Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Cynanne Buttigieg
Before: Justice C.M. Harpur
Heard on: June 4, 2014 and January 19, 2015
Reasons for Judgment released on: March 13, 2015
Counsel:
- J. Janiuk, counsel for the Crown
- E. Boeve, counsel for the defendant
HARPUR J.:
Outline and Issues
1Ms. Buttigieg is charged with care or control of a motor vehicle on May 31, 2013 with excess blood alcohol. On that evening the police were dispatched to a parking lot in Wasaga Beach by an employee of a store fronting that lot who had concluded that a person operating a vehicle in the lot might be impaired. Detective Constable Lisa McGinnis, then P.C. Lisa McGinnis, and P.C. Joe Ruta arrived at the lot at 8:18 p.m. They administered an approved screening device test which Ms. Buttigieg failed at 8:25 p.m. She was arrested at that time and taken to the Huronia West O.P.P. detachment. There she provided two samples of her breath the lower of which, according to the Certificate of a Qualified Technician filed as Exhibit 2 at trial, indicated a truncated level of 140 milligrams of alcohol in 100 millilitres of blood.
2Following the giving of the samples at the detachment, Ms. Buttigieg was returned to the detachment cells and held overnight until approximately 7:10 a.m. on the morning of June 1, 2013.
3In submissions, with commendable economy, counsel have identified three issues as those which emerge from the trial record: (i) was the detention of Ms. Buttigieg following her provision of breath samples until the early morning of the following day an arbitrary detention contrary to ss. 7 & 8 of the Canadian Charter of Rights and Freedoms; (ii) did the police violate Ms. Buttigieg's right to be informed of her right to counsel when, following her giving of the samples, they failed to re-advise her of the right, contrary to s. 10(b) of the Charter; and (iii) as to the substantive offence, has the Crown failed to prove beyond reasonable doubt that the breath samples taken at the detachment were taken "as soon as practicable" after Ms. Buttigieg's 8:25 p.m. arrest, thus precluding reliance by the Crown on the breath sample readings as proof of Ms. Buttigieg's excessive blood alcohol concentration at 8:18 p.m., the time of her alleged offence, pursuant to s. 258(1)(c)(ii) C.C.
Were Ms. Buttigieg's Breath Samples Taken as Soon as Practicable?
4I propose to deal first with the "as soon as practicable" issue, since the Charter issues need only be addressed if the substantive offence has been made out by the Crown.
5Counsel are agreed that the apt principles are set out in the decision of the Ontario Court of Appeal in R. v. Vanderbruggen, [2006] O.J. No. 1138 (O.C.A.) where Justice Rosenberg described the law as follows:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.
6Mr. Boeve for Ms. Buttigieg submits that the Crown has not met its onus of establishing that the police moved with reasonable promptitude in taking Ms. Buttigieg's samples. He proposes that, although the record establishes that the police left the parking lot at 8:38 p.m. with Ms. Buttigieg en route to the detachment, sufficiently explanatory evidence was not called as to the activities of the police officers from that time until D.C. McGinnis presented Ms. Buttigieg to the qualified breath technician, P.C. Ruta, at 9:20 p.m.
7Ms. Janiuk for the Crown emphasizes, as one might expect, the admonition of Rosenberg J.A. in Vanderbruggen that "there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody".
8The evidence in point is the following of D.C. McGinnis:
Q. All right. After all of that was done, what took place next?
A. She was transported, by myself and my partner, to the Huronia West detachment.
Q. How long did it take you to get there?
A. We left at 2038, or 8:38, and I don't have the time of arrival. It's, it's a minute away. It's about four block distance from the detachment.
Q. All right. Once you arrive at the detachment, what takes place?
A. We bring the female party, the prisoner, into the lodging area, where she's completely searched by myself. And we have several posters on the wall within the lodging area, one of which is rights to counsel and caution, and I asked her, again, to read off the poster what the rights to counsel and caution were, to make sure that she understood it, and asked her if she had any questions. When she answered this time, she said yes, she understood, and no, she did not wish to speak to a lawyer.
