Court File and Parties

COURT FILE NO.: CR-17-94 DATE: 2018/09/10 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Alexandre Menard

Counsel: Elaine Evans, Counsel for the Crown Ian Paul, Counsel for the Accused

HEARD: July 18, 2018

summary conviction court appeal

BEFORE: Leroy, J.

[1] On appeal from the decision of Justice Lahaie of the Ontario Court of Justice on September 21st, 2017, acquitting Mr. Menard of a charge under s. 253(1)(b) of the Criminal Code. The issue is whether Intoxilyzer breath results were properly excluded from the trial, pursuant to s. 24(2) of the Charter of Rights and Freedoms (Charter).

[2] The grounds of appeal are that the trial judge erred in law:

i. By finding the pat down search and placement of the Respondent in the cruiser during the s. 254(2) ASD testing breached Mr. Menard’s ss. 8 and 9 Charter rights;

ii. By finding that by consigning the Respondent to a locked cell pending completion of paper work and video surveillance of his use of the toilet in the cell breached Mr. Menard’s ss. 8 and 9 Charter rights; and

iii. In the s. 24(2) Grant analysis applied leading to exclusion of Intoxilyzer results from evidence at trial.

Standard of Review

[3] Appeals under s. 830(1) are restricted to questions of law and jurisdiction alone. Neither questions of mixed fact and law nor of fact alone are cognizable on appeals under s. 830.

[4] The ultimate question of the admissibility of evidence under s. 24(2) of the Charter is a question of law. Where a trial judge excludes evidence under s. 24(2) on the basis of

i. an error in principle;

ii. a misapprehension of material evidence; or

iii. an unreasonable assessment of the evidence

the exclusion constitutes an error of law: R. v. Harris, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 51; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 42; and R. v. H. (J.M.), 2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29.

The Evidence

[5] Mr. Menard testified on the Charter application. By agreement, his evidence was not applied to the trial proper.

[6] The trial judge made the following findings of fact.

“In the early afternoon hours of April 27th, 2016, Constable Gadbois was assisting with traffic and safety issues at Highway 2 in South Glengarry as there was a house fire in a residential area. He parked his cruiser, facing south towards the river. The accused drove up and motioned to the officer in an attempt to communicate a desire to get into the subdivision.

Mr. Menard was the lone occupant of his vehicle. Constable Gadbois walked to the passenger side of the accused’s car. Mr. Menard spoke to Constable Gadbois but the passenger side window was up. Constable Gadbois shrugged his shoulders to demonstrate that he could not hear him and the accused lowered his window. Constable Gadbois detected an odour of alcohol from the vehicle and noticed that the accused was chewing something.

Constable Gadbois directed the accused to pull over and park his car, moving the pylon to allow him to enter the controlled zone. Mr. Menard began speaking to another driver and then parked as directed.

Constable Gadbois approached the driver’s door and spoke to the accused. He detected the odour of alcohol. Constable Gadbois asked Mr. Menard for his driver’s license, ownership and insurance documents. He also asked the accused if he had consumed any alcohol. The accused advised the officer that he had consumed one beer at home. The documents produced by the accused revealed that he resided at an address which was approximately five to seven minutes away.

Officer Gadbois formed reasonable grounds to suspect that the accused had alcohol in his body once he smelled alcohol on the accused’s breath and Mr. Menard admitted to consumption. He told the accused to step out of his vehicle because he had to assess his sobriety and see if it was safe for Mr. Menard to be driving. When the accused exited his vehicle, the officer noted that the accused’s body was rigid as he straightened out his back. Given the driver’s age, Constable Gadbois did not attribute this to alcohol consumption. In all other respects, the driver’s gait was normal. Constable Gadbois continued to discuss the accused’s consumption with him, stating that he believed he had had more than one beer. The accused admitted that he had just finished his third beer.

Constable Gadbois directed the accused to his cruiser as he explained to the accused that he would have to go through a breath test. Constable Gadbois conducted a pat-down search prior to placing the accused in the back of his locked cruiser. Constable Gadbois testified and the Court accepts that Mr. Menard was seated in the back seat of his locked cruiser within two minutes of his first interaction with him, which places this moment in time at 13:54. At this point, Constable Gadbois’ relevant observations were limited to the odour of alcohol on the accused’s breath and his admission that he had consumed three beers. When Mr. Menard was seated in the back seat of the cruiser, Constable Gadbois continued to informally explain to Mr. Menard that he would have to provide a breath sample. I accept the evidence of the accused that he was stunned and upset when he was seated in the back seat of the cruiser.

