Citation
R. v. Poyntz, 2012 ONCJ 245
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MICHAEL POYNTZ
Before Justice J.W. Bovard
Heard on June 27, November 30, 2011; January 13, 2012
Reasons for Judgment released on April 23, 2012
Mr. K.R. Davidson; Ms. A. Samberg .......................................................................... for the Crown
Mr. T. Sarantis ................................................................................ for the accused Michael Poyntz
Bovard J.:
1Michael Poyntz is charged with impaired driving and with ‘over 80’ on November 28, 2009 in Toronto. He made an application pursuant to s. 24 (2) of the Charter for the exclusion of the evidence against him based on a breach of his rights under section 8 of the Charter. He also made an application for a stay of proceedings pursuant to s. 24 (1) of the Charter, based on a breach of his rights under s. 7 of the Charter, including for an abuse of process. These are the court’s reasons for its ruling on these applications and for its judgment on the trial proper.
2On consent, the trial proceeded in a blended fashion with the evidence on both the Charter applications and the trial proper being heard at the same time.
Background
3On November 28, 2009 Mr. Poyntz drove through a R.I.D.E. spot check and Officer Horton followed him and caught up to him shortly afterwards. After a few minutes of speaking with him and observing him, he charged him with impaired driving and took him to the R.I.D.E. mobile test facility so that he could give samples of his breath into an Intoxilyzer breath machine. The defence disputes that Officer Horton had reasonable and probable grounds to arrest Mr. Poyntz for impaired driving.
4Based on this arrest, Officer Horton made a demand on Mr. Poyntz that he provide samples of his breath. He did so and registered readings above the legal limit and Officer Horton charged him with ‘over 80’. The police recorded the procedure on video.
5Officer Horton prepared the disclosure and sent it to the Crown, including the video of the breath test procedure. The defence made timely requests for the video, but as a result of what appears to have been an administrative foul up, the Crown did not disclose it to the defence until a few weeks before the trial date. The defence requested an adjournment based on the late disclosure of the video. The court granted the adjournment and it set a new trial date. The trial proceeded on the second trial date.
6During the time that the defence was trying to obtain the video, the Ministry of Transport was operating a program that made it possible for persons convicted of impaired driving or of ‘over 80’ to apply for a reduced period of licence suspension. The defence wanted to look at the video before deciding whether or not to advise Mr. Poyntz to plead guilty and try to enter the program. Due to the late disclosure of the video the dead line for entry into the program passed and Mr. Poyntz was not able to apply for it. The defence argues that this was a breach of Mr. Poyntz’s rights under s. 7 of the Charter and, further, that the late disclosure amounted to non-disclosure and was an abuse of process.
Issues
7The issues are the following:
- Did the arresting officer have reasonable and probable grounds to arrest Mr. Poyntz for impaired driving?
(a)If not, was the subsequent seizure of breath samples from Mr. Poyntz a breach of his rights under s. 8 of the Charter?
(b) If Mr. Poyntz’s rights under s. 8 of the Charter were breached, should the evidence obtained thereby be excluded under s. 24 (2) of the Charter?
- Did late disclosure of the video tape of the breath test procedure, which resulted in Mr. Poyntz not availing himself of the Crown’s offer to apply for a reduced driving suspension under the Reduced Suspension with Ignition Interlock Conduct Review Program breach his rights under s. 7 of the Charter?
(a)Did the late disclosure result in an abuse of process?
(b) If the late disclosure breached Mr. Poyntz’s rights under s. 7 and/or resulted in an abuse of process should the charges against him be stayed pursuant to s. 24 (1) of the Charter?
The Evidence
8On the night in question, Officer Horton was working with Officer Page at a R.I.D.E. spot check. They were in a marked police cruiser. They were set up in an area where there was construction.
9The nature of the area is important to some of the defence’s arguments so I will quote Officer Horton’s description of the area:
“There was a little bit of an S configuration, just to the west of our location set up, which would force vehicles around a coned area and then bring them back into lane 2, being the curb lane. We were set up in lane 1, being the center most lane, forcing all traffic to travel in an eastbound direction past us in the curb lane. And we were setup in a RIDE spotcheck formation in the centermost lane, so we could approach the driver’s side of the vehicles as they past (sic) by us…” (Transcript, June 27, 2011, page 7 lines 20 – 32; page 8, lines 1-4).
