R. v. Vansickle, 2019 ONCJ 777

ONTARIO COURT OF JUSTICE CITATION: R. v. Vansickle , 2019 ONCJ 777 DATE: 2019 10 24 COURT FILE No.: Simcoe 180605 BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID VANSICKLE Before Justice A.D. Hilliard Heard on June 20, 21, July 23, August 13, October 24, 2019 Reasons for Judgment released on October 24, 2019 L. Fritzley............................................................................................... counsel for the Crown J.

Manishen.................................................. counsel for the defendant David Vansickle Hilliard J.: Overview: [ 1 ] The defendant, David Vansickle, was charged with the Criminal Code offence of refusing to comply with a breath demand, contrary to s. 245(5) , fail to provide assistance, contrary to

Part 10, section 196(5)(

a) of the Canada Shipping Act , fail to exhibit masthead light, contrary to

Schedule I, Rule 23(

a) of the Collision Regulations, and fail to exhibit sternlight, contrary to

Schedule I, Rule 23(

a) of the Collision Regulations under the Canada Shipping Act . [ 2 ] The defendant brought a Charter application seeking relief based upon a violation of his rights under sections 7, 8, and 9 and then filed a subsequent factum after some evidence on the voir dire was called, in which document Mr. Vansickle cited a breach of his 10(

b) Charter rights. [ 3 ] After the completion of all the evidence on the voir dire counsel proposed to argue the Charter application and then only proceed with the balance of the trial once the decision on the Charter issues was released. [ 4 ] For the reasons that follow, I have found that there was a breach of Mr. Vansickle’s sections 9 and 10(

b) Charter rights and the evidence that was elicited in breach of those rights should be excluded under section 24(2). Evidence on the Voir Dire : [ 5 ] The evidence of three (3) officers was called by the Crown on the Charter application. [ 6 ] On the night in question, PC Rooney and PC Faria were on marine patrol in Norfolk County. [ 7 ] PC Rooney was aware that this particular night there was to be an unsanctioned boat parade down the Lin River and into the Port Dover harbour.

[ 8 ] PC Rooney testified that he was concerned about the possibility of alcohol consumption in conjunction with the operation of marine vessels during the parade and was hopeful that police presence on the water that night would deter marine operators or passengers on vessels from consuming alcohol. [ 9 ] He testified that he was aware that often there are boaters involved in the parade that are consuming alcohol while on vessels in contravention of the Liquor Licence Act . [ 10 ] PCs Rooney and Faria took a marked OPP marine vessel down to the Port Dover Harbour and docked the boat in a location where they would have a clear and unobstructed view of the boats travelling down the waterway in the boat parade. [ 11 ] The boat parade got under way around dusk, approximately 8:30 p.m. [ 12 ] A boat that appeared to be either at the end of or following the parade of boats in the parade drew the attention of the officers eating their supper on the boat as the officers observed that the boat did not have an overhead mast light or both forward and rear white lights as is required under the Canada Shipping Act ( CSA ). [ 13 ] The boat in question was travelling at a speed of less than 5 kilometres per hour following the boat parade according to both PC Rooney and PC Faria. [ 14 ] Both officers testified that they observed what appeared to be open cans of beer being either held by or consumed by passengers on the vessel. [ 15 ] Both Rooney and Faria testified that they observed what appeared to be a beer can sitting in a cup holder on the boat by the throttle within arm’s reach of the operator. [ 16 ] From the observations of the officers, the boat did not appear to have either an overall mast head light or forward and stern white lights as required by the CSA Regulations. [ 17 ] As a result of these observations, both officers called out to the boat operator to pull over so the boat could be boarded for inspection. [ 18 ] The operator of the boat did not pull the boat over, but instead continued on its course. [ 19 ] PC Rooney testified that the operator of the boat in response to the officers’ request to pull the boat over indicated something to the effect that he couldn’t or didn’t think it was safe to bring the boat in to dock where directed.

