COURT FILE NO.: CR-24-10000019-00AP DATE: 20241211
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
BETWEEN:
His Majesty the King Appellant – and – Jose Carlos Tavora Respondent
Counsel: William Thompson, for the Appellant Matthew Morley, for the Respondent
HEARD: September 18, 2024
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
NISHIKAWA J.
Overview and Background
[1] The Appellant, Jose Carlos Tavora, appeals his conviction for impaired operation of a conveyance and driving with a blood alcohol level over 80 mgs/100 mL, contrary to ss. 320.14(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46.
[2] At trial, the Appellant argued that his rights under ss. 7, 8, 9, 10(a), 10(b) and 11(d) of the Canadian Charter of Rights and Freedoms (the “Charter”) were breached. The Charter application was dismissed. The Appellant does not appeal the dismissal of his claims under ss. 7 and 11(d) of the Charter.
[3] The Crown conceded that Mr. Tavora’s rights under s. 8 of the Charter were breached because the arresting officer did not have an approved screening device (the “ASD”) on scene when he made the demand for a breath sample. The concession was based on the Supreme Court of Canada’s decision in R. v. Breault, 2023 SCC 9, 481 D.L.R. (4th) 195, which was decided after the Appellant’s arrest but before the trial. In Breault, the Supreme Court held that because of the requirement to provide a breath sample “forthwith” under s. 254(2)(b) (now 320.27(1)(b)) of the Criminal Code, a demand for a sample made cannot be presumed to be valid in the absence of an ASD on scene.
[4] In his Reasons for Judgment dated January 25, 2024 (the “Reasons”), Javed J. (the “trial judge”) found that the breach of Mr. Tavora’s s. 8 rights resulted in further “consequential” breaches of his rights under ss. 9 and 10(b) of the Charter. However, the trial judge declined to exclude the evidence under s. 24(2) because he found that the officer had made a “single misstep premised on a good faith and reasonable error” based on a change in the law after the investigation. The Appellant was convicted of both offences.
[5] Mr. Tavora appeals on the basis that the trial judge committed the following errors:
(i) Finding that the Appellant was detained when he was placed in the police car (4:34 p.m.), rather than earlier at the roadside (4:26 p.m.);
(ii) Failing to find that the officer made an invalid ASD demand;
(iii) Failing to find that the officer did not administer the ASD test forthwith based on the law at the time of the investigation (pre-Breault);
(iv) Failing to account for two additional breaches: (a) the breath samples taken at the police station were an unreasonable seizure under s. 8 because they were provided pursuant to an invalid demand; and (b) the roadside arrest for driving with a blood alcohol content (BAC) of 80mg/100mL or greater was an arbitrary detention under s. 9 because the officer did not have sufficient grounds to arrest without a valid ASD result; and
(v) Determining that the ss. 9 and 10(b) breaches ended once the ASD arrived.
[6] For the reasons that follow, I dismiss the appeal.
The Trial Judge’s Reasons
[7] The parties agreed to a blended hearing of the evidence on the ss. 7 and 11(d) issues and trial. The Crown called as witnesses the arresting officer, Police Constable Brian Porcel, and the civilian who called 911, Michael Trottier. Mr. Tavora testified on the ss. 7 and 11(d) Charter issues but not on the ss. 8, 9 and 10(b) issues.
[8] In brief, the evidence was that at approximately 4:23 p.m. on March 3, 2023, Mr. Tavora was investigated by Police Constable Brian Porcel of the Toronto Police Service (the “TPS”) after receiving a 911 call about a driver slumped over the wheel in his vehicle in a live lane of traffic. When the officer arrived, the individual, Mr. Tavora, was being attended to by paramedics.
[9] The ASD arrived at 4:42 p.m. At 4:47 p.m., Mr. Tavora provided a suitable sample. A fail result was registered at 4:48 p.m.
[10] The trial judge found, based on the Crown’s concession, that the arresting officer’s approved screening device demand pursuant to s. 320.27(1) Criminal Code was unlawful and in violation of Mr. Tavora’s rights under s. 8 of the Charter. The trial judge further found that the s. 8 breach led to “consequential” breaches of ss. 9 and 10(b). In respect of the s. 9 breach, the trial judge found that the Appellant was unlawfully detained for approximately 10 minutes between 4:34 p.m. when PC Porcel directed him to sit in the back of the cruiser and 4:44 p.m. when the ASD arrived. The trial judge rejected the Appellant’s position that he was detained from the moment he began to interact with PC Porcel.
