The paper and video below are materials produced by David Anber at a recent conference where he presented perspectives on the laws regarding drinking and driving in 2021.

He discusses several cases in which drivers charged with impaired driving were acquitted because of an error made in one of ten areas. He goes into detail for each of those particulars, showing real-life examples where police procedures were flawed.

David Anber provides specifics and details on each case to provide you with the useful information and things to watch for in the event that you face Impaired Driving or Driving Over 80 charges.

Impaired Driving Update 2020
Defence Counsel Association of Ottawa
Montebello (Virtual) Conference, October 17, 2020
Paper by David Anber

Each and every year, it is either said or implied, that defending alcohol-related driving offences has become “harder than ever” to do. Each year, we tend to look back at the ‘greener pastures’ of yesteryears, or we speak fondly of a ‘golden age’ where we apparently won almost all of our impaired driving trials.

The reality is that most legal issues (including the vast majority of those arising in drink-drive cases) are rarely ever fully settled. Rather, a pendulum swings for most legal issues. For some time a particular issue will be interpreted favourably to the defence, but then legislative changes,
Court of Appeal decisions, or local judicial trends will usher in a new period where that same issue becomes a tough road to hoe. And the opposite is true as well. Consider the exclusion of evidence under s.24(2) of the Charter. Under Collins/Stillman, the rule went through a phase of being
(very nearly) automatic exclusion, and then it went through a phase where courts routinely spoke of there not being an automatic exclusionary rule. Then, with Grant, we all lamented how breath samples may never be excluded again as Crowns trumpeted paras. 110 and 111 of the decision. Then there was the “Au Yeung” era which was more recently supplanted by the “Jennings” era, which although not over, has become somewhat attenuated by recent cases like Thompson and Le.

The same swinging pendulum has applied to the Soules defence, to the Carter defence, to
“as soon as practicable”, to “reasonable and probable grounds” to the prospects of a
“mouth alcohol” defence, to broad or narrow consideration of “care or control” and etc. etc. etc.

The purpose of this paper is to identify a number of topics which arise frequently in impaired driving cases and to look at strategies and authorities supporting those strategies from the past year that have been successful or that may prove to be more successful in the year to come. Rather than take an academic or theoretical approach to the topics, this paper is more geared toward identifying practical tools and making them ready for use, by you, in your next case.

The topics which will be covered in this paper are:

  1. Forthwith/Immediately;
  2. Reasonable and Probable Grounds;
  3. As Soon as Practicable (Timing of the Samples);
  4. Informational Component of the Right to Counsel;
  5. Implementational Component of the Right to Counsel;
  6. Exclusion of Evidence Under 24(2);
  7. Overholding;
  8. Proof of Impairment;
  9. Disclosure Issues;
  10. Crown Resolution Policy.

1) Forthwith/Immediately

The recent amendments to the Criminal Code do nothing to limit the availability of this Charter argument.

254(2)(b) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a [conveyance] the peace officer may, by demand, require the person to (b), in the case of alcohol to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. 320.27(1)(b) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose.

The only real difference is the use of the word “immediately” instead of “forthwith” (the latter which had already been interpreted to mean ‘immediately’). Over the last few years, we have been able to amass a number of cases where delays, despite their brevity, were breaches. To this list we can really only add one case[1] from the past year: R. v. Roth, [2020] O.J. No. 2814 in which there was a 5-minute delay. In that case, Justice Pratt commented:

I pause to note that this is a common error by police. Perhaps it is a training issue,
I don’t know. But officers frequently operate under the misconception that they should only make the demand once the ASD has been delivered and they have it in hand. That is not the law.[2]

Justice Pratt ultimately did not exclude evidence, but His Honour referred to it as being a
“close call”. The Ottawa Police illustrates this point, seeming to have a systemic problem with this, having committed this breach numerous times within the past few years – this will be discussed further in this paper when setting out 24(2) considerations.

Officer Case Name Judge Delay Reference
Cruickshank R. v. Al-Qa’aod, [2019] O.J. No. 4809 Dumel/Parfett 4 minutes Para. 5
Beattie R. v. Lanteigne, [2019] O.J. No. 3662 Masse 6 minutes Para. 99
Day R. v. Faizi (2019 Unreported Oral Reasons) Dorval 14 minutes Page 11
Perron R. v. Brugger, [2019] O. J. No. 4021 Webber 12 minutes Para. 12
Cork R. v. Myles, [2019] O.J. No. 2154 Dorval 13 to 14 mins Para. 81
McCabe R. v. Guilbeault, [2018] O.J. No. 5340 Brown At least 8 mins Para. 38
Cook R. v. Neitzel (2018 Unreported Oral Reasons) Anderson 40 minutes Page 13
MacLean R. v. Prekurat, [2017] O.J. No. 2763 Webber 6 minutes Para. 14 and 15
Patton R. v. Orwin (2017 Unreported Written Reasons) Kehoe 7 minutes Para. 31
Patton R. v. Rochon, [2017] O.J. No. 1305 Lahaie 8 minutes Paras. 29 to 32

Another issue within this topic of ASD immediacy, which arose within the past year, is in respect of the delay to have an ASD brought to the scene.

The immediacy requirement applies to that as well however more flexibility is given due to the fact that not all police officers have an ASD with them (nor does the law require them to).

Frequently, in those cases, the question of an ‘opportunity to consult counsel’ arises. This poses an interesting question: “who bears the onus of establishing that there was or was not a reasonable opportunity to counsel”?

This was answered in the Summary Conviction Appeal of R. v. Menezes, [2019] O.J. No. 4065. Schreck, J. essentially concluded that a 10(b) breach is “prima facie” made out at the outset of the detention where, typically, the officer does not inform the detainee of the right to counsel.
This breach is only justified under s.1 of the Charter where the forthwith/immediacy requirement was complied with. This necessarily requires there to be no opportunity to contact counsel.
The onus is therefore on the Crown.

In terms of the application of this concept, there is the decision of R. v. Al-Qa’aod, [2020] O.J. No. 3026. In that case, Justice Dumel received a case back where the Summary Conviction Appeal Court concluded that Her Honour’s initial decision provided an incomplete 24(2) analysis.
In completing the 24(2) analysis following the Appeal, Justice Dumel commented on the Crown’s argument that there was no opportunity to contact counsel. She stated:

The Crown argues the impact is minimal because there was no real opportunity to exercise the right to counsel. There is a lack of evidence to support the Crown’s submission that there was no meaningful opportunity to exercise his right to counsel.

On the contrary, the evidence establishes that he spent less time exercising his right to counsel then the 10 minutes during which his rights were breached. Once at the station, he exercised his right to counsel in four minutes. The officer placed the call at 5:56 a.m., transferred it to Mr. Al-Qa’aod at 6:00 a.m., and the call was completed by 6:04 a.m.[3]

Conclusion: Trial counsel should strongly consider raising the immediacy requirement as a
Section 8 ground, but also as a Crown-onus 10(b) argument in

  1. any case where there is any delay between the formation of the officer’s suspicion and the making of the demand; or
  2. any case where there is a non-trivial delay in obtaining the device, particularly where the actual length of the call to counsel (if any) is in the ballpark of such delay.

