Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
ā and ā
Maaz Chaudhry
Before: Justice J. M. Copeland
Heard on: December 17, 2015
Reasons for Judgment released on: January 29, 2016
Counsel:
Ms. L. Rasmussen ā counsel for the Crown
Mr. A. Farooq ā counsel for the defendant Maaz Chaudhry
COPELAND J.:
Introduction
1Maaz Chaudhry is charged with one count of operation of a motor vehicle with over 80 milligrams of alcohol per 100 millilitres of blood. The charge arises out of a stop of Mr. Chaudhry's vehicle after he was observed leaving a bar. Mr. Chaudhry brought an application under ss. 8 and 9 of the Charter seeking to exclude the evidence of the breath sample results. Mr. Chaudhry alleges that the officer who stopped him, Cst. Peach, did not have reasonable suspicion to make the ASD demand, and subsequently also did not have reasonable and probable grounds to make the breath demand and arrest. The matter proceeded before me as a blended trial and Charter voir dire.
2The defence generally bears the burden of proof on a Charter application on a balance of probabilities; however, because a breath demand is a warrantless search, the onus shifts to the Crown to show that the search was reasonable, also on a balance of probabilities: R. v. Collins, [1987] 1 S.C.R. 265; R. v. Haas, (2005), 76 O.R. (3d) 737 at paragraphs 24-38 (ONCA). In order to justify a warrantless search, the Crown must show that the search was authorized by law, that the law authorizing the search was reasonable (i.e., Charter compliant), and that the manner of the search was reasonable: Collins, supra at p. 278. The Charter issues in this case turn on whether the statutory pre-conditions for each type of breath demand were met, i.e., whether the searches were authorized by law.
The Evidence
3Mr. Chaudhry testified. There are two primary factual issues which are contested in relation to the Charter claims. The first issue is whether Cst. Peach smelled alcohol on the Mr. Chaudhry's breath prior to making the ASD demand. The second is whether, prior to administering the ASD, Cst. Peach asked Mr. Chaudhry when he had finished his last drink.
4The basic circumstances of the stop are not in dispute. In the early morning hours of December 14, 2014, Cst. Peach was working as part of a seasonal RIDE program. She was stopping vehicles as they were leaving a bar at Ray Lawson Boulevard and Hurontario. She saw Mr. Chaudhry leave the bar in his car. She did not observe any issues with his driving. She conducted a traffic stop at 2:18 a.m. pursuant to the Highway Traffic Act, to check his sobriety. She advised Mr. Chaudhry of the reason for the stop. Cst. Peach asked Mr. Chaudhry if he had had anything to drink, and he told her that he had had a few beers. She asked for his identification. He told Cst. Peach that he did not have his driver's license with him because the waitress in the bar had asked for ID. He had given the waitress his driver's license, and she had forgotten to return it to him. From that point on, the facts become contested.
(i) Cst. Peach's evidence
5Cst. Peach testified that while she was speaking to Mr. Chaudhry through the rolled-down car window, she smelled alcohol on his breath. After the conversation in the car, she made an ASD demand to Mr. Chaudhry at 2:20 a.m. It was clear from Cst. Peach's evidence that her grounds to make the ASD demand were the smell of alcohol on Mr. Chaudhry's breath, and his admission that he had had a few drinks.
6Mr. Chaudhry took a number of attempts to provide the ASD sample, but ultimately did so, with a fail result at 2:25 a.m. There was no issue that the machine used by Cst. Peach was an approved screening device, and that it was in proper working order that night.
7Cst. Peach testified that she asked Mr. Chaudhry prior to administering the ASD when he had his last drink. She did not recall his answer, and had made no note of it. But she asserted that it was "not within the 15 minute time frame". She asserted that she was sure of this because she was certain that she would never give an ASD within 15 minutes of a detainee's last drink.
8Cst. Peach testified that based on the ASD fail result, she formed the opinion that Mr. Chaudhry's blood alcohol level was over the legal limit. She placed him under arrest. She read him his right to counsel, caution and the breath demand. She then transported Mr. Chaudhry to the mobile breath unit set up at 180 Derry Road.
