Court Information

Court: Ontario Court of Justice

Date: March 9, 2017

Court File No.: York Region – Newmarket 4911-998-15-09309

Parties

Between:

Her Majesty the Queen

— And —

Roman Kurmoza

Before: Justice Henschel

Heard on: February 1 and 2, 2017

Reasons for Judgment released on: March 9, 2017

Counsel

Brad Juriansz — counsel for the Crown

Irwin Isenstein — counsel for the Defendant

Reasons on Charter Application

HENSCHEL J.:

A. Overview

[1] The Applicant, Roman Kurmoza is charged with operating a motor vehicle over 80 contrary to section 253(1)(b) of the Criminal Code. The events which led to the charges occurred in Richmond Hill on November 28, 2015. He alleges that his section 7, 8, 9, 10(a) and 10(b) rights under the Charter were violated and seeks the exclusion of physical signs of impairment observed by the officer at the arrest scene, and the results of the breath tests obtained following a breath demand pursuant to section 254(3) of the Criminal Code. On February 2, 2017 I dismissed the application to exclude evidence with reasons to follow. These are my reasons.

[2] The Applicant submits that the investigating officer violated his section 7 rights by failing to immediately engage the in-car camera system (ICCS) in the police cruiser. The officer did not activate the system until he placed the Applicant in his cruiser. As a result, his initial contact with the Applicant was not recorded. The Applicant argues this resulted in a loss of evidence which infringed his right to make full answer and defence guaranteed as a principle of fundamental justice under section 7 of the Charter. The Applicant seeks the exclusion of the breath readings as a remedy under section 24(1) for the alleged breach of section 7.

[3] The Applicant also alleges that his rights under section 8 and 9 of the Charter were violated because the investigating officer did not have reasonable grounds to arrest him and to demand samples of his breath. As a remedy, he seeks the exclusion of the breath readings pursuant to section 24(2) of the Charter.

[4] Finally, the Applicant submits that the officer failed to inform him of the reason for his detention in breach of section 10(a) of the Charter when he was directed to exit his vehicle. As a remedy, the Applicant seeks the exclusion of physical observations made by the officer of the Applicant outside of the motor vehicle prior to his arrest.

B. Factual Background

[5] On November 28, 2015 at 1:36 a.m. P.C. McCool was notified that a call was received from Turtle Jack's restaurant in Richmond Hill advising that there was a possible impaired driver who had left the restaurant and was driving a Subaru with license plate BCJY 079. P.C. McCool drove to the home of the registered owner, arriving within seven minutes. He saw the Subaru with the matching plate backed into the driveway. The vehicle was running and its lights were on. P.C. McCool saw that a male, later determined to be the Applicant, was asleep or passed out in the driver's seat of the vehicle.

[6] P.C. McCool knocked on the window several times before the Applicant responded. The Applicant looked at him and appeared confused. P.C. McCool asked him to roll down his window and, after rolling down the window, the Applicant put his head out and looked backwards and forwards. P.C. McCool explained why he was there and noticed that there was a strong odour of alcohol coming from the Applicant's mouth. The Applicant stated that he was not driving his vehicle. P.C. McCool asked him to shut off the vehicle for safety reasons. The Applicant did not immediately comply but he subsequently shut off the vehicle as directed.

[7] P.C. McCool testified that at this point he "started to suspect" that the Applicant had been drinking. He noticed that the Applicant's eyes were very glassy or watery looking. He testified that he "suspected that his ability to operate the motor vehicle was impaired by alcohol". The Applicant said that he had come from Turtle Jack's and he had a couple beers. He continued to appear confused, and did not appear to understand what was going on or why an officer was talking to him while he was in his driveway. P.C. McCool explained that he was investigating him for being in care and control of a motor vehicle while he was impaired. The Applicant kept saying that he was not driving the vehicle, was in his driveway, and asked why the police were in his driveway talking to him. He did not appear to understand.

[8] P.C. McCool asked the Applicant to get out of the vehicle and he stumbled and was swaying ever so slightly. P.C. McCool testified that he asked the Applicant to get out of the vehicle with the intention of arresting him because he had formed "the reasonable suspicion" to believe that he was impaired by alcohol. When asked by the Crown what the standard of arrest was, P.C. McCool responded that at that point he had reasonable grounds to believe the Applicant was impaired by alcohol. He explained that at the point he asked the Applicant to get out of the car his thoughts were that he was impaired by alcohol while in care and control. P.C. McCool agreed that when he asked him to get out of the vehicle he did not tell him why and did not ask for his permission. He explained that he wanted to get him out of the vehicle first for safety reasons. He did not want to become involved in a struggle if he would not get out of the vehicle.

[9] At 1:50 a.m. P.C. McCool arrested the Applicant for impaired operation of a motor vehicle, and he was placed in the police cruiser. P.C. McCool activated the ICCS when he placed the Applicant in the cruiser, approximately seven minutes after his initial contact with the Applicant.