10Officer Horton said that the construction crew set up traffic cones on the site as did the police. The police cones indicated to on-coming drivers where they should drive in order to go into the spot check. In addition to the cones, there were police vehicles with flashing lights and a mobile test facility, which is a very large truck similar to a large recreational vehicle and is three to four meters high. This vehicle also had flashing police lights. Typically, at a R.I.D.E. spot check there are three to five police vehicles in addition to the mobile test facility. Officer Horton was in full uniform and wearing a reflective vest.
11At 2:13 a.m. Mr. Poyntz approached the spot check. Officer Horton stepped out into the lane in which he was driving and motioned by raising his hand for him to stop. He could not say whether or not Mr. Poyntz saw him or looked at him in the eye, and although he was going slowly when he passed him he had started to speed up as he approached him. Instead of stopping, Mr. Poyntz accelerated and drove through the spot check forcing Officer Horton to step back.
12Officer Horton got into his cruiser with Officer Page, put on his seat belt and followed Mr. Poyntz who got on to the Gardiner Expressway. There was slow moving traffic in front of Mr. Poyntz, which allowed the officers to catch up to him quickly. Officer Horton did not lose sight of Mr. Poyntz and at 2:16 a.m. he pulled him over a short distance away on the shoulder of the Expressway. Officer Horton did not turn on the emergency lights of his vehicle at any time.
13Officer Horton approached Mr. Poyntz and noticed that he was alone, had his window down and was smoking a cigarette. He appeared very nervous and fidgety. Officer Horton asked him for his driving documents and when Mr. Poyntz spoke to him he smelled the odour of an alcoholic beverage from Mr. Poyntz’s mouth.
14Mr. Poyntz provided his ownership and insurance but he could not find his wallet to provide his driver’s licence.
15Officer Horton asked Mr. Poyntz how much he had had to drink and he said “a couple”, “two or three”. He said that he had his last drink “about an hour ago”.
16Officer Horton asked Mr. Poyntz to get out of his car and go to the rear of it where it was safer. He staggered when he walked and he took shorter than normal steps. He took seven to ten steps to get to the rear of his car and did not walk in a straight line. Officer Horton said that this was not the normal fluid walk of “a person walking normally” unless the person had a “noticeable hip injury or leg aliment”. In addition to this, Officer Horton noticed that Mr. Poyntz’s eyes were bloodshot.
17Officer Horton did not say anything in examination-in-chief about asking Mr. Poyntz why he ran the spot check. In cross-examination, he said that he did not say anything to him about it and that there is nothing in his notes about saying something to Mr. Poyntz about running the spot check. He said, however, that he would be surprised if he did not say something to him about it. He said that he recalled mentioning it to him, but does not remember specifically what he said to Mr. Poyntz. He did not recall what Mr. Poyntz said to him about it.
18Based on the information that he had, Officer Horton formed the opinion at 2:20 a.m. that Mr. Poyntz’s ability to drive a motor vehicle was impaired by alcohol and he arrested him. He handcuffed him and took him to his cruiser and read him his rights to counsel.
19Officer Horton did not have an approved screening device in his car. There was one in the mobile test facility truck, but at 2:25 a.m. he chose to make a demand on Mr. Poyntz that he give breath samples into an Intoxilyzer.
20One of the officers called a tow truck and Officer Page found Mr. Poyntz’s wallet in the car and found his driver’s licence. Officer Hodkin came to the scene and waited for the tow truck and at 2:31 a.m. Officers Horton and Page took Mr. Poyntz to the mobile test facility to give samples of his breath. They arrived at 2:42 a.m. because they had to travel a little bit on the Expressway before they could get off and then they had to loop back to the R.I.D.E. spot check where the mobile test facility was.
