R. v. Babulal, 2020 ONCJ 11

ONTARIO COURT OF JUSTICE CITATION: R. v. Babulal, 2020 ONCJ 11 DATE: 2020·01·06 NEWMARKET BETWEEN: HER MAJESTY THE QUEEN — AND — NATERAM PERSAUD BABULAL JUDGMENT Evidence Heard: November 14,15, December 17, 2019. Delivered: January 6, 2020. Mr. Anthonie Vanden Ende .................................................................... counsel for the Crown Mr. Ranbir Mann................................................................................. counsel for the defendant KENKEL J.: Introduction [ 1 ] Mr. Stefiari was driving northbound on the 400 highway when he noticed a Lexus driving erratically.

It narrowly missed hitting another vehicle. Mr. Stefiari reported the driving to the police via 911 and he provided a description of the Lexus including the license plate number. After they exited the highway, the Lexus drove slowly and stopped well before an intersection waiting to turn even though the light was green. Constable Mohammed arrived just as the accused drove the Lexus up to his house. When the officer went to the driver’s door Mr. Babulal had to make several attempts to grasp the handle to open the door. Once out of the vehicle he was unable to maintain his balance.

His speech was heavily slurred, and he looked “dazed.” He was slow to reply to questions, and at times didn’t respond at all. With the officer’s permission he went to the door of his house to speak to his wife, but when he tried to push the doorbell he missed and pressed the wall almost a foot away. It took him 3 to 4 attempts to actually push the button. Based on those observations and the odour of alcohol coming from Mr. Babulal, he was placed under arrest for impaired operation of a vehicle. Testing on an approved instrument at the station resulted in readings of 297 and 280 mgs/100ml.

The test results led to a second charge under s 253(1) (b). [ 2 ] Mr. Babulal testified that he had difficulty driving on the night in question because his body went into spasm as a result of prior chemotherapy treatment and subsequent medication. While driving he lost sight in one eye and the control of one leg and foot, but he decided to try and make it home. He was wearing sunglasses at night to avoid the glare from the lights of other vehicles. The near- miss on the 400 highway was actually the fault of the other driver.

The observations of the officers at the roadside and onward including slurred speech and balance problems reflect the effects of the spasm. He did not miss the doorbell, but pressed it properly on the first try. He didn’t mention that he was suffering spasms to the arresting officer, the booking Sgt. or the breath technician when asked about his medical condition, but he did say to the breath technician that he wasn’t feeling well and had not taken his afternoon medication.

He didn’t take his medication after he got home from work as he didn’t have a chance to do so during the evening. [ 3 ] The defence conceded that the Crown has proved the accused was the driver of the Lexus observed by Mr. Stefiari. It’s conceded that Constable Mohammed had grounds for a standard field sobriety test that was initially demanded (but not conducted) and that the approved instrument test results were accurate and reliable.

The submissions of both parties identify the following issues for decision: • Whether the Crown has proved the accused’s ability to operate his vehicle was impaired by alcohol beyond a reasonable doubt.

• Whether the Crown has proved that the approved instrument tests were taken pursuant to a valid demand under s 254(3) soas to engage the former s 258(1)(

c) presumption of identity applicable to this case via the

Interpretation Act RSC 1985 c I-21, s 43.

Thedefence submits that the arresting officer forgot to make the approved instrument demand at the roadside and his subsequent demand atthe station was never heard by the accused, both contrary to the provisions of s 258 and s 8 of the Charter. • Whether the detention of the accused for six hours after his breath tests were completed was arbitrary and contrary to s 9 ofthe Charter. • If either or both breaches are established, whether the breath test results should be excluded from evidence pursuant to s24(2). [4] When reviewing the evidence in the context of the Crown’s burden of proof, I’ve applied the framework in R v WD (SCC), [1991] SCJ No 26.

Impaired Operation [5] The civilian witness saw Mr. Babulal driving erratically on the 400 highway. He did not maintain a consistent speed(estimated range 50 to 100km on a 100km/hr major highway). There were three unsignalled lane changes, and in one he almost hit avehicle that was adjacent to him. On Major Mackenzie Drive he drove abnormally slowly then sped up and changed lanes. Mr. Babulalwent into a left turn lane but stopped 15 to 20 metres from the light and he delayed his turn despite the fact that the light was green. Theaccused’s driving caused Mr.

