Court File and Parties

Ontario Court of Justice

Date: February 9, 2018

Court File No.: North Bay 16-1264; 16-1265

Between:

Her Majesty the Queen

— and —

Charles Rush

Before: Justice A.H. Perron

Heard on: July 10, 2017

Reasons for Judgment released on: February 9, 2018

Counsel:

• Dawn McCaig, for the Crown
• Bruce Engel, for the accused Charles Rush

Reasons for Judgment

PERRON J.:

Introduction

[1] Charles Rush is charged with operation of a motor vehicle with over 80 mg of alcohol per hundred milliliters of blood and open liquor charge under the Liquor Licence Act in relation to an incident that happened in the Township of Bonfield on July 21, 2016. The matter proceeded to trial before me on July 10, 2017 with Mr. Rush pleading guilty at that time to the Liquor Licence Act charge.

[2] Mr. Engel counsel for the accused filed a Charter application alleging that there were six violations of the Charter during this investigation. Ms. McCaig, who was acting for the crown on that date, and defence both agreed that we would proceed on a blended trial and Charter application with one Ruling.

Facts

Constable S. Hardwick

[3] The first witness called by the Crown was Constable S. Hardwick who is normally posted out of the Powassan detachment of the O.P.P. and is the lead investigator on this matter. At approximately 10:29 PM on July 21, 2016, he was travelling westbound on Highway 17 in the Township of Bonfield transporting a prisoner back to the North Bay detachment. A second officer was following him in a separate police cruiser. He observed a motor vehicle in front of him driving very slowly and driving over the centerline then right over the fog line. This happened on at least two occasions and he therefore proceeded in doing a motor vehicle stop in order to verify on the driver's well-being.

[4] He therefore activated his emergency lights and the driver of the motor vehicle in front him did not react or pull over for 50 to 100 meters. He then signaled left then signaled right and pulled over to the side of the road. Constable Hardwick pulled in behind the suspect vehicle and Constable Pawson, who was operating the second cruiser also stopped behind him.

[5] When he approached the driver side of the motor vehicle, he found a male driver who was dressed in female clothing. He advised the driver of the reason for the stop and questioned him on the consumption of alcohol. The suspect driver advised that he had drank two beers in Petawawa which is an hour and 15 minutes to an hour and half away. He then questioned the driver as to whether he had any alcohol in the motor vehicle which he replied that he had a beer in the front seat. He then noticed that there was a tall boy of beer in that seat. He also advised that he had detected an order of alcohol in the motor vehicle and on the suspect's breath.

[6] That is when Constable Hardwick commenced an investigation into a drinking and driving offence. The accused properly identified himself as Charles Rush, the accused now before the court. Constable Hardwick asked him to exit the motor vehicle. When he did exit, Mr. Rush had first appeared unsteady on his feet but thereafter his walk was okay. Constable Hardwick described his speech as good and therefore decided to escort Mr. Rush to the cruiser for a road side test.

[7] Constable Hardwick advised that he had an ASD 6810 with him and confirmed that the accuracy date and complete calibration date were all in compliance. At 10:35 PM, a breath demand was read to the accused. He then demonstrated the operation of the approved screening device by performing a self-test and explaining how to blow into the instrument. After the self-test, he showed the accused the result of his breath sample which was a zero. The accused provided a proper sample of his breath at 10:42 PM and registered a fail. He was therefore arrested on the charges now before the court. In reply to a question as to why he used the ASD, the constable mentioned that he had reason to believe that the accused had consumed alcohol and had some in his blood when he was driving. He mentioned that based on seeing alcohol in the motor vehicle and on what the accused had told him and his observation of the smell of alcohol, all gave him the appropriate grounds to make such a demand. He also confirmed that throughout all of this, the accused was entirely cooperative.

