Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Don Hawkins
Before: Justice J. W. Bovard
Heard on: January 3, 2013
Reasons for Judgment released on: March 8, 2013
Counsel:
Ms. D. Garbaty for the Crown
Ms. H. Spence for the accused, Don Hawkins
Judgment
Bovard J.:
1These are reasons for judgment after the trial of Don Hawkins on charges of impaired driving and 'over 80' arising on July 26, 2012.
2The issues are whether the police violated Mr. Hawkins' rights under sections 8, 9, and 10(a)(b) of the Charter, and if so, should the evidence against him be excluded under s. 24(2) of the Charter.
3The resolution of these issues depends in large part on the following issues:
Was the arresting officer entitled to rely on the accused's failure of the Approved Screening Device (ASD) breath test to form his reasonable and probable grounds to arrest him for 'over 80'? The resolution of this issue depends on whether the officer dealt sufficiently with the question of residual mouth alcohol before administering the ASD breath test.
Did the officer wait too long before giving the accused his rights under s. 10(b) of the Charter?
Did Officer McGuire make the breath demand "as soon as practicable"?
The Evidence
4On the day in question Officers McGuire and Russell set up a R.I.D.E. spot check on Highway 10, north of Melanchthon Road. This is a rural two-lane road near a cemetery. There are no drinking establishments nearby. They wanted to check for impaired drivers and to ask drivers if they had any information regarding an assault that occurred the previous evening.
5At 10:50 PM Mr. Hawkins drove into the spot check. Officer McGuire spoke to him and detected the odour of an alcoholic beverage on his breath. His eyes were bloodshot and red. He was smoking and he averted his face when he spoke to the officer. There were empty beer cans in the back of his truck. Officer McGuire asked him if he had drunk any alcohol. He said that he had not.
6However, based on his observations Officer McGuire formed a reasonable suspicion that Mr. Hawkins had alcohol in his body while he was driving his truck. He told Mr. Hawkins that he would like him to provide a breath sample into an ASD. He told him to pull over and at 10:55 PM he made the formal demand for a breath sample into an ASD.
7Officer McGuire used a Drager Alcotest 7410 GLC, serial number ARZJ0201, which had been calibrated on July 25, 2012 by Officer Stanley. Officer McGuire took a breath test on the machine and registered "zero". This indicated to him that it was working properly.
8At 10:58 PM Mr. Hawkins failed the breath test, which indicated to Officer McGuire that he had more than 100 mg of alcohol in 100 mL of blood. This gave him reasonable probable grounds to arrest Mr. Hawkins for 'over 80' and he did so at 11:00 PM.
9Before he handcuffed Mr. Hawkins and put him in his cruiser, Officer McGuire allowed him to retrieve certain items from his truck, including a cell phone, wallet and keys because it was going to be towed and possibly impounded for seven days. The truck was on the side of the road and could not be left there.
10In examination-in-chief, he stated that this took about 10 minutes; in cross-examination, he said that it took a "few minutes". After Mr. Hawkins retrieved these items Officer McGuire handcuffed him and put him in the police cruiser. Officer McGuire had already explained to him that he was going to the police station to give samples of his breath.
11While Mr. Hawkins waited in the cruiser, Officer McGuire spoke to Officer Russell with regard to arranging a tow truck to come and take Mr. Hawkins' truck away. Officer Russell was in training so Officer McGuire explained to him that Mr. Hawkins' truck would have to be towed and that he had to arrange it. This was a "short interaction" and lasted "a short period of time." He disagreed with defence counsel's suggestion that it took several minutes.
12After this, at 11:10 PM Officer McGuire read the breath demand to Mr. Hawkins. He explained to Mr. Hawkins what was going to happen. He said that he understood.
13At 11:12 PM he gave Mr. Hawkins his rights under s. 10(b) of the Charter. He said that he understood and that he did not want to speak to a lawyer.
14Officer McGuire agreed that he could have spoken to Officer Russell about the tow truck after he gave Mr. Hawkins his rights under s. 10(b) and made the breath demand.
15At 11:14 PM officer McGuire cautioned Mr. Hawkins who said that he understood.
16At 11:16 PM they left the scene to go to the Dufferin Police Detachment for Mr. Hawkins to give his breath samples. Officer Russell stayed with Mr. Hawkins' truck.
