R. v. Ruscica, 2017 ONCJ 864

CITATION: R. v. Ruscica , 2017 ONCJ 864 COURT FILE No.: Central East – Newmarket – 4911-998-16-05514 DATE: 2017-12-18 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MATTHEW JOHN RUSCICA Before Justice Marcella Henschel Heard on October 30, 2017 Reasons for Judgment on s. 8, 9, and 10(

b) Charter Applications Robert Dechellis................................................................................. counsel for the Crown Alan D. Gold...................................... counsel for the applicant Matthew John Ruscica HENSCHEL J.: A. Overview [ 1 ] The applicant, Matthew Ruscica, is charged with operating a motor vehicle while impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code , and operating a motor vehicle “over 80”, contrary to s. 253(1)(

b) of the Criminal Code . He alleges that his rights under sections 8, 9 and 10(

b) of the Charter were breached and seeks the exclusion of observations of the applicant made by the investigating police officer, statements and utterances to the police, and the breath test results taken pursuant to a Criminal Code s. 254(3) demand. [ 2 ] The parties agreed to hear the Crown’s case and evidence on the Charter applications in a blended hearing. The Crown called PC John Oliva, the investigating officer and PC Lam, the breath technician. The defence did not call additional evidence on the Charter applications. [ 3 ] I have concluded that the applicant’s rights under s. 8, 9, and 10(

b) of the Charter were not breached, and, in the alternative if there were any breaches that the evidence should not be excluded under s. 24(2) of the Charter . On December 11, 2017 I delivered oral reasons for judgment with written reasons to follow. These are my reasons for judgment on the Charter applications. B.

Summary of the Evidence [ 4 ] On July 17, 2016, at 2:11 a.m. PC Oliva received information from dispatch that an individual was following an impaired driver who was driving a truck on Bayview Avenue in Richmond Hill. PC Oliva was given the licence plate number for the vehicle and located the truck going through a McDonald’s drive-through. At 2:18 a.m. PC Oliva approached the driver of the truck, subsequently identified as Matthew Ruscica, the applicant. [ 5 ] PC Oliva asked the applicant where he was coming from and if he had anything to drink. He replied “nothing”. PC Oliva

smelled alcohol coming from his mouth and at 2:20 a.m. he formed the suspicion that he had alcohol in his system. He told the applicant that he could smell alcohol, and the applicant responded that he had one drink. PC Oliva asked the applicant for his driver’s licence, ownership, and insurance. The applicant provided the documents. PC Oliva believed his movements were slow and controlled when he produced the documents, and he observed some minor redness in the applicant’s eyes. [ 6 ] PC Oliva told the applicant that he was being detained for possible impaired driving.

He advised the applicant of his rights to counsel and cautioned him. He did not read the standard wording from the back of his notebook. Rather, he simply told the applicant that he could contact a lawyer if he wished to do so, and that he did not have to say anything if he did not want to. He did not provide information about the availability of duty counsel at that time. The applicant acknowledged that he understood but did not indicate whether or not he wished to contact a lawyer.

PC Oliva testified that if the applicant had requested to speak to a lawyer he would have taken him to a secure place to give him an opportunity to do so. He did not discuss with him whether he had a cell phone that he could use to call a lawyer if he wished to do so. [ 7 ] He asked the applicant to exit his truck and go with him to the police cruiser. PC Oliva noticed that the applicant was walking cautiously as he walked to the cruiser. [ 8 ] Four minutes after forming the reasonable suspicion that the applicant had alcohol in his system, at 2:24 a.m.

PC Oliva read the applicant the approved screening device (ASD) demand. In cross-examination, PC Oliva agreed that he never told the applicant that anything had changed since he told him that he was being detained for possible impaired driving. PC Oliva explained that the request for documents and the request for the applicant to walk to his cruiser was part of the investigation to determine if the applicant was impaired. He was gathering evidence of possible impairment. At that point he decided to make an ASD demand to check his blood alcohol content.

He agreed that was because he was investigating a possible case of impaired driving. In re-examination, PC Oliva testified that when investigating an impaired driving offence the failure of a roadside screening device test can be taken into account. [ 9 ] PC Oliva had an ASD with him in his cruiser. He noted that the ASD was an Alcotest 6810 with serial number AREH 0287, calibrated on July 10, 2016 by officer #1890. PC Oliva has been a police officer for 5 years and is familiar with the ASD. He has used the ASD since 2013. [ 10 ] PC Oliva did a self-breath test to show the applicant how to provide a sample.

He received a reading of “0”, which meant that he did not have any alcohol in his system. He had not been drinking that day and he believed that the ASD was working properly. [ 11 ] He provided the ASD to the applicant. The applicant’s first attempt to provide a sample was unsuccessful. PC Oliva had not reset the device so the test was not valid. He reset the device and at 2:25 a.m. the applicant blew into the device successfully and it registered a fail.

This caused PC Oliva to believe that the applicant’s blood alcohol content exceeded 100 mg/100 ml of blood. [ 12 ] After receiving the fail reading on the ASD, at 2:26 a.m. PC Oliva placed the applicant under arrest for operating a motor vehicle while over the legal limit and searched him incident to arrest. He agreed that searching the applicant “took about a minute”. He placed the applicant in the rear of his police cruiser and at 2:30 a.m. he told him that he was being arrested for operating a motor vehicle with a blood alcohol content over 80 mg/100 ml of blood.

He read the applicant the rights to counsel from the back of his notebook as follows: I am arresting you for impaired driving over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario legal aid plan for assistance. 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

Do you wish to call a lawyer now? [ 13 ] When he asked the applicant if he understood, Mr. Ruscica confirmed that he did and when he asked the applicant if he wanted to call a lawyer now, he asked if he could just go home. He then indicated that he did want to call a lawyer. PC Oliva asked the applicant if he had a specific lawyer or wanted to call duty counsel.

The applicant indicated he did not have a specific lawyer and that he wanted to call duty counsel. [ 14 ] PC Oliva next read the applicant the caution and at 2:31 a.m. read the applicant the breath demand pursuant to s. 254(3) of the Criminal Code . . [ 15 ] At 2:34 a.m. PC Oliva left the scene and drove the applicant to the police station in Richmond Hill. He arrived at 2:40 a.m. At 2:43 a.m. the applicant was paraded and booked by acting Staff Sergeant Reid. PC Oliva testified that during the booking process the applicant requested to speak to duty counsel.

