Court File and Parties

Court: Ontario Court of Justice

Date: 2018-04-17

Court File No.: Niagara Region 998 17 S0716 & 998 17 P0717

Between:

Her Majesty the Queen

— AND —

David Howie

Before: Justice J. De Filippis

Heard on: March 28-29, 2018

Reasons for Judgment released on: April 17, 2018

Counsel:

• Mr. H. Limheng, counsel for the Crown
• Mr. J. Loconte, counsel for the defendant

Introduction

[1] The defendant was tried on two Informations. The first one contains four counts; being in care and control of a motor vehicle while his ability to do so was impaired by alcohol or a drug, being in care and control of a motor vehicle with a blood alcohol level that exceeded the legal limit, possession of cocaine, and possession of marihuana. The second Information alleges stunt driving. On consent, the Criminal Code and Highway Traffic Act charges were tried together. The parties agreed that the Defence motion to exclude evidence and the trial proper proceed by way of a blended hearing.

[2] This case turns primarily on the testimony of one officer, P.C. Halliday. His testimony was not undermined at trial. In any event, the following facts are not in dispute: A motor vehicle operated by the defendant was stopped for speeding. The officer detected a strong odour of alcohol from within the vehicle and saw open beer cans and what appeared to be marihuana. The defendant was arrested for the speeding offence. The officer searched the vehicle and confirmed his suspicion about the marihuana. The defendant was advised of his right to counsel. The officer detected the odour of alcohol from the back of the cruiser and from the defendant's mouth. A breath demand was made. It was later determined that the defendant had a blood alcohol level that exceeded the legal limit. In addition to the marihuana found in the car, cocaine was seized from the defendant's pocket.

[3] The defendant alleges a violation of his rights as guaranteed by sections 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms. I find that only the motion with respect to section 10(b) succeeds. However, I decline to exclude the evidence pursuant to section 24(2). In this regard, I have considered the recent decision of the Court of Appeal for Ontario in R. v. Jennings, 2018 ONCA 260. I find the defendant guilty of all offences except the impaired charge. These are my reasons.

Evidence

[4] On February 16, 2017, PC Halliday (O.P.P.) was on routine patrol when he observed a motor vehicle approaching him from behind at a high rate of speed. It was 11:30 pm. He activated the rear antenna of his Genesis 2 Radar and determined the vehicle was travelling at 134 km/hr in an 80 km/hr zone. He caused the vehicle to stop. The defendant was the driver and lone occupant. The officer told him the reason for the stop was stunt driving. At this time, he noted that the defendant's eyes were red and glossy, his speech was slurred, there was a strong odour of alcohol emanating from the inside of the vehicle, and there were open beer cans on the console and floor of the vehicle. He also saw a mason jar with a green plant-like substance that looked like marihuana.

[5] At 11:33 pm, the defendant was arrested for stunt driving and placed in the rear seat of the cruiser. The officer testified that his investigation into "other offences" was not complete and he searched the vehicle. He confirmed his suspicion that the jar contained marihuana and returned to speak to the defendant five minutes later, at 11:38 pm. He immediately detected a strong odour of alcohol in the cruiser. He advised the defendant about his right to counsel. There is no dispute that the informational component of this duty was properly discharged. The defendant stated that he did not have a lawyer and when told he could speak with duty counsel for free, he responded "Alright". During this discussion, the officer detected a strong odour of alcohol emanating from the defendant's breath. The officer asked the defendant when and where he had consumed his last drink and was told it was "two rum and cokes and one beer" at his place of employment, "one or two hours ago".

[6] At 11:53 pm, P.C. Halliday demanded that the defendant provide a sample of his breath into an approved instrument. The defendant said he understood and he was transported to the nearest station for that purpose. They arrived at 12:15 am. The defendant was searched before being placed in a holding cell. He was found to be in possession of a white powder. At 12:26 am, the defendant spoke privately with duty counsel.