Mr. Menard told the officer that he had been on his way to his aunt’s house as there was a fire nearby and he was trying to help her. Constable Gadbois had initially noticed that the accused had a candy in his mouth and that Mr. Menard had crunched it. He decided to wait 15 minutes before proceeding with the breath testing as there might be residual alcohol and he was concerned that the consumption of food might also alter the results. The officer did not make a note that he explained why he would be waiting 15 minutes to the accused. I accept the evidence of the accused on this point and find that the officer did not explain to Mr. Menard why he was delaying testing.

The officer placed Mr. Menard in his locked cruiser for the breath testing because this is the officer’s preferred location to administer the ASD testing, given that it is a controlled environment. Constable Gadbois initially testified that this is his preferred location because the ASD is stored there and “the temperature in the car is good” but there were no temperature issues that day which would have affected the testing. I find that the officer conducts the testing in this fashion because it is more “practical”, in his view, to detain individuals in his cruiser to perform breath tests.

At 1400 hours, Constable Gadbois issued the formal demand, using his force-issued card. The officer and the accused spoke as they waited.

At 14:06, Constable Gadbois provided his own breath test and demonstrated the use of the approved screening device to Mr. Menard. The officer was satisfied that it was in proper working order. The officer then provided the device to the accused and directed him to provide a breath sample. Mr. Menard registered a “fail”. At 14:09, Constable Gadbois arrested the accused for operating a motor vehicle with a blood alcohol concentration over 80 milligrams. He immediately read the accused his rights to counsel. He read the caution at 14:10. At 14:11, the officer read the demand pursuant to s.254(3) from his card. The officer and Mr. Menard spoke to each other in both French and English throughout the investigation. Mr. Menard was polite and cooperative throughout. He told the officer that he understood his rights and caution and that he preferred to speak with a free lawyer.

At 14:16, Constable Gadbois was relieved by Officer Latreille at the scene. Constable Gadbois drove with the accused to the Long Sault detachment of the OPP, arriving at 14:37. Mr. Menard spoke with a lawyer from 14:44 to 14:51. Constable Gadbois provided his grounds to Detective Constable Dussault, a qualified technician, while the accused spoke with his lawyer. At 15:00, the accused was turned over to Officer Dussault. There are no issues with the sequence of events which unfolded with Constable Dussault. The accused provided two suitable samples of his breath directly into the Intoxilizer 8000C, each sample registering readings of 100 milligrams of alcohol in 100 millilitres of blood at 15:00 and 15:24.

Custody of Mr. Menard was returned to Constable Gadbois at 15:27. The accused told Constable Gadbois that he had to use the washroom facilities. Constable Gadbois placed the accused in a cell, explaining to Mr. Menard that he could turn his body a certain way to avoid having the cameras videotaping his genitals as he urinated as he was being videotaped. The officer completed his paperwork for approximately 45 minutes. Constable Gadbois served the usual documents and notices on the accused at 16:15 and Mr. Menard was then released.

Before I turn to the issues raised by counsel, I note that I found the accused to be a credible witness. He had no criminal history. He provided his evidence in a fair and candid fashion.”

[7] Justice Lahaie accepted that Mr. Menard was stunned and upset as the result of being frisked, locked in the cruiser within minutes of the encounter, placed in cell for forty-five minutes and realizing he was under surveillance when he urinated.

Charter breaches identified by the trial judge

[8] The trial judge concluded that the officer breached Mr. Menard’s s.8 and s.9 Charter rights when he conducted a pat-down search of Mr. Menard’s body and then detained Mr. Menard in the back of the cruiser in the circumstances that:

i. the officer’s state of mind was no more than reasonable suspicion of operation of a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood,

ii. Mr. Menard was cooperative, officer safety was not a discernible issue and,

iii. the officer neglected to consider whether detention in the cruiser and the prelude pat-down were reasonably necessary in the circumstances.

[9] That the officer had valid grounds to detain is not contentious. The issue is with the manner in which it was carried out.

[10] The Court is to consider the importance of the duty being performed, the nature of the liberty being interfered with and the extent of the interference and seek a proper balancing of the competing interests.

[11] Justice Lahaie properly concluded that she was to assess whether detention in the cruiser for the ASD test was reasonably necessary in all the circumstances. The question is whether he was justified in exercising it as he did in the circumstances of this case. The officer is expected to impose a level of detention that intrudes on the suspect’s freedom and privacy as little as possible having regard to all the circumstances. Knowing that entering the cruiser entailed a pat-down search, detaining the suspect in that manner had to be reasonably necessary.