In cross-examination, PC Oliva agreed that he could not recall the details of the conversation with the applicant about contacting a lawyer, and could not recall whether the Staff Sergeant explored contacting a private lawyer with the applicant. However, he agreed that generally if an individual does not have a specific lawyer the individual will be put in contact with duty counsel. [ 16 ] After the booking process was completed at 2:56 a.m. the applicant was placed in the cells, and at 2:57 a.m. PC Oliva called duty counsel and left a message. [ 17 ] At 3:06 a.m. duty counsel returned the phone call.

At 3:08 a.m. the applicant spoke with duty counsel. The call with duty counsel ended at 3:10 a.m. and PC Oliva turned the applicant over to the qualified breath technician, PC Lam. [ 18 ] PC Lam arrived at 2 District at 2:39 a.m. and prepared the approved instrument. At 3:03 a.m. PC Oliva relayed the grounds for the arrest and breath demand to him. At 3:11 a.m., after the applicant was turned over to him, PC Lam read the applicant the s. 254(3) demand. [ 19 ] PC Lam noted that a strong smell of alcohol was coming from the applicant’s breath. He noted that his face was red.

He saw that his eyes were red rimmed and blood shot. At 3:22 a.m. the applicant provided the first sample of his breath into the approved instrument and a reading of 150 mg/100 ml of blood was obtained. At 3:45 a.m. a second reading of 130 mg/100 ml of blood was

obtained. [ 20 ] Following the completion of the breath tests, at 3:49 a.m. PC Oliva returned the applicant to the cells. His last contact with the applicant was at 5:05 a.m. when he served the applicant with the certificate of analysis and other documents. [ 21 ] PC Oliva was not responsible for the release of the applicant. He expected that the applicant would be released by the Staff Sergeant once it was safe to do so. In cross-examination he agreed that the applicant was generally “not too bad”. He believed that the applicant was cautious in his movements but was not sloppy.

There was a shift change at 5:00 a.m., and PC Oliva believed that the Staff Sergeant that came on duty would be the officer responsible for the applicant’s release. PC Oliva could not recall if he spoke with the Staff Sergeant that came on duty at 5:00 a.m. about the applicant’s condition. [ 22 ] The officer who released the applicant did not testify. However, the Promise to Appear indicates that the applicant was released at 8:16 a.m. C. Position of the Parties [ 23 ] The applicant alleges that his right to counsel under to s. 10(

b) of the Charter was breached because prior to making the ASD demand PC Oliva advised the applicant that he had the right to counsel but thereafter failed to fulfill the corresponding implementational duty to provide him with a reasonable opportunity to consult a lawyer. [ 24 ] Mr. Gold submits that the applicant was not initially detained for the purpose of providing a roadside screening device test. Rather, he was detained for an impaired driving investigation. Mr.

Gold submits that at no point did the officer tell the accused that the initial detention to investigate possible impaired driving was over and that he no longer had a right to a lawyer because the nature of the detention had changed when he was detained to provide a roadside screening device test. Mr. Gold submits that it is the road side screening device demand that suspends the constitutional right to contact a lawyer, and because the officer did not detain the applicant for the purpose of obtaining an ASD test that the applicant’s right to counsel was not suspended. Mr.

Gold submitted that as a result PC Oliva violated that applicant’s s. 10(

b) rights by questioning him and gathering evidence during the period he was required to hold off until the applicant was given a reasonable opportunity to consult a lawyer. He further submits that the breach of the Applicant’s right to counsel resulted in the applicant providing incriminating evidence against himself, which was then used by PC Oliva to form grounds to demand the applicant provide breath samples into an approved instrument.

This in turn resulted in a breach of the applicant’s right to be secure against unreasonable search and seizure as guaranteed under s. 8 of the Charter . [ 25 ] The applicant further submits that his right to counsel of choice was violated because when he did not identify a specific lawyer, the police, rather than providing him with an opportunity to identify a specific lawyer, immediately steered him to duty counsel.

The applicant submits that the police should have afforded him an opportunity to identify a lawyer of choice and that the failure to do so was a violation of the right to counsel of choice. [ 26 ] The applicant submits that he was arbitrarily detained contrary to s. 9 of the Charter because although the investigation was complete by 5:05 a.m., he was “overheld” when the police continued to detain him for a further 3 hours until 8:16 a.m.

The applicant submits that having established that the investigation was complete at 5:05 a.m., the evidentiary onus shifted to the Crown to justify the additional period of detention and they have failed to do so. [ 27 ] The applicant submits that there is a temporal nexus between the alleged overholding and the breath tests such that the evidence was obtained in a manner that breached the applicant’s Charter protected rights. When considered in combination with the breaches of s. 8 and 10(

b) of the Charter , the applicant submits that the evidence should be excluded under s. 24(2). [ 28 ] In response the Crown submits that there was no breach of s. 10(

b) of the Charter . The officer did not err in advising the applicant that he had the right to counsel, and the officer was entitled to delay providing the applicant with a reasonable opportunity to exercise the right to counsel because he was properly conducting an impaired driving investigation and in that context the implementational duties were suspended. The officer was entitled to briefly detain the applicant for the purposes of investigating whether he was impaired by making observations for indicia of impairment, by making an approved screening device demand, or both.

Although the officer was not required to provide the applicant with the right to counsel during this period, this does not mean that he was prohibited from providing the applicant with the right to counsel. [ 29 ] The Crown further submits that the applicant’s right to counsel of choice was not violated. There is no evidence that the accused wanted a private lawyer or that he was not satisfied with the provision of duty counsel. The police were not required to urge the applicant to search for a private lawyer. Duty counsel are lawyers and the advice provided by duty counsel fulfills the objectives of s. 10(

b) where an individual has not requested a specific lawyer. [ 30 ] In respect of the alleged s. 9 breach, the Crown submits that the applicant has the onus to establish on a balance of probabilities that he was arbitrarily detained and has failed to do so. The Crown submits that there is insufficient evidence for the court to conclude that there was an arbitrary detention. The applicant has not provided any evidence about the reasons for the three hour detention. Neither the applicant nor the officer that released him were called.

