r v. ABDULAHI AJIBOLA QUADRI, 2022 QCCQ 5084

R. c. Quadri 2022 QCCQ 5084 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU CITY OF GATINEAU Criminal and Penal Division No: 550-01-111105-195 550-01-111106-193 DATE: May 13, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE RICHARD MEREDITH, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

ABDULAHI AJIBOLA QUADRI Accused-Applicant ______________________________________________________________________ Judgment on the Motion to Exclude Evidence, pursuant to section 24 (2) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ [ 1 ] The Applicant is charged with 4 counts related to events that occurred on December 16, 2018, in Gatineau, to wit, 1) impaired driving causing bodily harm (section 253(1)a), 2) driving a motor vehicle having over 80 mg of alcohol per 100 ml of blood and did cause bodily (section 253(1)

b) and 255(2.1), 3) resisting a peace officer in the execution of his duties (section 129(a) (e) ) and 4) openly exposing an indecent exhibition in public. [ 2 ] He seeks the exclusion of the evidence following alleged violations to sections 8 , 9 and 10b) of the Canadian Charter of rights and freedoms . FACTUAL BACKGROUND [ 3 ] The charges followed the Applicant’s arrest following an accident that occurred in the early hours of the morning of December16, 2018.

The accident involved a head on collision between the car driven by the Applicant and another vehicle, a Dodge Caravan, driven by Frito Neston, an Uber driver, and two other passengers. [ 4 ] The collision occurred near the middle of the St Raymond exit off Highway 5 North. The position of the vehicles indicates that the Dodge Caravan was properly using the said exit and heading in the right direction whereas the red car, driven by the Applicant, was heading in the exit in the wrong direction. Significant damage was caused to both vehicles. [ 5 ] Police arrived on the scene haphazardly at 3:58 AM.

Cst Stéphane Filiatreault went to the Dodge Caravan, whereas Cst Samuel Carignan immediately went to the red car, in which the Applicant was the sole occupant. [ 6 ] Shortly thereafter Cst Filiatreault joined Cst Carignan, due to the fact that the occupant of the red car would not or could not open the door of his vehicle.

Cst Carignan was informed at that time by Cst Filiatreault that there was a person injured in the Caravan and the occupants confirmed it was a head on collision. [ 7 ] Within approximately one minute the door of the red car, in which all the air bags had deployed, was unlocked and the Applicant occupied the driver’s position in the car. Cst Filiatreault opened the door. Immediately both officers could smell a strong odour of alcohol. [ 8 ] Cst Carignan inquired whether the Applicant was injured, addressing him in French and English (until he sees that the driver is English speaking).

The Applicant does not respond or provide any information suggesting he is injured. The officer observes that he did not appear to be injured nor did he see any blood or apparent injuries on the Applicant. Rather, for Cst Carignan, the Applicant appears slow and confused when asked if he is injured and when asked to step out of the vehicle. [ 9 ] Cst Filiatreault helped the Applicant out the vehicle. Once he is out of the vehicle and Cst Filiatreault releases his arm the Applicant

loses his balance and has trouble maintaining his balance and difficulty standing on his own. He confirmed that he was alone in the vehicle. [ 10 ] Cst Carignan then observes that the Applicant has glossy red eyes. Upon being asked what happened and if he is injured he does not respond but is only interested in urinating.

The officer observes his speech is slurred and slow. [ 11 ] Based on these observations and the fact that the accident occurred in the context of a head on collision wherein the vehicle driven by the Applicant was heading in the wrong direction in an exit of Highway 5 North, Cst Carignan considers that the Applicant is heavily intoxicated by alcohol and deems he has reasonable and probable grounds to believe the Applicant drove his vehicle while his ability to drive was impaired by alcohol. It is 4:03 AM when he proceeds to arrest him for impaired driving. He does so verbally, speaking to him in English.

He also informed him verbally of his right to silence and his right counsel. [ 12 ] The Applicant does not respond to this notice regarding his arrest and his rights and only responds he is not intoxicated and that he really wants to urinate. The officer escorts him to the patrol car and must hold one of his arms because he has trouble walking and keeping his balance. [ 13 ] The Applicant continues to insist that he wants to urinate, to which the officer responds this is not a good time or place for that.

Then, as they arrive at the police vehicle, the officer notices suddenly that the Applicant is holding his penis in his left hand and is about to start urinating on the patrol car. The officer immediately directs him to the shoulder of the road where the Applicant begins urinating. The officer again attempts to explain his rights, to which he responds “It’s just an accident.