[10] The ICCS includes a camera at the front of the cruiser and a camera which records the rear seat area of the cruiser. P.C. McCool also had a wireless microphone on his person that is part of the system and records audio when the system is activated. The system is activated by use of the cruiser emergency lights, when the cruiser reaches certain speeds, by the vehicle g-force detector being activated, or by manual activation.

[11] The Applicant's car was parked in his driveway facing towards the street. When P.C. McCool arrived he stopped his cruiser so that it was perpendicular to and blocking the Applicant's vehicle. In this position the in-car camera, if activated, would not have captured P.C. McCool's interactions with the Applicant. However, the audio function, if the system had been activated, would have captured P.C. McCool's conversation with the Applicant.

[12] P.C. McCool testified that although he could have positioned the vehicle with his front bumper towards the Subaru's front bumper it was fastest and most convenient for him to roll up perpendicular to the Applicant's vehicle. He positioned his vehicle as he did because he was concerned that the vehicle might be put in motion and wanted to block it. In addition, Exhibits 3A-D show that if the police cruiser had been parked facing the Subaru it would likely have extended well into the roadway.

[13] Exhibit 2 is a York Regional Police Command Directive for use of the ICCS. The directive provides:

In addition to any investigative contact, the ICCS should be used to record significant events or where video evidence would be useful such as:

(a) impaired operation investigations;

(b) when conducting approved screening device interviews;

(c) when conducting Standardized Field Sobriety tests;

(d) when engaged in suspect apprehension pursuits; or

(e) any situation where, based on the officer's experience and judgment, an audio/visual record of the event would be beneficial to the investigation or officer/public safety.

[14] P.C. McCool acknowledged that he read the directive "once or twice". He testified that he did not turn on the camera system earlier because he did not turn his mind to it. He testified that he did not intend to prevent a recording from being created, he simply forgot.

[15] Once the Applicant was in the rear seat of the cruiser P.C. McCool read him the rights to counsel, caution, and breath demand, all of which was recorded by the ICCS. The Applicant told P.C. McCool that he did not understand and that he spoke Russian. A Russian speaking officer arrived on scene to assist in providing the Applicant the rights to counsel, caution, and the breath demand. The Applicant was then transported to the police station. At the police station, P.C. McCool noted that the Applicant was unsteady on his feet when he escorted him to the booking area. He believed that if he had not been holding him that he may have fallen. Breath tests were conducted by PC Lam, a qualified Intoxilyzer technician, and two readings of 180 milligrams of alcohol per 100 millilitres of blood were obtained.

C. Was there a breach of section 7 of the Charter?

[16] The Applicant submits that the officer's failure to activate the ICCS system earlier and the failure to record the first seven minutes of his contact with the Applicant resulted in lost evidence and breached his right to make full answer and defence under section 7 of the Charter. He submits that the officer had the ability to videotape the interaction and failed to do so due to negligence, and that the court should send a message that the police cannot pick and choose what will be recorded.

[17] The onus is on the Applicant to prove the alleged violation of section 7 on a balance of probabilities. There is no constitutional obligation on a police officer to utilize an available ICCS to create an audio and/or video recording of interactions with the subject of an impaired driving investigation. A police directive that recommends or requires officers to record such interactions is an internal policy, it is not a statutory obligation, and it does not elevate the creation of an ICCS audio/video recording to a constitutionally protected right.

[18] Justice MacDonnell dealt with a similar argument in R. v. Khan. In Khan the accused's refusal to provide a breath sample was not recorded because the detachment had run out of video tapes, something that had occurred on a number of occasions. The appellant argued that the failure to record the proceedings was due to unacceptable negligence and was the functional equivalent of a failure to preserve evidence. The appellant submitted that the conduct should be treated in the same manner as 'lost evidence' and sought a stay or the exclusion of evidence.

[19] Justice MacDonnell, sitting as a summary conviction appeal court, upheld the trial Judge's ruling dismissing the Charter Application. He concluded that a failure to create evidence cannot be equated, for constitutional purposes, with a failure to preserve evidence. Justice MacDonnell explained that the constitutional obligation to preserve evidence is rooted in the Crown's obligation to disclose all relevant evidence in its possession, a component of the right to make full answer and defence, and a principle of fundamental justice. The failure to preserve evidence that would be subject to disclosure constitutes a breach of s. 7 in the absence of a satisfactory explanation that establishes that the evidence has not been lost due to unacceptable negligence. Justice MacDonnell emphasized that while there is a duty to preserve evidence, there is no duty on the police to create evidence, stating as follows:

The Crown's disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence. For example, both the Ontario Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement that the police record, videotape, or audiotape custodial interrogations: R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493, at paragraph 61-65 (Ont. C.A); R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321, at paragraph 46 (S.C.C.). Consistent with those authorities, the law in Ontario is clear that the police are not obliged to make a videotape of the breath testing process. [emphasis added]

[20] Justice MacDonnell concluded that failure to video record the breath testing process, did not amount to a breach of the Charter. In my view, for the same reasons, the police are not obliged to record their dealings with impaired driving suspects by utilizing the ICCS.