9Cst. Peach testified that she provided her reasonable and probable grounds for the breath demand to the breath technician, Cst. Peel. Her grounds were as follows: She saw the defendant's vehicle leave the bar and turn onto Hurontario; she conducted a traffic stop; she advised the driver of the reason for the stop, to check sobriety; at that time she smelled a strong odour of alcohol from the defendant's breath; she made the ASD demand; after a number of attempts, the defendant provided a suitable sample with a fail result.
10I will not summarize the evidence in relation to events at 180 Derry Road, as they are less relevant to the Charter application.
11Cst. Peach testified in cross-examination that at the time of her stop of Mr. Chaudhry she had been an officer for two years, and working on her own for 1.5 years. She testified that the practice on seasonal RIDE programs is for an auxiliary officer to accompany an officer. She had no note as to whether an auxiliary had accompanied her that night, and she could not recall if one had. She could also not recall if Mr. Chaudhry had a passenger with him in the car.
12Cst. Peach was cross-examined about her failure to note asking Mr. Chaudhry when he had his last drink. She agreed that in making her notes she wants to make sure she notes "critical facts". She agreed that asking the defendant when he had his last drink was a "critical fact". She agreed that she did not record it in her notes. In response to a question about whether she was relying on her memory or practice to say that she had asked Mr. Chaudhry when his last drink was, she said she was relying on both. She said her memory was certain that she had asked if he had had a drink in the last 15 minutes. She also said that it was her practice always to ask when the person had their last drink prior to giving an ASD.
13Cst. Peach said it was her practice not to note asking when a detainee had their last drink. She initially testified that nobody had ever told her that it would be a good practice to make a note of asking when a detainee had their last drink. When queried about that response, she then said she did not recall if she had ever been told this. When asked about the change in her answer, she reverted to the answer that nobody had ever told her that it would be a good idea to write down when she asked when a detainee had their last drink.
14In cross-examination, Cst. Peach denied the suggestion that she did not smell alcohol on Mr. Chaudhry's breath until after he had already blown into the ASD a number of times. However, she agreed that in the chronology of her notes, she had listed the smell of alcohol on the defendant's breath during the portion of her notes about the various attempts to provide an ASD sample, and not in the portion of her notes about the conversation while the defendant was still in his car.
(ii) Mr. Chaudhry's evidence
15Mr. Chaudhry testified that he had been at the bar with Ashminder Grewal and some friends to celebrate the birthday of a friend of Ms Grewal's sister. He testified that they had arrived at roughly 11:00 p.m. He testified that he had three beers to drink at the bar, and had not had anything to drink before arriving at the bar. He testified that the bar closes at 2:00 a.m., and he left the bar at approximately 2:15 a.m. with Ms Grewal. He could not recall, within the time frame he was at the bar, when he drank the three beers or how long it took to drink them.
16Mr. Chaudhry testified that he followed Ms Grewal's sister's car as they left the parking lot. He testified that when Cst. Peach stopped his car, she asked him where he was coming from. He said from the bar. She asked if he had been drinking, and he said he had had a few beers. He testified that Cst. Peach then asked him to step out of the car, and walked him towards her car and was explaining how to use the ASD. He denied that Cst. Peach asked him when he had his last drink.
17In cross-examination he agreed that the three drinks he had were three "tall-boy" cans of beer. He also agreed that he had bought his last beer at about 12:45 a.m., which was what he told Cst. Peel in the breath room. He testified that he was still trying to finish that beer shortly before he left the bar. He estimated that he finished drinking that beer at just before 2:00 a.m. He denied the suggestion that Cst. Peach asked him if he had had anything to drink in the last 15 minutes. He said that after he had told Cst. Peach that he had had a few beers, she told him to step out of the car. He agreed that while he was in the car Cst. Peach also asked him for his driver's license, and they then had a conversation about the fact that he had left it in the bar.
18Mr. Chaudhry said he could not recall the exact time of the traffic stop, but he could not say that Cst. Peach was wrong about the time of the stop being 2:18 a.m.
