R. v. Iyamu, 2015 ONCJ 633

ONTARIO COURT OF JUSTICE CITATION: R. v. Iyamu , 2015 ONCJ 633 DATE: October 21, 2015· COURT FILE No.: Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — EGHOSA IYAMU Before Justice Leslie Pringle Heard on June 15, 2015; June 17, 2015 and September 17, 2015 Reasons for Judgment released on October 21, 2015 Mr. I. Shaikh ............................................................................................ counsel for the Crown Mr. B. Irvine ........................................................................... for the defendant Eghosa Iyamu Pringle J.: 1.

Introduction and Overview [ 1 ] Eghosa Iyamu was investigated, detained and searched by police when they responded to an unknown trouble call at a restaurant on December 2, 2013. During the course of his detention at his vehicle, the officers learned that he had been drinking, and administered a roadside breath test, which he failed. Accordingly, he was arrested for driving with excess alcohol in his system. At the police station he provided breath alcohol readings that were over the legal limit. [ 2 ] The primary concern raised by Mr. Irvine on behalf of Mr.

Iyamu relates to his detention, raising issues under sections 8, 9 and 10 of the Charter. These can be broken down as follows: 1 . In relation to Cst. Broad’s interaction: was Mr. Iyamu detained when he was first investigated by Cst. Broad? Was he detained when Cst. Broad told him to remain in his vehicle for his own safety, while the officer investigated an unrelated matter? 2 . In relation to Cst. Danson and Cst. Keown’s interaction: were they entitled to detain and search Mr. Iyamu and his car while investigating the incident at the restaurant? 3 . Were Mr.

Iyamu’s rights violated by failing to tell him of the reason for his detention and/or by failing to provide him with his rights to counsel? 4 . If so, should the evidence be excluded under s.24(2) of the Charter? [ 3 ] On Mr. Iyamu’s behalf, Mr. Irvine also submits that Cst. Danson did not have the requisite reasonable suspicion to demand a roadside breath sample from Mr. Iyamu, and urges me to find that there was bad faith, (or at least a “bad smell” in his words), when an officer took Mr. Iyamu’s phone, and according to Mr. Iyamu’s belief, deleted the video he had filmed of the police behaviour.

[ 4 ] At the end of the day, I have concluded that the police were engaged in a legitimate investigation of the fight at the restaurant, and were acting in good faith to find out what happened in that matter. However, after asking a few questions about the fight, Cst. Broad had no lawful basis to detain Mr.

Iyamu in his own vehicle while the officer left to go and deal with an unrelated matter. “Safety” cannot be used as a catch all basis for police interference with a subject’s liberty when there is no specific reason for detention or safety concern posed. [ 5 ] Further, I cannot find that the circumstances at the restaurant, (involving a fight with a bottle), justified Cst. Danson and Cst. Keown in searching every vehicle and the occupants of every vehicle in the area of the restaurant.

This interference with liberty was excessive and far more than was necessary to enable the police to do their duty to investigate the fight. Further, while Mr. Iyamu was detained, searched and investigated in relation to the fight, no one advised him of his rights to counsel. [ 6 ] For reasons that I will explain, I find Mr. Iyamu’s rights pursuant to s.8, 9 and 10(

b) of the Charter were violated. I would exclude the evidence of the breath samples under s.24(2). [ 7 ] I agree with Mr. Shaikh on behalf of the Crown that, if I am wrong on the detention issues, the officer’s demand for a roadside breath test was made in accordance with s.254(2)(b). Further, I think the Crown is right to suggest that there is insufficient evidence upon which to make any findings of improper destruction of the video by police. [ 8 ] However, in the end result, based on my conclusions relating to the detention issues, Mr. Iyamu will be found not guilty. Let me explain my reasons. 2.