PC Faria had no recollection of the operator making any response. [ 20 ] When the boat did not comply with the direction to pull over, the officers decided to give chase in their marked police vessel, the Fantino. [ 21 ] Given the boat parade and the bottle neck of boats that was created as a result of the boats making their way from the creek into the harbour, the Fantino could not be navigated side by side the vessel being pursued. Instead PC Rooney positioned the Fantino’s bow directly astern of the vessel being operated by Mr. Vansickle. [ 22 ] With the Fantino’s bow directly up against the stern of Mr.

Vansickle’s vessel, PC Faria boards Mr. Vansickle’s vessel from the Fantino by jumping onto the rear platform of Mr. Vansickle’s boat. [ 23 ] Once PC Faria was on board Mr. Vansickle’s boat, he immediately went to Mr. Vansickle, who was operating the boat, and advised Mr. Vansickle that he was under arrest for failing to stop for a police officer under the CSA . [ 24 ] PC Faria’s evidence was that the passengers on Mr. Vansickle’s boat were hostile after he boarded, being argumentative, and attempting to prevent the officer from speaking with Mr. Vansickle.

There was no evidence that the passengers were physically aggressive or threatened PC Faria in any way. [ 25 ] Under PC Faria’s direction, Mr. Vansickle docked the boat at the public docks in the Port Dover Harbour. The passengers rendered assistance in tying off the boat to the dock. [ 26 ] PC Faria testified that while on Mr. Vansickle’s boat, he noted a strong odour of alcohol on the vessel. [ 27 ] Once the vessel was docked, PC Faria and Mr. Vansickle got off the boat and Mr. Vansickle was placed in handcuffs to the front while on the floating dock. [ 28 ] Mr.

Vansickle was not provided his right to counsel or cautioned immediately upon his arrest under the CSA . [ 29 ] When questioned as to why the standard right to counsel and caution was not read to Mr. Vansickle immediately upon his arrest, the officer testified that the right to counsel is to be provided as soon as practicable or as soon as it is safe to do so. [ 30 ] Mr. Vansickle was then led by PC Faria down the dock, with the officer holding onto the chains of the handcuffs. [ 31 ] While still on the dock, Sgt Page arrived and assisted PC Faria in escorting Mr.

Vansickle to the waiting police cruiser. [ 32 ] A hostile and angry crowd had begun to gather, including Mr. Vansickle’s mother, many of whom were attempting to interfere with the officers taking Mr. Vansickle into police custody. [ 33 ] Despite the unruly crowd, Sergeant Page described Mr. Vansickle as compliant while being escorted down the dock.

[ 34 ] Together PC Faria and Sergeant Page were able to escort Mr. Vansickle to Sergeant Page’s police cruiser and place him in the back seat. [ 35 ] Once Mr. Vansickle was in the rear of the police cruiser, PC Faria opened the passenger door to speak with Mr. Vansickle and smelled an odour of alcohol coming from Mr. Vansickle’s breath. [ 36 ] In examination-in-chief, PC Faria indicated that upon smelling an odour of alcohol on Mr. Vansickle’s breath and Mr.

Vansickle having “advised” that he had been consuming alcohol, a breath demand was read immediately. [ 37 ] However, in cross-examination, the sequence of the events leading up to the breath demand is more fully canvassed. PC Faria acknowledged that the admission of alcohol consumption from Mr. Vansickle comes in response to a direct question asked by the officer. The question regarding consumption was asked prior to the officer providing Mr.

Vansickle his rights to counsel to which he was entitled pursuant to this arrest under the CSA . [ 38 ] When asked by defence counsel as to whether the purpose of the question about consumption was to determine whether the officer had a basis to make a breath demand, the officer agreed that was the reason. [ 39 ] PC Faria also testified during cross-examination that prior to the admission of consumption being made by Mr.

Vansickle he did not have the making of a breath demand in mind. [ 40 ] When questioned by defence counsel about the timing of the question about consumption being prior to the provision of the right to counsel, PC Faria testified that his question about whether Mr. Vansickle had been consuming alcohol “takes one second” where as reading the standard police issue right to counsel and caution “takes a fair bit of time.” [ 41 ] After having made the breath demand, PC Faria determined that the approved screening device could not be presented to Mr.

Vansickle due to the people around the police cruiser attempting to interfere. The decision is therefore made by PC Faria and Sgt Page to drive the cruiser away from dock to a location just down the street. [ 42 ] During the short drive to the nearby gas station, Mr. Vansickle is still not given his right to counsel. [ 43 ] When questioned in cross-examination as to why PC Faria chose not to read Mr.