[8] Before leaving the scene, the accused requested an opportunity to change his clothing. At that time, he was wearing high heel shoes, skirt, women's blouse, women's jewelry's and earrings. As he asked to change and in fact seemed a bit embarrassed. Constable Hardwick concluded that he would allow him to change his clothing and permitted him to retrieve a duffel bag from his motor vehicle. He stood by when the accused changed into jeans and a T-shirt. All this was done on the side of the road while he was sitting on the passenger side of the motor vehicle and was afforded some privacy as the accused was completely cooperative. He confirmed that everything went smoothly and he had no concerns when this was being done. He also did a quick search of the accused's motor vehicle and found at that time a total of five unopened tall cans of beer. He also found an open can of Alexander Keith beer which was partially full and on the floor behind the passenger seat. Constable Hardwick confirmed that this search only took one to 1 ½ minute as this was a small motor vehicle. What took a long time was Mr. Rush changing his clothing.

[9] After the accused changed clothing, Constable Hardwick did a quick search of his person, handcuffed him and placed him in the back of his police cruiser. The prisoner that he was originally transporting had been transferred to the rear of Constable Pawson's police cruiser. He returned of the cruiser and at 10:52 PM read the accused's rights to counsel. He advised that he understood and asked to speak to duty counsel. At 10:55 PM the standard caution was read as well as a demand for an Intoxilyzer sample. At 10:56 PM, they left the scene for the North Bay detachment of the OPP. Arrangements had been made for a tow truck and for Constable Carlson to administer a breath test on Mr. Rush.

[10] They arrived at the North Bay detachment at 11:16 PM. They first dealt with the prisoner that they were originally transporting as he was highly intoxicated and was not cooperating. It was important that he be lodged first for everybody's safety. Mr. Rush was brought in to the detachment and lodged at 11:27 PM. Constable Hardwick knew that Constable Carson was already at the detachment and preparing to administer an Intoxilyzer test.

[11] At 11:41 PM, a call was made to duty counsel at which time he provided them details of the incident. At 11:44 PM, the accused was afforded an opportunity to speak to duty counsel until 11:47 PM. The accused was turned over to the Intoxilyzer technician at 11:53 PM. Constable Hardwick did not deal with this accused until 12:30 the next morning when he was returned to him by Constable Carson who advised that the accused had failed the Intoxilyzer test. Constable Hardwick was at that time provided with the certificate, he reviewed it and eventually served the accused. This certificate has now been filed with the court as Exhibit 1 on this trial.

[12] Constable Hardwick advised that there were some issues with the accused driver's license. He does not have any specific notes about this but recalls that the one provided was an older one and that the accused had advised that he had another one in his duffel bag. Constable Hardwick wanted to get the newer one as it had the appropriate address. He therefore requested that Constable Andrews attend the accused motor vehicle which was now at the impound yard in order to retrieve the new driver's license. He confirmed that Mr. Rush had provided the location of said driver's license. He in fact is the one that had advised the police that there was another driver's license in his possession.

[13] Constable Hardwick confirmed that he was the supervising officer on duty that evening. He concluded that the accused had some reasonably elevated readings and was travelling from Ottawa to Winnipeg. The accused had no friends or family in the area and in fact no place to stay in the area if he was released. A decision was therefore made that he be kept in cells until he sobered up. He mentioned that there had been some bad situations in the past, some issues of self-harm, and therefore it was decided that he would be kept in custody and that he would be released by the day shift at 7 AM. This information was to his understanding relayed to the supervising officer of the day shift.

[14] Constable Hardwick concluded his examination in chief by stating that the certificate of the qualified technician was served on the accused at 4:41 AM. The notice of intention to produce certificate was also served and in fact signed by the accused at that time. Same has now been filed as Exhibit #2. He confirmed that in his opinion, the accused was still under the influence of alcohol at that time and for his safety it was decided that he would remain in custody. It was his view that a few more hours in custody until the day shift started at 7 AM was an appropriate decision to make.

[15] During cross-examination, Constable Hardwick was questioned as to the reason for the stop and what he had advised the accused upon attending the side of the motor vehicle. He confirm that all of this began as a simple traffic stop due to bad driving. After speaking to him and based on his statement his observation and smell of alcohol that same turned into a criminal investigation. Constable Hardwick confirmed that in his mind the accused was detained however he did not advise him of same. There was only a simple discussion about his drinking. He did confirm that the accused was not formally informed that this was no longer a traffic investigation until his arrest at 10:42 PM. In his view, it was very obvious that this was an alcohol investigation mostly when he was questioning him about consumption of same and had asked him to exit the motor vehicle for an approved screening device sample.

