[1]           David Mansoor (the “accused”) is charged that on May 20, 2017, in Vancouver, British Columbia, did unlawfully have in his possession cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act (the “CDSA”).

[2]           The accused has asserted that his rights contained in ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms (the “Charter”) were violated during the course of the police investigation, including:

[3]           Constable Davies testified in direct examination that he has been a police officer with the VPD for approximately 13 years. He has worked with the Beat Enforcement Team (the “BET”) in the Downtown Eastside and in patrol divisions for Districts 2 and 4 (Northeast Vancouver and Southwest Vancouver respectively). He also has experience in surveillance with a VPD Strike Force.

[4]           When he attended the Police Academy he received training in impaired driving investigations.

[5]           He testified that during the course of his career as a police officer, and in particular when he was assigned to the BET, that he dealt with individuals daily in the Downtown Eastside who were impaired by illicit drugs and/or alcohol.

[6]           He testified that when he was assigned to the patrol division for District 4 that he was involved in approximately one impaired driving investigation per month.

[7]           He testified that in his experience as a police officer that he was able to recognize signs of intoxication, both for drugs and alcohol.

[8]           On May 20, 2017, he was on duty in uniform and driving a marked police car with Constable Manson when they were flagged down by a pedestrian at 19:54 hours at the intersection of Main Street and East Hastings Street.

[9]           They were advised that a pedestrian had been struck by a vehicle approximately one block east of their location. They immediately went to the scene of the motor vehicle incident (the “MVI”).

[10]        Upon arrival at the MVI, Constable Davies observed a red Dodge Caravan parked in the eastbound centre lane of East Hastings Street. There was an individual (the accused) sitting in the right front passenger seat. There was a pedestrian lying on the roadway who was being attended to by civilians on scene.

[11]        Constable Davies began to talk to various witnesses as to what happened. He learned that the individual sitting in the right front passenger seat of the Dodge Caravan was the driver of that vehicle. He also learned that the accused was observed getting out of his vehicle and walking to the rear of the vehicle where he did something, and then returning back and entering the front of the vehicle.

[12]        Armed with this information, Constable Davies went to the front passenger side to speak to the accused. He described the accused as difficult to speak to. The accused would ramble, appeared distracted and was unfocussed. He would exit the vehicle and would not follow instructions to remain in the vehicle for his own safety.

[13]        The accused admitted to Constable Davies that he was the driver of the Dodge Caravan and that he had consumed marijuana the night before the MVI because a friend of his had recently passed away and he was upset.

[14]        Based upon his conversation with the accused and his physical demeanour, Constable Davies formed the opinion that the accused was mildly to moderately impaired by the consumption of marijuana.

[15]        Constable Davies then requested that Constable Coldwell, a certified Standardized Field Sobriety Test (“SFST”) technician, have the accused perform the SFST’s. After Constable Coldwell had the accused perform the SFST’s, she advised Constable Davies that the accused was impaired by the consumption of marijuana.

[16]        After receiving that information at 20:30 hours, Constable Davies advised the accused that he was under arrest for impaired driving. He did not immediately advise the accused of his s. 10 Charter rights as he wanted to search the van in light of information received that the accused may have exited the van and gone into the back of the van: Transcript, August 12, 2019, p. 7, ll. 29-47, and p. 8, ll. 1-5

[17]        Constable Davies testified that he was, “… thinking we would find a small amount of drugs… It was just a hunch from myself thinking it would be drugs…”: ibid at p. 8, ll. 3-24 (emphasis added).

[18]        Constable Davies testified that he began to search the rear compartment of the van but did not find anything. He then moved to the front of the van and located directly behind the driver’s seat a blue bag. When he opened the bag he found a series of a Ziploc baggies, which he believed contained flaps of cocaine.

[19]        At 20:36 hours Constable Davies arrested the accused for possession for the purpose of trafficking and advised him of his s. 10 Charter rights. After communicating his s. 10 Charter rights the accused responded by stating, “I want to talk to you. I can help you.”

[20]        Constable Davies testified that he did not advise the accused of the secondary caution that what he said could be used in evidence at that time, but did so later before conducting the formal interview of the accused.

[21]        After advising the accused of his s. 10 Charter rights, Constable Davies continued to search the Dodge Caravan. He located, between the front driver’s seat and the front passenger seat, a suspected marijuana grinder along with a small amount of suspected marijuana. The suspected marijuana was not submitted for analysis.

