Court File and Parties

Ontario Court of Justice

Date: 2016-10-18

Court File No.: Brampton 15-5670

Between:

Her Majesty the Queen

— and —

Alyssa Lorenzo

Before: Justice Kathryn L. Hawke

Heard on: July 26, 2016

Ruling on s. 24(1) and s. 24(2) Charter remedy and Judgment on Trial delivered on: September 21, 2016

Reasons for ruling and judgment on trial, released on: October 18, 2016

Counsel:

• Ms. N. Engineer, counsel for the Crown
• Ms. H. Spence, counsel for the defendant Lorenzo

HAWKE J.:

INTRODUCTION

[1] The defendant, who was 22 years old on the offence date of May 2, 2015, was charged with Over 80, contrary to s. 254(1)(b) of the Criminal Code. The trial was heard on May 4, 2016. By the end of the trial, defence counsel conceded all issues except for an Application alleging a violation of Section 9 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c.11. This claim was based on what is sometimes referred to as an 'overholding' situation. In this case, it concerned Peel Regional Police officers failing to release the Defendant after the investigation was completed, and thereafter keeping her detained for an additional six plus hours. In my earlier reasons for judgment (R. v. Lorenzo, 2016 ONCJ 434) I found that the defendant's s. 9 rights had been violated on the basis that she was arbitrarily detained and imprisoned by being held at the police station for over 6 hours after the investigation was complete.

[2] After my ruling was released, counsel were invited to revisit their submissions regarding a remedy under s. 24(1) and s. 24(2) of the Charter in light of my findings and recent case law.

SUMMARY OF CHARTER BREACH

[3] The defendant was stopped by the arresting officer, Cst. French, at 1:40 a.m. The stop was for a sobriety check only, and there was positive evidence that there were no concerns about the defendant's driving. Shortly after the stop the defendant was detained pursuant to a roadside demand. She failed the test and then she was arrested and given a s. 254(3) demand for breath sample. She was taken to 12 Division. The investigation proceeded in the normal fashion resulting in a reading of 145 mg. of alcohol in 100 ml. of blood at 2:37 a.m., and 135 mg. of alcohol in 100 ml. of blood at 3:00 a.m. Cst. French served the defendant all of the documents associated with the offence at 3:08 a.m. and then placed her in the cells. He then attended with the officer in charge of the Division, Staff Sgt. Raymore. It is noteworthy that all other forms and documents associated with this investigation were also prepared by 3:08 a.m. These included draft release documents, Cst. French's 'Driving Offence Notes and Evidence' and Cst. Leamon's 'Alcohol Influence/Test Report.' The nature of the last two documents is reviewed in my earlier judgment (R. v. Lorenzo, supra, at paras. 10, 11 & 18). These are standardized reports and, among other things, they compel an officer to record what he/she does and does not observe about a defendant in a drinking and driving case.

[4] It was clear from the evidence that in Peel Region only the officers in charge of the Division were authorized to release the defendant. These officers in sequence were Staff Sgt. Raymore and Staff Sgt. Lang. The finding of breach involved finding that neither of them had reasonable grounds for continuing the detention of the defendant, that were based on her detention being necessary in the public interest, having regard to all of the circumstances. This test was the only available option under s. 498 of the Criminal Code given the facts. Neither officer presented credible evidence showing that he or she subjectively had the requisite reasonable grounds at the relevant time.