[21] The absence of a constitutional obligation to record interactions does not mean that a failure to do so could never constitute a breach of the Charter. For example, a Charter violation might be established where an ICCS is available and the police deliberately choose not to activate the system in order to prevent an independent record from being made in order to obfuscate the true state of affairs or where in the particular circumstances of a case the absence of a recording rendered the trial unfair. This is not such a case. P.C. McCool did not deliberately choose or refuse to record the interaction, he simply failed to turn his mind to activating the ICCS until he placed the Applicant in his cruiser. It was an oversight. It is unfortunate that he failed to record, at least on audio, his initial contact. It clearly would have been preferable for him to have done so as recommended by the York Regional Police Directive. However, this is far from a situation where the conduct of the officer amounts to a violation the Applicant's Charter rights. It is not a case where there was any suggestion that the investigation was motivated by an improper purpose or that the officer was attempting to mislead the court about the events in question. There is no basis for a conclusion that the absence of the audio/video recording would render the trial unfair.

[22] Even if the failure to activate the ICCS were treated as a failure to preserve evidence, a finding of a breach of section 7 and a remedy would not automatically follow. Relevant to whether a breach has been established and whether a remedy is available is proof of actual prejudice. In this case the Applicant has not established that he was prejudiced by the officer's failure to activate the ICCS. Even if PC McCool had activated the ICCS the resulting video would not have captured P.C. McCool's contact with the Applicant due to the position of the cruiser. It would only have generated an audio recording. Counsel for the Applicant suggested the officer was required to position his cruiser so that the front video camera would capture the interaction. I do not agree that the officer had such an obligation. It was not unreasonable for the officer to position his vehicle as he did, in a location that allowed him to quickly approach the driver, blocked the Applicant's vehicle from leaving the driveway or striking the officer, and reduced the extent to which the cruiser protruded onto the street. Courts should be very hesitant to second guess these type of investigative decisions that need to be made quickly and efficiently, and with a view to officer and public safety.

[23] In respect of the absence of audio, this is not a case where there was a significant challenge to the officer's account of what was said. At issue is the appropriate inferences that should be drawn. I am satisfied that there is an adequate record before me of what transpired in the first seven minutes of P.C. McCool's contact with the Applicant, and the Applicant has not established prejudice.

[24] The failure of P.C. McCool to activate the ICCS during his initial contact with the Applicant, although contrary to the YRP policy directive, does not establish a section 7 Charter breach. There was no constitutional obligation on the officer to create the recording, the failure to do so was an oversight, and even if there was a duty to activate the system, the applicant was not prejudiced as a result of the delayed activation. Even if there was a breach of section 7 as a result of a failure to activate the system, the Applicant has not established that the exclusion of the breath tests is an appropriate remedy under section 24(1).

[25] The Applicant has also submitted that I should draw an adverse inference due to the officer's failure to activate the ICCS. The failure of an officer to make use of an available ICCS could, depending on the circumstances, support an adverse inference in relation to the police version of what occurred. The failure of an officer to follow a policy directive can be relevant to assessing the conduct and credibility of an officer. However, I share Justice MacDonnell's reluctance in Khan to transplant principles applicable in the context of an in-custody interrogation to the failure of an officer to activate an ICCS. The very purpose of an interrogation is to elicit incriminating evidence from an accused person, and an accurate record of the exact words spoken is essential. For such statements, the Crown must satisfy the heavy onus of proving voluntariness beyond a reasonable doubt. In contrast, an initial contact between an officer and a citizen is very different. Often the officer does not know whether there will be anything more than a preliminary and brief contact with the citizen, or whether a criminal investigation will unfold. Moreover, as stated by Justice MacDonnell "the cloud of suspicion that surrounds a non-recorded interrogation owes far less to the mere fact that the interrogation was not recorded than it does to the fact that a choice was made not to record it." As noted above, this is not a case where the officer deliberately chose not to activate the ICCS to prevent the creation of an independent record of his conduct with the Applicant. The failure to activate the ICCS was an oversight. On the facts of this case, and in the context of the evidence on the Charter application, I decline to draw an adverse inference in respect of the officer's credibility due to P.C. McCool's failure to activate the ICCS prior to placing the Applicant in the cruiser. Even if the failure to activate the ICCS could be analogized to the failure to record a custodial interrogation, the circumstances under which an adverse inference might be drawn against the credibility of the officer who conducted the process did not exist.

D. Section 8 and 9 - Applicable Legal Principles

[26] Section 8 of the Charter protects individuals against unreasonable search and seizure while section 9 protects against arbitrary detention. In this case, those sections of the Charter are engaged by the Applicant's arrest and the demand for samples of his breath.