2) Reasonable and Probable Grounds (RPG)

For much of the last decade, this area of the law has been a barren wasteland of broken Charter dreams for defence counsel. R. v. Bush salted the earth of what had been a fertile ground in the late 90’s and early 2000’s, and even if you can get a breach finding, R. v. Jennings has made exclusion even more difficult to obtain.

That said, there are still recent cases where an RPG-based argument has had success:

The court found that there were subjective grounds, but those grounds were not objectively reasonable. The field sobriety tests were not useful in light of the information supplied by the accused to the officer at the time of testing regarding health ailments. The accused in this case testified to those ailments and the court accepted his testimony on key points.
The other indicia that could have been relied upon, all had problems with them, even when considering them together, and thus fell short of the requisite standard. The seriousness of the conduct was seen as high. The impact on Mr. Hassan warranted exclusion because it was not merely the “routine” impact referred to in Jennings, but also there were
case-specific impacts identified by the trial judge stemming from the continued detention.

  • R. v. Para, [2019] O.J. No. 6840

After a failed ASD, the arresting officer advised the accused that he was under arrest for “impaired driving” and not for “over 80”. Unlike cases like Ross (per Paciocco, J. – OCJ) or Bernshaw, Clifford, J. found that the officer did not relate to the Court his beliefs about the ASD results to the question of impairment. Clifford, J. rejected some of the officer’s explanations and relied on appellate authority that an officer must direct his mind to the valid legal authority for their actions. Citing Feeny and Caslake, Clifford, J. concluded that the absence of subjective grounds rendered the impact more serious and thus pulled in favour of exclusion. It should be noted that the Crown has appealed this decision
(hearing in February)
.

Just across the river, Gatineau police responded to a parked car with fogged windows, where inside which it sounded like there was a domestic dispute. The officer thought the male driver was strangling the female passenger and so the officer opened the door with the intention of intervening. When the officer opened the door, she realized she was mistaken although the woman was crying. There was a strong odour of alcohol emanating from the breath of the driver and he attempted to exit the vehicle while still buckled in. The officer asked for the keys to which the accused responded in a bizarre manner. The officer also testified to heavy eyelids, slurred speech, and slow/awkward movements having also contributed to her decision to arrest, however those latter observations were not in the officer’s duty-book and only appeared in a report typed hours after the incident. The judge concluded that there were no RPG and excluded the breath samples.

  • R. v. Heid, [2019] O.J. No. 2762

Police responded to a motor vehicle in a ditch and when they arrived, the driver spontaneously stated “I’ve been drinking”. The officer testified at that moment he arrested the driver for what he described as having “formed a suspicion that they had alcohol in their body”. The trial judge concluded this was no mere slip of the tongue; the officer did not have the subjective grounds nor were the grounds objectively reasonable.

  • R. v. Shawana, [2019] O.J. No. 2437

This is a case in which the officer used an ASD, subjectively believed it was in proper working order, and performed a self-test before using it. But the officer, who recognized the importance of the device being calibrated, did not turn his mind to whether or not the device was properly calibrated in this case. Relying on the decisions of R. v. Ram (OCJ) and R. v. Beharriell (SCJ) the judge concluded that the objective grounds were not made out.

RPG remains a difficult argument to make, however by carefully parsing the facts, be it in cases where an ASD is used, or where the police act without an ASD, it can still be a viable means of challenging the admissibility of evidence.

3) As Soon As Practicable (Timing of the Samples Themselves)

This is an area of the law that is going to see some significant developments in the next few years.

No, the reason has nothing to do with the test for “as soon as practicable” which is well settled in law (it means “reasonably prompt in the circumstances” – ‘not as soon as possible’.)

Rather, the reason why this area of the law is going to be interesting moving forward, is because the Crown has recently had significant success in persuading the Courts that due to the recent Code amendments, “as soon as practicable” is no longer an issue as it pertains to the taking of the samples.

In order to understand how this state of affairs arose, we have to recall that prior to the amendments, the phrase “as soon as practicable” appeared in 3 places in relation to evidential breath samples:

  • In s.258(1)(c)(ii) – it was a condition precedent of the operability of the presumption of identity;
  • A first place in s.254(3) – it was a condition precedent to the making of a valid breath demand;
  • A second place in s.254(3) – it was (or so we thought) a condition precedent to the taking of breath samples.

As we all know, the recent Code amendments did away with the old ‘presumption of identity’ and so the first of the above-three uses of the phrase no longer applies. However, the other two remain unchanged in the Code:

320.28 (1)(a)(i) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence
under paragraph 320.14(1)(b), the peace officer may, by demand made
as soon as practicable, require the person to provide, as soon as practicable, the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument.

Prior to the amendments, defence counsel would most often raise the ASAPr argument (in relation to the taking of samples) as an argument relating to the operability of the presumption of identity. Why? There are three obvious answers. Firstly, as a trial issue it did not require Charter notice and thus defence counsel could lie in the weeds and make the argument where the evidence of the timeline was thin, confusing or contradicted. Secondly, as a trial issue that was determinative of an essential element of the offence, the standard of proof was “beyond a reasonable doubt” and the burden rested with the Crown as opposed to in Charter cases where the defence bears the burden and must do more than merely raise a reasonable doubt. Thirdly, there was no need to deal with 24(2) and all the heartache and uncertainty that brings.

However, in cases where the Crown called a toxicologist, thus obviating the need to depend on the presumption of identity, or in cases where there was some other strategic benefit to arguing ASAPr as a Charter issue, counsel could and invariably would frame it as a Charter issue.
Indeed, there are a number of reported and unreported decisions where this was done.

  1. R. v. Mawad

The present problem arose in a Summary Conviction decision called R. v. Mawad, [2016] O.J. No. 6810. That case involved a finding of a breach at trial related to delays in the breath demand but the trial judge admitted the evidence under 24(2). On Appeal, the defence had pointed out that the trial judge had also made some findings regarding delays in the taking of the samples and thus should have considered that as a separate breach, tipping the 24(2) balance toward exclusion.

Presiding over the Appeal, Justice André commented that s.258(1)(c)(ii) was not a Charter-triggering provision; it – he found – related only to the presumption of identity. Although this is clearly true, André, J. neglected to consider in any meaningful way, that s.254(3) also included the ASAPr phrase as a requirement to the taking of the samples. Having failed to consider this, André concluded that ASAPr is not a Charter issue. This is clearly wrongly decided. However, the Crown has been successful in a number of (particularly local) cases in persuading the Court that the defence is foreclosed from arguing ASAPr as a Charter issue. This is clearly wrong in law, however, armed with Mawad, the Crown has been able to advance Mawad as a binding authority supporting their position.

Although Mawad was clearly wrongly decided, the plain obviousness of the proper interpretation means that very few courts have explicitly spoken on this issue. Accordingly, without another Superior Court decision stating otherwise, many judges have felt required to follow Mawad.

There is, however, the decision of R. v. Li, [2015] O.J. No. 7023 in which a judge of the Superior Court states what the law clearly is: that ASAPr can be a Charter issue. One of the few provincial court decisions to consider both Mawad and Li, was the case of R. v. Araya, [2019] O.J. No. 6836.
In Araya, the judge pointed out that there were two lines of cases developing. Having considered both lines – including both Superior Court decisions – the judge concluded that ASAPr may be argued as a Charter issue.

