Court File and Parties
Court File No.: City of Burlington 2126/13 Date: 2018-08-29 Ontario Court of Justice
Between: Her Majesty the Queen — and — Eric Chiasson
Before: Justice Stephen D. Brown
Heard on: March 26 and 29, 2018
Reasons for Judgment released on: August 29, 2018
Counsel:
- Sapna Butany, for the Crown
- Stephen Price, for the accused Eric Chiasson
Brown, J.
1.0 INTRODUCTION
1On July 28, 2013 the defendant was arrested for impaired operation of a motor vehicle and operating a motor vehicle with excess blood alcohol.
2This is a re-trial of a case originally tried by Cooper, J. wherein he found the defendant not guilty of the charge of operating a motor vehicle with greater than 80 milligrams of alcohol in 100 millilitres of blood on July 29, 2015 in an unreported decision.
3The Crown appealed the decision and Gray, J., ordered a new trial on May 11, 2016.
4I heard this matter over a two-day period in March, 2018.
5The Crown proceeded by way of summary conviction on the Over 80 count only.
6The defence argued that the accused's s. 8 and 9 rights under the Canadian Charter of Rights and Freedoms were violated and seeks an exclusion of the Intoxilyzer results pursuant to s. 24(2) of the Charter.
7A blended voir dire was held, three police officers testified and the accused testified on the blended voir dire and the trial proper.
2.0 ISSUES BEFORE THE COURT
8There are two issues before the Court: Were the defendant's rights violated under s. 8 and s. 9 and, if so, should the breath test results be excluded under s. 24(2)?
9An assessment of the credibility and reliability of each witness must be done when making factual determinations necessary to apply the law to the issues at hand.
3.0 EVIDENCE AT TRIAL
3.1 Evidence of Adam Dunlop
10Adam Dunlop is a police constable with the O.P.P. and had been with the force since August of 2007. He would have been a police constable for almost 6 years at the time of this event.
11On June 28, 2013 he was engaged in a R.I.D.E program that was situated on the westbound off-ramp for the QEW at Brant Street in the City of Burlington. The R.I.D.E program was set up at 12:30 a.m., about half way into the off-ramp. Constable Dunlop was the first officer that a motorist would encounter as his cruiser was the easternmost of all cruisers on the off-ramp. He estimated that there were at least five cruisers in the R.I.D.E program, but could not recall the exact number. All cruisers would have had their emergency lights on and motorists would be funnelled with the use of pylons into a single lane and then have to speak to a uniformed officer who was doing sobriety checks.
12The R.I.D.E program would be visible to motorists once they exited the highway and were on the off-ramp.
13At 1:10 a.m. he noticed a red Jeep Liberty motor vehicle exit onto the off-ramp. He then heard a screeching of tires and saw the Jeep stop at the very beginning where motorists enter the ramp approximately 10 metres into the ramp.
14The officer recalls the weather being clear and dry, and that the Jeep came to a sudden stop. The vehicle quickly reversed back to exit the off-ramp and continued on the QEW westbound. Constable Dunlop lost sight of the vehicle for two or three seconds and then saw it as it headed westbound on the highway in the far right lane.
15He relayed this information to Constable Sobh who was located further westbound on the ramp. He believed the driver was trying to avoid the R.I.D.E spot check.
16Constable Dunlop then entered his cruiser and drove westbound on the ramp and entered Brant street, performed a U-turn and then got on the on-ramp leading to the highway going westbound.
17He intended to stop the Jeep because he viewed the reversing in a live lane to be careless driving that was dangerous.
18As he entered the highway he noticed Constable Sobh activate the emergency lights on his cruiser and commence the traffic stop approximately one half of a kilometre from the on-ramp.
19As the defendant's Jeep was then stopped, he pulled in front of the Jeep on the shoulder of the highway and got out to assist Constable Sobh. Constable Sobh was a few steps ahead of Constable Dunlop and initially both officers approached the driver's side window, and then Constable Dunlop went around the vehicle and approached the passenger side window. He asked the driver to turn off the vehicle, which he did, and he rolled down the passenger side window when he was asked to do so.
20The defendant was having conversation with Constable Sobh and Constable Dunlop heard him admit to consumption of alcohol. He quoted the response verbatim in his notes by putting quotation marks around the response, which he said was "A couple of drinks." He stated that the "couple of drinks" response was in the defendant's conversation with Constable Sobh rather than in response to a question that he had asked because if he had asked the question about consumption, he would have put that in his notes.
21He detected a strong odour of alcohol coming from the defendant's breath. He detected that his speech was slurred and that the defendant was the lone occupant of the motor vehicle. He made no notes of what parts of his speech was slurred. Due to the driving (reversing onto a highway), the odour of alcohol on his breath, the admission of drinking, Constable Dunlop formed the opinion that the defendant's ability to operate a motor vehicle was impaired by alcohol.
22He stated that the defendant was cooperative, but he did know that he had alcohol in his system and he had tried to avoid the spot check. He did see the defendant's driver's licence at the roadside stop, but cannot recall if it was he or Constable Sobh who asked for it.
23In cross-examination it was established that Constable Dunlop was satisfied that his notes were complete and contained all observations of impairment that he observed that evening. He had reviewed those notes, together with the transcript of his evidence given at the previous trial before Cooper, J.
24It was established that he was the closest officer to the highway entrance to the off-ramp that evening and would have been closest to the defendant's vehicle as it entered the off-ramp. The police cruisers were well lit and as soon as a driver enters the off-ramp they are visible. He saw the Jeep enter the ramp and immediately slam on its brakes, getting only 10 metres or so onto the off-ramp before it stopped with a brief screech of the tires. There were no other vehicles behind it when it stopped.
25While attempting to establish that a driver who would reverse onto the highway from the off-ramp may have done so in a safe manner, Mr. Price asked the officer the following questions:
Q. So you would have seen the vehicle travel for a very short distance on the off-ramp?
A. It was a short distance, sir, yeah.
Q. You suggested to my friend perhaps at the most 10 metres?
A. At the most, 10 metres.
Q. And in that 10 metres, other than the sudden stop, you didn't detect anything unusual about the driving?
A. No.
Q. And this stop, you heard, I take it, a brief screech of tires or squeal of tires?
A. Yes.
Q. About a second?
A. Yes.
Q. So the vehicle had stopped, you took it, suddenly?
A. Correct.
Q. There were no other vehicles behind it?
A. No.
Q. You didn't see any lights in the distance?
A. No.
Q. While you were watching the vehicle exit, and while you were, I take it, at some point getting into your vehicle, you didn't see any other vehicles come onto the off-ramp?
A. No.
Q. And I take it you'd agree with me from where the vehicle stopped, a person in that position would have a clear view back onto the highway for some distance, as the highway's straight at that point?
A. The highway is straight at that point.
Q. And so a person looking back would have a clear view back onto the highway?
A. Yes.
Q. And of course – is there artificial lighting on the, on the ramp?
A. I do believe there, there is lights on the highway. At that portion of the highway it was dark, and I don't recall if there was any artificial lights at the, the beginning of the ramp.
Q. All right. But one can certainly see headlights approaching...
A. Yes.
Q. ...if there were any headlights?
A. Yes.
Q. And you saw no headlights approaching?
A. I did not see any headlights approaching.
26Mr. Price then established that Constable Dunlop saw Constable Sobh initiate the traffic stop of the Jeep by activating his emergency lights and stopping the vehicle. While this was happening there were no other vehicles in the area. In the following series of questions and answers, Mr. Price gets the officer to admit that traffic was non-existent at the time:
Q. Did you see any other vehicles, at all, in that area?
A. I did not.
Q. Okay. So there was no other traffic whatsoever?
A. No. Traffic was light at that time of day.
Q. Well, it was non-existent at that point.
A. That's correct.
27Mr. Price established that Constable Dunlop only saw the vehicle reverse for a second or so and that it would only take one or two seconds to get back to the highway. Of course, Constable Dunlop had no way of knowing whether the driver of the vehicle had looked in his rear view mirrors or otherwise checked to see if there was oncoming traffic before he reversed.
28Constable Dunlop also had to concede in cross-examination that there are many reasons why people attempt to avoid a R.I.D.E spot check, including the lack of a valid driver's licence or that the driver was under 22 years of age and restricted from having any alcohol in their system while driving.
29Other than the exit from the ramp which Constable Dunlop felt to be unusual, he saw no other evidence of bad driving. There was no weaving in lanes, the Jeep did not swerve or skid when it braked suddenly and it appeared to not be speeding and to pull over appropriately when directed to by Constable Sobh. He as well noted no other indicia of impairment from Mr. Chiasson. Nothing unusual about his eyes, no difficulty walking or with his balance, no fumbling of documents or items. He was responsive to questions and answered them in an appropriate way. He rolled his window down immediately and without difficulty when requested to by Constable Dunlop.