[5] Staff Sgt. Raymore's evidence was seemingly impressive at first as she recited a list of things she considered and her list included much of the list set out by Justice Durno in R. v. Price, 2010 ONSC 1898. Closer examination of each item however revealed that some of them were common to every person charged with Over 80 and with other items there was an almost complete lack of knowledge about, and consideration of, information about the defendant's circumstances. This led me to conclude that Staff Sgt. Raymore breached the defendant's s. 9 rights as follows (R. v. Lorenzo, supra, at para. 63):

I conclude:

• Staff Sgt. Raymore's list was simply a recitation of a list that did nothing beyond paying lip-service to potential factors

• In her testimony, there is a complete lack of evidence as to how these potential factors contributed to reasonable grounds for the continuing detention of this Defendant being necessary in the public interest having regard to all the circumstances

• Therefore, based on the evidence, Staff Sgt. Raymore did not have grounds for the continuing detention of the defendant. (emphasis in original)

[6] I also made the following observations (at paras. 65, 66, 67):

One cannot ignore why Staff Sgt. Raymore had almost no evidence to give about the Defendant. Staff Sgt. Raymore was under a statutory duty to release the Defendant as soon as practicable and to do so with due attention to the circumstances of this particular Defendant. On the second aspect all Staff Sgt. Raymore did, through a brief contact with Cst. French, was to learn of the readings, the fact that the paperwork was done, and of the existence of a possibly available boyfriend.

No other information was sought and this was in the face of information about the Defendant being readily available. By the time Cst. French met with Staff Sgt. Raymore he had been with the Defendant throughout the investigation save and except for the time after her first blow to the time she was returned to him by the Breath Technician. Also at the time Cst. French met Staff Sgt. Raymore he also had his own report, the Driving Offence Notes & Evidence, which had been completed save and except for filling in Raymore's decision. Further, Cst. French had the Breath Technician's report in the form of the Alcohol Influence/Test Report. These were reports by two officers who were experienced in drinking and driving matters. These reports, save and except for three minutes while speaking to Duty Counsel, accounted for all observations made of the defendant during the investigation. Staff Sgt. Raymore could have learned a long list of potentially negative things that were absent in this case, including lack of any indicia for grounds for impaired operation. She could have learned that beyond a smell of alcohol the only thing these officers observed was red watery eyes and in one case dilated pupils. She could have learned the Defendant was extremely/very cooperative, understood everything and had no difficulty communicating. Making an enquiry with Cst. French directly and/or reviewing these readily available reports would have meant that she would have information, and in this Defendant's case positive information, about attitude, intoxication and lack thereof, capacity to understand and willingness to exercise good judgment.

Given the well-established role of the arresting officer and the standardized reports in drinking and driving cases in Peel, I think it is fair to assert that a complete lack of enquiry about circumstances of a specific accused through these sources amounts to willful blindness. All of the evidence in this case also supports a finding that in most cases, save and except where one of the investigating officers steps up to report something particularly negative, this approach of Staff Sergeants making no enquiry about the investigation of individual accused is standard procedure.

[7] Staff Sgt. Lang did not testify and, with the agreement of the Crown, defence counsel read in a very brief statement from Staff Sgt. Lang. (R. v. Lorenzo, supra, para. 30):

That the officer, officer Lang, indicates that my client's readings in his mind would put her at a safe release time of approximately 6 am, and he said that would have her below the 100 mark, and the other indication was that, is that, he doesn't know why, or has no explanation why she was held to 9:20.

[8] This statement acknowledged that Staff Sgt. Lang cannot give an explanation of why the defendant was held from approximately 6:00 a.m. to her release time of 9:20 a.m. (3 hours and 20 minutes). For the earlier time period of Staff Sgt. Lang's responsibility from approximately 4:30 a.m. to 6:00 a.m. (1 hour and 30 minutes), the statement only very briefly and vaguely speaks of the defendant's readings. All of this led me to conclude (R. v. Lorenzo, supra, at paras. 68 & 69):

The review of Staff Sgt. Lang's evidence in paragraphs 30-37 above discloses more questions than answers. I am unable to find that he ever turned his mind to justifying the defendant's detention before he decided to release her at 9:20 a.m. Therefore, I am unable to answer the question in the affirmative and I find that Staff Sgt. Lang did not have reasonable grounds for this detention.