Stefiari to call the police for public safety. [6] PC Yuen intercepted Mr. Babulal’s vehicle near his home at 0042h. He activated his emergency lights to cause it to stop.Mr. Babulal continued into his driveway. Constable Yuen walked towards the car shining his flashlight in the interior, but the car keptmoving as if the officer wasn’t there. Despite the presence of multiple police cars and officers, Constable Mohammed had to knock onthe driver’s window several times before he got Mr. Babulal’s attention. Mr. Babulal was wearing sunglasses even though it was aftermidnight. [7] PC Mohammed saw Mr.

Babulal try to open the car door but he flicked the door handle two or three times, apparentlyunable to grasp it, until he opened the door. Mr. Babulal was “off balance” and unsteady on his feet after he stepped out of the driver’sseat. He immediately leaned back and PC Yeun thought he might fall over. He had to shuffle back and forth to maintain his balance andhe leaned on his car for balance. His upper back leaned on the car, but his hips were 10-15 cm away. There was some drool and an odourof alcohol coming from Mr. Babulal’s mouth.

The officer noticed the accused’s speech was slurred and he thought there might be alanguage difficulty. Mr. Babulal “didn’t appear to be all there”, he appeared, “zoned out” or “out of it.” He was slow to reply toquestions and at times did not reply at all. [8] Mr. Babulal asked the officers if he could go to speak to his wife as her English was better. The officers agreed and PCMohammed noticed that Mr. Babulal was “wobbly” while walking. PC Mohammed and then PC Yuen stayed behind him in case he fell.Mr. Babulal used the handrails for balance, and he swayed left to right as he walked up the stairs.

When he got to the top of the stairs,Mr. Babulal reached out to push the doorbell, but he missed and pressed the brick wall three to four times before he was able to put hisfingers on the button. At that point the officers abandoned plans to conduct a Standard Field Sobriety Test as they had formed grounds toarrest for impaired operation. [9] Constable Ma noticed the accused’s speech was slurred but he also thought there might be a language barrier. However, afterspeaking to the accused further he realized that Mr.

Babulal has a good command of English, and the problems with his speech werelargely due to significant slurring. At booking the accused’s speech was still very slurred, and in that light the officer noticed that Mr.Babulal’s eyes were very glassy. He was unsteady on his feet throughout and stumbled when he took a seat on the bench. Mr. Babulalwas belligerent with the booking Sergeant, talking over her as she was providing instructions and at one point, he pulled his arm awayfrom PC Ma’s grasp during the search.

He was still unsteady and belligerent when lodged in a cell at 0116h. [10] PC Ma’s in-car video shows that Mr. Babulal’s speech was very slurred. The video shows multiple examples of the mentalconfusion referred to by the officers including inattention and requests to repeat information just given, despite multiple patientexplanations. Constable Ma’s video shows the accused’s problems with balance and his leaning on the car for support as described bythe officers. Mr.

Babulal is belligerent at times on the video, consistent with his presentation at booking. [11] Constable Mohammed’s in-car video shows him knocking on the accused’s driver’s window. The flicking at the door handlementioned by the officer is audible. The video is consistent with the evidence of the officers with respect to their observations of theaccused after he exited his vehicle. [12] Mr. Babulal was cooperative with the Breath Technician, but his speech was still slurred and there was a strong odour ofalcohol on his breath. His balance was unsure when standing and walking.

His eyes were bloodshot. [13] At 0240h PC Mohammed attended the cells to assist PC Yuen with taking the accused to the booking area for the service ofdocuments. He noted that Mr. Babulal was still unsteady on his feet and there was still a strong odour of alcohol coming from his mouth.The video shows Mr. Babulal was able to stand by this point, but he put his arm on the booking desk for support. [14] Mr. Babulal testified that he was drinking alcohol in his garage that afternoon while working on his car. He started drinkingabout 1830h and finished by 2230h.