[22]        Constable Davies then walked the accused over to the VPD annex. The annex was approximately 200 feet away from the MVI. At the annex, the accused was placed in an interview room where an audio/visual interview was conducted by Constable Davies commencing at 21:24 hours.

[23]        Constable Davies testified that in relation to the accused’s demeanour that he, “… became more lethargic, had more difficulty focusing and by the end of the interview when we were finished he actually had trouble staying awake… [not] concentrating on the questions that I’m asking”: ibid at p. 13, ll. 34-44.

[24]        Constable Davies testified that before he commenced the interview with the accused he did not have any concerns with respect to the physical health of the accused or any reason to believe that he had been injured in the motor vehicle incident or that he may have been overdosing.

[25]        The audio/visual statement was played in court.

[26]        There was a point in the audio/visual statement when Constable Davies was asking the accused about his right to counsel that the answer was not clear. After listening to that portion of the audio/visual statement, Constable Davies believed the accused responded by stating, “Sure… Can I do it another day?”: ibid at p. 21, ll.5-9.

[27]        The cross-examination of Constable Davies was quite extensive and has been summarized as follows:

[28]        In the following exchange in cross-examination it was suggested to Constable Davies that the accused had asserted his right to speak to legal counsel during the interview:

[29]        In the following exchange the court asked Constable Davies if he considered the aforementioned waiver to be an unequivocal waiver:

[30]        Constable Coldwell testified that she was qualified to administer the SFST’s.

[31]        She arrived at the scene of the MVI at 19:59 hours. At one point she was advised by Constable Davies that the accused had admitted to smoking marijuana the night before. Constable Davies requested that she conduct SFST’s on the accused.

[32]        She made the SFST demand on the accused at 20:17 hours. She explained and demonstrated three physical tests that she wanted him to perform.

[33]        The accused stated that he understood.

[34]        The accused was unable to adequately perform the first two physical tests. Constable Coldwell decided that the accused was too impaired to perform the third test as she was concerned for his safety if he was to fall down. She described his level of impairment as “very impaired”.

[35]        She advised Constable Davies at approximately 20:30 hours that it was her opinion that the accused’s ability to operate a motor vehicle was impaired by the consumption of marijuana.

[36]        Constable Coldwell issued and served a Notice of Prohibition and a Notice of Impoundment pursuant to the Motor Vehicle Act of British Columbia (the “MVA”) on the accused.

[37]        Constable Coldwell testified that persons who are served with a Notice of Prohibition and a Notice of Impoundment will have their motor vehicle towed to a VPD garage where an inventory search will be performed.

[38]        Constable Mancin was partnered with Constable Davies the night of the MVI.

[39]        He testified in direct examination that at that time he had been a VPD member for seven years.

[40]        At the scene of the MVI the accused was “handed off” to him. He believed at that time that the accused was under arrest for impaired driving as he was in handcuffs.

[41]        Constable Mancin performed a pat down safety search and found $355.00 in cash and a cellular telephone that rang six times during the course of his involvement with the accused.

[42]        He testified that he asked the accused some questions about the cash and the accused told him that he did not know how much money he had.

[43]        He testified that Constable Davies came up to him and that he told Constable Davies about the money he found and the ringing cellular telephone. Constable Davies then arrested the accused for possession for the purpose of trafficking and gave him his s. 10(b) Charter right.

[44]        In cross-examination Constable Mancin agreed with the suggestion that he did not know at the time that he was questioning the accused about the cash whether or not the accused had received his s. 10 Charter rights.

[45]        The accused submitted that he was physically and/ or psychologically detained by Constable Davies at the scene of the MVI and that Constable Davies failed to promptly and fully inform the accused of his Charter rights pursuant to s. 10.

[46]        He submitted that the surrounding circumstances should lead to the conclusion that the accused had no choice but to comply with Constable Davies’ directions having regard to the circumstances giving rise to the encounter at the MVI, the nature of Constable Davies’ conduct and the particular characteristics or circumstances of the accused: R. v. Grant, 2009 SCC 32 at para. 44.

[47]        While Constable Davies acknowledged in cross-examination that in his mind he had detained the accused, it remains for the court to decide if there was a physical and/or psychological detention.

