Her Majesty the Queen v. Haas [Indexed as: R. v. Haas]

76 O.R. (3d) 737

[2005] O.J. No. 3160

Docket: C41963

Court of Appeal for Ontario,

Weiler, Goudge and Gillese JJ.A.

July 27, 2005

Application for leave to appeal to the the Supreme Court of Canada was dismissed December 15, 2005 (Major, Fish and Abella).

Charter of Rights and Freedoms -- Search and seizure -- Burden of proof -- Warrantless seizure of breath not constituting exception to general rule that Crown has onus of persuasion to show that warrantless seizure is unreasonable -- Accused filing affidavit evidence on Charter application establishing that samples of his breath were taken without warrant -- Crown not calling evidence that police officer had reasonable and probable grounds to make breathalyzer demand -- Trial judge properly finding that accused's s. 8 Charter rights were violated and properly excluding breathalyzer evidence under s. 24(2) of Charter -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).

The accused was charged with driving "over .80". He alleged that he was subjected to an unreasonable seizure contrary to s. 8 of the Canadian Charter of Rights and Freedoms when he was required to provide a breath sample. At the resulting voir dire, he filed affidavit evidence that the seizure of his breath was warrantless. The Crown led no relevant evidence in response and, in particular, called no evidence that the police officer who made the breathalyzer demand had the reasonable and probable grounds to do so required by s. 254(3) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge found that the Crown had not discharged its burden of proving reasonable and probable grounds for the demand and that the accused's rights under s. 8 of the Charter were therefore violated. Pursuant to s. 24(2) of the Charter, the trial judge excluded the evidence of the breath samples. The charge was dismissed. The Summary Conviction Appeal Court allowed the Crown's appeal, finding that the onus does not shift to the Crown to prove reasonable and probable grounds in the context of demands for breath samples notwithstanding that they represent warrantless seizures. Rather, the onus remains on the accused to prove the absence of reasonable and probable grounds and the subsequent violation of the accused's s. 8 Charter rights. The Summary Conviction Appeal Court also found that the trial judge failed to undertake the requisite analysis under by s. 24(2) of the Charter. The accused appealed.

Held, the appeal should be allowed.

The accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed but, in a s. 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or seizure was reasonable. The warrantless seizure of breath is not an exception to this general rule. As the Crown called no evidence on the issue, the taking of the breath samples from the accused must be deemed unreasonable and a violation of his s. 8 Charter rights.

The Summary Conviction Appeal Court was incorrect in holding that the trial judge did not undertake any analysis under s. 24(2) of the Charter. As the Crown failed to discharge the onus on it to show that the seizure of the accused's breath was reasonable, the s. 8 violation was presumed to be a serious one for the purposes of s. 24(2). Moreover, the Crown, not having shown reasonable and probable grounds for the demand as required by s. 254(3), could not show that the seizure was pursuant to law. The trial judge could not reasonably have come to any conclusion other than to exclude the evidence. [page738]

The accused was not precluded from complaining about the Crown's failure to call evidence of reasonable and probable grounds because he knew from the Crown's disclosure what the grounds were but did not raise the issue until argument on the voir dire. The voir dire was heard over two days separated by some months. By the end of the first day, the Crown was well aware of the accused's position. Neither then nor at any time on the second day of the voir dire did the Crown claim surprise, assert prejudice or seek to reopen the evidence. While the accused undoubtedly knew from the Crown disclosure what would be asserted as the reasonable and probable grounds that the police officer had to demand a breath sample from him, the burden on the Crown is to persuade the court through evidence, not to persuade the accused through disclosure.

APPEAL by an accused from the judgment of Nordheimer J., reported at [2004] O.J. No. 2041, 12 M.V.R. (5th) 311 (S.C.J.), allowing the Crown's appeal from acquittal on charge of driving "over .80".

Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 33 Alta. L.R. (2d) 193, 11 D.L.R. (4th) 641, 55 N.R. 241, [1984] 6 W.W.R. 577, 9 C.R.R. 355, 27 B.L.R. 297, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, 41 C.R. (3d) 97, 84 D.T.C. 6467 (sub nom. Southam Inc. v. Director of Investigation and Research of Combines Investigations Branch); R. v. Bernshaw, [1995] 1 S.C.R. 254, [1995] S.C.J. No. 87, 176 N.R. 81, [1995] 3 W.W.R. 457, 26 C.R.R. (2d) 132, 95 C.C.C. (3d) 193, 35 C.R. (4th) 201, 8 M.V.R. (3d) 75; R. v. Collins, [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 13 B.C.L.R. (2d) 1, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, 28 C.R.R. 122, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193 (sub nom. Collins v. R.); R. v. Golden, [2001] 3 S.C.R. 679, [2001] S.C.J. No. 81, 207 D.L.R. (4th) 18, 279 N.R. 1, 89 C.R.R. (2d) 271, 159 C.C.C. (3d) 449, 47 C.R. (5th) 1, 2001 SCC 83; R. v. Krallisch, [1996] O.J. No. 439 (C.A.); R. v. Mahar, [1999] O.J. No. 4410, 107 O.T.C. 156 (S.C.J.); R. v. Orbanski, [2005] S.C.J. No. 37, 2005 SCC 37, 253 D.L.R. (4th) 385, 335 N.R. 342, [2005] 9 W.W.R. 203; R. v. Wills (1992), 7 O.R. (3d) 337, [1992] O.J. No. 294, 9 C.R.R. (2d) 360, 70 C.C.C. (3d) 529, 12 C.R. (4th) 58, 34 M.V.R. (2d) 296 (C.A.); R. v. Woods, [2005] S.C.J. No. 42, 2005 SCC 42, 254 D.L.R. (4th) 385, 336 N.R. 1, consd Other cases referred to R. v. Bartle, [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 118 D.L.R. (4th) 83, 23 C.R.R. (2d) 193, 92 C.C.C. (3d) 289, 33 C.R. (4th) 1, 6 M.V.R. (3d) 1 (sub nom. R. v. Pozniak) Statutes referred to Canadian Charter of Rights and Freedoms, ss. 7, 8, 10(b), 24(2) Criminal Code, R.S.C. 1985, c. C-46, s. 254 [as am.] Rules and regulations referred to Rules of the Ontario Court of Justice in Criminal Proceedings, S.I./97-133

Paul Burstein, for appellant. Philip Perlmutter, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.: -- At his trial on the charge of operating a motor vehicle with a blood/alcohol level exceeding 80 mgs of alcohol [page739] in 100 ml of blood, the appellant argued that he was subjected to an unreasonable seizure contrary to s. 8 of the Canadian Charter of Rights and Freedoms when he was required to provide a breath sample by the police.

[2] At the resulting voir dire, the appellant filed affidavit evidence that this was a warrantless seizure. Neither the appellant nor the Crown tendered any other evidence relevant to this issue. In particular, the Crown called no evidence that the police officer who made the demand for the appellant's breath sample had the reasonable and probable grounds to do so required by s. 254(3)(a) of the Criminal Code, R.S.C. 1985, c. C-46, which reads:

254(3) Where a peace officer believes on reasonable and probable grounds that a person committing, or at any time within the preceding three hours has committed, as a result of the consumption of alcohol, an offence under section 253, the peace officer may, by demand made to that person forthwith or as soon as practicable, require that person provide then or as soon thereafter as is practicable

(a) such samples of the person's breath as in the opinion of a qualified technician or

are necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in the person's blood, and to accompany the peace officer for the purpose of enabling such samples to be taken.

[3] The trial judge found that the Crown had not discharged its burden of proving reasonable and probable grounds for the demand and had therefore breached the appellant's s. 8 rights. Pursuant to s. 24(2) of the Charter, the trial judge excluded the evidence of the breath samples. Since the Crown had no other evidence, the charge against the appellant was dismissed.

[4] The Summary Conviction Appeal Court reversed, and ordered a new trial, finding that since the appellant led no evidence that the seizure of his breath was unreasonable, no violation of s. 8 ought to have been found.

[5] The appellant now seeks leave to appeal to this court and if successful, asks that the appeal be allowed and the decision of the trial judge restored.