When his lawyer asked him how much he had to drink, he replied that he does not now recall. Oncehe finished working on the car, he decided to take it for a test drive. He drove down Jane and over to the 400 Highway southbound toFinch, then turned back and came home. He estimated the drive would only take 15 minutes from where he lives. [15] Mr. Babulal explained that while driving he got cramps on his right side which he attributed to a past medical condition. Hesaid that he was taking 4 drugs on the day in question. He took his medication in the morning but didn’t take it in the evening.

Thesunglasses that he was wearing at night were meant to block car lights as they prevent him from focusing properly. The cramps went

from his foot muscles to his hands, shoulders and across his face. The right side of his body was numb and he could not see properly out of his right eye. He wasn’t able to press the gas pedal or use his right foot properly. He was only able to hold the steering wheel with one hand. Twice in the past when he had similar cramps he pulled into a parking lot as he wasn’t able to drive safely. This time he decided to try and make it back home. At one point a Ford F150 truck came up fast and cut in front of him. Mr.

Babulal agreed in cross- examination that this was the “near miss” incident described by the independent witness, but he put the blame on the other driver. [ 16 ] When the officer knocked on his window, he wasn’t able to find the door handle as there was a flashlight in his eyes. His problems with balance after he got out were from the ongoing cramps. He didn’t tell any of the officers he was having severe cramps and needed medical help because he didn’t think they would believe him. When he went to speak to his wife, he pressed the doorbell directly and never touched the brick wall.

At the station he started having heart palpitations so he lay down in the cell. When he doesn’t take his medications he risks having a stroke or heart attack. [ 17 ] Mr. Stefiari was an independent witness who was sober at the time he observed Mr. Babulal’s driving. His detailed evidence regarding the near-miss with the pickup truck was logical as described and credible. Mr. Babulal’s vague description of his driving and of the same incident could not reasonably cast any doubt on Mr. Stefiari’s account. The erratic and dangerous driving described by Mr.

Stefiari was not otherwise denied by Babulal. [ 18 ] All of the police officers were acting in a professional capacity and were sober at the time of their interaction with the accused. Their recollection was aided by independent notes made that same evening. They gave detailed evidence which was internally consistent on the central points, and consistent with the reliable external evidence in the police in-car videos, the booking video and the cell video. I accept the evidence of each of the officers as credible and reliable. [ 19 ] Mr.

Babulal agreed in cross-examination that if his driving was actually for the limited purpose he described, it must have been several hours later than he stated given the time he was stopped by the police. Mr. Babulal gave inconsistent evidence with regard to another time when he was asked about when he had to wake up for work the next day (0600 or 0700h). When it was suggested that the earlier time he first stated made it unlikely he’d choose to conduct a test drive after midnight simply to check a sensor light, he gave the later time.

Then when confronted with the contradiction he gave a confused explanation about getting up first at 0600h to take medication then again getting up at 0700h to get ready for work. [ 20 ] Mr. Babulal’s evidence that he did not recall how much he had to drink over the hours that he was working on his car is not credible given the other, less important details about that evening that he says he is able to recall. Mr. Babulal’s evidence was internally inconsistent on this important point.

During cross-examination he repeated that he didn’t remember how much he had been drinking, but later he said to the Crown, “I had a couple of beers.” The assertion of having a couple of beers plainly was intended to suggest a very limited amount of drinking inconsistent with intoxication or impairment. When pressed on the contradiction, he said he wasn’t counting and that he didn’t recall. After that he contradicted himself again by disagreeing with the suggestion that he had more than two beers.

He further disagreed with the suggestion (based on the majority of his own responses) that he was unable to say how much he drank because he simply didn’t remember. Mr. Babulal was evasive, and his responses were contradictory on this central issue. I find he was not a credible witness nor is his evidence reliable given the long period of drinking he described and the evidence of mental confusion while driving, on arrest, at booking and at the station. [ 21 ] Mr. Babulal admitted in cross-examination that it would be the, “height of poor judgment” to work on his car’s brake system while drinking as he described.

After spending the evening drinking, he decided to take the car for a test drive just to check if a sensor light displayed – if true, another plain error in judgment. After a long pause he admitted in cross-examination that there was no need for him to drive after midnight, at night time when lights from other cars made it difficult for him to see and focus. He confirmed that he’d had cramps twice before while driving and he pulled over both times because it was unsafe to drive.