[12] Conceptually, detention is dynamic rather than static. In R. v. Aucoin, 2012 SCC 66, Mr. Justice Moldaver wrote that in the context of a straightforward motor vehicle infraction, it will be the rare case in which it will be reasonably necessary to secure a motorist in the rear of a police cruiser. But where reasonable necessity exists, no further balancing is required.

[13] The stops in Aucoin and R. v. Azarnush [2016] O.J. No. 3248 related to highway traffic infractions. The Courts in both cases concluded that detention in the cruiser was unnecessary and accordingly arbitrary. The officer in Azarnush formed the grounds for an ASD demand after detaining the accused in the cruiser for fifteen minutes. The evidence was excluded.

[14] Some Courts characterize the placing of the suspect in the cruiser as more than investigative detention, rather custody and de facto arrest and eschew the notion that this elevated detention is the kind of momentary detention sanctioned in R. v. Mann, [2004] SCR 59 – R. v. Christianson 2017 SKPC 45

[15] The evidence is that the officer preferred to conduct the ASD test in the cruiser. He did not consider less intrusive options. The officer did not factor the suspect’s risk to officer or public safety into his subjective belief in the merit of elevating the detention to the cruiser. The inference is that the officer in the case at bar predetermined for all such situations that the ASD test is to be taken in the cruiser. He did not hold a subjective belief in any individual case, rather a predetermined belief in every case. Mr. Menard was in the cruiser for 12 minutes before the ADS test was applied.

Conclusion

[16] Justice Lahaie addressed the correct question and her conclusion that the officer’s act of directing Mr. Menard to the locked back seat of the cruiser for officer convenience without factoring all the circumstances breached Mr. Menard’s s. 9 right is not an error in principle, a material misapprehension of evidence or an unreasonable finding. This ground of appeal fails.

The pat-down search

[17] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Mr. Menard confirmed his subjective expectation of personal privacy. The objective or reasonable expectation of privacy is a normative rather than descriptive standard. The privacy interest protected by s. 8 include personal privacy (our bodies), territorial privacy (our places) and informational privacy (information about a person’s activities and identity).

[18] A warrantless search is presumed unreasonable unless the Crown can demonstrate, on a balance of probabilities, that the search was authorized by a reasonable law and carried out in a reasonable manner – burden on the Crown.

[19] The expectation of privacy is protean. A person’s reasonable expectation of privacy diminishes as officer’s reasonable grounds develop. Officer safety is the declared justification for the pat-down as prelude to placing the suspect in the locked cruiser.

[20] An officer is authorized to conduct a protective safety search incidental to a lawful investigative detention where an officer believes, on reasonable grounds, that his or her own safety, or the safety of others, is at risk, and the search is reasonably necessary in light of the totality of the circumstances. The officer must have an honest belief in the risk to his and others' safety and there must be objective grounds, based on all of the known facts and circumstances, from which reasonable inferences can be drawn to support the officer's subjective belief. A search will not be justified if it is based on "a vague or non-existent concern for safety... [or] premised upon hunches or mere intuition.” – R. v. Mann, [2004] 3 SCR 59, 2004 SCC 52.

[21] In R. v. Aucoin, Justice Moldaver after concluding that the increased restriction on the suspect’s liberty interests by placing him in the rear of the cruiser required an unmet standard of reasonably necessity characterized the pat-down search which affected his privacy interests as an aggravating factor.

[22] Justice Moldaver distinguished situations when the decision to secure the appellant in the cruiser was lawful. He distanced himself from endorsing the minority’s view that the police required “reasonable grounds” to believe officer or detainee safety was at risk in order to pat-down.

[23] The concern for front line officers relates to vulnerability within the confined space of the cruiser so a weapon pat down becomes prerequisite to the in-cruiser breath sample. Barring grounds for elevating detention to within the cruiser – suspect behaviour/misbehaviour, inclement weather, highway and traffic considerations and the like, a pat-down search will not be justified as it is based on a vague or non-existent concern for safety or premised upon hunches or mere intuition.

[24] A police officer who fails to address the specific circumstances of the individual person detained fails to consider all the circumstances. The right to search does not impose a duty to do so. The officer confirmed that a pat-down search is what he does to everyone he places in his vehicle as an officer safety issue. The pat-down search is an aggravating factor in terms of police conduct.

[25] The trial judge concluded there was no objective reason to subject Mr. Menard to a pat-down search. Ms. Evans conceded that the pat-down search breached Mr. Menard’s rights to be free of unreasonable search.

