Ontario Court of Justice

Date: 2018-05-17

Between:

Her Majesty the Queen

— AND —

Paul Dwyer

Before: Justice B.M. Green

Heard on: April 23, 2018

Reasons for Judgment released on: May 17, 2018

Counsel:

• Mr. S. O'Neill, Counsel for the Crown
• Mr. G. Henderson, Counsel for the Defendant

Reasons for Judgment

Green B.M. J.:

A. Introduction

[1] Mr. Dwyer is charged that he did, on or about the 12th day of March, 2017, operate a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. The focus of the trial was whether or not Mr. Dwyer's Charter protected rights were violated during the course of the investigation and, if not, whether the arresting Officer complied with the statutory prerequisites for the admission of the breath samples.

[2] In advance of the trial, Counsel filed a Charter application that did not provide any meaningful notice of the anticipated legal issues. The main issue that was identified in the application was not argued at the end of the trial nor was it supported by the evidence. Despite the fact that these types of uninformative applications are being repeatedly summarily dismissed in this jurisdiction, there has not been a responsive change in practice. What was particularly frustrating in this matter was that Counsel attended the trial prepared with case law to argue a completely different legal issue (a delay in providing the rights to counsel) that was not alluded to at all in the application and the burden of persuasion was on the Defence. If the Crown had asked for an adjournment to reply, I would have granted it and the delay would have been entirely attributable to the unacceptable lack of notice. It is incumbent on Counsel to provide notice to both the Crown and the Court of this type of argument in advance of the trial unless an unanticipated issue arises during the trial. By coincidence, there were quite a few unanticipated answers provided by the Officer but the main thrust of Counsel's argument was that the Officer delayed reading his client his rights to Counsel such that they were not provided "immediately" and that argument should have been set out in the Application materials.

[3] At the outset of the trial, I summarily dismissed the sections 8 and 9 applications but I permitted the section 10(b) application to proceed despite the paucity of notice. The trial proceeded by way of a blended hearing. The Crown called PC Deane as the only witness for both the voir dire and the trial. The defence did not call any evidence.

[4] PC Deane's evidence in chief seemed fairly straight-forward. During cross-examination however, the Officer's descriptions of his interactions with Mr. Dwyer and his recollections evolved considerably. While there were no identifiable section 8 or section 9 violations at the commencement of the trial, cross-examination elicited various disconcerting inconsistencies and I allowed Counsel to revisit the section 8 argument during submissions. In summary, at the end of the trial, Counsel identified the following issues:

• The Officer's evidence of when, where and whether he formulated the reasonable suspicion to make the demand for the roadside breath sample varied so significantly that the Court must be concerned about whether the Crown can establish that this was a reasonable seizure of the roadside breath sample and whether the sample was obtained forthwith. If the Court finds any such breaches, then the results of the roadside sample ought to be excluded. In the absence of evidence with respect to the failure of the roadside screening process, there were no other reasonable grounds for Mr. Dwyer's arrest and the breath samples also ought to be excluded;

• In addition, because the Officer articulated the wrong legal test for when he ought to have provided Mr. Dwyer with his rights to counsel (as soon as practicable as opposed to immediately) in combination with a significant period of unexplained delay in providing those rights, then the Court should find that Mr. Dwyer's section 10(b) Charter protected interests were violated and that should also result in the exclusion of the breath readings;

• Alternatively, considering the lapses in the Officer's memory, the Crown is unable to prove beyond a reasonable doubt that the breath demand was made and the samples obtained as soon as practicable so the Crown cannot rely on the presumption of identity.

[5] A brief overview of the evidence that canvasses each discreet event during this investigation and the associated timeline is essential to contextualize the applicable legal principles.

B. Evidence and Findings of Fact

i. Timeline and Overview of Events

[6] On March 12th, 2017, PC Deane was assigned to laser speed enforcement on the 401 westbound lanes. Mr. Dwyer's pickup truck was seen travelling at a high rate of speed on the 401. PC Deane measured his speed, using the device he was operating, at 168/169 km an hour in a 100 km an hour zone. PC Deane followed Mr. Dwyer's vehicle and activated his emergency equipment. Mr. Dwyer immediately pulled over on the shoulder of the 401 at 1:07 a.m. PC Deane agreed that, other than speeding, he did not observe any other poor driving.