[27] Section 495 of the Criminal Code gives police officers the power to arrest anyone they find committing, or that they have reasonable grounds to believe has committed, an indictable offence. In this case, if, at the time of the arrest, P.C. McCool had reasonable grounds to believe that the Applicant had committed the offence of impaired driving or being in care and control while impaired, then the arrest was lawful. If not, the arrest and resulting detention violated section 9 of the Charter.

[28] With respect to section 8, while the onus is generally on the accused to establish breaches of Charter rights on a balance of probabilities, breath samples are obtained via a warrantless search and warrantless searches are prima facie unreasonable. As a result, the Crown has the burden of proving that reasonable grounds existed for the arrest and breath demand. The Crown bears the persuasive burden of establishing that the search was authorized by law.

[29] Section 254(3) of the Criminal Code permits an officer to demand breath samples where the officer has reasonable and probable grounds to believe that the person is committing or at any time within the preceding three hours, has committed an offence under section 253 of the Code as a result of the consumption of alcohol. A lawful demand made under section 254(3) includes the statutory authority for the officer to require an individual to accompany him if necessary to provide breath samples. If P.C. McCool did not have reasonable grounds to believe that the Applicant's ability to drive was impaired by alcohol when he made the breath demand, then the demand was not authorized by law, and the taking of the breath samples violated the Applicant's rights under section 8.

[30] The existence of reasonable grounds entails both an objective and a subjective component. An officer must subjectively form an honest belief that there are reasonable grounds to believe that the subject has committed the offence and the belief must be objectively reasonable. The meaning of reasonable and probable grounds for an arrest was classically stated by Cory J in R. v. Storrey as follows:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

[31] Reasonable grounds is more than suspicion, but less than proof beyond a reasonable doubt, or even a prima facie case. The arresting officer is not required to establish the commission of an indictable offence on a balance of probabilities, but must be acting on something more than reasonable suspicion or a hunch.

[32] In the context of impaired driving investigations, while the standard should not be watered down, it is not an onerous standard. The precondition to an officer's authority to effect an arrest and to make a breath demand is satisfied where the officer subjectively and objectively has reasonable and probable grounds to believe that the Applicant's ability to operate a motor vehicle is impaired to any degree ranging from slight to great. Impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road.

[33] It is also important to keep the following in mind when assessing the reasonable grounds to believe standard:

• Evidence must be considered cumulatively, and not piecemeal.

• The reasonable grounds standard must be interpreted contextually, and take into account all the circumstances, including the timing involved and the events leading up to the arrest or demand. Police officers must make decisions quickly, in circumstances that are less than ideal, and on the basis of information available to them at the time, which is sometimes incomplete.

• Reasonable grounds can be established despite the fact that there may be competing explanations for individual factors that contribute to the officer's belief. The officer is only required to consider the incriminating and exonerating information to the extent that the circumstances reasonably permit. The inference that the subject is impaired may be reasonable even if it is not the only inference that can be drawn from the circumstances. "Reasonable grounds to believe" does not require the officer to be in a position to dispel or rule out innocent or innocuous inferences that may be drawn from the same observations.

[34] In determining whether an officer objectively had reasonable grounds, a court is not limited to the facts identified by the arresting officer as those relied upon in support of his or her belief. Rather, a determination of whether objectively there are reasonable grounds may be based on facts known by or available to the officer at the time the officer formed the requisite belief.

Application of the Law: Did the officer subjectively form reasonable grounds to believe that the Applicant's ability to operate a motor vehicle was impaired by alcohol?

[35] The Applicant submits that the officer did not have the required subjective reasonable grounds to believe that the Applicant's ability to operate a motor vehicle was impaired. The Applicant argues that P.C. McCool's evidence establishes that he had only a reasonable suspicion. The Crown argues that despite evidence from P.C. McCool that was unclear regarding the nature of his belief, a review of the totality of the evidence establishes that he had the required reasonable grounds.

[36] While there are no "magic words" that an officer must recite, I am not satisfied that PC McCool subjectively formed reasonable grounds to believe. In my view the officer failed to turn his mind to the appropriate legal standard and/or did not appreciate the distinction between reasonable grounds to believe and reasonable grounds to suspect.

[37] In examination-in-chief P.C. McCool testified that he asked the male to get out of the vehicle with the intention of arresting him because he had formed "the reasonable suspicion" to believe that he was impaired by alcohol. When directly asked by the Crown what the standard to arrest for impaired driving was P.C. McCool testified that at that point he had reasonable grounds to believe that the Applicant was impaired by alcohol while in care and control of the motor vehicle. The Crown then sought to clarify the evidence as follows:

Q: I want to clarify because you have said two different things, a moment ago you said you had reasonable suspicion that he was impaired by alcohol, but now you just said you had reasonable grounds to believe that he was impaired by alcohol, or something to that effect, so can you just clarify what was in your mind when you asked him to get out of the car?

A: Well again in my mind my intentions were to effect an arrest of the male.

Q: So when you asked him to get out of the car what were your thoughts regarding his ability to operate a motor vehicle when you were interacting with him?

