no longer wanted to contact counsel or had changed his mind. [ 98 ] The evidence is that Mr. Bennett was not seriously injured. It was only because paramedics asked him if he wanted to go to the hospital and he said yes, that he was taken to the hospital. He was verbally responsive and alert. He was able to ambulate, as he got out of and back into the ambulance.

There is nothing in the evidence about his physical or mental condition to suggest that he was incapable of having a phone call with counsel, or that required any delay in having that phone call. [ 99 ] Constable Belanger said he did not provide Mr. Bennett with a call to counsel from the time he was advised of his right to counsel, on arrest, at 4:25 a.m., until he was released from hospital at 6:00 a.m., because it was not practical or reasonable to do so. [ 100 ] Constable Belanger provided a number of reasons as to why he says he could not reasonably comply with Mr. Bennett’s s. 10 (

b) right to call counsel without delay during that period. As detailed below, the court does not accept them. [ 101 ] Constable Belanger said he could not facilitate a call to counsel for Mr. Bennett from the ambulance, due to lack of privacy. It was suggested to him that Mr. Bennett could stay in the ambulance with the door open and the officer could walk far enough away so that Mr. Bennett would have privacy. Constable Belanger said that he could not do this for security reasons, specifically that Mr. Bennett might escape. Frankly, this is ridiculous, and unbelievable, even on Constable Belanger’s own evidence.

Constable Belanger had already permitted Mr. Bennett to leave the ambulance to urinate, and Mr. Bennett, as the officer expected, returned. Mr. Bennett was entirely cooperative, so much so, Constable Belanger agreed, that he did not handcuff Mr. Bennett. Also, they were out in the country and Mr. Bennett did not have access to a vehicle. In my view, a call, with the requisite privacy could have been provided right away on arrest, from the ambulance. [ 102 ] As to the availability of a phone at the ambulance, the court notes that in R. v.

Taylor, 2014 SCC 50 , the Supreme Court of Canada said that there is not a duty on police to provide access to an officer’s cell phone due to privacy and safety considerations. However, there is no reason, in my view, that if available, another cell phone could not be used. [ 103 ] Constable Belanger testified he did not even ask Mr. Bennett if he had a cell phone. He said that he did not know if Mr. Bennett had one with him, although he acknowledged he knew that it was Mr. Bennett who had called 911 to report the accident. Clearly someone on scene had a cell phone that was available.

Without Constable Belanger even asking the question, it is hard for the Court to accept the unavailability of a cell phone on scene as a legitimate reason for Mr. Bennett not being able to speak to a lawyer. [ 104 ] Constable Belanger made the general comment that he is not allowed to permit suspects to call lawyers on their own because suspects cannot be prevented from calling or texting someone else other than a lawyer. On cross-examination, the officer admitted that “technically speaking”, he could have used a cell phone to dial a lawyer’s number or duty counsel himself, and then put Mr.

Bennett on the call. [ 105 ] Constable Belanger said that there was no opportunity for Mr. Bennett to have a call with a lawyer at the Eriksdale Hospital. Mr. Bennett was at the hospital for a substantial period of time (from 4:48 a.m. to 6:00 a.m.), he was alone in an observation room for a period of time waiting, and any injuries he had were not acute. Again, Mr. Bennett may have had his own cell phone with him – we don’t know because Constable Belanger did not ask. Constable Belanger testified that Mr. Bennett’s parents attended the hospital while he was there.

There is no evidence they were asked if they had cell phones that could be used to facilitate a lawyer call. There was no evidence as to efforts made by the officer to locate a cell phone that could be used for a call to counsel. [ 106 ] Constable Belanger said that there was not the combination of privacy and opportunity for him to observe Mr. Bennett while on a call to a lawyer. Constable Belanger said that a room with a door (for privacy) and a window (for observation of Mr. Bennett during

the call) were required. Although Constable Belanger agreed that there were telephones at the hospital, he said he could not locate anysuitable rooms in which Mr. Bennett could have his call with a lawyer. Constable Belanger first said that he tried to find a room suitablefor Mr. Bennett to call a lawyer, but could not. He also said he asked employees about suitable rooms, but he could not say who heasked. Then Constable Belanger said that it is “common knowledge” that there are no suitable rooms at the Eriksdale Hospital for callinglawyers.