[26] The conclusion that the officer overstepped by subjecting Mr. Menard to a pat-down search is not an error in principle, a material misapprehension of evidence or an unreasonable finding. This ground of appeal fails.

The issue of whether the consignment of Mr. Menard to a cell after the breath testing procedure and the video observation when he urinated on camera breached his s. 8 and s. 9 rights.

[27] The trial judge identified two Charter breaches in her analysis. The defence application for Charter relief at trial identified the on-camera video surveillance of Mr. Menard urinating in the cell as an unreasonable search – s. 8. The defence position at trial was that this breach was part of the chain of events between the accused and police, part of the same transaction and the connection between the evidence – Intoxilyzer results and the breach was sufficiently temporal and contextual to impact on the s. 24(2) analysis.

[28] The trial judge determined that detention in a locked cell, after the breath test while the officer completed the necessary paperwork in all the circumstances was not reasonably necessary and amounted to arbitrary detention. That aspect was not raised by defence at trial. The trial judge raised this issue after the Crown closed its case. The Crown submits this was procedurally unfair. If that issue had been before the court, Crown counsel would have adduced evidence to explain why Mr. Menard was placed in a cell as he was and why he was not directed to a public washroom in the detachment.

[29] The trial judge rejected the Crown submission to the point there are competing concerns for ensuring safety and the need to monitor the accused and the accused’s privacy interests. She was persuaded there were no safety issues or need to monitor the accused while the officer completed paper work.

[30] Whether consigning Mr. Menard to the cell amounted to another breach of his s.9 rights under the Charter or not is an open question without evidence relevant to whether it was reasonably necessary to do so.

[31] The right to a fair hearing requires that parties should not be penalized by decisions affecting their legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it and the opportunity to present their own case.

[32] Ms. Evans submits it is impossible to extricate this conclusion from the section 24(2) analysis and reasons to exclude the breath tests. Mr. Paul submits the decision to exclude could be founded on the other Charter-infringing conduct without reference to or reliance on this one. Even when the Appeal Court finds an error of law, it will dismiss the Crown’s appeal rather than overturn an acquittal, unless the Crown can demonstrate that the errors were ones of real consequence in the context of the particular case.

Conclusion

[33] The Crown was denied procedural fairness on this Charter ground. My s. 24(2) analysis renders the point moot.

Video surveillance of Mr. Menard urinating following the breath test

[34] Mr. Menard was under arrest at the time. His reasonable expectation of privacy was diminished but not exhausted. He had the presumption of innocence.

[35] The trial judge accepted that the officer showed Mr. Menard how to angle his body as he voided to avoid exposing his genitals to the camera. She accepted Mr. Menard was concerned by the encroachment on his personal privacy and integrity interests inherent in the surveillance camera operation while he urinated.

[36] The trial judge concluded it was not reasonably necessary to have Mr. Menard use the toilet in the cell rather than another washroom. She wrote “the treatment of the accused at this stage is consistent with the officer’s decision to favour convenience over the accused’s liberty and privacy interests.”

[37] The parties offered jurisprudence on the issue. The competing interests are suspect safety, preservation of evidence against core human dignity and bodily integrity, albeit in a significantly reduced reasonable expectation of privacy inherent in an arrest scenario. There was no evidence that anyone actually observed the act.

[38] The video surveillance was not recorded. In that context, the only purpose for surveillance could be prisoner safety. Without recording, the video offers no value in the context of assessing prisoner or officer misconduct or preservation of evidence.

[39] The upshot is that this form of intrusion can be treated as a breach of the s. 8 Charter right to be free of unreasonable search. Other Courts have, on the evidence, concluded that unauthorized video surveillance is not a s. 8 breach. Various police services have devised means to protect privacy and security – screens, different camera angles, pixilation of the pertinent corner of the screen. In this case, the officer instructed Mr. Menard how to avoid exposure of his genitals in the act of urinating.

Conclusion

[40] The conclusion that the surveillance of Mr. Menard in the act of urinating unreasonably encroached unreasonably on his personal privacy interests is not an error in principle, a material misapprehension of evidence or an unreasonable finding. This ground of appeal fails.

24(2) Charter

[41] Subsection 24(2) provides “Where 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”.

[42] Justice of Appeal Watt summarized the governing principles in R. v. Manchulenko, 2013 ONCA 543, beginning at paragraph 87 as follows:

“[87] The principles governing our decision on this ground of appeal are uncontroversial and of recent authoritative statement. A few brief references are sufficient for our purposes.