21When they got to the mobile test facility, Mr. Poyntz was being very cooperative so they took off the handcuffs and at 2:50 a.m. Officer Horton turned him over to Officer Elaschuk, the breath technician and briefed her regarding the details of the arrest. Mr. Poyntz did not have any alcoholic beverages between the time that the police stopped him and the time that Officer Horton turned him over to Officer Elaschuk.
22Officer Horton said that he did not charge Mr. Poyntz with any offences under the Highway Traffic Act because he felt that it would have been too harsh considering that he charged him with impaired driving and ‘over 80’. However, the defence produced two tickets that he gave him for driving while suspended and with failure to surrender a valid insurance card. Officer Horton agreed that he issued them, but he did not recall issuing them.
23The breath technician, Officer Elaschuk, testified that she administered two breath tests to Mr. Poyntz. She prepared a Certificate of a Qualified Technician, which is exhibit one. It shows that his truncated readings were 170 and 170 milligrams of alcohol in 100 millilitres of blood at 2:56 a.m. and 3:16 a.m. respectively. Based on this, Officer Horton charged Mr. Poyntz with ‘over 80’.
24Officer Elaschuk noted that Mr. Poyntz was cooperative, his speech was fair, his eyes were bloodshot and his face was flushed. The effects of his consumption of alcohol were obvious. Based on her observations and the breath test results, she concluded that his ability to operate a motor vehicle was impaired by alcohol.
25The video of the breath tests was played and made exhibit 7. The video shows Mr. Poyntz speaking properly and answering questions in a coherent manner. And he obeyed all of Officer Elaschuk’s commands without any problem. Generally, he moved around without any difficulty, however, on one occasion he appeared to grab the wall while sitting at the breath machine, which could have indicated a loss of balance. The area in which he moved around was quite small because there was not a lot of room in the mobile test facility. Therefore, there was not a very good opportunity to see how he walked. He did not have any difficulty handling the mouth piece of the breath machine when he took the tests.
26Since the area where the breaths tests were conducted was quite restricted, Officer Elaschuk only saw him take one or two steps. He only had to take one or two steps from where he was seated waiting to take the tests to the chair where he sat to give his breath samples. He did not have any difficulty in doing this.
27After the video of the breath taking procedure was completed, Officer Elaschuk gave it to Officer Horton and she did not have anything more to do with it. She did not recall exactly when she gave it to Officer Horton, but she assumed that she gave it to him right after the tests were done.
28That was the Crown’s case. The defence did not call any evidence.
Position of the parties
Section 8 of the Charter – Did Officer Horton have reasonable and probable grounds to arrest Mr. Poyntz for impaired driving?
The Defence
29Mr. Sarantis, defence counsel, argues that Officer Horton did not have reasonable and probable grounds to arrest Mr. Poyntz for impaired driving. He made the following points in support of this argument.
30Due to the R.I.D.E. spot check having been set up in a construction area with traffic cones being placed around the area by both the construction crew and the police, there is ambiguity in the evidence regarding how clear it was that the police were conducting a spot check. He also notes that Mr. Poyntz stopped immediately when apprehended by Officer Horton on the Gardiner Expressway. The implication being that if he was trying to evade the spot check he would have tried to get away from the police. In addition, there was nothing unusual about Mr. Poyntz’s driving.
31Mr. Sarantis argues that Officer Horton’s evidence is not reliable because he did not recall issuing the Highway Traffic Act tickets to Mr. Poyntz. Furthermore, he inflated his evidence during cross-examination by saying that he may have asked Mr. Poyntz about running the spot check when at first he said that he did not. The defence also submits that Officer Horton must have lost sight of Mr. Poyntz for at least one or two seconds when he went to get into his crusier and put on his seat belt in order to follow Mr. Poyntz and his insistence that he did not lose sight of him is unrealistic.
32The defence submits that there were no objective grounds to arrest Mr. Poyntz for impaired driving and that Officer Horton should have either requested that an approved screening device be brought to the scene or that he should have taken Mr. Poyntz to the mobile test facility to administer a roadside screening device breath test rather than arresting him for impaired driving.
33He submits that Officer Horton admitted that his problem walking could have been the result of a physical injury so he should have asked Mr. Poyntz to explain why he was staggering. He stated that this creates ambiguity in Officer Horton’s assessment of reasonable and probable grounds.