[7] At 12:34 am, the defendant was turned over to a qualified intoxilyzer technician. There is no dispute about the integrity of the breath tests. The two breath samples resulted in readings of 166 and 152 mgs of alcohol in 100 millilitres of blood.

[8] The contents of the mason jar weighed 10 grams and later tested as marihuana. The white powder taken from the defendant at the station weighed 3.6 grams and later tested as cocaine.

[9] P.C. Halliday confirmed that he did not observe erratic driving, apart from the high rate of speed. He agreed that the defendant understood all that was said to him, produced documents without difficulty, and walked properly. In making the breath demand, the officer relied upon the high rate of speed, red glossy eyes, and slurred speech. His grounds for doing so, however, did not crystalize until he detected the strong odour of alcohol in the back of the cruiser and from the defendant's mouth.

[10] There is no question that the defendant was detained by the officer almost immediately upon being stopped. The officer testified that he understood his obligation to advise the detainee about his right to counsel and to facilitate that right as soon as practical. He explained that he delayed discharging this obligation so as to quickly search the vehicle to confirm the presence of marihuana. He pointed out that he did not search the trunk or look under the seats. The officer noted that it would not be safe to conduct the search while a detainee is standing behind him. Accordingly, he confined the defendant to the back of the cruiser. I accept the security concern, but the search could have awaited the discussion about the right to counsel. Moreover, the officer seemed confused about his duty to hold off questioning a detainee who has not waived his right to consult with a lawyer.

The Charter Motions

[11] The defendant claims that the officer had no right to arrest and detain him for the charge of stunt driving. It is also asserted that the police failed to properly inform him that the investigation had become a criminal one and of his right to counsel. The search of the car is said to be unlawful. The Defence seeks to exclude the evidence of the breath test results and the drugs.

[12] The Defence asserts that these sections of the Charter were breached:

Section 8: Everyone has the right to be secure against unreasonable search and seizure.

Section 9: Everyone has the right not to be arbitrarily detained or imprisoned.

Section 10: Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefore;

(b) to retain and instruct counsel without delay and to be informed of that right.

[13] The Defence must establish the section 9 and 10 Charter claims on a balance of probabilities. This being a warrantless search the Crown must demonstrate compliance with section 8. At the end of the day, quite apart from these evidentiary issues, the Crown must prove guilt beyond a reasonable doubt. With respect to the latter, it is conceded that, except for the Charter challenge, the "over 80" and drug allegations are otherwise proven. The Defence submits that, in any event, the impaired charge has not been proven. No submissions were made with respect to the stunt driving.

[14] There is no dispute that the defendant was lawfully stopped for stunt driving. In its written application, the Defence submits that there was no right to arrest for this offence. However, this claim is defeated by the evidence that a plant like substance resembling marihuana was observed in plain view in the car. Section 149 of the Provincial Offences Act permits an arrest where the detention of the person is necessary to preserve evidence of the offence or prevent the continuation or repetition of that offence or commission of another offence. Accordingly, the search of the car was valid as an incident of the arrest.

[15] In oral submissions, Defence counsel also argued that assuming the arrest to be lawful, what followed was not because P.C. Halliday failed to comply with subsections 10(a) and (b). With respect to the former, counsel points out that the defendant was not promptly told about the officer's belief in the presence of marihuana and his continuing investigation into impairment. Indeed, the defendant was never arrested for the impaired charge until arrival at the police station.

[16] In determining if there has been compliance with subsection 10(a) the question is not so much what the police said but what the person understood. That question is answered with reference to all the circumstances. See: R. v. Kumarasamy, 2011 ONSC 1385. In this case, the defendant was told he was under arrest for stunt driving. Within minutes, after being provided with the right to counsel, the officer asked the defendant about his consumption of alcohol; how much, when, and where. Given all the circumstances, I am confident the defendant understood this additional reason for his detention. In this regard, I also note that police interest in drinking and driving offences is a notorious fact. In any event, any doubts about the matter had to be dispelled when 20 minutes from the initial arrest, the defendant was subjected to a breath demand. The fact that he was not then arrested for the impaired charge is of no moment; his jeopardy was clear.