A: My thoughts were that he was impaired by alcohol while in care and control of a motor vehicle.

[38] The answers of P.C. McCool in response to the Crown did not clarify whether he had a reasonable suspicion or reasonable grounds to believe. In cross-examination PC McCool agreed with the proposition that he arrested the accused due to his "suspicion" flowing from a number of factors, which he identified as the nature of the call, the odour of alcohol, glassy eyes, the Applicant's reaction and confusion, and the fact that he was sleeping in the motor vehicle. While counsel did not directly confront P.C. McCool with the fact that he had only a reasonable suspicion and not reasonable grounds, during cross-examination PC McCool did not avert to the distinction between reasonable grounds and reasonable suspicion.

[39] At an earlier point counsel for the Applicant advised P.C. McCool that he wanted to get at what caused him to arrest the applicant and suggested to him that he arrested the Applicant based on the fact that he "suspected" that he was impaired by alcohol. P.C. McCool responded that he had initially been debating whether to use a roadside test and he decided not to when the Applicant stepped out of vehicle and stumbled because he felt he was impaired by alcohol. This answer suggests that the officer turned his mind to the different thresholds required for an approved screening device, and for an arrest. However, this evidence was inconsistent with the balance of his evidence that the reason he asked the Applicant to get out of the car was because he had decided to arrest him.

[40] Based on the totality of the evidence I am not satisfied on a balance or probabilities that the officer subjectively formed reasonable grounds to believe that the Applicant was impaired by alcohol. As a result there was a violation of the Applicant's section 8 and section 9 rights.

Objective Reasonable grounds for belief

[41] The Applicant also submits that objectively there were not reasonable grounds to believe that the ability of the Applicant to operate a motor vehicle was impaired by alcohol. I am satisfied that considering the totality of the evidence in context that objectively there were reasonable and probable grounds to believe that the Applicant's ability to drive was at least slightly impaired by the consumption of alcohol. A reasonable person placed in the position of the officer would conclude that there were reasonable grounds to believe that the Applicant was impaired based on the cumulative effect of the following:

• The call from Turtle Jack restaurant at 1:36 a.m. in the morning reporting that a possible impaired driver had left the restaurant driving a Subaru with plate BCJY 079.

• Within seven minutes of receiving the report the officer located the vehicle backed into the driveway and the Applicant was in the driver's seat of the vehicle which was running and had its lights on.

• Instead of going into his home to sleep at 1:43 a.m., the Applicant, was either asleep or passed out in the driver's seat of the vehicle parked in his own driveway.

• When the officer knocked on the window the Applicant did not immediately respond. The officer had to knock several times before the Applicant responded and when he did he appeared confused.

• Once the Applicant opened his window he put his head out the window and looked backwards and forwards.

• A strong odour of alcohol was coming from the Applicant's mouth.

• The Applicant's eyes were very glassy or watery looking.

• When the officer asked the Applicant to shut off the vehicle he did not immediately respond.

• The Applicant confirmed that he had been at Turtle Jack's restaurant and that he had a couple beers. This was important confirmation that the Applicant was the person referred to in the original call.

• The Applicant appeared confused and did not appear to understand what was going on or why an officer was talking to him while in his driveway, and kept saying he was not driving the vehicle, was in his driveway, and asked why the police were in his driveway speaking to him.

• Once the officer asked the Applicant to get out of the vehicle for the purpose of effecting an arrest he stumbled and swayed ever so slightly.

[42] In reviewing the indicia of impairment counsel for the Applicant pointed to potential competing inferences:

• The officer agreed that the Applicant's confusion could be attributable to the fact the Applicant had been awoken from a deep sleep. The officer also agreed that this could be an explanation for the Applicant's unsteadiness when he stepped out of the vehicle. In assessing this explanation it should be kept in mind that the officer had received information that within the previous seven minutes the Applicant had been driving the vehicle from Turtle Jack's restaurant.

• The officer acknowledged that the Applicant's confusion could have been attributable to his difficulty in understanding the distinction between care and control and operating a motor vehicle, a legal concept that may have been unfamiliar to the Applicant. As the officer was providing the applicant with his rights, caution, and breath demand, the officer learned that English was not the Applicant's first language and that he required the assistance of a Russian interpreter. This was a fact that emerged after the arrest.

• The officer acknowledged that the smell of alcohol supported consumption only, and could not indicate the amount of consumption.

• The Applicant pointed to the fact that another officer did not smell alcohol, however that officer noted that this may have been due to windy conditions.

[43] I am satisfied that taking the alternative explanations into account the constellation of facts nonetheless objectively establish reasonable grounds to believe that the Applicant's ability to operate a motor vehicle was at least slightly impaired. The inference that the subject was impaired was reasonable, even though it may not have been the only possible inference. The fact that some of the indicia relied upon could have been caused by factors other than the consumption of alcohol does not mean that those indicia must be eliminated from consideration.

