Court Information

Date: January 26, 2017

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Chanthuru Perinpanathan

Before: Justice L. Feldman

Heard on: September 15, October 11, 2016

Reasons for Judgment released on: January 26, 2017

Counsel:

• P. Kelly for the Crown
• P. Locke for the accused Chanthuru Perinpanathan

L. FELDMAN J.:

Introduction

[1] Chanthuru Perinpanathan entered not guilty pleas to charges of Operation Impaired and Blow Over 80. It is alleged that at a time police stopped him for erratic driving he had more than the legal amount of alcohol in his system. The Crown called 4 police officers in support of its case.

[2] The defendant submits that in the course of the investigation his ss. 7, 8, 9, 10(a) and 10(b) rights under the Charter of Rights and Freedoms were violated by the police. He says that in light of these infringements and their cumulative effect, his breath readings should be excluded. He agrees to a blended hearing.

[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[4] On July 10, 2015, at 3:58 a.m., P.C. Gilbert Limyook was in his police cruiser stopped at a red light eastbound on Lawrence Ave East at Kennedy Rd. in Scarborough. Mr. Perinpanathan was stopped in the westbound lane. The officer observed the accused, while facing a red light, move forward and quickly stop twice over a distance of 5-6 feet during a 5-10 second time span. It made no sense to him.

[5] P.C. Limyook was concerned the driver was either in need of assistance or impaired. When the light was green, he turned around, put on his emergency equipment and followed the defendant, who was travelling at a high rate of speed. Mr. Limyook continued westbound on Lawrence Ave, made a right turn on Birchmount Rd., entered a parking lot and drove behind a building. The officer drove in as well. The time was 3:59 a.m.

[6] As P.C. Limyook was walking over to the vehicle, the passenger was just getting out. He observed this man to be unsteady on his feet and unable to walk in a straight line. The officer felt it possible the driver might be in a similar state. Because he was alone, he ordered the passenger back into his seat. He decided to investigate further. He asked dispatch to send additional officers.

[7] P.C. Limyook said that he walked over to the driver's side window at 4:00 a.m. and spoke with the accused. He noted that his eyes were red and bloodshot and his speech slurred. He did not smell alcohol on his breath. He demanded the defendant's identification documents and took them back to his cruiser at 4:02 a.m.

[8] The officer testified that as he headed back to his vehicle, suspicion that the driver might be impaired crystallized in his mind. His suspicion derived from the indicia he had observed in the two men, in addition to the manner of driving he had seen earlier.

[9] The defence raised some uncertainty about the precise time of these events in light of the differing times recorded on the ICAD document. This document is hearsay evidence to which no weight can attach. In this case, the ICAD records a 4:00 a.m. call to dispatch and the arrival on scene of backup officers at 4:02 a.m. On the evidence, that is unlikely. That was when P.C. Limyook said he returned to his cruiser to await assistance and the arrival of a roadside instrument. It is unhelpful that P.C. Limyook did not make note of the arrival time of other officers.

[10] P.C. Erica Wester testified that dispatch directed her and P.C. Webster to the scene to assist an officer confronting a belligerent passenger. The ICAD indicates they arrived at 4:02 a.m. and that P.C. Webster immediately returned to 41 Division, a matter of minutes away, to obtain a roadside screening device. She believes it possible she arrived closer to 4:03 a.m. at a time she recalls P.C. Limyook talking to the accused. She thinks two other officers arrived shortly afterwards. The ICAD times sow confusion, but are of little material assistance.

[11] P.C. Limyook told the court he ordered an Approved Screening Device [ASD] at 4:03 a.m., checked the driver's license on CIPC and waited for other officers to arrive. This accords with P.C. Wester's evidence about the approximate time of her arrival.

[12] P.C. Limyook believes he heard a female voice, likely P.C. Wester, at 4:05 a.m. He said as a result he felt safe to approach the accused at 4:06 a.m. and make a roadside demand. P.C. Brock brought the instrument 3 minutes later. The in-car camera video records other backup officers arriving on scene around the same time.

[13] P.C. Wester testified that at 4:08 a.m., the passenger got out of the car. She believes she and another officer engaged him. He was intoxicated and difficult to deal with. His mother, who appeared, confirmed he lived with her in an apartment nearby. She took him home.

[14] On the evidence, it is probable that P.C. Brock returned with the instrument at 4:09 a.m. P.C. Wester recalls him searching the defendant's vehicle at 4:10 a.m. during which he found 1.5 grams of marihuana.