[88] First, when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to

i. the seriousness of the Charter-infringing state conduct;

ii. the impact of the breach on the Charter-protected interests of the person charged; and

iii. society’s interest in the adjudication of the case on its merits.

Grant, at para. 71. The court’s role is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71. Section 24(2) eschews bright line or per se rules in favour of a contextual, fact-specific assessment.

[89] Second, among the lines of inquiry, there are no axioms or fixed relations.

[90] State conduct resulting in Charter violations varies in seriousness from the inadvertent and minor to the wilful and reckless, and to all points in between. Extenuating circumstances, such as the need to preserve evidence and good faith, may attenuate the seriousness of the underlying conduct that results in the breach: Grant, at paras. 74-75.

[91] Likewise, the seriousness of the impact of the Charter breach on an accused’s Charter-protected interest may vary from the fleeting and technical to the profoundly intrusive, passing several other stops along the way. Courts look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests: Grant, at paras. 76-77.

[92] The third line of inquiry reflects society’s expectation that criminal allegations will be adjudicated according to their merits. The public interest in truth-seeking is relevant under s. 24(2). The reliability of the evidence obtained by Charter infringement is an important factor. So too, is the significance of the evidence to the case for the Crown: Grant, at paras. 79-81 and 83.

[93] Section 24(2) eschews presumptive rules. No overarching rule governs how the balance is to be struck. Each case requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or of admission. Despite the requirement that each case requires consideration according to its own factual matrix, 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: Grant, at para. 111.”

[43] The trial judge correctly identified the three-pronged test. She concluded:

i. the state-infringing conduct included multiple breaches which viewed cumulatively were serious and the officer’s ignorance and disregard for the accused’s rights militates in favour of exclusion of the readings;

ii. Despite the fact that breath testing is viewed as minimally intrusive, the officer’s actions made this investigation far more intrusive than it had to be, significantly impacting Mr. Menard’s liberty and privacy interests, so this branch of the analysis militates in favour of excluding the breath results;

iii. Society’s interest in the adjudication of the case on its merits militates in favour of inclusion of the breath results; and

iv. On balance the breath results should be excluded.

[44] In my view, applying the governing deferential standard of appellate review, with all due respect, the trial judge reached the wrong conclusion in relation to the admissibility of the Intoxilyzer results of Mr. Menard’s breath samples under s. 24(2) of the Charter. I conclude that the trial judge erred in principle and made an unreasonable conclusion with respect to the impact of the Charter violations she identified on Mr. Menard’s protected Charter interests that improperly distorted the balancing exercise.

Seriousness of the State Conduct

[45] The Court must consider whether admitting the evidence would send the message to the public that Courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for Courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other. Good faith will also reduce the need for the Court to dissociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of evidence. If the Charter infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75.

[46] As noted, the trial judge concluded that the seriousness of the Charter violation by the police in the present case weighed in favour of exclusion of Intoxilyzer evidence. That conclusion is not an error in principle, a material misapprehension of evidence or an unreasonable finding.

[47] The up-front practice of automatic-increased restriction on suspect’s liberty by placing the suspect in the cruiser to affect the ASD test and the encroachment on the suspect’s privacy interest arising from the automatic pat-down search do not honour the reasonable necessity standard. The investigating officer is expected to have an explanation to support the reasonable necessity on a case-specific basis for the manner of intrusions on privacy and elevation of detention.

[48] That said, the true gravity of these constitutional violations is relatively minor. The trial judge disclaimed officer bad faith. Rather, the officer’s fault was that of asserting his convenience over Mr. Menard’s rights.

[49] The officer was doing his job and understood he was following local practice in the application of the ASD test. He processed all such tests in the cruiser and subjected all suspects to the preliminary cursory pat-down. Although his motives were benign, as Justice Moldaver put it, the pat-down in the context of unnecessary increase in restriction on liberty was aggravating.

[50] To the extent the consignment of Mr. Menard to the cell while the office completed charge and release paper work might not have been reasonably necessary (an open question), in all the circumstances, the same considerations apply.

[51] The officer advised Mr. Menard of the camera and provided instruction to minimize the intrusion while urinating.

[52] In terms of where the state conduct in this case fits on the seriousness spectrum, it is closer to the minor end than the wilful and reckless end.

[53] I agree with the trial judge that the first prong of the required analysis under s. 24(2) of the Charter tends to favour exclusion of the Intoxilyzer results of the respondent’s breath samples.

Impact of the Charter Violations on the Accused

[54] The more serious the state incursion on protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. The task is to assess the extent to which a breach undermines the Charter-protected interests of the accused. The more serious the impact on constitutionally-protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The Courts must examine the interests engaged by the infringed Charter right and consider the degree to which the Charter violation impacted those interests.