19Mr. Chaudhry's friend Ashminder Grewal, who was with him in the car, also gave evidence. In the end, her evidence was not of assistance on the Charter issues. Because she had also been drinking, she agreed that she was unable to assess whether Mr. Chaudhry's breath smelled of alcohol at the time of the stop. Further, she testified that she did not hear the conversation between Mr. Chaudhry and Cst. Peach, so she was unable to assist the court with whether Cst. Peach asked Mr. Chaudhry about the time of his last drink. However, I do accept Ms Grewal's evidence that she was in the car with Mr. Chaudhry at the time of the traffic stop.
(iii) Findings of fact on contested factual issues
20On the issue of whether Cst. Peach smelled alcohol on Mr. Chaudhry's breath prior to making the ASD demand, I accept the evidence of Cst. Peach that she did. I have some concern about the fact that she noted the smell of alcohol later in the chronology of her notes, during the notes about administering the ASD, rather than in the portion of her notes about the conversation while Mr. Chaudhry was in the car. Absent the defendant's evidence, I may not have come to the same conclusion. But in light of the defendant's evidence that he drank three beers that evening, and had finished his last beer just before 2:00 a.m., I find that it is likely that there was the smell of alcohol on his breath. Neither Mr. Chaudhry nor Ms Grewal gave evidence that Mr. Chaudhry's breath did not smell of alcohol. Mr. Chaudhry accepted in his evidence that one may have the smell of alcohol on one's breath after drinking. Ms Grewal agreed that she was unable to tell if Mr. Chaudhry's breath smelled of alcohol because she had been drinking. In all of the circumstances I accept Cst. Peach's evidence that she smelled alcohol on Mr. Chaudhry's breath prior to making the ASD demand.
21On the issue of whether Cst. Peach asked Mr. Chaudhry about the timing of his last drink, I do not accept Cst. Peach's evidence. I accept her evidence that she had a general practice of asking people she stopped for impaired driving checks when they had their last drink; however, in all of the circumstances in this case, I am not prepared to rely on that practice to find that she asked Mr. Chaudhry when he had his last drink. Nor am I prepared to rely on her asserted memory of asking that question.
22Cst. Peach could not recall what Mr. Chaudhry's answer was to the question she claims she asked of when his last drink was. I do not believe that she has an independent recollection of asking Mr. Chaudhry when his last drink was. The trial was one year after the events. She had no note of asking Mr. Chaudhry when he had his last drink, or of a response to that question. I do not accept that she specifically recalls this detail of the conversation that was not noted, in what was a fairly routine impaired driving investigation, with nothing to make it stand out in her memory. I note that she did not recall another routine aspect of this investigation of which she also made no note, whether or not she had an auxiliary officer with her at the time of the traffic stop. Nor did Cst. Peach recall whether or not there was a passenger in Mr. Chaudhry's car. Thus, I am not prepared to rely on her memory on this point.
23Having rejected that Cst. Peach remembers asking Mr. Chaudhry when he had his last drink, I am left to consider whether I am prepared to find that she asked the question relying entirely on her asserted practice of always asking when a detainee had their last drink.
24The nature of relying on evidence of a practice is accepting that the witness always followed the practice she has testified to. Human nature and experience tells us that that is not always the case. People make mistakes, and sometimes forget to do things.
25While I might, in different circumstances, be prepared to rely on a witness' evidence of a practice to find that they took a particular action at a particular time, a number of aspects of Cst. Peach's evidence trouble me and weigh against finding that she followed her practice that night. Cst. Peach did not record in her notes that she asked Mr. Chaudhry when he had his last drink, or record any response to that question. When confronted with the lack of a note of asking Mr. Chaudhry when he had his last drink, and his response, and asked if she had been taught to write down the fact of asking an individual in an impaired investigation about the time of the last drink, and the individual's response, she gave a number of shifting responses, which I have outlined above at paragraph 13. I found these shifting responses troubling. I am unable to accept that Cst. Peach was not taught to write down the response to when an individual had a last drink in an impaired investigation if that question is asked, given that she was aware that when the question is asked, the response is important to whether an ASD result is reliable.