[48]        The accused submitted that the court ought to find that the investigation into the MVI quickly shifted into an investigation into impaired driving and the accused was then singled out for a “focused investigation” by Constable Davies, which ultimately resulted in Constable Caldwell performing the SFST’s at the roadside.

[49]        Throughout Constable Davies’ interactions with the accused at the MVI, he controlled the accused’s movements and, given the line of questioning by Constable Davies of the accused’s drug use, the reasonable observer would have understood that the accused had no choice but to comply with Constable Davies’ directions.

[50]        The accused submitted that other police officers on scene, including Constable Coldwell, were directly involved with the accused and that the circumstances surrounding their contact with the accused exacerbated the alleged s. 10 Charter breaches, as there was a failure by those officers to promptly and fully inform the accused of his rights under s. 10.

[51]        It was only after Constable Davies had searched the van driven by the accused and located what he believed to be flaps of cocaine that he was finally informed of his arrest for possession for the purpose of trafficking at 20:36 hours and then given his s. 10 rights.

[52]        In particular, Constable Davies held off in providing the accused with his s. 10(b) Charter Right for the sole reason that, based on information that the accused had been in the back of the van, he wanted to,…“search the vehicle to see what was there”.

[53]        The accused submitted that this breach is serious and significant, as Constable Davies went immediately to search the van driven by the accused instead of complying with his obligation to fully inform the accused of his s. 10(b) right.

[54]        The accused submitted that Parliament has established a two-part regime to address the problem of impaired driving. The first step is set out in s. 252(2) of the Criminal Code of Canada (the “Code”), which provides for screening tests at the roadside after the interception of a motor vehicle. The second step, set out in s. 254(3) of the Code, establishes that a breathalyzer test will usually be performed at a police station: R. v. Woods, 2005 SCC 22 at para. 6.

[55]        The accused submitted that s. 254(2) of the Code requires that the demand that an accused perform physical coordination tests is to be made forthwith, or “immediately” or “without delay”: ibid at para. 13.

[56]        In this particular case, the accused submitted that Constable Davies and other police officers at the MVI who came into direct contact with the accused, failed to make the demand “immediately” or “without delay” that the accused perform coordination tests as required.

[57]        In particular, Constable Davies testified that in his opinion the accused appeared distracted, rambled and could not answer questions relating to the MVI. Constable Davies had both training and field experience in dealing with people impaired by alcohol and drugs. He testified that he suspected almost “immediately” that the accused had a drug in his body at 19:58 hours and therefore was obliged to make the demand that the accused perform coordination tests.

[58]        He submitted that there were no unusual circumstances in this case to justify holding off making the demand. It was Constable Davies’ tactical decision to leave the demand up to Constable Coldwell because she was a qualified SFST police officer. That decision resulted in a 19 minute delay after Constable Davies first interacted with the accused until Constable Coldwell made the demand at 20:17 hours.

[59]        The accused submitted that he was compelled to participate in physical coordination tests that compromised his reasonable expectation of privacy. The failure of the police to comply with the “forthwith” component of s. 254(2) of the Code resulted in an unauthorized and unlawful search contrary to s. 8 of the Charter.

[60]        In the alternative, the accused submitted that Constable Coldwell made the demand that he perform physical coordination tests without reasonable suspicion. The grounds articulated by Constable Coldwell, including information related to her by Constable Davies, that the accused had used marijuana, and her observation that he had heavy eyelids and glassy eyes, collectively were not reliable to establish a reasonable suspicion and should be rejected.

[61]        The accused submitted that the initial investigative detention of the accused by Constable Davies quickly “morphed” into a different character when the MVI investigation became an impaired driving investigation. The failure thereafter to forthwith make a demand that he perform physical coordination tests resulted in his arbitrary detention contrary to s. 9 of the Charter.

[62]        The accused submitted that Constable Coldwell also breached his s. 10(b) Charter right when she made the demand under s. 254(2) of the Code. In his written argument in part the accused submitted that when Constable Coldwell began her investigation he was still subject to his initial detention by Constable Davies, “… but by 20:17, Constable Coldwell had made a discreet detention through her SFST demand”: Written Argument, para. 38.

[63]        The accused submitted that he was not properly informed of his right to counsel, as he was unable to understand his s. 10(b) Charter right warnings because he was impaired by drugs.