[11] The trial judge rejected the defence’s argument that Mr. Tavora’s rights under s. 10(a) were breached from 4:23 p.m. to 4:52 p.m., when he was advised of the reason for his arrest. The trial judge found that PC Porcel promptly informed the Appellant of the reason for his arrest at 4:52 p.m., after he failed the ASD test at 4:48 p.m.
[12] The trial judge found a breach of s. 10(b) of the Charter based on PC Porcel’s unexplained delay in advising Mr. Tavora of his right to counsel between 4:34 p.m. and 4:42 p.m. The trial judge found that he should have advised Mr. Tavora of his right to counsel at 4:34 p.m., when he placed him in the rear of his cruiser.
Issues
[13] The issues on this appeal are as follows:
(a) Did the trial judge err in finding that the Appellant was detained at 4:34 p.m.?
(b) Did the trial judge err in failing to find that the officer made an invalid ASD demand?
(c) Did the trial judge err in failing to find that the officer did not make the ASD demand in accordance with the pre-Breault law?
(d) Did the trial judge fail to take into consideration two further Charter breaches?
(e) Did the trial judge err in finding that the ss. 8, 9 and 10(b) breaches came to an end?
(f) Did the trial judge err in not excluding the evidence under s. 24(2) of the Charter?
Analysis
The Standard of Review
[14] The standard of review to be applied by an appellate court to the factual findings of a trial judge is that of palpable and overriding error. Palpable means that the error is plain to see on the face of the decision. The standard of review for questions of law is that of correctness and for findings of fact is that of palpable and overriding error, but there is also a presumption of fitness in favour of the trial judge that gives rise to deference: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Did the Trial Judge Err in Finding that the Appellant was Detained at 4:34 p.m.?
[15] The Appellant submits that the trial judge erred in finding that the Appellant was detained when PC Porcel formed the requisite grounds for an ASD demand. The Appellant argues that the trial judge’s error is based on his related finding about when PC Porcel formed a reasonable suspicion for the ASD demand, which the Appellant argues was by 4:26 p.m., and not 4:34 p.m., as found by the trial judge. The Appellant submits that he was psychologically detained at 4:26 p.m. because he was surrounded by uniformed personnel, including two police officers, and could not have left the scene.
[16] The trial judge found that the Appellant was arbitrarily detained for approximately 10 minutes, between 4:34 p.m., when PC Porcel directed Mr. Tavora to sit in the back of the cruiser, to 4:44 p.m. when the ASD arrived. The application of the law to the facts in conducting the inquiry of whether a reasonable person would conclude that they were “not free to leave and to comply with the police direction or demand” is a question of law that is reviewable for correctness. Deference is owed to a trial judge’s findings of fact: R. v. Grant, [2009] 2 S.C.R. 353, 2009 SCC 32, at para. 43. In my view, the Appellant has failed to demonstrate that the trial judge erred in finding that the Appellant was detained at 4:34 p.m.
[17] The evidence amply supports the trial judge’s finding that the Appellant was detained at 4:34 p.m., when PC Porcel brought him to the cruiser, and not before that. At 4:29 p.m., PC Porcel stepped away from the interaction with the Appellant and had a discussion with the paramedic about the fact that he could not smell alcohol. At 4:30 p.m., the Appellant started to walk away from the scene, however, the paramedic prevented him from leaving. This demonstrates that: (i) Mr. Tavora felt he could leave, negating that he was psychologically detained; and (ii) it was the paramedic, and not PC Porcel, who prevented Mr. Tavora from leaving. At 4:31 p.m., PC Porcel asked whether the Appellant had any medical condition that would explain his behaviour. The Appellant responded that he did not. Those steps demonstrate that at that stage, the officer had not yet formed a view as to whether he could arrest Mr. Tavora. At 4:32 p.m., the officer directed Mr. Tavora to come with him to his cruiser. At 4:34 p.m., the Appellant entered the cruiser and was told he could not leave.
[18] At trial, the defence did not cross-examine PC Porcel about whether he had formed his suspicion earlier than 4:34 p.m. Moreover, the Appellant, who did not testify on the ss. 8, 9 and 10(b) issues, did not give evidence that he felt psychologically detained at any point prior to 4:34 p.m.
Did the Trial Judge Err in Finding that the ASD Demand was Made Forthwith?