The conflicting lines of cases was dealt with locally in a very thorough decision by Justice Doody called R. v. Pillar, [2020] O.J. No. 3791. Justice Doody, correctly, concludes that Mawad was wrongly decided on this issue but as to the question of stare decisis, Doody, J. went on to consider whether he was nonetheless bound by it.

Unfortunately, Doody, J. concluded that he was bound for essentially two reasons. Firstly, the decision of Li does not use strong enough language in addressing the issue (Justice Spies in that case says that it is “arguably” a Charter issue). Secondly, Doody, J. considers the doctrine of
“per incuriam” (whether or not the higher decision fails to consider an even higher decision) inapplicable. There is no doubt that Doody, J. is eminently correct in his detailed analysis of why ASAPr is, at law, a Charter issue. However, his decision on the stare decisis issue is – respectfully – vulnerable to attack on a number of grounds.

Firstly, respectfully, Justice Doody placed too much of an emphasis on the use of the word “arguably” in Li. There is no ambiguity in Justice Spies’ decision when she stated the reason that she believed it was arguably a Charter breach: the reason is because “all of the requirements for a proper demand had not been met”. This is clear language from Justice Spies that the timeliness of the taking of the samples is a requirement. What is arguable is whether or not that legal standard, applied to the facts as found by the trial judge, would amount to a breach – it was not the definition of the legal standard itself that was held to be ‘arguable’.

Secondly, Justice Doody declined to apply the doctrine of per incuriam. Although his reasoning is understandable, this was not a point fully argued in Pillar and, should this issue arise again, there are other authorities that could be marshalled to attempt to bring about a different bottom-line result. Drilling down into those authorities goes beyond the scope of this paper here, but suffice to say, it is one avenue that should be pursued.

Thirdly, in Pillar, Justice Doody was presented with an alternate argument that: in the alternative to the defence position (that the s.8 breach is tethered to the “as soon as practicable” standard as a matter of statutory compliance), it could also be argued as a Charter breach on another branch of the Collins test: that warrantless seizures also be conducted in a reasonable manner.

The “manner of seizure” argument was squarely put before Justice Doody in Pillar, but yet Doody, J. appears to have not considered it. At paragraph 61 of the decision, Justice Doody summarizes the defence’s argument as follows:

The defendant’s submission is as follows:

  • once an accused person has established that a warrantless search has occurred, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable; a search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable. (R. v. Collins, [1987] 1 S.C.R. 265); and
  • subparagraph 320.28(1)(a)(i) requires, as did s. 254(3), that both the demand be made and the test be provided as soon as practicable; if not, the test (the search) is not authorized by law.[4]

What Justice Doody omitted, is that there was a 3rd component to the argument:

  • the failure to conduct the breath testing procedures in a reasonably prompt manner means that the Crown has not established that the samples were seized in a reasonable manner.

In the respectful view of this paper, this was an alternate pathway to finding a Charter breach which was argued but not addressed in Pillar. There are, after all, a number of cases which speak of the seizures taking place within a detention which must be no longer than reasonably necessary and triggers considerations under s.9 and 10(b). Furthermore, the related provisions in the Code that authorize compelling DRE testing (see 320.28(2)(a)) requires the testing to be ASAPr. The s.9 cases related to that area of the law could be argued the next time around (these cases are also outside the scope of this paper).

This issue will arise again and when it does, it is the opinion of this paper that the DCAO should intervene in that case.

4) Informational Component of the Right to Counsel Without Delay

The police in Ontario, and particularly the Ottawa Police Service, continue to routinely commit this Charter breach. Although these breaches are often only single-digit-minute delays, as will be discussed in the 24(2) section of this paper, Courts are becoming less tolerant of these delays.

As a refresher, it bears repeating here – and you should always remind the court – that the 10(b) right to be informed of counsel ordinarily attaches at the moment the investigative detention begins. Impaired-driving investigations are an exception to this rule and, during the investigatory phase, the right to counsel is validly suspended.

However, once the police form grounds to arrest, that suspension of the right to counsel comes to an end. And, unless there is a legitimate, case-specific reason of officer/public safety that requires otherwise, the informational component of the right to counsel is due at that point – no later.

In other words, absent exceptional, safety-related circumstances, the right to counsel should be part of the same sentence uttered by police that begins with “You are under arrest for…”

But the police continue not to get it. They continue to delay for the purpose of searching or cuffing an accused person even when that step is not reasonably necessary to come first; they continue to make radio-transmission calls to dispatch advising of the arrest, or requesting a tow, or requesting a breath technician; they continue to opt to catch up on their notes; they continue to speak to other officers or witnesses; they continue to inspect the vehicle etc. etc. etc. It bears repeating that
R. v. Suberu recognizes one, and only one exception to delay the reading of the 10(b) rights: legitimate officer/public safety concerns which cannot be allayed unless the rights are delayed.

And so, the breaches keep on coming – particularly in Ottawa. Over the past year we have:

  • In R. v. Faizi, [2019] O.J. No. 6906, Justice Dorval found a breach for a 6-minute delay;
  • In R. v. Pillar, [2020] O.J. No. 3791, Justice Doody found a breach for an 8-minute delay;
  • In R. v. Singh, [2020] O.J. No. 494, Justice Armstrong found a breach for a 4-minute delay;
  • In R. v. McGrath (2020, Unreported), Justice Brown found a breach for a 3-minute delay.

The Crown generally employs two types of arguments (or a combination of them) to argue against these breach findings. Firstly, they argue the ‘it’s not so bad’ argument. Delays of just a few minutes, to take notes, or speak to other officers are ‘baked in’ to the arrest procedures and therefore should not lead to a finding of a breach (the Crown argues). Implicit in this argument, is that the police should be judged on a reasonableness standard – akin to ASAPr. This flies directly in the face of unambiguous language from the Supreme Court in Suberu and fewer and fewer trial Courts are being persuaded by this.

The more debatable point is regarding officer safety. Virtually every officer – when pressed on why he or she searches or handcuffs an accused before reading the rights – will somehow relate the matter back to reasons of safety. Even if, in chief, their testimony often suggests nothing, whatsoever, upon which to base any concern for safety, when pressed in cross-examination, they will often say things like “I don’t know this person” or “sometimes people become violent when told they are under arrest”. These general concerns for officer safety, which apply in virtually every case are not, on their own, sufficient to warrant any delay. This point was made abundantly clear in R. v. La, [2018] O.J. No. 5357 (Ont. C.A.) at paras. 38 to 42. Additionally, officers in Ottawa will often talk about policy relating to safety that “we aren’t allowed to bring a detainee into cells unless we have searched them first”. Referring back to La, it is clear that this is a phony argument – a straw man. The question is not whether or not it is appropriate for a police officer to search an accused before bringing him/her into cells; the question is whether or not it is necessary to do so before reading the rights to counsel.

A good case to bring to any trial where this is at issue, is the case of R. v. Gordon, [2018] O.J. No. 2092 which is a Summary Conviction Appeal decision penned by Justice Casey Hill.