It happens” and insists he did not drink and he is not intoxicated. [ 14 ] The Applicant then bends over, grabs a pile of snow in one hand, on which he just urinated, raises it close to the officer’s face and tells him to smell it so the officer will see for himself that it does not smell like alcohol. The officer tells him to drop the pile of snow. [ 15 ] The Applicant then suddenly shakes his arm loose from the officer’s grip. He was not yet handcuffed at the time and is about to walk away. The officer regains his grip quickly. The Applicant starts yelling, resisting and still has snow in one hand.

The officer attempts to handcuff him but he is agitated and resists. Cst Filiatreault went to assist him. A third officer, who happened to arrive about that time, assists as well. In order to handcuff him, the officers have to bring the Applicant to the ground where he is handcuffed. [ 16 ] At 4:08 AM Cst Carignan proceeds to informing him again that he is under arrest for obstruction of a police officer and impaired driving in addition to informing him of his right to silence and right to counsel.

It is apparent that he is not listening to what the officer is saying as he keeps saying it was an accident and that he did not drink. The Applicant is escorted to the police vehicle and is placed in the back on the passenger side. [ 17 ] Once inside the police vehicle Cst Carignan informs him again he is under arrest for impaired driving and obstruction of a police officer. For this purpose Cst Carignan reads the Applicant his rights, from the card provided by the QPP.

Essentially the contents read to the Applicant covers that he is under arrest for driving while under the influence of alcohol, his right to remain silent and that if he wishes to say anything, whatever he says might be taken down in writing and be given in evidence. When asked if he understands he responds that he is not drunk, just distracted. [ 18 ] The officer then reads him the portion related to his right counsel, which includes counsel of his choice without delay and the right to free and immediate legal advice from a duty counsel from legal aid or referral service provided by the Québec Bar.

It is 4:12 AM when the officer read him his rights. [ 19 ] When asked if he understands, he responds “No I am not drunk” and then he is asked if he wishes to contact counsel to which the Applicant responds “No not now”. In the same breath he keeps saying it is an accident, that he did not drink and he is not under the influence. [ 20 ] For Cst Carignan it appears evident he is having trouble getting through to the Applicant.

He does not seem to be listening to what he is saying. [ 21 ] Between 4:12 AM and 4:17 AM Cst Carignan tries to inform him of the reasons for his arrest, his right to counsel and also reads the order to provide a breath sample into the breathalyser. [ 22 ] To his right to counsel, the Applicant also does not seem to be focused on what the officer is saying and keeps repeating the same thing.

However, Cst Carignan does mention that he sensed that he did understand because, in response to the officer reading the card regarding his right to counsel, specifically whether he understood and whether he wished to speak to a lawyer, the Applicant responded “No I am not drunk” and “not now”. [ 23 ] That is when, Cst Giroux, also with the QPP, arrived and joined Cst Carignan and the Applicant in the vehicle. Both officers then try to explain in their own words the breath demand over the next few minutes. [ 24 ] At 4:20 AM paramedics arrive at the scene.

The Applicant is examined by the paramedics, Based on the evidence, at 4:27 AM the Applicant refused to go to the hospital nor did the paramedics inform police that he was injured. Otherwise, there was no evidence introduced during the voir-dire, suggesting the Applicant sustained any injury whatsoever. [ 25 ] At 4:28 AM both officers explain again the breath demand. At this point the Applicant appears to understand and agrees to go the police station. At 4:32 AM he is transported to the police station.

Cst Carignan maintains that the Applicant’s speech is slurred, he has blood shot eyes and appears very intoxicated. During his transport to the police station the Applicant kept repeating he is not drunk and it was just an accident. [ 26 ] At 4:36 AM they arrive at the police station. At this point the Applicant expressed that he wished to speak to a lawyer, with a

legal aid lawyer in particular. At 4:33 AM Cst Carignan contacted a legal aid lawyer and he explained the situation to the lawyer and the Applicant then spoke with the lawyer from 4:46 AM to 4:49.AM. [ 27 ] Once this conversation was finished the Applicant complied with the officer’s demand and provided two samples of his breath into the breathalyser.