Q. Okay. Sorry, you had her read the rights to counsel and caution?
A. That's correct.
Q. And how would you describe her ability to, to read that and to, to say it to you?
A. She was able to read it. She missed a few words, and, and re, um, stepped over a few words, but she was able to read it out, and told me that she was able to understand it. We had a conversation about understanding it.
Q. All right. And she said at-sorry, you asked her if she understood, and she indicated?
A. Yes.
Q. And what was her response with respect to whether or not she wished to speak to counsel?
A. She said no to a lawyer. And I had advised her that because when I had originally arrested her, she had requested to speak to duty counsel, I would call duty counsel, and she could choose, at that time, whether she wished to speak to them or not.
Q. And was duty counsel called?
A. They were, and they returned the call, and she did speak with them on the phone at 2108, or 9:08,
Q. Where did that phone call between Ms. Buttigieg and duty counsel take place?
A. In our private cell area we have a room for duty counsel, where the door closes, and you have privacy within that room.
Q. All right. So the call to counsel is made. What, if anything, takes place next?
A. I speak with Constable Ruta, who ends up being my breath tech.
Q. Okay.
A. He's a qualified breath technician with the Ontario Provincial Police, and I give him my grounds, with regards to the arrest for the, for the breath sample, at 2114 or 9:14.
Q. And what grounds did you give him?
A. Identified to him, obviously, the call came in of a complaint of a possible impaired driver; my observations of seeing her be slowing-slowed with speech; having a bit of time difficult delay with regards to finding her driver's licence; being slightly unsteady, but nothing marked, with regards to her stability on her feet; and the odour of alcoholic beverage on her breath and mouth area.
Q. All right. And once you deliver-what time did you deliver her to Breath Tech Ruta?
A. He was turned-she was turned over to Constable Ruta at 2120, so 9:20 p.m.
9The Crown emphasizes that the delay between the time of the commission of the alleged offence (8:18 p.m.) and the giving of the first breath sample (9:27 p.m.) was slightly more than one hour, considerably less than the two hour window available to the Crown in order to take advantage of the statutory presumption contained in s. 258(1)(c) C.C.
10The line between adequate proof of reasonable promptitude and detailed explanation of what occurred every minute is not always easy to draw. A reasonable approach seems to me to be that, where common sense does not lead readily to the conclusion that the police were proceeding with reasonable dispatch in executing their duties in a particular interval of time prior to the taking of breath samples, then an explanation is called for and its absence will prove fatal to reliance by the Crown on the presumptions in s. 258(1)(c) C.C. Here, accepting that the journey from the scene to the police detachment would have taken only a minute or minutes beginning at 8:38 p.m., one then has to take into account the acts of removing Ms. Buttigieg from the cruiser, the repetition of rights to counsel, which D.C. McGinnis said were both read and discussed between her and Ms. Buttigieg, the lodging of Ms. Buttigieg in the cells, the placing of a call to duty counsel and the awaiting of the return call from duty counsel, all in the one-half hour between 8:38 p.m. and 9:08 p.m. These are events which typically require the time which elapsed and substantially more. There is no gap which calls for more detailed explanation. As to the twelve minute interval between 9:08 p.m. and 9:20 p.m., the evidence indicates that that period included Ms. Buttigieg being taken to and from a private booth to speak with duty counsel, the giving of grounds by P.C. McGinnis to P.C. Ruta and the further escorting of Ms. Buttigieg once she had completed her call with duty counsel. Again, there is nothing in this interval to suggest that the police were not acting with reasonable dispatch and that a more comprehensive description of their activities was called for.
11Accordingly, I regard the Crown as having proven the soon as practicable element required for reliance upon the Certificate and that, apart from the Charter issues raised by Mr. Buttigieg, the Crown's over-80 charge has been made out.
Was Ms. Buttigieg Arbitrarily Detained?
12Ms. Buttigieg bears the onus concerning this alleged breach. Mr. Boeve's argument begins with s. 498 C.C. which provides, in part, as follows:
498(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,
(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release that person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,
(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.