[44] R. v. Costello involved a similar constellation of facts. In that case the officer received a radio call that there was an intoxicated male at a Tim Horton's that was a part of a service center along Highway 401. When the officer arrived on scene three bystanders said that the individual was in a green Thunderbird on the exit ramp to the 401. The officer did not receive any additional information. The officer located and stopped the vehicle, and observed that the individual was swaying, had an odour of alcohol coming from his mouth, and bloodshot eyes. The Court of Appeal concluded that the facts were capable of establishing reasonable grounds to believe that the individual's ability to operate a motor vehicle was impaired by alcohol.

[45] The Applicant submitted that the evidence that he was unsteady on his feet and swayed after he was asked to step out of the police vehicle cannot be considered in assessing whether there were objective reasonable grounds because this information was not known or available to the officer at the time he decided to arrest the Applicant. In my view, what I must consider is whether objectively there were reasonable grounds at the time of the arrest and the breath demand. After the officer made the decision to arrest, the officer was entitled to continue to consider any new or additional factual information that might contribute to or detract from his grounds before actually effecting the arrest. I am satisfied that the observations of stumbling and swaying were available to the officer at the time of the arrest and demand and can be considered in assessing if objectively there were reasonable grounds. However, in the event I am wrong, even without the evidence of stumbling and swaying I am satisfied that there were reasonable grounds to believe that the Applicant's ability to operate a motor vehicle was at least slightly impaired.

E. Section 10(a) and 10(b)

[46] The Applicant submitted that his right to be informed of the reason for his arrest was violated when the officer told him to get out of the car without telling him the reason why he had to get out the vehicle. I am not satisfied that there was a violation of section 10(a) or 10(b) of the Charter. P.C. McCool explained that he did not tell the Applicant the reason he was asking him to get out of the car for reasons of officer safety. He did not want to get into a struggle with the Applicant if he resisted getting out of the vehicle. The immediacy of the requirement to advise an individual of the reason for an arrest, like the right to counsel, is subject to officer or public safety concerns. In these circumstances the officer was not required to tell the Applicant that he was going to arrest him for impaired driving prior to asking him to get out of the vehicle. Moreover, only minutes earlier, when the Applicant appeared confused about why the officer was speaking to him in his driveway, PC McCool explained to him that he was being investigated for being in care or control of a motor vehicle while he was impaired. Assuming that the applicant was detained by being asked to step out of the vehicle, the officer had already conveyed to him the reason for his detention by telling him that he was being investigated for being in care and control of a motor vehicle while impaired.

[47] When the officer asked the applicant to get out the vehicle, he observed the applicant stumble, and sway. He spoke briefly with the two other officers who arrived on scene, and then arrested the Applicant and immediately placed him in the cruiser and provided him with the reasons for his arrest, rights to counsel, caution and breath demand. This was all completed within seven minutes of when the officer had first arrived on scene. In all the circumstances, I am satisfied that the Applicant was promptly advised of the reason for his arrest or detention, and was provided with rights to counsel without delay. There was no breach of section 10(a) or 10(b) of the Charter.

F. Section 24(2)

[48] Having concluded that there was a violation of section 8 and 9 of the Charter on the basis that the officer lacked subjective reasonable grounds to believe that the Applicant's ability to operate a motor vehicle was impaired, I must consider whether the evidence of the breath readings should be excluded under section 24(2) of the Charter. Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter. Section 24(2) of the Charter requires the Court to exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. The accused bears the burden of establishing this on a balance of probabilities.

[49] According to the Supreme Court of Canada decision in Grant, there is a three pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. The court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors:

(1) the seriousness of the Charter infringing state conduct;

(2) the impact of the breach on the Charter-protected interests of the accused; and

(3) society's interest in the adjudication of the case on its merits.

[50] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account. In my view consideration of these governing principles leads to the conclusion that the Intoxilyzer results of the respondent's breath samples are admissible.

Seriousness of the Charter-Infringing Conduct

[51] With respect to the seriousness of the Charter-infringing state conduct, although I have concluded that P.C McCool lacked subjective reasonable grounds, there is nothing in the evidence to suggest that P.C. McCool's conduct was severe, or that he made a wilful or conscious decision to disregard the Applicant's Charter protected rights. There is no evidence that the Applicant was mistreated or subjected to any demeaning or invasive investigative procedures. However, ignorance of Charter standards cannot be condoned. The requirement of reasonable grounds for an arrest or breath demand is not a new or particularly complicated concept. P.C. McCool had a responsibility to understand and turn his mind to the proper threshold upon which he could affect an arrest and make a breath demand. The seriousness of the breach is tempered by the fact that there were objectively, reasonable grounds for the arrest. As a result, this factor favours exclusion of the evidence, but only marginally.

Impact on the Accused

[52] The required analytical approach to the second inquiry is to evaluate the extent to which the breach actually undermined the interests protected by the right infringed. This requires the court to identify the interests engaged by the infringed right and to examine the degree of impact from the violation. An unreasonable search and seizure of breath samples engages privacy interests, and human dignity generally, as well as bodily integrity.