He testified that he was otherwise “fine” to drive that evening and denied that the reason for his errors in judgment resulted from his drinking. [ 22 ] Mr. Babulal’s testimony was inconsistent with the evidence of the officers with respect to missing the doorbell several times. It’s certain that occurred as his inability to press his own doorbell was the key observation that led to immediate arrest where the officers to that point had been considering conducting sobriety testing.

Missing the doorbell was not attributed to any cramp, but it is a circumstance that is consistent with the mental impairment that can result from significant alcohol intoxication. [ 23 ] Mr. Babulal’s evidence regarding the timing of his medication was internally inconsistent. It’s also not logical or credible that he would miss taking medication he said was essential to preventing stroke or heart attack simply because he was working on his car at home.

His evidence on this point was also internally contradictory as he first said he didn’t have time to take the medication (which plainly wasn’t true) and in cross-examination eventually said he forgot. He later admitted in cross-examination that he could forget to take the medication and not suffer harmful effects. The evidence regarding his medication was of some importance as he appeared to relate some of his symptoms that evening to lack of medication. [ 24 ] Mr.

Babulal’s evidence that his driving errors and his problems with balance and movement afterwards, along with his heavily slurred speech all resulted from medical issues was not credible. The cramping he described was said to numb his right side, later described as also causing pain to that side. The officer’s evidence and the video records show no such general affliction to one side, nor is there any evidence of an inability to move the right foot or hand. If Mr.

Babulal did suffer such complete stroke-like incapacity while driving, its not logical or credible that he would choose to continue on, particularly where he said that when that did happen in the past, he had pulled over both times. The evidence as a whole shows that Mr. Babulal had significant problems with balance and movement, and significant mental confusion that was consistent and ongoing well past the point of driving and arrest. That’s not reasonably explained by the medical issues described by Mr. Babulal. The evidence is consistent with alcohol intoxication.

The credible evidence at trial does not show any other possible cause. Intoxication would also explain why Mr. Babulal was apparently unaware of his driving errors and persisted in driving despite a near-miss collision. [ 25 ] In the alternative, even if Mr. Babulal’s evidence were true that he suffered a medical issue while driving that caused the driving errors mentioned, his decision to persist and continue driving while he knew it was unsafe to do so would itself have been a dangerous error.

On his evidence, he’d twice had cramps in the past and both times he pulled over and stopped driving as it was unsafe to

continue. The one circumstance that was different on this night, was that his decision to try to continue driving came after a night ofdrinking. Even if all the problems with driving, movement and balance were somehow reasonably explained by the accused’s descriptionof his condition, the ongoing mental confusion throughout and the errors in judgment to drive after spending an evening drinking and totry and continue driving after a medical event would be reasonably attributable only to the effects of alcohol consumption. [26] I’ve assessed Mr.

Babulal’s testimony in the context of all of the evidence admissible on this count, and I find I’m unable toaccept his testimony as truthful, credible or reliable. It does not leave a doubt either alone or in combination with any other evidence. Even if his evidence were accepted, it would not provide a defence. I accept the evidence of Mr. Stefiari and the officers. The Crownhas proved they were reliable and credible witnesses. Considering all of the evidence as a whole, the only reasonable conclusion is thatthe Crown has proved Mr.

Babulal’s ability to operate his motor vehicle was impaired by alcohol consumption as alleged. I’m unable tofind any credible evidence that could reasonably leave a doubt on this count. Demand as Soon as Practicable [27] PC Yeun advised the breath technician PC Skanes of information that reasonably provided grounds for an approvedinstrument test demand. PC Skanes made that demand to Mr. Babulal after receiving the information necessary to form his groundsfrom PC Yuen. The demand by the breath technician in this case satisfies the requirement for a timely demand – R v Guenter 2016ONCA 572.

The fact that it was PC Yuen who provided the grounds and not the arresting officer did not matter as both were present atthe time of the arrest and both had the required information. The fact that the two officers articulated their grounds differently is not anissue where both had ample evidence to support a demand and both provided a sufficient basis for the demand. [28] The demand by PC Skanes came after Mr. Babulal had spoken with counsel. There was no right to counsel breach alleged,likely because Mr.