It is unclear to me, based on that evidence, whether he relied on what he said was common knowledge, or if he did actuallylook for a room and/or ask employees. He has no notes of such search or inquiries. Constable Chartier arrived at the hospital at 4:48 a.m.and waited there with Constable Belanger for Mr. Bennett to be released at 6:00 a.m. There was no evidence of Constable Chartiermaking any efforts to facilitate a lawyer call.

Constable Chartier also gave no evidence that he saw Constable Belanger looking for asuitable telephone room or heard him making inquiries about such a room. [107] Constable Belanger said that if he facilitated a phone call to a lawyer from the room that Mr. Bennett was in, waiting to be seenby medical personnel, the officer would be able to hear Mr. Bennett, and also there were other patients nearby who could hear, so thatthere was no the requisite privacy. It is hard to understand why the officer could not set Mr.

Bennett up with the phone call, leave thecurtain open a bit so he could observe him if he felt that was required, and go down the hall so he could not hear what was being said. [108] Constable Belanger was also asked why a call could not be facilitated once Mr. Bennett had been released from hospital andwas in the police car with Constables Belanger and Chartier. Again, he said that he did not know if Mr. Belanger had a cell phone anddid not ask. Also he said it was not standard practice to leave a suspect in a police car for his own safety, safety of officers and publicsafety.

If a cell phone were available, it is hard to understand how if officers placed the call, and left Mr. Bennett in the back of thepolice car, with doors open, and officers walked far enough away to ensure privacy, that would be a problem. Mr. Bennett was not aflight risk. He had no keys to the car. There is no evidence to suggest he posed any risk to anyone. [109]

Section 10 permits the right to consult with counsel “without delay”. The rationale is so that an accused can get legal advice sothat he or she understands their jeopardy and does not incriminate himself or herself while in the custody of the police, unless they makean informed decision to do so after getting legal advice.

Section 10 (

b) does not qualify the words “without delay”. It certainly does notqualify “without delay” with words such as “when convenient”. It certainly does not say the contact has to be facilitated in a private roomwith a door and with a means for the officer to observe the accused, but without hearing him, during the call. The only qualification tothe words “without delay” is what the SCC said in Bartle – that is that the s. 10(

b) right require police to provide a “reasonableopportunity” to exercise that right. [110] In my view, compliance with s. 10(

b) and provision of a “reasonable opportunity” to consult with counsel, does not require thecontact with counsel to be in ideal circumstances. Rather, the “without delay” words take precedence over situational circumstances suchas location, opportunity for observation, and even whether or not there is opportunity for complete privacy, as long as the circumstancesprovide a “reasonable opportunity” for consultation with counsel. Whatever a “reasonable opportunity” is to consult with counsel willdepend on the circumstances.

Certainly some consultation with counsel, even if not in perfect conditions, is better than no opportunity atall, such that an accused may incriminate himself while waiting for the ideal conditions in which to make the call to counsel.Implementation of the right to counsel has to be made without delay because the Charter says so, without exception. [111] In R. v .Dombrowski (1985), (SK CA), 44 C.R. (3d) 1, the Saskatchewan Court of Appeal held that, where atelephone is available at an earlier occasion, there is no justification for delaying the opportunity to contact counsel until they arrive atthe police station. [112] In R. v.

Manninen, (SCC), 1987 CarswellOnt 99, the Supreme Court of Canada found an accused’s s. 10(b)right was breached when police did not let an accused who had expressed a desire to contact counsel, use a telephone that was availablein an office on scene, and waited until they arrived at the police station. [113] A case with some similarities is R. v. Guenther, an unreported 2012 decision of the Manitoba Provincial Court. In that case, anaccused had been involved in an accident and was taken to hospital. He was not arrested for impaired driving until he was released. Onarrest he was read his Charter rights.