17At 11:27 PM they arrived at the police station. It was 8 km away and it was the closest police station with an Intoxilyzer 8000 C that was in working order and for which an Intoxilyzer technician was available.
18At the detachment Mr. Hawkins was booked in. Officer McGuire did his paperwork and filled out the "ground sheet", which provides the Intoxilyzer technician with the background to the arrest. While Officer McGuire was doing this, the Intoxilyzer technician, Officer Mask, was preparing the Intoxilyzer to receive Mr. Hawkins' breath samples.
19At 11:45 PM officer McGuire turned Mr. Hawkins over to Officer Mask and told him the background of the arrest.
20After Mr. Hawkins gave his breath samples, Officer McGuire showed him the original of Officer Mask's Certificate of Analyst and served him with a copy. He told him that it would be adduced in evidence at his trial. Mr. Hawkins' readings were 150 and 140 milligrams of alcohol in 100 mL of blood. The certificate is Exhibit 1, subject to the Charter arguments.
21With regard to recent consumption of alcohol, Officer McGuire testified that although the beer cans in the bed of the truck raised a concern in his mind that Mr. Hawkins had been drinking, there was no reason to suspect that he had recently consumed alcohol. A lot of trucks in Dufferin County have beer cans in the back. It does not indicate recent consumption. In addition, there were no alcohol containers in the cab of the truck and Mr. Hawkins could not reach the beer cans from inside the truck.
22Furthermore, the R.I.D.E. spot check was on a rural two lane road far from any drinking establishments.
23Officer McGuire did not know when Mr. Hawkins had last had a drink. He did not find out until after he administered the ASD breath test that Mr. Hawkins was coming from his brother's home where he had drunk alcohol. He testified that Mr. Hawkins did not tell him this prior to taking the breath test.
24Although Officer McGuire conceded that he had conversation with Mr. Hawkins it is not noted in his notebook because he did not think that it was relevant. He strongly disagreed with defence counsel's suggestion that before he took the ASD breath test, Mr. Hawkins told him that he was coming from his brother's home where he had been drinking.
25Officer McGuire is a certified breath technician and he said that he knows that if there is good reason to believe that a person has consumed alcohol recently one must wait 15 minutes before administering an ASD breath test.
26But in these circumstances he did not have any concerns about Mr. Hawkins having recently consumed alcohol before he gave him the breath test. There was nothing that indicated that he may have recently consumed alcohol.
27That was all of the evidence for the Crown. The defense did not call any evidence. Counsel agree that there is no evidence on which the court could find Mr. Hawkins guilty of the impaired driving charge. Therefore, this charge is dismissed. I will now consider the 'over 80' charge.
The Position of the Defence
Did Officer McGuire have reasonable and probable grounds to arrest Mr. Hawkins for 'over 80'?
28The first defence argument is that Officer McGuire was not entitled to rely on Mr. Hawkins' failure of the ASD breath test to form reasonable and probable grounds to arrest him for 'over 80' because he did not sufficiently address the issue of the presence of mouth alcohol due to recent consumption. Therefore, the test results could be unreliable.
The Law
29The Supreme Court of Canada addressed this issue in R. v. Bernshaw, [1994] S.C.J. No. 87. In that case a police officer saw the accused going 65 KPH in a 50 KPH speed zone. He saw the car drift twice "from the far side of the shoulder to the center of the road and back again with the brake lights flickering". The officer pulled over the accused and noticed "a smell of liquor coming from [the accused]". His eyes were red and glassy. He admitted that he had been drinking. At this point the officer made a breath demand for a breath sample into an ASD.
30There was no evidence regarding when the accused had his last drink and the arresting officer "made no enquiry" about this. Sopinka J. found that in these circumstances "it is too speculative to assert that the screening device result was unreliable" (para. 80).
31The court found that there is no duty on the officer to enquire about when the accused had his or her last drink because "A suspect is under no obligation to answer such a question and thus it would be improper to impose such a duty on the police" (para. 81).
32The mere "possibility" that the results of the ASD test would be inaccurate due to recent consumption of alcohol "is not sufficient to vitiate an honest belief based on reasonable and probable grounds where the police officer did not believe that the test would be unreliable and one could only speculate whether or not it would, in fact, have been unreliable" (para. 84).