Babulal was given a late approved instrument demand by the arresting officer prior to speaking to duty counsel. [29] Constable Ma arrested the accused for impaired operation. He explained the charge, cautioned Mr. Babulal and providedright to counsel advice. He had grounds to make a demand for testing via an approved instrument, but he forgot to do so. He realized hismistake while waiting for duty counsel to respond to a message. He went to the cells and read the approved instrument demand instandard form. He asked Mr.

Babulal if he understood, and the accused responded, “Yes, but why are you doing this to me?” Mr.Babulal spoke with duty counsel 13 minutes later. In cross-examination it was suggested to PC Ma that the accused was asleep when thedemand was read, but then awoke for 1 second just before the officer left the cell. The accused later testified that he was not awake at all,and that he awoke and sat up only when he heard the officer leaving the cell. [30] PC Ma’s evidence that he made contact with the accused and that Mr. Babulal was awake when the demand was read isconsistent with the cell video evidence.

Constable Ma’s testimony that he wouldn’t speak to a person who was asleep is logical andcredible given the accused’s verbal response, the short time since the accused had walked into that cell and the accused’s physicalresponses as shown on the video. Mr. Babulal turned his head to look at the officer after he entered the cell. Mr. Babulal’s evidence wasnot credible generally as it was contradicted by credible external evidence including the cell video. His high degree of intoxicationotherwise casts strong doubt on the reliability of his present recollection. Considering all of the evidence, I must find Mr.

Babulal’spresent recollection is mistaken. Mr. Babulal knew he would be subject to breath testing before he spoke with duty counsel. [31] Even if the analysis were restricted to PC Ma’s late demand, applying the test in R v Grant, 2009 SCC 32, would not lead tothe exclusion of the breath test evidence. It’s conceded that the Crown has proved the breath test readings were accurate and reliable.That evidence is essential to the Crown’s case on one count. Constable Ma’s late demand had no effect on the rights that s 8 was meantto protect where Mr.

Babulal was otherwise under arrest for the impaired offence, the late demand was remedied before he obtained legaladvice, and there were ample grounds for the demand at the time of the arrest. Nothing that followed was necessary to support thedemand. Overholding [32] The approved instrument tests were completed by 0215h. Constable Mohammed went to the cells at 0240h to serve Mr.Babulal with documents including the breath test certificate and notice. Mr. Babulal was not released from the station until 0820h.

Thedefence submits that his detention after the breath tests were completed was arbitrary and contrary to s 9 of the Charter. The defencesubmits that the breath test results should be excluded from evidence pursuant to s 24(2). [33] The breath test process includes the service of documents related to testing. Mr. Babulal could not have been released until0240h. The Staff Sgt. in charge of the station at 0730h decided Mr. Babulal could be released at that time. He called Mr. Babulal’s wifeat 0730 and left a message. The time to 0750h was spent waiting for a return call, and to 0830h waiting for Mr.

Babulal’s wife to attendthe station. [34] The delay in the release of the accused from 0240 to 0730h is alleged to be arbitrary. The defence submits that Mr. Babulalwas sufficiently awake and aware for documents to be served upon him at 0240 so there was no reason to delay his release after thatpoint. The Crown submits that the officers reasonably considered several factors in making the decision to detain Mr.

Babulal further, sothe detention was not arbitrary. [35] There is no universal definition of arbitrary detention because the issue arises in many different contexts – R v Burns, [2000]OJ No 1743 (SCJ), at para 8. In R v Cayer, (ON CA), [1988] OJ No 1120 (CA), the Court of Appeal considered agroup of cases that questioned whether the police had authority to arrest drivers during impaired driving investigations.

In this context,the court held, “… an arbitrary detention for the purpose of these appeals is a detention which is capricious, despotic or unjustifiable.” That definition continues to be cited and applied by appellate and trial courts in many contexts[1], including allegations of overholdingin drinking and driving cases: R v Ruscica 2019 ONSC 2442, R v Bates 2019 BCSC 1010, R v Joseph 2019 ABPC 207, R v Campbell2019 NSPC 44,

[ 36 ] “High blood alcohol concentrations alone can constitute a sufficient reason for continued detention … so long as an assessment is made of the particular accused and other available options are considered.” R v Laroque 2018 ONSC 6475 at para 45 . Detention of a person for her or his own safety and for public safety based on a high blood alcohol level has been held not to be arbitrary: R v Sapusak [1998] OJ No 4148 (CA) , (6 to 7 hour detention for 130mg reading), R v Kavanagh 2017 ONSC 637 (7½ hour detention with 137mg reading).