[17] Subsection 10(b) imposes three duties on the police when a person is arrested or detained: (1) Inform the person of the right to counsel; (2) Provide a reasonable opportunity to exercise this right if counsel is desired, and (3) Curtail questioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at an eventual trial, until that reasonable opportunity has been exercised.

[18] P.C. Halliday did not inform the defendant of this right to counsel until after he had confirmed the presence of marihuana in the car, five minutes after the arrest. In R v Suberu 2009 SCC 33, it was held that "without delay" means "immediately". The Crown concedes that this did not occur and that the Charter violation has been established. Counsel adds, however, that this breach does not affect the validity of the search of the motor vehicle and that there was no discussion between P.C. Halliday and the defendant in the five minutes in question. That is correct, but the officer failed to curtail questioning (about alcohol consumption) after the right to a lawyer had been given and the defendant had asserted his desire to speak with duty counsel. Crown counsel argues that this is not troubling because the officer would have been entitled to ask these question upon detention by virtue of the principle in R. v. Orbanski, 2005 SCC 37. The Defence responds that the intervening arrest (for stunt driving) means that Orbanski does not apply. This debate is beside the point because the defendant's admission of alcohol consumption is irrelevant to the issues I must decide; that is, the officer had already detected a strong odour of this substance in the cruiser and from the defendant's breath.

[19] The Defence claims that P.C. Halliday did not have the requisite grounds to compel the defendant to provide samples of his breath into the approved instrument. Section 254(3) of the Code provides that an officer may make such a demand if he has reasonable grounds to believe a person has committed an offence under section 253 (i.e. "impaired" or "over 80"). Reasonable and probable grounds has both a subjective and an objective component. The former requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen (1990), 53 C.C.C. (3d) 316 (S.C.C.). Judicial scrutiny of reasonable and probable grounds for a breathalyzer demand must recognize the context within which the police officer's obligation operates. An officer must make a quick but informed decision about whether a driver is impaired. In this context, the grounds for a breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni, [2002] O.J. No. 5189 (S.C.J.). In other words, there must be enough to justify laying a charge but this does not mean a prima facie case or proof beyond a reasonable doubt.

[20] I conclude that the breath demand was a valid one. The defendant had been stopped for speeding at such a high rate that it constitutes the separate offence of stunt driving. This can support the inference of a significant lack of judgment. The officer noted red glossy eyes and slurred speech. He observed empty beer cans and suspected marihuana. Importantly, he also detected a strong odour of alcohol emanating from the defendants breath. Taken together it meets the standard described in Storrey and Censoni.

[21] I find a violation of subsection 10(b) because P.C. Halliday failed to advise the defendant of his right to counsel without delay and curtail questioning until the defendant exercised this right. I do not accept the other Charter challenges.

Exclusion of Evidence

[22] Section 24(2) provides that, "Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute".

[23] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (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. The three factors to be considered are fact specific. After considering these factors, a court must then balance the assessments under each line of inquiry in determining whether admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, 2009 SCC 32.

The Decision in Jennings

[24] The recent decision of Court of Appeal for Ontario in Jennings clarified the test with respect to step two in the Grant analysis. The Defence argued that the relevant comments are not binding on me. This submission arises because in that case, the Court of Appeal reversed the trial judge and found the Charter had not been beached and then went on to discuss section 24(2). This argument does not succeed.

[25] Stare decisis is the foundation of the common law system. It promotes consistency, predictability and sound judicial administration. These values are achieved by the principle of vertical convention; i.e. that courts must abide by decisions of courts above them in the hierarchy.

[26] In Precedent Unbound? Contemporary Approaches to Precedent in Canada, (2007) 32 Man. L.J. 135, Ms. Parkes notes that:

A significant limitation on the vertical convention of precedent is the reality that courts are only bound to follow "what was actually decided" in the earlier case. To use lawyer's Latin, this means that courts must follow the ratio decidendi, but not the obiter dicta, of the applicable case. As such, trial courts may refuse to follow certain aspects of a Supreme Court or provincial appellate court decision on the basis that the relevant part of the decision was obiter dicta. The line between ratio and obiter, however, is not always easy to draw.