He was asked if he wanted to call a lawyer and said yes. Instead of facilitating a call to counsel atthe hospital, the officer took the accused to a RCMP detachment. Fifty-seven minutes had passed from the time the accused had said hewanted to call a lawyer. The officer said that facilitating a lawyer call at the hospital was not a best case scenario because of privacyissues and access to a telephone and telephone book.

Judge Chartier concluded that the officer’s decision to not facilitate the lawyer callat the hospital was a unilateral and arbitrary decision, and there was no evidence as to the officer’s steps taken to find a private area, atelephone or a telephone book. A s. 10(

b) Charter breach was found. [114] In R. v. Taylor, 2014 SCC 50, the issue was whether the police’s failure to take any steps to implement access to counsel in thehospital, where the accused was in a curtained area, was a breach of s. 10(b). The court found it was and excluded from evidence theblood samples that were taken at the hospital. Dealing specifically with a hospital situation, the Supreme Court of Canada said: The duty of the police is to provide access to counsel at the earliest practical opportunity.

To suggest, as the trial judge did that itpresumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused’s time waiting for andreceiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines theconstitutional required of access to counsel “without delay”. ……. constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, andproactive steps are required to turn the right to counsel into access to counsel.

An individual who enters a hospital to receive medical treatment is not in a Charter-free zone. Where the individual has requestedaccess to counsel and is in custody at the hospital, the police have an obligation under s. 10(

b) to take steps to ascertain whether privateaccess to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether

the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phoneconversation is not reasonably feasible. (paras. 32 -34) [115] In my view, as in Dombrowski, Manninen, Guenther and Taylor, there were practical options and “reasonable opportunities”available to Constable Belanger to comply with his s 10(

b) implementational duty, first at the scene, but at least at the hospital. It is notenough to say there were not perfect conditions and the officer was justified in waiting until those conditions existed before providing thecall. I am not persuaded that Constable Boulanger could not reasonably have facilitated a call to counsel for Mr. Bennett. [116] The evidence of Constable Belanger causes the Court to wonder if he correctly understood the obligations imposed on him as anagent of the state, under s. 10(

b) when an accused advises he wishes to exercise his right to counsel. All of the reasons he provided, andessentially waiting for perfect conditions to exist, for an hour and thirty nine minutes, suggest that he may not have. [117] Constable Belanger breached Mr. Bennett’s s. 10(

b) Charter right by not facilitating the first implementational duty and makingarrangements for Mr. Bennett to contact counsel without delay. Did Mr. Bennett provide a clear and unequivocal waiver of right to counsel? [118] When Constable Belanger arrested Mr. Bennett for impaired operation cause bodily harm, in the cruiser car before leaving thehospital at 6:02 a.m., he again advised Mr. Bennett, at 6:04 a.m. that he had the right to retain and instruct counsel without delay. Thistime, according to Constable Belanger, when Mr. Bennett was asked if he wanted to call duty counsel or any other lawyer, Mr.

Bennetsaid “no”. Constable Belanger testified that when an accused changes his mind about contacting counsel, he reads from an insert in his notebook,the “Prosper warning”. Constable Belanger says he read it to Mr. Bennett, that Mr. Bennett confirmed he understood, and when asked ifhe wanted to contact counsel, Mr. Bennett said “no thank you.” [119] Courts have to ensure that there is a high bar for waiver of counsel to be effective.

When a detainee who has asserted his rightto counsel then indicates a change of mind and declines legal advice, the police must tell the detainee of the right to counsel and musthold off any further questioning or investigation during this time. The burden of establishing an unequivocal waiver is on the Crown (R.v. Prosper, (SCC), [1994] 3 S.C.R. 236). [120] Although Constable Belanger testified he provided right to counsel on the second arrest and then read the Prosper warning,Constable Chartier did not hear the Prosper warning read.

Also, Constable Parnes testified that when he obtained information fromConstable Belanger that Mr. Bennett had been given his right to counsel and said he did not want to exercise it, he was not told that Mr.Bennett had previously said he did want to call counsel. Constable Parnes said that if a Prosper warning had been given, he would haveexpected Constable Belanger to tell him that. Constable Parnes accordingly went ahead with questioning Mr.