The Evidence [ 9 ] Cst. Broad received a hot shot radio call at 1.06 a.m. for an unknown trouble at 10 Bradstock. The call indicated that there was lots of yelling and fighting, and 2-3 people were injured. Paramedics were on the way. No weapons had been seen but before he arrived at 10 Bradstock, Cst. Broad received information that someone had been hit over the head with a bottle. [ 10 ] When he arrived at the scene at 1.13 a.m., Cst. Broad saw Mr. Iyamu’s blue Jeep sitting in the curb lane near the restaurant with the engine running. He approached Mr.

Iyamu and had a conversation with him, asking him why he was sitting there. Mr. Iyamu said that he had been in the plaza but people were fighting so he left. Cst. Broad informed him that this was the reason he was speaking to him, because there had been a fight in the plaza. The officer asked him what had happened and Mr. Iyamu said he didn’t know, he was just waiting for a friend. [ 11 ] Cst. Broad asked Mr. Iyamu for his driver’s licence and vehicle documents, and noted that Mr. Iyamu had glassy eyes that were very red and bloodshot.

He noticed that his speech was slow and deliberate, and he passed the officer his health card instead of his licence. When Cst. Broad again asked for his licence, Mr. Iyamu gave it to him and Cst. Broad put it and the health card into his own vest pocket. [ 12 ] At this was happening, Cst. Broad became involved in another investigation when he saw a male coming out from behind a dumpster with his hand in his pocket. He left Mr. Iyamu, but as he did, the officer said he asked Mr. Iyamu to remain in his vehicle for his own safety. Cst.

Broad left to deal with the other male, taking control of him along with his partner Cst. Weeks, and handcuffing that person. Under cross-examination he allowed that, “the detention of that person wasn’t simple”. [ 13 ] At 1.17 a.m. Cst. Broad called over the radio for back up, and saw that Mr. Iyamu was out of his car with his cell phone in his hand. Cst. Broad yelled at him to get back into his car for safety because he was in a live lane of traffic. The officer then continued his own involvement with the other investigation. [ 14 ] Later, Cst. Broad handed Mr. Iyamu’s health card and driver’s licence to Cst.

Keown. Later still, at 2.36 a.m., Cst. Broad got a call from Cst. Keown to pick up Mr. Iyamu’s cell phone because he had been arrested and needed his lawyer’s phone number. Cst. Weeks then took the phone to 22 division for Mr. Iyamu. [ 15 ] Cst. Danson also heard the radio call in relation to 10 Bradstock. She understood that 10 Bradstock was a restaurant and the situation was a volatile one involving yelling and fighting, with 2-3 people injured. She said that as a result, she and her partner, Cst.

Keown, were detailed to stop vehicles leaving the lot to see if they were involved in the fight or were witnesses to the fight. [ 16 ] Cst. Danson and Cst. Keown were “investigating everyone” in vehicles leaving the scene. Prior to approaching Mr. Iyamu, they investigated two vehicles and conducted pat down searches on all the occupants, but no charges were laid. At 1.20 a.m. (according to her watch), they arrived at Mr. Iyamu’s Jeep. At that time he was standing outside his car, videotaping. [ 17 ] Cst. Danson and her partner approached Mr.

Iyamu, explaining that they were responding to an allegation of a fight in which someone had possibly been “bottled”, a chair had been thrown and there were lots of injured parties. According to Cst. Danson, for the next 11 minutes, until 1.31 a.m., she and Cst. Keown were trying to determine if Mr. Iyamu was a witness or a suspect or a victim in relation to the fight. Mr. Iyamu was searched, and while Cst. Danson spoke to him, Cst. Keown searched his car. [ 18 ] As she talked to Mr. Iyamu, Cst. Danson asked him to come over to the curb and get off the road so he wouldn’t be hit by the traffic.

He told her that he had been in the bar and left when the fight broke out, but he drove back when he realized his cousin was still there. She noted that Mr. Iyamu was very upset about the other fight that he saw in the parking lot, and was filming it. (We now know that this “fight” was Cst. Broad detaining the man who came out from the area of the dumpster.)