13In response to the Crown's position that necessity in the public interest did exist in Ms. Buttigieg's case by reason by her relatively high blood alcohol readings and the absence of someone present to take her from the detachment prior to her sobering up, Mr. Boeve makes three submissions: (i) it is reasonable to infer from the record that Ms. Buttigieg, who did not testify at trial, had someone available to receive and transport her if she were released; (ii) quite apart from having an available custodian, Ms. Buttigieg had given virtually no grounds for a perception that she was intoxicated by the time she had completed her samplings; and (iii) in any event, the gist of D.C. McGinnis's evidence is that, with a person such as Ms. Buttigieg whose readings were 100 milligrams of alcohol in 100 millilitres of blood or more, O.P.P. policy was that Ms. Buttigieg would be held until she sobered up, regardless of her individual circumstances following the samplings.
14As to the record concerning the first of these submissions, D.C. McGinnis's evidence was that Ms. Buttigieg had said she did not know whether there was anyone available to pick her up.
15As to the second submission, Mr. Boeve did obtain concessions from D.C. McGinnis that: (i) Ms. Buttigieg was "not [displaying] overly obvious signs of a complete impaired"; (ii) she noted no unsteadiness of Ms. Buttigieg; (iii) at the scene, Ms. Buttigieg was properly responsive when asked to produce her documentation and remained "on topic" in her discussions with D.C. McGinnis; (iv) Ms. Buttigieg was not uncooperative; and (v) she made no note of slurred speech by Ms. Buttigieg. From P.C. Joe Ruta, Mr. Boeve received an acknowledgment that Ms. Buttigieg was polite and cooperative with him.
16The record was not, however, to the effect that the police had no basis to conclude that Ms. Buttigieg was intoxicated, apart from the Intoxilyzer readings. D.C. McGinnis said that she observed Ms. Buttigieg "step back a few times" as she attempted to find her driver's licence in her purse, but conceded that this may simply have been due to the fact that Ms. Buttigieg was wearing quite high-heeled shoes. She said that Ms. Buttigieg's speech was "slow and deliberate". She described a strong smell of alcohol from Ms. Buttigieg's breath. She said she had received information from a witness at the scene that Ms. Buttigieg had almost struck two vehicles in the parking lot in maneuvering her car. She said that one her grounds for the approved screening device demand had been that Ms. Buttigieg had some difficulty and delay in finding her driver's licence when asked for it. Finally, in connection with the decision to make a roadside demand, she said that Ms. Buttigieg "was not falling down drunk….but she was definitely under the influence of alcohol…".
17As to the third of Mr. Boeve's submissions concerning O.P.P. policy, D.C. McGinnis testified that decisions as to when a detainee who has given breath readings showing excessive blood alcohol will be released is dependant both on O.P.P. policy and procedure and on officer discretion. She said that both are to the effect that a detainee will be held in the cells until such time as alcohol has dissipated to a safe level and the detainee can be released. Without clearly distinguishing between the policy, the particulars of which she could not recite, and officer discretion, D.C. McGinnis said that an officer is guided by the blood alcohol readings, knowledge of the rate at which blood alcohol is eliminated from the body and, to a lesser degree, signs of impairment being displayed by a detainee.
18When asked about the prospect of Ms. Buttigieg being released to a third party, D.C. McGinnis testified as follows:
A policy and procedure states we will hold on to a person….until such time that their alcohol has come down to safe levels to be able to release them. In rare circumstances, and through the Sergeant's approval, if there is someone that can come and pick them up, then they will be released. But there was – she was not going to be being released, because the Sergeant even said because of her readings, she's held.
19The defence position is that Ms. Buttigieg was held pursuant to a policy by the O.P.P. detachment to detain, pending "safe" blood alcohol levels, all detainees who have provided excess readings and have no readily-available custodian, regardless of the individual circumstances of those detainees. This, Mr. Boeve submits, does not satisfy the test of individual scrutiny and risk-weighing called for by s. 498(1.1) C.C. The defence relies on the decision of the Superior Court in R. v. Jutras, [2007] O.J. No. 2396 and of this court in R. v. Manuel, [2012] O.J. No. 2943. The courts in Jutras and Manuel were considering whether the respective detentions by the police were justified on a flight-risk basis. In both instances, the courts concluded that they were not and found violations of Charter s. 9. Both courts applied a test requiring the Crown to show both subjective and objective reasonableness on the part of the detaining police officers. The defence submits that, given Ms. Buttigieg's absence of overt signs of impairment, and possible alternative means of safe release to a third party, the Crown has not satisfied the test of objective reasonableness of detention.