[16] Constable Hardwick confirmed that he was trying to better assess the situation as this was on the side of the dark highway with heavy traffic and although the accused was cooperative throughout, the situation was unusual due to his clothing. He did not want to rush things. He confirmed that he had reasons to believe that the accused had alcohol in his body within three minutes or so, that is before the accused identified himself and exited the motor vehicle. The Constable confirms that he always takes his time during this type investigations to make sure if anything else was going on. He does not want to jump to hasty conclusions. He is also trying to determine his level of impairment.

[17] Constable Hardwick was questioned about the timeframe between the arrest and rights to counsel, that is from 10:42 to 10:52 PM. He mentioned that during this time, he allowed the accused to change his clothing at his request and also did a search of the motor vehicle. He in fact confirmed that the search of the motor vehicle basically happened at the same time as the accused was changing his clothing.

[18] Constable Hardwick was then questioned about the open can of beer. He did confirm that same was within reach of the driver's seat. He was therefore asked if it would not have been prudent to wait another eight or nine minutes prior to administering the ASD. His reply was that he had taken the accused to his word about when he had had the last drink. The accused had originally said Petawawa. He also mentioned that between the traffic stop in the time of the first sample that there is 13 minutes. He has been a breath tech since 2003 and to his understanding alcohol starts to dissipate within 30 seconds or so. He knows that there is a recommendation that you wait 15 minutes however he was fully satisfied that waiting 13 minutes would be sufficient under the circumstances.

[19] Constable Hardwick concluded his cross-examination by saying that he left the detachment at 5:12 AM for another call for service.

Constable E. Carlson

[20] The crown then called Constable E. Carlson who confirmed that he was working a night shift on July 12, 2016 and had received a request from Constable Hardwick to administer an Intoxilyzer test on this matter. This request was received by him while he was at the Powassan detachment which is about 27 km south of the North Bay detachment. He mentioned that he immediately left the detachment when he received the request but had to do a traffic stop at approximately 11:00 PM as he thought he was dealing with an impaired driver. After some investigation, he concluded that it was simply driver fatigue and no charges were laid. This stop took approximately nine minutes.

[21] He arrived at the North Bay detachment at 11:12 PM. He then started to set up the Intoxilyzer 8000 C. He proceeded in doing a diagnostics test, a calibration test and a self-test. He also had to verify that the video and audio equipment for the breath room were working properly. He advised that he was ready to receive the first sample of breath at 11:34 PM and from then awaited the arrival of the suspect. He eventually met Constable Hardwick at which time he received the grounds for arrest and the reasons for taking an Intoxilyzer test. The accused was eventually turned over to his custody at 11:53 PM. He took the occasion to recap his rights to counsel at which time he was advised that Mr. Rush did have the opportunity to speak to duty counsel. He then entered the accused information into the Intoxilyzer and began the sequence of test once again. The first sample was obtained at 12:06 AM. He was satisfied that it was a suitable sample and same was analyzed. He then waited the standard time before administering a second test which was conducted at 12:28 PM. He advised that the accused was quite chatty and polite and seem to be a quite talkative individual. The second sample was a suitable sample and same was also analyzed by the instrument. He then completed the necessary paperwork including Exhibit #1 which is the Certificate of Qualified Technician. The truncated results of both test was of 170 for the first test and 150 for the second test both measured in milligrams of alcohol per hundred milliliters of blood.

Constable J. Andrews

[22] The third and last witness called by the Crown was Constable J. Andrews. He advised that he assisted with this investigation by waiting with Mr. Rush's motor vehicle for the arrival of the tow truck. Once same was towed to North Bay, he attended the detachment and provided Constable Hardwick with the keys and the information from AMS towing concerning the motor vehicle. He was later requested by Constable Hardwick to attend the tow compound to get the new driver's license from the motor vehicle. At 12:10 AM he arrives at the compound enters the motor vehicle and locates the driver's license in the front pouch of a backpack. He returned to the detachment at 12:23 AM. He photocopied the driver's license and provided same to Constable Hardwick. He confirm that the driver's license was easily found and he only searched the backpack as instructed. Same was in fact found at the exact location that he had been provided with.