In addition, the Crown submits that the breath tests and observations preceded the alleged breach and was not “obtained in a manner” that infringed or denied any right or freedom. Governing Legal Principles, Analysis, and Conclusions D. The Right to Counsel: Did the police violate s. 10(

b) by seeking to elicit incriminating evidence before providing the applicant with a reasonable opportunity to exercise the right to counsel? [ 31 ]

Section 10(

b) provides that “everyone has the right on arrest or detention…(

b) to retain and instruct counsel without delay and to be informed of that right”. The onus is on an applicant to establish a breach of the right to counsel on a balance of probabilities. [1] [ 32 ] The content of the right to counsel was summarized by the Supreme Court of Canada in Bartle as follows:

i.) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; ii.) If a detainee has indicated a desire to exercise this right to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and iii.) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in urgent and dangerous circumstances). [2] The first duty is the informational component of the right to counsel.

The second and third duties are the implementational components of the right to counsel and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. [3] Failure to comply with either of the components of the right to counsel frustrates the purpose of s. 10(

b) and results in a breach of the detainee’s rights. [ 33 ] Ordinarily the police must inform the detainee of the right to counsel immediately upon arrest or detention, subject to concerns for officer or public safety. [4] The duty is immediate because a person who is detained is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining their liberty. [5]

Section 10(

b) aims to ensure that a detainee has an opportunity to be informed of their rights and obligations under the law, and to obtain advice on how to exercise those rights and perform those obligations. [6] [ 34 ] Where a detainee has indicated a desire to exercise his or her right to counsel the police have a duty to facilitate access to a lawyer “without delay”. [7] The arresting officer is under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity or the “earliest practical opportunity”.

Where there has been a delay in facilitating the requested access to a lawyer , the Crown bears the burden of proving that the delay in facilitating the requested access to a lawyer was reasonable in the circumstances. [8] [ 35 ] However, the s. 10(

b) right to counsel is not absolute. It is subject, under s. 1 of the Charter , “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. [ 36 ] In Thomsen [9] , the Supreme Court of Canada held that the predecessor to the roadside screening device demand now found in s. 254(2) (s. 234.1 at the time) implied a limitation of the right to counsel because the operational nature and purpose of an ASD demand meant that there was no opportunity for contact with counsel prior to compliance with an ASD demand. In Thomsen the court held that the limitation of the s. 10(

b) right constituted a reasonable limit prescribed by law within the meaning of s. 1 of the Charter . [ 37 ] However, the applicant asserts that I should find that the applicant was not acting under section 254(2) of the Criminal Code because the officer: • originally told the applicant he was detaining him for possible impaired driving (not for the purposes of administering an approved screening device test); • did not make the ASD demand until 4 minutes after forming the reasonable suspicion that the applicant had alcohol in his system, • provided the rights to counsel, which are not required to be given prior to a s. 254(2) demand.

As a result, the applicant submits that the right to counsel was not subject to the limitation identified in Thomsen , and the officer had a duty to inform the accused of the right to counsel, and once he did so was required to provide a reasonable opportunity for the accused to exercise the right to counsel and to hold off in gathering any evidence. The applicant submits that there was a clear s. 10(

b) violation when PC Oliva questioned the applicant and gathered evidence during the period when he was required to hold off eliciting evidence. [ 38 ] I am satisfied that these issues are fully addressed by the majority reasons of the Supreme Court of Canada in R. v. Elias , R. v. Orbanski [10] and the statutory provisions of section 48(1) of the Highway Traffic Act . [ 39 ] In R. v. Elias and R. v.

Orbanski the Supreme Court made clear that the limitation of the right to counsel implied in an ASD demand made under s. 254(2) is not the only limitation on the right to counsel in the context of an impaired driving or “over 80” investigation. [ 40 ] The issue before the court in R. v. Elias ; R. v.

Orbanski was whether sobriety screening steps could be conducted by the police (including questions asked of Elias and Orbanksi about their earlier alcohol consumption, and in Orbanski’s case physical sobriety tests) without complying with s. 10(b), and if so whether such a limit on the right to counsel was justified under s. 1 of the Charter . [ 41 ] The Supreme Court concluded that the screening measures used in each case for assessing the sobriety of the driver were authorized by law and incompatible with the exercise of the right to counsel by the detained motorist at the roadside.

The Court held that the resulting limitations on the s. 10(

b) right to counsel were reasonable and demonstrably justified under s. 1 of the Charter . [ 42 ] The court made clear that prior to making a s. 254(2) demand to provide a breath sample into an ASD, an officer may take reasonable steps to determine whether the grounds exist to make such a demand. The Supreme Court observed that : • It is settled law that the police have the authority to check the sobriety of drivers. Checking the sobriety of drivers is one of the purposes underlying the general statutory vehicle stop powers. [11] • s. 48(1) of the Highway Traffic Act , R.S.O. 1990, c.

H.8, expressly authorizes police officers to check if there are grounds to make a demand under s. 254 of the Criminal Code .

Section 254 of the Criminal Code authorizes the police to make a demand on proper grounds for suitable samples for testing in an approved screening device or in a breathalyzer. Screening measures such as questioning drivers about prior alcohol consumption and requesting them to perform sobriety tests were found to be authorized under s. 48(1) of the

Ontario Highway Traffic Act . [12] • Under the general stop provisions found in the Manitoba legislation the police had the general power, indeed the duty, to check the sobriety of Orbanski and Elias and that, logically, certain measures could lawfully be taken to fulfill this duty. [13] • The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside.

It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted. [ 43 ] Justice Charron speaking for the majority rejected the conclusion that unless a statute prescribes specific investigatory measures, a police officer has a duty to provide motorists with their right to counsel before taking any steps to assess their sobriety, stating as follows: For example, in Mr.

Elias's case, my colleague takes the view that police officers can only ask motorists about alcohol consumption before they contact counsel if legislation permits it. Presumably, the same reasoning would apply in respect of any general question designed to assess the sobriety of the driver. On that approach, a police officer would be well advised to provide motorists with their right to counsel as soon as they rolled down their window. In my view, this would result in longer and often unnecessary detentions.

While statutory provisions such as the recent Manitoba amendments can provide more guidance and certainty on the scope of permissible investigatory measures, it is my view that many of the powers set out in the amendments are implicit in the existing Manitoba legislation. The recognition of these powers is not carved out of whole cloth from common law principles to suit the occasion - - these powers are part of a longstanding statutory scheme that permits police officers to stop drivers and check their sobriety.