33In R. v. Einarson, [2004] O.J. No. 852, the Ontario Court of Appeal turned their minds to this issue. Doherty J. stressed the importance of the reasonableness of the officer's belief "as to the accuracy of the test results if the test were to be administered without any delay…" (para. 27) See also paragraphs 33, 34.
34In paragraph 34, the court stated that "If the officer decides not to delay the administration of the test and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the test was administered without any delay."
35Further, in paragraph 35, the court held that "Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver consumed alcohol within the prior 15 to 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay." The officer's task is "to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief."
Disposition regarding whether Officer McGuire should have waited 15 minutes to administer the ASD breath test
36After considering all of the circumstances, the law and counsel's submissions I find that Officer McGuire was entitled to administer the ASD breath test without delay.
37The R.I.D.E spot check was on a rural road far from any drinking establishment. Mr. Hawkins denied that he had been drinking. Although Officer McGuire did not believe him, there is no evidence that points to recent consumption. The empty beer cans were in the bed of the truck, out of Mr. Hawkins' reach. There were no liquor containers in the cab of the truck where Mr. Hawkins could have reached them.
38I find as a fact that he did not find out that Mr. Hawkins had been at his brother's home drinking until after he took the ASD test. Officer McGuire was not shaken on this point in spite of a vigorous cross-examination.
39Officer McGuire is a qualified breath technician. He testified that he knows that an ASD can produce an unreliable reading if the subject has recently consumed alcohol. He said that in such a case he would wait 15 minutes before administering the test.
40In the circumstances of this case Officer McGuire was entitled to administer the ASD breath test without waiting 15 minutes. I am satisfied that he had an honest and reasonable belief that he could proceed with the breath test without waiting. I am satisfied that taking the totality of the circumstances into consideration, he did not have to make further inquiries regarding recent alcohol consumption by Mr. Hawkins. He did everything that he had to do in order to obtain a reliable result on the ASD.
Did Officer McGuire breach Mr. Hawkins' rights under s. 10(b) of the Charter by waiting too long to give him his rights after he arrested him?
41The second defence argument is that Officer McGuire breached Mr. Hawkins' rights under s. 10(b) of the Charter because he waited too long to give him his rights.
42The evidence is that Officer McGuire arrested Mr. Hawkins at 11:00 PM. It took 12 minutes for him to give him his s. 10(b) rights.
43Right after he arrested Mr. Hawkins, Officer McGuire allowed him to retrieve personal items from his truck.
44In examination-in-chief, Officer McGuire stated that this took about 10 minutes; in cross-examination, he said that it took a "few minutes".
45I accept his evidence in-chief on this point, because this is what he said first. I got the impression that later, when it was obvious that the defence was concerned with the amount of time that this took, Officer McGuire pared down the amount of time when defence counsel pressed him on it.
46When Mr. Hawkins finished collecting his things, Officer McGuire handcuffed him and placed him in the police cruiser. Officer McGuire left him there and went to speak to Officer Russell to explain the procedure to have Mr. Hawkins's truck towed.
47Officer McGuire stated that his talk with Officer Russell was a "short interaction" and lasted "a short period of time." He disagreed with defence counsel's suggestion that it took several minutes.
48At 11:12 PM he gave Mr. Hawkins his rights under s. 10(b) of the Charter. He said that he understood and that he did not want to speak to a lawyer.
49Officer McGuire agreed that he could have spoken to Officer Russell about the tow truck after he gave Mr. Hawkins his rights under s. 10(b).
The Law
50Section 10(b) of the Charter states that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."
51In R. v. Suberu, 2009 SCC 33, the court held that the s. 10(b) right to counsel arises immediately upon detention.
52The defence submitted several cases to me that deal with the issue of delays in giving arrested persons their rights under s. 10(b) of the Charter. I will consider these next.
53When the police arrest a person they must give the person his or her rights to counsel under s. 10(b) of the Charter "without delay". There are exceptions to the rule, such as, officer and public safety, acting "in the heat of the moment to subdue the suspect", and searches incident to arrest (See: R. v. Debot, [1989] 2 S.C.R. 1140 at paragraphs 2, 3, 42, 81–84).