30In returning to the issue of the defendant's response to alcohol consumption, it was Constable Dunlop's evidence at this trial that he believed that it was given during the defendant's conversation with Constable Sobh. Constable Dunlop was taken to somewhat contradictory evidence concerning this that was given in the previous trial before Cooper J.
31The following exchange illustrates this:
Q. Okay. So you told my friend, today, that you marked down a, an answer to a question about how much he had to drink, in your notes, correct?
A. That's correct.
Q. And you put down that – you have it in quotation marks, 'cause it's the actual words that you heard the accused speak?
A. Yes.
Q. And I take it the amount he had to drink is an important area or important question?
A. Yes.
Q. So you were accurate in writing that down?
A. Yes.
Q. And I think you suggested today that you didn't ask that question but it was something that was asked by Constable Sobh?
A. I believe so, yes.
Q. Okay. And I know it's a long time after the event, today, but I'm going to suggest to you you're not quite sure about who asked the question?
A. That's correct.
Q. Okay. In fact, in the – on the previous trial date you actually gave somewhat conflicting evidence about who asked the question. You've read over the transcript?
A. Yes.
Q. I'm referring you to page 8 of the transcript in-chief, and about line 18 for my friend, and I don't know if Your Honour has the benefit of transcripts?
THE COURT: No, I haven't seen these transcripts.
MR. PRICE: Hm.
MS. BUTANY: Do you want him to....
MR. PRICE: I'll put it to him if he disagrees. I, I don't think we need it for that point, Your Honour.
MR. PRICE: Q. But I'm going to suggest to you what you were – the question you were asked, you were – I also referred to a heavy slur in speaking in with Constable Sobh, "Did the individual speak directly with you?" Answer, "I did ask him how much he had to drink and he did say a couple of beers, a couple of drinks, sorry. That was my only conversation with the driver." Do you remember giving that evidence?
A. Yes.
Q. Was that evidence accurate when you gave it?
A. I believe so.
Q. I'm going to refer you as well, then, Officer, to page 18 of the transcript, and this is in cross. And it was put to you at that point, in cross, starting at line 20, and the question, "Just help me with this, you indicate that the driver in your notes admits to consuming alcohol, correct?" Answer, "Yes, sir." Question, "And I take it that was still part of a conversation with Constable Sobh, that was in answer to a question Constable Sobh asked?" Answer, "Yes, sir." "And the question Constable Sobh asked is, 'How much alcohol have you consumed tonight?' Does that sound appropriate or correct?" Answer, "Yes, sir." "And you put an answer to that question in quotation marks?" Answer, "Correct, yes, sir." And then just skipping down the answer to the question you put, "A couple of drinks," correct?
A. That's what I have in my notes, sir.
Q. You recall giving that evidence?
A. Yes.
Q. So in that – you're suggesting the question was asked by Constable Sobh as opposed to yourself?
A. Mm-hmm.
Q. Do you recall which it was?
A. No, I don't.
Q. Okay. If your notes are chronological – I'll leave that. But I take it because you put a couple of drinks in quotation marks, those are the exact words you heard?
A. Yes.
Q. And he wasn't asked about the consumption more than once. It wouldn't make any sense, would it?
A. I don't recall if it was asked more than once.
Q. You don't – certainly you don't have a note of it more than once.
A. That's correct, sir, I do not have a note of that.
Q. So if I suggested to you, he never said a couple of drinks but he answered three beers, you would disagree with me, then, I take it?
A. Yes.
32Mr. Price focused on the evidence given by Constable Dunlop about the slurring of his words and the paucity of notes or recall in that regard. This section of the cross-examination is illustrative of that:
Q. You have in your notes that the male – you got driver, male, heavy slur of speech. Did I read that correctly?
A. Yes.
Q. You have no note of which words or which phrases he was slurring?
A. I do not, sir.
Q. So initially when you're hearing a conversation, it's a conversation between Constable Sobh and the accused?
A. Yes.
Q. And I take it that some unknown words were slurred, or heavily slurred?
A. Yes.
Q. So if I suggested to you he was never slurring his words and his speech was perfectly normal, you would disagree with me?
A. Yes.
Q. I take it you'd agree with me that there were times when his speech – that you observed this heavy slur or heard this heavy slur and times where you didn't hear any slurring?
A. I would agree with you.
Q. So parts of the conversation he was having with Constable Sobh you detected some slurring and parts of the conversation you detected no slurring?
A. That's correct.
Q. And he was speaking normally?
A. Yes.
Q. Are you able to tell us whether it was at the beginning of the conversation that he was speaking normally and then slurred later or vica [sic] versa?
A. I cannot tell you.
Q. Okay. But certainly there were times when he was slurring his speech, there was times when he was speaking perfectly normally?
A. That's correct.
Q. Are you able to tell us whether the times he was speaking perfectly normally were longer or greater than the times he was slurring his speech?
A. I don't recall.
Q. Okay. When he answered the question about consumption did he slur those words?
A. I have it noted in quotations, "A couple of drinks," and then I have right underneath that line I have slurred speech.
Q. Okay. So that phrase was slurred.
A. I can't be a 100 percent sure.
Q. Okay. You don't know what, what words were slurred?
A. That's correct.
Q. You don't know what proportion or what – of the words were slurred or, or, or normal?
A. That's correct, sir…
Q. I take it you never met this individual before?
A. No.
Q. You wouldn't know his normal speech?
A. That's correct.
Q. Other than some, and you can't tell me how much, heavily slurred words, there was nothing else unusual about his speech?
A. No.
Q. He wasn't dropping off at the end of sentences, he wasn't speaking quickly, nothing like that?
A. No.
Q. You already told me that you never had any problems understanding him.
A. I did not.
Q. So pretend I've never heard the word slurred, what does it mean?
A. I believe it's when certain parts of a word are exaggerated.
Q. Exaggerated?
A. Yes.
Q. So when he was speaking unusually, which we don't know when that was, certain parts of those words were exaggerated?
A. Yes.
Q. I take it you'd agree with me that the phrase, "A couple of drinks," doesn't sound like three beers?
A. I agree with you.
33This imprecision of notes and recall goes directly to this officer's credibility and reliability, and causes me to question what, if any, weight I can put on his evidence when it comes to the slurring of speech, whether it was even present and what it was. This is especially problematic when I weigh this evidence with the evidence given by Sergeant Andrew Fletcher, the Qualified Intoxilyzer Technician who I find to be a credible and reliable witness and who had a much lengthier interaction with the defendant during the taking of the breath samples a short time after this interaction at the roadside, who was a similarly experienced officer that did not hear any slurring during his conversations with the defendant. This will be discussed more in my analysis.
3.2 Evidence of Ehab Sobh
34Ehab Sobh has been a police constable with the O.P.P. since August 2008. At the time of this investigation, he would have had almost 5 years experience as a police officer. He is the officer in charge of this case.
35Constable Sobh's recollection is that he observed the defendant's Jeep enter the off-ramp at about 1:10 a.m.
36He said he observed the Jeep do a "full on hard braking stop, the car screeching tires. Your traditional – the nosedive to the front, and then the vehicle proceeded right-immediately to go in reverse."
37This was a more dramatic description of the event than described by Constable Dunlop, it seemed to me. Indeed much of Constable Sobh's evidence that followed seemed to be emphasizing any actions or observations that would serve to put the defendant in a bad light. I sensed a tendency to embellish present in this officer's testimony when the opportunity presented.
38For instance, even in direct examination Constable Sobh was forceful in his condemnation of the reversal back onto the highway.
39Without any prompting from the Crown the exchange goes as follows:
Q. Okay. So then you see the car reverse out, the Jeep?
A. Yeah. Yes.
Q. Reverse out and back on to the QEW?
A. Yes.
Q. And was this unusual to you?
A. Absolutely it's unusual to me.
Q. Why?
A. Well, number 1, it's an extremely dangerous maneuver. In all my experience, any time that that's happened, or I've seen that happen, it was – there was something wrong, either someone's avoiding police for whatever the reason may be, maybe there's a warrant out for there arrest, maybe there's – some – often, more often than not, someone's been consuming alcohol or has drugs in their vehicle and they're trying to avoid a R.I.D.E. spot check. So to me, that maneuver was not normal. No normal person operating a motor vehicle on a highway would come to a sudden stop unless there was an emergency, and then, furthermore, reverse in a live lane of traffic, on a curve on a ramp, and in my opinion, with no regard for other traffic. So that, that's why it caught my attention, and it was concerning.
Q. Was there any other traffic at the moment, though?
A. I can't tell you for sure. Nothing before – nothing after the vehicle, so nothing on the ramp that concerned me about its interaction with those vehicles, but I can't tell you if there were vehicles approaching on the QEW wanting to exit that ramp. I, I wasn't able to see that far.
40Constable Sobh was further back in the R.I.D.E check than Constable Dunlop, but was quick to point out that his opinion was that the reverse on the off-ramp was an "extremely dangerous manoeuvre" despite not being in a position to know whether the driver performing this manoeuvre was in a position to determine, and did or did not determine, that there was no oncoming traffic and that this rather unusual and potentially dangerous act could be performed in the circumstances that existed at the time that it was done in a safe manner.