[55] The trial judge concluded that the impact of the Charter violations on Mr. Menard’s protected Charter was “significant” and favoured the exclusion of the Intoxilyzer results. I respectfully disagree.

[56] The Charter violations at roadside and the violation or violations at the detachment may, in theory, be fairly considered on the impact issue.

[57] There was the necessary link or nexus between the Charter violations by the police and the police gathering of the respondent’s breath samples, as the ASD/Intoxilyzer results were obtained after the initial Charter violations and was part of the subsequent chain of events. Accordingly, the Intoxilyzer results could be described as having been “obtained in a manner” that infringed or denied the constitutional rights of the accused, thereby triggering the operation of s. 24(2) of the Charter – R. v. Pino, 2016 ONCA 389. Further, if the Court is concerned with responding to serious violations there is no reason why evidence discovered before a violation should not be considered for exclusion – emphasis added.

[58] The Court in Pino at paragraph 72 concluded that the following considerations should guide a Court’s approach to the “obtained in a manner requirement:”

• The approach should be generous, consistent with the purpose of s. 24(2);
• The court should consider the entire chain of events between the accused and police;
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
• The connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
• But the connection cannot either be too tenuous or remote.

Causal connection

[59] However; as Justice Campbell wrote in R. v. Singh, 2016 ONSC 1144 beginning at paragraph 48:

“That preliminary conclusion did not, however, exhaust the legal relevance and potential importance of any causal connection (or lack thereof) between the Charter violations and the police obtaining the Intoxilyzer results of the respondent’s breath samples. In my view, any such potential causal connection (or lack thereof) ought to have been taken into account by the trial judge in assessing the impact of the Charter violation on the accused. Just as a strong causal connection between the Charter violation and the police obtaining of the impugned evidence will tend to favour the exclusion of the evidence, a weak or non-existent causal connection between the Charter violation and the state securing of the impugned evidence will militate in favour of the admission of the evidence. As the Supreme Court of Canada indicated in R. v. Grant, at para. 122, assessing “the strength of the causal connection” between the Charter-infringing conduct and the impugned resultant evidence “retains a useful role” under s. 24(2) of the Charter in “assessing the actual impact of the breach on the protected interests of the accused.” See also R. v. Furlotte, 2010 NBQB 228, 364 N.B.R. (2d) 69, at para. 51; R. v. McLaren, [2015] O.J. No. 6412 (C.J.), at paras. 38-44.

[49] Moreover, the failure of the trial judge to consider the absence of any causal relationship between the s. 8 Charter breach and the police securing the respondent’s breath samples for purposes of analysis, meant that the trial judge failed to consider “all the circumstances” of the case, as required by the express language of s. 24(2) of the Charter.”

[60] In the factual circumstances of the present case, while there is a temporal connection between the Charter violations and the ASD/Intoxilyzer results of the respondent’s breath samples, there is no causal connection. They were collateral to marshalling of the evidence.

[61] Mr. Menard was properly subject to an investigative detention from the moment the officer learned Mr. Menard was driving with alcohol in his body. That the officer had the requisite ASD grounds is unchallenged. The ASD process was conducted in the context of an investigative detention in accordance with the Criminal Code and buttressed RPG and the Intoxilyzer breath demand.

Breath Test Procedure

Au-Yeung review

[62] In the Au-Yeung line of authority, now discredited, the trial judge considers 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 detention. In this case, it would include the respondent’s being placed in the back of a police cruiser, the pat-down and transportation to the detachment, detention there for a substantial period of time and the unapproved video surveillance.

[63] Even in the Au-Yeung analysis, the factual comparison pales. The stop, detention and arrest in R. v. Mann, 2018 ONSC 1703 were illegal from the beginning. The officer in R. v. Au-Yeung, 2010 ONSC 2292 did not have reasonable and probable grounds to arrest or to demand an Intoxilyzer breath sample as he did not perform the ASD self-test, did not check when the device was last calibrated, did not know how to read the device, had not trained on the device for 22 years and could not confirm that he had used the device properly. In those cases, there was direct causal connection to the evidence sought to be excluded that tended to elevate the seriousness of the impact of the breaches in the eyes of those Courts.

Impact on privacy interest

[64] The pat-down was brief, over his clothes and minimally intrusive on his personal privacy and dignity. Although Mr. Menard’s reasonable expectation of privacy was reduced, he was reasonably entitled to not be subjected to a cursory pat-down search and to the option of the ASD test on the street or with the cruiser door open or as it happened. No evidence was discovered as the result. We consent to more intrusive pat-down searches every time we enter an airport.