The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to the purpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that common law principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomes particularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective.

The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman by that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference". [14] [ 44 ] At paragraph 49 the court stated as follows: To return to the case-specific inquiry relevant to this appeal, in Orbanski , the officer asked the driver if he had been drinking, to which Orbanski answered that he had had one beer at two o'clock.

Similarly, in Elias , the driver was asked whether he had been drinking, and he replied that he had. In both cases, the driver's answer was part of the information used by the officer to form the reasonable suspicion necessary to request a roadside breath sample in the case of Elias, and the reasonable and probable grounds necessary to request a breathalyzer test in the case of Orbanski. The questions were relevant, involved minimal intrusion and did not go beyond what was necessary for the officer to carry out his duty to control traffic on the public roads in order to protect life and property.

In my view, the police officers were authorized in each case to make such inquiries. The police officer was also authorized to ask Orbanski to perform a physical sobriety test at the roadside…. [15] [ 45 ] In respect of the implied limit on the right to counsel the Supreme Court held as follows: In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screening techniques utilized in these cases.

If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand.

Similarly, the limit must necessarily be prescribed during the screening measure that is the functional equivalent to the roadside screening device, namely, a technique conducted with the very objective of determining whether there are reasonable and probable grounds justifying a s. 254(3) demand for a breath or blood sample.(emphasis added) [16] [ 46 ] PC Oliva was responding to a complaint of impaired driving.

I am satisfied that in his initial dealings with the applicant, prior to making the roadside screening device demand, PC Oliva was investigating the sobriety of the applicant through a number of simple screening measures. I am satisfied that the screening measures properly included the conversation he had with the applicant about his consumption of alcohol, the physical observations he made while the applicant was in his vehicle, the request for the production of documents, and the brief observations PC Oliva made when he asked the applicant to step out of his vehicle and walk to the cruiser.

I am satisfied that all of these steps assisted him to investigate the sobriety of the applicant, to determine whether he was impaired, and/or whether he had the required reasonable suspicion to make an approved screening device demand, or the reasonable grounds to make a breath demand under s. 254(3) . These investigative purposes are not mutually exclusive. They can coexist, and are authorized by law.

Notably, an officer suspecting the presence of alcohol may demand that a detainee submit to standard field sobriety tests under the current wording of s. 254(2) as an alternative to the ASD testing or along with the ASD test. [17] The right to counsel was limited in accordance with s. 1 of the Charter during these screening measures. [18] [ 47 ] PC Oliva informed the applicant of the reason for his detention. Initially he advised the applicant that he was investigating his sobriety by telling him that he was being detained for possible impaired driving.

Subsequently, through the formal wording of the ASD demand, he informed the applicant that he was being detained for an approved screening device test. These two purposes, to investigate

impairment, and to complete and ASD test, are not mutually exclusive. An individual can be detained to investigate whether he or she is possibly impaired, and in the furtherance of that purpose also be detained for the purpose of obtaining an approved screening device sample. [ 48 ] In my view there was no error in the officer informing the applicant that he was being detained for possible impaired driving. He was being investigatively detained for possible impaired driving.

The officer testified that when investigating an impaired driving offence the failure of a roadside screening device test can be taken into account. [ 49 ] That PC Oliva provided the informational component of the right to counsel (in part) prior to making the ASD demand, even though he was not required to, did not mean that the limitation of the rights to counsel was no longer in effect, that he was required to immediately fulfill the implementational component, or that he could not take further screening steps. Notably in R. v. Elias , R. v.

Orbanski , prior to Orbanski performing the sobriety tests he was told that the tests were voluntary and that he could contact a lawyer before performing them. The officer offered him the use of a cell phone. The officer did not inform Orbanski about the availability of free legal assistance. As a result, as in this case, the informational component as mandated in Brydges [19] was initially deficient. Orbanski declined to contact a lawyer and agreed to perform the sobriety tests. He failed the tests and was arrested for impaired driving.

He was subsequently provided with complete rights to counsel and given an opportunity to contact counsel at the police station. At no point did the Supreme Court suggest that by informing Orbanski in part of the rights to counsel at the scene that the limitation of the rights to counsel was no longer in effect. [20] [ 50 ] The actions of the officer in this case were authorized by law.

The officer was authorized to stop the vehicle and conduct an initial investigation into the sobriety of the driver which could include screening to determine whether a demand should be made under s. 254(2) or 254(3) of the Criminal Code . Thereafter the conduct of the officer fell within the ambit of s. 254(2) . During the initial screening of the applicant, and once the demand was made under s. 254(2) the right to counsel was limited in accordance with s. 1 of the Charter , and PC Oliva was not required to fulfill either the informational or implementational duties of the right to counsel. E.

Was the applicant’s right to counsel of choice violated? [ 51 ] Included in the s. 10(

b) right to counsel is the right to counsel of choice. [21] It is important than an individual who is detained or arrested and under the control of the police have a reasonable opportunity to receive legal advice, not from any lawyer, but from someone they know and trust if there is a specific lawyer that they wish to contact. [ 52 ] Where an individual is in police custody and has identified a lawyer that he or she wishes to contact, because the police control an accused’s ability to take steps to contact the lawyer of his choice, the police are obligated to pursue that constitutional right with all the same effort and diligence that the accused himself would apply were he or she not in custody. [22] [ 53 ] However, this is not a case where the applicant identified or requested to speak to a specific lawyer.

He did not have a “counsel of choice”. Nonetheless, the applicant submits that even though the applicant did not know or request a specific lawyer, and agreed to speak with duty counsel, that the police breached his right to counsel because they directed or “steered” him to duty counsel. [ 54 ] I disagree. The police did not breach the applicant’s right to counsel of choice.

The police did not violate his rights by directing him to duty counsel when he did not or could not identify a specific lawyer. [ 55 ] In circumstances where a detainee has not identified a specific lawyer, or requested the opportunity to locate a private lawyer and has agreed to speak with duty counsel, the right to counsel of choice does not require the police to suggest or provide the means by which the applicant might locate a private lawyer.

The requirement for the police to take reasonable steps to enable a detainee to reach the lawyer of their choice is triggered by the indication by the detainee that they want to speak with a specific lawyer, or at the very least pursue identifying private counsel. [23] [ 56 ] In Willier the Supreme Court made clear that the duty to provide a detainee with a reasonable opportunity to consult with “counsel of choice” is triggered by the request of a detainee to speak with a specific lawyer. The court stated: Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning.