I also make the same findings with respect to his evidence as I did with Staff Sgt. Raymore. He did not seek out information and readily available reports concerning this Defendant that would inform him about the circumstances of the defendant.

[9] My final conclusion on the breach ruling was (R. v. Lorenzo, supra at paras. 75 and 76):

As the above reasons disclose, there was no lawful reason for the defendant's detention past 3:08 a.m. on May 2, 2015. Instead of being released she was held until 9:20 a.m. In this six plus hours there were no circumstances that arose that interfered with the police being able to execute this release, nor with the Defendant's ability to get home in a cab in the manner she ultimately did.

Given this, and given all of the circumstances that are included in the reasons above, I find that there is a s. 9 Charter breach in this case as the Defendant was arbitrarily detained and imprisoned between 3:08 a.m. and 9:20 a.m. on May 2, 2016. (emphasis in original)

REMEDY FOR CHARTER BREACH ANALYSIS

A. The availability of a s. 24(2) remedy of exclusion of evidence

[10] Section 24(2) of the Charter reads:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. (emphasis added)

[11] In the majority of cases the Charter breach is prior to the discovery of evidence but in cases like this one, where there is a s. 9 breach as a result of 'overholding', the breach follows the discovery of evidence. As a result, I heard argument about whether the threshold wording of "obtained in a manner" can be met in this case given the breach follows the obtaining of evidence (i.e. the readings).

[12] This threshold issue was considered recently by the Ontario Court of Appeal in R. v. Pino, 2016 ONCA 389. Laskin J.A. concluded that a Charter breach occurring after the discovery of evidence may meet the s. 24(2) threshold. After reviewing the case law he set out the approach that applies to all Charter challenged evidence under 24(2) regardless of whether the breach was before or after the discovery of the challenged evidence. This approach is summarized in paragraph 72 of the decision:

Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2)

• The court should consider the entire "chain of events" between the accused and the police

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these connections.

• But the connection cannot be either too tenuous or too remote.

[13] Given this, I find that a s. 24(2) remedy is available, if the considerations outlined above are met.

[14] Turning to these considerations in the defendant's case, and turning firstly to whether the evidence and the Charter breach were part of the same transaction or course of conduct, I conclude that they were part of the same transaction for the following reasons.

[15] This breach concerns detention and this detention was continuous from when it commenced at approximately 1:40 a.m., with a roadside demand until the defendant's release at 9:20 a.m.

[16] The legal justification for this detention ran along with the chain of events involved in the case. First, the officer had a reasonable suspicion the defendant had alcohol in her body. This justified detaining her for a roadside demand and sample. Then she failed the roadside test and this gave the officer new grounds for detaining her by means of an arrest and a s. 254(3) demand. This justified detaining her up until the evidence of the readings was obtained pursuant to the demand. At this point, if appropriate grounds had existed, then s. 498(1) and (1.1), could have justified the continuation of her detention. The fact that I found that this last potential justification did not exist in the circumstances of this case, does not make the defendant's detention at 3:08 a.m. a new detention. Also, the fact that she moved from detention in the presence of an officer to imprisonment did not make it a new detention.

[17] When one puts all of the points in the last two paragraphs together it follows that the evidence and the Charter breach were part of the same transaction.

[18] Turning next to whether there was a connection between the evidence and the breach I find that there was and the connection was both contextual and temporal.

[19] Before describing these connections in this case I note that Laskin J.A. in R. v. Pino, supra found a temporal connection in that case because the three breaches in that case were "…close in time and are part of a continuum straddling Ms. Pino's arrest." (para 74) Further, he noted "… I take "contextual" – a word often used by lawyers and judges – to mean pertaining to the surroundings or situation in which something happens. In this case, the something that happened is Ms. Pino's arrest. And the two s. 10(b) breaches and the s. 8 breach surrounded her arrest or arose out of it. …" (para. 74).