[64]        The submission of the accused on this point was reinforced by Constable Davies testimony that “it was possible” that he may not have actually asked the accused at the roadside if he understood his rights under s. 10(b) of the Charter. The only response noted by Constable Davies in his notebook was, “I want to talk to you, I can help you”: ibid at para. 61.

[65]        The accused submitted that during the recorded interview Constable Davies read the accused his s. 10(a) and s. 10(b) Charter rights and then asked the accused if he understood his s. 10(a) Charter right but made no such inquiry as to whether the accused also understood his s. 10(b) Charter right.

[66]        He submitted that it was critical that at the time the accused was being interviewed, when Constable Davies asked him if he wanted to speak to a lawyer. the accused clearly misunderstood the meaning of the “without delay” portion of the advice when he asked Constable Davies if he could speak to the lawyer “right now”, or if he could do it “another day”: ibid at para. 63.

[67]        Alternatively, the accused submitted that the court ought to find that there is ample evidence to establish that the accused was sufficiently impaired that he did not understand his s. 10(b) Charter right based upon the testimony of Constable Coldwell that the accused was “very impaired”, Constable Davies’ testimony that the accused was “distracted and rambling” and the conduct of the accused as depicted in the audio/visual statement.

[68]        Also in the alternative, he submitted that at the very least Constable Davies ought to have cautioned the accused that he need not participate in any interview until he was certain that he did not wish to speak to counsel, as he had clearly stated at the outset of the interview that he said “sure” when he was asked if he wanted to speak to a lawyer and then immediately changed his mind: ibid at para. 70.

[69]        The accused also submitted that the statement given by the accused to Constable Davies, in all of the surrounding circumstances, would establish that it was not a voluntary statement.

[70]        He submitted that the accused was never given the secondary police warning that he had a choice as to whether or not he wanted to speak to Constable Davies. At no time in the audio/video statement did the accused ever demonstrate an awareness that he had the choice to simply stop talking.

[71]        He submitted that the lack of the secondary police warning in combination with his apparent level of impairment raises a reasonable doubt on whether or not the accused truly wanted to participate in the interview.

[72]        In his written argument, the accused addressed the approach the court ought to take in applying s. 24(2) of the Charter if the court finds his rights under ss. 8, 9 or 10 have been established:

[73]        The accused submitted that in applying the three stage Grant framework, the first two stages being the seriousness of the Charter infringing conduct and the impact of the breaches on the Charter protected interests of the accused, pulls toward exclusion of the drugs found in his van.

[74]        The accused submitted that the third stage of the Grant framework, which engages society’s interest in the adjudication of the case on its merits, will seldom, if ever, tip the balance in favour of admissibility.

[75]        The Crown submitted that, with respect to the alleged breaches of ss. 8 and 9 of the Charter, the Crown carries the burden to establish, on a balance of probabilities, that the warrantless arrest of the accused and the subsequent search of his van at the MVI were justified.

[76]        It submitted that with respect to alleged breaches of s. 10(a) and (b) of the Charter that the accused carries the burden to establish, on a balance of probabilities, that those specific rights were violated.

[77]        It submitted that the accused was not arbitrarily detained at the scene of the MVI for criminal investigation, as he was obliged, in any event, to remain at the scene of a motor vehicle accident by operation of s. 68 of the Motor Vehicle Act of British Columbia (the “MVA”).

[78]        In the alternative, it submitted that not every interaction with the police amounts to an arbitrary detention. Even where a person is being investigated for criminal activity does not necessarily lead to a conclusion that there was a breach of s. 9 of the Charter: R. v. Suberu, 2009 SCC 33 at para. 23.

[79]        It submitted that, while the accused was obliged to remain at the scene of the accident pursuant to the MVA, he was not being restricted or subject to any handcuffs. When it appeared to the police that he might leave the scene of the MVI, he was directed to remain but was not actually physically restrained or otherwise interfered with: Transcript, August 15, 2019 at p. 27, ll. 9-21. 

[80]        It submitted that the accused was detained at 20:17 hours when Constable Coldwell made the SFST demand. When Constable Davies was advised by Constable Coldwell at 20:30 hours of the results of the SFST’s, the accused was properly advised that he was under arrest for impaired driving in compliance with s. 10(a) of the Charter.

[81]        It submitted that the accused should have been advised of his Charter right pursuant to s. 10(b), but that failure would not invalidate the search of the van incidental to the lawful arrest of the accused: ibid at p. 24, ll. 37-47 and p. 3 of Written Submissions.