Bennett and ultimatelywith doing the breath tests. [121] Given the overall problems I have identified with Constable Belanger’s evidence such that I accept the evidence of ConstablesChartier and Parnes, where there are conflicts, I cannot accept that the Prosper warning was given. [122] And, even if it was, in my view the waiver that Constable Belanger says was given was not unequivocal or effective to waiveright to counsel. Mr. Bennett had been told hours before that he had the right to contact counsel without delay. And yet, without himadvising he had changed his mind, he had not been given that opportunity.

It is totally reasonable to assume that, when he was told againthat he had that right, he would have no expectation that he would have that opportunity, such that there was no point saying he did wantto contact counsel. [123] In my view, Mr. Bennett did not provide a clear unequivocal waiver of right to counsel. Did Constable Belanger make demand for breath samples of Mr. Bennett as soon as practicable? [124] Mr.

Bennett was read the breath demand twice, on the initial arrest at 4:27 a.m., and then again on the re-arrest for the chargesadding the causing of bodily harm, at 6:03 a.m. (following arrest at 6:02 a.m.). [125] In my view, both breath demands were read as soon as practicable. Were breath samples taken from Mr. Bennett as soon as practicable? [126] The first breath demand was read to Mr. Bennett on his arrest at 4:27a.m. Had the EMS workers not asked Mr. Bennett if hewanted to go to the hospital to be checked out, presumably Constable Belanger would have taken Mr.

Bennett directly to the RCMPdetachment and the breath samples would have been taken. But instead they went to the hospital, arriving at about 4:48 a.m. He wasmedically cleared at 6:02 a.m. [127] Once they got in the police vehicle upon the accused being released from hospital, at about 6:02 a.m., the accused was re-arrested for impaired operation cause bodily harm and another breath demand was read at 6:03 a.m. They then went straight from the

Eriksdale Hospital to the detachment in Lundar, arriving at 6:21 a.m. The first breath sample was taken at 6:47 a.m., after ConstableParnes had asked Mr. Bennett some questions and the first observation period had taken place. [128] I am satisfied the breath samples were taken as soon as practicable after the reading of the breath demand on the re-arrest. [129] But, the question is whether the delay of two hours and twenty minutes, from the first breath demand to the taking of the firstbreath sample, occasioned as a result of Mr.

Bennett being taken to the hospital, waiting there and then being assessed by nurses and adoctor, means the samples were not taken “as soon as practicable”. [130] The Ontario Court of Appeal in R. v. Vanderbruggen, (ON CA), 2006 CarswellOnt 1759, addressed what ismeant by “as soon as practicable”. That phrase means simply that the tests were taken within a reasonably prompt time under thecircumstances. The tests do not have to be taken as soon as possible. Whether tests were taken as soon as practicable requires anassessment as to whether the police acted reasonably (para. 12).

The court has to look at the whole chain of events and determine if itwas reasonable. [131] In my view, the delay occasioned by the hospital visit, set in motion by the EMS workers in fulfilment of their responsibilities,does not meant the samples were not taken as soon as practicable. The officers, but for that delay, which was really out of their control,acted with dispatch in terms of getting Mr. Bennett from the hospital to the detachment and having the samples taken. [132] So in my view, the samples were taken as soon as practicable. Was Mr. Bennett “arbitrarily detained” at the hospital? [133] Mr.

Bennett argues that the failure of the police to make a demand for blood samples at the hospital, instead of waiting toproceed with breath samples later, made his detention at the hospital “arbitrary”. [134] Under s. 320.28(ii) of the Criminal Code, if a peace officer has reasonable grounds to believe a person has operated aconveyance while impaired, the peace officer may make a demand for a blood sample, but only if the peace officer has reasonablegrounds to believe that, because of their physical condition the person may be incapable of providing a sample of breath, or that it wouldbe impracticable to take a breath sample. [135] There is no evidence that Mr.