Charles Rush

[23] The accused, Charles Rush opted to testify in his own defence. He advises that he is a British citizen and was born in Argentina. He has now been working as an engineer in Canada for the last 10 years. On the date in question, he was travelling to Winnipeg to visit family.

[24] He did confirm that he advised the police that he had stopped in Petawawa for a beer. He advises that he was wrong that it was not Petawawa but rather Mattawa. The beer that was in the motor vehicle was left behind in the passenger seat one hour to 45 minutes more or less prior to the stop.

[25] He confirmed that he did not know why he was stopped. He was only told after. He was made aware of the reason for the stop during the conversation with Constable Hardwick. He realized that he was in troubled when he was advised that he had failed the road side test.

[26] He confirmed that he had a driver's license in his wallet. This original driver's license had an address in Toronto where he lived until late January. He then moved to Ottawa and changed his addressed. He had received the new driver's license that morning however had not yet placed it in his wallet. At the detachment, he was asked to confirm his address which he did. He was asked why it did not match his driver's license. That is when he explained to them that he had a new one. He was asked where it was and he explained that it was in his backpack. He confirms that he was not asked for permission to get it.

[27] After the two Intoxilyzer tests were completed, he returned to his cell. He remained there until the following morning when he was released at 9:10 AM. He then took a cab to a local hotel and took a shower. He then went to the impound yard to retrieve his belongings from the car.

[28] He mentions that he does not recall any conversation about his release after he provided his breath samples. Eventually during the evening, he was provided with some paperwork but is not sure of the time. He mentioned that he felt okay and remained calm throughout. Most of the evening was spent sitting on the bed in the cells. He advised that if he would have been given opportunity, he would've simply gone to a hotel earlier than he did that morning. He mentioned that the last time he spoke to Constable Hardwick is when he was placed in the cell after being served documents. There was no discussions about a plan for release. He also confirmed that a civilian guard would check up on him every half hour or so. The guard would come in, look at him and he would lift his hand and wave at him.

[29] During cross-examination, he confirmed that he did not know anyone in North Bay. He confirmed that he had no one to call if released and he would have simply gone to a hotel and taken a bus. He confirmed that when released, he was going to be alone and had no one to take care of him. During cross-examination, he did confirm that there was a blanket in his cell that he might have laid down on occasion but he did not sleep. He confirmed that he was unable to sleep as the male in the cell next to him was shouting all the time. He confirmed that he remained calm throughout the evening.

[30] He confirmed that during his time in the cell that he was very nervous and scared and not sure what he could ask the police about. He did confirm that he was treated very well but he was never led to believe that he could ask any questions. He clearly repeated once again that there was never any discussions about his release and he was never told of the time of his release.

[31] When questioned about the two driver's licenses, he confirmed that he did not mention same at first as he had forgotten about it. He later advised the police that he had another one in the car in his backpack but never expected that they would in fact go get it.

Charter Application

[32] The original Charter application alleged that there were six issues of concern. At the conclusion of the trial defence counsel confirm that there only remained four issues of concern in this matter:

1. Delays in providing rights to counsel
2. The possibility of mouth alcohol residue at the ASD test
3. There was an illegal search of the backpack for the driver's license
4. There was an over-holding of Mr. Rush

[33] Obviously, if I am satisfied that there has been a breach of any of Mr. Rush Charter rights, a section 24(2) Grant Analysis will also need to be done.

1) Delay in Providing Rights to Counsel

[34] Mr. Engel argues that his client's right to be informed of his right to counsel immediately upon arrest was violated contrary to section 10(b) of the Canadian Charter of Rights and Freedoms. This section creates the right to retain and instruct counsel without delay, and the right to be informed of that right without delay. If a detained person, having been advised of his right to counsel, chooses to exercise that right, the police must provide the detained person with a reasonable opportunity to exercise that right and must refrain from eliciting incriminatory evidence from the detained person until he has had a reasonable opportunity to consult with counsel.