If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. (emphasis added). [24] [ 57 ] Reasonable steps where a detainee has identified a specific lawyer they wish to contact may require the police to do things such as: • asking the person in custody if they have a telephone number, or know anyone who has a telephone number for the lawyer they want to contact; • giving the person in custody access to their cellular phone or smart phone, where they advise that the lawyer’s number is stored on the phone; • conducting an internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or email address for the lawyer, and calling, texting, or emailing these numbers; • using the internet to search any available online directories for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory; • and using any available conventional paper based directories, both for lawyers and for phone numbers more generally. [ 58 ] Such reasonable steps are required to be taken by the police because they are the type of steps that an individual could take to locate and access their lawyer of choice if they were not in custody.

However, where the detainee does not request a specific lawyer, the

right to counsel of choice and the duty to provide a reasonable opportunity to consult with counsel of choice is not engaged. [ 59 ] The applicant’s submission that the police violated the applicant’s rights by directing the applicant to duty counsel when he did not know or request a specific lawyer, does not sit well with the clear direction from the Supreme Court of Canada that, in provinces where there is a duty counsel system in place, there is a positive duty on the police to inform detainees of this service. [25] The fact that the police informed the applicant of duty counsel when he did not identify a specific lawyer is consistent with the police duty to ensure a detainee is aware of the availability of immediate and free legal consultation. [ 60 ] Duty counsel exists for the very purpose of providing individuals, such as the applicant who do not know a lawyer to contact, with the ability to obtain a form of initial

summary legal advice, irrespective of financial means or of time of day or night. In Bartle , the majority of the Supreme Court stated as follows: In Brydges , the majority drew a careful distinction between Legal Aid plans, which provide longer term legal assistance to accused persons who meet prescribed financial qualifications, and “duty counsel”, which is a form of initial,

summary legal advice available to all detainees upon request, irrespective of financial means or of time of day or night. As the majority explained at p. 213, …duty counsel are intended to provide with immediate but temporary advice and assistance those persons who cannot afford a lawyer or those who do not know a lawyer . Indeed, knowledge of the existence and availability of duty counsel is perhaps of primary importance since financial status is generally not considered as a pre-condition to obtaining the services of duty counsel.

Often duty counsel bridge the gap between arrest and the retention of a lawyer who will deal more fully with a case.

Although in an administrative sense, Legal Aid and duty counsel tend to be part of the same overall program run by the provinces as part of their constitutional responsibility for the administration of justice, Legal Aid and “ Brydges duty counsel” ….represent two distinct forms of legal service. [26] [ 61 ] In Bartle the Supreme Court considered the information that must be provided to a detainee to ensure that if a detainee does not know a lawyer or cannot afford one, the detainee does not decline to exercise his or her right for that reason. Mr.

Bartle was not informed of the immediate availability of duty counsel or of the 1-800 number to contact duty counsel and testified that he had declined to contact a lawyer because he thought that he could only contact a lawyer during normal working hours, and did not know who to call at that time of night. It is in this context that the court made clear that the informational duty of the police includes an obligation to inform detainees about how to access the available duty counsel and legal aid services, including the toll free number for duty counsel.

The Court stated that: Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of the detention. In case there is any doubt, I would add here the basic information about how to access available services which provide free, preliminary legal advice should be included in the standard 10(

b) caution.

This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away. [27] Nowhere in Bartle did the Supreme Court indicate that the police must go further and inform an individual who does not know a lawyer of the steps that might be taken to identify a private lawyer. [ 62 ] The applicant raised no concern at the time he was dealing with the police about his contact with duty counsel, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police affected his ability to assert those rights. [28] Unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to proceed with an investigation. [29] [ 63 ] Notably, in McCrimmon , the conduct of the police could, as in this case, be characterized as “steering” or directing the accused to duty counsel.

In McCrimmon the accused initially indicated his desire to speak with a specific counsel of choice. The officer called the lawyers number, but did not reach the lawyer and left a message. Mr. McCrimmon told the officer that he did not know if the lawyer would call back, and that he was the only lawyer he knew. The police officer asked McCrimmon if he would like to call a legal aid lawyer, and he responded that he would, but said that he preferred to speak to his specific lawyer. Nonetheless, the officer contacted duty counsel and McCrimmon spoke privately with duty counsel for five minutes.

No further attempts were made by the police to locate the lawyer’s number or to contact the lawyer. During the course of the subsequent interview McCrimmon stated that he did not want to discuss the case until he had spoken with his lawyer, and at another point reiterated his request to speak with his own lawyer. The officer declined these requests, stating that he had already exercised his right to counsel by speaking with duty counsel and had expressed satisfaction with the advice received. McCrimmon did not dispute this but asked to be taken back to his cell.

The interview continued during which McCrimmon emphasized the absence of his lawyer. He subsequently admitted his involvement in a series of offences against a number of women. [ 64 ] Against this factual backdrop a majority of the Supreme Court of Canada concluded that there was no violation of the accused’s right to counsel of choice finding that “While Mr. McCrimmon expressed a preference for speaking with Mr. Cheevers, the police rightly inquired whether he wanted to contact Legal Aid instead when Mr. Cheevers was not immediately available. Mr.

McCrimmon agreed, exercised his right to counsel before the interview began, and expressed satisfaction with the consultation”. [30] No where did the Supreme Court suggest that it was incumbent on the police to propose or provide an opportunity for McCrimmon to identify other private counsel before suggesting and facilitating access to duty counsel. [ 65 ] I find that the police did not interfere with the applicant’s right to counsel of choice by informing him of and facilitating access to duty counsel. They were required to do so. Mr. Ruscica was not told that duty counsel was his only choice.

There is no evidence that his decision to speak with duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Ruscica was aware of duty counsel and compliance with that duty did not interfere with his right to counsel of choice. He indicated that he wanted to speak with a lawyer but did not know or identify a specific lawyer.

He was properly presented with a route by which he could obtain legal advice, an option he voluntarily chose to exercise, and after speaking with duty counsel he made no indication that he was not satisfied with his opportunity to contact counsel. [31] The applicant has failed to establish on a balance of probabilities that there was a

violation of the right to counsel of choice under

section 10(

b) of the Charter . F. Was there a breach of s. 8 of the Charter ? [ 66 ] While the onus is generally on the accused to establish breaches of Charter rights on a balance of probabilities, breath samples are obtained via a warrantless search and warrantless searches are prima facie unreasonable.