41Constable Sobh also testified that the defendant's vehicle was quite far down the off-ramp when it stopped and then reversed. He estimated it to be halfway down the ramp, much more of a distance than Constable Dunlop who was closer to the vehicle than Sobh. The implication here, of course, is that it had much further to reverse on the ramp than it would have on Constable Dunlop's evidence, which would have made that reversal more inherently dangerous and which also would have robbed the driver of a view of approaching motor vehicles.
42Constable Sobh then testified that he left the R.I.D.E location and went on the Queen Elizabeth Way westbound. As he entered onto the highway, he noticed the defendant's vehicle behind him approaching in the middle lane and he observed it as it passed his cruiser.
43Upon approaching the vehicle, which had its driver side window down, he noticed the odour of an alcoholic beverage coming from within the vehicle. He advised the defendant of the reason for the stop, being that he felt that the defendant was avoiding the R.I.D.E spot check. He then asked the defendant whether he had consumed any alcohol that evening and received some admission that he had. He asked him for his driver's licence, ownership and insurance, and this was provided to him by the defendant.
44He indicated that the defendant advised him that he had consumed 3 beers. He does not recall if he asked him more than once if he had consumed alcohol, and he has no note of this.
45He testified that the defendant's speech was slurred during the entire conversation that he had with him and that this never changed. He said that at the end of the conversation he formed reasonable and probable grounds that his ability to operate a motor vehicle was impaired by the consumption of alcohol and he arrested him. He describes the totality of his grounds in his examination in-Chief where he states:
Q. What was that based on?
A. Well, the totality of it. The, the vehicle entering the ramp from a highway at what I would consider highway speeds, and then stopping abruptly, was extremely concerning to me. I almost never see that happen. Unless there's a, an animal or person who walks out in front of a vehicle there's absolutely no reason why you should slam your brakes, especially coming off of a highway where people are generally doing more than 100 kilometres an hour. Furthermore, immediately putting the vehicle in reverse and accelerating - and in my opinion it wasn't careful, he just accelerated in reverse, not on a shoulder, no warning to other drivers, just reversed his vehicle in a live lane of traffic. And, Your Honour, I just need to be clear that this, this ramp, as long as it may be, the vehicles that are on the QEW, approaching at speeds in excess of 100, if they were exiting at Brant Street, even if they were to avoid a reversing vehicle in a live lane, may end up being a – people may react in a way that could cause a major collision, and a fatality, potentially. Whether they strike the vehicle or not, there's going to be a, a major collision that would happen just avoiding the vehicle that's reversing on the highway. It causes people to panic. So in my opinion, it was extremely dangerous, and a person in the right state of mind would not do that. So that was the, the first thing. During my brief conversation with him, he did admit to the consumption of alcohol. There was a strong odour on his breath. His speech when I was speaking to him was slurred, and that was enough for me to – I was satisfied that his ability was impaired, his ability to operate that vehicle was impaired by alcohol.
Q. So at that time, you drew this conclusion and you just said that you told him he was under arrest?
A. I did, yes. I asked him to exit the vehicle. I advised him he was under arrest and I placed him in handcuffs.
Q. What did you say to him, exactly?
A. I, I, I told him he's under arrest for impaired operation of a motor vehicle.
46The defendant was then handcuffed and searched, read his rights to counsel and placed in the rear of Constable Sobh's police cruiser.
47He was then transported to the Burlington O.P.P. station which is about an 8-10 minute drive from the scene of the arrest, arriving at 1:31 a.m. Duty counsel was called at 1:38 a.m. and he spoke with duty counsel from 1:48 a.m. to 1:49 a.m. and then was turned over to the Qualified Breath Technician at 1:49 a.m. as soon as he finished his call to duty counsel. All told, it was about 18 minutes from the time that he left the scene under arrest until he first met and started conversing with Constable Fletcher, the Qualified Intoxilyzer Technician. This is an important time frame because despite both Constable Dunlop's and Constable Sobh's observations about the defendant's slurred speech, Constable Fletcher testified that he noticed no signs of slurred speech in his interactions with the defendant. Breath tests were completed by Constable Fletcher and the defendant was released from the police station at 4:05 a.m. by Constable Sobh.
48In cross-examination, Constable Sobh indicated that when he first heard or saw the defendant's vehicle, he observed it for one to two seconds before it stopped. Constable Sobh emphasized in his testimony the hard braking of the vehicle and said that he saw the hood of the vehicle go down. He also testified that he could not say that the vehicle stopped 10 metres into the ramp despite his evidence in-Chief where he indicated that the vehicle was probably further down the ramp but he would be "guessing."
49He testified that, although he heard the tires skidding, the vehicle did not lose control or veer to either side when stopping.
50He stated that as soon as the car stopped, it went into reverse. He could not say how fast the car was going when it started to stop and agreed that the speed advisory on the off-ramp was 50 kph.
51He agreed that after it started to reverse he lost sight of the vehicle for 2 to 3 seconds until he saw the vehicle proceeding westbound on the highway.
52Constable Sobh's penchant for embellishment can be seen in the following lengthy excerpt in the cross-examination:
A. No, no. I, I didn't say I could tell the speed but it was moving faster than any ordinary person reversing a vehicle would, would do so.
Q. What speed did it get up to if it was abnormal in one or two seconds that you saw?
A. Well, like I said, the vehicle reversed in a fashion that was out of the ordinary. Forget the fact that it was reversing on a ramp in a live lane on a highway at a blind curve, it was reversing in a way that was not normal whatsoever. So I can't tell you...
Q. Okay.
A. ...but it was moving much faster than it should be.
Q. What was abnormal about the manner in which it was reversing that you were able to determine in one to two seconds?
A. I'm telling you, he's accelerated in his reverse.
Q. Okay. If you're going to move a vehicle you have to accelerate, don't you?
A. No. You don't have to accelerate.
Q. You don't?
A. You don't have to hit the accelerator, is my point.
Q. You can move your vehicle without hitting the gas pedal?
A. Absolutely, I could.
Q. If it's...
A. If I put the vehicle...
Q. ...downhill?
A. ...in reverse and don't touch the gas pedal it would go in reverse.
Q. You will?
A. It would, it would move.
Q. Okay. I'm going to suggest to you all you can tell us is that the vehicle reversed. You can't, can't for a moment suggest what a speed it was or that it was going quickly.
A. Yeah. So sir, I, I never at one point said what speed he went at. I'm telling you he, he accelerated when he reversed.
Q. Okay. In that one to two seconds that you saw the vehicle reversing it didn't deviate from a straight line?
A. I can't say for certain if it drove in a straight line or not.
Q. Do you have any note of it driving anything other than a straight line?
A. No.
Q. Any memory of it driving anything other than a straight line?
A. No, it's dark, although the ramp is well lit. There's headlights facing the officers. It was on a curve, so I can't say for certain if it was driving in a straight line or not.
Q. And you say it was on a curve. I'm going to suggest to you that where the vehicle stopped, from the point where the vehicle had stopped, back towards the highway, the driver of that vehicle would have a perfectly clear view of all the lanes of westbound – of the westbound highway.
A. I would disagree with you.
Q. You would?
A. Yes. Yeah. I would 100 percent disagree with you. Your Honour, I had a clear view and from my vantage point, in my recollection, that vehicle and the person sitting in that driver's seat would not be able to see the vehicles coming in at – in excess of 100 kilometres an hour down the QEW entering that ramp. There's no way.
Q. You're as sure of that as you are of the rest of your evidence?
A. Sir, I'm just telling you from my vantage point and my recollection, there's no way that person could see the vehicles entering that ramp.
Q. And you're as sure of that as you are of the rest of your evidence, correct?
A. I'm sure of this specific...
Q. Okay.
A. ...issue. That's what was so dangerous about it, sir.
53He was then confronted with the evidence that he had previously given at the trial before Cooper J. that he had reviewed prior to testifying before me. The following excerpt shows how, in my view, Constable Sobh's evidence was always evolving and that he was quick to outline and emphasize any evidence that would be detrimental to the defendant;
Q. Do you remember giving evidence to this matter on a previous date, sir?
A. Yes.
Q. And I take it you were being truthful to the court on that date?
A. Yes.
Q. And you agree with me there was no – you saw no traffic behind this vehicle?
A. Yeah, I don't remember seeing traffic behind it.
Q. I suggest to you - and for my friend's benefit I'm at page 56. Do you remember being asked, sir, "I'm suggesting to you and I take it that the vehicle that stopped on the ramp was backing up would have a clear sight behind it to the end of the ramp, correct?" Answer, "I can't say for sure." Do you recall giving that evidence?