[6] The Crown disclosure provided to the appellant (but not tendered in evidence before the trial judge) shows the routine nature of this case. It included the following from the police synopsis:

At this time the accused was stopped by the arresting officer. The arresting officer had a brief conversation with the accused. The accused admitted to having consumed alcoholic beverages. The arresting officer then formed a reasonable suspicion that the accused had alcohol in his body.[page740]

At 02:14 AM the arresting officer made a demand to the accused to provide forthwith such sample of breath which in the opinion of the arresting officer was necessary to enable a proper analysis of the breath to be made by means of an approved screening device, an Alcotest 7410 GLC, and to accompany the arresting officer for the purpose of enabling such sample of breath to be taken.

At 02:14 AM the accused provided a sample of breath into the approved screening device. A proper analysis of the sample resulted in a reading of "F" FAIL.

At this time the arresting officer formed the opinion that the accused was operating a motor vehicle while the concentration of alcohol in the accused's blood exceeded 80 mgs of alcohol in 100 ml of blood.

The accused was then placed under arrest for Operating a motor vehicle while over 80 mgs. The accused was then informed of his rights under the Charter and the breath demand was read to the accused. The accused acknowledged and agreed to comply with the demand.

[7] The appellant served notice on the Crown, returnable at trial, alleging violations of his rights pursuant to ss. 7, 8 and 10(b) of the Charter, and therefore seeking to exclude from evidence both the utterances made by him at the roadside and the police station, and the readings from breath samples seized from him.

[8] The s. 7 violation put forward by the appellant concerned the alleged failure by the Crown to provide full disclosure. While it was the subject of evidence at trial, it was not adjudicated, and has not subsequently been an issue.

[9] The alleged s. 10(b) violation was abandoned at the commencement of the trial.

[10] The appellant's notice of application set out the grounds for his s. 8 claim in the most general of terms: "[the appellant's] right to be free from unreasonable search and seizure pursuant to s. 8 of the Canadian Charter of Rights and Freedoms was violated".

[11] The appellant filed an affidavit of his counsel's legal secretary in support of his Charter application. The deponent swears that the appellant was not shown a warrant with respect to the breath samples taken from him and that to the best of the appellant's knowledge, no such warrant was ever issued. This is the only reference in the affidavit relevant to the s. 8 issue but there also appears to be no dispute that the seizure of breath from the appellant was indeed done without the authorization of a warrant.

[12] The Crown filed nothing in response to the appellant's notice and supporting affidavit.

[13] When the trial opened on June 14, 2002, counsel requested, and the trial judge agreed, that the appellant's Charter claims under s. 7 and s. 8 would proceed by way of a separate voir dire. Because the s. 7 issue involved disclosure, this was the course chosen rather than blending the voir dire with the trial itself. [page741]

[14] The appellant and the Crown each called one witness on the voir dire. That evidence was directed entirely to the s. 7 disclosure issue. Counsel then made their submissions. The Crown invited the court to adjourn to await a decision then under reserve in a case involving a very similar s. 7 issue. Counsel for the appellant did not strenuously object, but urged the court not to delay decision on the s. 8 issue saying this:

From my client's point of view, I think Your Honour could certainly decide the other part of my Charter Application because there is no law that helps the Crown on that. I mean, it is clear the Crown has to give you some evidence of reasonable and probable grounds.

[15] The court determined that a decision on both the s. 7 and the s. 8 issues should await the judgment in the case under reserve. The trial was therefore adjourned from June 14 to April 15, 2003.

[16] When it reconvened, both the Crown and the appellant made further argument on the s. 8 issue. The appellant reiterated his position that the Crown was obliged to call evidence that the police officer had reasonable and probable grounds to make the breath demand of him, and since it had failed to do so, the readings from the breath samples should be excluded. In doing so, the appellant relied on R. v. Mahar, [1999] O.J. No. 4410, 107 O.T.C. 156 (S.C.J.).

[17] Faced once again with this argument, as it had been on the first day of the trial, the Crown did not claim surprise or prejudice, or seek to reopen to call evidence of reasonable and probable grounds. Rather it submitted that Mahar had been superseded by R. v. Golden, 2001 SCC 83, [2001], 3 S.C.R. 679, [2001] S.C.J. No. 81, 159 C.C.C. (3d) 449. It argued that Golden held that a search incident to arrest is an exception to the requirement that the Crown establish the reasonableness of warrentless searches established by Hunter v. Southam Inc., [1984] 2 S.C.R. 145, 14 C.C.C. (3d) 97 and in like manner there can be no onus on the Crown to prove reasonable and probable grounds for the demand leading to the warrantless seizure of the appellant's breath.