[20] The something that happened to the defendant is that she was detained. She was detained for two sequential investigative purposes, and thereafter she continued to be detained. There is a contextual connection between the evidence (the readings) and the breach because the decision to release or not under s. 498 is to be decided in the context of each individual investigation. Justifying detention under s. 498(1.1) involves "having regard to all the circumstances" and this inherently involves in an over 80 case, among other things, the evidence about blood alcohol levels. In addition, in spite of their mishandling of the situation both of the Staff Sergeants agreed in his/her evidence with this connection between the readings and his/her decision.

[21] The connection between the evidence and the breach was also temporal as this was along a continuum and close in time. The defendant's last blow was at 3:00 a.m., then she was served with documents, and then immediately thereafter she was placed in a cell at 3:08 a.m.

[22] In summary, the evidence and the Charter breach were part of the same transaction. Further, there were temporal and contextual connections between the evidence and the Charter breach. These connections were relevant as they were neither too tenuous nor too remote.

[23] Therefore, in the circumstances of this case, I conclude that the threshold test in s. 24(2) of the Charter has been met and the remedy of exclusion of evidence is available for consideration.

B. Should there be a s. 24(2) remedy of exclusion of evidence in this case?

[24] Laskin J.A. in R. v. Pino, supra at para. 82 provides a clear summary of the inquiry at this stage.

The second branch of the s. 24(2) inquiry calls on a trial judge to assess whether the admission of the evidence sought to be excluded would bring the administration of justice into disrepute. In making that assessment the trial judge must take account of and balance the three factors stipulated by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353:

• The seriousness of the Charter-infringing state conduct;

• The impact of the breach or breaches on the Charter-protected interests of the accused; and

• Society's interest in the adjudication of the case on its merits.

(i) The seriousness of the Charter-infringing state conduct

[25] The following are relevant factors about the breach that I have considered in their totality in assessing the seriousness of the Charter breach in this case.

• The police had a duty to release post arrest under s. 498 of the Code unless they had reasonable grounds in accordance with s. 498(1.1) not to.

• This is not an esoteric provision of the Code, as it applies to every person arrested and detained without a warrant.

• From the commencement of the breach to its end over six hours later only two officers, Staff Sgt. Raymore and Staff Sgt. Lang, were authorized to carry out this duty. Neither of these two officers have a memory of the defendant and with one small exception, neither kept notes pertaining to his/her duties under s. 498 vis-à-vis the defendant and her circumstances. These things illustrate a lack of attention to their duties at the time and a lack of preparedness to be accountable for their decisions.

• Negative credibility findings were made on certain points with both Staff Sgt. Raymore and Staff Sgt. Lang.

• Staff Sgt. Raymore's evidence displayed an ability to recite appropriate criteria, apparently from Justice Durno's decision in R. v. Price, supra, to be considered and she asserted that she used these criteria. I found however, that she could not have done so given her minimal enquiry about this case and this defendant. In these circumstances, her actions cannot be found to a mistake made in good faith.

• Examination of all of the evidence on the trial revealed that one of the reasons for the lack of notes and evidence from these two officers is that neither made enquiries about the circumstances of the investigation and the defendant's circumstances. The one exception was that each enquired about the readings but neither of them noted them, nor did either explain how the readings were assessed and used in the decision not to release.

• Given the positive duty under s. 498 of the Code combined with a lack of enquiry into information that was readily available through the arresting officer and two standardized comprehensive reports (i.e. 'Driving Offence Notes & Evidence' and 'Alcohol Influence/Test Report') I found wilful blindness on the part of these officers.

• The lack of enquiry was apparently common place in drinking and driving cases according to evidence of the arresting officer and the breath technician.

• The detention resulting from the breach lasted 6 hours and 12 minutes. Any justification offered for this detention was rejected by the court and for the last 3 hours and 20 minutes no explanation whatsoever was proffered.

• The breach continued even in the face of the defendant's boyfriend showing up and making an enquiry about her release.