[35] In the case at bar, the police stop Mr. Rush's motor vehicle at 10:29 PM. The investigation proceeded and an ASD test was performed. As he failed this test he was arrested at 10:42 PM. Constable Hardwick testified that he then explained the charge to Mr. Rush. He testified that the accused was entirely co-operative. He in fact requested the opportunity to change his clothing as he was wearing women's clothing. The officer testified that the accused seemed a bit embarrassed with the situation and the officer was doing his best to remain professional under the circumstance. He was insisting on doing it immediately.

[36] Accordingly, the accused was permitted to change and the officer took that opportunity to search the inside of the motor vehicle. The officer testified that the search did not take a long time as it was a small vehicle. The search lasted 1 ½ min. and most of the delay was waiting for him to change his clothes. The accused was eventually placed in the cruiser and his right to counsel where read 10:52 PM. There is therefore a 10 min delay between his arrest and his right to counsel.

[37] In his oral submissions, defence counsel refers me to the decision of R. v. Rochon, [2015] OJ No. 1305. This is a decision from our court which I am obviously not bound by. I do however agree with Justice Lahaie's comment that advising an accused of his rights to counsel should be a priority. In that particular case, she found that a six minute delay from the time of arrest to the rights to counsel was a breach of the accused's section 10(b) rights. The arresting officer did not seem to appreciate that he had an obligation to advise the accused of her rights to counsel without delay. Instead, he chose to advise dispatch of the arrest, request the attendance of qualified technician, request a tow truck, spoke to another Constable and had the accused retrieve her personal belongings from the vehicle. The words used by the Constable was that he had many things to do at the same time before providing the rights to counsel.

[38] The matter at bar is in my view factually different than the Rochon decision. Constable Hardwick's main focus of attention was Mr. Rush. He appeared to be very attentive to details and to the sequence of events. The cause of delay is not because of anything that he wanted to do. The evidence clearly establishes that the delay was largely attributable to the accused own request to change his clothing. The officer in my view properly exercises his discretion in honouring this request and chose to appropriately complete another task such as searching the motor vehicle while the accused changed his clothing.

[39] Every police officer has an obligation to treat everyone that they deal with with dignity, sensitivity and respect. Mr. Rush was polite, compliant and cooperative with the police. The situation was clearly an embarrassing one for Mr. Rush and he was insisting on changing his clothing immediately. In my view, the constable properly exercised his discretion by allowing the accused to change from women's clothing to men's clothing before informing him of his rights to counsel. Accordingly, I find that there is no established breach of the accused section 10(b) Charter rights.

2) Mouth Alcohol Residue and the ASD Test

[40] Defence counsel suggests that his clients ASD samples were not properly obtained and should not have been relied upon given the probability of residual mouth alcohol affecting the results and therefore creating a violation of section 8 Charter rights.

[41] Proper ASD procedures requires that breath samples be done without any residual mouth alcohol. It is alleged that the officer failed to ensure that Mr. Rush did not have any residual mouth alcohol present before taking the ASD sample. Therefore, Constable Hardwick did not obtain a proper ASD sample and therefore lacked the requisite grounds to arrest and detain and demand a breath sample from the accused.

[42] The Supreme Court of Canada examined the issue of mouth alcohol residue in the decision of R. v. Bernshaw, [1995] 1 SCR 256. The basic principles from this decision is that waiting a period of 15 minutes when there is a belief of presence of alcohol in the mouth strikes a proper balance between parliament's objective in combating evils of drinking and driving on one hand and the rights of citizens to be free from unreasonable search and seizures.

[43] This decision has been interpreted many times and matters clearly need to be determined on a case by case analysis. The analysis must be focused on the officer's belief as to the accuracy of the test results and the reasonableness of this belief. Also, the mere possibility that the driver has consumed alcohol within 15 minutes before taking the test does not in fact preclude the officer from relying on the accuracy of the screening device.