As a result the Crown bears the persuasive burden of establishing that the search was authorized by law. [32] [ 67 ] Section 254(2) of the Criminal Code permits an officer to demand that a detainee provide “forthwith a sample of breath” into an approved screening device where the officer has reasonable grounds to suspect that a person has alcohol in their body, and that the person has, within the preceding three hours, operated a motor vehicle.

If PC Oliva did not have reasonable grounds to suspect that the applicant had alcohol in his body then the demand was not authorized by law, and the taking of the ASD sample violated the applicant’s rights under s. 8. [33] [ 68 ] Section 254(3) of the Criminal Code permits an officer to demand breath samples where the officer has reasonable and probable grounds to believe that the person is committing or at any time within the preceding three hours, has committed an offence under

section 253 of the Code as a result of the consumption of alcohol. If PC Oliva did not have reasonable grounds to believe that the Applicant’s ability to drive was impaired by alcohol or that his blood alcohol content exceeded the legal limit when he made the breath demand, then the s. 254(3) demand was not authorized by law, and the taking of the breath samples violated the applicant’s rights under

section 8. [34] In this case the failure of the roadside screening device was essential to the formation of PC Oliva’s reasonable grounds for the s. 254(3) breath demand.

If PC Oliva lacked the requisite grounds to make the approved screening device demand, and if, as a result, he could not rely on the fail result, he would also lack the required reasonable grounds to make the s. 254(3) demand. [ 69 ] A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.There must be a constellation of objectively discernible facts that give the officer reasonable grounds to suspect. [35] The fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely held subjective belief is insufficient.

Instead, to justify such a search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent judicial assessment. [36] The Criminal Code requires that an arresting officer must subjectively have a reasonable suspicion on which to base an ASD demand and those grounds must, in addition, be justifiable from an objective point of view. [ 70 ] For the reasons set out above, I am satisfied that PC Oliva was entitled to take steps to investigate the sobriety of the applicant when he initially approached him prior to making the ASD demand, and that he was entitled to rely on his observations, and the utterances of the applicant in support of the grounds to make the demand. [ 71 ] I am satisfied that PC Oliva had the required reasonable grounds to suspect that the applicant had alcohol in his body and had, within the preceding three hours operated a motor vehicle, as required for a lawful demand under s. 254(2) .

I am satisfied that the searches under s. 254(2) and 254(3) were authorized by law and that there was no breach of s. 8 of the Charter . [ 72 ] PC Oliva testified that when he initially approached the vehicle he asked the applicant if he had anything to drink. He replied “nothing”. PC Oliva smelled alcohol coming from the applicant’s mouth and at 2:20 a.m. he formed the suspicion that “he had alcohol in his system”. He told the applicant that he could smell alcohol, and the applicant responded that he had one drink.

When he asked the applicant for his documents he noted that the applicant’s movements were slow and controlled and he observed some minor redness in the applicant’s eyes. [ 73 ] After he informed the applicant he was being detained for possible impaired driving, and provided him with an abbreviated form of the rights to counsel and caution, he asked the applicant to go with him to his truck. He noticed he was walking cautiously.

He then read the applicant the approved screening device demand. [ 74 ] Although the officer stated that he suspected that the accused had alcohol “in his system”, rather than stating that he had reasonable grounds to suspect that the applicant had “alcohol in his body”, I am satisfied that the officer had the required subjective belief that the applicant had alcohol in his body and that it was objectively reasonable based on the smell of alcohol coming from the applicant’s mouth, the fact he initially misled the officer about his consumption of alcohol, his subsequent admission of alcohol consumption, and the physical observations made prior to the demand. [ 75 ] There are no magic words that must be recited in order to support the making of a demand.

It is not necessary for the officer to repeat the exact wording of s. 254(2) in explaining his or her belief at trial as long as the evidence otherwise shows the officer had a reasonable suspicion that the driver had alcohol in his or her body. The assessment must be made on the totality of the evidence. [37] [ 76 ] These facts are distinguishable from Dignum [38] , relied upon by the applicant. In Dignum , the officer testified that he had a suspicion that the accused’s ability to operate a motor vehicle was impaired.

The court concluded that the words the officer used were not consistent with the thought process required under s. 254(2) , and noted that the officer admitted that he did not observe any signs of impairment prior to making the roadside screening device demand. The court found as a fact that the officer did not understand the test to make a demand under s. 254(2), and as a result a reasonable person could not determine whether he held the required subjective state of mind of having reasonably suspected that the accused had alcohol in his body.

I am satisfied that in this case the officer understood the grounds required to make a demand under s. 254(2), had the required subjective belief that the accused had alcohol in his body, and that his belief was objectively reasonable. [ 77 ] I am also satisfied that the sample was provided “forthwith”. The officer initially formed the reasonable suspicion at 2:20 a.m. Within four minutes the officer made the demand under s. 254(2) at 2:24 a.m. He had the ASD with him in his cruiser. At 2:25 a.m. he received a sample which resulted in a fail, and the applicant was arrested by 2:26 a.m.

I do not accept that the four minute period that transpired between when PC Oliva first suspected that the applicant had alcohol in his system and when he made the demand took the demand outside of the scope of s. 254(2) . During this time PC Oliva made further brief observations of the applicant, advised him that he was being investigatively detained for possible impaired driving, provided abbreviated rights to counsel, and asked the applicant to

walk to his cruiser. PC Oliva was proceeding cautiously and taking simple steps to confirm his reasonable suspicion to make an ASD demand. An officer must be allowed a reasonably period of time to briefly process what the best investigative next step should be.

The facts are distinguishable from the twenty minute delay that occurred in Kahlon [39] , relied upon by the applicant, in which the officer intentionally delayed making the screening device demand because he did not have an ASD with him, did not know when it would arrive, and, when the second officer arrived with the ASD the second officer started the investigation afresh. [ 78 ] I am also satisfied that PC Oliva, after receiving the fail result on the ASD, had the requisite reasonable grounds to arrest the applicant for “over 80” and to make a breath demand under s. 254(3) .