[ 19 ] As Cst. Danson spoke to Mr. Iyamu at the curb, she noticed that he had glassy eyes and there was a strong odour of alcohol coming from his breath. He wouldn’t let her get a word in edgewise, and when he admitted that he had two beers, she said she had a reasonable suspicion that he had alcohol in his system, and began to investigate him for drinking and driving. At 1.25 she stated, “I’m going to do a Breathalyzer now”, and at 1.28 she made inquiries about the availability of an Alco test device and checked Mr. Iyamu’s driver licence on the system. At 1.31 she read Mr.

Iyamu the demand to provide a breath sample on an approved screening device, and explained to him, “once you have admitted that you have alcohol in your system, I need to ensure that you haven’t had too much and aren’t over the legal limit”. [ 20 ] Mr. Iyamu’s reading on the roadside device was a “fail” at 1.37 a.m. on the video (1.40 a.m. according to Cst. Danson’s watch). Cst. Danson was surprised that he failed. As a result, Cst. Danson arrested Mr. Iyamu, made an approved instrument demand, and read him his rights to counsel.

He said he would like to call counsel, and at the station he indicated his lawyer was Jeffrey Stone. Cst. Danson left a message for Mr. Stone at 2.30 a.m., and when he didn’t call back, Mr. Iyamu agreed to speak to duty counsel. [ 21 ] Mr. Iyamu provided breath samples: the first was at 3.15 a.m., resulting in a reading of 157 mg of alcohol in 100 ml of blood; the second was at 3.40 a.m., with a reading of 156 mg of alcohol in 100 ml of blood. [ 22 ] The qualified breath technician, Cst. Thomson, noted that there was a blatantly obvious odour of alcohol on Mr.

Iyamu’s breath, his eyes were slow moving and heavy as well as blood shot and glassy, his speech was accented and slurred, and at times his balance was on the borderline of unsteady. He noted that Mr. Iyamu’s expression was dazed and his eyes were unfocused and at times would drift off when he was speaking. He considered that the effects of alcohol on Mr. Iyamu were obvious, and believed that he was impaired by the consumption of alcohol. [ 23 ] Mr. Iyamu testified on the Charter hearing. He is 41 years old, married, and has one child. He has been employed at Rogers Cable for the past 7 years. [ 24 ] Mr.

Iyamu explained that he was parked on the side of the road, trying to call his relative, whom he believed was in the restaurant. When Cst. Broad arrived and asked him for his licence, Mr. Iyamu gave it to him. However, as he did that, he heard someone screaming at a young man to put his hands up, and Cst. Broad left him. As Cst. Broad left, he told Mr. Iyamu to stay where you are, and don’t move and don’t leave. [ 25 ] As Mr. Iyamu watched the interaction between the young man and police he became very upset.

He said the man raised his hands, as instructed by police, but the officers kicked him to the ground so that he fell face down. Mr. Iyamu couldn’t believe it, and thought that he should record it. He got out of his car to get a clearer picture, because he felt that although the officer told him to stay in the car, “what was happening was the bigger call of duty”. Then when Cst. Broad noticed him filming and told him to get back in the car for the second time, Mr. Iyamu went back and put one leg in his car and continued video-taping. [ 26 ] When Cst.

Danson approached him, she and the other officer (Keown), told him to stop filming and put his phone away. He complied, but tried to explain what he had seen, which he believed was a human rights violation. He said he was quite shaken up and couldn’t believe it was happening in Canada. As he put it, he thought Cst. Danson was listening to him, but to his surprise, he found that he himself was charged with an offence. [ 27 ] At the station, Mr.

Iyamu testified that a male officer (he thought it was Keown), asked him if he knew the number for his lawyer and brought his phone to him and told him to put his password in. Mr. Iyamu entered his password and went to the contacts to call Mr. Stone, but the officer took the phone away from him. Later, when the phone was returned to him, Mr. Iyamu said there was no video of the incident there any longer. He said, “My obvious guess is that the officer who tricked me to put in my password deleted it”. Mr.