[44] The evidence in this matter clearly establishes that the investigating officer did make inquiries about recent consumption of alcohol. In reply to these inquiries, the accused advised that he had drank two beers in Petawawa. The officer estimates that the driving time from Petawawa to their location is between one hour and 15 minutes to an hour and half.

[45] Mr. Rush advised during his testimony that he was incorrect in advising the officer of the location of his last drink. His last drink was in a Mattawa rather than Petawawa. He also mentioned that he was not sure of the exact time of his last drink as he was not keeping track of that, it could have been an hour or 45 minutes more or less. In any event, it is clear that none of this was explained to the officer the night in question.

[46] The facts also reveal that this traffic stop was at 10:29 PM. The ASD sample was taken at 10:42 PM that is two minutes under the 15 minute mark. Constable Hardwick's evidence is that he has been a Qualified Breath Technician since 2003. He is of the view that alcohol will start to dissipate from the breath within 30 seconds. He is aware of the 15 minute benchmark however, same is purposely high in order to make sure. It is his belief that if there would've been recent consumption of alcohol, same would have clearly dissipated within the 13 minutes and waiting an extra two minutes would have changed nothing.

[47] In my view, the officer's belief as to the accuracy of the test are reasonable and the information that the officer had prior to administering the test did not raise any suspicion or reason to wait before administering the ASD test. Accordingly ASD samples were properly obtain and can be relied upon in order to form reasonable and probable grounds to make an appropriate breath demand.

3) Search of Backpack

[48] Charles Rush was arrested at 10:42 PM on the highway between Mattawa and North Bay. He left the scene with Constable Hardwick at 10:56 PM. As already mentioned, while Mr. Rush was changing his clothing, Constable Hardwick searched the motor vehicle incident to arrest. That is when he found a number of both open and closed beer cans. This search lasted approximately a minute and half. Mr. Rush was then placed in the back of the police cruiser where he received his rights to counsel and caution and the formal breath demand was read to him.

[49] Constable Andrews testified that he attended the location of the traffic stop and waited for a tow truck after Mr. Rush left the area with the investigating officer. He followed the tow truck to North Bay and then attended the North Bay detachment so he could provide Constable Hardwick with the keys to the motor vehicle and what he describes as a tow card from AMS towing.

[50] He then advised that he left the area and was requested by Hardwick to return as he needed some assistance. He was advised to go to the tow compound to get the new driver's license of Mr. Rush from the impounded motor vehicle. He arrived and entered the motor vehicle at 12:10 AM and located the other driver's license for Mr. Rush. He left the towing compound at 12:16 AM and return to the detachment at 12:23 where and he photocopied the second driver's license and provided it to Constable Hardwick. He confirmed that he searched the backpack in question as he was instructed and easily found the driver's license in question.

[51] During cross-examination, Constable Andrews was clear that he was following the directives of Constable Hardwick and that he was told nothing about authorization or a warrant. He was simply told an exact location of the driver's license and from this he understood that Constable Hardwick had received authorization from the accused following a conversation with him.

[52] Constable Hardwick testified that it had been brought to his attention that there was possibly a second driver's license. He admitted that he had no notes on the topic but recalls that there was a newer license in his backpack. He later clarified on cross-examination that the search of the backpack was done at the request of Mr. Rush and that he in fact directed them to the driver's license.

[53] During Mr. Rush's testimony, he explained that he had recently received a second driver's license in the mail as he had recently changed his address. It was his impression that it was in his backpack but he actually never saw it. He claims that he was never asked permission to get it. He in fact said during cross-examination that he had no expectation that they would go and get it.

[54] I fail to see how Constable Andrews' search of the backpack was a search incident to arrest. The search incident to arrest was conducted by Constable Hardwick after the traffic stop. The motor vehicle in question had been towed and left at the storage facility. Police do not have the right to return to continue a search without proper authorization.

[55] In this particular case, Constable Hardwick advises that he had permission from Mr. Rush. Mr. Rush's testimony clearly contradicts this. Constable Hardwick is a seasoned police officer and was in fact the shift supervisor that evening. If he in fact had the consent of Mr. Rush to search his motor vehicle, I find it difficult to understand why none of this is mentioned in his notes.