(1) Analysis of the Alleged Charter Violations The Applicant contends the following:

i) When arresting without a warrant, Police did not have reasonable and probable grounds to believe he had committed a criminal offence . [ 28 ] The Applicant argues that police assumed he was impaired by alcohol because of his red and glossy eyes, the odour of alcohol emanating from his breath, his slurred speech and that police should have used the ASD to confirm their suspicions. [ 29 ] Police may indeed demand that a person provide a breath sample in an approved roadside screening device if they have a reasonable suspicion to believe a person drove a motor vehicle and had alcohol in their body at the time of driving. [ 30 ] That being said, based on the evidence before the Court, in light of the observations made by Cst Carignan regarding the Applicant’s condition, the arresting officer was way beyond reasonable suspicion to believe that the Applicant only had driven a vehicle while he had alcohol in his body. [ 31 ] The Court listened carefully to Cst Carignan’s testimony.

At the time he had under 2 years’ experience. He appeared sincere in informing the Court, to the best of his recollection, how events and his interactions with the Applicant unfolded the night in question. He had taken contemporaneous hand written notes, which assisted him in his recollection. The Court did not have the impression that he attempted to exaggerate or embellish any of his observations.

Furthermore, while his evidence was more detailed than that of his colleague, Cst Filiatreault, the latter does corroborate much of the observations made by Cst Carignan regarding the initial interactions he had with the Applicant. After considering the totality of the evidence, the Court considers Cst Carignan to be a very credible witness. [ 32 ] Cst Carignan proceeded to his arrest within a couple of minutes of the beginning of his interactions with the Applicant.

During that time and prior to the arrest, Cst Carignan knows there had been a violent head on collision between two vehicles where it appears clear the Applicant’s vehicle was heading in the wrong direction of an exit of Highway 5. He is sitting on the driver’s side, has slurred speech and red and glossy eyes and an odour of alcohol is emanating from his breath. Based on inquiries he made, the Applicant does not appear injured.

Once out if his vehicle, he has trouble maintaining his balance. [ 33 ] While relatively inexperienced as a police officer, Cst Carignan had nevertheless by then been involved in over 5 impaired driving investigations. Based on his observations, it was very obvious that the Applicant was heavily intoxicated by alcohol. Hence, that was the reason he arrested him immediately for driving while his ability to drive was impaired by alcohol.

In the limited time leading up to the arrest it was unequivocal to him that the Applicant was impaired by alcohol. [ 34 ] The Applicant argues that his evidence is contradicted by Cst Filiatrreault on a significant issue, i.e. regarding the amount of time between the moment he was at the other vehicle and moment he assisted his colleague with the Applicant. Indeed Cst Filiatreault does mention it took a few minutes.

However, that part of his testimony must be considered in light of all his evidence and the entirety of the evidence. [ 35 ] More accurately, Cst Filiatreault responded “a few minutes” to a question from defense counsel but also added he could not give an estimate as he did not have any notes on that aspect. [ 36 ] From his evidence it is clear that Cst Carignan took relatively detailed notes of the entirety of his interactions with the Applicant.

Cst Filiatrealt seemed vaguer on reporting what was actually said by his colleague and issues such as times. [ 37 ] The Court considers Cst Carignan much more accurate, in particular on the issue of the time it took between his initial encounter with the Applicant and the arrest. While that time period may appear short, the Court is convinced that Cst Carignan is truthful in what he says about his observations and the short time he was able to make those observations leading him to be convinced the accused drove his vehicle while heavily impaired by alcohol. [ 38 ] In R v.

Storrey [1] in 1990 the Supreme Court of Canada states at page 250: It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. […] In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically they are not required to establish a prima facie case for conviction before making the arrest. [ 39 ] The law establishes a probability standard, which therefore requires more than a mere possibility but that does not require that a police officer be convinced to a point of certainty of a driver’s impairment by alcohol. An officer must acquire grounds that enables a

reasonable person to believe that the person subject of the demand more likely than not drove a vehicle while their ability to do so was impaired by alcohol. [ 40 ] Based on this standard, it is unquestionable that Cst Carignan had the subjective belief that the Applicant had driven his vehicle while he was very intoxicated by alcohol. [ 41 ] Furthermore, applying the objective standard, as required by the Supreme Court of Canada , the evidence is overwhelming that it was more likely than not that the Applicant had driven his vehicle while impaired by alcohol.