34However, this is not what Officer Horton said. He said “I noticed he was staggering, his gait was very staggered. It wasn’t, it wasn’t fluid. Um, if you would look at a normal, normal gait, a person walking normally it would be very, it would be very – it’s fluid, unless you have a, um, a noticeable hip injury or a leg ailment, and it was noticeable…” (Transcript, June 27, 2011, page 25, lines 15 – 22).
35This is different from admitting that Mr. Poyntz’s problem walking was, or could have been from a physical injury. My interpretation of Officer Horton’s evidence is that he was describing Mr. Poyntz’s gait, not giving an opinion or speculating on why he was unsteady. He was not saying that it was possible that Mr. Poyntz was staggering due to a physical disability or injury, but that he was merely observing that a sober person does not walk like that unless they have a physical disability. I base this interpretation on the fact that there was nothing in the circumstances that would have led him to believe that Mr. Poyntz had a physical disability. However, there were circumstances that could reasonably have led him to believe that the nature of his gait was due to the consumption of alcohol.
The Crown
36The Crown argues that in all of the circumstances Officer Horton had the required objective grounds to support his subjective belief that Mr. Poyntz’s ability to operate a motor vehicle was impaired by alcohol. These grounds are that he ran the spot check, admitted to drinking two or three alcoholic beverages, had his last drink about one hour before, the physical indicia of staggering, blood shot eyes, and the odour of an alcoholic beverage on his breath. In addition, Officer Elaschuk’s observations of Mr. Poyntz support Officer Horton’s observations, although she did not see him walk very far and, consequently, could not say much about his gait.
Analysis regarding reasonable and probable grounds to arrest for impaired driving
37In R. v. Cooper [1993] O.J. No. 501, MacDonnell J. (as he then was) said the following regarding reasonable and probable grounds to arrest a person for impaired driving.
In R. v. Storrey (1990), 1990 CanLII 125 (SCC), 53 C.C.C. (3d) 316, the Supreme Court of Canada reviewed the provisions of what was s. 450(1)(a) of the Code. That section authorized a peace officer to arrest without warrant "a person who...on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence." There are obvious structural similarities between that provision and the opening words of s. 254(3). At p. 324, Cory J., on behalf of the Court, stated that it would be insufficient for an officer to personally believe that he had the necessary reasonable and probable grounds. Rather, he stated, "it must be objectively established" that those reasonable and probable grounds did in fact exist. That is to say, a reasonable person standing in the shoes of the police officer would have believed that reasonable and probable grounds existed to make the arrest..." That approach is equally applicable to s. 254(3).
38It is clear that one or more circumstances standing alone may or may not support a belief that a person’s ability to operate a motor vehicle was impaired by alcohol. In deciding the issue of whether or not Officer Horton had a reasonable, objective basis for his subjective belief that Mr. Poyntz’s ability to operate a motor vehicle was impaired by alcohol, I must consider all of the circumstances; the ones that support his conclusion as well as the ones that militate against it.
39After considering all of the circumstances, I find that Officer Horton was a credible and reliable witness. The defence’s arguments attacking his credibility and reliability are weak and unconvincing. I grant that his evidence was not perfect. For example, he said that he had not issued Highway Traffic Act tickets to Mr. Poyntz, but he clearly forgot that he had. This is not a significant mistake, however. I do not find that he exaggerated or misstated other things or that he was evasive. I find that his evidence was quite reasonable and believable. It was consistent within itself and with all of the other evidence. His credibility and/or reliability stood up to defence counsel’s attacks and arguments. His evidence was not undermined or successfully called into question by the defence or by any other evidence or circumstance in the case.
40I find also that he was entitled to make a demand on Mr. Poyntz for samples of his breath into an Intoxilyzer, rather than into an approved screening device. I do not find that this demonstrated anything improper with regard to how he thought of or treated Mr. Poyntz.
41Therefore, based on all of the circumstances, the law and counsel’s submissions, I find that the Crown has proved that Officer Horton had the requisite reasonable and probable grounds to arrest Officer Horton for impaired driving.