That case involved an inherently dangerous, roadside drug-takedown. Justice Hill remarks that these types of cases “[present] a fluid dynamic situation in which the degree of cooperation for surrender is uncertain.”[5] In that case, defence counsel had argued that once advised of the arrest, the driver was entitled to his rights while still seated behind the wheel of the car. Justice Hill rejected that argument but found that as soon as the driver was removed from behind the wheel
(to where he could no longer attempt to drive away – the sidewalk), he was entitled to his right to counsel at that point.

Through a skillful cross-examination, it should be possible in most cases to allow the court to find that (1) any averting by the officer to the concept of officer safety is not related to any case-specific factors, (2) the officer will either state or imply that the decision to search first comes from either a policy or just a ‘way of doing things’ that they were taught. None of this is valid and may even increase the seriousness of the breach.

The fact that it is dark outside, or that the officer is alone could in some cases contribute to a finding that a search was necessary to precede the rights, however other factors such as the clothing the accused was wearing, the size of the accused, the behaviour of the accused, and any testimony as to the officer’s perception of risk (or lack thereof) from the particular accused, are all things which should be explored in cross-examination or referenced from the direct examination. Furthermore, any conduct by the officer incompatible with the concerns for safety (i.e. leaving the accused unhandcuffed; letting the accused get some air, or have a cigarette outside the cruiser before leaving for the station; letting the accused retrieve belongings from his car; etc.) should be raised since they render as incredible any claim later on that there were safety concerns.

Similarly, if other officers are present on the scene, this should in most cases eliminate the
“I was alone” justification for the delay. In R. v. Al-Qa’aod, [2018] O.J. No. 7289, Justice Dumel considered a 6-minute period of delay where there was another officer on the scene and found that while the argument of safety might have been sustainable in relation to the period leading up to the 6-minute period, it was not sustainable once the other officer arrived. The Crown Appealed. The Appeal was allowed on other grounds (and the matter was remitted to Justice Dumel to conduct a further 24(2) analysis), but on the issue of whether or not the finding re the presence of another officer was reasonable, Justice Dumel was upheld by Justice Parfett (R. v. Al-Qa’aod, [2019] O.J. No. 4809). The presence of other officers also led to a similar result in R. v. Singh, [2020] O.J. No. 494, at para. 23.

5) Implementational Component of the Right to Counsel

This is an area of the law which can involve many different factual scenarios and many different legal angles. This paper does not propose to catalogue all the different types of arguments that can be raised. However, this paper does wish to look at a narrower question: what steps do the police need to take to ensure that a detainee has access to tools to choose counsel?

  • In R. v. Ruscica, [2019] O.J. No. 2021, (Summary Conviction Appeal) Justice McKelvey held:

43  I have considered whether there could be an implementational duty to assist a detainee to identify and locate private counsel once they have advised police that they wish to speak to a lawyer. However, in my view, such an obligation must be based on a request from the detainee which reasonably requires the police to assist in this regard. If there is to be an obligation to advise detainees about resources that will be made available to locate and identify private counsel, I have difficulty understanding why such an obligation would be limited to only those detainees who express an interest in speaking to counsel. Arguably, if one follows the Alberta example, this information might be relevant to a person’s decision as to whether or not they wish to exercise their s. 10(b) rights.

44  In my view, what is being proposed by the appellant represents a significant expansion of the Charter rights under s. 10(b). The proposed expansion is inconsistent with binding appellate authority. It also raises real practical questions as to what information needs to be given to a detainee. If the information is required by a response received to the s. 10(b) advice from a detainee, the circumstances will dictate what information needs to be provided. This is consistent with established case law and courts are able to assess the adequacy of the police response. However, in a vacuum, where there is no issue raised by a detainee, there would appear to be practical difficulties in determining what information will be required. The information in the Alberta caution apparently references the availability of telephone books which appears somewhat outdated in a digital age. The reference in the Devries decision is to a “list of callers”. However, as noted by Justice Doherty, the availability of this list as well as its currency was somewhat unclear. Also unclear is how such a list would be prepared, as well as who would be responsible for preparing and updating it in a constitutionally acceptable manner. If access to the internet is being contemplated, consideration would need to be given to the potential risks and on what basis access could be denied.

45  With respect to Justice Burstein’s reference to the Zoghaib case, he correctly notes that at para. 13 of the decision of Justice Fragomeni, there is reference to the presence of a telephone book in the interview room. However, this does not detract from the issue which was addressed. This is set out at para. 41 of the decision as follows:

The defence submits that P.C. Henry was obligated to ask Ms. Zoghaib if she wanted a phone book to look up a name of a lawyer prior to immediately going to call duty counsel. By going directly to duty counsel without giving her an opportunity to look up the name of a lawyer did not mean she was waiving her right to counsel of choice. The defence argues that this sequence of events and in light of Ms. Zoghaib’s evidence that she felt that she should simply “follow the lead of P.C. Henry,” resulted in an uninformed waiver of her right to counsel of choice.

46  In my view, Justice Fragomeni’s decision in the Zoghaib case together with the subsequent Court of Appeal Endorsement dismissing the appeal does support a conclusion that advice regarding resources available to identify and connect with private counsel is not routinely required. On the contrary, this duty only arises where individual circumstances require it in order to comply with the implementational responsibilities under s. 10(b).

47  In summary, I conclude that the existing s. 10(b) rights advice meets the required Charter standard. Detainees will clearly understand their right to consult with any lawyer they wish. The trial judge correctly held that on the facts of this case there was no requirement for the police to suggest available resources to identify a private lawyer.[6]

The Ontario Court of Appeal denied leave to Appeal this decision.

  • In R. v. Doobay, [2019] O.J. No. 6387, (Summary Conviction Appeal) Justice Dawe held:

53  It is unnecessary in this case for me to consider the contentious question of whether the police s. 10(b) informational duties should be expanded to require them to tell all detainees that they will be given access to tools for finding private counsel, as a number of recent Ontario Court of Justice decisions have suggested.12 In R. v. Ruscica, supra, my colleague McKelvey J. rejected the argument that the police s. 10(b) informational duties should be expanded in this way, although he agreed that such an obligation could arise in a particular case “based on a request from the detainee which reasonably requires the police to assist in this regard.”13 For the purposes of this appeal I need not decide whether the police failure to inform the Appellant of the means by which he could have identified and contacted other private lawyers in and of itself triggered a breach of his s. 10(b) Charter rights. Rather, it is sufficient to approach this issue as I have done and treat the police failure to provide this information as a significant factor when assessing whether the Appellant was reasonably diligent in exercising his s. 10(b) rights. If he was reasonably diligent in the circumstances, his s. 10(b) rights were infringed at the point that the police sought to compel him to provide a breath sample despite his not having yet spoken to counsel.

54  However, the Crown forcefully argued that not only should I decline to expand the police s. 10(b) informational duties, but that I am bound by appellate authority not to do so. Essentially, Mr. Parke’s argument was that since various appellate decisions have itemized the police informational duties without mentioning any obligation to tell detainees about the available means by which they can identify and contact private counsel, trial and intermediate appellate courts must find that no such obligation exists. My colleague McKelvey J. accepted this argument in Ruscica, supra, concluding “if there is to be a further informational obligation imposed on the police, it would need to come from appellate jurisprudence”, because no such informational duty was recognized by the Ontario Court of Appeal in R. v. Devries, 2009 ONCA 477 or by the Supreme Court of Canada in R. v. Bartle, supra.