Increase in restriction in the detention

[65] Although the manner of detention was elevated without reasonable necessity when Mr. Menard was placed in the locked cruiser, thereby making a lawful detention technically arbitrary in the context of manner of detention, he was nonetheless legally detained and subject to the rigour of an ASD test. In the circumstances, namely a cooperative senior citizen with a clean record he reasonably expected the option of taking the test in the cruiser or next to it or with the door open. In every other aspect of the detention, the officer maintained courtesy and respect toward Mr. Menard. No evidence that was not otherwise available was discovered as the result. The ASD fail meant reasonable grounds to arrest, breath demand and travel in the cruiser to the detachment.

The Video Surveillance

[66] Mr. Menard was fully clothed as he urinated. So far as can be known, his back was to the camera so no part of his genitals was observed by anyone. He was not recorded. It is unclear whether he was observed by anyone.

[67] This was the most innocuous way in which the respondent’s rights under s. 8 of the Charter could have been violated, and it could have had, but a negligible impact upon his privacy interests. In R. v. Fletcher, at para. 39, and R. v. Bondy, at paras. 58-70, the Courts concluded, in similar circumstances, that there was no Charter violation at all.

[68] Justice Campbell’s analysis in Singh, beginning at paragraph 41 is apropos.

[41] Consideration of this prong of the analysis under s. 24(2) of the Charter requires the application of some practical perspective. Every day, in public washrooms across the country, men regularly engage in precisely such mundane bodily functions, fully clothed but similarly in full view of any number of random male strangers who might coincidentally find themselves in similar need of such facilities at the same time. This common feature of mankind can be readily seen in all manner of public facilities, including public washrooms in restaurants, government buildings, schools, movie theatres, concerts, and sporting events. Indeed, it is hard to imagine how being observed from behind, fully clothed, engaged in such a mundane but common and regular bodily function could have caused the respondent any “significant” measure of embarrassment, humiliation, or shame.

[42] In cases where the evidence has been properly excluded under s. 24(2) of the Charter, the impact upon the accused has been far greater, with the video recordings of their washroom activities capturing much more intrusive images of the naked private body parts of the accused. See, for example, R. v. Smith, [2015] O.J. No. 3828 (C.J.), at paras. 70-75, 104, 132-135; R. v. Joseph, 2014 ONCJ 559, 322 C.R.R. (2d) 6, at paras. 20-21, 42. Those types of cases stand in marked contrast to the factual circumstances disclosed in the present case.

[59] In R. v. Griffin, 2014 ONCJ 204, confirmed on appeal 2015 ONSC 927, the female accused was similarly charged with “drinking and driving” offences. While detained in a cell in the police station, she was videotaped using the toilet facilities. She expressed a desire to use other more private facilities, but that request was denied. Thereafter, she pulled up her dress, pulled down her underwear, sat on the toilet seat and urinated. Her naked upper right buttock was momentarily exposed and visible when she pulled down her underwear. Her upper right thigh was visible while she was urinating. When she was finished, she wiped herself with toilet paper, stood up, quickly pulled up her underwear, and pulled down her dress. Accordingly, there was a greater invasion of the privacy interests of the accused in Griffin than in the present case.

[60] The trial judge in Griffin, M. Speyer J., concluded that this was a violation of s. 8 of the Charter. She declined to exclude the evidence of the accused’s Intoxilyzer results under s. 24(2) of the Charter. In relation to this latter issue, the trial judge concluded, at paras. 46-52: (1) that the Charter-infringing conduct of the police was “not serious” given that the policy of “recording all activity in the cells” was “based on sound public policy principles,” and the police “acted in good faith and in accordance with well-founded safety policies that were in place at the time”; (2) the state's misconduct “did not significantly impact” on the Charter-protected rights of the accused, but rather had a “negligible” impact, given that the accused “exposed as little of herself as possible” and the camera captured the image of her “bare buttock for only a fleeting moment”; and (3) the public had a strong interest in an adjudication on its merits, given the “carnage caused by drinking and driving,” and the Intoxilyzer test results were presumptively reliable and essential to the Crown’s proof of the “over 80.” Ultimately, in considering all of the Grant factors, Speyer J. was satisfied that the admission of the breath test results would not bring the administration of justice into disrepute.

[69] With the benefit of the officer’s instruction, the camera had little impact upon Mr. Menard’s privacy and dignity interests.