42In arriving at this conclusion I considered that Mr. Poyntz:
Drove through the spot check;
Did not exhibit erratic driving;
Pulled over immediately and cooperated with the police;
Appeared very nervous and fidgety;
Had the odour of an alcoholic beverage on his breath;
Provided his ownership and insurance but could not find his wallet to provide his driver’s licence;
Had two or three drinks that evening and had the last on about one hour before;
Staggered when he walked to the rear of his car;
Had blood shot eyes.
43When I consider all of these circumstances together, especially the staggering, I conclude that there was a sufficient basis to establish reasonable and probable grounds to arrest Mr. Poyntz for impaired driving. It may not be the most blatant example, but I find that there is a sufficient factual basis to provide the required objective basis for Officer Horton’s subjective belief that he had reasonable and probable grounds to arrest Mr. Poyntz for impaired driving.
44As a result, I find that Officer Horton’s arrest of Mr. Poyntz for impaired driving was legal and that his rights under s. 8 were not breached by the subsequent seizure of his breath samples. Therefore, the breath test results are admitted into evidence.
Conclusion with regard to the impaired driving charge
45In R.v. Stellato O.R. (3d) 90 @ 49,95 (O.C.A.
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
46I find that based on all of the circumstances, the Crown has proved beyond a reasonable doubt that Officer Horton had reasonable and probable grounds to arrest Mr. Poyntz for impaired driving and, further, that the Crown has proved beyond a reasonable doubt that Mr. Poyntz’s ability to operate a motor vehicle was impaired by alcohol. He is found guilty and a conviction is registered.
Conclusion with regard to the ‘over 80’ charge
47Based on all of the evidence, the law and counsel’s submissions, I am satisfied beyond a reasonable doubt that Mr. Poyntz is guilty of the ‘over 80’ charge and a conviction is registered.
48Depending to which offence the Crown wishes the conviction to be assigned, I will enter a conditional stay on the other one.
Section 7
49I will now turn to the defence’s application under s. 7 of the Charter.
50The issue is whether the Crown and the police breached Mr. Poyntz’s rights under s. 7 by making late disclosure of the video tape of the breath room procedure, which precluded Mr. Poyntz from potentially availing himself of the Crown’s offer to seek a reduced driving suspension under the ignition interlock program.
51The defence submits that the police and the Crown breached Mr. Poyntz’s rights under s. 7 of the Charter by disclosing the video of the breath testing procedure to late for the defence to be able to view the video and to advise Mr. Poyntz whether or not he should apply for a program for reduced driving suspensions for persons who were convicted of impaired driving or ‘over 80’.
The evidence on the s. 7 Charter application
52The Crown concedes that the video of the breath test procedure was disclosed too late for Mr. Poyntz to apply for the program. The reason for the late disclosure appears to be a failure in the police/Crown system of disclosure, which cannot be identified. However, the Crown submits that it did not result in a breach of Mr. Poyntz’s rights under s. 7 or in an abuse of process because he did not have a right protected by s. 7 to participate in the program.
53Regarding the evidence with regard to the s. 7 application, I will turn to Officer Horton’s testimony first. He said that he was the officer in charge of the case. He testified as to what typically happens with regard to disclosure of video tapes of the breath testing procedure. The breath technician gives him (the Officer in Charge) the video if the tests take place in a mobile test facility as in the case at bar. Officer Horton always makes a copy for himself, which he keeps and he makes a copy for the Crown and for the defence. He puts all the copies, except his, in the Crown brief envelope and sends it to the police disclosure clerk who sends it to the Crown at the court house. This envelope contains all of the disclosure for the Crown and a copy for the defence. Therefore, the video tape is part of the initial disclosure given to the defence.
54In the case at bar, he said that all of the disclosure was given on the next day or maybe the day after that. Sometime afterwards, he received a request from the Crown’s office for a copy of the video. He sent them the copy that he had made for himself. After this, he received another request from the Crown’s office for a copy of the video. He left a voicemail message at the Crown’s office saying that he had already sent them the video. Over the next several months the Crown’s office sent him two emails requesting the video, but he did not send another copy. There was no clear reason for this.