55  With respect, I disagree with this conclusion. Appellate decisions decide what they decide, but no more. In my view, the fact that an appellate court’s decision does not give effect to an argument that was not raised before it does not bar the argument from being raised in a lower court in a future case. As McLachlin C.J.C. explained in Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 44:

[A] lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence. This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role.

In Devries, supra, Doherty J.A. expressly noted that the defendant in that case:

[C]ounsel for the respondent, correctly in my view, does not contend that on this record he can argue that the police officer was obliged under s. 10(b) to advise the respondent that a list of lawyers’ telephone numbers could be made available to her at the police station. The only issue before this court is whether the Appeal Judge correctly held that the police officer was obliged, when informing the respondent of her s. 10(b) rights, to tell the respondent that should she choose to speak with a lawyer, that consultation would take place at the police station and not at the roadside.

In my view, Devries cannot be understood as a binding decision on a point of law that was expressly not raised in the Court of Appeal and was recognized as not being before the court. Likewise, in Bartle, supra the only issue that was squarely before the Supreme Court of Canada was framed by Lamer C.J.C. as follows (at p. 190 S.C.R.):

Does the information component of s. 10(b) of the Charter require that the police routinely refer to the existence and availability of a 24-hour duty counsel service which provides free, preliminary legal advice and can be reached by dialling a 1-800 (toll-free) telephone number?

The Court answered this question in the affirmative. However, I do not think Bartle can properly be taken to have fixed the content of the police s. 10(b) informational duties for all time and decided by inference that no additional information will ever be required, nor do I think that arguments about expanding the scope of these police duties can from now on only be raised and addressed by the Supreme Court.[7]

The Court of Appeal also declined the Crown’s Application to seek leave to appeal this decision.

  • In R. v. Fisk, [2019] O.J. No. 6302, (Summary Conviction Appeal), Justice Gordon pointed out – after considering arguments on this issue – that “police officers may have additional duties at the informational and implementational stage. But such only arise if the facts of the case so warrant.”[8]

Finally, it is worth mentioning that:

  • In R. v. Ghotra, [2020] O.J. No. 2650, the Court of Appeal wrote the following:

38  The appellant argues that the trial judge erred in finding that the police had satisfied the informational component of the s. 10(b) right. He argues that he ought to have been told that he had the option of looking up a lawyer for himself, and the police ought to have facilitated the exercise of this right by providing him with a directory. He only discovered he had the right to choose his own lawyer when so advised by duty counsel, but was then rebuffed by Cst. Ullock when he tried to make this request.

39  The trial judge was satisfied that when the totality of the circumstances were considered – including the appellant’s initial emotional state, the fact that the information he received was initially incomplete, and that he was subsequently provided with a standard caution and spoke to duty counsel – the appellant had not misunderstood his rights.

40  This finding by the trial judge, that the appellant had not misunderstood his rights and chose to speak with duty counsel, was open to him. The onus was on the appellant to establish that he misunderstood his rights such that s. 10(b) was infringed. He did not testify on the voir dire. The trial judge found that he did not, in his conversations with Cst. Ullock, convey dissatisfaction with the advice he had received from duty counsel or confusion about his right to counsel: [2015] O.J. No. 7328, at paras. 82, 95.

41  The appellant did not request access to a directory or phone book in which to search for counsel. In the circumstances, as he had already spoken to duty counsel and understood that he was free to find a lawyer of his choosing, I am not persuaded that the police breached the appellant’s rights in not offering him a directory.[9]

Leave to the Supreme Court of Canada has been sought ([2020] S.C.C.A. No. 187) and is pending at the time of writing this paper.

What can be synthesized among these cases (aside from awaiting a decision from the Supremes, if any, on Ghotra) is that an argument akin to a “special circumstances”[10] argument, may be the way to proceed as it pertains to the police’s obligation to provide tools to access counsel. In cross-examination (or through independent evidence), counsel will be best advised to bring out any indications which suggested that the accused person may want or need additional tools to make his or her choice.

6) Exclusion of Evidence Under 24(2)

The test for exclusion is well known and includes a consideration and balancing of
(1) the seriousness of the breach, (2) the impact of the breach on the Charter-protected interests of the accused, (3) society’s adjudication of a case on its merits. This particular paper is going to focus on the following issues within this topic:

  1. Systemic breaches by the Ottawa police make the breach more serious; and
  2. Breaches can be seen as impactful notwithstanding Jennings, because:
  • The breach involves a type of breach, or basket of interests that goes beyond those discussed in Jennings, and/or
  • Notwithstanding that the breach is a Jennings-type breach, the facts of the case go beyond the ‘baseline’ circumstances of

Systemic Breaches by the Ottawa Police

In R. v. Simpson, [2017] O.J. No. 2594, and R. v. Sandhu, [2017] O.J. No. 1774, Justice Schreck (as he then was of the Ontario Court of Justice) excluded breath samples where the only breaches in these two cases were a solitary 7-minute and 9-minute (respectively) delay in reading the rights to counsel.

These two cases are among a very small group of cases where judges have excluded evidence due to a single, relatively brief 10(b) informational breach. In most other cases where this marks the only breach found, as serious as it is found to be (being a breach of well-established law), most judges tend to find that the impact on the Charter-protected interests of the accused was very minor or even not at all since, in most cases, the police do not attempt to elicit evidence during the breach-period. What made Simpson and Sandhu different was that Justice Schreck pointed out that these breaches appeared to be part of a systemic problem in the Peel Region. Citing roughly 18 local Peel Region cases since Suberu (just over a 7-year period), Justice Schreck highlighted the importance of excluding the breath samples in order to maintain the long-term repute of the administration of justice. And this makes sense. Even where a breach, in isolation, may not merit the exclusion of breath samples, society learning that police were repeatedly committing a breach over and over again with no remedy, would bring the administration of justice into disrepute.

Then, in April of this year, the Court of Appeal released the decision of R. v. Thompson, [2020] O.J. No. 1757. Thompson spoke approvingly of the decisions in Simpson and Sandhu – cases to which the trial judge in Thompson averted when he found that the breaches were serious and a “chronic problem” in Peel Region. This made the breach (an 11-minute delay) even more serious than the arbitrary detention breach found by the Court.

Just like in Peel Region, the Ottawa Police Service has a chronic problem in not respecting this Charter right. Since 2017, OPS officers have committed the following breaches of the immediacy requirement of the 10(b) informational component:

These cases, along with the list of ASD demand breaches found on Page 2 of this paper, have been consolidated in a separate book of 25 reported decisions, current as of October 13, 2020 and should be accessible alongside this paper in the Montebello materials.

These cases were put before Justice Doody in R. v. Pillar and, based on the apparent systemic nature of the breach,[11] Justice Doody excluded breath samples based solely on the delay in informing Mr. Pillar of his right to counsel.