• Given the problems with Staff Sgt. Raymore's and Staff Sgt. Lang's evidence regarding their subjective grounds there was no need in the breach analysis in my earlier judgment to move to an assessment of the objective aspect of reasonable grounds for not releasing. Nonetheless, I think consideration of whether objectively there were grounds for detaining is relevant in assessing the seriousness of the breach. By using considerations set out by Durno J. in R. v. Price, supra at para. 93 and the circumstances involved in the defendant's case, I conclude that objectively there were no grounds for not releasing given:

  • The last reading of 135 mg. of alcohol in 100 ml. of blood is not, on its own, inherently concerning on the release issue. Further, as shown below there was no additional factor, available in the evidence, to combine this reading with that would potentially change this assessment.

  • The readings were not escalating, and in fact they were coming down.

  • There was no evidence of any concern about the defendant's driving. She was subjected to a sobriety check as the result only of where she was driving from.

  • The defendant was not exhibiting signs of impairment or indicia of impairment at any point in the one hour and twenty minutes she was under investigation. (I do not accept that the evidence about her eyes on its own, even in someone who has consumed alcohol, qualifies as indicia of impairment.)

  • Cst. French testified specifically that he lacked any indicia for grounds for impaired operation.

  • The evidence was that the defendant exhibited a good demeanor throughout which is consistent with lack of impairment.

  • The evidence showed that the defendant was extremely/very cooperative and that she had no difficulty communicating.

  • Given the above, there is every objective reason to think that the defendant was willing and capable of understanding the fact that her license was under suspension, the fact the car was impounded, and the fact that her readings were over the legal limit. As a result, objectively it is unlikely that she would exhibit poor judgment after her release by finding another vehicle and driving it. Also, objectively she posed no other risk to herself or others.

  • The defendant had no criminal record.

  • The defendant had no outstanding charges.

  • Although it may have been a convenience for the defendant to have her boyfriend pick her up there was no need as she had the means to get home on her own.

[26] My overall assessment of the points in paragraph 25 above, taken together, is that this was a serious s. 9 Charter breach that resulted from a failure by two officers to perform a known, assigned, Criminal Code duty, with any degree of attention beyond de minimus. This directly caused the continuation of the defendant's detention far beyond the last time (i.e. 3:08 a.m.) at which it could be justified. I am unable to find any factor (e.g. inadvertence, extenuating circumstances, good faith) that would attenuate the seriousness of the breach. In addition, objectively, there was no reason to detain the defendant beyond 3:08 a.m.

[27] Charter breaches may range from trifling to serious. Although it is hard to find appropriate descriptors, serious breaches also cover a range of problematic conduct. One factor that may take a case to a higher level within the serious range is multiple Charter breaches. This did not happen in the defendant's case. There is a factor in this case, however, that is beyond the multiple particulars outlined in paragraph 25 above that is aggravating in the assessment of seriousness. This factor is the history of the overholding issue in earlier court cases.

[28] The issues surrounding overholding are not new or novel in cases involving Peel Regional Police. I refer to this police service specifically, as opposed to the entire Peel region covered by this court, because I am unaware of any cases of a similar nature involving the Ontario Provincial Police, who also bring many similar drinking and driving cases before the court in Peel.

[29] One of the other cases involving a s. 9 breach for overholding by Peel Regional Police is R. v. Cheema, [2016] O.J. No. 1787. I adopt the words of Schreck J. in that case, at paragraph 16, regarding the history of this issue and thereafter its effect on the seriousness of the breach.