[27] In Jennings, the court ruled that the trial judge erred in finding a breach of the Charter and went on to state that his approach to 24(2) was also flawed. In so doing, Court of Appeal said this:

[24] The conclusion on the s. 8 issue is sufficient to dispose of the appeal. However, a divergence in the lower courts on how to approach s. 24(2) analysis in breath sample cases makes it necessary for this court to address the reasons of the trial judge and the SCAJ on this issue…..

[27] The second Grant factor addresses the impact of the breach on the interests of the accused. The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung, the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent's being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.

[28] The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov; R. v. Ramsammy, 2013 ONSC 7374; R. v. Marchi, 2016 ONCJ 757; R. v. Ho, 2014 ONSC 5034, rev'd on other grounds 2015 ONCA 559.

[29] Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

[30] This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, where Watt J.A. refers to "the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness" (at para. 100) and, citing Grant at para. 111, says that "as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted."

[31] Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant, at para. 111."

[32] To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.

[28] In Jennings, the Court of Appeal has stated how breath tests are to be considered in the Grant analysis. This constitutes binding precedent because "what was actually decided" was intended as a direction to trial courts. It was not a passing observation or casual comment. The court identified a conflict in the law, rejected one approach and approved of the other. The court said it was "necessary" to do so. It is not for me to say that it need not have done so and, on that basis, decline to follow the court's declaration of law.

Step Two After Jennings

[29] After submissions in this matter, I became aware of the decision in R. v. Wijesuriya, 2018 ONCJ 211. I advised counsel and provided an opportunity to comment. Defence counsel responded by bringing two other post-Jennings rulings to my attention: R. v. Zuniga-Pflucker, [2018] OJ No. 1727, and R. v. Mann, 2018 ONSC 1703. The three cases comment on what Jennings says about the second inquiry mandated by Grant. Mann is a decision of the summary conviction appeal court. The other two are judgments of colleagues on my court.

[30] In Mann, the court reversed the trial judge, excluded the evidence of breath samples, and ordered the acquittal of the defendant. By virtue of the vertical convention of precedent, Mann is binding on me. However, I have struggled to understand what was actually decided. The relevant part of the ruling is as follows:

[44] Defence counsel argued that the Ontario Court of Appeal's decision in R. v. Jennings, supra is far from dispositive of this appeal because the facts in the R. v. Jennings, supra decision, and the facts of the case at bar, are distinguishable in that there were multiple breaches of Mr. Mann's Charter rights. Defence counsel argues that, in essence, there were three breaches of Charter rights on the facts of the case at bar. While the trial judge may have considered the impact of the s. 8 breach, Defence counsel argued that he failed to consider the impact of the s. 9 breach as he was required to do, thereby erring in his second ground analysis as mandated by the Grant decision…..

[45] I am persuaded by Defence counsel's arguments as being the correct way to dispose of this appeal. As the Ontario Court of Appeal in R. v. Jennings, supra makes clear at paragraph 2 of its decision, the only issues at trial in the case were whether there was a s. 8 breach of the accused's Charter rights and whether the breath sample, obtained as a result of that breach, should be excluded as evidence under s. 24(2). The Ontario Court of Appeal in R. v. Jennings, supra went on to say, based on its examination of the jurisprudence and as cited in paras 30 and 31 of the decision, that as a general rule due to their non-obtrusiveness, obtained by less egregious and invasive intrusions into the accused's privacy, bodily integrity and dignity, breath samples ought to be admitted…..

[47] The Ontario Court of Appeal concluded that it was an error for the trial judge to follow Au-Yeung in this respect. I agree with Defence counsel that the Ontario Court of Appeal did not conclude that R. v. Au-Yeung was wrongly decided on its own facts and that there could be cases where the impact of the breach of an accused's s. 8 rights is anything but minimal favouring exclusion.