A. Sir, for – just for clarification, I may have missed it. My, my, my response to you a little while ago was whether or not he could see, have a clear sight of the vehicles entering. That's, that's what I'm disagreeing with. I do not, for one minute, believe that the person in that vehicle backing up the ramp could see vehicles on the QEW approaching the ramp. That's my concern, sir. Whether or not, Your Honour, he could see, by looking in his rearview or turning his body and reversing, can see up the ramp, towards the end of the ramp, I, I can't disagree that that might be the case, Your Honour, but I can't tell you for certain – or I can tell you for certain that there's no way that the driver of that vehicle could see vehicles coming from the QEW.
Q. I'm going to suggest to you, sir, that where the vehicle was located, just 10 metres into the ramp, it would have a clear view of all four lanes behind it.
A. Not from my vantage point, sir. I don't believe that one bit.
Q. Not from your vantage point? I'm talking about his vantage point.
A. From my vantage point and the positioning of that vehicle on the ramp, sir, there's no way that person could see all four lanes of that traffic.
Q. So if Constable Dunlop told you from where, where he saw the vehicle stop, and he agreed that the – that the driver of that vehicle could see behind him into all four lanes of the westbound Queen Elizabeth Way, you would disagree with Constable Dunlop?
A. I would. That's my opinion, sir.
Q. Okay. You certainly agree that you couldn't say whether or not he would be able to see the vehicles up to the end of the ramp.
A. Sorry, I, I couldn't disagree that he, he could possibly see all the vehicles, sure.
Q. It would have a clear – I'm suggesting to you it would certainly – would have a clear sight behind it to the end of the ramp.
A. It's possible.
54Constable Sobh's testimony was riddled with examples of Mr. Price having to "pull teeth" to get any concession from Constable Sobh that might benefit the defendant. When he was forced to concede that the defendant may have had a clear view rearwards to the end of the ramp from where he stopped, he maintained that the defendant would not have had a clear view of any vehicles on the highway approaching the ramp. This was again explored in cross-examination, and some inconsistent evidence that he gave in the trial before Cooper J. was explored.
55Constable Sobh was at times argumentative with defence counsel in cross-examination. The following exchange is illustrative of this:
Q. And I suggest to you, sir, the first bend...
A. Yes.
Q. ...short, which is about 10 metres, a little bit more than 10 metres from the bullnose ends, the vehicle stopped before that first bend. You agree or, or – do you agree or disagree or can you agree or disagree?
A. I, I cannot agree...
Q. Okay.
A. ...or disagree...
Q. All right.
A. ...where exactly. I don't have any factual data to tell you where, what distance it was from the end or the start of the ramp.
Q. All right.
A. I can't tell you for certain.
Q. So you agree with me, I take it, if it stopped before that curve, before the first curve and the ramp, it would have a clear view back not just to the bullnose but beyond the bullnose to all four lanes of the straight highway.
A. Okay. I think I've answered this question several times now, sir. I told you from my vantage point there is no way that the driver of that vehicle could see the QEW.
Q. Okay.
A. And the biggest concern that I had was not the fact that – whether or not, Your Honour, he could see cars or not, he stopped – the vehicle stopped, it made an emergency stop, and then backed up in a live lane of traffic, which is illegal and dangerous, and that's what caught my attention.
Q. Okay.
A. So whether or not he could see the cars, sir, I don't know, but in my opinion, from my vantage point, there's no way he could.
Q. Okay. I'm going to ask my question again and if somebody has problems with my question, they'll, they'll tell me that.
A. Okay.
Q. The Crown will either object or His Honour will direct me not to ask it. You don't get to do that.
A. Yes, sir.
Q. All right. My question to you is this, sir, assuming the vehicle stopped before the first curve or bend in the ramp, I'm suggesting to you it would then have a, a clear view behind it to all four lanes of the highway.
A. I can't say for sure.
Q. You can't say for sure?
A. I can't.
Q. Okay. You can't disagree then.
A. I can't disagree with you.
Q. Okay. Thank you.
56Constable Sobh did admit that he observed none of the other common indicia of impairment. He did not observe red glassy or bloodshot eyes. He did not observe a flushed face. He did not observe unsteadiness on his feet or balance problems. There were no fine motor skill problems such as fumbling while trying to locate his documents. There was no confusion or an inability to locate documents. During the distance that he was following the defendant, there was no weaving or unusual driving noted. The defendant was responsive to questions and answered them in an appropriate way.
57The defendant pulled over safely to the shoulder during the traffic stop and parked safely on the shoulder without difficulty. No unsteadiness or anything unusual was noted as the defendant alighted from his vehicle before he was arrested, nor was there anything unusual in his walking to the cruiser, into the police station and around the police station.
58Constable Sobh did also agree with the suggestion put to him by Mr. Price that one reason to avoid a spot check could have been that the defendant was a novice driver and was not allowed to have any alcohol in his system. Constable Sobh knew that he was a novice driver because he had been provided with the defendant's driver's licence before he arrested him.
59Constable Sobh was again evasive when taken to the slurring of the defendant's speech and whether it remained the same throughout his interactions with him even at the police station. First, he attempted to minimize the interactions that he had with him at the station, although Mr. Price was able to show that they would have had conversations at the station. Then when it was shown that he did have some conversations with him at the station, he said that he could not recall if his speech was slurred. He was then confronted with his evidence that he gave in the first trial where he testified that his speech had not changed even at the police station before he reluctantly agreed that it was.
60It is also noted that Constable Sobh put in his notes about the response to his question about what he had to drink was "three beers" and that was what he said verbatim. Of course this is different from the "couple of drinks" that Constable Dunlop had noted the defendant saying in response to that question.
61Another concern for me was when Constable Sobh was describing what he meant by "slurring." While trying to define the term, he stated the following:
Q. You wouldn't know what his normal speech would be?
A. No.
Q. What do you mean by slurred, when you said his slurred was speech – speech was slurred throughout?
A. To describe his slurred speech would be difficult for me to do here. Your Honour, in my experience with people who've been drinking and driving, in excess, specifically, when speaking with these people there's generally a consistent similarity between the people who generally have this type of alcohol in their, in their bodies, with this level of alcohol in their bodies. They – on many occasions I could still understand them, but the speech seems like it's – I don't know how to described slurred to you, sir, other than that.
Q. Okay.
A. It's not as clear.
Q. Not as clear?
A. Yeah.
Q. Okay. Other than being slurred, there was nothing else unusual about his speech?
A. No.
Q. He wasn't speaking quickly or slowly?
A. No.
Q. He wasn't trailing off at the end of his sentences or anything like that?
A. Not that I recall, no.
Q. And if I suggested to you he was never slurring his speech and is speaking perfectly normally throughout your dealings you would disagree?
A. I would, sir.
62That he referred in the above answer to "people who generally have…in their bodies, with this level of alcohol in their bodies" suggest to me a conscious or unconscious tainting of his evidence and tailoring it to what he expected after having seen the results of the Intoxilyzer tests.
63I found that I had significant concern regarding the credibility and reliability of Constable Sobh's evidence at the conclusion of it and after having heard all the evidence in this trial. I have not included every inconsistency in his evidence, but on many occasions he had to be taken back to the evidence that he gave in the previous trial where that evidence differed from what he was testifying to before me.
3.3 Evidence of Andrew Fletcher
64Sergeant Fletcher has been employed with the O.P.P. for 10 years, since August 2008.
65Sergeant Fletcher was a part of the same R.I.D.E. program as were Constables Dunlop and Sobh. He had no observations of the event. He was located at the bottom of the R.I.D.E check and doing something else when he heard tires squeal. Shortly after hearing this, Officers Sobh and Dunlop left to intercept the vehicle.
66A short time later, at 1:15 am, he was notified to set up for breath tests at the Burlington station. He departed the R.I.D.E. spot check area immediately and arrived at the Burlington detachment at 1:24 a.m. and commenced readying the Intoxilyzer 8000C to receive samples. He commenced the diagnostic test at 1:18 a.m., then a calibration test at 1:30 a.m. which was within required parameters. He then conducted a self-breath test at 1:33 a.m. He was satisfied the approved instrument was in proper working order.
67He received custody of the defendant at 1:49 a.m., having just prior to that time received the grounds for arrest from Constable Sobh. The information that he received was that Sobh had observed a vehicle back up onto the highway to avoid the R.I.D.E check program. Upon stopping the vehicle, Constable Sobh had detected a strong odour of an alcoholic beverage on the driver's breath, and that the defendant had admitted to the consumption of three beers earlier. He also had slurred speech and was subsequently arrested for impaired operation by Sobh.
68He conducted an interview with the defendant as part of completing the Alcohol Influence Report. During his interactions with Mr. Chiasson, he noted him to be polite and cooperative. They had no trouble communicating and he was not confrontational at any point.
69He did notice a strong odour of alcohol on the defendant's breath and his eyes were slightly bloodshot.
70Sergeant Fletcher describes the defendant's speech as fine and he did not notice anything about his balance.