[15] P.C. Limyook did a self-test on the device. He found it to be in proper working order. At 4:12 a.m., he explained the procedure to the defendant. The officer said that at 4:16 a.m., the defendant provided a breath sample and registered a Fail. The in-car video registered the result at 4:15 a.m.

[16] P.C. Limyook arrested the accused at 4:17 a.m. and gave him his rights to counsel. The video indicates that occurring one minute earlier. Mr. Perinpananthan said he had no lawyer. He was told he could call duty counsel. The officer then made a breath demand. The time on the in-car video was 4:17 a.m.

[17] The officer placed his detainee in the back seat of his scout car. He then entered driver information into the computer for 5-6 minutes, a police policy designed to speed up the parading process at the station.

[18] P.C. Limyook asked the accused where his keys were. P.C. Wester heard his response. She said Mr. Perinpanathan was slurring his words. She saw her colleague retrieve the keys at 4:22 a.m. from the defendant's vehicle.

[19] P.C. Limyook said he transported the accused to 41 Division at 4:25 a.m., arriving 7 minutes later. He was let into the sallyport at 4:35 a.m., where he had to wait for the booking Sgt. to be ready for them. Mr. Perinpanathan is heard saying he was not a criminal and that felt he had no rights.

[20] They were let into the station at 4:37 a.m. Prior to that, the defendant can be heard complaining that what was happening to him was unfair and that the police should arrest those who commit crimes, not him. He said they should go catch people who are murdering others or committing 'fucking' robberies. He said he worked for his 'fucking' money and lamented that he was just driving his friend home. He went to the washroom at 4:40 a.m., returning in 2-3 minutes.

[21] P.C. Limyook, P.C. Wong, Sgt. McKonkey and a supervisor, Staff Sgt. Barbara Adam were present during the booking process that commenced at 4:49 a.m. The booking video provides insight into the accused's demeanour. He was in turn angry, unresponsive, interruptive and unfocused. His utterances were irrational. He insisted he hadn't done anything wrong.

[22] Several times, the defendant instructed the booker, Sgt. McKonkey, to pronounce his name properly. He said he hurt no one. He denied having any marihuana. He warned that he would take this matter to court. He told the supervisor he loved her. He admitted having 5 beers and some marihuana at lunch.

[23] His mood quickly changed. He said he wished he were dead. He described police questions as ridiculous. He accused them of treating him like a criminal. He said this wasn't fair because he went to college. This behaviour and these utterances permit an inference of impaired judgment.

[24] P.C. Limyook told the booking Sgt. that a small amount of marihuana was found in the defendant's car. Staff Sgt. Adam then directed a level-3 search. P.C. Wong and P.C. Limyook undertook the strip search in a private room. It took 8 minutes. Neither officer touched the accused. He was required to take off one piece of clothing at a time. A cavity search was done.

[25] Staff Sgt. Adam explained her reasons. She said the accused was angry and aggressive. He admitted smoking marihuana. She had concern that if he had a weapon, unarmed officers in the breath room or cells would be at risk.

[26] Following the search, Mr. Perinpanathan was returned to the booking hall at 5:03 am. He announced that 'you guys are in trouble'. He was talking over the police. He instructed the booking Sgt. to check him out, said he was not a newbie and started giggling.

[27] The defendant was sent to the report room at 5:04 a.m., where P.C. Limyook left a message with duty counsel and received a return call at 5:12 a.m. Mr. Perinpanathan spoke with duty counsel in a private room.

[28] P.C. Limyook escorted the accused into the breath room for his first test at 5:25 a.m. He told the court he could smell alcohol on the accused's breath and that he was unsteady on his feet.

[29] P.C. Limyook's times do not line up with those on the breath room video that have the defendant entering the room at 5:16 a.m. Of note, the officer had to keep control of the accused in order to get him to go in. Mr. Perinpanathan continued his unfocused dialogue. He said he wanted to be a cop. When told he was being charged with Blow Over 80, he asked if that meant a speeding charge. He said he didn't know why he was there but said he would cooperate. He did not stop talking. He told the officers he was not a criminal, did nothing wrong, that the process was unfair and that they have the wrong guy.

[30] He kept interrupting P.C. Clifford during the officer's demonstration of how to provide a suitable sample of his breath. He insisted he had already done that. He kept talking. He asked to be let go. He said he works hard and goes to school. He provided a sample of his breath at 5:24 a.m. The reading was 162 mgs. He was returned to the report room.