[48] I come to the conclusion that this is one such case. In this matter the trial judge, in the new jurisprudential light of the R. v. Jennings, supra case, must be found to have analysed and weighed appropriately, in isolation, the breach of Mr. Mann' s. 8 Charter rights. The trial judge does treat the breath demands as one breach, but I believe Defence counsel is more accurate when he argues that there were two breath demands, both of which were found to be illegally made by the officer, namely the roadside ASD demand and the intoxilyser breath demand carried out later at the station. Nonetheless, both of those demands would have to be considered as non-obtrusive, and not made any more obtrusive because one assumes that these demands are, in the words of the Ontario Court of Appeal, "assuredly [done] in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemised by the trial judge" (para. 29 R. v. Jennings, supra). Considered in isolation, the impact on Mr. Mann's s. 8 Charter rights would have to be considered, as the trial judge ultimately found, pulling "only in a very minor way towards exclusion" (Appeal Record, tab 4, Voir Dire Ruling, para. 39).

[49] What the trial judge failed to do, and in my view erred in not so doing, was to carry out a Grant second factor analysis on the s. 9 breach found by him on the facts of the case, or to consider the combined impact of both the s. 8 and s. 9 breaches on Mr. Mann's Charter rights as accorded to him under those two sections of the Charter. Crown counsel argued that one must take the trial judge to have done this because Defence counsel made that argument before the trial judge in his written arguments and, in para. 38 of his Voir Dire Ruling, the trial judge specifically made reference to Defence counsel's arguments. I cannot accept this explanation because clearly the trial judge in that paragraph of his decision is clearly referring to the breach of Mr. Mann's s. 8 Charter rights.

[50] I now consider the impact of the s. 9 breach on Mr. Mann's Charter rights. Unlike the facts found in the R. v. Jennings, supra case, this is a case of multiple breaches. As was directed by the Supreme Court of Canada in the Grant case, the trial court is directed to consider in its second line of inquiry the interests engaged by the infringed rights and the impact of the breach on those engaged rights. Mr. Mann's stop, detention and arrest were illegal from the very beginning due to the officer's mistake. The interests engaged and deprivation caused by this illegal stop was the deprivation of liberty, privacy, dignity and mobility interests. It can be considered significant and highly intrusive (see R. v. Grant, 2009 SCC 32; R. v. Brown, [2002] O.J. 1569; R. v. Harrison, 2009 SCC 34).

[51] When one considers together all of the interests engaged, by both the s. 8 and s. 9 breaches on the facts of this case, there was a significant impact on the accused's Charter rights. As it turned out, the accused in this case complied with all of the demands made of him by the police officer and provided the breath samples, which became incriminating evidence against himself. Had he not cooperated with the officer, which was his right because of the illegal stop, there would be no case against him.

[52] I find the following comments from Paciocco J. (as he then was) in the decision of R. v. Steele, 2014 ONCJ 583, [2014] O.J. No. 5269, helpful in this regard. On the facts of that case, as in this case, a drinking and driving case, there were multiple breaches of the accused's Charter rights (ss. 8, 9 and 10(b)). In that case, too, Crown counsel argued, relying on the Grant decision, that the violations regarding the breath samples should be treated as having a modest impact on the Charter-protected interests of the accused. Paciocco J. stated inclusive:

To take this kind of approach would not only be inconsistent with the "in all the circumstances" requirement of section 24(2) but it would also impede a material "inquiry [that] focuses on the seriousness of the impact of the Charter breach on the protected interests of the accused": R. v. Grant, supra at para. 76. That impact varies with different kinds of breaches and from case to case. For that reason, I prefer the approach in R. v. Au-Yeung, supra which permits judges to look at the real consequences that follow from the breach, provided that judges do bear in mind that the test itself is unobtrusive of privacy interests and the dignity of the offender.