Vansickle the standard right to counsel and caution once they were all in the cruiser and officer safety was no longer an issue, PC Faria testified that it was not an option as the breath investigation took priority. [ 44 ] Once the police cruiser arrived at the gas station, PC Faria chose not to remove Mr. Vansickle’s handcuffs while the approved screening device was presented. [ 45 ] Mr. Vansickle did not ultimately provide a suitable sample of his breath as PC Faria determined that Mr. Vansickle was “fake coughing” and not genuinely attempting to blow into the machine properly. Mr.

Vansickle was then arrested by PC Faria for failing to provide a breath sample and was then given his right to counsel. Issues to be determined: [ 46 ] Did the use of handcuffs or the failure to remove the handcuffs invalidate the initially lawful arrest of Mr. Vansickle resulting in an arbitrary detention? [ 47 ] Was Mr. Vansickle’s right to counsel upon arrest violated? [ 48 ] Was the evidence sought to be excluded obtained in a manner that infringed Charter​ -rights? [ 49 ] If the evidence was obtained in a manner then should that evidence be excluded under s. 24(2) of the Charter?

Analysis: Use of handcuffs: [ 50 ] The evidence of PC Faria was that it is standard police procedure to utilize handcuffs on any individual placed under arrest.

Although I accept that may be police protocol, I do not accept that the use of handcuffs is a reasonable and necessary use of force in every situation where an individual is under arrest. [ 51 ] Section 25(1) of the Criminal Code authorizes police officers to use as much force as is necessary in the execution of their duties. [ 52 ] There is a notable lack of jurisprudence on the specific point of whether officers are always justified in using handcuffs when an individual in placed under arrest.

PC Faria acknowledged that an arrest can be effected by the simple touching of the arm of the individual by the police officer. [ 53 ] PC Faria’s justification for the use of handcuffs on Mr. Vansickle was in part that he described Mr. Vansickle s being “passively resistant” and in greater part that the use of handcuffs upon arrest is standard police procedure. [ 54 ] Mr. Vansickle was not under arrest for an offence of violence, nor an arrest under the Criminal Code punishable by indictment. [ 55 ] I do not accept PC Faria’s evidence that Mr.

Vansickle resisted being placed under arrest initially while on board his vessel and

that is the reason why the handcuffs were necessary. [56] Mr. Vansickle complied with PC Faria’s direction to dock the vessel and disembark, all without the need for use of forceoptions by the officer. [57] I find that the reason that handcuffs were placed on Mr. Vansickle after he disembarked and was on the floating dock is becausethat is PC Faria’s standard procedure when placing any individual under arrest. [58] Reliance on police procedure is an insufficient reason for use of force options to be utilized.

The suggestion that the handcuffswere minimally intrusive given that they were secured to the front rather than the back is an inappropriate diminishment of thesignificant intrusion on a person’s liberty that handcuffs represent. [59] Furthermore, in this particular instance, the parading of Mr. Vansickle in handcuffs down a public dock through a crowd ofpeople may have served to inflame the situation. [60] Mr. Vansickle was calm and compliant with police directions.

I find that in those circumstances and the fact that he was underarrest for a CSA violation not a Criminal Code offence, the use of handcuffs was an unreasonable use of force. [61] Mr. Vansickle’s presentation did not provide the officers with any reason to believe that he was a threat to their safety whichwould justify the use of handcuffs in the first instance and the continuing use of handcuffs while Mr. Vansickle was in the rear of thepolice cruiser. [62] PC Faria’s evidence was that he simply did not turn his mind to the possibility of removing the handcuffs from Mr.

Vansicklejust prior to or once he was placed in the back of the police vehicle. [63] PC Faria maintained that the reason for the continuing use of handcuffs while Mr. Vansickle was lodge in the rear of the policevehicle was that he was still under arrest. [64] However, once Mr. Vansickle was placed in the vehicle, PC Faria’s conduct in relation to Mr.