[31] Brought back in at 5:45 a.m., the defendant was upset and swearing. He provided a second suitable sample on his third try. The reading was 149 milligrams. He was told that the result was over the legal limit. He was served with a Certificate of Qualified Technician.

[32] The defendant was released at 10:15 a.m. He says he was held in custody too long. Staff Sgt. David Zebeski was called to answer this 'overholding' complaint. He had replaced Staff Sgt. Adam at 5:30 a.m.

[33] Staff Sgt. Zebeski told the court that upon commencing his shift he makes himself aware of the breath readings of detained drivers. He relies on civilian cell officers to check up on the prisoners every 30 minutes and to report anything out of the ordinary. He will release a prisoner only if satisfied that he or she is able to comprehend their obligation to attend court. Safety concerns can be met by release to a responsible friend or family member.

[34] There is no evidence that Staff Sgt. Adam provided him with any detail concerning the defendant's demeanour, his ability to comprehend his situation or to meet his obligations upon release. There is no evidence what steps, if any, the civilian officers took to assess the accused's sobriety or level of awareness, nor is there evidence that over the next 4 ½ hours Staff Sgt. Zebeski spoke to the accused, lodged very close by, to weigh his ability to understand the conditions of release. There is also no evidence that he inquired about a friend or family member to whom he could safely release his detainee.

[35] Staff Sgt. Zebeski explained that in contemplating a general time frame for release he relies on the average elimination rate of 15 mgs of alcohol per hour from the blood system. His rule of thumb is 3-4 hours for readings that are double the legal limit.

[36] It would have taken little effort on the officer's part to check the prisoner's level of awareness earlier, but he was stuck on his calculated average and failed to take account of the defendant's individual circumstances. It would appear he relied solely on the breath readings as the basis for holding the accused this long.

[37] When he was released, Mr. Perinpanathan can be seen in the booking hall video to be sober, pleasant and cooperative. How long he was like this is unknown because the officer relied solely on his general time frame.

Positions of the Parties

[38] Ms. Locke, for the accused, submits that the ASD demand was not made 'forthwith', as a result of which she says the roadside screening test result is inadmissible. She says it follows that the arrest and subsequent breathalyser demand are rendered unlawful, breaching Mr. Perinpanathan's ss. 8 and 9 Charter rights.

[39] She says, as well, that the defendant's s. 10(b) rights were infringed by the officer failing to provide him with his rights to counsel when there was a 'realistic opportunity' to do so. Additionally, counsel submits that the police violated the accused's s. 10(a) rights in failing meet their informational duty to inform the detainee promptly of the reason for his detention.

[40] Ms. Locke also submits that the strip search of her client was both unnecessary and unlawful in the circumstances, breaching his ss. 7 and 8 rights. Finally, she says that in not releasing the defendant for almost 5 hours after his breath tests he was arbitrarily detained, breaching his s. 9 rights.

[41] Mr. Kelly, for the prosecution, submits that the ASD demand was made 'forthwith' in the circumstances and that there was no realistic opportunity for Mr. Perinpanathan to consult counsel prior to the roadside breath test. He says the defendant was under no illusion about why he was investigated and detained. He submits that the strip search was justified on the evidence. Finally, he says that the reasons of the officer-in-charge justify the length of time the accused was held prior to being released.

Was the Demand Made 'Forthwith'?

[42] In R. v. Quansah, 2012 ONCA 123, Justice LaForme sets out the following framework with which to apply the 'forthwith' or 'immediacy requirement' set out in Code s. 254(2):

1. The analysis of this requirement must be done contextually, that is, balancing the public interest in public safety and the need to safeguard individual Charter rights;

2. The ASD demand must be made promptly once the officer forms a reasonable suspicion the driver has alcohol in his or her system;

3. 'Forthwith' contemplates a prompt demand and an immediate response by the driver. There is more flexibility in interpreting immediacy in unusual circumstances. However, the time from the formation of reasonable suspicion and the making of the demand to the detainee's response must be no more than is 'reasonably necessary' to enable the officer to discharge his or her duty under s. 254(2);

4. The immediacy requirement must take into account all the circumstances, including a reasonably necessary delay, for example, where an ASD is not immediately available or due to "articulated and legitimate safety concerns";

5. One circumstance for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the 'forthwith' criterion is not met.

[43] In this case, the initial stage of the investigation was dynamic. The arresting officer found himself alone behind a building with two possibly impaired individuals, one of whom was belligerent. Safety was a legitimate concern in those circumstances pending backup.