54However, Wilson J. stated in Debot that "without delay" does not mean "at the earliest possible opportunity or after police get matters under control, or even without reasonable delay" (para. 42).
55In R. v. Scobie, [2002] O.J. No. 5939 and R. v. Elstone, [2001] O.J. No. 6283, the courts held that "The appropriate order then is to arrest the accused, provide all the appropriate rights, cautions and demands and then to call to arrange for the qualified breath technician and for the towing of the vehicle"
56It appears from the above jurisprudence and other cases to which defence counsel referred me that upon arresting a person there are very few reasons that justify a delay in giving an arrested person his or her rights to counsel under s. 10(b). See in addition to the above cited cases: R. v. Tran, [2005] O.J. No. 6280.
Disposition regarding whether Officer McGuire breached Mr. Hawkins' rights under s. 10(b) of the Charter
57After considering all of the circumstances, the law and counsels' submissions, I find that Officer McGuire breached Mr. Hawkins' rights under s. 10(b) of the Charter by delaying 12 minutes in giving him his rights under s. 10(b).
58Officer McGuire was not acting in bad faith or being negligent or careless. I believe that he was genuinely doing what he thought was correct. However, as the cases indicate, the test is "without delay" and nothing else.
59In the case at bar, there was no justifiable reason for Officer McGuire to delay 12 minutes in giving Mr. Hawkins his rights to counsel. Allowing Mr. Hawkins to retrieve items from his truck and explaining the towing procedure to Officer Russell are not acceptable reasons for the delay. Officer McGuire could have easily done those things after giving Mr. Hawkins his rights to counsel.
Did Officer McGuire make the breath demand on Mr. Hawkins "as soon as practicable"?
60The third defence argument is that Officer McGuire did not make the breath demand on Mr. Hawkins "as soon as practicable."
61The evidence is that Mr. Hawkins failed the ASD breath test at 10:58 p.m. Officer McGuire arrested him for 'over 80' at 11 PM. He allowed Mr. Hawkins to retrieve items from his truck. This took ten minutes. When Mr. Hawkins was finished, Officer McGuire handcuffed him and put him in his cruiser. Officer McGuire had already explained to him that he was going to the police station to give samples of his breath.
62Then Officer McGuire went to speak with Officer Russell about arranging to tow Mr. Hawkins' car.
63After he finished speaking with Officer Russell Officer McGuire returned to his cruiser where Mr. Hawkins had been waiting and at 11:10 PM read the breath demand.
64Therefore, the evidence seems to indicate that Officer McGuire made two demands: an informal one before he put Mr. Hawkins in the cruiser and the "official" one in the cruiser after he spoke to Officer Russell about the tow truck. There is no evidence of the time that he gave him the informal demand.
65This gives rise to the question of whether having explained to Mr. Hawkins that he was going to the police station to give samples of his breath constitutes a demand under s. 254(3). Counsel did not address the issue, but I think that I should consider it.
66It is important because if I find that does constitute a demand under s. 254(3), then this shortens the time that it took Officer McGuire to make the breath demand on Mr. Hawkins.
The Law
67There is no specific set of words or phrases required to make a breath demand (See: R. v. Dhaliwal, [2005] O.J. No. 1129, S.C.J., at para. 20; R. v. Ghebretatiyos, [2000] O.J. No. 4982).
68The key to the wording of a proper demand is that "it convey to the person that the demand is made pursuant to the section…" and the "nature of the demand" (R. v. Ackerman, 6 C.C.C. (2d) 425 (Sask. C.A.) at 427).
69In R. v. Humphrey, 38 C.C.C. (2d) 148, the Ontario Court of Appeal held that the evidence of the police officer that "the accused was given a demand in regards to a breathalyzer test" was sufficient to amount to a "demand" under the section.
70Justice Blacklock held in R. v. Palanacki, [2001] O.J. No. 6254 that telling the accused that "they were going to 12 Division and then he can blow into a breathalyzer type of machine, which will measure how much alcohol you have in you" was not a sufficient demand to satisfy the requirements of s. 254(3).
71His findings at paragraphs 14–16 were the following:
I am not satisfied that the officer made what amounts in law to a demand at the roadside. I grant that it would seem clear from the officer's evidence that the accused was aware that he was under arrest and that he was going to be conveyed to 12 Division, and he certainly may have been of the view that that was all part of the arrest process.