Iyamu became emotional in court and said that he felt hopeless because the officers who were supposed to serve and protect him were not standing up for him. 3. The Law and Analysis 3.1 Detention by Cst. Broad [ 28 ] At the time that Cst. Broad approached Mr. Iyamu, he was engaged in the legitimate investigation of a crime, where it was believed people had been injured and a bottle had been used. Mr. Iyamu was located in his car nearby, with his engine running, shortly after the 911 call. [ 29 ] In R. v.

Grant, 2009 SCC 32 , at para.44, the Supreme Court summarized the law relating to detention under s.9 and 10 of the Charter stating: In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

a) The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[ 30 ] Applying this framework for analysis, Mr. Iyamu was not detained when Cst. Broad first approached him and asked him a number of questions. The questioning was non-confrontational and amounted to making general inquiries about whether Mr. Iyamu knew anything about the fight. Mr. Iyamu’s car was already stopped in the area and Cst. Broad simply walked up to the driver’s window, which was already open, to speak to Mr. Iyamu. [ 31 ] Cst. Broad’s further investigation of Mr.

Iyamu’s driver’s licence and vehicle documentation was warranted by the Highway Traffic Act, and was lawful. [ 32 ] However, things changed when the officer left to deal with another investigation. [ 33 ] On behalf of the Crown, Mr. Shaikh submitted that in asking Mr. Iyamu to remain in his vehicle, and considering that Mr. Iyamu did not do what the officer requested of him, there was no detention. However, I accept Mr. Iyamu’s evidence that the officer didn’t “ask” him to remain in his car – rather he told him to stay where he was and not to move. While Mr.

Iyamu didn’t completely obey the officer’s direction and instead began to film what he believed was police brutality, he did go back to his car and remain with one foot inside when told for a second time by Cst. Broad to get back into his car. [ 34 ] As the factum of the Crown Respondent initially conceded, this was a detention. Cst. Broad’s direction amounted to a psychological restraint where a reasonable person would conclude they had no choice but to comply. Mr. Iyamu did comply, although not whole-heartedly.

Since his ability to leave the scene or to film from a better vantage point was constrained by the officer’s direction to remain in his car, and considering that Cst. Broad had both his driver’s licence and his health card in his pocket, I find he was detained. [ 35 ] Was the reason for this detention authorized by law? [ 36 ] Cst. Broad did not testify that he detained Mr. Iyamu in order to continue his investigation into the fight. Indeed, based on their discussion and the information known to Cst. Broad, there would have been no reason to do so. [ 37 ] Similarly, Cst. Broad did not testify that he detained Mr.

Iyamu so that he could continue a drinking and driving investigation. In fact, although he noticed that Mr. Iyamu had glassy, bloodshot eyes, had slow speech and handed him his health card before his driver’s licence, he stated that he had not yet had a chance to begin a drinking and driving investigation before other events intervened. [ 38 ] Arguably, on this basis it could be said that Mr. Iyamu’s situation is distinguishable from that in R. v. Strehl, [2006] O.J. No.4727 (S.C.J.) , where there was an ongoing drinking and driving investigation that was briefly interrupted to deal with a safety issue.

However, even if it could be said that Cst. Broad’s investigation had somehow turned into a drinking and driving investigation, this case is different from Strehl, where the officer left the driver for a brief time, (6 minutes), to deal with another vehicle and then returned. Here, Cst. Broad left Mr. Iyamu altogether, and never came back to complete his investigation. [ 39 ] In any event, based on the record before me, Cst. Broad was clear that he detained Mr. Iyamu for one reason alone, and that was for Mr. Iyamu’s personal safety. According to the officer, he wanted Mr.