The facts of this case are again distinguishable from Dignum . In Dignum the court concluded that the Crown did not establish that the officer had the required reasonable grounds to make the s. 254(3) demand because the officer did not give evidence about what he understood a “Fail” result to mean. In the present case PC Oliva noted that the ASD was calibrated on July 10, 2016 by officer #1890. PC Oliva was familiar with the ASD. He did a self-breath test to show the applicant how to provide a sample.

He received a reading of “0”, which indicated that he did not have any alcohol in his system and was consistent with the fact that he not been drinking that day. He testified that he believed that the ASD was working properly. More significantly, he testified that as a result of receiving the fail result he believed that the applicant’s blood alcohol content exceeded 100 mg/100 ml of blood. I am satisfied that PC Oliva had reasonable grounds to believe that the applicants blood alcohol content was over 80 mg/100 ml of blood and as a result that he had committed an offence under s. 253 of the Code .

As a result I am satisfied that the breath demand under s. 254(3) was authorized by law. As a result, I have concluded that there was no breach of s. 8 of the Charter . G. Was the applicant arbitrarily detained contrary to s. 9 of the Charter? [ 79 ] For a detention to be “non-arbitrary” it must be authorized by a law which is itself non-arbitrary. [40] I am satisfied that the applicant was lawfully arrested without warrant.

PC Oliva had reasonable grounds to believe that an offence under s. 253 had been committed. [ 80 ] What is at issue is the continued detention of the applicant upon the completion of the investigation. The release from custody by a peace officer or officer in charge is governed by sections 497 and 498 of the Criminal Code .

Section 498 requires an “officer in charge” to release a person in custody “as soon as practicable” by one of the forms of release set out in s. 498(1)(a-d); except in accordance with s. 498(1.1) which provides:

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii.) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [ 81 ]

Section 497 addresses release from custody by the peace officer who arrested the person, and 497(1.1) mirrors section 498(1.1).

In this case s. 498 is applicable because it was the “officer in charge” as defined in s. 493 that was responsible for the release of the applicant. [ 82 ] The intent of s. 497 and s. 498 is to limit the amount of time spent by an accused person in detention before being released or brought before a justice of the peace. [41] [ 83 ] In the context of a detention pursuant to s. 497(1.1) or s. 498(1.1), the applicant bears the legal burden of establishing an alleged s. 9 breach on a balance of probabilities.

The significance of the burden of persuasion means only that “in a case where the evidence does not establish whether or not the appellant’s rights were infringed the court must conclude that they were not”.

In this context, this means that the applicant bears the legal burden of establishing that the detention was not in compliance with s. 497(1.1) or s. 498(1.1). [42] [ 84 ] Although the legal burden is upon the applicant, where an accused presents a prima facie case of arbitrary detention, and the Crown seeks to justify the detention on the basis of s. 497(1.1) or 498(1.1), an evidential burden may arise requiring the Crown to explain the reasons for the detention.

The evidential burden arises because it is the police officers who have the exclusive knowledge of the reason for the detention. [43] [ 85 ] I am not satisfied that a prima facie case of arbitrary detention has been made out by the applicant such that the evidentiary burden shifted to the Crown to justify the detention under s. 498(1.1). [ 86 ] In Iseler [44] , the Ontario Court of Appeal concluded that the appellant had presented a prima facie case of arbitrary detention that called for some answer by the Crown. However, this case is factually very different.

In Iseler the accused testified in support of the s. 9 application. The evidence established that the accused was detained for a period of eleven hours following breath tests which produced readings of 177 mg/100 ml of blood and 175 mg/100 ml of blood. The accused was unwell during the period of detention and sought the assistance of the police. Despite his attempts to get the attention of officers, he received no assistance. During the eleven hour period the only contact the accused had with any officer was one hour prior to his release when an officer threw a sandwich into his cell.

There was also evidence that the accused had sufficient funds to take a taxi home and that his wife could have picked him up at the police station.

[ 87 ] In addition, in Iseler , in the written response to the s. 9 application the Crown expressed the intention to call the cellblock Sergeant that was on duty during most of the period of the accused’s detention, but failed to do so. In this context the applicant was not faulted for failing to call the Sergeant. [ 88 ] In this case, the length of detention relied upon by the applicant in support of the alleged s. 9 breach is much shorter.

A period of approximately four and a half hours passed from the time of the completion of the breath tests to the release of the applicant and three hours and ten minutes passed from the time of the service of the certificate of analysis and related documents to the time of release. The applicant completed the breath tests, with readings of 150 mg/100 ml of blood and 130mg/100 ml of blood at 3:45 a.m. He was lodged in the cells at 3:49 a.m. and the certificate of analysis and related documents were served by PC Oliva at 5:05 a.m.

The applicant relies on the promise to appear to establish that he was released from custody at 8:16 a.m. [ 89 ] The applicant relies on PC Oliva’s admission that the accused was “not too bad” at the police station in terms of physical indicia of impairment. PC Oliva testified that the applicant was cautious in his movements but was not sloppy and there were no significant physical indicators of impairment throughout PC Oliva’s contact with him. [ 90 ] However, neither the applicant nor the cell block sergeant on duty between 5:00 a.m. and the applicant’s release testified.

As a result I do not know: • What factors the “officer in charge” considered in holding the applicant until 5:00 a.m. • Whether the applicant has any prior criminal record or outstanding charges. • What contact if any the applicant had with the Sergeant or any other officer between 5:05 a.m. and his release at 8:16 a.m. • Whether the applicant was awake or asleep during the period of detention after he received the documents. • Whether the applicant had anyone available to pick him up, or was in contact with a responsible third party to pick him up, or whether any delay resulted from waiting for a third party to attend the station to pick him up. • Whether the applicant had money to pay for a taxi, or other service to take him home. [ 91 ] In the circumstances, I am not satisfied that the applicant has established that the delay of three hours and ten minutes from the time of service of the necessary paper work (or four and a half hours from the completion of the breath tests) establishes a prima facie case of arbitrary detention that requires explanation.

The accused’s blood alcohol content was approaching twice the legal limit. It is a reasonable inference that some period of detention was required prior to his release for his own safety and that of the public. [ 92 ] In Iseler , the court emphasized that “there is a considerable difference between a detention of five hours and a detention of eleven hours in which the accused was ignored for the entire period of time, except for a five second interlude at the tenth hour”. [45] The court was distinguishing the facts in Iseler from the facts in Burns [46] , a case in which the

summary conviction appeal court held that the accused had not discharged the onus of establishing an arbitrary detention on a balance of probabilities where there was a 5 hour delay in the release of the accused. [ 93 ] My conclusion that a prima facie case of arbitrary detention has not been established is further supported by the findings of the court in Garrido-Hernandez [47] , in which the court considered a claim of ineffective assistance of counsel alleged to have caused a miscarriage of justice.