The officer's evidence as to what he said was that he really could not remember what he said with precision. But even accepting the officer's evidence at its highest, the language he used did not make it clear that the accused had to provide the samples during his processing at the station.
I accept that there is no standard formula for a valid breath demand and the authorities support the notion, however, that language must be used which conveys to the accused the notion that the samples of breath are being demanded, in the sense that the accused has to provide them, or perhaps to put the matter another way, what is being asked is more than a request or an invitation. See in that regard, R. v. Boucher, 47 M.V.R. 173, and R. v. Nicholson, 8 C.C.C. (2d) 170. (Emphasis added)
72This jurisprudence indicates that allowing for the demand to be communicated in informal language does not mean that the message and intent of the section does not have to be conveyed. The cases stand for the proposition that a peace officer does not have to make the demand in the words of the section or in any other formulaic manner. He or she may communicate the demand in popular, non-legal language. However, the section's message must be conveyed in order for the purported demand to be true to the section and thereby constitute a lawful demand.
73It is helpful to consider the definition of "demand". The Oxford Dictionaries (On-line) gives the following pertinent definitions: "an insistent and peremptory request, made as of right; ask authoritatively."
74One can see that there is a coercive element to a demand. This is consistent with the intent of s. 254(3): to require persons suspected of drinking and driving to provide breath samples in order to measure their blood-alcohol content.
75Therefore, if popular language is used to make the demand, at minimum that language should communicate to the accused that the peace officer is requiring that the accused provide breath samples for the purpose of determining how much alcohol the accused has in his or her blood. As Justice Blacklock indicated in Palanacki (supra): it is not an invitation.
76There is a strong similarity between what the officer told the accused in Palanacki and what Officer McGuire testified that he told Mr. Hawkins. After considering Officer McGuire's evidence, all of the circumstances and the law I find that merely explaining to Mr. Hawkins that he was going to the police station to give samples of his breath does not constitute a lawful demand under s. 254(3).
The demand in the police cruiser
77Now I will turn to the demand that Officer McGuire read to Mr. Hawkins in the police cruiser. Defence counsel does not have any issue with the wording of the demand. The only issue is whether it was made as soon as practicable.
78Section 254(3) of the Criminal Code requires that once a peace officer "has reasonable and probable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 [impaired driving or 'over 80'] as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath… (My emphasis)
79In R. v. Dhaliwal at paragraphs 16–18, Durno J. provided a summary of jurisprudence regarding the meaning of "as soon as practicable".
80His survey of the law indicates that courts have interpreted "as soon as practicable" as meaning "within a reasonably prompt time"; not "as soon as possible."
81He pointed out that the issue is to be decided on a case by case basis (para. 16).
82Defence counsel provided several cases to the court that touch on the "as soon as practicable" issue. I will review them now.
83In R. v. Amaral, [1993] O.J. No. 4279, the RCMP initiated an investigation of drinking and driving. They administered an A.L.E.R.T. breath test, which the accused failed. Due to a protocol that the local police force should be the one to lay the charges they called the local police service to come and take over the investigation. It took 8 minutes for them to arrive and make the breath demand. Justice Woolcott found that this delay resulted in the demand not being made "as soon as practicable" and dismissed the charge.
84In R. v. Scobie, [2002] O.J. No. 5939 a delay of 26 minutes was found not to be "as soon as practicable". This delay puts the case well out of the range of delay of the case at bar. However, it is instructive to examine what caused the delay.
85The delay was caused by the officer doing the following things: handcuffing the accused, searching him, putting him in the cruiser, getting the accused's registration, licence and insurance documents from the accused's car, seizing beer and wine from the accused's briefcase, calling for a breathalyzer technician to get ready at the police station, calling for a tow truck and dealing with the tow truck driver when he arrived on scene, and giving the accused his s. 10(b) rights and a caution.
86There is no indication that the officer acted in bad faith or was engaged in activities that did not form part of the investigation. The concern of the court was that all of these tasks could have been performed after the demand was made. There were no exigent circumstances.
87This point is also made in R. v. Jalovec, [2004] O.J. No. 5980. In this case the officer was alone and had to deal with a situation that involved an accident. His activities in this regard caused a delay of 15 minutes in making the breath demand.