One caveat when arguing this type of case is that the Crown’s responding approach will be to set up a straw-man argument. The Crown will argue as though the defence materials constitute
direct evidence of a systemic problem. In other words, the Crown will argue that these 17 prior breaches constitutes “the numerator” of the ‘rate of breach’, but without evidence of the denominator (number of arrests or detentions by the police) the Crown argues that the Court cannot conclude what the rate is and thus cannot evaluate that rate to determine whether or not it is problematic. In fact, the Crown will take it a step further by providing hearsay statistics to the Court as to the number of interactions the Ottawa Police have with the public (or number of impaired driving cases) in a given year, and suggest that the 17 cases in 3 years represents such a miniscule proportion of cases that there is no systemic problem.

But this misstates the defence’s argument.

In proffering these 17 cases, the argument being advanced is not that this constitutes
direct evidence of a systemic problem, but rather that it is strong circumstantial evidence from which the systemic problem can be inferred on a balance of probabilities.

Consider the following analogy. If one officer is found to engage in racial profiling this is not a systemic problem. If another officer from the same police force engages in racial profiling, this is probably just a coincidence. If a third officer engages in racial profiling it may still be a coincidence but it starts to raise a suspicion. If 4, 5, 6….

Eventually, when you have enough individual examples, the Court is in a position to inductively reason that the Ottawa Police is, at minimum, negligent in its training, or worse. This form of inductive reasoning – treating the numerous past cases as circumstantial evidence – is exactly the logic approved of in Thompson. And, in Pillar, Doody, J. rejected the Crown’s approach:

136  I do not accept Crown counsel’s submission. It is based on the premises that all officers on the force detained individuals in circumstances which required that they be advised of their s. 10(b) rights, all breaches of s. 10(b) were in investigations in which charges were laid, all of those charges resulted in trials in which a s. 10(b) breach was asserted and the case was tried, and that the cases gathered by defence counsel are all of the cases in which a s. 10(b) breach was found. None of those premises has been established. I would be very surprised if any of them were valid.

137  As McLachlin C.J. wrote for the majority of the Supreme Court of Canada in Grant at para. 75:

It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

138  The Court of Appeal accepted that a systemic pattern of breaches had been established for Peel Region with 16 or 24 cases. I am satisfied that a similar pattern of disregard for detainees’ s. 10(b) rights by the Ottawa Police Service has been established by the 15 cases cited by defence counsel. Furthermore, this pattern is, based on Cst. Walker’s evidence, rooted in the erroneous belief that advising of the right to counsel can be delayed if there is any potential or theoretical officer safety issue raised by immediately doing so, regardless of the particular circumstances and context facing the officer.[12]

It is worth mentioning that Ottawa Police Policy does not emphasize, or even state the immediacy requirement and many officers will testify to a misunderstanding as to their responsibility. All of this is further circumstantial evidence supporting a finding of systemic misconduct.

In balancing the factors, Doody, J. highlighted that the balancing exercise mandated by 24(2) is not a mathematical formula and, depending on the circumstances, can sometime call for emphasis of one branch of Grant over the other two:

145  However, as the Supreme Court of Canada held in Le, it is not necessary that both of the first two factors support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. It is possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute.[13]

In addition to this volume of 25 cases relating to immediacy breaches, the DCAO has gathered a few dozen other cases where officers (including those from other police forces) have breached. Whether it is in the sheer amount of Charter breaches as a whole, whether it is repeated breaches by the same officer, or whether it is some other use of this information, there are numerous ways in which this evidence can be considered to support a finding that the seriousness of the breach in a particular case is significantly higher due to these systemic concerns. But as it pertains to the immediacy breaches, the Thompson case, coupled with the numerous breaches of this nature provides a ready-made, compelling argument as it pertains to the 24(2) analysis.

The Legal Distinction Between Jennings Breaches and Non-Jennings Breaches

It bears repeating that R. v. Jennings dealt with a highly technical breach[14] that was a single breach of a single section (s.8) of the Charter.[15] It occurred when the police officer interpreted the results of a validly administered ASD test and, according to the trial judge, that interpretation of those results –amounting to RPG in the view of the officer – was not, objectively reasonable according to the trial judge. We must remember that:

  • Jennings did not deal with multiple s.8 breaches;
  • Jennings did not deal with s.9 breaches that were untethered to the s.8 RPG breach;
  • Jennings did not deal with s.10(b) breaches;
  • Jennings did not deal with s.8 breaches at the stage of reasonable suspicion.

Accordingly, it is important that the obiter comments of the Court of Appeal in Jennings, in relation to the single, technical, s.8 RPG breach, be confined solely to cases sharing those common legal elements. Where only those legal elements are present, the full effect of the dicta in Jennings would allow the conclusion that the impact of the breath samples (and related detention) was minimal.

However, in cases where (for example) 10(b) is breached, the Charter-protected interests are very different and Jennings has no application.[16] There is also binding authority for that proposition in the case of R. v. Persaud, [2019] O.J. No. 5448:

19 […] I am of the view that a case involving an assertion of an infringement of s. 8 rights is of little assistance on a s. 10 (b) case such as this one. I prefer the approach of Burstein, J. in the case of R. v. Manuel, 2018 ONCJ 381, at paragraph 45;

…I am not persuaded that the recent decision of the Ontario Court of Appeal in R. v. Jennings[42] has any relevance to the s. 24(2) determination in this case. The Charter violation at issue in Jennings was a (marginal) violation of the defendant’s s. 8 rights. Unlike the interests protected by s. 10(b) of the Charter, appellate courts have held that the s. 8 interests engaged by the breath testing process are “minimal”. The judicial determinations in Jennings of the seriousness of that s. 8 violation and the significance of its impact are of no assistance to me in determining the seriousness and impact of the s. 10(b) violations in Mr. Manuel’s case. The Court of Appeal in R. v. McGuffie[43] said that “[t]he strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant”. It is therefore hard to conceive how the Court’s comments in Jennings about those “first two [Grant] inquiries” in a case involving a s. 8 breach, could somehow influence the s. 24(2) determination for a case involving a s. 10(b) breach. That math does not add up.[17]

Similarly, in cases where either the grounds to demand a roadside sample, or the timeliness of the roadside demand are litigated to a finding of breach, we mustn’t forget that the basket of interests applying to an accused in those circumstances is qualitatively different. The interests impacted are, temporally, ‘on top of’ the Jennings interests, but it is not merely temporal. The nature of those interests is also different. A person whose rights are violated prior to the subjective formation of reasonable and probable grounds is merely suspected of an offence. Moreover, that person is being deprived of their right to counsel. In the case of an immediacy breach of the ASD demand, the sole s.1 justification for that deprivation (the element of immediacy) is not present. Jennings is totally inapplicable to these circumstances.