26I note that in relying in part on Cst. Peach not having made a note about asking Mr. Chaudhry about when he had his last drink, I am not holding that I do not believe her evidence on this point merely because she does not have a note. The lack of a note is not, standing alone, necessarily a reason to reject an officer's evidence on a particular point. The lack of a note is a factor a trier of fact can consider in the context of all of the evidence in deciding whether or not to accept an officer's evidence on a particular point. In assessing the importance of the lack of a note, a trier of fact may consider factors such as, but not limited to, the importance of the point about which there is no note, the officer's explanation for the lack of a note, the length of time between the events and the officer giving evidence, and the existence of confirmation for the point missing from the note: R. v. Gill, 2015 ONSC 7872 at paras. 45-46. I outline above at paragraphs 21-25, why I do not believe Cst. Peach's evidence that she asked Mr. Chaudhry when he had his last drink. The lack of a note is an important factor, but it is not the only factor that leads me to this conclusion.
27As the Crown bears the onus to justify a warrantless search, my rejection of the reliability of Cst. Peach's evidence on this issue is sufficient to come to this factual finding.
Did Cst. Peach have reasonable suspicion to make the ASD demand?
28Counsel for Mr. Chaudhry did not challenge the validity of the initial stop of the vehicle, which Cst. Peach said she undertook for a sobriety check. He challenged whether she had reasonable suspicion to make the ASD demand. The challenge was twofold. First, he challenged the credibility of Cst. Peach's evidence that she smelled alcohol on Mr. Chaudhry's breath when she first engaged him in conversation after stopping his car, and before she made the ASD demand. Second, he argued that absent the smell of alcohol on Mr. Chaudhry's breath, or some evidence of poor driving, there was not reasonable suspicion to make the ASD demand.
29I find that Cst. Peach did have reasonable suspicion to make the ASD demand. As noted above, I accept Cst. Peach's evidence that she smelled alcohol on Mr. Chaudhry's breath prior to making the ASD demand. However, as I will explain, even had I not accepted her evidence on that point, I would still have found that she had reasonable suspicion to make the demand.
30Section 254(2) of the Criminal Code requires that to make an ASD demand, an officer must have reasonable grounds to suspect that a person has alcohol in their body, and has operated a motor vehicle in the preceding three hours. It is important to note that the reasonable suspicion required for s. 254(2) is that the detainee has alcohol in their body. There is no requirement that the officer believe that the person is impaired, or that the level of alcohol in their body exceeds 80 milligrams of alcohol per 100 millilitres of blood.
31Reasonable suspicion is something more than a mere suspicion, and something less than reasonable and probable grounds. Like reasonable and probable grounds, reasonable suspicion is an objective standard that requires "objectively discernable facts, which can be subject to independent judicial scrutiny". However, reasonable suspicion is a lower standard than reasonable and probable grounds, looking at reasonable possibility, rather than reasonable probability. The trial judge must consider whether the reasonable suspicion threshold is met in the totality of the circumstances. It is a fact-based, flexible assessment, grounded in common sense and every day experience: R. v. Valere, 2013 ONCJ 594 at paras. 11-13, and cases cited therein.
32I find that the evidence that Cst. Peach observed Mr. Chaudhry leaving the bar, driving his car, and that when he was stopped he told Cst. Chaudhry he had consumed three beers would have been sufficient, even absent the smell of alcohol, for a reasonable person to suspect that Mr. Chaudhry had alcohol in his body at the time he was driving. It forms a reasonable basis to conclude that Mr. Chaudhry consumed alcohol recently enough that it was still in his body, and he was observed driving a motor vehicle. No more is required for a valid ASD demand.
33I reject defence counsel's argument that there was a need for something more, such as observations of bad driving or signs of impairment. In this regard, defence counsel is intermingling the requirements for an ASD demand under s. 254(2), and a breath demand under s. 254(3). As explained above, the requirements for the two types of demands are different.