[19] The trial judge found that PC Porcel made the ASD demand at 4:36 p.m., or within four minutes of forming a reasonable suspicion. The Appellant submits that the trial judge’s finding that PC Porcel formed a reasonable suspicion at 4:32 p.m. caused him to err in finding that the officer made the ASD demand forthwith. Based on the Appellant’s position that PC Porcel had a reasonable suspicion at 4:26 p.m., he argues that the officer did not make the ASD demand until 10 minutes after forming a reasonable suspicion, which was not forthwith. The Appellant submits that there was no justification for the delay.
[20] The Crown submits that this is a new argument raised by the Appellant on appeal and ought not to be considered by this court absent exceptional circumstances. The Crown notes that PC Porcel was not cross-examined as to what time he formed a reasonable suspicion.
[21] The rationale for prohibiting parties from raising new arguments on appeal is well-established and includes the following considerations: (i) prejudice caused to the other side, which lacks the opportunity to respond and adduce evidence at trial; (ii) the absence of a sufficient record from which to make findings of fact essential to a proper determination of the issue; (iii) the societal interest in finality and the expectation that criminal cases will be disposed of fairly and fully at first instance; and (iv) the important responsibility of defence counsel to make decisions that represent a client's best interests and to advance all appropriate arguments throughout the trial: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40, leave to appeal dismissed, [2017] S.C.C.A. No. 37214.
[22] The Appellant has not shown any exceptional circumstances that would warrant this court considering a new argument regarding the timeliness of the ASD demand for the first time on appeal.
[23] Had I determined it appropriate to consider this issue on appeal, the record amply supports that the officer made the ASD demand promptly upon his forming a reasonable suspicion. As noted above, until 4:31 p.m., PC Porcel was taking further investigatory steps. He made the demand one minute later when he asked Mr. Tavora to accompany him to the cruiser to await the ASD. The trial judge thus did not make a palpable and overriding error in finding that the officer made the ASD demand forthwith.
Did the Trial Judge Err in Failing to Consider Whether the Appellant’s Section 10(b) Rights Were Breached Under the Pre-Breault Law?
[24] The Appellant submits that the trial judge erred in finding that PC Porcel acted in good faith compliance with the pre-Breault law because he failed to take into account that under the law before Breault, an officer was required to give an individual his rights to counsel upon detention and while waiting for the ASD to arrive. The Appellant submits that this breach of s. 10(b) ought to have weighed into the trial judge’s consideration of the Grant factors under s. 24(2) of the Charter.
[25] The Crown submits that while the trial judge did not explicitly advert to a potential s. 10(b) breach under the pre-Breault law, he nonetheless considered whether PC Porcel could have facilitated the Appellant’s right to counsel at the roadside while they were waiting for the ASD to arrive and found that it would have been impracticable.
[26] Under the pre-Breault law, police officers were required to inform individuals of their right to counsel and to turn their minds to the issue of whether a call to counsel could be facilitated before the arrival of the ASD: R. v. Quansah, 2012 ONCA 123, 287 O.A.C. 383, at para. 34. At trial, PC Porcel testified that he chose not to facilitate right to counsel while waiting for the ASD because he did not think it was required. He admitted that he was wrong in failing to do so. As a result, PC Porcel’s failure to inform the Appellant of his right to counsel and to turn his mind to facilitating a call to counsel before the ASD arrived was in breach of s. 10(b) of the Charter.
[27] While the trial judge did not make a specific finding of a breach of Mr. Tavora’s s. 10(b) rights under the pre-Breault law, he found a consequential s. 10(b) breach of 8 minutes, resulting from the unexplained delay from the time Mr. Tavora was put in the cruiser (4:34 p.m.) and the arrival of the ASD (4:42 p.m.).
[28] In addition, the trial judge made findings of fact on the evidence before him that it would have been impracticable for PC Porcel to facilitate a call to counsel at the side of the road while waiting for the ASD. PC Porcel had admitted that he knew that the Appellant had a cell phone available. However, PC Porcel testified that he put Mr. Tavora in the back of the cruiser for his own safety and that he could not afford him privacy in the vehicle. PC Porcel’s evidence was that the Appellant was in a highly intoxicated state and at one point had to be escorted out of a live lane of traffic. Moreover, PC Porcel believed the ASD would arrive in 5-10 minutes.