In addition to this, it appears that a s. 9 breach resulting from "overholding" is not a unique occurrence in this jurisdiction: R. v. Mazzuchin, [2016] O.J. No. 371 (C.J.) at para. 93; R. v. Corbassen, [2015] O.J. No. 5298 (C.J.) at paras. 11-16; R. v. Pogson, [2015] O.J. No. 268 (C.J.) at para. 261; R. v. DeLima, [2010] O.J. No. 2673 (C.J.) at para. 29; R. v. Dunn, [2009] O.J. No. 6296 (C.J.) at para. 8; R. v. Owen, [2001] O.J. No. 6334 (C.J.) at paras. 16-17; R. v. Ewert (unreported, April 15, 1999, Ont. C.J.); R. v. Price, supra. The fact that this type of conduct continues to occur despite repeated judicial disapprobation also renders the breach more serious: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 25.)

[30] I conclude that there was a significantly serious s. 9 Charter breach in this case. The circumstances of this significantly serious Charter breach favours the exclusion of evidence, and to say otherwise could lead to the impression that this behaviour is being condoned, and further that it is being condoned in spite of previous judicial guidance.

(ii) The impact of the breach on the Charter-protected interest of the accused

[31] The Charter interest protected by s. 9 is that everyone has the right not to be arbitrarily detained or imprisoned.

[32] This interest, both pre-Charter and post-Charter, has been comprehensively regulated under the Code from the point of first contact with the police all the way through to the end of a case in court. The Charter ensures that this law governing detention and imprisonment and its application is non-arbitrary. It needs to be emphasized that the comprehensive scheme in the Code, governing detention and imprisonment, applies to everyone. The scheme requires either reasonable grounds, or a reason, depending on the point in time, for initiating and continuing detention. Reasonable grounds or reasons, as the case may be, are based on considerations determined by the Code, as applied to each individual and the circumstances involved in his/her charge(s). It is readily apparent that the goal of the Code, as supported by the Charter is to prevent arbitrary detention from "cradle to grave."

[33] Inherently, the entire Criminal Code scheme requires individualized informed decisions throughout, regardless of whether the decision maker is a police officer, a Justice of the Peace or a Judge. As a result, the scheme is also inherently dependent upon reliable information being obtained and passed along to any of these individual decision makers.

[34] The specific part of this larger scheme that was involved in this breach was s. 498(1) & (1.1) of the Code. It sets out the duty of the officer and the criteria to be considered.

[35] At an individual level, the two Staff Sergeants in this case largely ignored the fact that they had a duty under s. 498 to release as soon as practicable unless they had appropriate grounds for the exception of detention. Evidence that they largely ignored this duty was displayed in the fact that they did very little to collect available, relevant information about this defendant and this investigation. Also they kept no notes of the information they received nor of their decision and associated grounds. In addition, one of the officers did this in the face of clearly knowing factors that should have been considered, and the other officer admitted to ignoring the defendant for hours.

[36] At the institutional level of Peel Regional Police the evidence in this case shows that the investigation of this, and similar drinking and driving offences, is highly organized. That organization seems to end once a charge is laid. It appears that, in clear contrast to the investigative stage, there are no procedures or systems in place to ensure accountability of the Staff Sergeants or of the institution on this issue.

[37] During the time period of the breach the defendant was presumed innocent of the offence. Further, the breach resulted in the defendant being imprisoned for over six hours on a charge for which she would never be imprisoned, if found guilty and sentenced in court.

[38] There was nothing extraordinary about the conditions of the defendant's imprisonment beyond being cold and an inability to summons someone for toilet paper. The inability to summons someone does however, point to a greater impact on her protected right caused by the breach over time. The defendant was cut off from anyone who might assist in ending this arbitrary detention. This included any police officer, the Staff Sergeants responsible for her custody, someone from the community (one of whom attended the division), counsel and in this case the Court given that she was in the cells at a time of day when prisoners are transported to court for bail hearings.

[39] The defendant's imprisonment was not technical in nature or fleeting in time. In my view, six plus hours of imprisonment represents a substantial impact on her Charter-protected interest.