[7] After Mr. Dwyer was pulled over on the highway by PC Deane, the Officer made some observations that may have led to him forming a suspicion that Mr. Dwyer had alcohol in his body. As a result of that suspicion, the Officer related that the following series of events occurred:

Time	Event
1:12 a.m.	He formed the suspicion and made a demand for a roadside sample
1:14 a.m.	Mr. Dwyer registered a fail on the roadside screening device
1:21 a.m.	PC Deane read Mr. Dwyer the standard cautions
1:22 a.m.	PC Deane read Mr. Dwyer his rights to counsel and he said no
1:27 a.m.	PC Deane read Mr. Dwyer the breath demand
1:28 a.m.	They left the scene to the closest available station
1:37 a.m.	They arrived at the O.P.P. Whitby Detachment
1:57 a.m.	Mr. Dwyer was turned over to the Qualified Technician
1:59 a.m.	Mr. Dwyer's first sample was 103 mg of alcohol in 100 ml of blood
2:23 a.m.	Mr. Dwyer's second sample was 95 mg of alcohol in 100 ml of blood

[8] Between the initial stop to the provision of the first sample, a total of 52 minutes had elapsed. While that is definitely not an inordinate period of time for this type of investigation, each case must be decided on the individual facts.

[9] PC Deane agreed that Mr. Dwyer was polite and cooperative throughout his interactions with him at the roadside and later on at the station. There was nothing that Mr. Dwyer said or did that contributed to any of the delays in the investigation.

[10] The Officer was able to provide this timeline of events while referring to his notes, however, the most striking fact in this case was the Officer's inability to clearly recall or consistently relate what was going on during the time between each noted event after he pulled over Mr. Dwyer's vehicle. PC Deane's responses to questions were often prefaced with "I believe" or "I guess", "I would have" or "usually" which connoted a degree of uncertainty when he was answering questions. For example, he was asked a key question about what, if any, opinion or belief he formed after initially interacting with Mr. Dwyer at the roadside and he replied "yes, I formed, I guess, the reasonable suspicion that he had alcohol in his body." While it may be that the Officer was being overly cautious or he uses these words habitually when he speaks, it became evident during the trial that he really did not have a clear recollection of this investigation.

ii. Demand for the Roadside Breath Sample

[11] There were no issues with the Officer's grounds for the initial stop of Mr. Dwyer's vehicle for speeding well in excess of the speed limit. There were, however, significant issues with this Officer's account of what happened after that initial stop. During examination in chief, PC Deane related a brief interaction wherein he approached Mr. Dwyer's vehicle and spoke to him about speeding. Mr. Dwyer engaged the Officer in a conversation and he provided valid photo identification. The Officer testified that during their conversation he noted an odour of an alcoholic beverage on his breath, his eyes were glossy and he admitted to drinking one drink around 6 p.m. As a result, at 1:12 a.m., he guessed that he formed a suspicion that Mr. Dwyer had alcohol in his system and he made a demand for Mr. Dwyer to provide a roadside breath sample into a readily available and recently calibrated approved screening device. At 1:14 a.m., Mr. Dwyer registered a fail. A total of seven minutes elapsed between the traffic stop and registering a fail on the roadside.

[12] Officer Deane was asked by Counsel about his understanding of his obligations of how quickly he is required to make a demand for the roadside breath sample after formulating the requisite suspicion. He replied that "I would guess as soon as practicable, again." He indicated "again" because he provided that same answer for when he should have provided the rights to counsel, when he should have made the breath demand and when the breath samples should have been obtained.

[13] PC Deane's account seemed simple and straight forward that he believed that he formulated a reasonable suspicion when he was speaking directly to Mr. Dwyer while he was still seated in his vehicle. He agreed with Counsel that he did not have any notes that he ever asked Mr. Dwyer to exit his vehicle during this initial exchange.

