Court Information
Court: Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Brian Walsh
Before the Court
Justice: M.L. Cohen
Reasons for Judgment released on: August 28, 2018
Counsel
For the Crown: Leanna Guzzo
For Brian Walsh: Bruce Daley
Judgment
Introduction
1Brian Walsh is charged with operating a motor vehicle while his blood alcohol content exceeded 80 mg of alcohol in 100 ml of blood. Mr. Walsh has brought a Charter application in which he asserts that his rights under section 8 and 10(b) of the Charter have been breached, and seeks an order excluding evidence. The Crown opposes the Charter application and the trial proceeded as a blended hearing. At the conclusion of the trial, Mr. Walsh withdrew his claim under section 10(b).
Facts
2The Charter application turns on the evidence of one Crown witness, the arresting officer. The officer testified that on the night of June 16, 2016, he was enforcing speeding violations near Lawrence Avenue West in a marked scout car. At 1:14 a.m., the officer observed Mr. Walsh's vehicle travelling on Lawrence Avenue West with the lights off. The officer left his parking location and, at 1:15 a.m. he activated his emergency equipment, including his lights, and drove up behind Mr. Walsh's vehicle. The officer wanted to ensure the lights were turned on, and he intended to "conduct a Highway Traffic Act investigation."
3Mr. Walsh was not travelling at a high rate of speed, but he did not respond to the officer's emergency lights, so the officer activated his siren and continued to follow Mr. Walsh until 1:18 a.m. At that time he was able to stop the vehicle.
4The officer testified that when he went to retrieve his microphone to record the interaction he was going to have with the driver, Mr. Walsh's vehicle began to move. The officer stated that he quickly got to the side of the vehicle, was able to speak to Mr. Walsh, and advised him to pull over. Mr. Walsh complied.
5The officer's interaction with Mr. Walsh commenced at 1:19 a.m. He asked Mr. Walsh why he hadn't stopped, and Mr. Walsh stated he didn't know he was being pulled over. At 1:20:52 the officer asked him if he had consumed any alcohol, and Mr. Walsh advised he had nothing to drink.
6The officer asked for Mr. Walsh's driver's licence, insurance and ownership, and as Mr. Walsh proceeded to obtain the documents, the officer stated he "noticed a slower than normal reaction time in getting the documents" and that "His speech was pretty slow which seemed a little off." At that point, 1:23 a.m., the officer testified that he formed his reasonable suspicion that that Mr. Walsh "had alcohol in his system, and had been driving with alcohol in his system."
7The officer was aware that he was required to administer the ASD test immediately upon forming his reasonable suspicion, however he did not have an Alcotester with him. At 1:25 p.m. the officer requested an Alcotester from a nearby police Division. At 1:31:45 a.m., while waiting for the Alcotester, the officer advised Mr. Walsh of his right to counsel, which Mr. Walsh understood. Mr. Walsh was uncertain about whether he wanted to call a lawyer.
8The Alcotester arrived on scene at 1:34 a.m. The officer was unable to turn the device on, which indicated to him that it had not been calibrated. As a result, he immediately requested a second Alcotester. The second device arrived at 1:41 a.m.
9The officer turned on the second Alcotester to ensure it was calibrated, and then tested the device on himself. He was satisfied the ASD was operating properly. Mr. Walsh then provided a sufficient sample of his breath into the device. The device registered a "fail".
10As a result of the fail result, the officer formed the opinion that Mr. Walsh had over 80 milligrams of alcohol in 100 milliliters of blood while operating his motor vehicle. He then read the approved instrument demand to Mr. Walsh. The officer agreed that had it not been for the fail reading he would not have arrested Mr. Walsh.
11At 2:03 a.m. the officer left the scene with Mr. Walsh. The breath samples were subsequently taken yielding readings of 150 and 140 milligrams of alcohol in 100 milliliters of blood.
Section 8 Analysis
12Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. The taking of breath samples from Mr. Walsh was a warrantless search and seizure. The burden is therefore on the Crown to show on a balance of probabilities that the search was reasonable. R. v. Haas
13Mr. Walsh argues that the officer made three "fatal mistakes" which violated his section 8 rights. He asserts that:
- There was no reasonable basis for the officer's roadside screening demand;
- The officer's demand that Mr. Walsh provide a breath sample for the Approved Screening Device was not made forthwith as required by statute; and
- The officer was unaware of the expectation that he be satisfied that an accuracy check had been conducted prior to his administering the roadside test, and therefore he could not be satisfied as to the reliability of the ASD.