[82]        It submitted that Constable Davies was entitled to rely on the accused’s statement that he had used marijuana and prescription drugs earlier the night before as grounds to establish the reasonable suspicion for the making of the SFST demand.

[83]        In the alternative, over and above his admission that he had used marijuana and prescription drugs, there was evidence that the accused, “… was distracted, rambled, had a hard time focusing mentally, had a hard time keeping track of questions, would wander, that his speech was slow. He appeared dazed, heavy eyelids and eyeglasses”: ibid at p. 28, ll. 34-38.

[84]        It submitted that Constable Davies acted properly in delaying the arrest of the accused for impaired driving, as he was not trained to conduct the SFST’s. Constable Coldwell was the trained field officer to conduct those physical tests and therefore was the person responsible to make the SFST demand.

[85]        It submitted that Constable Coldwell made the SFST demand forthwith when she came into physical contact with the accused. After the accused miserably failed the physical tests, that information was promptly communicated to Constable Davies who then arrested the accused for impaired driving.

[86]        In the alternative, it submitted that even if the timing of the SFST demand commenced at an earlier time, the delay was reasonable in all of the circumstances. In particular, having regard to the fact that this involved a collision with a pedestrian.

[87]        It submitted that while Constable Davies should have advised the accused of his s. 10(b) Charter right after he was arrested for impaired driving, the court ought to find that this was an “oversight” by Constable Davies, as he knew he should have communicated the s. 10(b) right following the arrest of the accused.

[88]        It submitted that Constable Davies had an objective basis for his “hunch” that he would find drugs in the van. In relation to the basis for this hunch the Crown submitted:

[89]        In relation to the accused’s statement to Constable Davies, it submitted that he had the capacity to understand his s. 10(b) Charter right and therefore met the test for the “operating mind”. Additionally, the accused did not invoke his s. 10(b) Charter right prior to giving his statement to Constable Davies.

[90]        It submitted that the court ought to find that the accused has failed to establish, on a balance of probabilities, that he either invoked or asserted his right to counsel in a reasonably diligent manner: Written Submissions at p. 4.

[91]        It submitted that, if the court was to find Charter breaches, the drugs located in the van and the accused’s statement to Constable Davies should not be excluded from applying the Grant analysis for reasons summarized as follows:

[92]        Section 8 of the Charter reads as follows:

[93]        Section 9 of the Charter reads as follows:

[94]        Sections 10(a) and (b) of the Charter read as follows:

[95]        Section 24(2) of the Charter reads as follows:

[96]        Section 254(2)(a) of the Criminal Code of Canada (the”Code”) in 2018 reads as follows:

[97]        The statutory scheme for the SFST’s is found in s. 2 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, SOR/2008-196 which reads as follows:

[98]        Section 68(1)(a) of the MVA reads as follows:

[99]        Section 215(3)(b) of the MVA reads as follows:

[100]     Section 215.4(1) and s. 215.4(6) of the MVA reads as follows:

[101]     The accused submitted that Constable Davies breached his right to legal counsel after arresting him at 20:30 hours for impaired driving.

[102]     Constable Davies admitted that he did not comply with s. 10(b) of the Charter, as he wanted to search the van driven by the accused because he had a “hunch” that he would find a small amount of drugs.

[103]     He testified that his failure to advise the accused of his right to counsel as required by s. 10(b) was a “misunderstanding” and not “deliberate”.

[104]     He testified that the basis for the search was that he viewed it as a search incidental to arrest, “… and I was looking for evidence of impairment related to the MVI and the impaired”: Transcript, August 12, 2019 at p. 8, ll. 25-29.

[105]     The accused further submitted that Constable Mancin breached his s. 10(b) Charter right when he was questioning him about the cash he found on him after the pat down search prior to him receiving his s. 10(b) Charter right.

[106]     I find that the accused has established on a balance of probabilities that his s. 10(b) Charter right was breached by both Constable Davies and Constable Mancin at the roadside of the MVI.

[107]     With that finding in mind, it must be determined whether or not the denial of the right to counsel is relevant to a determination of the reasonableness of the pat-down search of the accused by Constable Mancin and the search of the accused’s van by Constable Davies.