[14] During cross-examination, PC Deane's account of the initial investigation changed considerably. Counsel asked PC Deane about the conditions at the roadside when he first engaged Mr. Dwyer. PC Deane agreed that it was light to moderate traffic, traffic was swift on the 401 and it was loud when he was standing at the side of the road beside Mr. Dwyer's vehicle. PC Deane also stated that "I think, just when I originally tried to stop him, I believe he was kind of slightly in the lane" so he asked him to move over a bit to provide more of "buffer zone from traffic". At some point, he also related that there was a passenger in the front seat of Mr. Dwyer's vehicle. Counsel skillfully proceeded to explore various other issues and then returned to what was going on at the roadside at the very end of his questions.

[15] Counsel asked PC Deane which side of the vehicle he approached and he replied "I believe the passenger side." He did not volunteer this information during his examination in chief. As a result of this additional information, the whole perspective of the initial interaction changed. PC Deane was speaking to Mr. Dwyer through the passenger window across a passenger who was seated in the front seat. It became apparent that the Officer's initial account that he smelled alcohol coming from the driver's breath in this situation was incredulous. PC Deane agreed that he was speaking to Mr. Dwyer about a speeding infraction. Mr. Dwyer was cooperative, responsive and provided his documents. Nevertheless, for some reason that PC Deane could not adequately or sensibly explain, he asked Mr. Dwyer to exit his vehicle to speak with him. Mr. Dwyer was directed by an Officer to put himself in the precarious position of stepping out into or very close to the live lane of traffic on the 401 for reasons the Officer could not fully articulate or clearly recall. The Officer related that:

"I believe I continued speaking to him there, and then just given the fact that there was a passenger, I believe I had him come up to the back so I could speak to him directly, just because there is a distance between myself, the passenger, obviously and then Mr. Dwyer and like you said earlier, it's hard – it's hard to hear and it's hard to determine the other factors that eventually came up, when he's that far away and there's someone in between."

[16] PC Deane could not recall when he asked Mr. Dwyer to step out of his vehicle or whether he smelled alcohol when he was inside or outside of the vehicle or whether Mr. Dwyer admitted that he consumed alcohol when he was inside or outside of the vehicle or when he observed "glossy" eyes. The Officer guessed that "I would say that I'd be able to smell it (alcohol). It would have been difficult to determine who it was coming from, which lead to us standing outside." The Officer guessing about why he might have asked Mr. Dwyer to step out and guessing that he might have smelled alcohol in the truck was internally inconsistent with his inability to recall when he made any of these observations that lead to forming a suspicion and directly contradicted his unequivocal evidence in chief that he smelled alcohol on Mr. Dwyer's breath not inside the truck. PC Deane never provided any rational explanation for why he asked a completely cooperative person who had voluntarily provided his identification to step out of his vehicle onto a busy highway while he was investigating him for a speeding infraction.

[17] PC Deane's hazy recollection persisted throughout his evidence. He did not even seem sure about where he engaged in the roadside breath testing process with Mr. Dwyer. He indicated that "I believe we were standing outside the back side of my cruiser."

iii. Arrest, Caution and Rights to Counsel

[18] After Mr. Dwyer registered a failure on the approved screening device, the Officer formed reasonable grounds to believe that he was operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood and he arrested him for this offence at 1:14 a.m. Following Mr. Dwyer's arrest, PC Deane indicated that "he would have been searched briefly and placed in the back seat of my cruiser". During cross-examination, he agreed that the search process would have taken "not quite a minute". Although PC Deane could not provide an exact amount of time that the process took, he said that "it wouldn't have taken an exorbitant amount of time". He said that he was also answering any questions that came up. Counsel asked if Mr. Dwyer asked any questions and the Officer replied "you know what I don't recall if he did or not but these are things that normally happen."

[19] The next time entry that was noted with respect to PC Deane's interactions with Mr. Dwyer was at 1:21 a.m. when Officer Deane read Mr. Dwyer the standard cautions and then he read him his rights to counsel at 1:22 a.m. When the Officer was asked initially what was going on in the period of time between the arrest and reading the rights to counsel, during examination in chief, he replied "I would have been explaining the reason why he was under arrest. Placing him under arrest, a quick search just to make sure there's no weapons or anything else that might be considered dangerous, placed in the back of my cruiser and then moving on to reading the caution and the rights to counsel and so forth." After the standard reading of the rights to counsel, Mr. Dwyer responded "no" in response to whether he wished to call a lawyer and "no" in response to whether he wished to call Duty Counsel.