[53] For these reasons, when considered as a whole, I conclude that the impact on both the s. 8 and 9 breaches of Mr. Mann's Charter rights are significant and favouring exclusion. When this conclusion is integrated with the balancing of the other two Grant factors, as found by the trial judge, the first factor, moderately strong towards exclusion, and the third factor, strongly in favour of inclusion, I am of the view that it results in the exclusion of the evidence of the breath samples and they ought not to have been included in evidence. I agree with the trial judge that this was not an easy case.

[54] For the above reasons, I would allow the appeal seeking the exclusion of the breath samples. As was made clear in the decision of the trial judge, without the evidence of the breath samples, the Crown could not prove its case. I would overturn the conviction and enter an acquittal.

[31] The summary conviction appeal court noted that there was more than one Charter violation. However, the significance of this consideration can be greatly diminished where the multiplicity of breaches is said to arise from the same state misconduct. The latter is the norm in over 80 cases; that is, the assertion of section 8 and 9 violations is complementary and reflect what necessarily follows from being arrested or subjected to a breath demand without reasonable and probable grounds. The Zuniga-Pfluker decision to be discussed below is an example of the less common situation, in over 80 cases, in which the arbitrary detention (section 9) actually adds something to the unreasonable search and seizure (section 8). This does not appear to be the case in Mann. Yet, the section two inquiry by the summary conviction court is grounded in the finding that the trial judge failed to properly account for the section 9 breach in addition to section 8. Moreover, in concluding that the Charter breaches "are significant and favouring exclusion, the court quoted with approval, a statement by Paciocco J. (as he then was) in Steele endorsing the Au-Yeung approach. I do not know what to make of this since Jennings expressly rejected that approach.

[32] In R. v. Zuniga-Pflucker, the court stated that:

[24] I have found that the defendant was arbitrarily detained without lawful authority, unnecessarily and unreasonably handcuffed causing him real pain beyond discomfort, and that the unlawful detention was unnecessarily prolonged due to negligence. The Crown submits that the proper interpretation of Jennings requires me to conclude that despite this the impact of the breaches in this case was minimal and this factor favours admission of the evidence. …..

[26] It is also clear that the line of authority following the decision of R. v. Au-Yeung that s. 8 breaches in breath sample cases, "automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples" is not to be followed. That line of authority to some extent incorporated a s. 9 analysis in considering a s. 8 breach.

[27] While I can understand how Jennings might be interpreted as requiring this factor to always favour inclusion in breath sample cases, I do not believe that in rejecting a perceived rule of automatic exclusion the Court intended to create a rule of automatic inclusion. This is particularly the case where, as here, a separate and distinct s. 9 violation has been found.

[28] I pause to note that one of the reasons breath samples are seen as minimally intrusive is that, unlike blood samples, they do not cause the subject to experience any pain. If breath samples did routinely cause pain, I do not believe that either the Supreme Court of Canada or the Court of Appeal would have characterized them as minimally intrusive.

[29] The Court is quite clear in Jennings that the liberty restrictions that normally accompany the provision of breath samples (arrest, detention and transport) are to be seen as minimally intrusive and ought not to weigh in favour of exclusion in considering the second Grant factor. The Court certainly leaves open the possibility that interferences with s. 9 beyond the norm might well, in a given case, weigh in favour of exclusion.

[33] Unlike Mann, the arbitrary detention in Zuniga-Pflucker was not merely part of the unreasonable search. Rather, the manner of the detention impacted the defendant's interests. It was truly "separate and distinct", as noted by my colleague, and this fact was considered by him on step two of the Grant analysis.

[34] In R. v. Wijesuriya, the court found a section 8 violation occurred because an officer watched while the female detainee urinated in a washroom stall. In considering whether the breath tests should be excluded, the court said this:

[61] I do not read the Ontario Court of Appeal in Jennings as saying that breath sample evidence will always be admissible notwithstanding a Charter breach. In my view, what the Court in Jennings was saying was that where there is a section 8 Charter breach which is not serious it will not usually be the case that the breath sample evidence will be excluded…..