[108]     The SCC in R. v. Debot, [1989] 2 SCR 114, at para. 4, states that it will only be in “exceptional circumstances” that the denial of the right to counsel will trigger a violation of s. 8 of the Charter. A denial of the right to counsel is not a factor in assessing the reasonableness of a search.

[109]     I find that Constable Davies had reasonable grounds to arrest the accused for impaired driving. He performed a search of the accused’s van as incidental to his arrest. The aim of the search was to locate evidence that would support the impaired driving arrest. The search was brief in duration and, other than Constable Davies looking into the bag containing the suspected illicit drugs, was otherwise nonintrusive.

[110]     Constable Mancin believed that the accused had been arrested for impaired driving, as he was in handcuffs when he was “handed off” to him. He then conducted the pat-down search of the accused which resulted in him finding both cash and a cellular telephone on the accused.

[111]     I find that it was reasonable for Constable Mancin to believe that the accused was arrested for impaired driving, as he was in handcuffs.

[112]     I find that it was also reasonable for Constable Mancin to perform a pat down-safety search of the accused. There was no evidence that would either establish or suggest that the search was violent or intrusive.

[113]     I find that the Crown has established on a balance of probabilities that there were no “exceptional circumstances” in this case that the accused’s denial of his right to counsel resulted in a s. 8 Charter right breach.

[114]     Constable Davies testified that he had been trained in impaired driving investigations and that he frequently dealt with people who were intoxicated during the time that he was a member of the BET.

[115]     He testified that he was not qualified as an SFST police officer.

[116]     He testified that he observed that the accused displayed some unusual behaviour at the scene of the MVI, including rambling language, that he was distracted and that he had trouble focusing.

[117]     The accused also admitted that he had smoked some marijuana at 1:30 in the morning on the previous night.

[118]     Constable Davies testified that based upon his observations of the accused’s demeanour and the admission of the accused that he had previously smoked marijuana, it was his opinion that the accused was impaired by marijuana.

[119]     He then requested that Constable Coldwell, a qualified SFST police officer, assess the state of impairment of the accused.

[120]     At 20:17 hours Constable Coldwell demanded that the accused perform physical coordination tests pursuant to s. 254(2)(a) of the Code after both explaining and demonstrating how the tests were to be performed. The accused failed two of the three required tests. Concerned over the physical well-being of the accused, Constable Coldwell decided the accused should not perform the third required test.

[121]     Constable Coldwell advised Constable Davies that the accused had failed the field sobriety tests. At 20:30 hours Constable Davies arrested the accused for impaired driving.

[122]     As Constable Davies was not a qualified SFST police officer he was not in a position to make a demand pursuant to s. 254(2)(a) of the Code. He was not in a position to administer the physical coordination tests forthwith (emphasis added).

[123]     The Ontario Court of Appeal (the “ONCA”) in Her Majesty the Queen v. MacMillan, 2013 ONCA 109 at para. 29 is instructive on this point:

[124]     While the ONCA in MacMillan was dealing with a roadside demand for a sample of breath pursuant to s. 254(2)(b) of the Code rather than a demand pursuant to s. 254(2)(a) of the Code, the reasoning remains the same that it should be a police officer properly qualified in SFST’s who would make the demand forthwith on a driver of a motor vehicle.

[125]     In this case it was Constable Coldwell who was qualified as a SFST police officer. After receiving information concerning the sobriety of the accused from Constable Davies she immediately engaged the accused and made the demand that he was to perform the SFST’s.

[126]     I find Constable Coldwell to be a credible and reliable witness. I find she was careful and knowledgeable in her testimony when explaining and demonstrating to the accused the physical coordination tests that he was required to perform.

[127]     I find that Constable Coldwell made the SFST demand forthwith as required by s. 254(2)(a) of the Code.

[128]     The accused has also contended that police officers at the scene of the MVI arbitrarily detained the accused when he should have been advised that he was being physically detained for an impaired driving investigation and then been advised of his right to legal counsel as required by s. 10 of the Charter.

[129]     The main focus of the concern of the accused on this issue pertained to the actions, or inactions, of Constable Davies.

[130]     I agree with the submission of the Crown that when Constable Davies and his partner arrived on the scene of the MVI it was a dynamic and urgent situation in which a motor vehicle had struck and injured a pedestrian.

[131]     Other police officers and emergency personnel quickly arrived on the scene. A civilian identified the accused as the driver of the motor vehicle that struck the pedestrian.