[44] I accept P.C. Limyook's evidence that he confronted the passenger at 3:59 a.m. and spoke briefly to the driver a minute later, asking him if he had been drinking and demanding his documents, before returning to his cruiser at 4:02 a.m. in order to request assistance. I accept, as well, on this evidence, that for reasons noted earlier, as he was returning to his cruiser, there was an objective basis for his having developed a reasonable suspicion that Mr. Perinpanathan had alcohol in his system.

[45] P.C. Limyook requested assistance and an ASD, he believes, at 4:03 a.m., possibly as late as 4:05 a.m. This is a reasonable timeline in the circumstances. The officer recalls hearing a woman's voice, likely P.C. Wester, at 4:05 a.m., indicating other officers were present. He made a roadside demand one minute later.

[46] P.C. Wester was not precise with her times. She believes she arrived with P.C. Brock at 4:02-3 a.m., but is unsure. She recalls that her escort left to obtain a screening device, returning in 2-3 minutes. This would accord with the evidence of P.C. Limyook who testified that P.C. Brock left the scene at 4:06 a.m., returning 3 minutes later with an ASD. He was aware that the station was close by. This timeline is supported by the evidence that upon his return, P.C. Brock searched the defendant's vehicle one minute later.

[47] I am of the view on this evidence that it was reasonable for the arresting officer to limit his contact with the accused until his safety concerns were met. He was made aware that an ASD would be available in a matter of minutes. Once he received the device he set the roadside screening process in motion.

[48] In the circumstances, the delay between the forming of reasonable suspicion and the demand was reasonably necessary. The device was available within 3 minutes of the demand. There was not on this evidence a realistic opportunity for the accused to contact, seek and receive advice from counsel before the sample was provided: R. v. Yamka, [2011] O.J. No. 283 (Ont. S.C.), at para. 32. The roadside samples were taken forthwith. It follows that the roadside demand was lawful.

Section 10(a)

[49] Code s. 10(a) requires that police inform the detainee promptly and in clear and simple language of the reasons for his or her detention or arrest: R. v. Orbanski, 2005 SCC 37, at para. 31; R. v. Mann, 2004 SCC 52, at para 21.

[50] The language used by the officer to provide the reasons need not be formalistic, but rather must convey information the substance of which the accused can reasonably be supposed to have understood: R. v. Evans, at p. 888.

[51] In a well-reasoned analysis in R. v. Evans, [2015] O.J. No. 2907 (Ont. C.J.), Stribopoulos J., at para. 60, referred to the "positive, informational duty" imposed on the police by s. 10(a). He relied on a discussion of this section by McLachlin C.J.C. in Evans, supra, in asserting that the wording used need be functional rather than formalistic. For Justice Stribopoulos, the question is, in a practical sense, "is what the accused was told, viewed reasonably in all the circumstances, sufficient to permit him to make a reasonable decision to decline to submit to arrest or alternatively to understand his right to counsel under s. 10(b)?"

[52] Justice Stribopoulos made clear that where the information component is inadequate, it is insufficient, where the detainee has engaged in a particular form of wrongdoing, for the police to rely on the inference that he or she would necessarily know why they were being detained. In relying on R. v. Borden, he was of the firm view that in these circumstances the police would not be relieved of their informational duties, a conclusion with which I respectfully agree.

[53] During his initial, brief contact with the defendant, P.C. Limyook asked him if he had been drinking, before returning to his cruiser. He later made a roadside demand. This in my view indicates functional wording that conveys information that in substance would adequately inform the accused of the reason for the stop and the jeopardy he faced.

[54] The audio portion of P.C. Limyook's shoulder microphone was not working for a brief period that included his demanding a roadside breath sample. Counsel suggests there is a doubt the demand was made. The officer says he can only speculate what the reason might be for the audio not being on for a brief period, but that it was inadvertent. I found P.C. Limyook to be a straight-forward witness who conducted himself professionally. I am not left in reasonable doubt that the demand was made.

The Strip Search

[55] Strip searches are seen as highly intrusive and degrading. They are lawful only where police have reasonable grounds to believe it is necessary to invoke this procedure in order to discover weapons or seize evidence relating to the offence for which the individual was arrested. In most cases, as incident to arrest, a 'frisk' or 'pat down' search should suffice: R. v. McPhail, [2011] O.J. No. 2877 (Ont. C.J.), at paras.16-17.