20Ms. Janiuk for the Crown counters with, among other authorities, R. v. Sapusak, [1998] O.J. No. 3299 (O.C.G.D.), affirmed [1998] O.J. No. 4148 (O.C.A.). The Crown proposes that the rather succinct reasons for decision at the trial and appellate level are dispositive of the issue here. In Sapusak, at trial, Thomas, J., stated the following:
Although it is possible that the appellant could have been released earlier, the failure of the officer in charge to do so was not a contravention of s. 498 of the Criminal Code and did not constitute arbitrary detention within the meaning of s. 9 of the Charter, in my respectful opinion. The officer in charge made a decision not to release the appellant in the public interest until his blood alcohol level was safely below 50 mgs. It was not an arbitrary decision on his part which resulted in an arbitrary detention.
21On appeal, Morden, A.C.J.O. for the court upheld this conclusion as follows:
We are not persuaded that the police in light of the 130 mg. reading, were not justified in detaining the appellant for his own protection. However, in the event that there was an arbitrary detention, it could not, in our view, be a basis for excluding the breathalyzer evidence since there was not temporal or causal connection between the breach and the obtaining of the evidence. Further, this is not of those clearest of cases that would justify a stay of the proceedings. Leave appeal is granted but the appeal is dismissed.
22The Crown's authorities also include R. v. Price, 2010 ONSC 1898 , [2010] O.J. No. 1587 (S.C.J.), affirmed [2010] O.J. No. 3258 (O.C.A.). The decision of Durno, J., sitting as the summary conviction appeal court, provides, in obiter dicta, a helpful description of the appropriate considerations for a court considering an alleged over-holding of a detainee:
While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative licence suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.
23In Ms. Buttigieg's case, I accept Mr. Boeve's submission that, while the police did make note of matters other than simply Ms. Buttigieg's blood alcohol reading in their dealings with her, that reading was effectively the sole determinant at the point of considering her release. As D.C. McGinnis said in her evidence"but there-was she was not going to be released because the Sergeant even said because of her readings, she's held."
24On the basis of the analysis in Price to which I have referred, I find that the police did not give consideration to the constellation of relevant circumstances pertaining to Ms. Buttigieg's potential release and that the decision to detain her was not sufficiently informed. I regard this as a breach of Ms. Buttigieg's s. 9 Charter right.
Was Ms. Buttigieg Denied her Right to be Informed of her Right to Retain and Instruct Counsel?
25It is common ground that Ms. Buttigieg was advised of the reason for her initial detention at the roadside and provided with her rights to counsel there and that she was again provided with rights to counsel on her arrival at the police detachment. The defence proposes, however, that the decision of the police to detain Ms. Buttigieg for what promised to be a substantial period after she had provided her breath samples at the detachment necessitated further instruction to her concerning her right to retain and instruct counsel.
26In R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, the Supreme Court of Canada held that, in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies Charter section 10(b). Sinclair went on to establish that a re-triggering of the s.10(b) right will only occur where there has been a change in circumstances indicating that the choice faced by the detainee has been significantly altered, requiring further legal advice on the new situation faced by the detainee. The Court indicated that the categories of changed circumstances are not closed and that existing examples would include new procedures involving the detainee, a change in the jeopardy facing the detainee, or reason to believe that the detainee did not understand the initial advice of the right to counsel. Sinclair cautioned that additions to the categories of changed circumstances should only be developed where necessary to ensure that s. 10(b) of the Charter has achieved its purpose.