[29] The trial judge also took into consideration the fact that Mr. Tavora was promptly advised of his right to counsel after being arrested and chose not to invoke his right at the roadside. Instead, he invoked the right to counsel much later in the investigation. He declined once again at 6:02 p.m., after he was booked at the station. A call to counsel was made promptly once the Appellant asserted his right to counsel at 6:33 p.m.
[30] The trial judge was also entitled to take into consideration how long it took to reach counsel in determining whether there was a reasonable opportunity to consult counsel at the roadside: R. v. Torsney, 2007 ONCA 67, at para. 12, leave to appeal dismissed, [2007] S.C.C.A. No. 31921. In this case, it took 10 minutes for the ASD to arrive. Once a call to Mr. Tavora’s counsel was made, it took 14 minutes for counsel to respond.
[31] While the trial judge did not explicitly advert to the question of whether there was a breach of s. 10(b) under the pre-Breault law, his reasons reflect an implicit consideration of the issue. As a result, it is unlikely that the officer’s failure to advise the Appellant of his right to counsel and to turn his mind to facilitating a call to counsel roadside would have significantly affected the trial judge’s consideration of the Grant factors.
[32] The issue of what, if any, impact the failure to provide rights to counsel ought to have impacted the trial judge’s Grant analysis is considered below.
Did the Trial Judge Err in Failing to Take into Account the Additional Section 8 and 9 Breaches?
Did the Trial Judge Err in Finding that the Section 9 and 10(b) Breaches Ended When the ASD Arrived?
[33] The next two issues will be considered together. In his reasons, the trial judge referenced the Supreme Court’s decision in R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, and stated as follows (Reasons, at para. 96):
I agree with the Crown’s submissions that the Charter breaches in this case arose from a single misstep premised on a good faith and reasonable error because Cst. Porcel completed his investigation based on settled law which was later changed in Breault…. In my view, the failure to have an ASD did not result in a serious Charter violation on the particular facts of this case. I disagree with the defence that the ASD demand was invalid for all purposes. Applying the guidance in Zacharias, this misstep was premised on a good faith and reasonable error, so the consequential violations were not serious. This factor strongly favors inclusion of the evidence.
[34] The Appellant’s argument on these issues is, in essence, that the trial judge erred in his analysis under s. 24(2) of the Charter because he failed to sufficiently take into consideration the additional Charter breaches that flowed from the invalid ASD demand. The Appellant submits that although the trial judge found, applying Breault, that the ASD demand was in breach of s. 8 of the Charter, he failed to excise the result of the ASD, as required under Zacharias. The Appellant argues that this resulted in the trial judge understating both the seriousness of the state conduct and the impact of the breaches on the Appellant when he conducted the Grant analysis. Further, as a result of this error, the Appellant submits that no deference is owed to the trial judge’s analysis under s. 24(2) of the Charter.
[35] The Crown acknowledges that while the trial judge referred to “consequential breaches” and references the Supreme Court’s decision in Zacharias, he did not explicitly state that the ASD result was excised or otherwise engage in the process outlined by the Supreme Court in that case. Accordingly, the Crown concedes that it is open to this court to conduct the s. 24(2) analysis afresh. The Crown submits, however, that this would have no impact on the outcome.
[36] I agree that while the trial judge’s reasoning in relation to the s. 24(2) analysis was consistent with the Supreme Court’s analysis in Zacharias, he did not explicitly follow the process articulated in that case.
[37] In Zacharias, at para. 41, Rowe and O’Bonsawin JJ., writing for the majority, held that where the grounds for arrest are based on evidence that is subsequently found to have been unlawfully obtained, in determining whether the police had reasonable and probable grounds for arrest, the evidence must be excised from the factual matrix. The majority went on to state as follows:
The rule that reasonable and probable grounds for arrest cannot be supplied by the results of unconstitutional state conduct does not conflict with the test set out in Storrey. As set out above, the Storrey test requires that the police have a subjective belief, that is also objectively reasonable, that the arrestee has committed an offence. The onus is on the state to establish that these grounds exist (Storrey, p. 250). In order to ensure that the state is not able to rely on violations of the Charter, the reviewing judge must excise evidence that has been unconstitutionally obtained at the outset of this inquiry. Once this evidence has been removed from the factual matrix, the court applies the Storrey test to determine whether reasonable and probable grounds exist, having regard to both the subjective and objective components. In this inquiry, the court considers the totality of the circumstances known to the officer at the time of the arrest, but does not include evidence found to have been unconstitutionally obtained.