34Cst. Peach's evidence that she smelled alcohol on Mr. Chaudhry's breath provides further support for the reasonable suspicion, but it is not essential in all the circumstances of this case. The evidence of leaving the bar driving, and admitting to having consumed three beers is sufficient for a reasonable person to suspect that Mr. Chaudhry had alcohol in his body at the time he was driving.
35For these reasons, I find that the ASD demand was valid. There was no breach of s. 8 or 9 of the Charter in the making of the ASD demand.
Did Cst. Peach have reasonable and probable grounds to make the breath demand?
36Counsel for Mr. Chaudhry also argues that the breath demand and subsequent arrest infringed Mr. Chaudhry's ss. 8 and 9 rights because Cst. Peach did not have reasonable and probable grounds to make the demand. He argues that if Cst. Peach did not ask Mr. Chaudhry when he had his last drink, the ASD fail result was is not reliable, and in all the circumstances could not provide the basis for reasonable and probable grounds to make the breath demand and the arrest.
37The issue of mouth alcohol and the reliability of an ASD result as it relates to reasonable and probable grounds was carefully considered by Justice Durno in R. v. Mastromartino, [2004] O.J. No. 1435 (S.C.). In that decision, Justice Durno considered the Supreme Court of Canada authority of R. v. Bernshaw, [1995] 1 S.C.R. 254, and the Ontario Court of Appeal decision in R. v. Einarson (2004), 183 C.C.C. (3d) 19, as they relate to situations like this case, where a roadside stop is made after an officer sees an individual leave a bar in a motor vehicle. Justice Durno provides the following summary of the applicable law (Mastromartino at para. 23):
(i) Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
(ii) If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
(iii) Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
(iv) Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
(v) Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
(vi) The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
(vii) If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
(viii) If the officer decides not to delay taking the sample 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 sample was taken without delay.
38As outlined above, I do not accept Cst. Peach's evidence that she asked Mr. Chaudhry when he had had his last drink. Cst. Peach testified that she was aware that a drink consumed less than 15 minutes prior to an ASD test can affect the reliability of the result. She was aware that Mr. Chaudhry had just left a bar, shortly after closing time. It was implicit in Cst. Peach's evidence that her conclusion that she had reasonable and probable grounds once the ASD fail result was obtained was based at least in part on her assertion that Mr. Chaudhry had told her that he had not consumed alcohol in the past 15 minutes. In light of my finding that I am not persuaded that Cst. Peach, in fact, asked Mr. Chaudhry when he had his last drink, that aspect of the grounds cannot be relied on.
39I accept, as the cases clearly state, that Cst. Peach was not required to ask about the time of the defendant's last drink, even in circumstances where she had just seen him leave a bar: Mastromartino at paras. 20-23. However, I find that her reasonable and probable grounds clearly relied on her assertion that she understood the ASD result to be reliable because she had asked Mr. Chaudhry when he had his last drink, and it was outside 15 minutes. Given my finding of fact that Cst. Peach did not inquire about when Mr. Chaudhry had his last drink, I find that she lacked subjective reasonable and probable grounds. Implicit in her evidence is the assertion that for there to be reasonable and probable grounds based on the ASD fail, she needed to know that Mr. Chaudhry had not had a drink in the previous 15 minutes. I note that this is appears to be overstating her legal obligations (see Mastromartino at paras. 20-23). But since the subjective branch of reasonable and probable grounds is based on her belief, given my finding that she did not ask Mr. Chaudhry when he had his last drink, I find that Cst. Peach subjectively lacked reasonable and probable grounds. I note that a similar analysis was upheld on appeal based on similar factual findings in one of the component cases in Mastromartino: see at paras. 49-51, 55, 61-63. In light of the lack of reasonable and probable grounds, the breath demand and arrest infringed ss. 8 and 9 of the Charter.