[56] Staff Sgt. Adams found the defendant to be obstinate, angry and interruptive. She was mindful a small amount of marihuana was found in his car. Although he had been subject to a pat-down search, she said she ordered a level-3 search in case he was in possession of a weapon that would place unarmed cell officers at risk. She also felt the accused may have more drugs on his person or implicitly in his anal cavity. The search was conducted reasonably.

[57] On this evidence, I found Mr. Perinpanathan's demeanour during the booking process and thereafter to be a function of impaired judgment. He was difficult to deal with and had to be reminded who was in charge.

[58] However, there is no inference he was involved in drug trafficking or assaultive behaviour. The notion he had secreted drugs or a weapon on his person was pure speculation. In the circumstances, the decision to have the defendant be subject to strip search was neither necessary nor reasonable and, in my view, an infringement of his Charter ss. 7 and 8 rights.

Overholding

[59] Mr. Perinpanathan complains that failure to release him for 4 ½ hours after his second breath tests left him subject to arbitrary detention and violated his Charter s. 9 rights.

[60] Section 498 of the Criminal Code provides an officer-in-charge with the authority to hold or release a detainee. The decision to hold an accused following breath tests must be a reasonable one that is based on consideration of alternatives to detention. To permit the blood alcohol level to be the sole determining factor is considered too narrow a focus: R. v. Hernandez, 2013 ONSC 4760, at para. 25.

[61] Alternative factors, set out in Hernandez, include attitude, poor judgment and whether there was a responsible person to pick up the detainee. Justice Durno was of the view that there was no duty on the police to make inquiries about a responsible person where there were other relevant factors taken into account.

[62] Just prior to reporting off work at 5:30 a.m., Staff Sgt. Adam briefed her replacement, Staff Sgt. Zebeski, about the prisoners. Staff Sgt. Adam recalls that at 5:03 a.m., the defendant was less belligerent, but giggling and still argumentative, a state of mind consistent with someone having double the legal limit of alcohol in their system, as in this case.

[63] Staff Sgt. Zebeski recalls receiving general information about the prisoners, but nothing specific about the defendant. He was, however, aware of the time Mr. Perinpanathan was brought in and the results of his breath tests. His rule of thumb in this regard where the reading is double the legal limit is to hold a detainee 3-4 hours before release to allow most of the alcohol to be eliminated from the detainee's system in order that he or she can comprehend their responsibilities to the court and make their way home safely. This time frame is consistent with widely accepted elimination rates: R. v. Key, [2011] O.J. No. 5972 (Ont. C.J.), at para. 62.

[64] The breath results provide a strong subjective basis for the officer's decision not to release earlier. However, that factor alone is insufficient to justify this length of delay. Staff Sgt. Zebeski sacrificed consideration of the defendant's individual circumstances and sobriety to a broad and convenient generalization. This limited approach is to be discouraged. It runs the risk of holding prisoners too long and infringing their Charter rights. It requires releasing officers to be more actively aware of the condition and progress of impaired detainees.

[65] However, there is, on this evidence, other factors, set out in Hernandez, present here, that provide an objective basis for Staff Sgt. Zebeski's more narrowly rooted decision. These include the defendant's words, behaviour and demeanour that reflect an unfocused and impaired state of mind even after the last breath test. The accused did not testify about his readiness to be released earlier. On the issue of arbitrary detention, he has not met his onus.

Section 24(2)

[66] I have concluded that Staff Sgt. Adam's reasons for directing a strip search were speculative and infringed Mr. Perinpanathan's security interests under Charter s. 7. The officer did consider the individual circumstances of the defendant but was wrong in her application of the law.

[67] On these facts, while it is a close case, it could not be said that this was one of "the clearest of cases" warranting a stay of proceedings. I cannot find that this intrusive search compromised the fairness of the trial or risked undermining the integrity of the judicial process: R. v. Babos, 2014 SCC 16.

[68] However, the search was unreasonable in the circumstances, breaching the defendant's s. 8 rights. I need consider in a Grant analysis whether an s. 24(2) remedy is required by these two Charter violations: R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.).

[69] Grant directs the court to assess and balance the effect of admitting the evidence on society's confidence in the justice system under the following lines of inquiry, including the seriousness of the Charter-infringing conduct, the impact of the breaches on the detainee's Charter-protected interests and society's interest in the adjudication of the case on its merits.

[70] The context for this analysis is one in which the more serious the state's misconduct, the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court from that misconduct and excluding the evidence: R. v Blake, 2010 ONCA 1.