Vansickle is all in furtherance ofhis investigation into impaired operation of a vessel which is analogous to a roadside detention where the use of handcuffs has beenfound in most cases to be unjustified.[1] [65] I find that the continuation of the use of handcuffs on Mr. Vansickle once he is placed inside the police cruiser and is thereafterthe subject of an investigation into impaired operation of a vessel was unjustified in all of the circumstances. Right to counsel (s. 10(

b) of the Charter): [66] PC Faria’s evidence was that he placed Mr. Vansickle under arrest for violating the CSA. The validity of that arrest was notchallenged. [67]

Section 10(

b) of the Charter provides for every person to retain and instruct counsel without delay upon being arrested and tobe informed of that right. [68] PC Faria’s contention was that he was unable to inform Mr. Vansickle of his right to counsel immediately upon his arrest due toissues of PC safety arising from the unruly crowd of people on and in the vicinity of the dock. [69] PC Faria was, however, able to question Mr. Vansickle about his consumption of alcohol almost immediately after placing himin the police cruiser. [70] The Supreme Court of Canada in R. v.

Suberu affirmed that the duty of a police PC to inform a person arrested of their right toretain and instruct counsel is triggered immediately upon detention. The Supreme Court elaborated on the immediacy require​ment toensure that future confusion would not arise: 40 As with "detention", any

interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charterprovision in which it occurs. As this Court noted in R. v. Therens, (SCC), [1985] 1 S.C.R. 613, at pp. 641-42, and in R.v. Bartle, (SCC), [1994] 3 S.C.R. 173, the purpose of s. 10(

b) is to ensure that individuals know of their right to counsel,and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves themvulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detaineesregain their liberty, and guard against the risk of involuntary self-incrimination. 41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination andthe interference with liberty that s. 10(

b) seeks to address are present as soon as a detention is effected. In order to protect against the riskof self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regainingtheir liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(

b) right to counsel is toserve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining theirliberty, the police must immediately inform them of the right to counsel as soon as the detention arises. 42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(

b) creates an ill-definedand unworkable test of the application of the s. 10(

b) right. The right to counsel requires a stable and predictable definition. What

constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10( b ).

Subject to concerns for PC or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter , the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [2] [ 71 ] PC Faria’s evidence was that once the issue of officer safety had abated, he deliberately chose not to provide Mr. Vansickle with his rights to counsel as PC Faria was then engaged in an investigation into impaired operation of a vessel.

PC Faria testified that as a trained breath technician he is aware that alcohol is eliminated from the blood by the minute and he stated that rights to counsel are suspended for persons who are subject to investigation for impaired operation. [ 72 ] As the Crown rightly pointed out, the officer’s notes and his willsay are not evidence before the Court, unless and until the officer adopts what is in his notes and willsay or gives evidence that directly accords with his notes or willsay. [ 73 ] PC Faria’s evidence on the voir dire was in direct contradiction to his notes and willsay on critical issues in relation to the impaired operation investigation.

When presented with the inconsistencies between his evidence on the voir dire and his notes and willsay, PC Faria maintained that the evidence he had given accorded with his memory and his notes and willsay did not serve to refresh his memory such that he wished to alter his testimony. [ 74 ] Defence counsel specifically asked PC Faria as to whether he had observed the operator of the vessel consuming alcohol and the response was that he had not. PC Faria conceded that observation of consumption would have been of such significance that it would have been recorded in his notebook.

However, when defence counsel put to PC Faria his willsay, prepared six weeks after the incident, wherein the officer indicated that he observed the male consuming a can of beer, PC Faria’s response was that he didn’t recall making that observation at the time of his testimony and does not adopt the statement regarding the observation of consumption or indicate that it refreshed his memory. [ 75 ] PC Faria testified that he did not anticipate making an approved screening device demand until after Mr.

Vansickle admitted consumption of alcohol the night in question despite having previously testified that when lodging Mr. Vansickle into the police cruiser he detected a strong odour of alcohol on his breath. [ 76 ] The question by PC Faria to Mr. Vansickle regarding his consumption of alcohol was clearly for investigative purposes and was put to Mr.