[38] The majority further held that where an arrest is unlawful because it is premised on the results of a Charter breach, it is the initial Charter breach that renders what follows unlawful. The majority referred to the subsequent breaches, in the s. 24(2) analysis as “consequential” as distinguished from additional or independent misconduct, which would be factored differently into the s. 24(2) analysis: Zacharias, at paras. 47-48.
[39] Accordingly, given that the ASD demand was unlawful, under the Zacharias analysis, the result of the ASD had to be excised. Because the trial judge did not excise the ASD result, he did not engage in an analysis as to whether the subsequent arrest, approved device demands, and detention at the station were also in breach of the Appellant’s Charter rights. In my view, this was the error committed by the trial judge, as opposed to finding that the Charter breaches “ended” when the ASD arrived, as argued by the Appellant.
[40] The trial judge declined to determine whether the evidence was otherwise discoverable despite the Breault breach because PC Porcel was not asked what he would have done in the absence of the ASD procedure. He found that the officer was diligent, mindful and acutely aware of his legal obligations. The trial judge further found that there were ample grounds to arrest Mr. Tavora for the offence of care and control of a motor vehicle given all the circumstances known to him.
[41] Based on the record before me, I find that once the result of the ASD test is excised, the officer lacked reasonable and probable grounds to arrest Mr. Tavora, rendering the subsequent actions taken by police all in breach of the Charter. Specifically, Mr. Tavora was unlawfully arrested and detained, contrary to s. 9 of the Charter. Further, the subsequent breath samples taken at the station were in breach of his s. 8 rights.
Should the Evidence be Excluded Under Section 24(2)?
[42] In view of the trial judge’s error, I am required to conduct the s. 24(2) analysis afresh, with deference to the underlying findings of fact made by the trial judge: R. v. Samuels, 2024 ONCA 786, at para. 49.
The Seriousness of the Charter-Infringing State Conduct
[43] The first line of inquiry under s. 24(2) asks whether the Charter‑infringing state conduct is so serious that the court must dissociate itself from it. In evaluating the gravity of the state conduct at issue, the court must situate that conduct on a scale of culpability: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. In Zacharias, at para. 53, the majority held that: “[w]here the only connection to the initial Charter breach that is the source of misconduct, and where the police honestly believe they are proceeding lawfully, the subsequent state conduct is unlikely to meaningfully increase the seriousness of the Charter-infringing state conduct.”
[44] In Zacharias, at para. 52, the majority held that an unlawful arrest that is a consequential breach is unlikely to significantly impact the overall seriousness of the Charter-infringing state conduct. In that case, an unlawful sniffer dog search led the police to arrest the defendant for possession of a controlled substance and to detain him at the police station for several hours. Even after excising the results of the search of the defendant’s vehicle and finding consequential breaches of his s. 9, the majority concluded that the Charter-infringing state conduct was inadvertent and did not strongly favour exclusion.
[45] In R. v. McColman, 2023 SCC 8, 167 O.R. (3d) 559, where the officers conducted a random sobriety stop on private property, and the state of the law was uncertain, the Supreme Court found that the breach was not so serious as to require the court to disassociate itself from the police’s actions.
[46] In this case, once the ASD result is excised, as required under Zacharias, it is necessary to take into consideration the subsequent Charter breaches as follows: (i) the unlawful arrest; (ii) the subsequent approved instrument demands; and (iii) the Appellant’s nine-hour detention at the station. As explained above regarding the s. 10(b) violation under pre-Breault law, it is also necessary to consider PC Porcel’s failure to advise Mr. Tavora of his right to counsel at 4:34 p.m. when he was first detained, which was not in accordance with the law at the time.
[47] In my view, as was the case in Zacharias, the subsequent Charter breaches (with the exception of the s. 10(b) breach) were consequential to the initial breach. It is the initial breach in making the ASD demand without an approved device, which was lawful at the time but subsequently became unlawful, that is the source of the misconduct. The subsequent breaches were the “normal consequences of the arrest” and do not increase the seriousness of the Charter-infringing state conduct: Zacharias, at para. 53.
[48] Moreover, the trial judge found no evidence of bad faith or willful misconduct on the part of the officer. At the time of the arrest, he could not have known that it was unlawful to make the ASD demand, because the law changed subsequently. While PC Porcel ought to have advised Mr. Tavora of his right to counsel when he made the ASD demand, consistent with pre-Breault law, he acknowledged that this was a mistake. He did take into consideration the length of time it would take for the ASD to arrive and whether he could safely afford Mr. Tavora the requisite degree of privacy to make a call to counsel in the meantime. In any event, even after being advised of his right to counsel at the roadside approximately 20 minutes later, the Appellant declined to invoke it.