14To repeat, and it bears emphasizing, the officer testified that had it not been for the fail reading on the ASD he would not have arrested the accused.
15Section 254(2)(b) of the Criminal Code governs the testing which occurred in this case. The relevant portions for consideration are as follows:
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (c), in the case of a drug, or with the requirements of either or both of paragraphs (a) and (b), in the case of alcohol:
(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose;
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose; and
(c) to forthwith provide a sample of a bodily substance that, in the peace officer's opinion, is necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.
16Thus, in order to make the demand that Mr. Walsh provide a breath sample into the ASD, the officer must have a reasonable suspicion that he had alcohol in his body at the time he was operating his motor vehicle. The reasonable suspicion must have both a subjective and an objective basis. R. v. Bernshaw
17The absence of the requisite grounds will render the demand invalid: R. v. Grant (1991)
No Reasonable Basis for The Demand
18R. v. Chehil, 2013 SCC 49, articulated the distinction between reasonable grounds to believe, which is required for an arrest, and reasonable grounds to suspect:
27 Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.
32 Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
19While a reasonable suspicion is less demanding than proof of the reasonable and probable grounds required for arrest, and is regarded as a low bar, the application of the reasonable suspicion standard must nonetheless be evaluated by the court with rigour.
20The entirety of the circumstances, inculpatory and exculpatory, must be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. (R. v. Chehil, 2013 SCC 49, par 6)
21The officer testified that he had a reasonable suspicion that Mr. Walsh had alcohol in his body when he was operating his motor vehicle. I accept that his subjective belief led him to this conclusion. However the reasonableness of the officer's suspicion must be assessed against the totality of the circumstances with which he was confronted. The court must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause for his suspicion: Chehil, pars 26 and 29.
22The officer clearly testified that his suspicion was based on three observations:
- Mr. Walsh's motor vehicle lights were out;
- Three to five minutes elapsed before he pulled over; and
- Mr. Walsh exhibited a "slow reaction time" in obtaining his documents.
23With respect to the vehicle lights being out, which the officer stated was "a big factor", I note that, from my viewing of the video, the area of Lawrence Avenue where the vehicle was stopped appeared well-lit. From the driver's perspective, the fact that the vehicle lights were off may have been less than obvious. Nonetheless, the fact the vehicle lights were out reasonably attracted the officer's attention and his actions in pulling the vehicle over.
24Mr. Walsh's delay and stop and start approach to complying with the officer's signals to stop was certainly a strong contributing factor to the officer's forming his suspicion – his impatience with Mr. Walsh was evident from the video – but it was not decisive. It was only after the officer observed Mr. Walsh's "slow reaction time" in locating and presenting his documents that the officer came to his conclusion that the reasonable suspicion criterion was satisfied.
25The officer compared Mr. Walsh's "slow reaction time" to, in his words"a normal driver." He stated "I just believed his motions, his movements just to be slower than would happen if someone, you know, was not or had not been drinking." However, in cross-examination, he agreed that, not knowing Mr. Walsh, and having never interacted with him, he had no benchmarks for assessing Mr. Walsh's physical state. It is noteworthy, in this regard, that only in cross-examination, and then only at the suggestion of counsel, did the officer acknowledge that Mr. Walsh's slowness in accessing his documents, (which, while slower than expected, was not accompanied by any fumbling with the documents), might be age-related.
26The officer was aware of Mr. Walsh's advanced age, both by his physical appearance, and, I infer, from his having viewed Mr. Walsh's driver's licence, which would have displayed his date of birth. The officer agreed with defence counsel's suggestion that Mr. Walsh was older than the average driver. Critically, he also agreed that it "wouldn't be really fair to be making a judgment on him against the average because he's at least a senior citizen if not well into his seniorhood" thereby negating the reasoning he followed in arriving at his reasonable suspicion.[1]
27Finally I turn to what is particularly striking in the officer's description of the various factors that led to his reasonable suspicion – the complete absence of any observation suggesting the presence of alcohol in Mr. Walsh's body. There was no evidence of any odour of alcohol on Mr. Walsh's breath, on his clothing, or in his car. There was no evidence observed in the vehicle that alcohol had been consumed or was present. There was no admission by Mr. Walsh that he had consumed alcohol, and no observation of any efforts by him to mask any odour of alcohol. Indeed, the officer agreed with defence counsel's suggestion that "What you had is driving behaviour that we've seen and what you described as some lack of swiftness in locating and providing documents."