The Court is convinced that a reasonable person would, based on the observations reported by Cst Carignan, conclude unequivocally that the Applicant “more likely than not” drove his vehicle while his ability to drive was impaired by alcohol. ii) Alleged violation of the Applicant’s right to retain and instruct counsel without delay, contrary to

section 10(

b) of the Charter. [ 42 ] The Applicant contends that police exercised their powers in a capricious, unjustified and unreasonable manner considering the circumstances and did not advise him at all stages of the reasons for his detention. Furthermore, he argues that police violated his right to retain and instruct counsel without delay and the right to be informed of his right to do so. [ 43 ] Based on the evidence the Court accepts, it is clear that Cst Carignan was dealing with someone who was very difficult to deal with during the process of arresting him.

On multiple occasions, from the initial arrest up until the Applicant was transported to the police station, Cst Carignan attempted to the best of his ability to inform him of his right to counsel. During the verbal recitation of his right to counsel it is clear that what the officer said to the Applicant did not satisfy the informational component of what an officer is required to inform a person detained or under arrest. [ 44 ] As for the overall verbal account of his rights, the Court is satisfied that what was said was sufficient to allow an arrested person to understand the right to silence.

The officer’s intention was to bring the Applicant to the police vehicle. That sequence was delayed by a few minutes because of the Applicant’s own non collaborative conduct. Eventually, he was placed in the police vehicle and the reading of the contents of the card was completed, that informed the Applicant in more detail of his rights (including his right to silence and his right to counsel). [ 45 ] Based on the Court’s review of the contents of the cards read to accused, the informational component of the Applicant’s rights and breath demand was respected and thorough.

In spite of the officer’s efforts, the Applicant appeared singularly focused on repeating the things he had being saying since the start of police’s intervention, that is, he is not intoxicated and that it was just an accident.

In short, the Court is convinced beyond a balance of probabilities that the informational component of his rights was respected at that point. [ 46 ] Furthermore, the evidence the Court accepts is also unequivocal that the Applicant’s behaviour made it difficult, if not impossible, for the Applicant to exercise his right counsel without delay. [ 47 ] Detained persons or persons under arrest must demonstrate reasonable diligence in the exercise of their rights. The police obligations flowing from

section 10(

b) are not absolute. A detainee must be reasonably diligent in exercising his right to counsel. Otherwise the correlated duties on the police to provide a reasonable opportunity and refrain from eliciting evidence may not arise in the first place or may be suspended [2] . [ 48 ] In this case, the Court is convinced the Applicant was not diligent, nor even interested at that point in time in paying attention to what the officer was saying, which was clearly in part due to his state of intoxication.

The Court is convinced Cst Carignan did what he could to inform the Applicant and explain the informational component of his rights. It is the Applicant’s failure to listen and focus on what the officer was saying that lead him not exercising his right to counsel until he was at the police station. [ 49 ] Furthermore, while the Court cannot conclude that the Applicant waived his right to counsel, it is nevertheless clear from the evidence that, once arrested, police did not attempt to elicit any information or responses from him to any questions.

The Applicant made and repeated a number of utterances between the arrest and the moment he was transported to the police station.

These utterances were nevertheless made of his own free will. [ 50 ] Based on the Applicant’s reckless lack of attention to what the officer was saying to him, the Court is convinced on a balance of probabilities there was no violation of his right to silence in such circumstances. [ 51 ] Furthermore, the Applicant contends in his application that he was not able to understand adequately whether police informed him of his rights because police officers were Francophones and himself an Anglophone. With all due respect, there is no evidence as such that this was the case.

The Court was able to hear what the officer said to him in English. While evidently Cst Carignan’s English is not perfect, based on what the Court heard, there is no reason and otherwise no other evidence that he would not have been able to understand, if he had been focused on what the officer was saying. [ 52 ] The Applicant also raises that he asked to speak to a lawyer but this request was refused by police.

While this may be stated in the application, it is unsupported by any affidavit from him and is otherwise unsupported by the evidence accepted by the Court. [ 53 ] That being said, the real issue that must be addressed, in light of the evidence, is whether police failed to inform him accurately of the grounds for arrest and the implications that may have had with regards to the exercise of his right to counsel. [ 54 ] In this case, Cst Carignan was completely transparent that throughout his interactions with the Applicant, he repeated more than once that he was under arrest for driving while his ability to drive was impaired by alcohol. [ 55 ] Yet, Officer Carignan was aware, before arresting him, that there had been a violent head on collision where both vehicles were severely damaged and that one occupant in the other vehicle was injured.