[56] Under the circumstances, I am satisfied that the applicant has established that his section 8 Charter rights were violated when his backpack was searched once his motor vehicle was impounded at AMS towing.

4) Over-holding

[57] The accused submits that his release from custody was not done as soon as practicable and that the resulting over holding is a Charter breach of section 9.

[58] The traffic stop in this matter was at 10:29 PM. Mr. Rush was processed on the side of the road and taken back to the OPP detachment in order to obtain appropriate samples of his breath. The second sample was obtained at 12:28 PM and he was then returned to a holding cell. It appears that the certificate of analyst and other relevant documents were served on the accused at 4:41 AM.

[59] Constable Hardwick advises that he was the acting supervisor that evening and in charge of releasing Mr. Rush. He advised that he had concerns about his blood alcohol readings as they were reasonably elevated. He was also from Ottawa travelling to Winnipeg with no friends or family in the immediate area. He had decided that he would keep him in a cell for him to sober up. He advise that he would be released by the dayshift after 7 AM. Those instructions were allegedly left at the detachment and the constable then left the North Bay detachment for another call at 5:12 AM.

[60] The exact time of release of Mr. Rush from custody is hard to determine. The evidence before the court clearly shows that he was still in his cell at 8:41 AM. Mr. Rush testified that he believes that he was released at approximately 9:10 AM. When this was proposed to Constable Hardwick, he admitted that this could have been possible.

[61] Mr. Rush advises that after he was released, he obtained a taxi and went to a local hotel. He took a shower and then went to the impound yard to retrieve his belongings from his car. He clearly testified that if he would've been given the opportunity and released earlier, he would've simply done the same thing and went to a hotel.

[62] The criminal code contains guiding principles that police officers must respect regarding the release of an accused. It also contains exceptions to the basic rules of releasing an accused. Mr. Rush argues that he did not fall under any of these exceptions as his detention was not necessary in the public interest, that there was no legitimate concerns of the applicant repeating the same offence and that there were no safety concerns at play.

[63] Counsel argue that there are two ways for the court to deal with an over holding issue. Same can either be dealt by way of stay the proceedings or as any other Charter breaches of the Charter with section 24(2) analysis to possibly exclude the breath results. It appears that the test for stay of the proceedings is that same should only be granted in the "clearest of cases". Neither counsel vigorously argued this point and both admitted that this was a difficult test. Under those circumstances, it would not be appropriate for this court to make a long analysis on whether this is an appropriate matter for stay and will simply proceed on the analysis as to whether there has been a Charter breach on this issue.

[64] Section 9 of the Charter provides that everyone has a right not to be arbitrarily detained or imprisoned. Mr. Rush was served with all relevant documents at 4:41 AM and would have been in a position to been released. Constable Hardwick however had some concerns which seem to be mostly driven by the level of impairment of Mr. Rush.

[65] The Intoxilyzer results show that Mr. Rush's blood-alcohol concentration was 150 and 170 mg of alcohol per hundred milliliters of blood on each of these readings. Even though one of these readings is in the statutorily aggravating range, there does not appear to be any evidence of high level of impairment. The simple fact that Mr. Rush was not even charged with impaired operation of a motor vehicle is an indication of same. The evidence from the investigating officer is that his demand for roadside breath sample was based on the smell of alcohol coming from his breath and his statement that he had drank that evening. As already mentioned, Mr. Rush was compliant and extremely cooperative with the police. The investigating officer was unable to form the required grounds for breath demand without the use of an ASD.

[66] Under those circumstances, I fail to see how the level of impairment of Mr. Rush played any factor in determining when he could be released. Even though Mr. Rush was simply travelling through the city, he obviously had a plan on what to do after being released from custody. The detachment that he was at is not in a rural or isolated area. Public transportation and taxis are readily available. Hotels are available within walking distance.

[67] What overly complicated this release was also the fact that the investigating officer who was also the officer in charge of releasing Mr. Rush left the detachment on other Police business. His instructions were to have Mr. Rush released at the beginning of the next shift which was 7 AM. These basic instructions were not even followed as it was past 9:00 AM before he was released. This breakdown in communication between the shifts would have never occurred if Mr. Rush would have been released after the serving of the documents shortly before 5 AM.