40In making the finding that Cst. Peach lacked reasonable and probable grounds to make the breath demand, I have considered the fact that based on Mr. Chaudhry's evidence in the voir dire, there was, in fact, no issue about mouth alcohol affecting the validity of the ASD fail result. As noted above, Mr. Chaudhry testified that he ordered his last drink at 12:45 a.m., and finished it just before 2:00 a.m. The ASD demand was made at 2:20 a.m., and the ASD fail result obtained at 2:25. Thus, the ASD sample was taken outside the 15 minute window where mouth alcohol can affect the validity of the ASD result: see Mastromartino at paras. 7, 29-35. However, while these facts may be relevant to the s. 24(2) analysis, I find that they are not relevant to the s. 8 analysis because they were facts not known to Cst. Peach at the time she formed her reasonable and probable grounds for the breath demand.
41It is well-established that reasonable and probable grounds must be based on information known to the officer at the time of the breath demand (or any type of search), and not based on information subsequently available or available at trial: Mastromartino at paras. 24-28; R. v. Censoni, [2001] O.J. No. 5189 at para. 35 (SC). The requirement that reasonable and probable grounds be assessed based on information known to the officer at the time the breath demand is made (or any type of search) is based on practical reality, and also on a purposive interpretation of the right to be free from unreasonable search and seizure.
42With respect to practical reality, an officer can only be expected to make an assessment of whether reasonable and probable grounds exist based on information available to them at the time they make the breath demand, as outlined in Mastromartino at paras. 24-28, and Censoni at para. 35.
43With respect to a purposive interpretation of the right to be free from unreasonable search and seizure, a central aspect of the right is that justification of searches cannot be ex post facto, based on information learned after the search or as a result of the search. As explained by the Supreme Court of Canada in Hunter v. Southam, in the context of prior authorization for a search with a warrant, the primary purpose of s. 8 is to prevent unjustified searches before they happen. In the context of searches with warrants, this purpose underpins the requirement of prior authorization: Hunter v. Southam, [1984] 2 S.C.R. 145. In the impaired driving context the courts are usually dealing with warrantless searches; however, the same concern animates the requirement that grounds for a breath demand be assessed based on information known to the officer at the time of the breath demand. Section 8 would provide little protection if information obtained after a search could be used to justify the search.
44As a result, I base my analysis of whether there were reasonable and probable grounds only on the information known to Cst. Peach at the time she made the breath demand.
45Finally, I will briefly address the evidence of Cst. Peel in relation to reasonable and probable grounds. Cst. Peel, the breath technician, gave evidence with respect to his reasonable and probable grounds; however, his evidence on this issue was dependent on information provided to him by Cst. Peach, in particular regarding the ASD fail result. In addition, there were inconsistencies between the grounds Cst. Peach testified she gave to Cst. Peel, and what Cst. Peel testified he was told by Cst. Peach. In particular, Cst. Peel testified that Cst. Peach told him that the defendant said he had not had anything to drink, contrary to the evidence of Cst. Peach. Further, Cst. Peel testified that Cst. Peach told him that the defendant's eyes were red and watery. Cst. Peach made no reference to telling Cst. Peel of those signs of impairment. For these reasons, Cst. Peel's evidence in relation to reasonable and probable grounds cannot "cure" my finding that Cst. Peach lacked reasonable and probable grounds to make the breath demand.
Should the evidence be excluded under s. 24(2) of the Charter?
46The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, requires me to consider the following factors in assessing whether in all the circumstances, admission of the breath samples into evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the defendant; and third, the societal interest in a trial on the merits: Grant at paragraphs 71-84, and 109-111.
(i) Seriousness of the breach
47The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter, by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant at paragraphs 72-75.
48I find that in the circumstances of this case, that the breach is in the mid-range of seriousness. On one hand, the breach I have found involves a finding that Cst. Peach did not have reasonable and probable grounds to make the breath demand and arrest. As outlined above at paragraph 43, the existence of justification for a search (here reasonable and probable grounds) prior to conducting the search is one of the fundamental ways the right to be free from unreasonable search and seizure is protected. The absence of reasonable and probable grounds is a serious aspect of the breach.