Iyamu to remain in his car for his own safety because he was standing in a live lane of traffic with his cell phone out. [ 40 ] In R. v. Mann, 2004 SCC 52 at para.45, the majority of the Supreme Court explained that police officers may detain an individual for a brief period for investigative purposes if there are reasonable grounds to suspect in all the circumstances that he is connected to a particular crime. Elsewhere at para.40, the majority noted that these powers cannot be justified on the basis of a vague or non-existent concern for safety, or upon hunches or suspicion. [ 41 ] When Cst. Broad left Mr.

Iyamu, he did not have reasonable grounds to suspect that he was connected to the fight, nor had he begun a drinking and driving investigation. A vague notion of protecting Mr. Iyamu for his own safety was not sufficient reason to detain him while the officer left for an undetermined length of time to deal with other matters. [ 42 ] Accordingly, I find that this detention was arbitrary, and amounted to a violation of s.9. 3.2 Detention by Cst. Danson and Cst. Keown [ 43 ] In R. v.

Clayton and Farmer, 2007 SCC 32 , the Supreme Court of Canada analysed the scope of the police investigatory power to stop, detain and search vehicles and their occupants leaving a particular location in the face of very serious public safety concerns. In that case the police received a 911 gun call where a large group of men were reported to be in a parking lot, four of them with handguns out, with several vehicles identified.

All members of the Court agreed that the special dangers of the 911 gun call justified the police stopping and detaining people leaving the scene, and searching both Clayton and Farmer, although the majority and minority reached their conclusion by different routes. [ 44 ] The majority held that the test to be applied in determining if the police use of power was justified depends on a number of factors including: 1 . The duty being performed; 2 . The extent to which some interference with individual liberty is necessary to perform the duty; 3 . The importance of the duty to the public good; 4 .

The liberty interfered with; and 5 . The nature and extent of the interference. [ 45 ] The majority also confirmed that a search incident to an investigative detention is justified only if the officer believes on reasonable grounds that his or her own safety, or the safety of others, is at risk. As noted above in Mann , it cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition.

[ 46 ] The onus is on the Crown to demonstrate that the use of the police power was justified in the particular context of the case, and that the search was reasonable. [ 47 ] I will look at the circumstances here in light of these legal principles. [ 48 ] Here, the duty being performed was one connected to investigation of a serious crime, raising legitimate concerns of public safety at the restaurant where some people had been injured, apparently by a bottle. As indicated above, Cst. Broad was properly engaged in his duties when he approached Mr. Iyamu to investigate the fight, as were Cst. Danson and Cst.

Keown. To that extent, some interference with Mr. Iyamu’s liberty through brief questioning was justified. [ 49 ] However, this was hardly a case where the duty to investigate the fight justified stopping and searching every car in the area, and searching all the occupants. The bottle used at this crime scene was in a totally different category than the risk posed by the handguns in Clayton and Farmer . A bottle is not designed to be used as a weapon, and even if it is used as one, it does not pose a continuing risk if it is carried away.

In contrast, the risks posed by handguns are inherent: a handgun is a weapon designed to kill people, and it poses a continuing threat to public safety wherever it is found. [ 50 ] Randomly stopping and searching all vehicles in the area of this restaurant was a very significant intrusion into the liberty interests of all members of the public in the area. As Justice Binnie put it, at para. 63 in Clayton and Farmer , it was not only bad people who were leaving the location of the crime, but also law abiding ones.

In the words of Justice Binnie, “Individuals going about their ordinary business, even in the small hours of the morning, should not have their way physically blocked by the police and be required to account for themselves unless there exists a Charter -proof legal authority for the detention.” [ 51 ] Moreover, in Clayton and Farmer , all members of the Court found that, once stopped, the search of Clayton, and to a lesser extent, Farmer, was justified by legitimate safety concerns. Here, there was nothing in the evidence to suggest that Mr.