[56] At no time does that information appear to become a consideration that could have warranted arresting the Applicant forimpaired driving causing bodily harm. [57] In the case of Cst Carignan, who had been a police officer for less than 20 months at the time, inexperience may explain whythis additional information regarding an occupant being injured was not factored into the grounds he decided to base his arrest on.However, for Cst Filiatreault, a 30 plus year veteran, who actually heard the ground of impaired driving as the reason for arrest, it issomewhat surprising that he could not have said something in that regard, to provide guidance to his inexperienced colleague at themoment of arrest, considering he knew someone was injured in the other vehicle and that this person could not come out of the vehicle. [58] The Crown argues that the Applicant had sufficient information to understand the extent of his jeopardy and hence there is no s.10(

a) breach, given the information Cst Carignan had at the time, particularly regarding the injuries. [59] Unless the courts take a narrow perspective on how police officers conduct their work and simply consider it acceptable thatpolice officers can in such circumstances work in silos, it is difficult to accept that that the Applicant was not arrested for impaireddriving causing bodily harm in light of the totality of the the information the officers were aware of at the time of arrest or, at aminimum, that there was no information provided at any time to the Applicant about the fact that someone was injured. [60] The Applicant was in Cst Carignan’s presence for over 30 minutes until he was transported to the police station.

Cst Filiatreaultwas in contact with his colleague a second time in order to assist him minutes after the initial arrest when the Applicant was obstructingthe officer in the execution of his duties. Nothing more is said on that occasion about the injured occupant in the other vehicle. In fact, noinformation is provided to the Applicant on the injured occupant at any time between the initial arrest and the moment he is able to speakto a lawyer close to 45 minutes later. [61] The basis for the arrest, communicated to the Applicant, continued to be repeated to him on a few occasions from 4:03 AM to4:27 AM.

When the Applicant is transported to the police station at 4:33 AM and when he finally speaks to a lawyer, all he knows is thathe is under arrest for impaired driving and obstruction of a police officer. [62] While Cst Carignan mentions that he spoke to the legal aid lawyer and explained the situation to him, prior to the accusedspeaking to the lawyer, the officer did not actually say in court what he said to the lawyer.

The Court certainly cannot assume or infer onthe evidentiary record that at least the lawyer was made aware of the potential legal jeopardy the accused was looking at. [63] In Roberts v R[3], the Ontario Court of Appeal stated the following with regards to police’s obligation under

section 10(

a) of theCharter: [78]

Section 10(

a) does not require that detainees be told of the technical charges they may ultimately face. A person will be properlyadvised of the reason for their detention if they are given information that is sufficiently clear and simple to enable them to understandthe reason for their detention and the extent of their jeopardy: R. v. Evans, (SCC), [1991] 1 S.C.R. 869, at pp. 886-88;and R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289, at paras. 16-22.

Put more purposively: “The issue is whether what the accused wastold, viewed reasonably in all the circumstances, was sufficient to permit [her] to make a reasonable decision to decline or submit toarrest”, or in the alternative, to meaningfully exercise the right to counsel under s. 10(b): R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d)225, at para. 125. It is the second part of this purposive test that is at issue here. In my view, Ms.

Roberts had adequate information abouther jeopardy to meaningfully exercise her right to counsel. [64] It should be noted that, while the Ontario Court of Appeal concluded there had been no

section 10(

a) violation in that case,Justice Paciocco stated at par. 77 and 79: [77] In this case, those rules were complied with. Ms. Roberts was informed of her potential jeopardy of the aggravated offencebefore she spoke to counsel and before any steps were taken after her arrest to use her as a source of evidence. [79] Specifically, Cst. Hart told Ms. Roberts shortly after they arrived at the station: “Okay. You’ve been arrested as a result of that,impaired operation of a motor vehicle.

That’s been really our biggest concern right now is making sure that those people are gonna beOkay.” When she asked if she would be released in time to make her teaching engagement at the police college the next day, Cst. Hartstated: “Kim, I can’t make any other assurance, okay. We have to worry about the injuries at the hospital, okay.” When Cst. Hartattempted to make sure she understood what was happening, Ms. Roberts said: “No, no. I understand that if anyone is hurt that, thatcrime….” In context, Ms.

Roberts’ comment was a clear acknowledgment that she knew she could be held responsible criminally ifinjuries were caused. [65] In R c Coté[4], in 2020, the Québec Court of Appeal addressed the issue of whether police had failed to inform the appellant ofthe grounds for his arrest. In that case the appellant was involved in a car accident and he himself was injured. A passenger in his vehiclewas also injured.