27Mr. Boeve submits that Ms. Buttigieg found herself in such changed circumstances once the police decision had been made to detain her until her blood alcohol reached a safe level. I am unable to agree. Ms. Buttigieg's jeopardy had not changed, she was not facing a new procedure and the police had no reason to think that she had not understood the advice she had already received from duty counsel. Certainly, the evidence of D.C. McGinnis indicates that Ms. Buttigieg disagreed with the decision of the police to detain her further and I accept that she might have been aided in making her case to them in this regard by further consultation with counsel. However, the emergence of potential grounds for debate about whether police treatment of a detainee is proper is not, in my view, captured in the scope of "changed circumstances" contemplated by Sinclair. The detainee's potential remedy for mistreatment would, rather, lie under the exclusion of evidence remedy of s. 24(2) or other relief under Charter s. 24(1).
28Mr. Boeve relies again on Jutras and Manuel, supra, in submitting that the police failure to re-instruct Ms. Buttigieg concerning s. 10(b) on deciding not to release her following the breath samplings was a violation of her constitutional rights. Those cases found such breaches. However, I agree with Ms. Janiuk's distinguishing of the decisions on the basis that, in each, the accused was facing detention for a show cause hearing. Arguably, such a hearing created a new form of jeopardy. In Ms. Buttigieg's case, the fact that she would be remaining in the cells in the police detachment was simply a maintaining of the status quo.
29Accordingly, I am not satisfied that Ms. Buttigieg's s. 10(b) right was violated in this case.
Is There a Charter Remedy Available to Ms. Buttigieg?
a. Section 24(2)
30The initial question to be asked in Ms. Buttigieg's application for Charter s. 24(2) relief is whether the potential remedy sought is applicable to the breach I have found in this case. That breach is failure of the O.P.P. officers to engage in a sufficiently broadly-focused assessment of Ms. Buttigieg's circumstances in deciding whether to detain her. According to the evidence of D.C. McGinnis, that decision was effectively made by the officer-in-charge at the moment Ms. Buttigieg had provided a reading at the level of 140 milligrams of alcohol in 100 millilitres of blood.
31Section 24(2) of the Charter renders liable to exclusion evidence "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter". What constitutes "in a manner that infringed or denied" has been the subject of relatively recent analysis in R. v. Manchulenko, 2013 ONCA 543 , [2013] O.J. No. 3977 (O.C.A.). There, Watt, J.A., for the unanimous court, stated the following:
Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, an infringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was "obtained in a manner" that infringed or denied the accused's Charter right or freedom. This latter requirement insists that there be a nexus, expressed in the language "obtained in a manner" in s. 24(2), between the infringement and the evidence proposed for admission. In the absence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issues must be resolved otherwise.
To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis: Simon, at para. 69. Courts have adopted a purposive and generous approach to the 'nexus requirement: Wittwer, at para. 21. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para. 21: R. v. Stachan, [1998] 2 S.C.R. 980, at p. 1005. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, causal, or the three in combination: Plaha, at para. 45; and Wittwer, at para. 21.
As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to make out the nexus requirement under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha, at para. 49.
32While Manchulenka makes clear that there need not be a strict causal connection between the Charter breach and the acquisition of the evidence sought to be excluded, and a temporal connection may be lengthy or brief (although in this case the deficient decision-making process concerning detention seems to have been coincidental with Ms. Buttigieg's excessive breath readings), neither in Manchulenko nor the cases to which it refers, such as R. v. Plaha, [2004] 188 C.C.C. (3d) 289 (O.C.A.), is there any suggestion that a breach following the acquisition of the evidence in question can support the necessary nexus. In Manchulenko and its forbears, as in Sapusak, supra, the impugned evidence was clearly preceded by at least part of the Charter breach.
33Accordingly, I find that the breach of Ms. Buttigieg's right not to be arbitrarily detained cannot be seen as part of the same transaction or course of conduct by which her breath readings were produced. Section 24(2) of the Charter is not applicable.
34If I am wrong about s. 24(2)'s application to the breach of s. 9 in this case, I would not, in any event, exclude the breath sample evidence. As did the trial court in Price, supra, I regard the police shortcomings in this case concerning the decision to detain Ms. Buttigieg as extremely modest. D.C. McGinnis and the duty sergeant elevated the significance of Ms. Buttigieg's breath readings to the point of excluding other proper considerations in the decision to detain. However, it is far from clear that Ms. Buttigieg would not have been detained overnight even if the police had engaged in a full examination of the several considerations described by the summary conviction appeal court in Price. Moreover, it is clear that the decision to detain was made in good faith in the interests of Ms. Buttigieg's safety.