[71] It is important to note that the violation of a defendant's Charter rights means there has already been damage done to the repute of the system. Section 24(2) is prospective in that it seeks to determine whether admitting the evidence could bring the administration of justice into further disrepute: Grant, at paras. 67-71.

(1) Seriousness of the Charter-Infringing State Conduct

[72] Alleged state misconduct moves along a continuum from wilful and deliberate to inadvertent, minor acts committed in good faith. Egregious acts demonstrating reckless disregard of Charter rights will, as indicated in Grant, at para. 74, "inevitably have a negative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute". The concern here is not to punish the police or deter Charter breaches, but rather to preserve confidence in the rule of law and its processes.

[73] Mr. Perinpanathan's alcohol-induced demeanour was not uncommon or unexpected in drinking and driving cases, nor was possession of a small amount of marihuana. Undoubtedly, the strip search served to focus this detainee's mind, but in the circumstances was unnecessary. A mere possibility that he may be concealing evidence or a weapon upon his person was not sufficient to justify this type of search. A 'frisk' or 'pat down' search would have sufficed: R. v. Golden, 2001 SCC 83, at para. 94.

[74] I express this view cautiously and with regard for the experience of Staff Sgt. Adam. She considered the individual circumstances here and, I believe, acted in good faith, although likely put off by the defendant's obnoxious nature. I don't agree, however, on this evidence, that she had objectively reasonable and probable grounds to support her decision.

[75] The seriousness of these violations inclines me to the view that a remedy, in this case, exclusion of the breath readings, is required to ensure public confidence in the judicial system. This material 'cost' to the prosecution is not intended to deter future police excesses, but rather is meant to prevent further disrepute to the administration of justice.

[76] The decision to subject the accused to an intrusive, degrading search, unnecessary in these circumstances, is a serious Charter violation tending to diminish public confidence in the 'rule of law and its processes'. This debasement preceded the breath tests. This breach favours exclusion of the results.

(2) Impact on the Accused's Charter-Protected Interests

[77] The focus here is on the seriousness of the impact of the breach, and a weighing of the extent to which it undermined the interests engaged by the Charter right. It is case-specific because it is examined from the accused's perspective. The impact may range from fleeting and technical to profoundly intrusive: see Grant, at paras. 76-77.

[78] In this analysis, as articulated by Doherty J. in Blake, "the graver the state's misconduct, the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court's processes from that misconduct".

[79] The basis for the officer's decision to order a strip search fell below an acceptable standard and was unnecessary. That decision undermined the defendant's security interests in a significant way and subjected him to an unreasonable search. These violations favour exclusion of the breath readings.

(3) Society's Interest in a Trial on the Merits

[80] This inquiry stresses the truth-seeking function of trials and generally favours admission of impugned evidence, particularly where the evidence is considered reliable, is not severely intrusive and is important to the prosecution's case: see Grant, at paras. 110-111. In these circumstances, society's interest in a trial on the merits is high and favours inclusion of the evidence.

[81] In balancing these factors, I am drawn to the conclusion that in order to preserve confidence in the administration of justice, this court should disassociate itself from these significant Charter breaches by excluding the results of the breath tests. It follows that without these results, the Blow Over 80 charge fails. That charge is dismissed.

Operation Impaired

[82] In order to meet its evidentiary burden, the prosecution need only prove slight impairment of the accused's ability to drive a motor vehicle: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), affirmed (1994), , 90 C.C.C. (3d) 160n (S.C.C.). It is important, however, to note the difference between one's functional abilities as distinct from his or her ability to drive: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.).

[83] Mr. Perinpanathan was seen driving erratically, later speeding, while followed by the police. When investigated he showed some indicia of impairment, including red and bloodshot eyes and slurred speech. While escorting the defendant into the Intoxilyzer room, the arresting officer smelled alcohol on his breath and observed him to be unsteady on his feet.

[84] As noted earlier, the defendant's demeanour was troublesome, his judgement unsound and his moods shifting. In his dealings with various police officers, he was belligerent, at times unfocused and unresponsive, at other times swearing, whining or sounding off on irrational tangents of his own. He told the supervisor he loved her.

[85] I infer on the evidence that Mr. Perinpanathan's behaviour and disconnected utterances were a function of impaired judgment. I weigh that state of mind in the context of the manner of driving. I am satisfied beyond a reasonable doubt on all the evidence that the defendant's ability to drive was at least slightly impaired by alcohol.

[86] In the result, there will be a finding of guilt on this count.

Released: January 26, 2017

Signed: "Justice L. Feldman"