[49] Accordingly, taking into consideration the initial breach of s. 8 in making the ASD demand and the subsequent consequential breaches, as well as the breach of s. 10(b) while waiting for the ASD to arrive, I nonetheless find the Charter-infringing state conduct to be moderately serious. As was the case in Zacharias, the first factor favours exclusion of the evidence, but only slightly.
The Impact on the Charter-Protected Interests of the Appellant
[50] The second Grant factor relates to the seriousness of the impact of the Charter breaches on the Charter-protected interests of the accused. The court must situate the impact of the breaches on a spectrum ranging from impacts that are fleeting, technical or trivial to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed: R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at para. 90.
[51] In McColman, the Supreme Court found that the unlawful police stop was a marked intrusion on the defendant’s Charter-protected interests because he was stopped on private property where his privacy interest was higher, arrested, brought to the station, and detained for several hours. However, the court found that the second line of inquiry only moderately favoured exclusion.
[52] In this case, the Appellant’s rights under ss. 8, 9, 10(a) and 10(b) were infringed. Section 8 protects an individual’s expectation of privacy. Section 9 protects an individual’s liberty from unjustified state interference: Zacharias, at para. 71. Section 10 protects the individual from self-incrimination and their ability to consult with counsel who can assist with understanding the procedures they will be subject to and the jeopardy they face: R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45.
[53] The taking of a breath sample has been found to be minimally intrusive to a detainee’s right to privacy, especially when they are told what is happening: R. v. Stillman, [1997] 1 S.C.R. 607, at para. 90. At the same time, Mr. Tavora was unlawfully arrested and required to provide further breath samples. He was then detained for approximately nine hours, albeit to some extent for his own safety and the safety of others.
[54] Although I have found a breach of the Appellant’s s. 10(b) rights under pre-Breault law, the delay in being informed of his right to counsel was at most 20 minutes long. In any event, Mr. Tavora did not invoke his right to counsel at the roadside, indicating, as the trial judge found, that he did not feel the need to avail himself of this potential “lifeline.”
[55] As noted by the trial judge, Mr. Tavora did not testify as to the impact that the ss. 8, 9 and 10(b) breaches had on him, resulting in an evidentiary gap.
[56] In my view, the impact of the initial Charter-breach on the Appellant’s Charter-protected interests was moderately serious. Accordingly, this factor moderately favours exclusion of the evidence.
Society’s Interest in an Adjudication on the Merits
[57] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion: McColman, at para. 69. The court must consider both the negative impact of admission of the evidence and the impact of failing to admit the evidence on the long-term repute of the administration of justice: Grant, at para. 79, Harrison, at para. 36.
[58] The evidence is reliable and essential to the Crown’s case. Further, I agree with the trial judge’s finding that society has a significant interest in seeing a trial on the merits in cases of impaired driving given the serious toll caused by drinking and driving. The third factor weighs strongly in favour of inclusion.
Balancing
[59] In R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 90, the Supreme Court held that “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry” (emphasis in original). The overriding consideration in any s. 24(2) analysis is whether admitting the evidence would bring the administration of justice into disrepute: R. v. Whittaker, 2024 ONCA 182, 435 C.C.C. (3d) 221, at para. 60.
[60] In my view, as was the case in Zacharias and McColman, the first two Grant factors do not pull strongly enough toward exclusion to outweigh the third.
[61] Based on my balancing of the Grant factors, this is not a case in which the court should dissociate itself from evidence obtained in this manner. In the circumstances of this case, a reasonable person informed of the relevant circumstances and familiar with Charter values would conclude that the exclusion of the evidence would bring the long-term reputation of the administration of justice into disrepute. In the end, although by a different route, I arrive at the same conclusion as the trial judge.
Conclusion
[62] Accordingly, the appeal is dismissed.
[63] Pursuant to the parties’ joint request, two amendments are to be made to the information:
- The box beside “S (Impaired driving with substances/Conduite avec capacités affaiblies par des substances), which was marked “x” is to be unchecked;
- Count 1 is also amended to delete “or a drug, or both,” to indicate that Mr. Tavora was impaired by alcohol only.
“Nishikawa J.”