[18] The trial judge concluded that he was bound by Mahar to find that the Crown had breached the appellant's s. 8 rights and that he would not admit the evidence obtained from the seizure of the appellant's breath under s. 24(2) of the Charter.

[19] On appeal, the Summary Conviction Appeal Court reversed, relying on a passage in the reasons of Cory J. in R. v. Bernshaw, [1995] 1 S.C.R. 254, [1995] S.C.J. No. 87, 95 C.C.C. (3d) 193; R. v. Krallisch, [1996] O.J. No. 439 (C.A.), an endorsement of [page742] this court; and Golden, supra. At para. 15 of its reasons, the Summary Conviction Appeal Court said this:

In my view, the decision in Golden reinforces the conclusions in Bernshaw and Krallisch that the onus does not shift to the Crown to prove reasonable and probable grounds in the context of demands for breath samples notwithstanding that they represent warrantless searches. Rather, the onus remains on the accused person to prove the absence of reasonable and probable grounds and the consequent violation of his or her rights under s. 8 of the Charter. Given that no evidence was lead by the respondent on the issue of reasonable and probable grounds for the demand, no breach of the respondent's section 8 Charter rights ought to have been found.

[20] The Summary Conviction Appeal Court also went on to find that the trial judge failed to undertake the analysis required by s. 24(2) of the Charter as to whether the evidence could be admitted, if there had been a breach of the appellant's s. 8 rights.

[21] For both reasons, the appeal was allowed and a new trial ordered.

Analysis

[22] This appeal raises two issues:

(1) Was the Summary Conviction Appeal Court wrong in concluding first that the Crown bore no onus to show a reasonable seizure and therefore that no breach of the appellant's s. 8 rights ought to have been found, and second that the trial judge erred in his consideration of s. 24(2)?

(2) In any event, can the appellant be heard to complain about the Crown's failure to call evidence of reasonable and probable grounds, when the appellant knew from the Crown's disclosure what the grounds were but did not raise the issue until argument on the voir dire?

[23] The starting point for the first issue is that the taking of breath samples from the appellant is a seizure for the purposes of s. 8 of the Charter. In R. v. Wills (1992), 7 O.R. (3d) 337, [1992] O.J. No. 294, 70 C.C.C. (3d) 529 (C.A.), Doherty J.A. put it this way at p. 347 O.R., p. 540 C.C.C.:

Given the personal privacy interests which underlie s. 8 of the Charter, I see no reason to differentiate between the taking of a person's breath and the taking of a person's blood or urine, in so far as the applicability of s. 8 is concerned. The state capture, for investigative purposes, of the very breath one breathes constitutes a significant state intrusion into one's personal privacy. Section 8 concerns are clearly engaged by such conduct.

[24] Since the seizure here was warrantless, the principle in R. v. Collins, [1987] 1 S.C.R. 265, [1987] S.C.J.. No. 15, 33 C.C.C. (3d) 1 applies. [page743] It set out the fundamental proposition that an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but that in the s. 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable. The court said this at pp. 277-78 S.C.R., p. 13 C.C.C.:

The appellant, in my view, bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion [see R. v. Lundrigan (1985), 19 C.C.C. (3d) 499, 33 Man. R. (2d) 286, 15 C.R.R. 256 (Man. C.A.), and the cases cited therein, and Gibson, The Law of the Charter: General Principles (1986), p. 278]. The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not.

The courts have also developed certain presumptions. In particular, this Court held in Hunter v. Southam Inc. (1984), 14 C.C.C. (3d) 97 at pp. 109-10, 11 D.L.R. (4th) 641 at pp. 653-4, [1984] 2 S.C.R. 145 at p. 161:

In United States v. Rabinowitz, 339 U.S. 56 (1950), the Supreme Court of the United States had held that a search without warrant was not ipso facto unreasonable. Seventeen years later, however, in Katz, Stewart J. concluded that a warrantless search was prima facie "unreasonable" under the Fourth Amendment. The terms of the Fourth Amendment are not identical to those of s. 8 and American decisions can be transplanted to the Canadian context only with the greatest caution. Nevertheless, I would in the present instance respectfully adopt Stewart J.'s formulation as equally applicable to the concept of "unreasonableness" under s. 8, and would require the party seeking to justify a warrantless search to rebut this presumption of unreasonableness.