Most cases post R v Price, 2010 ONSC 1898 , leave refused 2010 ONCA 541 , have required that an individual assessment be conducted even in high BAC cases. [2] [ 37 ] The availability of a third party to pickup the accused is a relevant factor, but it is not determinative. As Regional Senior Justice Heeney explained in Kavanagh at para 41 , “ … the suggestion that an accused with a high blood alcohol content can simply be off-loaded by the police to a civilian is open to valid debate. The comments of Sgt.

MacDonald, that once the individual is in custody she is "on the hook" to look out for his safety, are compelling. If an accused with a high blood alcohol content were released to a friend or family member, and then fell and seriously injured himself due to his alcohol consumption, the police should have a valid concern as to whether they might be held liable for his injuries. Even worse would be the situation where the accused chose to get behind the wheel of a different vehicle after his release, notwithstanding the efforts of his chaperone.” [ 38 ] Circumstances at the station are relevant.

The timing of a person’s release from the station must reasonably depend to some degree upon other events that are happening in the station – R v Tessier 2019 ONSC 1062 at paras 80-88 . However, if release is significantly delayed by ongoing issues within the control of the police such as chronic staffing problems due to a systemic disregard by the police administration, then a breach may result – R v Spracklin 2014 ABQB 88 at para 86 . [ 39 ] In this case Staff Sgt.

Adamson conducted an assessment of the accused with regard to release and considered the following circumstances: • The accused’s high degree of intoxication observed at booking and the fact that he was at times belligerent during that process. • The accused was confused during booking about the right to counsel advice even though it was read to him and was printed on a sign at the booking desk. • His very high blood alcohol readings of 297 and 280mgs/100ml.

Those readings are just below the threshold of 300mgs/100ml where York Regional Police procedure requires the person to be taken to hospital for their own medical safety. • It did not appear to her that the accused could understand the legal terms of the release documents. • She was concerned that if Mr. Babulal were released, he might repeat the offence. [ 40 ] Staff Sgt. Adamson did not simply rely upon the fact of the readings. As she explained, she’s seen some persons who were able to function even at such a high blood alcohol level.

Her direct experience with this accused at booking informed her release assessment. She knew from her 28 years of experience that the time from 0240 to the time her shift ended at 0420h was not enough for the effects of that much alcohol to have diminished. [ 41 ] Staff Sgt. Heatley received the above information from Staff Sgt. Adamson. He considered the following circumstances regarding release: • The accused’s blood alcohol level which he estimated based on information he’s received would decline at a rate of 15mgs/hour. • The accused’s own safety given the very high readings and his level of intoxication.

Staff Sgt. Heatley was concerned Mr. Babulal could injure himself if released by losing his balance while walking, by wandering into traffic, or vomiting while asleep without supervision. • The safety of the public if Mr. Babulal were to be released in that condition, in particular where he was at times belligerent with another officer. • The need to ensure that Mr. Babulal did not drive again that morning while still in an intoxicated condition. • The need to ensure that Mr. Babulal understood the legal obligations imposed on his release including the terms of the Promise to Appear. [ 42 ] Staff Sgt.

Heatley identified a document marked as Exhibit #7 as standard considerations regarding release that are posted at 4 District. He understood that those release considerations result from recommendations by the courts. The factors listed in Exhibit 7 are circumstances Justice Durno identified in Price at para 93. Based on the readings and the information received from Staff Sgt. Adamson that the accused was still not ready to be released at 0420, Staff Sgt. Heatley did not attend the cells at that time.

He sent PC Ma to check on the accused with regard to release at 0620 and was advised that the accused was not ready for release. Even though PC Ma did not make a note of that attendance, I accept Staff Sgt. Heatley’s evidence that he sent the constable to the cells for that purpose and received that report. Just before 0730h Staff Sgt. Heatley attended the cells to determine the accused’s condition. While he estimated the accused still had a high blood alcohol concentration (BAC) of approximately 200mgs, he found that Mr.