71He states that although he at the present time he has no recollection of it, he did notice a trailing off of his speech a couple of times. He states in response to a question by Ms. Butany:
Q. And did you notice anything unusual about the manner in which he spoke?
A. No. If I can refer to the, the old transcripts, in, in the previous trial, there's nothing that I specifically remember at this time. I did note in the previous trial that there was a few times that he had trailed off during the conversation. There was no slurring that, that I noted or was aware of, but there was a few times that he did trail off, which to me, in my experience, I've been a breath tech now for quite a number of years, that is something that is consistent with someone who has been drinking, however at, at this stage I don't specifically recall that, other than through the transcripts of my previous testimony.
Q. Okay. So you're saying at this point you don't have independent recollection of him having trailed off...
A. No.
Q. ...but you recognize that at the prior trial, which was closer in time...
A. Yes.
Q. ...you'd noted that.
A. Yes, that's correct.
72Sergeant Fletcher performed two breath tests on him. The first test taken at 1:58 a.m. yielded a result of 140 mgs of alcohol in 100 mLs of blood and the second test was completed at 2:21 a.m. yielded a reading of 150 mgs of alcohol in 100 mLs of blood.
73He recalls having fairly extensive conversation while they were in the breath room and the defendant told him a little bit about school and other things.
74Sergeant Fletcher adopted the contents of the Certificate of Analysis as being true and it was made an exhibit at this trial.
75In cross-examination, Mr. Price established that there was no slurring of speech that was detected by Sergeant Fletcher and that there is a specific box on the Alcohol Influence Report for slurred speech which was not checked off.
76Sergeant Fletcher was quite fair in his evidence and did not seem to have an agenda or a bias in his testimony as I found Constable Sobh to have. He readily admitted that, although he considered the slightly bloodshot eyes as an indicia of impairment, other reasons could also produce that, such as wearing contact lenses (which Mr. Chiasson does) and also tiredness.
77Another excerpt from the cross-examination illustrates how this officer, in my view, was fair, unbiased and credible. In relation to the following question he gave this answer:
Q. Thank you. I take it you'd agree with me, Officer, that based on just your observations of the accused, his actions, his speech, his walking, his appearance, you'd agree with me you wouldn't have had grounds to make a Intoxilyzer demand had you not any other information.
A. So I want to be careful on how I answer this. That I, I would agree with you if I was to hypothetically eliminate all the other information that I had previously, and based strictly on my observations, that I would definitely have a reasonable suspicion and be able to proceed in that fashion, but I do not think I would have met the threshold of reasonable grounds based solely on my observations at that time. Now, having said that, I frequently do see this, where the level of impairment is much greater at the side of the road and then once the person has been arrested it has a significantly sobering effect, that plus the passage of time results in less impairment being shown in the breath room than at the side of the road.
Q. I take it there are times where you see more impairment in the breath room because the person has drank recently, just before being stopped?
A. That is correct, yeah. Sometimes you see the impairment levels go up.
78It is not lost on me that the best interpretation that I can glean from the evidence of Constable Sobh is that he and the defendant arrived at the station at 1:31 a.m. and that the accused was transferred into the custody of Sergeant Fletcher at 1:49 a.m. which was a period in time of about 18 minutes. This was a very quick turnaround from the scene to being presented to an experienced officer who, prior to the transfer, had been advised that one of the reasons for the demand was that the defendant was "slurring his speech," as well as trying to avoid the spot check and the other grounds that were provided to him by Constable Sobh. Sergeant Fletcher had extensive conversations with Mr. Chiasson and did not observe any slurring whatsoever.
79I accept Sergeant Fletcher's evidence that what may be evident at the scene to officers on the roadside may not present itself later to a Qualified Intoxilyzer Technician.
80Sergeant Fletcher's comments about the passage of time resulting in a sobering effect must be taken in the context of this being only an 18 minute passage of time from roadside to breath technician's observations and interaction.
81Further, my decision is informed by the fact that, although reluctantly drawn into the admission, Constable Sobh had to concede that he had testified earlier that the defendant's slurred speech did not change or dissipate from the time of the outset of the investigation until his release from custody.
82I find that it defies belief that 18 minutes after "constant slurring" of speech at the roadside, it would then be absent during the breath testing procedure, and then present itself again when Sobh had further dealings with him. In assessing Sobh's credibility, I find that this is a telling fact that goes to the heart of his credibility and reliability leaving me in a position where I am not confident in virtually anything that he says regarding Mr. Chiasson. I am of the view that he was being less than candid in his testimony before me, to put it charitably.
3.4 Evidence of Eric Chiasson
83Eric Chiasson is now 26 years old and is working for a large commercial real estate services firm. He has no criminal record.
84At the time of the arrest he was a 21-year-old student at the University of Guelph.
85On the date of the arrest he was coming from home to go to a friend's home. He had been driving for about 15 minutes before that and testified that he had no difficulty driving and did not believe that his ability to operate a motor vehicle was impaired by alcohol.
86He testified that he came to a stop part way into the bullnose on the ramp. Where he stopped, the ramp had not begun to curve, nor was the ramp on a decline. He testified that he had to reverse about 15 to 20 metres to get back on the highway. He had a clear view of where traffic would be coming on the Queen Elizabeth Way all the way back to Guelph Line. He did not interfere with any traffic as there was none and he backed up only again after checking all his mirrors and knowing that there was no oncoming traffic. He said that he performed the manoeuvre as safely as he could.
87He backed up to avoid the spot check because he had been drinking and he was 21 years of age and the licence that he had restricted him from having any alcohol in his system.
88He stated that he saw the officer following him and pulled over promptly without difficulties. He stated that he spoke with both officers and that he was speaking normally and that he was not slurring his speech. His speaking remained the same throughout the evening while he was speaking with the police. He has viewed and listened to the videotape of his interactions with the police at the station and it was the same way that he was speaking throughout that evening and confirms that he was not slurring his words.
89Mr. Chiasson, upon his arrest, was handcuffed and searched and then subsequently fingerprinted at the police station. His vehicle was impounded and his driver's licence was suspended for a three-month period.
90Mr. Price asked him in examination in-Chief the following questions:
Q. You heard Constable Sobh refer to what you did was being dangerous. Do you have a comment on that?
A. I disagree.
Q. And why is that?
A. Because I had done so safely by checking my mirrors. I understand that it could have been dangerous if it was a heavy traffic area at the time, but I had done so safely by checking my mirrors and ensured that whatever I was doing wasn't going to cause harm to anyone.
Q. How long did it take you to back up and start off again?
A. Two seconds.
91In cross-examination Mr. Chiasson admitted to consuming around six beers that evening.
92He did not agree with Ms. Butany's suggestion that stopping on the ramp was dangerous. He agreed that he made a sudden stop from about 70 km/h to fully stopped, and that this was an unusual behaviour, but he disagreed that this was not safe when he did it, although it could be unsafe in certain conditions. He had checked all of his mirrors and knew that there were no cars behind him when he stopped and he had a clear view of oncoming traffic. Certainly if he did not have an awareness of surrounding lack of traffic, this would be an unsafe manoeuvre.
93The following exchange in cross-examination shows how the defendant withstood cross-examination on this point;
Q. I'm going to suggest to you, sir, that there was actually nothing safe about stopping on an off-ramp. That stopping in a live lane of traffic on a highway off-ramp is, in fact, dangerous. Would you agree with that?
A. It could be dangerous.
Q. So you disagree?
A. That it's dangerous at all times, I disagree.
Q. It's only dangerous some of the time to be stopped in an off-ramp?
A. Yes.
Q. I'm going to suggest to you, sir, that the rules of driving don't really give us caveats, and sometimes it's safe and sometimes it's dangerous. An act is either dangerous or it isn't.
A. I disagree.
Q. So you don't think it's dangerous, that's your testimony?
A. It could be dangerous.
Q. All right. Your testimony was that reversing on an off-ramp was not a dangerous move. You'd agree...
A. Not in the manner that I did it.
Q. ...with me that it could be?
A. It could be.
Q. But not in the way you did it?
A. Correct.
94Mr. Chiasson explained in a clear, direct and believable way how he took steps to ensure that no other traffic was imperilled by the way he had stopped on the ramp and then reversed back onto the highway. Because traffic was virtually non-existent in those conditions and with the clear view that he had, he felt the manoeuvre, although unusual, was not dangerous in the traffic conditions that existed at that time and with the clear view that he had of no oncoming traffic at the time. While readily conceding that this could be a dangerous act in many situations, he did not think that it was in the conditions that existed at the time.
95He agreed with the Crown that it could be a reasonable conclusion for the police to draw that he was attempting to avoid the spot check because that is what he, in fact, was doing, knowing that he had alcohol in his system in contravention of this licence conditions.
96Despite a vigorous cross-examination, his evidence remained unshaken.
97I found him to be a credible and a reliable witness who gave his evidence in a truthful fashion.
4.0 ANALYSIS
4.1 Reasonable and Probable Grounds
98Sections 8 and 9 of the Canadian Charter of Rights and Freedoms provide that:
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
99In most cases, an accused bears the burden of persuading the Court on a balance of probabilities that his or her Charter rights have been infringed, but in the s. 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or seizure was reasonable.