[68] For these reasons, I conclude that the applicant has proven that his section 9 Charter rights were violated as a result of this over-holding.

5) Section 24(2) Grant Analysis

[69] Pursuant section 24(2) of the Charter, once a breach has been found, 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. The burden of proof of this is on the applicant on a balance of probabilities.

[70] R. v. Grant, 2009 SCC 32, outlines the test for the exclusion of evidence under section 24(2). A court must assess and balance the effect of admitting the evidence on societies confidence in the justice system having regards to the following three points:

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. The society's interests in the adjudication of the case on its merits.

[71] The first line of inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts as an institution responsible for the administration of justice effectively condoned state deviation from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. It is clear that any Charter breach is a serious matter. However it is important to consider the breach on a scale of seriousness with blatant disregard to someone's Charter rights as being extremely serious.

[72] The section 8 violation in relation to the second search of the motor vehicle is in my view by itself a minor violation. The location in question had already been searched and all that the police were looking for was the second driver's license. Accordingly, this cannot be considered a serious breach.

[73] On the other hand, the violation of section 9 by over holding or delaying the release of Mr. Rush is in my view a very serious breach. Mr. Rush's liberty was taken away from him. This was nothing more than a straight forward drinking and driving investigation and depriving someone's liberty for a number of hours needs to be taken seriously by the court. Another factor to consider is the fact that there are two Charter breaches which when looked collectively adds to the seriousness of the breaches.

[74] Accordingly, I conclude that there were significantly serious Charter breaches in this case and the circumstances of these breaches favour the exclusion of the evidence. This behavior needs to be condoned and a strong message needs to be sent that these type of violations are not to be tolerated.

[75] The second stage of inquiry focuses on the seriousness of the impact of the breach on the Charter protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interest protected by the right infringed.

[76] In the case at bar, the section 8 breach in the search of his backpack in my view had little impact on the accused. The search was done while he was still being processed on the charges and the area search had already been search once incident to arrest.

[77] As for the section 9 violation, it is clear that unjustified imprisonment of someone still presumed to be innocent significantly impacts upon the Charter protected right of non-arbitrary detention or imprisonment. The criminal code provides release procedures for straight forward matters. The delay in implementing these procedures obviously had a significant impact on the Charter protected right and resulted in Mr. Rush being deprived of his liberty. Accordingly, in the circumstances, the impact on this Charter protected right favours the exclusion of the evidence.

[78] The third phase of the test focuses on the society's interest in the adjudication of the case on its merits. Will the truth seeking function of the criminal trial process be better served by the admission or the exclusion of the evidence? The evidence in our case is important and reliable. All drinking and driving cases are serious matters. These factors militate in favour of admitting the evidence.

[79] When I balance all the relevant factors in this matter I am satisfied that the defence has established that inclusion of the Breathalyzer readings given the nature of the violations would bring the administration of justice in disrepute. I will therefore exclude the blood alcohol readings. In order for the public to maintain confidence in the administration of justice, this court must disassociate itself from a breach to such a fundamental right of depriving someone of their liberty.

[80] The conclusion reached on this section 24(2) Grant Analysis is similar to the decision of Justice Hawke in the decision of R. v. Lorenzo, 2016 ONCJ 634, which both counsel referred to in their submissions. I am clearly not bound by this ruling as it is also from this court. However, the facts as I understand the Lorenzo decision are so similar to the case at bar that a proper Grant analysis could only lead to the same conclusion. Both cases relate to an accused charged only with over 80 in what can only be considered a straight forward investigation and the police simply adopting a much too relaxed approach in releasing accused.

[81] The Charter application is therefore granted and Charles Rush is found not guilty on the charge of operation of a motor vehicle having over 80 mg of alcohol per hundred milliliters of blood.

[82] The POA charge of Open Liquor that Mr. Rush pled guilty to should proceed to sentencing.

Released: February 9, 2018

Signed: Justice A.H. Perron