28Section 254(2) requires that the officer have both a subjective and an objective basis for his reasonable suspicion. Subjectively, the officer believed his suspicion to be reasonable. Objectively, I find this was not the case. In my view the three factors listed by the officer did not provide an objective basis for the officer's suspicion that Mr. Walsh had alcohol in his body. While the absence of an odour of alcohol does not necessarily negate reasonable suspicion, the circumstances specified by the officer, without more, do not lead to an inference that Mr. Walsh had alcohol in his body. The officer's suspicion was therefore unreasonable, and could not justify the demand, and the administration of the ASD. As such the search was unreasonable, and infringed Mr. Walsh's rights under section 8 of the Charter.
29The defence submitted that two additional breaches of Section 8 occurred. The first of these involved the delay in administering the ASD test.
Failure to Comply with the "Forthwith" Requirement
30The officer did not have the ASD with him when he pulled over Mr. Walsh's vehicle. When asked for a reason why he had not signed one out, he replied "I just didn't bring it with me that night" and that he would not "typically" have the device with him on the night shift, because the officers doing RIDE spot checks would usually take it with them. He stated that he knew not having the device with him was putting any alcohol-related stop at risk because, as he did not know when the device would arrive, it might not arrive within the time required to comply with the requirements of section 254(2). The officer agreed he was "taking a chance".
31The officer agreed that when he instructed Mr. Walsh to turn off his vehicle at 1:23 a.m. he had formed his reasonable suspicion. The first Alcotester arrived 11 minutes later at 1:34 a.m. It was not calibrated and could not be turned on. The officer testified that it did not occur to him to take Mr. Walsh to the police station rather than waiting for the second device. He ordered a second Alcotester which arrived at 1:41 a.m., a lapse of eight minutes from the time the first device was received.
32The first sample was received at 1:44 a.m. Until this time the officer acknowledges he was not in a position to administer the roadside test. A period of 21 minutes had elapsed since the officer had formed his reasonable suspicion, and Mr. Walsh had been detained for 25 minutes. The officer agreed that the test was not administered immediately.
33The officer was aware that the ASD must be calibrated on a regular schedule, and that and the devices are never to be signed out unless the log reflects that the calibration has taken place. He agreed with defence counsel's suggestion that"...The blame for the detention from the arrival of the first device until the arrival of the second falls at the feet of some fellow officer" who had failed to ensure the device was properly calibrated for use when next required. Thus the carelessness or negligence of police officers are implicated in the delay, not the exigencies of the use of the equipment.
34Considering all of these circumstances, I find that the Crown has failed to establish that the delay of 21 minutes was reasonably necessary. Since the delay was not so justified, the immediacy requirement was breached.
35In the case of R. v. Grant, Justice Lamer said:
20 In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2). The demand made was not the demand authorized by s. 238(2), that Mr. Grant provide a sample of his breath "forthwith." Instead, the demand made was a demand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr. Grant was under no obligation to comply with the police officer's demand, and did not commit the offence under s. 238(5) when he failed to do so. The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggests that the breath sample is to be provided immediately. Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) will not be satisfied.
36The reasoning in Grant is applicable in this case. The demand made by the officer was not a demand that Mr. Walsh provide a sample of his breath "forthwith." Instead, it was a demand that he provide a breath sample when the required apparatus arrived, which turned out to be 21 minutes later. Such a demand does not satisfy the requirements of section 254(2) and is invalid.
37In these circumstances as well, the Crown has failed to establish that the search and seizure was reasonable. I conclude Mr. Walsh's rights under section 8 of the Charter were infringed.
Absence of Reasonable Grounds for Believing the Machine Was in Good Working Order
38Once the second Alcotester arrived the officer ensured it was properly calibrated and performed a self-test. The officer was able to testify as to the calibration date. However, he was not able to answer questions about whether an "accuracy check" had been performed. The nature of the accuracy check was not specified in the cross-examination. The officer did not know what an "accuracy check" was, and was unaware of any requirement for accuracy testing beyond the calibration check he relied upon for his belief that the ASD was properly functioning.