Bennett’s physical condition precluded the taking of a breath sample, nor that it was impracticablefor a breath sample to be taken. The stay at the hospital delayed that taking of the breath sample, but that does not mean it wasimpracticable for one to be taken later. I have already found the breath samples were taken as soon as practicable. [136] I am not persuaded that the failure to make a blood demand, when there is no evidence that it would have been lawful to makeone, somehow resulted in arbitrary detention of Mr.

Bennett. [137] I have also found that, despite the interruption of the delay at the hospital, breath samples were taken as soon as practicablefrom Mr. Bennett. [138] I also note that even if, as Mr.

Bennett argues, Constable Belanger ought to have arrested him for impaired cause bodily harmwhen he was first arrested, instead of waiting until they left the hospital and Constable Belanger was shown photos of the injuries, on thebasis he was told at the scene that there were injuries, he was still under lawful arrest for the impaired charge, and was not thereby beingarbitrarily detained. [139] There was no arbitrary detention of Mr. Bennett at the hospital.

SUMMARY OF FINDINGS ON CHARTER ISSUES 1. Mr. Bennett’s s. 10(

a) Charter right was infringed by Constable Belanger on Mr. Bennett’s detention in the ambulance. 2. Mr. Bennett’s s. 10(

b) Charter right was infringed by Constable Belanger on detention in the ambulance. 3. Mr. Bennett’s s. 10(

b) Charter right was infringed by Constable Belanger on and after arrest. 4. There was no effective waiver by Mr. Bennett of his right to counsel. 5. There was no s. 8 Charter breach. 6. There was no arbitrary detention, and no s. 9 Charter breach. Findings that there were not s. 8 or s. 9 breaches are predicated on all the evidence being admissible. If the evidence obtained when Mr.Bennett was under detention, is not admitted, there would be a domino effect, and s. 8 and s. 9 breaches would follow. SHOULD EVIDENCE BE EXCLUDED FROM THE TRIAL PURUSUANT TO s. 24(2) CHARTER, AND IF SO, WHICHEVIDENCE?

[140] Section 24(2) of the Charter provides as follows: Where…a court concludes that evidence was obtained a manner that infringed or denied any rights or freedoms guaranteed by thisCharter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute. [141] The evidence that Mr.

Bennett seeks to have excluded is his oral comments made to Constable Belanger on detention and thenon arrest, and to Constable Parnes at the detachment, and his breath test results set out in the Certificate of Qualified Technician. [142] In determining whether admission of the evidence, in light of the s. 10 breaches the court has found, would bring theadministration of justice into disrepute, the court must consider these three inquiries: 1) The seriousness of the Charter infringing state conduct 2) The impact of the breaches on the Charter-protected interests of the accused, and 3) Society’s interest in the adjudication of the case on its merits. (R. v.

Grant, 2009 SCC 32 ; R. v. Harrison, 2009 SCC 34 at para. 21) [143] The Crown quite rightly points out that the analysis should be considered in the context of the different types of evidence atissue. [144] To be clear, as to the s. 10 Charter breaches, they are multiple and continuing over a significant period of time. The court findsbreaches on detention in the ambulance of s. 10 (

a) and 10(b), and breach of 10(

b) on arrest and continuing throughout the rest of thepolice dealings with Mr. Bennett, including on and after his second arrest in the police car, since no unequivocal waiver of right tocounsel was provided by Mr. Bennett. [145] The first inquiry requires the court to consider whether it needs to disassociate itself from the unlawful state action, in order toavoid the administration of justice being brought into disrepute. Deliberate or willful breaches will be more likely to require suchdisassociation than minor or inadvertent breaches committed in good faith.

In this case, the s. 10 breaches were not minor or inadvertent. [146] Although I do not find that Constable Belanger acted in bad faith, my assessment is that he did not seem to appreciate the“without delay” component of the s. 10 right. Nor did he seem to understand that he was required to provide right to counsel oninvestigative detention, prior to arrest.

Nor did he recognize that constitutional rights trump police policies, such that relying on policiesthat calls to lawyers cannot be made on cell phones, or in spaces without doors and observation windows, or in police cars, if thosepolicies are not consistent with fundamental Charter rights of detainees, cannot excuse Charter breaches. So it is more the officer’s lackof understanding of these important duties that is at issue here.