[20] As the trial progressed, PC Deane's evidence about what was actually going on between Mr. Dwyer's arrest and the reading of the caution became confusing and he appeared to be very uncertain. He indicated that "it all depends on the situation. I believe there was a – there was a passenger. If there was a tow – a tow that's arrived on scene, I might have to talk to the tow to explain about hooking up the vehicle and where it's going. There's a few things that I do need to get done before I leave the highway". He went on to say that "I would say that they did happen." The Officer had not taken any notes to assist with refreshing his memory about the gaps in the timeline when he was unsure about what he was doing, if he actually did it or when certain events occurred. PC Deane agreed that he was providing the Court with "possible examples" of what was going on but he did not have a clear recollection.

[21] Counsel asked PC Deane if he understood when he was obliged to provide Mr. Dwyer with his rights to counsel following his arrest and he replied "as soon as possible, I guess, yeah. As soon as practicable."

iv. Breath Demand

[22] There was a subsequent period of delay between the provision of the rights to counsel and the breath demand which was read to Mr. Dwyer at 1:27 a.m. PC Deane explained that Mr. Dwyer's cousin approached the cruiser and wanted information about what was happening, where he was going and the Officer provided him with all of the information. During cross-examination, the Officer struggled significantly with recalling who he spoke with at the roadside. He was not sure if it was the passenger in Mr. Dwyer's vehicle or whether another vehicle had pulled up on scene. At times, PC Deane did not seem certain about whether this conversation with Mr. Dwyer's cousin occurred between the arrest and reading the rights to counsel or between reading of the rights to counsel and the breath demand. Additionally, PC Deane did not provide any other explanations for the 5 minutes of delay before he read the breath demand.

v. Delays at the Station

[23] PC Deane left the scene at 1:28 a.m. He took the most direct route to the nearest station with an available Qualified Technician and he arrived at the station at 1:37 a.m. Mr. Dwyer was ultimately turned over to the qualified technician at 1:57 a.m. PC Deane was asked to explain what was going on between 1:37 a.m. and 1:57 a.m. considering that Mr. Dwyer had not asked to speak to counsel. The Officer responded, "Just I guess lodging him into our cell area, so it's just a matter of collecting some basic information, emergency contact, in case something were to happen, and that's about it, and just waiting for the breath tech to indicate that he was ready." Later on his evidence, he elaborated on this period of time adding that he would have been addressing any medical concerns, taking any medication and property and canvassing consumption of alcohol and drugs. Despite offering these additional details about what could have been happening, he conceded that he could not even recall if he engaged in this process or whether another officer was helping him out. He also indicated that there was some kind of additional conversation about contacting Duty Counsel but he could not recall what was said, when it was said or how Mr. Dwyer responded.

[24] PC Deane testified that part of the 20 minutes of delay at the station was due to waiting for the Intoxilyzer technician to indicate that he was ready to conduct the tests. Counsel repeated to the Officer "to your recollection, was Mr. Dwyer brought into the breath room as soon as the breath technician advised that he was ready?" PC Deane replied "I believe so. I believe so, yes." Counsel also confirmed that there were no other administrative tasks or right to counsel issues at the station that would have prevented Mr. Dwyer from going directly into the breath room as soon as the technician advised he was ready. PC Deane replied "I don't think there was, no." The difficulty with PC Deane's evidence is that his account was directly contradicted by the admitted statement of fact that the Intoxilyzer technician was completed the setup of the instrument at 1:35 a.m. and he advised PC Deane that he was ready to receive a sample 1:37 a.m.

[25] The Crown tendered the Certificate of a Qualified Technician that established that Mr. Dwyer provided two suitable samples into an approved instrument more than 15 minutes apart. The first sample was obtained at 1:59 a.m. and registered a reading of 100 mg of alcohol in 100 ml of blood and the second sample was obtained at 2:23 a.m. and registered a reading of 90 mg of alcohol in 100 ml of blood.