39The defence relies on R. v. Au-Yeung, 2010 ONSC 2292 (SCJ). In Au-Yeung the arresting officer failed to consider the issue of residual mouth alcohol before performing the ASD test. The question was whether the officer can nonetheless rely on the driver's "fail" as providing him with reasonable and probable grounds to conclude that the driver had committed a drinking and driving offence. Justice Ducharme states at paragraph 36:
The two-step statutory scheme of s. 254 is premised on the idea that an ASD test can accurately assist in determining whether there are reasonable and probable grounds to believe that a driver has committed a drinking and driving offence. It cannot be asking too much that a police officer use the ASD properly especially given that, as P.C. Hodgert testified, the police are trained about the problem of residual mouth alcohol. Applying what Doherty J.A. described as the "litmus of reasonableness" it cannot be said that an officer can reasonably rely on the "fail" registered on an ASD when, despite understanding the concern with mouth alcohol, he failed to even consider this issue so crucial to the proper functioning of the ASD. If this occurs, and the officer lacks other grounds, the result may be that he will not have the reasonable and probable grounds to make a breath demand pursuant to s. 254(3) or to arrest the driver for a drinking and driving offence. Consequently, a subsequent analysis of his breath could constitute an unreasonable search and seizure contrary to s. 8 of the Charter.
40The defence argues that since the officer did not turn his mind to the accuracy check, did not know what an accuracy check was, and did not even know that he lacked information about whether and when an accuracy check had been performed on the device, he could not reasonably consider whether, on the information available to him, there was a risk that the ASD might produce a false "fail."
41I find this argument is unsustainable. First, there was no evidence of the nature and requirements of the "accuracy test" adverted to by counsel, its relationship to the proper functioning of the ASD, and whether procedures in relationship to the accuracy test would have had a bearing on the reliability of the "fail" result. Hence there was no way to assess how the alleged deficiency impacted the reasonableness of the officer's belief that the ASD was functioning properly when the test was administered. The witness was not referred to a procedural manual nor was any expert evidence proffered. The court cannot take judicial notice of the meaning and requirements of unspecified accuracy tests relating to the ASD.
42Secondly there is ample authority for the proposition that the Crown need only prove that the officer had objectively reasonable grounds for believing the accuracy of the device. The officer was satisfied that there had been a proper calibration check since, unlike the first Alcotester provided, the machine was usable. He was in possession of the most recent calibration date, and he had conducted a self-check. These facts reasonably permitted him to believe that the device was in working order and would produce a reliable result.
43Accordingly I am rejecting this branch of the defence argument.
44Based on the arguments which I do accept, I am satisfied the evidence of the accused's breath samples was obtained in a manner that infringed Mr. Walsh's rights under section 8 of the Charter.
Section 24(2) Analysis
45I have found that the results of the ASD test which led to the arrest of the accused, and his subsequent provision of breath samples, were obtained in a manner which infringed his rights under section 8 of the Charter. The accused seeks exclusion of the results of the breathalyzer tests under Section 24(2) of the Charter.
46Section 24(2) of the Charter provides that:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
47In R. v. Grant, 2009 SCC 32, the Supreme Court said, at par.70, 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.
48The focus is prospective and societal:
The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. (par. 68)
Seriousness of the Charter-Infringing State Conduct
49In accordance with Grant, the court must look to the interests engaged by the infringed rights and examine the degree to which the violations impacted on those interests. Section 8 of the Charter protects against unreasonable search and seizure. This right includes protection for the individual's right to privacy and human dignity.
50This first line of inquiry requires the court to evaluate the seriousness of the state conduct that led to the breach in order to assess whether:
... the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. (Grant, par.72)
51I regard the Charter breaches in this case as serious. The law in relation to the requirements of section 254(2) demands is well established. It is pivotal to appreciate that while the officer was entitled to conduct a Highway Traffic Act investigation of Mr. Walsh based on his driving with his lights off, he was required to have a reasonable suspicion Mr. Walsh had alcohol in his body in order to justify the demand and subsequent search. I have found that his suspicion was not objectively reasonable. In my view, the officer's subjective belief reflects a simplistic and inadequately considered approach, and an insufficient, if not cavalier, regard for or understanding of his obligations under the Charter and the Criminal Code.
52The breach was aggravated by the fact that the officer knew he did not have an ASD in his vehicle when he made the demand, and was aware that he was taking a chance, a significant one given that he was working the night shift, by not taking the ASD with him when he was assigned the traffic detail. Also, as events transpired, he received an uncalibrated device. It should be noted that this shortfall was systemic and not personal to the officer. The provision of the uncalibrated device occurred because of the failure of other officers to ensure it was functional.