100In this case, then, the onus is on Mr. Chiasson to establish an infringement of his s. 9 rights, but the onus is on the Crown with respect to the s. 8 rights. I have, accordingly, approached this alleged violation of rights as one where the Crown bears the onus.
101The relevant portions of section 254(3) of the Criminal Code provide that:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person ...
(a) to provide, as soon as practicable, ...
(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, ...
102So, to demonstrate compliance with section 254(3), the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.
103The legal test for reasonable and probable rounds is not a high one. It is more than a mere suspicion, and less onerous than a prima facie standard.
104It is a fact-based analysis of the totality of the circumstances the arresting officer had in mind. The officer is entitled to disbelieve and disregard any evidence disbelieved. However, the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.
105There is no minimum time period. Further, there is no mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds. There is no requirement that a roadside sample be taken. The ASD provides evidence of the blood alcohol concentration in the suspect's blood, not evidence of impairment. If the trial judge finds that if the officer subjectively and objectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadside screening provisions is irrelevant. If the officer's belief failed to meet the requisite standard, there is a s. 8 Charter violation.
106A trained police officer is entitled to draw inferences and make deductions drawing on experience. A trial judge is entitled to take that experience and training into account in assessing whether he objectively had reasonable and probable grounds.
107The grounds need only amount to evidence of slight impairment by alcohol as opposed to gross impairment.
108In the case at bar, the reasonable and probable grounds were formed by Constable Sobh. I have made negative findings of credibility against him. I have found his evidence replete with inconsistencies and embellishment and exaggeration. I find as a fact that the defendant's speech was not slurred at the roadside or at the police station, and Constable Sobh's evidence that is was is at best an embellishment and an extreme exaggeration, but more probably a fabrication. This is an egregious and serious s. 8 breach that, I find, the Court cannot countenance, and by even considering it to form a part of the subjective belief of the officer for the demand or an objective assessment of the reasonableness of the demand would be wrong.
109I do not find any comfort in Constable Dunlop's evidence that the defendant's speech was "heavy slur of speech." Firstly, this entry into his notes is made immediately after his 'verbatim' entry of the defendant's response to a question posed by Constable Sobh asking him how many drinks he had consumed. This 'verbatim' response of "a couple of drinks" is entered into his notebook because it is an accurate quotation of the words that the defendant actually said. I note that the quotation marks that Constable Sobh put around his notebook entry, again in quotation marks to signify that these were the actual words spoken by the defendant in response to the same enquiry, were "three beers." On the facts as I find them, one or both of these officers cannot be right, yet each of them are so certain in the accuracy of their recording of the response that they put it in quotation marks and testify with conviction that this is what the defendant's actual reply was. In Constable Dunlop's notes that response is immediately followed by an entry that says 'heavy slur of speech,' yet there is absolutely no credible evidence before me to allow me to find that is a credible or a reasonable observation.
110Similarly I find that Constable Sobh's evidence concerning the nature of the stop on the off-ramp and the reversal back onto the highway as being extremely dangerous on that evening, to be as well tainted by embellishment, exaggeration, and misstatement of facts. His description of the entire transaction was so tainted with exaggeration as to be not worthy of attributing much, if any, weight to it. He put the car much further down the ramp than I find it was in the circumstances. He says it was down a decline and around the bend in the ramp when it stopped. I prefer Constable Dunlop's evidence and the defendant's evidence which locate the car about 10 metres beyond the bullnose when it stopped. Constable Dunlop was the most easterly-located officer on the ramp and was in a better position to see where the vehicle stopped and that it stopped where it would have had a clear view back onto the highway before it reversed. I, as well, accept Mr. Chiasson's evidence as truthful and accurate when he says that he was aware that there were no vehicles behind him when he stopped and that he was aware of this before he stopped. I also accept Mr. Chiasson's evidence that he had a clear view back to Guelph Line of any vehicles that were approaching before he reversed onto the highway and that there were no vehicles in the vicinity and that it only took him one to two seconds to back up and get on the highway.
111If there had been any other traffic in the vicinity or on the road, this would have been a dangerous manoeuvre, but I am satisfied that there was none and that the defendant had a clear line of sight to determine that. That said, it goes without saying that to attempt to avoid a police spot check is poor judgment, as was the defendant's decision to drive after having drank any alcohol in light of the fact that he had a license that restricted driving with any alcohol in his system.
112Mr. Price referred me to the decision of Selkirk, J. in R. v. Rohrich, which involved an individual who had stopped and made a U-turn to avoid a spot check. In that case the accused, upon being stopped by the police, was found to have avoided the spot check because he had a G2 licence which did not permit driving with any alcohol in his system and that was the reason for his attempt to evade the spot check. He also had glossy or bloodshot eyes, an obvious odour of alcohol on his breath and that he touched his vehicle when bright lights from the cruiser were aimed at him. He admitted to drinking two beers earlier. Other than that, there was no evidence of poor driving or difficulty with gross or fine motor skills and no difficulty walking to the cruiser. Selkirk J. held that, although he believed the officer had subjective belief in his grounds that the objective grounds were made out, he found that they were not.
113The helpful decision of MacDonell J. in R. v. Cooper helps in this analysis as a case that has stood the test of time. In that case, MacDonell, J. writes as follows:
Those observations make clear that a review of whether a peace officer's belief was based on reasonable and probable grounds involves more than a search for some circumstance which might be said to offer support for the belief. It is the totality of the circumstances known to the officer - those which undermine the belief as well as those which support it - which must be assessed to determine if the requirement of reasonable and probable grounds has been met.
In the case at bar, the basis articulated by Constable Ellis for his belief that the accused's ability to operate a motor vehicle was impaired by alcohol was that there was a strong odour of an alcoholic beverage coming from within the accused's car, the accused's eyes appeared glassy, and his speech appeared to be slurred.
Constable Ellis was entitled to rely on the cumulative impact of those circumstances in forming an opinion as to the accused's impairment. The fact that none of them necessarily indicates impairment by alcohol does not rob them of value as circumstantial evidence. It must also be said, however, that each of them has shortcomings as a badge of impairment. A strong odour of an alcoholic beverage confirms the consumption of intoxicants, but says nothing about the effect of the consumption. The remaining circumstances reported by Constable Ellis - glassy eyes and slurred speech - require a subjective assumption by the officer as to the normal state of the subject's eyes and speech. Such assumptions are inevitable in assessing suspected drinking drivers, and there is nothing wrong with making them. However, in a situation such as that presented in the case at bar, where the subject is a complete stranger, these particular circumstances are weak indicators of impairment of the ability to drive.
Whether or not the combination of circumstances articulated by Constable Ellis as the basis for his belief that the accused was impaired is sufficient to meet the Storrey test does not need to be answered in this case, however, because there were other relevant circumstances which, in accordance with Chartier, the officer was not entitled to disregard in forming that belief. First, after following the accused for some distance, keeping him under observation, the officer noted "absolutely nothing" unusual about the manner in which he was driving. Further, when the accused exited his vehicle, he exhibited no unsteadiness, and he walked to the police vehicle in a completely normal fashion. Those are very important circumstances in an assessment of whether the belief of the officer that the accused's ability to drive was impaired by alcohol was reasonably based.
In my opinion, the evidence given by Constable Ellis does not establish a reasonable and probable basis for him to form an opinion that the accused's ability to operate a motor vehicle was impaired by alcohol. To paraphrase the language of Cory J. in Storrey, a reasonable person placed in the position of the officer could not conclude that there were reasonable and probable grounds to believe that the accused's ability to operate a motor vehicle was impaired by alcohol. The information known to Constable Ellis, considered in its totality, cannot reasonably be said to support more than a suspicion in that regard. Based on that suspicion, the officer might properly have required a screening test at roadside, but by placing the accused under arrest and proceeding directly to a breathalyzer demand, Constable Ellis took an impermissible short cut.
114In the case at bar, I find that there was also an impermissible short cut taken by Constable Sobh. Furthermore, in making my finding that he did not have objectively sustainable grounds for his demand, I have taken into account that he had the act of avoiding a spot check by backing up what I found to be a short distance with a clear view and no traffic onto the highway, that there was the odour of alcohol on the defendant's breath and the admission of consumption. I find as a fact that there was no slurring of speech present. I also find that this was manufactured evidence on the part of Constable Sobh which not only goes to the assessment of his grounds on an objective basis, but that it also poisons his subjective grounds as well. This will become important in the s. 24(2) analysis.
115Constable Sobh ignored the absence of any unusual driving while he was following him prior to stopping him, his lack of fumbling for documents requested, his responsiveness to questions, his lack of confusion, the possibility that he had avoided the spot check because he had "some" alcohol in his system contrary to his license restrictions, the lack of anything unusual with his eyes, face colour, and the absence of virtually all 'common' indicia of impairment.
116Constable Sobh had more than sufficient grounds to make a demand for an ASD test, but he avoided that even though he had an ASD device with him. He took an impermissible shortcut.