C. Legal Analysis

i. The Charter Issues

[26] At the end of the trial Counsel urged the Court to permit him to "reanimate" the section 8 argument as a result of the Officer's unanticipated evidence during the trial. He emphasized the Officer's uncertainty about what exactly went on at the roadside in between the initial stop and the demand for the roadside breath sample which was exacerbated by the fact that he articulated the wrong legal standard about when he was required to make the roadside demand as "as soon as practicable" instead of forthwith. He submitted that the Crown had not met their onus of establishing on a balance of probabilities that the seizure of the roadside breath sample was reasonable in all of the circumstances.

[27] This is one of those cases when a Court should allow Counsel to revisit a Charter Application that was summarily dismissed in the interests of justice in light of the obvious challenges with a police officer's evolving accounts. From start to finish, this Officer's recollections were confusing and uncertain. I am not implying or finding that he was either deliberately misleading the Court or purposefully leaving out details. I find, however, that he tried to fill in the gaps in his memory by guessing about what may have happened which was not helpful at all. In addition, separate and apart from the forthwith issue identified by Counsel, I am left with no objectively ascertainable articulable reason why this Officer asked Mr. Dwyer to step out of his vehicle into a live lane of traffic on the 401 and speak to him on the shoulder while he was investigating a speeding infraction.

[28] There are a host of easily identifiable Charter issues with the seizure of the roadside sample, the delays with providing the rights to counsel and the other unexplained delays. The Defence must establish the section 10(b) Charter violations on a balance of probabilities. Considering that this is a warrantless search and seizure, the Crown must demonstrate compliance with section 8. Apart from these Charter issues, the Crown must prove Mr. Dwyer's guilt beyond a reasonable doubt.

[29] I do not intend to engage in a lengthy Charter analysis of whether Mr. Dwyer's section 8, 9 and 10(b) rights were violated in this case. It should be evident from the review of the evidence that there were obvious breaches of Mr. Dwyer's section 8 and 10(b) Charter protected interests. Considering my findings (which will be outlined below) with respect to whether the breath demand was made and the breath sample taken as soon as practicable, I will only summarize the various Charter challenges in this case.

[30] An Officer is required to form a reasonable suspicion that a person has alcohol in his/her body before making a roadside screening demand. This is both a statutory requirement and a constitutional precondition to a lawful search and seizure under section 8 of the Charter. Reasonable suspicion is a relatively low standard that engages a consideration of the reasonable possibility of a crime. This Officer's inability to recall or relate when and where he formed a reasonable suspicion or why he asked Mr. Dwyer to step out of his vehicle in the first place has created an insurmountable hurdle to any reasoned determination of the objective facts that led to the formulation of the suspicion. The Officer also seemed uncertain about whether he formulated the requisite suspicion at all stating "I guess", I formed the suspicion that he had alcohol in his body.

[31] In addition to the issues with determining how and why the Officer formulated the suspicion in this case, the Officer could not relate when he formulated this suspicion between the stop at 1:07 a.m. and the demand at 1:12 a.m. While he claimed that he made the demand immediately after forming the suspicion that is not consistent with his inability to recall when he made the observations at the roadside or whether it was inside or outside of Mr. Dwyer's truck. The Ontario Court of Appeal laid out a five step analysis to assist Courts with determining whether a roadside screening demand was made forthwith in R. v. Quansah, 2012 ONCA 123. While 5 minutes at the roadside is a relatively brief period of time before making a demand, this Court cannot engage in a contextual analysis in the absence of any ability to make objective findings of fact as to what was going on in this period of time.

[32] Based on all of these considerations, I find that Mr. Dwyer's right to be free from an unreasonable search and seizure as protected by section 8 of the Charter was violated.

[33] The issues with the time between each of the noted events at the roadside and what was occurring in each discreet period of time continued throughout this Officer's evidence. PC Deane is an experienced Officer. He has been working with the O.P.P. for 12 years. As an experienced Officer, he testified that he is well aware of the time sensitive nature of impaired driving investigations. PC Deane was asked to explain each of the time gaps in between his noted interactions with Mr. Dwyer and his understanding of his legal obligations each step of the way. The Officer articulated the same legal term of art for each of his obligations that he was required to obtain the roadside sample, read the rights to Counsel, make the breath demand and the detainee must provide his breath samples "as soon as practicable". PC Deane's understanding of the law is not correct. The roadside screening demand and sample are to be provided "forthwith", the rights to counsel are to be provided "without delay" or "immediately" and the breath demand and breath samples must be as soon as practicable. I do not accept, however, that this is a systemic issue in Durham Region or that the Officer's erroneous recitation of these prerequisite legal standards is necessarily determinative of the issues in this case. It is a factor to consider within the context of the whole of the evidence and there is a demonstrated need for further education and training with this particular Officer.