On appeal it was alleged that the trial counsel should have argued that the accused’s s. 9 rights had been breached because he was not released from the station for a period of six and a half hours following his refusal to provide a breath sample. On this issue the Court stated as follows: …simply pointing to the time on the Promise to Appear does not establish a breach of the Charter . There is no evidence from the appellant at all on this point. It is his burden to establish that there was a Charter violation. It was also his burden to show that trial counsel negligently failed to bring out.

In Cheema there was evidence regarding the actions of the officer-in charge of the station. The appellant made no effort to file any evidence regarding what happened at the station. An officer in charge of a station should not release a drunk person if it is unsafe to do so. In the absence of any such evidence to the contrary, it is reasonable to assume that is likely what happened. [48] [ 94 ] Finally, I agree with and am bound by the decision of Justice Heeney, sitting as a

summary conviction appeal court, in Kavanagh . [49] Justice Heeney concluded that Sapusak [50] was clear and binding authority for the proposition that detaining an individual for his own protection for 6 to 7 hours, based solely on readings of 130 mg, does not constitute an arbitrary detention. [51] [ 95 ] On the facts of this case, I am not satisfied that the accused has discharged the legal burden of establishing a breach of s. 9 on a balance of probabilities.

I am not satisfied that a detention of four and a half hours following breath readings of 130mg/100ml and 150 mg/100 ml; or 3 hours and ten minutes following completion of the investigation, establishes an arbitrary detention contrary to s. 9 of the Charter .

As in Sapusak [52] , there is a reasonable basis to conclude that the “officer in charge” made a decision not to release the applicant in the public interest until his blood alcohol level had declined. [ 96 ] If I am wrong, and if the applicant has established a breach of s. 9 on a balance of probabilities, for the reasons set out in Kavanagh [53] , I am not satisfied that the evidence of the breath samples should be excluded as a remedy under s. 24(2).

The readings were not “ obtained in a manner that infringed or denied ” the s. 9 rights of the applicant, within the meaning of that phrase as defined by Pino . [54] H. Section 24(2) [ 97 ] In the event that I am wrong in respect of my findings that there were no breaches of s. 10(b), or s. 8, I am not satisfied that independently or cumulatively the alleged breaches should result in the exclusion of the breath sample evidence under section 24(2).

[ 98 ] Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter . Section 24(2) of the Charter requires the Court to exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

The accused bears the burden of establishing this on a balance of probabilities. [55] [ 99 ] According to the Supreme Court of Canada’s decision in Grant [56] , there is a three pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter .

The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following factors: (1) the seriousness of the Charter infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. [57] [ 100 ] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account.

In my view consideration of these governing principles leads to the conclusion that the Intoxilyzer results of the respondent’s breath samples are admissible. [ 101 ] With respect to the seriousness of the Charter -infringing state conduct, if the officer did violate the applicant’s s. 10(

b) rights, there is nothing in the evidence to suggest that he made a wilful or conscious decision to disregard the applicant’s Charter protected rights. To the contrary, PC Oliva was attempting to advise the applicant of his right to counsel, albeit in

summary form, at the earliest opportunity and to explain to him why he was being detained. There is no evidence that the applicant was mistreated or subjected to any demeaning or invasive investigative procedures. The seriousness of the breach is tempered by the fact that the officer could have proceeded to the ASD demand without informing the applicant of the rights to counsel and objectively the grounds to demand an ASD sample existed. If the demand was not “forthwith”, it was only by a narrow margin. [ 102 ] If there was a violation of s. 10(b), it was not a complete denial of the right to counsel.

The accused was properly given the informational content of the right to counsel, spoke with duty counsel and received legal advice prior to being required to provide samples of his breath into the approved instrument. [58] [ 103 ] In respect of the degree of impact from the violation the Supreme Court in Grant held that breath sample evidence is relatively non-intrusive and involves minimal interference with a suspect’s bodily integrity. [59] In Rehill Justice Campbell emphasized that the limited impact of the breath testing procedure on an accused’s Charter protected rights is well established. [60] The second factor in the s. 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples.

Indeed, the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter , given that the "method of collection is relatively non-intrusive". [61] [ 104 ] Finally, there is the question of society’s interest in adjudication of the case on its merits.

In my view, the truth seeking function of the criminal process is better served by the admission rather than the exclusion of the evidence and this factor weighs strongly in favour of the admission of the evidence. [ 105 ] Breath sample evidence is reliable, minimally intrusive, and its admission would clearly serve the truth-seeking process more than would its exclusion. The Charter violation in no way undermined the reliability of the evidence and the evidence is vital to the Crown’s case. If the evidence were excluded it would “effectively gut” the “over 80” prosecution.

The readings show that the applicant’s blood alcohol content was significantly in excess of the legal limit. As noted by Justice Campbell in Rehill , the public has long had a very strong interest in dealing with “drinking and driving” cases on their merits. The societal interest in a criminal trial on its merits would be seriously undermined if such highly reliable and critical evidence were excluded. This third prong of the analytical framework under 24(2) of the Charter strongly favours admission of the evidence. I. Conclusion [ 106 ] There was no breach of s. 8, 9, or 10(

b) of the applicant’s Charter rights. The application to exclude the breath samples, statements and utterances to police, and all evidence of the applicant’s actions while he was detained in police custody is dismissed.

Signed: “Justice Marcella Henschel” Released: December 18, 2017. [12] R. v. Saunders (1988), (ON CA), 41 C.C.C. (3d) 532 (Ont. C.A.); and R. v. Smith (1996), (ONCA), 105 C.C.C. (3d) 58 (Ont. C.A.). In Elias, at para. 42, the court contrasted the general power to stop vehicles pursuant to s. 76.1 ofthe Manitoba Highway Traffic Act, and the more specific Ontario legislation. In that context the court commented on s. 48(1) of theOntario Highway Traffic Act. [35] R. v. Granston (2000), (ON CA), 146 C.C.C. (3d) 411 (Ont. C.A).