Vansickle after he had been arrested, placed in handcuffs, and in the rear of a police cruiser, but prior to being informed of his right to counsel. [ 77 ] By the conclusion of PC Faria’s testimony, I was left with serious concerns about the reliability and credibility of his evidence. [ 78 ] I do not accept as reliable or credible the testimony of PC Faria that he did not anticipate making a breath demand until Mr.

Vansickle’s utterance about alcohol consumption. [ 79 ] It is clear from the evidence that there existed objective grounds upon which PC Faria could have formed a reasonable suspicion sufficient to make an approved screening device demand prior to the question about consumption. [ 80 ] I find that PC Faria tailored his evidence in a misguided attempt to protect the forthwith requirement of his approved screening device demand. [ 81 ] I find that on the evidence before me it is reasonable for me to conclude that the investigation into impaired operation of a marine vessel commenced prior to PC Faria boarding the boat and placing Mr.

Vansickle under arrest. [ 82 ] PC Rooney testified that the reason that he and PC Faria had decided to attend at the Port Dover Harbour on the date in question was specifically because of their knowledge of the boat parade and the likelihood that people would be consuming alcohol while boating. [ 83 ] PC Rooney’s evidence I find leaves no doubt that one of the reasons the officers called out to the operator of the boat to come into shore and dock was to allow the officers to board the boat and investigate whether the passengers and operator of the boat were consuming alcohol. [ 84 ] The importance of the informational component of the right to counsel is to ensure that individuals subject to the coercive power of the state can make a free and informed decision as to whether they wish to cooperate with the police investigation. [ 85 ] It was incumbent upon PC Faria to cease any further investigation after he placed Mr.

Vansickle under arrest until the informational component of the right to counsel was provided. [ 86 ] The circumstances in which PC Faria questioned Mr. Vansickle about his consumption of alcohol are in no way comparable to a roadside detention because PC Faria had placed Mr. Vansickle under arrest. [ 87 ] The suspension of rights under

section 10(

b) of the Charter in instances of roadside detention which was confirmed by the Supreme Court of Canada in Orbanski and Elias [3] as saved under s. 1 does not apply in these circumstances. [ 88 ] The Court makes clear in that the roadside suspension of the motorist’s 10(

b) rights is justifiable under s. 1 of the Charter , “as this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests, and in our case, police questioning about alcohol consumption.” [4] [ 89 ] It is not the reasonable suspicion and subsequent approved screening device demand that results in the suspension of rights

under

section 10(

b) but rather the detention of a motorist at the roadside for a sobriety check that gives rise to the suspension being saved under

section 1 of the Charter. [ 90 ] The Supreme Court of Canada in R. v. Taylor [5] recently reaffirmed the duty of police officers to inform persons under arrest or detention of their right to retain and instruct counsel without delay. [ 91 ] It is clear that there are instances in which officer safety or public safety require a short delay in the provision of the right to counsel by the arresting officer.

However, circumstances that give rise to a justifiable delay in the right to counsel do not provide the officer carte blanche to ask questions, however brief, that are clearly in furtherance of an investigation. [ 92 ] I accept, and indeed it was conceded by defence counsel, that PC Faria was not able to provide Mr. Vansickle with a fulsome and proper recitation of his right to counsel while escorting him from his boat to the police cruiser. Where the officer clearly erred was in determining that asking Mr. Vansickle about alcohol consumption that day was appropriate prior to giving Mr.

Vansickle his rights to counsel. [ 93 ] However brief that interaction was, I find that the purpose of the question was clearly investigative in nature, attempting to elicit evidence from Mr. Vansickle while he was within the coercive power of the state, but having not been informed of his rights. [ 94 ] PC Faria had not even given Mr.

Vansickle the opportunity to assert his right to counsel prior to continuing his investigative measures and there is nothing in the evidence before me to suggest that the right to counsel was suspended in the period between arrest and the investigative question about alcohol consumption. [ 95 ] Furthermore, as I indicated above, I reject the evidence of PC Faria that the he did not intend to make an approved screening device demand until Mr. Vansickle admitted consuming alcohol. I reiterate my findings that the investigation of impaired operation commenced at the outset of the interaction of PC Faria and Mr.