55The defence filed an affidavit from Anthony La Bar in support of its application. He states that beginning on April 22, 2010 the defence made requests for disclosure of the video. Attached to his affidavit as exhibits were four letters from defence counsel requesting disclosure of the video. The letters are dated: July 8, 2010 (sent July 13, 2010 by fax), August 9, 2010, November 4, 2010, and December 7, 2010. In addition, Mr. La Bar states that during a pre-trial conference in April 2010, the defence asked the Crown for the video.
56He states further that the Crown “extended offers for a reduced driving suspension under the newly enacted ignition interlock program” on July 6, 2010 and on August 12, 2010. In order to take part in the program an accused’s case had to be resolved between August 3, 2010 and November 1, 2010.
57This program offered the possibility for an accused who pleaded guilty to a drinking and driving offence to have the court grant a reduced waiting time before he or she could resume driving through the interlock program.
58The defence sent the Crown an email indicating that Mr. Poyntz might be interested in taking part in the program and made requests for the video prior to the deadline. Defence counsel wanted to look at the video before deciding whether or not to advise Mr. Poyntz about taking part in the program.
59The police charged Mr. Poyntz on November 29, 2009. The case wound its way through the pre-trial process and the court set a trial for January 6, 2011. The Crown disclosed the video on December 14, 2010, which was too late for Mr. Poyntz to look at it and “make an informed decision as to whether to take part in the ignition interlock program or not.”
60The Reduced Suspension with Ignition Interlock Conduct Review Program provided persons who were found guilty of impaired driving or ‘over 80’ with the opportunity to benefit from a reduced licence suspension. Counsel did not provide very much information to the court regarding this program. Perhaps this is because the general basics of the program are well known to the bar and the courts. However, I find that it is helpful to reproduce the information that the Ministry of Transport published on its website regarding the program. It is found at: http://www.mto.gov.on.ca/english/safety/impaired/Reduced_Suspension_2011.pdf. I have added it to these reasons as Appendix “A”.
61The court is permitted to take judicial notice of this information: See R. v. Krymowski, 2005 SCC 7, [2005] 1 S.C.R. 101 at paragraph 22, where Charron J. held that:
A court may accept without the requirement of proof facts that are either "(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy": R. v. Find, 2001 SCC 32, at para. 48.
Analysis regarding s. 7 of the Charter
62Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
What is the defence argument?
63At the outset I would like to bring the defence’s argument into focus. Mr. Sarantis stated it succinctly in paragraph 16 of his factum:
It is respectfully submitted that the late disclosure on the part of the Respondent amounts to an abuse of process in the clearest sense as it is unfair to the Applicant who proceeded through the majority of the court proceedings without a relevant piece of disclosure being provided until over a year after the charge was laid and only weeks before his initially scheduled trial date. It is submitted that this, in combination with the direct implication on the Applicant vis a vis the ignition interlock program, requires the remedy of a stay of proceedings in order to best serve the administration of justice.
64It appears from this statement that the defence’s argument is twofold: In providing the video late, the police and the Crown breached Mr. Poyntz’s rights under s. 7 of the Charter by (1) causing unfairness to him by forcing him to proceed “through the majority of the court proceedings without a relevant piece of disclosure” and by providing it “only weeks before” the first trial date, and by (2) preventing Mr. Poyntz from participating in the interlock program.
65I assume that the “unfairness” to which the defence refers in the first prong of its argument is prejudice to Mr. Poyntz’s right to mount full answer and defence.
66The first argument is disposed of easily. In R. v. Bjelland, 2009 SCC 38, [2009] S.C.J. No. 38, at paragraph 25 the court confirmed its holding in R. v. O’Connor 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at paragraph 83, that:
In such circumstances [of late or insufficient Crown disclosure and a consequent s. 7 breach], the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused's ability to make full answer and defence or to the integrity of the justice system is irremediable. In those "clearest of cases", a stay of proceedings will be appropriate. (Emphasis added)
67The Bjelland court went on to say in paragraph 26 that:
This statement recognized that the appropriate focus in most cases of late or insufficient disclosure under s. 24(1) is the remediation of prejudice to the accused, but that safeguarding of the integrity of the justice system will also be a relevant concern. Of course the prejudice complained of must be material and not trivial. For example, the exclusion of evidence may be warranted where the evidence is produced mid-trial after important and irrevocable decisions about the defence have been made by the accused. Even then, it is for the accused to demonstrate how the late disclosed evidence would have affected the decisions that were made. For purposes of trial fairness, only where prejudice cannot be remedied by an adjournment and disclosure order will exclusion of evidence be an appropriate and just remedy.