Iyamu had a weapon on his person or posed a safety risk to the police or public. Nonetheless, both his person and his vehicle were searched by the officers. [ 52 ] In the end result, I do not find that the Crown has demonstrated that the situation here presented “a significant and undeniable danger” that justified searching all cars and occupants leaving the scene. Nor has the Crown shown that the search of Mr. Iyamu was warranted. Accordingly, I find the “brief detention” permitted by law of Mr.

Iyamu evolved into a much longer and far more intrusive inquiry than was necessary. [ 53 ] Accordingly I find breaches of both s.9 and s.8 of the Charter. 3.3 s.10(

a) and 10(

b) of the Charter [ 54 ]

Section 10(

a) of the Charter states that everyone who is detained has the right to be promptly informed of the reasons for their detention. [ 55 ] In this case, Cst. Broad told Mr. Iyamu at the outset that he was investigating a fight, and officers Danson and Keown also explained that they were responding to a situation in the restaurant where people had been fighting and there were injured parties. They explained to Mr. Iyamu that they were searching him for safety reasons, and Mr. Iyamu told them that he understood. When Cst. Danson later learned that Mr.

Iyamu had been drinking and she believed that he had alcohol in his system, she made an informal demand to advise him, “I’m going to do a Breathalyzer now”. It is apparent that Mr. Iyamu understood what that meant as he responded, “What makes you think I am impaired?” [ 56 ] I find that the requirements of s.10(

a) were met. [ 57 ]

Section 10(

b) of the Charter states that everyone who is detained has the right to be informed of their right to retain and instruct counsel without delay. In R. v. Suberu, 2009 SCC 33 , the Supreme Court held that this right arises immediately upon detention. [ 58 ] Here, Cst. Broad did not advise Mr. Iyamu of his right to counsel when he left him to investigate another matter for obvious reasons: he did not have time. The same cannot be said of Cst. Danson’s encounter with Mr. Iyamu. When she and Cst.

Keown searched him and searched his vehicle in relation to the fight, they should have informed him of his right to counsel. As noted above, their interference with his liberty was a significant one, and Mr. Iyamu faced significant legal jeopardy as a result. In these circumstances, Mr. Iyamu should have been advised of his rights to counsel: see Grant , cited above, at para.58. [ 59 ] While there is no need to advise a detainee of their right to counsel in relation to a roadside drinking and driving investigation, that investigation only arose after Cst. Danson and Cst. Keown had detained Mr.

Iyamu in relation to the fight. 3.4 One thing led to another: the breath samples were obtained as a result of the unlawful detention [ 60 ] As a result of the arbitrary detention by Cst. Broad, Mr. Iyamu remained in the area of his vehicle and was directed not to leave the scene. When Cst. Danson and Cst. Keown came upon him, their investigation continued Mr. Iyamu’s detention, and extended to searching him and his vehicle in relation to the fight. During that detention, Cst.

Danson was able to form the grounds for her suspicion that he had alcohol in his body. [ 61 ] Therefore, it was the unlawful actions of the officers that led to the opportunity to investigate the drinking and driving offence. 3.5 Section 24(2)

[ 62 ] The Supreme Court in Grant set out the criteria relevant to determining when the admission of evidence obtained by Charter breaches would bring the administration of justice into disrepute. In assessing and balancing the effect of admitting the evidence on society’s confidence in the justice system, the court must consider: 1. The seriousness of the Charter -infringing state conduct; 2. The impact of the breach on the Charter -protected interests of the accused; and 3.

Society’s interest in the adjudication of the case on its merits. [ 63 ] I recognize that it is difficult for police to measure the extent of the intrusion necessary to investigate and prevent crime when the circumstances are unfolding quickly at a crime scene. However, there was no basis for Cst. Broad to detain Mr. Iyamu for his own safety, and there was no justification for Cst. Danson and Cst. Keown to stop and search vehicles and occupants leaving this fight scene.