R. v. Jennings, 2018 ONCA 260

[70] The respondent’s breath samples were collected for analysis by means of an “approved instrument” within the meaning of s. 254(1) of the Criminal Code.

[71] The other 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. Jennings, 2018 ONCA 260, R. v. Marchi, 2016 ONCJ 757. In Marchi, Justice O’Donnell explained that even if the officer in that case did not have the grounds to demand a breath sample – as in Au-Yeung – the procedure involved in the collecting and analysing breath samples is minimally intrusive in a physical sense and the information gleaned is far from the biographical core of personal information protected by s. 8 is admissible. His reasoning suggests that minor Charter breaches along the path concluding with the Intoxilyzer test are of little influence on this aspect of the 24(2) analysis.

[72] The ONCA in Jennings concluded that the Au-Yeung approach creates a categorical rule that s. 8 breaches in breath sample cases automatically favours 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.

[73] Although the Court in Pino brings such Charter breaches collateral to the trail of evidential discovery into the 24(2) analysis, barring a serious breach of rights from which the court feels the need to dissociate or serious impact on the accused’s Charter-protected rights the cogency of these breaches vis-à-vis this part of the Grant 24(2) analysis, falls by the wayside given the singular focus on the minimal intrusiveness in a breath sample and sound reliability of the Intoxilyzer results.

[74] It is my view as well that even if the cell detention pending the completion of charge and release document proved to be not reasonably necessary in all the circumstances, it is similarly a non-factor in the s. 24(2) analysis – Jennings.

[75] In summary, the Charter violations by the police in the present case had a slight impact upon the respondent’s interests and the exclusion of Crown evidence was disproportionate, essentially fatal to the Crown case. Accordingly, the second prong of the analysis under s. 24(2) of the Charter, favours the admission of the evidence of the Intoxilyzer results of the respondent’s breath samples. The trial judge erred in unreasonably reaching the opposite conclusion.

The Importance and Reliability of the Evidence to a Trial on the Merits

[76] Justice Campbell in Singh at paragraph 53 articulated the governing principles as well as anyone when he wrote:

Under the third avenue of Grant inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court is obliged to consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. Naturally, the reliability of the evidence is an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor that must be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84. As the Supreme Court of Canada noted in R. v. Grant, at para. 110, this third area of inquiry under the governing s. 24(2) analysis “will usually favour admission in cases involving bodily samples,” as such evidence is generally reliable and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission of the evidence.

[77] The trial judge correctly observed that the Intoxilyzer results of the respondent’s breath samples were reliable evidence, and that “drinking and driving cases” continue to present a serious danger to our communities and users of roadways, and that society has a great interest in seeing such matters tried on their merits.

[78] The trial judge correctly concluded, this third aspect of the governing analysis under s. 24(2) of the Charter favours the admission of the crucial and reliable Intoxilyzer analysis of the respondent’s breath samples.

Conclusion

[79] As noted earlier, Section 24(2) eschews presumptive rules. No overarching rule governs how the balance is to be struck. Each case requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or of admission. Despite the requirement that each case requires, consideration according to its own factual matrix, 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 is admitted: Grant, at para. 111; Jennings.

[80] The seriousness of the state conduct was at the inadvertent and minor end of the spectrum. That said, moving forward, it should be addressed. The officers are expected to assess reasonable necessity for each elevation in restriction along the detention spectrum.

[81] The police violation of the respondent’s rights under s. 8 and 9 of the Charter had negligible impact on the respondent’s Charter protected interests, not a “significant” impact upon those interests. The connection was temporal and not causal. The Court was not asked to respond to serious temporal rights violations. The evidence is the result of a legitimate breath sample request. The test itself is not intrusive. The inconveniences inherent in a traffic stop turned drinking and driving investigation are recognized by the informed public who only desire to drive on the highway without undue concern for impaired drivers.

[82] The community has strong interest in the trial of drinking and driving cases on their merits, Intoxilyzer test results are presumptively reliable, the evidence was essential to the Crown’s case on the “over 80” charge.

[83] In my view, properly balancing these factors against the background of all of the circumstances of this case, exclusion of the Intoxilyzer results of the respondent’s breath samples from the trial pursuant to s. 24(2) of the Charter would bring the administration of justice into disrepute and the trial judge erred in reaching the contrary conclusion.

[84] Accordingly, the acquittal on the s. 253(1)(b) charge is set aside and the matter is remitted back to the Ontario Court of Justice for a new trial.

The Honourable Mr. Justice Rick Leroy Released: September 10, 2018