H. Roy Wellington

The Ontario Court of Justice considered whether breath samples obtained following a demand made with a non-operational Approved Screening Device (ASD) should be excluded under section 24(2) of the Charter.

The court found that the initial detention was lawful but became arbitrary when the officer continued detention solely to administer the ASD while lacking mouthpieces, rendering the demand invalid.

Subsequent arrest and breath samples were consequential Charter breaches.

The court held the breach was minor and inadvertent, mitigated by the accused’s opportunity to consult counsel, and that admitting the evidence would not bring the administration of justice into disrepute.

The accused’s application to exclude the evidence was dismissed, and he was found guilty.

The applicants, Rebecca Paredes and Matthew Stewart, faced drug and firearms charges.

They brought Charter applications under sections 8, 9, and 10(b), seeking exclusion of evidence (a loaded firearm and drugs) seized incident to their arrest.

The court found that the police lacked reasonable and probable grounds for arrest, leading to arbitrary detention (s. 9 breach).

It also found a s. 10(b) breach for Paredes due to delayed access to counsel, but not for Stewart.

The s. 8 strip search claim for Paredes was dismissed.

Applying the R. v. Grant factors, the court concluded that the serious s. 9 breach and its significant impact on the applicants' liberty, coupled with the police conduct, warranted the exclusion of the evidence to maintain the administration of justice's reputation, despite the societal interest in a trial on the merits for serious charges.

The accused brought pre-trial motions to exclude evidence in a drug trafficking prosecution involving heroin, fentanyl, cocaine, and psilocybin.

The accused challenged the sufficiency of the search warrants for two motel rooms, sought leave to cross-examine the affiant, and alleged Charter breaches regarding unlawful detention, strip searches, and delayed implementation of the right to counsel.

The court dismissed all motions, finding the warrants sufficient, the detention and strip searches justified, and that while the right to counsel was breached by delay, no evidence was obtained as a result of that breach.