88Justice Mocha sympathized with the officer's predicament, however, she stated that:
it is understandable why what was primarily on the mind of this particular officer was the safety of the people on the road, and in fact, the safety of Mr. Jalovec himself, and his concerns with regards to the fact that his own police vehicle was not in a very safe position given the location of the accident, and perhaps understandable why the officer did what he did. The difficulty that I have with regards to the demand is that the officer certainly when placing Mr. Jalovec under arrest, was able to give him his rights to counsel, gave him the caution, asked if Mr. Jalovec understood, asked if he wished to say anything and whether or not Mr. Jalovec wished to call a lawyer, Mr. Jalovec gave a response. The officer then indicated he did not read the demand at this time because he felt that the unmarked car was not in the safest position and that he was concerned about securing the scene and making the scene safe. The problem I have is that the officer, and perhaps rightly so given that he made the choice not to read the demand, but then chooses to explain to Mr. Jalovec why he's not going to make the demand, the fact there is going to be a demand made, that there will be a delay, he gave the reason for the delay. In explaining all of this it seems to me it would have been much quicker as I have pointed out, to have simply given him the demand (para. 10)
89Justice Mocha found that the 15 minute delay was not acceptable and resulted in the breath demand not having been made "as soon as practicable."
Disposition regarding the "as soon as practicable" issue
90In the case at bar, I am satisfied that Officer McGuire was acting in good faith and was not purposely delaying making the demand. The things that he did prior to making the demand were legitimately connected to the investigation. He was being considerate of Mr. Hawkins by allowing him to remove personal items from his truck before it was towed away. Officer Russell was in training so he had to explain to him how to arrange for the towing of Mr. Hawkins' truck.
91However, Officer McGuire could have made the breath demand before doing all of these things and that is what he should have done in order to comply with s. 254(3). Consequently, I find that Officer McGuire did not make the breath demand "as soon as practicable".
92Therefore, the demand was unlawful and the Crown is not entitled to rely on the Certificate of Analyst, which contains the results of the breath tests. There being no other evidence against Mr. Hawkins, I find him not guilty.
The Charter Issues
93I will address the Charter issues in case I am in error with regard to the "as soon as practicable" issue.
Section 10(a)
94I find that based on the evidence of Officer McGuire that he did not breach Mr. Hawkins' rights under s. 10(a). He testified that he set up a R.I.D.E. spot check and that Mr. Hawkins drove into it. He spoke with Mr. Hawkins and told him that he was conducting a R.I.D.E. spot check. Therefore, he advised him promptly of the reasons for detaining him.
95Officer McGuire said that he arrested Mr. Hawkins for 'over 80'. He did not testify that he told him the reason for the arrest, but in the circumstances of this case it is safe to infer that he told him that it was for 'over 80'. In any case, Officer McGuire was operating a R.I.D.E. spot check and Mr. Hawkins had just failed an ASD breath test. I do not think that there is any danger that Mr. Hawkins did not know why he was arrested.
Section 10(b)
96I found above that Officer McGuire breached Mr. Hawkins' rights under s. 10(b) because he delayed too long (12 minutes) in giving him his rights to counsel after he arrested him for 'over 80'.
Section 8
97After considering all of the evidence, the law and counsel's submissions, I find that Officer McGuire breached Mr. Hawkins' rights under s. 8. Since I found that the breath demand was not given as soon as practicable, the resulting search of Mr. Hawkins by requiring him to give samples of his breath was an illegal search. There was no legal ground which justified this search because Officer McGuire did not comply with the requirements of s. 254(3) for a legal demand for breath samples.
Section 9
98After considering all of the evidence, the law and counsel's submissions, I find that Officer McGuire breached Mr. Hawkins' rights under s. 9. Since the breath demand was unlawful, Officer McGuire did not have any legal grounds to detain Mr. Hawkins in order to take him to the police station, hold him there and require him to give breath samples.
Should the Intoxilyzer breath test results be excluded under section 24(2)?
99In R. v. Grant, 2009 SCC 32, 66 C.R. (6th) 1, the Supreme Court of Canada set out the test to determine whether evidence that is obtained as a result of a Charter breach should be excluded under s. 24(2). The court held that:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
100I will now apply this test to the case at bar.