Police arrested him for impaired driving and did not specifically inform the accused he was arrested for impaireddriving causing bodily harm. [66] The Court concluded as follows on this issue, finding that the appellant had sufficient information to know her potential legaljeopardy when she communicated with counsel: [5] La question de savoir si l’information initiale transmise par le policier au moment de l’arrestation de l’appelant était suffisantepour lui permettre d’apprécier la gravité de la situation et d’exercer son droit à l’avocat sans entrave peut être tranchée selon le critèredéterminé par Cour suprême dans l’arrêt Smith: […] Ce qui est nécessaire c’est qu’il [l’accusé] possède suffisamment de renseignements pour être en mesure de prendre une décisionéclairée et convenable sur la question de savoir s’il doit communiquer ou non avec un avocat.

L’accent devrait porter sur la réalité de lasituation globale et son effet sur la compréhension de l’accusé plutôt que sur le détail technique relatif à ce qu’on peut avoir dit ou non àl’accusé.

[Soulignement ajouté] [6] La juge a eu raison de conclure que l’appelant « connaissait de façon assez concrète les motifs pour lesquels on l’arrêtait ». Lapreuve fait voir qu’il avait une connaissance générale des événements et des circonstances qui ont conduit à son arrestation. [7] L’appelant se savait impliquer dans un accident automobile, tout comme il ne pouvait ignorer que Mélanie Lévesque avait étésérieusement blessée pour avoir entendu ses cris de douleur après qu’elle eut été projetée à l’extérieur du véhicule sous la force del’impact.

À son arrivée à l’urgence de l’hôpital de Rimouski, on a aussi renseigné l’appelant sur l’état de santé de la blessée. Il s’estd’ailleurs excusé auprès d’elle.

Finalement, l’appelant admet avoir été informé des motifs de son arrestation en lien avec cet accident,soit d’avoir conduit un véhicule avec les facultés affaiblies par l’alcool, une infraction moindre et incluse à celle de conduite avec lesfacultés affaiblies causant des lésions corporelles. [8] Selon sa connaissance des événements, de la condition de Mélanie Lévesque et de l’effet incontournable des faits de l’affaire sursa compréhension de sa propre situation, on peut raisonnablement supposer que l’appelant a pris la décision raisonnée, après avoir exercéson droit à l’avocat, d’obtempérer librement à l’ordre de consentir à un prélèvement d’échantillon sanguin.

De toute façon, la détentionde l’appelant était légalement justifiée du fait d’avoir conduit son véhicule avec les facultés affaiblies, ce qu’il ne conteste pas. [9] Bref, à partir de la preuve, il est permis d’inférer que l’appelant « devait savoir, ou du moins soupçonner fortement » qu’il avaitblessé Mélanie Lévesque et que son geste allait entraîner des conséquences juridiques sérieuses sur le plan pénal. [67] The principles highlighted in these two decisions must be applied by this Court.

The Court cannot however overlook the clearfactual distinctions between the circumstances of those cases and the present case.

In the case at bar, the Applicant was informed solelythat he was under arrest for impaired driving and at no time was he made aware of anyone involved in the accident having been injured. [68] While the state of the law does not in all circumstances go so far as to require police to use any kind of sacred wording andformally arrest a suspect for a specific more serious offence, such as impaired driving causing bodily harm, there is at least an obligationon police to ensure the person is made aware of information related to the circumstances of his arrest so that he has some knowledge ofhis legal jeopardy.

In this case, while the police knew that an occupant in the other vehicle is injured, at no time was he informed of thisfact. [69] Had he been properly informed of the grounds for arrest (that is, impaired driving causing bodily harm) or if he had at least atsome point, prior to exercising his right to counsel, been informed that a passenger in the other vehicle had been injured, the Courtcannot assume how such knowledge, that could clearly impact his legal jeopardy, might have impacted the exercise of his right tocounsel, the nature of the discussions that may have ensued with counsel, the advice he might have received and whether ultimately hemight even have decided not to comply with the breath demand.