[53] In respect of the degree of impact from the violation the Supreme Court in Grant held that breath sample evidence is relatively non-intrusive and involves minimal interference with a suspect's bodily integrity. In R. v. Rehill Justice Campbell emphasized that the limited impact of the breath testing procedure on an accused's Charter protected rights is well established stating as follows:

The collection of the respondent's breath samples for analysis was accomplished by means of an "approved instrument" within the meaning of s. 254(1) of the Criminal Code. This procedure has long been judicially acknowledged as a relatively non-intrusive procedure, which has no more than a slight impact upon the Charter-protected interests of motorists.

Even under the now abandoned Stillman regime for determining the admissibility of evidence under s. 24(2) of the Charter, which gave rise to a near-automatic exclusionary rule for "conscriptive" evidence emanating from an accused, the taking of breath samples was said to be minimally intrusive upon constitutional rights. Indeed, in the decision in R. v. Stillman, [1997] 1 S.C.R. 607, 113 (3d) 321, itself, Cory J., delivering the judgment of the majority of the court noted, at para. 90 that "the Criminal Code provisions pertaining to breath samples are both minimally intrusive and essential to control the tragic chaos caused by drinking and driving".[emphasis added]. See also R. v. Richfield (2003), 175 O.A.C. 54, 178 C.C.C. (3d) 23 (C.A.) at paras. 16-18.

Of course, more recently in R. v. Grant, the leading judgment of the Supreme Court of Canada interpreting the governing principles under 24(2) of the Charter, McLachlin CJC and Charron J. writing for the majority of the court, at para. 111 described the collection of breath sample evidence in drinking and driving cases as a "relatively non-intrusive" procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the accused. Accordingly, the second factor in the 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples. [citations omitted] Indeed, in R. v. Grant at para. 111 the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive".

[54] Counsel for the Applicant relied upon R. v. Au-Yeung and urged me to find that that there was a significant impact on the Charter protected rights of the Applicant flowing from the interrelated section 9 breach and deprivation of liberty integral to the breath testing procedure which involves arrest, handcuffing, placement in the rear of a police cruiser, and detention at a police station for formal breath tests and processing. In my view I am bound by the Supreme Court of Canada's conclusions that the impact of breath tests on an accused's Charter protected rights is minimal.

[55] In addition, the position that the collateral consequences that flow from a demand for breath tests should be found to have a significant impact on an accused's Charter protected rights was considered and rejected by the Ontario Court of Appeal in R. v. MacMillan. In MacMillan the Court held that in cases involving the seizure of breath samples, where there are infringements of section 8, 9 and 10(b) of the Charter, the principal focus in respect of the impact on the Charter protected rights will usually be on the s. 8 violation and the interests engaged by the protection against unreasonable search and seizure. In MacMillan the accused was detained for a period of time at the scene, at the hospital, and was arrested and taken to the police station for breath tests. The Court of Appeal nonetheless concluded that "the impact on her privacy and liberty interests was minimal".

[56] There was no egregious, deliberately inflicted Charter violation that had a high impact on the accused's privacy, bodily integrity and dignity, and as a result, and in accordance with Grant I find that there was minimal impact to the Charter protected rights of the Applicant and this factor weighs in favour of admission of the evidence. There are no fact specific circumstances in this case to cause me to reach a different conclusion.

[57] In reaching this conclusion on the second factor I have also considered that the evidence shows that P.C. McCool objectively had reasonable grounds to believe that the Applicant's ability to operate a motor vehicle was impaired. The evidence was discoverable. Had the officer properly considered the issue, he had grounds that supported a lawful demand under section 254(3). If the officer's grounds were insufficient to arrest, it was open to him upon forming the reasonable suspicion that the Applicant had alcohol in his body to demand that he provide a sample of his breath into an approved screening device. The officer testified that he contemplated doing so at the point he asked the Applicant to step out of the vehicle. This supports the inference that the officer had an approved screening device available to him. Had the officer performed an approved screening device test he inevitably would have obtained the subjective and objective reasonable grounds to make a breath demand under section 254(3). While discoverability has some relevance, I have placed limited weight on this aspect as it is not determinative.

Societies Interest in Adjudication on the Merits

[58] Finally, there is the question of society's interest in adjudication of the case on its merits. In my view, the truth seeking function of the criminal process is better served by the admission rather than the exclusion of the evidence and this factor weighs strongly in favour of the admission of the evidence.

[59] Breath sample evidence is reliable, minimally intrusive, and its admission would clearly serve the truth-seeking process more than would its exclusion. The Charter violation in no way undermined the reliability of the evidence and the evidence is vital to the Crown's case. If the evidence were excluded it would "effectively gut" the prosecution. The readings show, on the evidence available on this application, that the Applicant's blood alcohol content was more than twice the legal limit. As noted by Justice Campbell in Rehill, the public has long had a very strong interest in dealing with "drinking and driving" cases on their merits. The societal interest in a criminal trial on its merits would be seriously undermined if such highly reliable and critical evidence were excluded. This third prong of the analytical framework under 24(2) of the Charter strongly favours admission of the evidence.