[34] Upon reviewing all of this Officer's evidence, I do not have any confidence that PC Deane was able to accurately relate what he was doing between Mr. Dwyer's registered failure on the roadside screening device at 1:14 a.m. and the reading of Mr. Dwyer's rights to counsel at 1:22 a.m. and the reading of the breath demand at 1:27 a.m. This is not a case where an Officer was confidently able to relate their normative practices during these types of investigations. Quite the contrary, the Officer's choice of language reflected his uncertainty about what he was doing, when he was doing it and what observations he made. He was not sure whether a tow arrived on scene, whether another vehicle arrived on scene, whether he was speaking to the passenger or some other family member or when he engaged in a conversation with Mr. Dwyer's concerned family member.

[35] An Officer's duty to inform a detainee of their rights to counsel "without delay" is subject to reasonable limitations that are prescribed by law and considerations of both officer and public safety. Counsel provided the Court with a number of decisions that specifically address this immediacy requirement and the impact of an Officer's apparent failure to prioritize the provision of the rights to counsel. As Justice Latimer recently observed in R. v. Davis, 2018 ONCJ at paragraph 29:

There has been significant judicial commentary in this regard recently, and I can do no better than rely upon my colleagues' recent past decisions, such as R. v. Mitchell, 2018 ONCJ 121 (Justice Parry in Kitchener); R. v. Turcotte, 2017 ONCJ 716 (Justice McInnes in Newmarket); R. v. Campbell, 2017 ONCJ 570 (Justice Felix in Oshawa), and R. v. Sandhu, 2017 ONCJ 226 (Justice Schreck, at the time sitting on the Ontario Court in Brampton). Justice Schreck's decision in particular contains a lengthy list of prior decisions involving this form of s. 10(b) violation. At paragraph 7 Schreck J. states, with regard to the Supreme Court's 2009 ruling in Suberu:

As the Court made clear, "without delay" means "immediately". It does not mean "as soon as practicable". It does not mean after the arresting officer has attended to other aspects of the investigation, such as speaking to the occupants of the vehicle or writing notes. Cst. Darcy clearly did not advise Ms. Sandhu of her right to counsel immediately. Crown counsel conceded that this resulted in a violation of s. 10(b) of the Charter. She was correct to do so.

In the present case, Crown Counsel's concession was similarly well-founded.

[36] The Crown did not make any concessions in this case. In light of PC Deane's inability to accurately recall what occurred at the roadside between Mr. Dwyer's arrest and the provision of his rights to counsel, there is insufficient evidence to determine whether he prioritized this duty. Furthermore, the unexplained delay is exacerbated by the Officer's misapprehension of his obligations to provide the rights to counsel without delay. The Defendant has established that his 10(b) Charter rights were also violated.

[37] I have found that Mr. Dwyer's section 8 and section 10(b) Charter protected rights were violated. The Defendant still has the burden of establishing on a balance of probabilities that the admission of the results of the roadside breath samples and the breath samples taken at the station would bring the administration of justice into disrepute. Neither Counsel nor the Crown engaged in extensive submissions about whether this evidence ought to be admitted/excluded pursuant to section 24(2) of the Charter. While Counsel referred to the Supreme Court of Canada's decision in R. v. Grant, 2009 SCC 32, neither Counsel made submissions about how the Ontario Court of Appeal's decision in R. v. Jennings, 2018 ONCA 260 should impact this Court's determination. The Court of Appeal clearly stated at paragraphs 29 and on that:

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, 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, 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.