[40] The defendant was charged with Over 80 only. Nothing else was alleged as there were no indicia of impairment, and there were no high readings etc. It appears that simply being charged with Over 80 somehow disqualified her from being given due attention and consideration. This approach displays a heightened level of arbitrariness which in turn heightens the impact of the breach on the Charter-protected interest.

[41] In summary, the starting point of over six hours of unjustified imprisonment inherently significantly impacts upon the protected interest of non-arbitrary detention and imprisonment. Thereafter, the impact is heightened in this case because: the clear direction in the Code for a routine release procedure was almost completely ignored by the officers responsible; the police service involved did nothing to ensure accountability for this procedure; the circumstances of the defendant's imprisonment were such that she was completely unable to obtain any assistance; it appears that the defendant was treated this way simply as a result of being charged with Over 80; and the defendant, while still presumed innocent, was in effect punished in a way she would not have been if found guilty in court.

[42] In the circumstances, there was a substantial impact on the defendant's Charter-protected interest. I conclude that this factor favours exclusion of evidence as the behaviour undermines the goals of the Code and the Charter as they concern detention. Also, the alternative of admitting the evidence may send a message that one's rights post-charge(s) are of no consequence.

(iii) Society's interest in the adjudication of the case on its merits

[43] The breath readings are reliable evidence and exclusion of this evidence clearly leads to a situation where the Crown has no ability to prove the Over 80 charge. As a result, society's interest in adjudication on the merits favours inclusion of the evidence.

[44] The following point has not been factored into the overall balancing below, but I note that this case presents an interesting paradox on this factor. It is paradoxical that the most positive aspect of the defendant's case, that being the fact there is no impaired charge and associated evidence, in effect, significantly increases the impact of exclusion. Another way of putting this is – If the defendant was accused of greater criminality with an additional charge of impaired operation or various other driving offences, the impact of exclusion would be reduced and the impact upon society's interest in adjudication on the merits would be reduced. This paradox points out an unfairness that could result if one does not step back and look at the bigger picture. This causes me to query whether this paradox requires at least some tempering of the societal interest in adjudication on the merits a case like this.

(iv) Overall balancing

[45] I have considered and balanced the three factors above and I conclude that the breath readings will be excluded as their admission would bring the administration of justice into disrepute. In the circumstances of the defendant's case alone, I conclude that in order to ensure the long term repute of the justice system, the court needs to disassociate itself from the police conduct that ignored the goal of preventing arbitrary detention and imprisonment that runs throughout the entire criminal justice system. In this case, the need for the court to disassociate itself from the police conduct relevant to factors in (i) and (ii) above is greater than society's interest in prosecuting the defendant.

[46] My conclusion is reinforced by the history of this issue before the court. I first dealt with a similar overholding case over 17 years ago in R. v. Ewert (unreported, April 15, 1999, Ont. C.J.). I found there was a s. 9 Charter breach, and as pointed out above in paragraph 29, other judges have made similar findings since then. In these decisions, mine included, the discussion about remedy took a different path under s. 24(1) of the Charter, but this does not detract from the fact that there have been recurring findings of s. 9 breaches for overholding in cases similar to the defendant's.

[47] We cannot expect public confidence in the judicial system if the court does not disassociate itself from recurring unjustified behaviour that could have been easily prevented.

C. Should there be a s. 24(1) remedy?

[48] Submissions were made on this issue, but in light of the fact that I have granted a s. 24(2) remedy that will result in a finding of not guilty, I will not analyze nor rule upon the s. 24(1) submissions.

JUDGMENT ON TRIAL

[49] On this trial the Crown has called all of its evidence and the Defence has elected to call no evidence. As noted in the Introduction, all issues were conceded save and except for the s. 9 Charter application.

[50] This Charter application succeeded and as a remedy, the breath readings have been excluded from the evidence on the trial.

[51] In these circumstances, the Crown is unable to prove the sole charge of Over 80 and the Defendant is found not guilty of the same.

Released: October 18, 2016

Justice Kathryn L. Hawke