G. Conclusion

[60] The balancing of the three factors against the background of all of the circumstances of this case leads me to conclude that the Intoxilyzer results of the respondent's breath samples are clearly admissible under section 24(2) of the Charter. While the first prong governing the 24(2) analysis marginally points towards exclusion, the second and third prongs strongly favour admission. The Applicant has failed to discharge the burden under 24(2) of establishing on a balance of probabilities that the evidence obtained by the police in violation of the Applicant's section 8 and 9 rights ought to be excluded under s. 24(2) of the Charter. The Application to exclude the breath samples and the physical signs of impairment, specifically the evidence of unsteadiness and swaying, is dismissed.

Signed: Justice Marcella Henschel

Footnotes

[1] Where hearsay information that may support reasonable grounds have their genesis in a non-police source, the courts require some threshold reliability for the account: Debot v. The Queen (S.C.C.), [1989] SCJ No. 118 at 215. Although no details were provided about the identity of the caller or the basis for the belief, the fact that the officer located the vehicle running in the driveway with the lights on a short time after receiving the call, with the driver asleep in the vehicle, together with the driver's subsequent statement that he had a couple drinks at Turtle Jack's is corroborative of the information received from the caller.

[2] R. v. McCoy, 2016 ABQB 240.

[3] 2010 ONSC 3818.

[4] R. v. La, [1997] 2 SCR 680 at para. 20. R. v. Bero, (2000), 151 C.C.C. (3d) 545 (Ont.C.A.)

[5] Khan, at para. 13.

[6] See also R. v. Piko (2000), 6 M.V.R. (4th) 117 (Ont. Sup. Ct.); R. v. Brownlee (2008), 70 M.V.R. (5th) 61 (Ont. Sup. Ct.)

[7] Khan, at pars. 15 and 16; La, at para. 21. Piko, at para 6; See also R. v. Santos, 2014 SKQB 5, where the deliberate decision of an officer to mute the audio of significant portions of the officer communications that would otherwise have been recorded on the ICCS resulted in a finding that the conduct was in violation of the accused's s. 7 rights and amounted to an abuse of process.

[8] McCoy, at para. 93. R. v. La, [1997] 2 SCR 680 at para. 20-25. R. v. Bero, [2000] O.J. No. 4199 (C.A.) at para. 42-48.

[9] R. v. Bjelland, 2 SCR 651 at para. 21. La, at para. 25. McCoy, at para. 33 and 65 and 82. See also R. v. Newall, 2013 ONSC 581.

[10] Khan, at para. 21. R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493. McCoy, at paras 55-63.

[11] R. v. Shepherd, 2009 SCC 35 at para. 16.

[12] R. v. Bush, 2010 ONCA 554, at para.13.

[13] Bush, at para. 38. R v. Bernshaw (1995), 95 C.C.C. (3d) 193 at paragraph 48 (S.C.C.).

[14] (1990), , 53 C.C.C. (3d) 316 (S.C.C.) at 354.

[15] Shepherd, at para. 23.

[16] Bush, at para. 46 and 47; R. v. Elder, [2003] O.J. No. 4948 (SCJ). R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490 (C.A.) at para. 17.

[17] Shepherd, at para.21.

[18] R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at paras. 38-41. Bush, at paras. 43 and 44.

[19] Bush, supra. R. v. Valentine, 2014 ONCA 147. R. v. Gunn, [2010] S.J. No. 503 (C.A.) at paras. 7-24.

[20] R. v. Oduneye, 1995 ABCA 295, [1995] A.J. No. 632 (C.A.) at para. 20, leave to refused [1995] S.C.C.A. No. 404.

[21] Bush, at para. 61, an officer is entitled to rely on hearsay in forming reasonable grounds.

[22] Bush, at paras. 56-58.

[23] R. v. Costello, [2002] O.J. No. 93 reversing [2001] O.J. No. 2109 (SCJ).

[24] R. v. Suberu, 2009 S.C.C. No. 33 at para. 2.

[25] R. v. Bartle, [1994] 3 S.C.R. 173.

[26] R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[27] Grant, at para. 71.

[28] R. v. Larocque, 2014 SKPC 102 in which the court conducted a section 24(2) analysis on the basis of an absence of subjective reasonable grounds. In Larocque, the court did not find a breach, but went on to consider section 24(2).

[29] Grant, at para. 111.

[30] R. v. Rehill, 2015 ONSC 6025 at paras. 34-36.

[31] R. v. Au-Yeung, 2010 ONSC 2292 at paras. 57-63.

[32] R. v. MacMillan, 2013 ONCA 109 at para. 85.

[33] MacMillan, at para. 70.