[35] Jennings does not say that the character of breath tests is dependent on the seriousness of the Charter breach. Whether the state misconduct is inadvertent and minor or flagrant and egregious, the breath test remains the same – the minimally intrusive act of blowing into a mouthpiece. That the court in Wijesuriya understood this is clear; my colleague noted that "even though the breath samples are minimally intrusive, the same cannot be said about the searches that took place when she was using the bathroom". Nevertheless, one must be careful not to read Wijesuriay such as to blur the distinction between the first two steps in Grant.

[36] I agree that Jennings does not create an automatic rule of inclusion for evidence of breath tests. However, I do interpret the decision to mean that, like step three in the Grant analysis, that will usually be the correct conclusion. As such, the practical reality is that in over 80 cases, the decision to exclude or not, will be strongly influenced by the step one analysis. In this regard, the result is not that breath samples will be excluded where the Charter breach is minor but, rather, that they will be included unless it is shown to be serious. This change in emphasis appropriately focusses the inquiry on step one and avoids confusion with step two. In my view, this reflects and respects what the Court of Appeal intended in Jennings when it rejected the Au-Yeung approach and accepted the competing line of authority that limits the second Grant factor to addressing the intrusiveness of the breath sample procedure itself.

Application of the Law in this Case

[37] The first stage of the inquiry reflects the concern that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate or reckless police conduct. P.C. Halliday could, and should, have immediately complied with the informational duty in section 10(b). It is more troubling that he may not fully appreciate his duty to curtail questioning after having done so. His conduct was careless, not wilful, but this can have a negative impact on public confidence in the rule of law. On the other hand, the breach is not serious given that the delay in advising of the right to counsel was a matter of minutes and the connection between the subsequent conversation and the challenged evidence is, at best, tenuous. I would not exclude the evidence based on this first line of inquiry.

[38] The second stage focuses on the impact of the breach on the protected interests of the defendant. Taking the Charter seriously means that the greater the intrusion on important interests, the more likely it is that tainted evidence will be excluded. The breach had little or no impact on the defendant's personal interests and the events in question would have unfolded in any event. In addition, the breath test results are minimally intrusive. This impact on privacy and dignity is not enhanced because the breath demand was accompanied by an arrest and attendant consequences. The second line of inquiry favours inclusion of the evidence.

[39] Society's interest in the adjudication of this case on the merits would be seriously prejudiced by the exclusion of the highly reliable and vital evidence in question. Moreover, "drinking and driving" is recognized as a significant threat to public safety. The third line of inquiry favours supports inclusion of the evidence.

Balancing the Three Factors in Grant

[40] In balancing the interests mandated by Grant, the decision of the Court of Appeal in R. v. McGuffie, 2016 ONCA 365, [2016] 336 CCC (3d) 486, said the following:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at paras. 33-34.

[41] In my opinion, Jennings points to a different calculus when the evidence is the result of breath tests. In such cases, the first two inquiries may not work in tandem. As already noted, where a defendant seeks to exclude breath test results, the important question is how to weigh the result in the first stage in Grant in comparison with the others. That follows from the fact that the other two lines of inquiry will usually favour inclusion; the seizure of breath samples must be treated as minimally intrusive (stage two) and the nature of such evidence can always be said to be trustworthy and critical (stage three). The practical result is that in most over 80 cases, exclusion of the breath test results will require a finding of state misconduct that is significant or otherwise particularly troubling.

[42] In this case, there is no need to balance the lines of inquiry. I find that all three branches of the Grant test dictate that the impugned evidence be admitted. In other words, the defendant has not persuaded me, on a balance of probabilities, that Charter relief should be granted.

Result

[43] Having regard to my disposition of the Charter motion, there must be a finding of guilt with respect to the offences of over 80, possession of cocaine and possession of marihuana. It is agreed that these charges are otherwise proven. Defence counsel did not make submissions about the stunt driving charge. There is nothing he could say; the offence is proven. I accept the Defence argument that the impaired charge must be dismissed. The Crown has not discharged its burden of proving that offence beyond a reasonable doubt.

Released: April 17, 2018

Signed: Justice J. De Filippis