Being unaware that an occupant of the other vehicle had been injured,how could he be expected to “meaningfully exercise his right to counsel under s. 10(b)”? [70] While it is tempting to assume that he would have complied with the breath demand because he is legally compelled to do so, itis not for the Court to make such an inference and speculate what strategic decision he might have made, after speaking to counsel,considering the more serious legal jeopardy that could flow from complying with the breath demand, considering the potentiallyincriminating evidence of his actual blood alcohol level that could flow from such compliance. [71] In R v Evans[5], the Supreme Court of Canada stated: The right to be promptly advised of the reason for one's detention embodied in s. 10(

a) of the Charter is founded most fundamentally onthe notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly (1985), (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424. A second aspect of the right lies in its role as an adjunct to the right to counselconferred by s.c10(

b) of the Charter. As Wilson J. stated for the Court in R. v. Black, (SCC), [1989] 2 S.C.R. 138, atpp. 152-53, "[a]n individual can only exercise his s. 10(

b) right in a meaningful way if he knows the extent of his jeopardy". Ininterpreting s. 10(

a) in a purposive manner, regard must be had to the double rationale underlying the right. [72] The Court also stated: When considering whether there has been a breach of s.10(

a) of the Charter, it is the substance of what the accused can reasonably besupposed to have understood, rather than the formalism of the precise words used, which must govern.

The question is whether what theaccused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision todecline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).[6] [73] In the present case, in light of the Applicant’s behavior and the fact it was only after multiple efforts by police outside andinside the police vehicle, to ensure the Applicant understood his rights, police were justified in delaying the exercise to counsel until theApplicant was at the police station. [74] However, based on the state of the law on this issue, the Court concludes that the Applicants’ s.10(

a) right to be informedpromptly of the reasons for his arrest was violated. Police failed to provide vital information to the applicant regarding the fact that anoccupant in the other vehicle involved in the accident was injured. Police knew this from the initial encounter with the Applicant. Yet, atno time does the arresting officer turn his attention to, at a minimum, at least informing the Applicant of this fact, nor does he considerarresting him for impaired driving causing bodily harm.

(2) Analysis under R v Grant: Should the Evidence be excluded? [75] The three-pronged line of analysis under s. 24(2) established in Grant is well settled law. First, the court must consider theseriousness of the Charter-infringing state conduct. Secondly, the Court looks at the impact of that conduct on the Charter-protected

interests of the accused. Third, the Court must consider society’s interest in an adjudication on the merits: Grant, at paras. 72-86[7]. [76] In the R v Stevens[8], in 2016, the Québec Court of Appeal reiterated at par. 89 the approach expressed by the Ontario Court ofAppeal in McGuffie[9], as follows: [62] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion.

The strength of theclaim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in anadjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where theevidence is reliable and critical to the Crown’s case: see R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, at paras. 33-34. [63] In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly towardthe exclusion of the evidence: see e.g.

Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d)241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry willseldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46 , [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, at paras. 98-112.

Similarly, if both of the first two inquiries provide weakersupport for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, atpara. 140. [77] At this stage, the Court must consider the nature of the police conduct that infringed the Charter and led to the discovery of theevidence. Was the infringing conduct serious or deliberate? Is there a need for the Court to dissociate itself from such conduct in order toensure state adherence to the rule of law? [78] In light of the circumstances, the Court considers the

section 10(

a) violation to indeed be a serious one. This is not an area oflaw that has been uncharted in Canada by other appellate decisions including the Supreme Court of Canada. [79] The circumstances of this case are not equivocal. In other appellate decisions where this issue has been addressed, the debatefrequently focused on the sufficiency of information provided by police to an accused regarding a change of circumstances that shouldhave warranted, from defense’s perspective, that an accused be informed of the more serious circumstances of the offence.

In the presentcase, there was absolutely no information provided to the Applicant about the fact that a third party had been injured, which couldsignificantly impact his legal jeopardy, if he ended up being charged with impaired driving causing bodily harm. [80] Furthermore, police knew of this fact since their initial encounter with the Applicant and no details were provided to him.

Theevidence shows that the arresting officer did not even turn his attention to the significance of this information for the Applicant. [81] The circumstances of this violation and the fact that it occurred in relation to a well settled area of law, based on the facts of thiscase, compounds the seriousness of the violation. [82] The Court would not go so far as to suggest this conduct was deliberate. Cst Carignan had less the 20 months experience as apolice officer at the time.

The Court considered him overall to be a credible witness, who treated the Applicant with respect in spite ofhow difficult he was to deal with.