(1) The seriousness of the Charter-infringing state conduct
101Officer McGuire breached three of Mr. Hawkins' Charter rights (ss. 10(b), 8, and 9). The breach of s. 10(b) was due to a delay of 12 minutes in giving him his rights under the section. I do not think that this was an egregious breach in the circumstances of this case. But neither was it a minor or technical breach. Officer McGuire could have easily given Mr. Hawkins his rights to counsel without delay. It is not acceptable that 30 years after the Charter came into force and after endless jurisprudence on the subject of rights to counsel that a peace officer would still delay in giving an accused his rights under this section. Especially when it would have been so easy to have done so.
102This indicates a careless and cavalier attitude to citizens' rights to counsel and should not be condoned. Tolerance of such behaviour is the danger to which the Supreme Court referred when discussing this part of the s. 24(2) test. They said that the court must be concerned that "admission [of the evidence] may send the message the justice system condones serious state misconduct" (para. 71).
103Officer McGuire allowed Mr. Hawkins get his property from his truck before it was towed, and arranged with Officer Russell for the towing of his vehicle. In spite of there not having been any bad faith on Officer McGuire's part in doing these things first, the law is clear that this is not what he was supposed to be doing before giving Mr. Hawkins his rights to counsel.
104What he should have done is to give Mr. Hawkins his rights under the Charter and then attend to the other matters. There was no reason to delay advising him of his rights for the sake of doing things that could easily have waited for the short time that it would have taken to give Mr. Hawkins his rights. The lackadaisical nature of this ignoring of Mr. Hawkins' Charter rights is not acceptable. The law is clear on this topic and the police must obey the law.
105Therefore, I characterize the breach of Mr. Hawkins' rights under s. 10(b) as serious.
106The same delay resulted in breaches of Mr. Hawkins's rights under ss. 8 and 9 as well. For the same reasons I find that these breaches are serious. Therefore, Officer McGuire breached three of Mr. Hawkins' rights under the Charter. The number of breaches and the cumulative effect of the breaches exacerbate the infringements.
107The first prong of the s. 24(2) test militates towards exclusion.
(2) The impact of the breach on the Charter-protected interests of the accused
108The impact on Mr. Hawkins of these breaches is serious. The right to counsel is one of the hallmarks of a democratic and free society. It distinguishes us from regimes in which persons are routinely stopped by the authorities and are helpless to defend themselves. It is a serious thing for the ordinary citizen to be detained, arrested, handcuffed and put in a police cruiser on the side of the road in the middle of the night without being told that they have the right to speak with a lawyer who can advise them and assuage their fears by explaining to them the jeopardy in which they find themselves and what they should do about it.
109When this is added to an unlawful detention and search of Mr. Hawkins' body it increases dramatically the impact on his Charter-protected interests. In Grant, the court stated that "An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy…is more serious than one that does not" (para 78).
110Therefore, even though Mr. Hawkins did not provide evidence of the impact of the breaches of his rights, I find that it is reasonable to infer that they had a high impact.
111The second prong of the s. 24(2) test militates towards exclusion.
(3) Society's interest in the adjudication of the case on its merits
112The breaches of ss. 8 and 9 are more important to consider under this heading because they had a direct result in obtaining the breath samples that incriminate Mr. Hawkins.
113In Grant, the court pointed out that "Society generally expects that a criminal allegation will be adjudicated on its merits" (para. 79).
114Therefore, it is important to consider the truth-seeking function of the trial, the reliability of the evidence, and the importance of the evidence for the Crown's case.
115The breath test results are reliable evidence and without them the Crown's case falls. The truth seeking function of the trial would be better served by the inclusion of the evidence.
116Consequently, the third prong of the s. 24(2) test militates towards inclusion.
117After having weighed all of these considerations"the judge must then determine whether, on a balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute" (Grant, para. 85).
Disposition
118After having considered all of the above factors, I find that due to the number of Charter breaches and the lackadaisical attitude toward the observance of Mr. Hawkins' rights under the Charter, that the admission of the breath test results would bring the administration into disrepute more than their exclusion. Therefore, the breath test results are excluded. He is found not guilty on this basis as well.
Released: March 8, 2013
Signed: "Justice J. W. Bovard"