117Justice Gray, in his decision that overturned Cooper J. in the first trial, found that Cooper J. did not make a finding one way or the other regarding the slurred speech.
118In ordering a new trial Gray J. states;
24 The trial judge's conclusions, in their entirety, as to the issue of whether reasonable and probably grounds existed, are as follows:
14 Officer Sobh relied upon the odour of alcohol, the admission of consumption, the slurred speech, and the reverse exit from the RIDE setup to justify his arrest of the defendants for impaired driving. In light of the explanation offered by the defendant in his testimony, I cannot agree with officer Sobh that the exit was proof in itself of impairment. The reason for leaving the scene was to evade legal responsibility.
15 The slurred speech is not conclusive of impairment. The officers did not previously know the defendant, and were not familiar with his speech patterns. Also, officer Fletcher, the breath technician did not observe any slurred speech nor did the breath room video reveal any.
16 I accept the evidence of Greg McManus, the defence witness, who testified that if one didn't know Mr. Chiasson, one might think his speech was slurred.
17 In summary, I find that although Officer Sobh may have had a subjective basis to think the defendant was impaired, there was no objective basis upon which to make this conclusion. Therefore, there were no reasonable and probable grounds to arrest the defendant and section 8 of the Charter has been breached.
25 It is clear, in my view, that the trial judge considered the following facts in deciding whether reasonable and probable grounds existed:
a) The odour of alcohol;
b) The admission that alcohol had been consumed;
c) The slurred speech;
d) The reverse exit up the ramp from the RIDE setup.
26 In my view, if all those facts had been proven to the satisfaction of the trial judge, there were clearly reasonable and probable grounds for the arrest and the demand for breath samples. However, it is also clear that the trial judge did not clearly make a finding that the respondent's speech was slurred.
27 The trial judge referred to evidence that may have suggested that the respondent's speech was not slurred. For example, the evidence of the breath technician was to the effect that the respondent's speech was not slurred. The breath room video did not appear to show any slurring of speech. Mr. McManus testified that, having viewed the video, there was no slurring of speech.
28 This evidence, if accepted by the trial judge, may have persuaded him that the evidence of Officer Sobh, to the effect that the respondent's speech was slurred, should be discounted. However, the trial judge made no such finding. At the end of the day, he made no finding one way or the other as to whether the respondent's speech was slurred.
29 That being the case, I cannot say with certainty that a finding of reasonable and probable grounds would have been required without an express finding of whether the respondent's breath was slurred.
30 In these circumstances, I see no alternative but to order a new trial.
119I am mindful of the fact that Cooper J. had different evidence before him than I do. For instance, I did not hear evidence from the defendant's friend, Greg McManus, as to the speech patterns of the defendant as it appears Cooper J. did. I, as well, did not view the breath room video, as it appears Cooper J. may have done. Surprisingly, neither the Crown nor the defence put that into evidence during this trial. So some may say that I had less evidence on the slurring to weigh than Cooper J. had. It would have been helpful for me to be able to hear and view the breath room video, as it is the best evidence, however I do have the evidence of Constable Fletcher, the Qualified Technician, whose evidence I accept on this point.
120I have the evidence of the defendant who has viewed the breath room video and said that there is no slurring in it. Certainly the Crown in cross-examination could have put it to him if there was slurring shown during the interaction with Constable Fletcher. I find that the defendant was a credible and truthful witness and I accept his evidence that there was no slurring of his speech at any time during his interactions with the police.
121I have also had the benefit of having inconsistencies in the evidence of the officers in the first trial put to them by Mr. Price during this trial, and this has assisted me in my determination of their credibility and the reliability of their evidence.
122After assessing all the evidence before me, my finding is that there was no slurred speech during the defendant's interactions with the police.
123With respect to the evidence of Constable Dunlop regarding slurring, the imprecision in his notes and his inability to recall any specific examples of words slurred requires me to reject his evidence on this point and to not give it any weight whatsoever, except to note that it is inconsistent with Constable Sobh's evidence that there was constant and sustained slurring of the defendant's speech.
124Regarding Constable Sobh, I find that he exhibited an extreme bias and animus against the defendant and I strongly suspect that he manufactured that evidence as grounds to make the arrest. What is more disturbing is that he continued to maintain what I find was manufactured evidence at not one but at two trials.
125As a result of my factual findings in this case, I find that all the arresting officer had was the backing up to avoid a spot check, the odour of alcohol on the defendant's breath and an admission of consumption. On my findings, not only is that not objectively reasonable, but I find that the arresting officer did not even have subjective grounds based on my finding that he is not a credible or reliable witness.
126The arrest, in my view, was unlawful, and without reasonable grounds. The subsequent detention was arbitrary and was a significant violation of the accused's s. 9 rights.
127This young man was arrested and required to provide incriminating evidence. He was held in custody for several hours based on the arbitrary, highhanded actions and agenda of the arresting officer.
4.2 Section 24(2) Analysis
128Because of my finding of the s. 8 and s. 9 breaches, I now move on to the issue of whether the evidence obtained after the breach is to be excluded. The revised approach to the lines of inquiry concerning the factors to weigh in this analysis are set out in the Supreme Court of Canada's decision in R. v. Grant which instructs Courts to utilize a more flexible, balanced and comprehensive test under s. 24(2) as follows:
67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.
68 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.
69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence...
85 To review, the three lines of inquiry identified above - the seriousness of the Charter -infringing state conduct, the impact of the breach on the Charter -protected interests of the accused, and the societal interest in an adjudication on the merits - reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.
129In assessing the seriousness of the breach in Grant, supra, and in R. v. Harrison, the Court suggested that the conduct causing the breach be assessed on a continuing fault line. The Court stated:
...The metaphor of a spectrum used in R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:
Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights... . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct.
4.3 Seriousness of the Breach
130The arrest of a citizen without reasonable and probable grounds is a serious breach of that person's rights as guaranteed under the Charter.
131I agree with the comment by Beninger J. in R. v. Robinson, 2009 ONCJ 450 (CanLII), [2009] O.J. No. 4018 OCJ at para. 30 :
It was clearly contemplated by Parliament that there be two different standards to be followed by police in their investigation of drinking and driving offences. In my view, taking what is referred to in Cooper as an 'impermissible short cut' is a serious breach of Charter rights. The differing standards for making demands for a ASD and for an arrest for breath testing have existed for a substantial period of time, and should be well known to, and well recognized by the police who enforce those differing standards.
132It cannot be said that the improper application of the reasonable and probable grounds for arrest will, in all circumstances, constitute "bad faith," however it cannot be said that a mistake in applying that standard is one of "good faith." In this case, I find that the decision to forego the approved screening device test or even consider one was a serious breach of the defendant's rights to be free of arbitrary detention, and search and seizure and the manufacturing of evidence of slurring to allow Constable Sobh to jump to his reasonable and probable grounds conclusion to be a serious breach of the defendant's right to be free of arbitrary detention, and search and seizure.
133While the taking of the breath sample for the approved screening device would have taken but a brief period of time to confirm or dispel his suspicions, he instead chose an approach that involved arresting, handcuffing and transporting the accused to the police station. This process will invariably take a considerable length of time and indeed, in this case, Mr. Chiasson was in custody from the time of his arrest for several hours thereafter. What I believe occurred in this case is that Constable Sobh was of the view that if you attempt to avoid a spot check, you must be impaired, even though he had to agree in cross-examination that that act could be motivated by a number of reasons, including that a driver of that age would face consequences for infringing the no-alcohol restrictions of his driver's licence.
134Taking into account all of the circumstances, I assess the police conduct in this instance as being egregious and a wilful, conscious and deliberate decision to take an impermissible shortcut which puts this conduct at the very top of the fault line continuum endorsed by the Supreme Court of Canada in Harrison, supra.
135I, therefore, assess the impact of this factor to strongly favour exclusion of the breath samples in the analysis.
4.4 Impact upon the Defendant's Charter-Protected Interests
136Constable Sobh's precipitous arrest, when he only objectively and reasonably would only have had a mere suspicion of the defendant operating a motor vehicle with alcohol in his blood, had serious implications for the liberty and dignity of Mr. Chiasson.
137As a result of the arrest, he was, handcuffed, subjected to a warrantless search that yielded incriminatory evidence against him and he was detained for several hours. He was also subject to a 90-day administrative driver's licence suspension. His motor vehicle was impounded. He was fingerprinted at the station.
138Although Hill, J. in R. v. Bryce, [2009] O.J. No. 3640 (Ont. S.C.) referred to the Supreme Court of Canada's reference to the taking of the breath sample being "like the plucking of a scalp hair or fingerprinting," he did so in the context of discussing participation in ASD testing.
139As Gage J. states at para. 30 of R. v. Leonardo, [2009] O.J. No. 5018 (OCJ) :
The taking of breath samples although a conscripted search of the body of the subject has been described elsewhere as relatively non-intrusive. It does however impact on concerns about self incrimination which are, in my view, more acute when the foundation for the arrest and demand is found to be absent.