Babulal was alert and responsive enough to understand the release process including the Promise to Appear. He called Mr. Babulal’s wife at 0730 and left a message. The time after the call to release at 0820h was spent waiting for the accused’s wife to respond and attend the station. [ 43 ] The defence submits that if the accused was alert enough for documents to be served at 0240h, he should have been released then. The officers-in-charge reasonably explained the difference between the receipt of documents and understanding the legal obligations that arise pursuant to a promise to appear.

That was only one of several factors considered by the officers in relation to release. The defence has pointed out that the officers considered similar, but different factors. Each officer was tasked with making their

own decision regarding the decision to release. It’s not necessary that they cite identical criteria or place the same weight on each factor.What’s required is that the decision to detain or release is considered on an individual basis, applying objective criteria. [44] The evidence shows that both officers conducted an ongoing assessment of the accused’s fitness for release based on relevant,objective criteria. Given the high degree of intoxication and the accused’s high BAC they reasonably waited appropriate periods of timein between release checks. Staff Sgt. Heatley explained that Mr.

Babulal was otherwise checked by an officer every 30 minutes to ensurehis safety and comfort. When Mr. Babulal was fit for release, the Staff Sgt. called his wife to assist. The accused was released despite thefact that the Staff. Sgt. estimated he still had a high BAC because he was able to understand the release process and his wife wasavailable to address the other concerns posed by his condition. There’s no evidence that the detention of Mr. Babulal was capricious,despotic or unjustifiable. There’s no evidence that Mr.

Babulal’s rights under s 9 of the Charter were breached. [45] In the alternative, even if there were a s 9 breach, this is not a case where a stay of proceedings pursuant to s 24(1) would bean appropriate remedy. The breach could not have any impact on trial fairness. The minor prejudice to the accused from the delayedrelease would not be extended or aggravated by the conduct of the trial or its outcome. There would be an alternate, appropriate s 24(1)remedy available (sentence reduction).

This would not be the, “clearest of cases” where the integrity of the justice system is implicatedsuch that a s 24(1) stay of proceedings would be required. [46] In R v Rowan 2019 ONSC 7099, Justice Barnes held that s 24(2) does not provide a means to exclude breath test evidencefor Charter breaches that occur after the testing is completed.

At paragraph 49 His Honour held, “The practical effect of the Jenningsapproach is that a remedy for a breach occurring after the collection of the breath sample is properly considered under s. 24(1) of theCharter.” Other appellate courts have arrived at the same result after considering the limiting words of the s 24(2) remedy – that theevidence to be excluded must have been “obtained in a manner that infringed or denied any rights” guaranteed by the Charter.

See: R vSapusak, [1998] OJ No 4148 (CA), R v Tessier, 2019 ONSC 1062, R v Cheema 2018 ONCS 22 , 2018 ONSC 22, R v Garrido-Hernandez 2017 ONSC 2552, R v Kavanaugh, 2017 ONSC 637. In R v King, 2019 ONSC 5748 the court took a different view. HerHonour held that s 24(2) now applies to post-testing breaches given the expanded

interpretation of “obtained in a manner” in R v Pino2016 ONCA 389. [47] This is not a case where there were multiple Charter breaches that engage the “chain of events” criteria mentioned at para 72in Pino. Even if a portion of the detention in this case was found to be arbitrary, there would be no connection between the investigationof the offence including breath testing and the breach that followed. If s 24(2) were applied, the analysis would be similar to that in King.The admission of the breath test evidence would not bring the administration of justice into disrepute.

Conclusion [48] The Charter applications are dismissed. Mr. Mann tested every aspect of the Crown’s case in a diligent and thorough fashion,but I find that the Crown has proved both counts beyond a reasonable doubt. [49] The “Over 80” count (as it then was) is stayed. There will be a finding of guilt on the impaired driving count. Delivered: January 6, 2020. Justice Joseph F. Kenkel [1] R v Gill 2016 ONCA 667 is a recent example that didn’t involve drinking and driving. [2] R v Kavanagh 2017 ONSC 637, is an exception.

At para 40 the court held that the Court of Appeal decided in Sapusak that highBAC levels are sufficient reason in themselves for detention without a further individualized analysis. The court held para 42 that Priceis contrary to binding authority on that point.