[132]     Armed with that information, I find that it was incumbent upon Constable Davies to further investigate circumstances surrounding the MVI, including the possible involvement of the accused.

[133]     Based upon Constable Davies’ police experience in dealing with impaired and intoxicated individuals, his observations of the physical condition of the accused and the accused’s admission that he had consumed marijuana the previous morning, he embarked on an impaired driving investigation which resulted in the accused being detained at the roadside for investigative purposes.

[134]     I accept Constable Davies’ evidence as credible and reliable in establishing that the interference with the accused’s liberty at the roadside was reasonably necessary in all of the circumstances. The accused was not handcuffed. Constable Davies’ concern that the accused could wander off the scene of the MVI justified his direction to the accused that he remain in his motor vehicle.

[135]     Police officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all of the circumstances that the individual is connected to a particular crime and that such a detention is reasonably necessary on an objective view of the circumstances: R. v. Mann, 2004 SCC 52 at para. 45 applied in R. v. Bassi, 2019 BCSC 1224 at para. 27.

[136]     Brundrett J. in Bassi, at para. 29, explained the test in establishing the reasonable suspicion standard:

[137]     I find, on an examination of the circumstances known to Constable Davies, that they would indicate that he had reasonable grounds to suspect that the accused was connected to a possible impaired driving in relation to the MVI.

[138]     I find that the accused’s detention was reasonably necessary, upon an objective view of the circumstances, to further investigate the accused’s possible impairment and involvement as a driver, and to ensure that he did not further depart from the scene as required by s. 68 of the MVA.

[139]     I conclude that the Crown has established on a balance of probabilities that the accused was not arbitrarily detained contrary to s. 9 of the Charter and therefore no s. 8 Charter right was engaged prior to his arrest by Constable Davies for impaired driving.

[140]     I agree with the accused that prior to him giving his audio/visual statement to Constable Davies when Constable Davies advised him of his s.10 Charter rights that he asked him if he understood his s. 10(a) right but did not ask him if he understood his s. 10(b) right.

[141]     I find this is an important circumstance in the context of this case as there was a significant body of evidence to establish that the accused was impaired by drugs.

[142]     I have accepted Constable Coldwell to be a credible and reliable witness. She testified that, in her opinion, the accused was “very impaired” when he attempted to perform the SFST’s.

[143]     I also accept the evidence of Constable Davies as both credible and reliable in establishing that when he interacted with the accused at the roadside that the accused was distracted, would ramble, was unfocused and would not follow simple instructions to remain in his own vehicle for his own safety.

[144]     It was also at the roadside that the accused admitted to consuming marijuana in the early morning hours on the day before the MVI.

[145]     During the course of the audio/visual statement the accused admitted that he also did cocaine the night before.

[146]     I have watched and listened to the audio/visual statement on several occasions. I did not find the speech of the accused to be clear and articulate. At times he would launch into a nonsensical monologue. For example, at one point Constable Davies asked the accused where the drugs in his van came from and the accused rambled on about attending a Sikh wedding, talked about his childhood and how he was not asked to do homework and that he had a good head on his shoulders.

[147]     I agree with the submission of the accused that he consistently presented as an individual who was unable to focus on straight forward questions being asked by Constable Davies: Written Submissions at para. 65.

[148]     I find that the accused was significantly impaired by drugs at the time he participated in the audio/visual statement with Constable Davies. With that finding in mind, there must be a careful examination of what was said during the course of the audio/visual statement to determine if he unequivocally waived his right to legal counsel.

[149]     In a span of approximately twenty minutes Constable Davies asked the accused on at least five occasions whether or not he wanted to speak to a lawyer. On each occasion the accused had a different answer to that question ranging from, “… uhm, well ya I will if it goes down further…”, “… well, I guess I should right?”,  “sure”, to “.. not really…”, “… there’s no point…”, “… can we do this another day?” and “…  eventually I will…”

[150]     There was an occasion in the latter part of the audio/visual statement when the accused told Constable Davies that he “lost [my] train of thought again” and then said, “what are we just talking about?”

[151]     It must be kept in mind that the Crown bears the burden of establishing that the accused unequivocally waived his right to legal counsel. The Crown must prove that there is a “clear, free and voluntary change of mind made by someone who knew what they were giving up”: R. v. Prosper, 1994 CanLII 65 (SCC).