35Applying the principles in R. v. Grant, 2009 SCC 32 , [2009] 245 C.C.C. (3rd) 1 (S.C.C.), I regard the seriousness of the deficiency in the decision-making process of the police here to be relatively minor. This is not a situation of systemic abuse where the factors to be taken into account by the police at the point of determining continued detention were abundantly clear and were ignored. The factors I have cited in Price at the summary conviction appeal court level are obiter dicta. Further, a police force could not be faulted for interpreting the reasons for decision in Sapusak, supra, at both the summary conviction appeal court and Ontario Court of Appeal levels, as ratifying the giving of all-but-overwhelming paramountcy to blood alcohol readings in deciding whether to prolong the detention of a detainee. In sum, the support of this factor for an exclusion of Ms. Buttigieg's breath test results is low.
36Turning to the impact of the breach on Ms. Buttigieg's Charter-protected interests, again, support for exclusion must be seen as low. As indicated, it is, at best for the defence, an open question whether Ms. Buttigieg would have been detained by the police overnight even if less significance had been accorded to her breath readings in the decision to detain her. Thus, it has not been established that the significant impact of being held in the cells of a police station for several hours without sufficient grounds would have occurred absent the breach.
37Finally, in this case, as in most, society's interest in adjudication of the charge on its merits militates in favour of inclusion of the breath test results.
38Balancing these assessments leads me to conclude that the breach of Ms. Buttigieg's s. 9 Charter right should not result in an exclusion of the evidence of her breath readings.
b. Section 24(1)
39Ms. Buttigieg seeks either of two alternative remedies under this section of the Charter: a stay or a refusal to permit the Crown to rely upon the presumption of identity in s. 258(1)(c)(ii). In my view, neither remedy is available.
40As to the prospect of a stay, the law is clear that such a remedy would only be available in "the clearest of cases" (R. v. Knox, [2006] O.J. No. 1976 (O.C.A.)) and where continuation of a proceeding in the face of the breach would either compromise trial fairness or result in irremediable prejudice to the integrity of the justice system (R. v. O'Connor, [1995] S.C.J. No. 98 (S.C.C.)). As will be apparent from my previous description of the nature of the state's breach in this case, it was far from egregious and made in good faith. Failing to exclude Ms. Buttigieg's breath readings would not discredit the administration of justice and there is no suggestion here by the defence that trial fairness is at stake. The application for a stay must be denied.
41As to the alternative remedy sought by Ms. Buttigieg, I note that R. v. Orenchuk, [2014] ONCJ 650 has recently analyzed the availability of such a remedy under Charter s. 24(1). In that case, Monahan, J. concluded that the remedy was not available in that s. 258(1)(c) C.C. contains less a "presumption of identity" than a clear direction from Parliament that, once certain prerequisites have been met, the Intoxilyzer readings constitute "conclusive proof" of the blood alcohol level of the accused at the time of care or control of a motor vehicle. Given the non-discretionary nature of the section of the Criminal Code, the Court did not regard a refusal to apply the section as possible, at least in circumstances where the section itself is not constitutionally challenged. By going on to analogize a request to decline to apply the presumption of identity to a request to impose a fine of less than the statutory minimum, and by referencing R. v. Nasoguluak, 2010 SCC 6 , [2010] 1 SCR 206 (S.C.C.), Orenchuk appears to recognize that there may be some circumstances in which a court might grant the relief sought but that those circumstances would most exceptional.
42I agree with this reasoning in Orenchuk and see no grounds in the Charter breach in Ms. Buttigieg's case to interfere with the operation of s. 251(1)(c)(iv) C.C.
Conclusion
43The Crown has proven beyond reasonable doubt the elements of the substantive over-80 offence. There being no Charter remedy available to Ms. Buttigieg, I find her guilty.
Released: March 13, 2015
Justice C.M. Harpur, O.C.J.