68In the case at bar, I fail to see how the late disclosure of the video caused prejudice to the accused’s ability to defend himself at trial. On the first trial date, December 23, 2010, the defence brought a motion for an adjournment based on the late disclosure of the video. The court granted the motion and adjourned the matter to June 27, 2011. As the jurisprudence above indicates, the proper remedy for late disclosure in this case was an adjournment, which the court granted. This allowed the defence plenty of time to incorporate the video into its preparation for trial. Consequently, the defence has not shown that Mr. Poyntz’s right to mount full answer and defence was prejudiced by the late disclosure. There was no abuse of process.
69Regarding the second prong of the defence’s argument, it is evident from Appendix “A” that to be eligible for the interlock program a person had to apply to the Ministry of Transport and fulfil numerous conditions prescribed by the Ministry. In addition, as the Crown argued in the case at bar, the court was not required to order any particular reduction of time before which the accused could apply for participation in the program.
70I conclude from these two circumstances that there was a significant amount of discretion in the Ministry and in the court with regard to the eligibility of an accused for entry into the program. In addition, there were many conditions which the accused had to fulfil before being allowed entrance into the program. It was only after this discretion was exercised in favour of the accused and the Ministry found that all of the prerequisites were fulfilled by the accused that the Ministry would extend an invitation to the accused to join the program.
71This derogates substantially from the defence argument that the police and the Crown caused unfairness to Mr. Poyntz or breached Mr. Poyntz’s right to mount full answer and defence by precluding him from participating in the interlock program, or that the late disclosure breached any right to apply for the program. Appendix “A” shows clearly that Mr. Poyntz did not have a right to participate in the interlock program. At its highest, Mr. Poyntz’s complaint is that he was prevented from having the opportunity to apply to participate in the program. This does not constitute a denial of any right under s. 7 of the Charter.
72Many courts have held that driving is a privilege, not a right. The length of time that Mr. Poyntz’s privilege of driving would be suspended is at the heart of the defence’s complaint. Therefore, the procedures that are followed in the suspension of this privilege in drinking and driving cases do not attract Charter scrutiny under s. 7. Driving is not a right that is protected by s. 7. In R. v. Coombs [1999] O.J. No. 356, at paragraphs 20 -28, Mr. Justice Libman made this point forcefully and cited many high authorities to support it.
73See also Horsefield v. Ontario(Registrar of Motor Vehicles) (1999), 1999 CanLII 2023 (ON CA), 134 C.C.C. (3d) 161 (C.A.). At paragraph 51 Finlayson J.A. held as follows:
I adopt the latest word on this subject as expressed by Hinds J.A. in Buhlers, supra. On the Charter challenge, he had this to say at paragraph 109:
In my view, the broadened scope of the liberty interest protected by s. 7, as expressed by some of the members of the Supreme Court in B.(R.) [B.(R.) v. Children's Aid Society, 1995 CanLII 115 (SCC), [1995] 1 S.C.R. 315] and in Godbout [Godbout v. Longueil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844], does not extend to the driving of a motor vehicle on a public highway. It is not a matter that is fundamental or inherently personal to the individual. It is not a matter that goes to the root of a person's dignity and independence. To hold otherwise would trivialize the liberty sought to be protected by s. 7.
74Therefore, for these reasons I find that the defence’s application under s. 7 fails. The police and the Crown did not breach Mr. Poyntz’s rights under s. 7 of the Charter by disclosing the video of the taking of the breath samples too late for him to have the opportunity to apply for participation in the interlock program.
Released: April 23, 2012
Signed: “Justice J.W. Bovard”