Cst Carignan’s actions, as it relates to the information he provided to the Applicant when he read hisrights, including his right to silence and right to counsel (except that he did not adequately inform him of the full reasons for his arrest),suggest he was not in bad faith. [83] His inexperience may well be a factor that explains why he overlooked the importance of informing him that a third party wasinjured and even consider arresting him for impaired driving causing bodily harm. [84] Nevertheless, considering the seriousness of this violation, the Court deems that it favours exclusion. [85] Under the second tier of inquiry, which involves consideration of the impact of that conduct on the Charter-protected interestsof the Applicant, the Court must consider, among other factors, the extent to which the violation undermined the interests protected bythe infringed right.

The more serious the incursion on those interests, the greater the risk that admission of the evidence would bring theadministration of justice into disrepute. [86] In the present circumstances, we know the Applicant did in fact speak to a legal aid lawyer once at the police station for a totalof three minutes, following which he provided samples of his breath into the breathalyser. The Crown seeks to enter the results of thosetests in evidence. [87] The significance of state compliance with their duties under s 10(

a) lies in

part in its role as an adjunct to the right to counselconferred by s. 10(

b) of the Charter. As the Supreme Court of Canada stated in R. v. Black, "[a]n individual can only exercise his s.10(

b) right in a meaningful way if he knows the extent of his jeopardy"[10]. [88] In this regard, the breach potentially impacted the meaningful exercise of his right to counsel.

While the Court cannot be sure ifthe Applicant would have decided to not provide breath samples, because he was not provided with full information pertinent to thereasons for his arrest, it is likely that he was unable to meaningfully exercise his right to counsel. [89] The potential legal jeopardy for someone arrested and eventually charged with impaired driving is far less serious than someoneconscious that he may be looking at a charge of impaired driving causing driving bodily harm as is the case here.

For theseconsiderations, the Court finds that the extent to which the violation undermined the interests protected by the infringed right issignificant. [90] While the Applicant’s conduct at the site of the accident, throughout his interactions with police, was difficult to deal with forpolice, he did eventually show some reason and agree to go to the police station pursuant to the breath demand. Had he been providedwith full or adequate information by police, it could well have impacted his discussions with counsel and decisions he might have made

afterwards. [ 91 ] For all these considerations the Court also finds the inquiry under this factor favours exclusion. [ 92 ] Finally, the third tier of inquiry requires consideration of society’s interests in an adjudication on the merits. [ 93 ] Here the Court must address whether the truth seeking function of the criminal trial process be better served by admission of the evidence or by its exclusion? [ 94 ] Without question the breathalyser results are crucial to the Crown’s case under the charge of driving with an alcohol level equal or over 80 mg and did cause bodily.

Moreover, there is a strong societal interest in ensuring that motorists who drive while impaired cannot evade the application of the law, particularly in circumstances where people are injured or killed. [ 95 ] While this is a consideration that might objectively favour inclusion, the Court is not blind to the fact that the Crown is proceeding also on a charge of impaired driving causing bodily harm that will still warrant consideration once the trial on that particular count is completed. [ 96 ] In light of concerns already highlighted, the Court deems that it must dissociate itself from state conduct that places a suspect in a situation where he makes a decision to do something that will ultimately incriminate himself where police failed beforehand to provide full reasons for his arrest or full information to enable him to fully appreciate the scope of legal jeopardy and hampers his ability to meaningfully exercise his right to counsel. [ 97 ] Accordingly, after weighing and balancing all of these factors, the Court finds, on a balance of probabilities, that the admission of the breathalyser results as evidence at trial would bring the administration of justice into disrepute. [ 98 ] Regarding the multiple utterances made by the Applicant following his arrest, the Court will not exclude that evidence for the reasons already stated.

The utterances were made by the Applicant without any prompting or any attempts by police to elicit such reactions from him. They were made after he had been informed of his right to silence and counsel. His lack of diligence and sheer recklessness in not paying attention to the arresting officer, that led the Applicant to making repeated utterances, remain relevant to the other charge and were not the result of the s 10(

a) breach. [ 99 ] FOR THESE REASONS , the motion for exclusion of evidence is granted as it relates to the breathalyser results. __________________________________ Richard Meredith, J.C.Q. Me Christopher Bernard Prosecutor Me Sokhna Khadidiatou Ndiaye Defense counsel Date of hearing: November 25, 2020, February 9 and March 16, 2022 [3] Roberts v. R., 2018 ONCA 411 . [4] R. c. Côté, 2020 QCCA 1592 . [9] R. v. McGuffie , 2016 ONCA 365 .