This was the argument advanced in the Superior Court, in R. v. Al-Qa’aod, [2019] O.J. No. 4809. Justice Parfett concluded that this argument “may be correct. However, the problem is that the trial judge failed to analyze the impact of the ss. 8 & 9 breaches at all.”[18] The matter was therefore remitted to the trial judge, Dumel, J. who ultimately concluded:

I find that the impact of the Section 8 and 9 breaches is significant on Mr. Al-Qa’aod. While the procedure to obtain the breath sample is minimally intrusive, the failure to make the demand forthwith resulted in his breath samples being taken after an illegal detention because the demand was not lawful due to the unexplained delay. This was further compounded by a breach of his right to counsel.[19]

Further, as succinctly stated by Justice Duncan in R. v. Mahipaul, [2018] O.J. No. 2688:

23  The Crown refers to the recent Court of Appeal decision in Jennings for the proposition that the impact of obtaining breath samples even following a Charter breach is minimal. But I think Jennings is limited to cases where the breach is not serious and more importantly, where the breach only affects section 8 rights by reason of some deficiency or aberration in following the myriad legalities of the statutory breath testing regime.

24  Plainly it is the Charter offending conduct that must be assessed under 24(2). That is rarely just the taking of breath samples itself, so the intrusiveness of that step cannot be the sole focus. Where there is other state conduct that is outside the direct ambit of the actual breath sample acquisition, the impact of that conduct must be assessed as well.[20]

The Factual Distinctions Between Jennings Cases and Other Cases

Under the “Au Yeung” line of reasoning, it was not merely the impact of the breath samples that was considered but also, in addition to that impact, the impact of the related steps was also considered. This included being handcuffed, placed in a cruiser, taken to the station, searched, kept in a cell, and kept in custody until breath testing is finished. This line of reasoning was rejected under Jennings “since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples”.[21]

This, I would submit, is ‘the baseline’ at which the impact of these additional impacts beyond the breath sample, is calibrated to zero, per Jennings. From this, I would infer that anything over and above this baseline is still something which the court can consider. This would include a lengthier detention than normal or even an unexplained detention after breath testing that did not itself necessarily amount to an overhold. Recall, that Mr. Jennings was driven home by police having provided samples and having been served a promise to appear 106 minutes after failing the ASD at the roadside. Deprivations of liberty significantly over and above that, or unusual conditions which make the detention more onerous, make a case factually distinct from the baseline considerations in Jennings and limit the use the Crown can make of that case.

In admitting breath samples, notwithstanding a breach, Justice Pratt in R. v. Roth stated:

I heard no evidence about the breath testing procedure itself that went beyond the norm. The Defendant was taken into the breath room, the procedure was explained by PC Harvie, and the Defendant provided two suitable samples directly into the instrument. There was no complaint that PC Harvie was unprofessional or overbearing, or that the procedure was unusually invasive or upsetting to the Defendant. In short, there is nothing regarding the testing itself or the evidence thus obtained that takes this case out of the realm of “minimally intrusive” evidence envisioned by Grant.[22]

In this same vein, Justice Henschel wrote in R. v. Hassan:

90  The Court of Appeal’s comments make clear that the routine procedures that accompany the collection of breath samples do not convert a minimally intrusive search, into conduct that has a significant impact on an accused’s Charter protected rights.

91  Despite the Court of Appeals finding in Jennings, in this case, I have concluded that the impact on Mr. Hassan’s Charter protected favours exclusion. I do not reach this conclusion because Mr. Hassan was subjected to the routine procedures experienced by every person detained, arrested and taken to the police station to provide breath samples. Instead, I have reached this conclusion by focusing on the specific and unique circumstances of the case that resulted in a much greater impact to Mr. Hassan than is ordinarily the case when breath samples are obtained.[23]

7) Overholding

When I last addressed this subject at Montebello 2017, I opined that this was an argument whose ‘stock’ was on the decline. Although I may have slightly overstated my pessimism for the success of this argument, this argument still remains difficult to make. The police’s conduct in detaining is assessed on the basis of reasonableness and where officers rely solely on the breath samples to detain an accused, the record is still often amplified during trial to expand the bases upon which the detention decision was justified.

That said, where the detention is very long, or where the Crown, having been put on notice of the argument, does not call evidence to justify the detention, this argument still be successful. It is worth noting however that according to a number of recent SCJ cases, you should style your Application to seek exclusion under s.24(1) as well as 24(2).[24] In the alternative, an overhold may be considered as an ‘aggravating factor’ in a 24(2) analysis related to other breaches of the Charter.[25]

Recent cases where an overholding breach was found include:

  • R. v. Farquharson, [2019] O.J. No. 6107: 3.5 hours, samples excluded under 24(2). The case also featured a 10(a) breach.
  • R. v. Bouchard, [2019] O.J. No. 3663 – nearly 6 hours overhold, samples excluded under 24(2). The case also featured a 10(b) immediacy breach.
  • R. v. Singh, [2020] O.J. No. 494 – 8 hours, samples excluded under 24(2). The case also featured a 10(b) immediacy breach.
  • R. v. Brar, [2020] O.J. No. 3439 – 4.75 hours, samples not excluded. On Appeal, both the breach finding and the decision to admit the breath samples were affirmed. 24(2) was found to not be available, but even if it was, would not have resulted in exclusion. On an unrelated issue, the charge was stayed (for unreasonable delay) on Appeal.

8) Proof of Impairment

Proof of impairment is a fairly ‘bread and butter’ issue, however this paper wishes to briefly address two tools that can be utilized in attempting to obtain an acquittal. Firstly, in the unreported decision of R. v. Rector, an ‘impaired by drug case’, Justice Brown concluded that although there was “a strong likelihood that Mr. Rector’s ability to operate a motor vehicle was impaired by a drug to some degree at the time in question”[26] he was nonetheless not satisfied beyond a reasonable doubt of the guilt of the accused.

Instrumental to this success, the defence was able to have statements made during the course of the DRE examination excluded on a voluntariness voir dire because they were not recorded.[27]

Secondly, although it is not from the past year, I came across a particularly helpful 2017 Summary Conviction Appeal decision. It is from British Columbia and so it is not binding but it is of persuasive value particularly when dealing with a case involving moderately bad driving.

  1. R. v. Stoutenburg, [2017] B.C.J. No. 2434 is a case in which a witness testified that,
  • over a period of 15 minutes;
  • the vehicle was slowing down and speeding up;
  • crossing over the centre line and the shoulder line; and
  • at one point the vehicle entered a bus stop area adjacent to the highway.[28]

The trial judge concluded that all of those observations together could still be explained by other reasonable explanations (even absent evidence of them, per R. v. Villaroman). The trial judge’s findings on this point were summarized by the appeal judge as follows:

The trial judge found that the respondent’s manner of driving was inappropriate in the extreme, involving crossing the centre line, speeding up and slowing down, and driving through a bus loop. However, he said it was possible that the manner of driving related to the respondent being tired, talking on the phone, texting, eating, or otherwise being distracted.[29]

On Appeal, the Crown argued that this was speculation (which is what you could expect a Crown in your case to argue if you make this submission). The Summary Conviction Appeal judge disagreed finding that:

the trial judge’s explanation of the respondent’s manner of driving, including being tired, talking on a phone, texting, eating, or otherwise being distracted, is in accord with human experience and common sense and was plausible rather than speculative.[30]

The Appeal was ultimately allowed on the basis that despite these proper findings, the trial judge failed to then go on to consider other inculpatory evidence in addition to the driving evidence.

In cases where you have particularly bad driving but then, once the police intervene, there is an absence of evidence of impairment (and perhaps cell-block video showing no issues at the station) this case helps provide a cogent basis on which you can argue that the court should be left with a reasonable doubt.

