R v Simpson

R. v. Simpson

2017 ONCJ 321
Ontario Court of Justice — Justice P.A. Schreck | May 18, 2017

Background

At 12:50 a.m. on March 13, 2016, Bhamu Mallick was driving with his family when he spotted a grey Infiniti swerving between lanes and driving erratically. The driver was going well below the speed limit and almost hit Mallick's van, prompting him to call 911. Constable Joseph Crouse of Peel Police responded and pulled over Fitzroy Simpson at 1:12 a.m.

When Crouse approached the vehicle, he noticed Simpson fumbling with the window controls and detected a strong smell of alcohol. Simpson was unsteady on his feet and appeared drowsy. Crouse arrested him for impaired driving at 1:14 a.m., handcuffed him, and placed him in the back of the police cruiser. But instead of immediately reading Simpson his Charter rights, Crouse returned to Simpson's car to search for identification and seized an unspecified item from the vehicle.

Issues

1. Did the officer's delay in advising Simpson of his right to counsel violate section 10(b) of the Charter?
2. Should the breath test evidence be excluded under section 24(2) of the Charter?
3. Was there sufficient evidence to convict Simpson of impaired driving without the breath test results?

The Charter Violation and Systemic Police Problem

Justice Schreck found a clear violation of Simpson's Charter rights. Under R. v. Suberu, the phrase "without delay" in section 10(b) means "immediately" — no exceptions for administrative convenience. Crouse didn't advise Simpson of his right to counsel until 1:21 a.m., a full seven minutes after arrest. When questioned, Crouse admitted he thought the delay "wouldn't determine the outcome of a criminal trial" and that he "had enough time to go ahead and do that."

The judge was particularly troubled by what he described as a systemic problem with Peel Regional Police, citing over 20 recent cases where Peel officers violated the immediacy requirement of section 10(b). This wasn't an isolated mistake — it was part of a pattern of police ignoring well-established Charter duties. The court found this systemic breach serious enough to warrant excluding the breath test evidence, despite society's interest in prosecuting impaired driving cases.

Simpson's breath samples showed readings of 167 and 159 mg of alcohol per 100 ml of blood — well over the legal limit. But because of the Charter breach, this evidence was thrown out, and the "over 80" charge was dismissed.

Key Takeaway

Charter rights aren't suggestions — they're immediate legal requirements that police ignore at their own peril.

Even in routine impaired driving cases, procedural violations can torpedo the prosecution's case. The court will exclude crucial evidence when police systematically ignore Charter requirements, regardless of how guilty the accused might appear.