Vansickle, not once Mr. Vansickle was placed into the police cruiser. [ 96 ] The Crown’s submission that the Court may consider Mr. Vansickle declining the opportunity to speak with counsel after being arrested for the offence of refusing to provide a breath sample can support a finding that he likely would have declined even had he been given the opportunity is not logically supported by the evidence. It would be an error, in my view, for me to presume that because Mr.

Vansickle declined an opportunity to speak with counsel after his arrest for Refuse he would likely also have declined his right to counsel had he been provided such upon his arrest under the CSA. [ 97 ] I find that PC Faria’s actions in asking a question in furtherance of an investigation into impaired operation breached Mr. Vansickle’s rights under

section 10(

b) of the Charter . Exclusion of evidence (s. 24(2) of the Charter ): [ 98 ] Having determined that Mr. Vansickle’s

section 8 and 10(

b) rights were violated, I must now determine whether there should be an exclusion of evidence pursuant to s. 24(2). [ 99 ] In order for the evidence to be excluded pursuant to section 24(2) of the Charter , I must be satisfied that the evidence was obtained in a manner that violated a Charter -protected right. [ 100 ] There is a clear causal and temporal connection between the violation of Mr.

Vansickle’s Charter rights and the evidence the defence seeks to exclude – the evidence of failing or refusing to provide a breath sample. [ 101 ] Despite the arrest being initially lawful, the continuation of the use of handcuffs I found resulted in an unlawful detention. [ 102 ] PC Faria questioned Mr. Vansickle about his alcohol consumption in violation of his 10(

b) rights. [ 103 ] PC Faria then chose not to provide Mr. Vansickle his rights under

section 10(

b) of the Charter and instead pursued investigative questioning. [ 104 ] The sequence of events in this case clearly lead from one to the next with the PC first breaching Mr. Vansickle’s 10(

b) rights and then proceeding with an illegal search in violation of Mr. Vansickle’s s. 8 rights. [ 105 ] I am satisfied that any and all evidence arising out of Mr. Vansickle’s interactions with PC Faria after these violations was obtained in a manner that violated a Charter -protected right. [ 106 ] Having found that the evidence was obtained in a manner that violated Mr. Vansickle’s Charter rights, but prior to applying the Grant analysis, I will address the issue as to whether evidence that forms the actus reus of the offence can be excluded under s. 24(2).

Exclusion of evidence that is the actus reus of the offence: [ 107 ] Until the decision of Justice Sheard in R. v. Bullock [6] , there were two competing and seemingly contradictory decisions of the Superior Court of Justice on the issue of whether evidence that constitutes the actus reus of the offence can be excluded under s. 24(2) of the Charter both of which were binding upon this court. [7] [ 108 ] In Bullock , Justice Sheard, sitting on a

summary conviction appeal, clarified the issue for trial judges in the provincial court as follows: the appellant acknowledges that there is competing authority on this issue. In R. v. Bleta and R. v. Gill the courts concluded that s. 24(2) would not operate to exclude the actus reus of the offence. The trial judge considered himself bound by those decisions. A contrary

conclusion was reached in the more recent decision of R. v. O'Shea , 2019 ONSC 1514 . I conclude that the trial judge was correct in his application of the law as it existed at the time of his decision: the cases prior to O'Shea do support his finding in law that a prior Charter breach cannot be used to exclude evidence of the actus reus of a subsequent criminal offence.

Even if this case had been decided after O'Shea , it would be have been open to the trial judge to follow either line of cases. [8] [ 109 ] It would appear then now after the decision in Bullock that there is no determinative binding appellate decision on this issue. [ 110 ] The issue in Bleta was the admissibility of statements of the accused that formed the actus reus of the offence, which would normally have been inadmissible by virtue of the suspension of the right to counsel at the roadside.