53Thus, while the officer may have been sincere in his belief, his demand was invalid because it was not made forthwith, and there were no objective grounds to justify his subjective belief that Mr. Walsh had alcohol in his system. While the bar may be low, if an officer can make a routine roadside ASD stop without a device in his possession, and can make a demand for a sample in the absence of the Code's prescribed grounds (essentially demanding a roadside breath sample from a driver without any evidence there is alcohol in his body) then any driver can be stopped and be subjected to a demand for roadside testing. The applicable jurisprudence is clear to the effect that Section 8 is intended to protect against such a possibility.
54In Chehil, the Court states:
25 The reasonable suspicion threshold respects the balance struck under s. 8 by permitting law enforcement to employ legitimate but limited investigative techniques. This balance is maintained by subsequent judicial oversight that prevents indiscriminate and discriminatory breaches of privacy interests by ensuring that the police have an objective and reasonable basis for interfering with an individual's reasonable expectation of privacy.
55The officer's conduct cannot be condoned by the court. Admitting evidence obtained through what may be characterized as an indiscriminate breach of privacy interests may be expected to have a negative effect on public confidence in the rule of law, and risks bringing the administration of justice into disrepute. Thus, on the first line of inquiry, I find the state conduct militates in favour of exclusion.
Impact of the Breach on the Charter-Protected Interests of the Accused
56The second line of inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. To what extent did the breach actually undermine the interests protected by the right infringed?
57An unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy and human dignity.
58The taking of breath samples is generally considered minimally intrusive, both physically and in its impact on personal privacy. In saying this, I am cognizant of and have taken into consideration the decision of the Court of Appeal in R. v. Jennings, 2018 ONCA 260. The leading and governing authority on the application of Section 24(2) of the Charter remains Grant. Our Court of Appeal has expressed itself in terms of varying interpretations and applications of Grant in the particular circumstances unique to the cases cited. However the circumstances of the case before me are not the same as those cases. Furthermore, my holding in this case is in no way premised upon, nor does it create, a categorical rule that section 8 breaches in breath sample cases automatically favour exclusion under the second Grant factor.
59I need not repeat my conclusions under the first line of inquiry, but I will note that the unreasonable search in this case does not involve a mere technical breach.
60Mr. Walsh is of an advanced age and he is a vulnerable individual. As a result of the unlawful search, he was detained, arrested, handcuffed, searched, taken to a police station, required to provide additional breath samples, and held until 5:21 in the morning – basically overnight. The officer had to move the handcuffs from his back to the front of his body because of the pain that the handcuffs to the rear were causing him. These are significant circumstances with substantial personal impacts.
61I find these factors favour exclusion of the evidence since admission may send the message that, in circumstances that have arisen in this case, individual rights count for little.
Society's Interest in the Adjudication of the Case on its Merits
62The third line of inquiry requires the court to consider society's interest in adjudication on the merits. Society has an interest "in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (Grant, par. 79).
63The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. I have been mindful of the fact that the court should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. (Grant par.80)
64The public interest in truth-finding is a relevant consideration. The offence before the court is serious and a matter of pressing social concern. Exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system, and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. However, the concern for truth-seeking is only one of the considerations on a s. 24(2) application.
65Grant says:
The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.
66The public is justifiably alarmed by the prevalence of drinking and driving offences. The public, in my view, would also likely be concerned by the intrusive police conduct in this case without objective cause for reasonable suspicion.
67I conclude that the third line of inquiry favours admission, but only modestly.
Balancing
68Having reviewed the three lines of inquiry, I must now determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
69The inquiry is objective. It focuses on the long-term repute of the administration of justice. There must be rigour in the judicial scrutiny of police conduct at the roadside. The public must be confident that the state adheres to the rule of law. When stopped by the police for an apparent driving infraction, members of the public are entitled to expect there will be meticulous, diligent and professional compliance with requirements of both the Criminal Code and the Charter before their breath samples are taken. Notwithstanding society's very real interest in the adjudication of this case on its merits, I am persuaded that the just result is to order the exclusion of the evidence obtained as a result of the infringement of the Charter rights of the accused. To do otherwise would bring the administration of justice into disrepute.
70In the absence of evidence of the breathalyzer results, the Crown has failed to prove its case, and Mr. Walsh will be found not guilty.
Conclusion
Released: August 28, 2018
Signed: Justice M.L. Cohen
Footnote
1The officer did testify that he observed "glossy eyes" and "slurred speech", which "got a little worse as the night proceeded." He characterized these observations as "general impressions." He did not advert to these observations in identifying the factors that led to his reasonable suspicion, they were purportedly made after the ASD demand, and I find, based on his testimony, that these impressions played no role in the formation of his reasonable suspicion.