These police actions went far too far in the name of “safety”, and stretched the common law powers articulated in Clayton and Farmer far beyond their limit. Fights involving bottles clearly do not equate to disputes involving handguns. In order to preserve public confidence in the rule of law, the court needs to disassociate itself from detention and search that is based on such thin justification. [ 64 ] The impact of the Charter violations on Mr.

Iyamu was significant: first, to a lesser extent, it involved interference with his ability to leave the scene and to film the scene in the manner he wished; and second, more importantly, it involved unwarranted searches of his person and his vehicle. Lastly, the scope of these unwarranted searches extended not only to Mr.

Iyamu, but also to other law- abiding drivers and citizens who were stopped, searched and required to account for themselves, all in the name of a fight with a bottle. [ 65 ] The first two factors strongly favour the exclusion of the evidence. [ 66 ] The last factor favours the admission of the evidence in that, ultimately, the taking of the breath samples themselves amounted to a minimal intrusion into Mr.

Iyamu’s privacy and resulted in reliable evidence. [ 67 ] In weighing and balancing these factors, I find that a reasonable person informed of all the circumstances and Charter values here would conclude that the police use of their powers far exceeded what was necessary to investigate this fight. Admission of the breath samples obtained as a result of the unlawful detentions would bring the administration of justice into disrepute, and the evidence will be excluded. 4. Section 254(2)(b) [ 68 ] Let me say briefly that if I am wrong in my analysis of the detention issues above, I agree with the Crown that Cst.

Danson had the requisite reasonable suspicion that Mr. Iyamu was a driver who had alcohol in his body pursuant s.254(2) (

b) of the Criminal Code . Mr. Iyamu’s breath smelled of alcohol, he told the officer that he had driven back to the restaurant to pick up his relative, and he admitted that he had consumed two tall-boy cans of beer before he left the restaurant. [ 69 ] The demand and provision of the sample were also provided “forthwith”, within the meaning of the

section as explained in R. v. Quansah, 2012 ONCA 123 . After Cst. Danson formed her suspicion at around 1.23 a.m., she made an informal demand that she was going to do a “Breathalyzer” at 1.25 a.m. She then made arrangements for an officer to attend with an approved screening device and retrieved her notebook to make the formal demand to Mr. Iyamu. The formal demand was read at 1.31 a.m., the device had arrived by 1.33, and Mr. Iyamu made several attempts before providing a sample that resulted in a “fail” at 1.37. [ 70 ] This chronology demonstrated that Cst.

Danson made a prompt informal demand once her suspicion was formed, with no more time taken than was reasonably necessary to obtain the device, read the formal demand, and have Mr. Iyamu provide the sample. 5. The Video of the Other Incident [ 71 ] Mr. Iyamu was very upset by the take down and detention of the man that Cst. Broad investigated when he left him, and he felt compelled to film the incident. However, that matter is collateral to the case before me, and I don’t believe it’s necessary or appropriate for me to make findings about what took place.

Without a fuller evidentiary record, I am unable to determine whether the police used excessive force in that matter. [ 72 ] Similarly, while I understand that Mr. Iyamu believes that Cst. Keown deleted the video from his phone, he himself was not sure if he pressed “stop” after he was recording, and did not ever see the video to confirm that he recorded it properly in the first place. Since Cst. Keown was not called as a witness by the Charter Applicant, there is an insufficient record upon which to make findings of impropriety. 6.

Summary [ 73 ] Mr. Iyamu’s rights under sections 9, 8 and 10(

b) of the Charter were violated in this case, and I have concluded that it would bring the administration of justice into disrepute if the resulting evidence of the readings related to the breath samples taken from him were admitted into evidence. [ 74 ] In the absence of the readings, the Crown is unable to make out the charge, and Mr. Iyamu is found not guilty.

Released: to the parties on October 9, 2015; in court on October 21, 2015. Signed: “Justice Leslie Pringle ”