It is, in my view, important for the court to disassociate itself fromconduct that breaches constitutional rights resulting from a lack of understanding by an officer of his constitutional duties. For the publicto maintain respect for the administration of justice, the public has to have confidence that police officers know their constitutionalobligations.

In my view, the scale on this first point, tips toward exclusion of both the comments and the certificate. [147] The second inquiry requires the court to assess the extent to which the breach compromised or undermined the interest that theCharter right protects. (Harrison, at para. 28). In this case, the failure of Constable Belanger to comply with the implementational dutyof right to counsel meant that Mr. Bennett was not afforded the opportunity to make an informed decision as to whether he would answerquestions and would provide breath samples. Had Mr.

Bennett had the benefit of consulting with counsel on his detention in theambulance, he may well not have made comments to Constable Belanger. Crown counsel points out that the Charter protected interestrelative to the breath test results is different, and the interest protected there is more bodily integrity and privacy. Indeed breath testing isnot particularly invasive as to one’s bodily integrity. However, the same Charter protected interest about making an informed decisionexists as to the breath testing as it does to the comments.

If one has the benefit of consulting with counsel, one can make an informedchoice whether to provide the breath samples or not. Of course, refusal to provide a sample constitutes a different offence, but it is stillavailable to an accused to make an informed choice if he has legal advice – perhaps he has some condition that might be a reasonableexcuse for refusing to do breath testing. Without all the information, provided by counsel, an accused cannot make an informed choiceabout providing the samples. In my view the impact on Mr.

Bennett’s Charter protected interest was significant, as to both thecomments and the certificate, and the scale tips toward exclusion. [148] The third stage requires the court to consider society’s interest in having cases decided on their merits. Will the truth seekingfunction of the trial be better served by excluding or admitting the evidence? The public has an interest in having impaired driving casesdecided on their merits, given the significant threat to public safety that impaired driving poses.

Breath test evidence by its nature, isgenerally highly reliable, and exclusion of the certificate would decimate the Crown’s case on the over 80 charge, such that this analysistends toward inclusion of that evidence. The evidence of the comments is not as reliable of course, and although exclusion would impactthe Crown’s case, it would not do so in the same way.

As is often the case, on this stage, the scale tips toward inclusion of the evidence. [149] In Harrison, the Supreme Court of Canada warns courts against giving the third factor disproportionate significance, becausethe public has a vital interest in ensuring the justice system is beyond reproach. [150] The court has to balance all of these factors to decide, overall, whether the administration of justice is better served by exclusionor inclusion of the evidence. [151] Ultimately, the court cannot condone the unacceptable conduct of police in failing to provide Mr. Bennett with an opportunity

to obtain legal advice without delay. In my view, the administration of justice would be tainted in the public eye were the comments and the breath samples admitted into evidence. Although the court recognizes that excluding particularly the very reliable evidence of Mr. Bennett’s blood alcohol readings weighs against the public interest in having a decision on the merits, in this case, the court is of the view that public confidence could be negatively impacted by admission. [ 152 ] I also note that the s. 10 breaches were multiple – in the ambulance, on arrest, and following, without an effective waiver.

The first breach, in the ambulance, resulted in Mr. Bennett providing information and permitting Constable Belanger to make observations that he used to form his grounds for arrest. The grounds for arrest were based at least partly on evidence obtained while Mr. Bennett was detained and without being told that he was entitled to, or having an opportunity to, consult with counsel.

Exclusion of that evidence would logically lead to a lack of reasonable grounds for arrest, such that a s 8 Charter breach, and then to subsequent detention being arbitrary, a s. 9 Charter breach. [ 153 ] In my view, the seriousness of the Charter breaches, the impact of those breaches on the obtaining of evidence used to form grounds for arrest, and the impact of the police conduct on Mr. Bennett’s interests are such that the admission of both the comments and the Certificate of Qualified Technician would negatively impact public confidence in the administration of justice.

The comments therefore (even though they were found to have been made voluntarily) and the breath test results set out in the Certificate of Qualified Technician will be excluded from evidence. “Original signed by” Carlson, P.J.