[152]     It must also be kept in mind that the standard for a valid waiver of the right to counsel is “very high”: R. v. L.T.H., 2008 S.C.R. 739 at para. 41.

[153]     I disagree with the Written Submissions of the Crown [supra at p. 4] that the accused would be required to establish that he was diligent in his attempts to contact legal counsel. We never got to that point in this case.

[154]     In support of their position the Crown made reference to R. v. Mehan, 2017 BCCA 21 and R. v. Johal, 2015, BCCA 246. I find both cases can be distinguished. In Mehan the accused said “no” clearly and on one occasion when he was advised of his s. 10(b) Charter right. In Johal the accused was offered the opportunity to speak to legal counsel on several occasions and on each occasion he said “no”.

[155]     As noted above, the accused gave various responses when he was asked whether or not he wanted to speak to legal counsel which I find demonstrated an equivocation in relation to his understanding and exercising of his s. 10(b) Charter right.

[156]     The case of R. v. Hollis, 1992 CanLII 6007 (BC CA), [1992] B.C.J. No. 2066 at paras. 33 and 34 applied in Bassi, supra at para. 101, is instructive:

[157]     I find that all of the surrounding circumstances leading up to, and including the taking of, the audio/visual statement from the accused establish that this is one of those “rare” cases where the accused’s significant level of impairment amounted to special circumstances that impacted his ability to understand his s. 10(b) Charter right.

[158]     In these types of rare cases, special circumstances allow a trial judge to conclude that a detainee subjectively did not understand his rights even though he or she may objectively appear to understand them: R. v. Hisch, 2004 BCSC 410 at paras. 26-27.

[159]     I conclude that the accused has established on a balance of probabilities that his s. 10(b) Charter right has been breached.

[160]     The SCC in Grant supra established a three step approach in inquiring whether or not evidence should be excluded when a breach of the Charter has been established pursuant to s. 24(2) of the Charter:

[161]     I have found that Constable Davies breached the accused’s s. 10(b) Charter right as he did not inform him of his right to counsel after he was arrested for impaired driving.

[162]     I have found that Constable Mancin breached the accused’s s. 10(b) Charter right when he was questioning the accused prior to him receiving his s. 10(b) Charter right.

[163]     The accused received his s. 10(b) Charter right only after he was re-arrested by Constable Davies for possession for the purpose of trafficking.

[164]     I take into account the following considerations in determining the seriousness of the Charter-infringing state conduct:

[165]     I do not find that the accused has established on a balance of probabilities that there has been any state conduct that would be described as sufficiently serious to bring the administration of justice into disrepute

[166]     I take into account the following considerations in determining the impact of the breaches on the Charter-protected interests of the accused:

[167]     With respect to the Grant inquiry I take into account the following considerations in determining the seriousness of the Charter infringing State conduct:

[168]     I find that the Charter infringing state conduct is serious and calls for a strong need for the court to disassociate itself from that conduct.

[169]     This finding favours exclusion of the audio/visual statement.

[170]     I do not find that the accused has established on a balance of probabilities that the s. 10(b) Charter right breaches by Constable Davies or Constable Mancin would bring the administration of justice into disrepute by undermining the interests protected by s. 10(b) of the Charter.

[171]     I take into account the following considerations in determining the impact of the breaches on society’s interest in the adjudication of the case on its merits:

[172]     I do not find that the accused has established on a balance of probabilities that society’s interest in the adjudication of the case on its merits would be served by excluding the evidence obtained by the searches of Constable Davies and Constable Mancin.

[173]     I take into account the following considerations in determining the impact of the breach on the Charter-protected interests of the accused:

[174]     This finding favours exclusion of the audio/visual statement.

[175]     I take into account the following considerations in determining the impact of the breach on society’s interest in the adjudication of the case on its merits:

[176]     This finding favours admission of the audio/visual statement.

[177]     The accused’s s. 10(b) Charter right was breached by both Constable Davies and Constable Mancin at the roadside of the MVI.

[178]     The accused’s s. 8 and s. 9 Charter rights were not breached at the roadside of the MVI.

[179]     The accused’s s. 10(b) Charter right was breached by Constable Davies at the time the accused provided his audio/visual statement at the police station.

[180]     I decline to grant a remedy for the breach of the accused’s s. 10(b) Charter right at the roadside of the MVI.

[181]     The audio/visual statement that the accused gave to Constable Davies at the police station is excluded.