49On the other hand, Cst. Peach was a relatively inexperienced officer at the time of this investigation. I find that she did not act in bad faith or deliberately in the sense recognized as an aggravating factor in the case law. The reason I am not persuaded that she asked Mr. Chaudhry about his last drink is that I find her evidence on this issue unreliable, for the reasons I have outlined above. I do not believe she intentionally misled the court. Rather, she did not have a note of the question, and I believe that she was trying in her evidence to fill in her memory of what she did based on her usual practice.
50I find that the first branch of the analysis supports exclusion of the evidence, but not overwhelmingly so.
(ii) Impact on Mr. Chaudhry's Charter-protected interests
51The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78.
52In considering this factor, I take into consideration that Grant represents a clear departure from earlier case law in assessing the nature of the impact on the rights of the defendant in the context of arguments to exclude breath samples. Prior to Grant, because breath samples as bodily samples were considered to be self-incriminatory, there was close to automatic exclusion of breath samples where a Charter breach had been found. Grant is clear that rather than focus on breath samples as self-incriminatory, the courts should consider the nature of the intrusion into bodily integrity and the reliability of the evidence. Because the nature of the intrusion into bodily integrity of the defendant in taking breath samples is minimal, and they are very reliable evidence, this analysis will generally weigh in favour of their inclusion: see Grant at paragraphs 109-111.
53I find that the impact on the defendant's Charter protected interests is minimal. First, as outlined in Grant, the intrusion into bodily integrity of taking a breath sample is minimal, and the evidence is reliable. Second, although I have found that there was a breach of Mr. Chaudhry's ss. 8 and 9 rights because Cst. Peach's asserted reasonable and probable grounds relied on her having asked the time of Mr. Chaudhry's last drink, and I rejected her evidence on that point as unreliable, in light of the defendant's evidence on the voir dire about the timing of his last drink, I find as a fact that the ASD fail result was reliable and was not tainted by mouth alcohol. In these circumstances where the ASD fail result was reliable, I find that the impact on the defendant's Charter-protected interests was minimal. I find that the second branch of the analysis favours admitting the evidence.
(iii) Impact of Excluding the evidence
54With respect to the third branch of the Grant analysis, society has a strong interest in the trial on the merits of drinking and driving offences. Drinking and driving is a significant societal problem, and prosecutions on the merits are a vital tool to address that harm. The breath sample evidence is reliable, and its admission would not undermine the truth-seeking function of a trial. The evidence of the refusal to provide a sample is essential to the Crown's case in this matter.
55At the same time, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84. In the case of a serious Charter breach, the long terms impact on the administration of justice may favour exclusion of evidence.
56On balance, I find that the third branch of the analysis favours inclusion of the evidence because the breath samples are essential to the Crown's case, they are reliable evidence, and there is a strong societal interest in a trial on the merits.
57The final balancing of the three sets of factors in Grant is not a mechanistic exercise. In this case, considering the three Grant factors, I find that the evidence should not be excluded. The breach is in the mid-range of seriousness, but the impact on Mr. Chaudhry's Charter-protected interests is minimal. The evidence is reliable, and there is a strong societal interest in a trial on the merits. In all of the circumstances, the admission of the breath samples into evidence would not bring the administration of justice into disrepute. As a result, I do not exclude the breath sample evidence pursuant to s. 24(2).
Conclusion
58Counsel for Mr. Chaudhry advised that if I found no Charter violation, or if I did not exclude the evidence under s. 24(2), then he had no submissions on the application of s. 258(1)(c). I find that the Crown has proven all of the preconditions to apply the presumptions of accuracy and identity in s. 258(1)(c) beyond a reasonable doubt. It was not contested that Mr. Chaudhry drove his car shortly after 2:15 a.m. The breath samples were taken at 3:14 and 3:37 a.m., with readings of 140 and 150 milligrams of alcohol per 100 millilitres of blood respectively. The samples were taken directly into an approved instrument, by a qualified technician, as soon as practicable, within two hours of the offence, and at least 15 minutes apart.
59I find Mr. Chaudhry guilty of operation of a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code of Canada.
Released: January 29, 2016
Signed: "Justice J. M. Copeland"