[38] In addition, when Counsel made his submissions, he would not have had the benefit of the more recent summary conviction Appeal judgement of R. v. Mann, 2018 ONSC 1703 that distinguished the Court of Appeal's decision in Jennings in cases that involve multiple breaches of a person's Charter protected interests. The Court found that:

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 ONCJ; 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 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 at paras. 53 to 55 inclusive:

With respect, I do not think this is a proper reading of R. v. Grant. In the passage in question [para.111] the Court was concerned solely with the impact that compelled breath samples have on privacy interests and human dignity and offering this as an illustration of the varying ways in which breaches can intrude on Charter protected interests. Justice Charron was not, in my view, purporting to provide a comprehensive catalogue of all "breach impact considerations" in breath sample cases.

Indeed, Grant is not even a breath sample case. There is no reason to believe that the Court was intending to offer a ready-made conclusion on the intrusiveness of all breaches that lead to compelled breath samples.

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.

[39] Another Superior Court Justice, sitting as an Appeal Court, has already distinguished the Mann decision in R. v. Barr, 2018 ONSCJ. Her Honour found that:

57 I cannot accept this argument. Defence counsel is alleging multiple breaches arising out of a single "mistake" by the officer resulting in the collection of breath samples. However, there is no evidence of separate or multiple breaches. By alleging multiple s. 8 and 9 breaches so that their combined impact might be considered as more intrusive and serious, Defence counsel is effectively arguing that which Jennings has now rejected, namely a consideration of the impact of the entirety of the procedure faced by the respondent after arrest, rather than only considering as has now been clarified, the minimal intrusiveness of the breath sample procedure on his privacy, bodily integrity and human dignity.

And further:

59 I agree that a consideration of the second Grant factor in breath sample cases is certainly not limited to only considering the minimal intrusiveness of the breath sample procedure. It depends on the evidence leading to a finding of a breach or breaches and an evaluation, as stated in Grant, supra, at para. 76, of "the extent to which the breach actually undermined the interest protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive".

60 In R. v. Mann, 2018 ONSC 1703, another breath sample case decided after the trial judge's ruling in the present case, the SCAJ considered Jennings in connection with an evaluation of the second Grant factor and distinguished the Jennings facts from those in Mann, where "Mr. Mann's stop, detention and arrest were illegal from the very beginning due to the officer's mistake" (para. 50). That mistake had been to first conduct an illegal stop and then make an ASD demand without having had the requisite subjective and objective reasonable suspicion that Mr. Mann had alcohol in his body. The SCAJ concluded that the impact of both the initial s. 9 breach and the subsequent s. 8 breach on Mr. Mann's Charter rights were "significant and favouring exclusion" (para. 53).

61 Mann is, therefore, distinguishable on its facts from the present case and does not change my conclusion that Jennings applies to the second Grant factor so that the trial judge erred in his analysis that it favoured exclusion of the evidence.

[40] Considering the recent and fast paced developments in the law in this area and that these cases were not available to Counsel and the Crown when they made their submissions, this Court would have benefitted from further submissions with respect to how these binding decisions ought to be interpreted and applied to the unique facts in this case. I am not prepared to decide whether this evidence ought to be admitted or excluded in the absence of further submissions. I should note that I do not find that the Officer acted in bad faith or that these breaches were part of a broader systemic police practice. That being said, when an Officer has taken insufficient notes to refresh his memory about what he was doing during an investigation at material times and he can only guess about what might have happened at key moments, his evolving evidence of one version of facts during his examination in chief and a markedly different account during his cross-examination was, at best, very disconcerting. Nevertheless, since I intend to acquit Mr. Dwyer of the over 80 charge because of the issues with the timing of the samples in this case, I will not postpone rendering a judgement in this matter.

ii. As Soon as Practicable

[41] In addition to the Charter breaches in this case, there are related difficulties with the Crown's ability to rely on the presumption of identity. In order for the Crown to have the benefit of this statutory presumption, the Crown must prove beyond a reasonable doubt that the demand for the breath sample was made as soon as practicable and the breath samples were obtained as soon as practicable. These statutory requirements are a reflection of the constitutional integrity of the provisions to ensure that the liberty interests of detainees are only infringed for brief periods of time. The Crown can only rely on the presumption of identity if they are able to prove the prerequisites set out in section 258(1)(c)(ii) of the Criminal Code. In part, this section requires the Crown to prove that the samples were taken as soon as practicable after the time when the offence was alleged to have been committed and that the first breath sample was taken not later than two hours after that time with an interval of at least 15 minutes between each test.