140This trial concluded on March 29, 2018. Ten days earlier, the Ontario Court of Appeal issued reasons in R. v. Jennings.
141The Crown argued that Jennings directs that the Court must recognize that the giving of a breath sample is a minimally intrusive event.
142Firstly, Jennings is, in my view, distinguishable from this case. Jennings dealt with an officer who formed the basis for the s. 254(3) breath demand on the fail from an approved screening device pursuant to a s. 253(2) (b) of the Criminal Code.
143In that case, the Court of Appeal found that there was no s. 8 breach and did not deal with a s. 9 breach. Mr. Price submits that the decision in Jennings and the direction given is obiter in that, since there was a finding that there was no s.8 breach by the Court, there should not have been an analysis of the impact on the Charter -protected interests of the defendant.
144That may be or that may not be. It is not necessary at this point for me to make a decision on that. In any event, I cannot ignore the case even if it is obiter on the issue of the direction it gives regarding the judicial reasoning in applying R. v. Au-Yeung. It appears to be a clear and instructional direction on these issues. Even if obiter, it is to be given serious consideration.
145As Miller, J.A. stated in Jennings ;
26 On the first branch of the Grant test, although the trial judge concluded that the s. 8 breach was serious and favoured exclusion of the evidence, he did not explain how he arrived at this conclusion. He appears to have taken it as axiomatic that a "warrantless roadside search which formed the basis of the reasonable and probable grounds" of the arresting officer was per se a serious breach. But Grant requires more: there must be some examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violations at the other. As the Crown argues, the circumstances of this case are notably different from those in Au-Yeung , where the officer administering the roadside test did not perform a self-test at all, did not check when the device was last calibrated, did not know how to read the device, had last received training on the use of ASDs 22 years earlier, and was unsure if he had used the device properly. The SCAJ in that case held that the officer had not acted in good faith, and that his actions "bordered on wilful blindness": Au-Yeung , at paras. 39-40, 52-56 . As explained above, the actions of the constable in the present case are radically different. Although the constable did not abide by the strict letter of the policy manual, he subjectively believed that the ASD reading was accurate, took steps to ensure that it was, and acted in good faith. The trial judge fell into the error identified by Leach J. in R. v. Molakandov , [2013] O.J. No. 2482, (S.C.) at para. 59 , of finding any breach of s. 254(3) of the Criminal Code sufficient reason to favour exclusion of evidence under the first Grant factor. The first Grant factor favours admission of the evidence.
27 The second Grant factor addresses the impact of the breach on the interests of the accused. The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung , the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent's being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.
28 The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov; R. v. Ramsammy , 2013 ONSC 7374 ; R. v. Marchi , 2016 ONCJ 757 ; R. v. Ho , 2014 ONSC 5034 , rev'd on other grounds 2015 ONCA 559 .
29 Much of the debate between these two lines of cases focuses on the significance of statements in Grant , in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant , it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.
30 This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543 ,116 O.R. (3d) 721, where Watt J.A. refers to "the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness" (at para. 100) and, citing Grant at para. 111 , says that "as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted."
31 Similarly, in R. v. Guenter, 2016 ONCA 572 , 350 O.A.C. 318, Brown J.A. notes, at para. 98, that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant , at para. 111 ."
32 To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.
146As Jennings seeks to direct judges to avoid a categorical rule that s. 8 breaches in breath sample cases automatically favour exclusion of the evidence, it cannot be extended to the corollary, that s. 8 breaches in breath sample cases automatically favour inclusion.
147The facts and findings in Jennings are so far removed from this case that I do not feel that it is helpful in my analysis and in its apparent disapproval of the R. v. Au-Yeung line of reasoning in that case which has very little relevance to the factual situation of this case. Jennings was a case where some 'administrative' or 'best practices' may not have been followed by an otherwise well-meaning officer who genuinely held subjective reasonable grounds based on the results of an ASD fail.
148This is a case where I believe that an officer who, for whatever reason, thought that the defendant's temerity to avoid a spot check must have meant that he was impaired. When confronted with the lack of usual indicia of impairment, he inflated or manufactured signs that would justify reasonable and probable grounds to effect an arrest. This was not only an impermissible shortcut, but it was an unjustifiable shortcut consciously designed and maintained in evidence for two trials to try to paint the defendant in the worst possible light.
149I assess the impact of the police conduct on Mr. Chiasson's Charter- protected interests as being a very serious one on the facts of this case, therefore strongly favouring exclusion.
4.5 Society's Interest in Adjudication on the Merits
150It is the evidence of the Intoxilyzer readings that the defendant seeks to have excluded. Acknowledging that the Intoxilyzer results are crucial to the Crown's case regarding the charge of over 80, this factor favours inclusion.
151Breath samples provided into approved screening devices and the Intoxilyzer are generally considered reliable evidence absent evidence of malfunction or improper operator error. As stated by Hill J. in Bryce, supra, at para. 67:
67 Although the seriousness of the charge "must not take on disproportionate significance" ( Harrison , at para. 34 ), impaired operation of a motor vehicle is a notorious threat to public safety: Stillman (1997), 1997 CanLII 384 (SCC) , 113 C.C.C. (3d) 321 (S.C.C.) at 356; R. v. Hufsky , 1988 CanLII 72 (SCC) , [1988] 1 S.C.R. 621 at 636-7; R. v. Saunders (1988), 1988 CanLII 197 (ON CA) , 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 545.
152Also, these offences are serious offences. The carnage caused on our roadways to innocent victims is a notoriously recognized fact.
153That said, the Supreme Court stated in Grant, supra, at paras. 67-70 :
67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.
68 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.
69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.
154Notwithstanding that the drinking and driving sections of the Criminal Code are serious offences, this case does not involve an accident. Fortunately, the defendant's driving did not result in an accident involving property damage or physical harm.
155His blood alcohol levels disclosed by the Intoxilyzer readings were over the legal limit at 140 mgs of alcohol in 100 mLs of blood. The application of this factor in the analytical framework, in my view, favours toward inclusion.
4.5 Balancing the Factors
156Recognizing that the balancing and analysis involves weighing these sometimes disparate considerations and that no mathematical precision is possible in the analysis, I find that even though the factor of adjudication of the case on its merits favours including the evidence, I agree with Beninger J. when he states in Robinson at para 34 :
The result of the breach had a very intrusive impact upon the defendant. In my view, there is a "systemic concern" (Grant, para. 70 ) to the breach in the sense that Parliament has clearly defined two differing standards for the police to follow in their investigation of drinking and driving offences, with those differing standards presumed to be well known to the investigators.
157Gage J. states at paras. 38 to 41 of his judgment in Leonardo, supra :
38 Section 24(2) is not an automatic exclusion provision but neither should it become an automatic inclusionary rule when the evidence is reliable and critical to the success of the prosecution - see Buhay (SCC) at paragraph 71.
39 The constitutional breach in this case is in relation to a procedural requirement that is both vitally important to, and of longstanding prominence in, the overall scheme of criminal justice in a free and democratic society.
40 The conduct of the arresting officer demonstrated inappropriate laxity in the application of that standard.
41 As a result, Mr. Leonardo was subjected to a temporary loss of liberty, the loss for thirty days of an important privilege and an intrusion, albeit of a relatively minor nature, of his bodily integrity.
5.0 CONCLUSION
158In balancing all of these factors as best I can, I am of the view that the admission of the breath tests would bring the administration of justice into disrepute. Accordingly, the Intoxilyzer results will be excluded.
159In this case, I have found that the essential officer in this case, the arresting officer, has, at best, embellished and, at worst, fabricated evidence regarding slurring of speech.
160This Court cannot overlook that, in balancing the factors under the s. 24 (2) factors, I feel that I have had misleading evidence given before me in this trial by the arresting officer.
161I also cannot be oblivious that this young man, who is 26 years of age, has now been embroiled in an expensive and protracted legal process that has been going on for over for five years and two months. Almost one-fifth of his entire life. It is not lost upon me that he has paid private counsel for two trials and one appeal.
162It is unfortunate that the lack of any analysis or finding of fact on an important issue in the decision by Cooper J., on evidence that was plainly before him at the first trial, has contributed to put this young man's life on hold for so long and created a retrial and extra court resources to be utilized to make findings of fact that were easily available to be made at first instance.
163I apologize that I have released this judgment in such a tardy manner. No defendant should have to wait so long for a decision on such a crucial event in his or her life. That is my failing. I need not defend it by referring to other cases that I have been involved in that have required me to divert my attention from this case.
164The system has not served Mr. Chiasson well. Hopefully this will be the end of his long journey to justice. He is 26 years of age and for the last five years he has been in a holding pattern. This is unacceptable and a failure of our system.
165Because I have decided to exclude the breath readings in this case, I find that the defendant is not guilty of the charge before this Court.
Released: August 29, 2018
Signed: "Justice Stephen Brown"