9) Disclosure Issues

Rolling Logs

This paper had originally planned to do a deep-dive into the issue of rolling logs however since Justice Beaudoin’s decision in the spring of 2019[31] covered last Montebello, there has not been much jurisprudence; this could be, in part, due COVID-19 shutting the courts down. Just as I expect the COVID-related 11(b) jurisprudence to develop over the next year, so too do I expect to see more cases on this subject, as courts begin hearing trials in a high volume once again.

I will point out in passing that the one successful order for rolling logs in the past year that I could find on QuickLaw was R. v. Morin, [2019] O.J. No. 6611 in which Matthew Wolfson persuaded Justice Brunet to order the disclosure of the rolling logs in what appeared to be a decision treating them as first-party Stinchcombe disclosure.[32]

Dispatch Records

One parting word on disclosure is that since the Spring of 2018, the Crown’s office in Ottawa will routinely disclose MDT logs and dispatch audio provided you include the names/badge numbers of the officers requested and a timeframe which is circumscribed to the relevant timeframe of the investigation.

10) Crown Resolution Policy

As we all know, Crown policy prohibits discontinuing a prosecution of a 320.14(a) or (b) charge where there is a reasonable prospect of conviction absent truly exceptional circumstances that are so rare and compelling as to make it not in the public interest to proceed. In other words, getting a “careless” on the basis of the circumstances of the accused is next-to-impossible.

Practically speaking, where – despite a reasonable prospect of conviction – you are able to demonstrate to the Crown that there is a significant enough issue which could impact on that prospect of conviction, the Crown may sometimes offer to resolve the case with a “careless”.

Due to COVID-19, there has been a recent change to Crown policy.

Where it is consistent with public safety, Prosecutors should also consider all available and appropriate sanctions and make best efforts to resolve cases as early as possible to move them out of the justice system.[33]

This has resulted in so-called “COVID deals” being offered under the exceptional circumstances of the public-interest basis upon which to discontinue prosecutions.

There are a number of factors the Crown will consider and those are listed on pages 2 and 3 of the policy which is appended to this paper at Tab 33. However, in practice, it appears that the decision will more often than not turn on whether or not the case is free of a number of disqualifying factors. Those include cases where:

  • bodily harm or death resulted
  • the accused’s blood alcohol concentration is equal to or more than 120 mg within two hours after operating a vehicle
  • the accused has a prior criminal or HTA record for similar offences
  • the accused is prohibited or suspended from driving under a federal or provincial act
  • a collision or significant bad driving was reported
  • the accused has a prior HTA ‘warn’ or ‘ADLS’ licence suspension
  • the accused was being paid for driving at the time
  • a person under the age of 16 years was a passenger in the vehicle
  • the accused refused to provide a breath or blood sample
  • the accused was driving a large motor vehicle
  • the impairment was caused by drugs or a combination of drugs and alcohol.

These “COVID deals” typically result in a fine but also a probation order that requires the installation of an alcohol ignition interlock device and also the performance of the “Back on Track” remedial program. In seeing a rise in these offers, it will be interesting to see if there is a corresponding drop in ‘RPC-based carelesses’.

Conclusions

In writing this paper I am aware that there are many topics I could have covered including impaired by drug; care or control; specific issues on refusals; evidentiary issues related to the certificate of a qualified technician or certificate of analyst; sentencing, and etc. The purpose of this paper was not to cover every possible issue which may arise but rather provide an update of recent cases that form the major tools you can use for the common issues that we face as practitioners.

[1] There is also the case of R. v. Odrowski, [2019] O.J. No. 6018 in which there was a 7-minute delay however this case is of limited value since the Crown conceded the breach and since the 24(2) analysis is very unfavourable.

[2] TAB 1 – R. v. Roth, [2020] O.J. No. 2814, at para. 32.

[3] TAB 2 – R. v. Menezes, [2019] O.J. No. 4065, at paras. 24 and 25.

[4] TAB 12 – R. v. Pillar, [2020] O.J. No. 3791, at para. 61.

[5] TAB 17 – R. v. Gordon, [2018] O.J. No. 2092, at para. 53.

[6] R. v. Ruscica, [2019] O.J. No. 2021, at paras. 43 to 47.

[7] TAB 20 – R. v. Doobay, [2019] O.J. No. 6387, paras. 53 to 55.

[8] TAB 21 – R. v. Fisk, [2019] O.J. No. 6302, at para. 24.

[9] TAB 22 – R. v. Ghotra, [2020] O.J. No. 2650, at paras. 38 to 41.

[10] A phrase coined in R. v. Vanstaceghem, [1987] O.J. No. 509 to indicate the requirement at law where “Having regard to the officer’s knowledge that the respondent was French, that the respondent certainly was not at ease with the English language in that he did not understand the breathalyzer demand, I am of the opinion that special circumstances existed which required the officer to reasonably ascertain that the respondent’s constitutional rights were understood by him.”

[11] Justice Doody found a 10(b) immediacy breach but declined to find an ASD demand immediacy breach.

[12] TAB 12 – R. v. Pillar, supra, paras. 136 to 138.

[13] Ibid.

[14] That the Court of Appeal didn’t even find to be a breach…which would make the oft-cited language about 24(2) obiter dictum; I’m just sayin’.

[15] The defence in Jennings only raised s.8 however you should likely concede that had the defence raised the s.9 breach that was directly tethered to the s.8 breach (reasonable and probable grounds) that the outcome in Jennings would have been the same.

[16] See TAB 24 – R. v. Sultan, [2019] O.J. No. 5809 for an excellent application of this principle.

[17] TAB 25 – R. v. Persaud, [2019] O.J. No. 5448, at para. 19.

[18] TAB 19 – R. v. Al-Qa’aod, [2019] O.J. No. 4809, at para. 36.

[19] TAB 3 – R. v. Al-Qa’aod, [2020] O.J. No. 3026, at para. 23.

[20] TAB 26 – R. v. Mahipaul, [2018] O.J. No. 2688, at paras. 23 and 24.

[21] R. v. Jennings, [2018] O.J. No. 1460, at para. 32.

[22] TAB 1 – R. v. Roth, supra, at para. 86.

[23] TAB 4 – R. v. Hassan, supra, at paras. 90 and 91.

[24] R. v. Larocque, [2018] O.J. No. 5617, at para. 65; R. v. Brar, [2020] O.J. No. 3439; R. v. Babulal, [2020] O.J. No. 105; R. v. Zaidman, [2019] O.J. No. 6745.

[25] R. v. Topper, [2016] O.J. No. 6331, at paras. 56 and 57

[26] TAB 29 – R. v. Rector (2020, Unreported Trial Decision) at para. 109.

[27] TAB 30 – R. v. Rector (2020, Voluntariness Ruling).

[28] TAB 31 – R. v. Stoutenburg, [2017] B.C.J. No. 2434, at para. 4.

[29] Ibid, at para. 24.

[30] Ibid, at para. 33.

[31] R. v. Amarelo-Gemus, [2019] O.J. No. 2173.

[32] TAB 32 – R. v. Morin, [2019] O.J. No. 6611, at para. 2

[33] TAB 33 – Crown COVID Policy, Page 1.

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