[42] R. v. Vanderbruggen, Justice Rosenberg explained that:

Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for inter alia proving the "over 80" offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. Thus, in this case, although the first test was not taken until more than one hour after the appellant drove the vehicle, that test is deemed to show what his blood alcohol level was at that time of the driving.

[43] Justice Rosenberg went on to define the meaning of as soon as practicable:

That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances…. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably …. [Emphasis mine]

[44] Finally, in order to make this determination, his Honour also explained in Vanderbruggen, supra, at para. 13 that:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. [Emphasis mine]

[45] More recently, Justice Harris revisited this issue in R. v. Hill, 2017 ONSCJ. The summary of the law commenced with this insightful comment at para. 8:

There has been an inordinate amount of judicial ink spilled on the question of the meaning and application of the "as soon as practicable" requirement in Section 258(1)(c)(ii). This subsection is a frequent target of defence attack on the presumption because, based on the language of the provision, there is an elasticity to its time based requirement. It is open to interpretation. Unlike the other pre-conditions of the presumption, it does not always result in a definite, clear answer.

[46] The Court reviewed the Vanderbruggen decision and emphasized (at para. 19) that:

I approach this appeal in the same spirit. "As soon as practicable" should not be applied in a way divorced from its limited, one dimensional purpose. Police only have to act reasonably and be reasonably prompt. The Crown does not have to account for every minute of a time gap. Practically speaking, it should be a rare case in which the defence is available to block the operation of the presumption by invoking the as soon as practicable requirement. [emphasis mine]

[47] Justice Harris went on to reiterate that the police conduct must be considered in the context of the entire time period:

25 I accept that very little evidence is needed to demonstrate the police were acting reasonably and promptly. In Vanderbruggen, supra the arresting Officer merely glimpsed the breathalyzer technician preparing the machine. That was all. Here there was not even this minimal evidence.

26 The first sample must be taken as soon as practicable after the time of the offence. Police efficiency must be evaluated within the context of the entire one hour and 36 minute period, not based only on the unexplained period of time: R. v. Brigham 1994 ONSC at para. 24; R. v. Singh, 2014 ONCA 293 at para. 14.

[48] The total period of delay, from the time of the arrest to the provision of the first sample, was under an hour which appears to be a relatively short period of time. Nevertheless, I am unable to consider the whole chain of events due to the Officer's inability to recall what was going on during each period of time. This case is similar to the Hill decision because there are a number of unexplained gaps in time and a significant need to try and fill in the "evidentiary lacunae". This is definitely a "rare" case with a forgetful and uncertain police witness. I find that the Crown has not proven beyond a reasonable doubt that the demand for the breath sample and the provision of the breath samples were as soon as practicable.

D. Conclusion

[49] This was a remarkably unusual trial. The trial commenced with an application that contained insufficient notice of the alleged Charter breach with respect to the failure to comply with the immediacy requirements when providing the rights to counsel. Despite the unsatisfactory notice, I did not dismiss the 10(b) application but I summarily dismissed the balance of the boiler plate Charter applications. As the trial progressed, multiple unanticipated Charter issues arose as a direct result of the evolving recollections of an Officer. In the interests of justice, I permitted Counsel to argue the alleged breaches that arose from this unexpected evidence. Mr. Dwyer's Charter protected interests were unquestionably violated but further submissions are necessary before this Court can make a determination about whether the admission of the evidence would bring the administration of justice into disrepute. Nevertheless, it would be unfair to Mr. Dwyer to prolong this matter and adjourn the case for further submissions when the Crown has failed to prove the charge beyond a reasonable doubt.

[50] The Crown has failed to prove that the breath demand was made and the breath samples were taken as soon as practicable. As a result of the failure to comply with the statutory prerequisites, the Crown has lost the benefit of the presumption of identity and cannot prove that the breath readings that were obtained at the station were the same at the time of driving. Accordingly, Mr. Dwyer is acquitted of the charge before the Court.

Released: May 17, 2018

Signed: Justice B.M. Green