That is not the issue before this Court. [ 111 ] In O’Shea the issue was the implementational duty of the police to facilitate an accused contacting a lawyer of their choosing. That is also not the issue before this Court. [ 112 ] Neither Bleta or O’Shea are cases where there is a breach of the right to counsel leading to an unlawful breath demand and are therefore distinguishable on the facts. [ 113 ] I find that there does not exist a blanket exception to the exclusion of evidence that may constitute the actus reus of the offence if that evidence flows directly from a

section 9 violation resulting from an unlawful detention by virtue of unjustified continuation of the use of handcuffs and then a subsequent breach of

section 10(

b) rights flowing from investigative questioning of an individual who had been arrested but not given his rights to counsel. I do not accept that is the current state of the law. [ 114 ] Having determined that the evidence is able to be excluded under s. 24(2) of the Charter , I must continue to the Grant test [9] to determine whether on balance that evidence should be excluded. Seriousness of the Charter -infringing state conduct [ 115 ] I find that the conduct of PC Faria in choosing to prioritize the investigation of his suspicion the Mr. Vansickle was operating a vessel while impaired over complying with his legal obligation to provide 10(

b) Charter rights was egregious. [ 116 ] PC Faria’s evidence was that he deliberately chose not to provide Mr. Vansickle with his right to counsel based upon his determination that his rights were suspended once he formed grounds to make an approved screening device demand. He acknowledged that he knowingly did not provide Mr.

Vansickle with an opportunity to assert his right to consult with counsel prior to making the approved screening device demand. [ 117 ] Courts must not be seen to be condoning police conduct that so flagrantly disregards the rights of accused persons. [ 118 ] PC Faria was unapologetic in his response to questioning during cross-examination in agreeing that he questioned Mr.

Vansickle about his alcohol consumption rather than providing rights to counsel because the former took less time than the latter. [ 119 ] I also note that PC Faria’s evidence as to when the right to counsel needed to be provided to an accused person after arrest was “as soon as practicable.” His evidence was modified in this regard when questioned further to clarify his belief that the right to counsel did not have to be provided immediately if his safety was at risk.

I find that PC Faria’s first response to the question was likely the most sincere expression of his belief as to how soon after arrest right to counsel should be provided. [ 120 ] Such flagrant disregard for the Charter rights of Mr. Vansickle would certainly erode public confidence in the administration of justice. [ 121 ] Similarly, the conversion of the lawful arrest of Mr. Vansickle into an unlawful detention by virtue of the continuation of the use of handcuffs while in the police cruiser is serious. It is made all the more so, in my view, by virtue of the fact that Mr.

Vansickle was then in that restrained state and subject to investigative questioning in breach of his 10(

b) rights. Impact of the breach on Charter -protected interests of the accused [ 122 ] The violation of Mr. Vansickle’s right to counsel in this case deprived him of the ability to make a free and informed choice about whether to cooperate in the police investigation. [ 123 ] The right against self-incrimination is one of the fundamental tenants of our justice system. [ 124 ] Although in cases of roadside detentions, the suspension of the right to counsel has been found to be saved under s. 1 of the Charter , this was not the case of a roadside detention. Mr.

Vansickle had been arrested for a violation of the CSA and had been placed in handcuffs. [ 125 ] The full coercive power of the state had been brought to bear on Mr. Vansickle when he was being questioned by PC Faria. [ 126 ] That coercion was then used against Mr. Vansickle in exactly the manner prohibited, that is to elicit evidence to be used against him in an investigation into impaired operation of a vessel.. Societal interest in adjudication on the merits

[ 127 ] There is an ever increasing number of decisions of this court and higher courts confirming the overwhelming societal interest in the adjudication of cases involving impaired operation. [ 128 ] The potential for death and destruction on our roads and waterways that can be caused by impaired operation of motor vehicles and vessels cannot be overstated. [ 129 ] However, society’s interest in the adjudication of cases must always be considered in the context of the heightened concern of proper police conduct in investigating crimes and in circumstances where use of force options are utilized and right to counsel upon arrest is denied. [ 130 ] The conduct of PC Faria in this case that violated Mr.

Vansickle’s rights under sections 9 and 10(

b) of the Charter must not be sanctioned by the Court by overemphasizing Society’s interest in the prosecution of cases on their merits. Conclusion: [ 131 ] Mr. Vansickle’s rights under s. 9 and 10(

b) of the Charter were violated. [ 132 ] Based upon my analysis above, the evidence obtained by police in violation of Mr. Vansickle’s rights commencing with his statement regarding alcohol consumption and all evidence derived therefrom will be excluded under s. 24(2) of the Charter . Released: October 24, 2019 Signed: Justice A.D. Hilliard