This shifts the burden of persuasion from the appellant to the Crown. As a result, once the appellant has demonstrated that the search was a warrantless one, the Crown has the burden of showing that the search was, on a balance of probabilities, reasonable.

[25] In Wills, this court made clear that this proposition applies to the warrantless seizure of a breath sample. In that case the accused was charged with impaired driving causing death and operating a motor vehicle when his blood/alcohol level exceeded the permitted limit. An important part of the Crown's case was the evidence of the test results from the breath sample taken from the accused by the police, admittedly without a warrant. The accused argued that this constituted an unreasonable seizure and a violation of his s. 8 rights. [page744]

[26] As I have said, this court found that the accused had not consented to the taking of the breath sample from him, and as consequence, the taking constituted a seizure. Then, as required by s. 8, it turned to whether the seizure was unreasonable and on whom the onus rests in that context. Its conclusion leaves no doubt. At p. 356 O.R., p. 548 C.C.C., Doherty J.A. said this:

The absence of an effective consent renders the taking of Mr. Wills' breath sample a seizure. It is therefore subject to the reasonableness standard imposed by s. 8 of the Charter. As the seizure was warrantless, the onus is on the Crown to establish reasonableness: Hunter v. Southam Inc., supra, at p. 161 S.C.R., p. 110 C.C.C.

[27] The Summary Conviction Appeal Court relied on three cases to conclude that the onus does not shift to the Crown to prove the reasonableness of the taking of breath samples, but remains with the accused to prove the opposite, notwithstanding that the taking constitutes a warrantless seizure. With respect, I do not think any of the three cases sustain that proposition. None suggests such a reversal in the approach to s. 8 established by Southam and Collins and continued in this very context in Wills.

[28] The first of these three, chronologically, is Bernshaw, supra. The Summary Conviction Appeal Court relied particularly on the following passage in the reasons of Cory J. for the concurring minority at pp. 281-82 S.C.R., p. 213 C.C.C.:

Yet, where an accused complies with the breathalyzer demand, the Crown need not prove as part of its case that it had reasonable and probable grounds to make that demand. Rather, I think, the onus rests upon the accused to establish on the balance of probabilities that there has been a Charter breach and that, under s. 24(2), the evidence should be excluded.

[29] I would make two points about Bernshaw. First, it is a case about the proper interpretation of "reasonable and probable grounds" to demand a breath sample and whether and under what circumstances a roadside screening device can serve this purpose. It does not raise for decision whether the taking of a breath sample is an unreasonable seizure contrary to s. 8 of the Charter nor where the onus of persuasion lies in that context. In the obiter passage relied on by the court below, Cory J. speaks of Charter breaches generally, whether of s. 8, s. 10(b) or another provision of the Charter. As Collins makes clear, for all Charter breaches the onus is, as Cory J. says, on the accused who asserts the breach. In the s. 8 context, that onus requires the accused to prove a warrantless search, but then the burden of proof shifts to the Crown to prove that it was reasonable. I do not think Cory J.'s remark can be taken as inconsistent with this shifting of the burden, let alone a reversal of it. [page745]

[30] The second point is that Sopinka J. for the majority in Bernshaw comments more directly on s. 8 in this context and leaves the clear conclusion that the principle recited in Wills, supra is sound. He said this at pp. 285-86 S.C.R., p. 217 C.C.C.:

The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms. Section 8 requires that reasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence.

[Emphasis in original]

[31] The s. 8 requirement that the demand for the breath sample be shown on the evidence to be reasonable can only mean that if neither the Crown nor the accused calls evidence on this issue, the seizure does not pass constitutional muster. In other words, in the context of a breathalyzer demand, s. 8 places the same onus on the Crown as it does with respect to warrantless seizures generally.

[32] Thus, I do not think Bernshaw provides support for the conclusion drawn from it by the court below.

[33] The second case relied on is Krallisch, a short one- paragraph judgment of this court saying simply that the certificate from a breathalyzer test is admissible unless the accused establishes a Charter violation and that the certificate should be excluded under s. 24(2) of the Charter.

[34] I do not think the conclusion below is supported by this case either. The court in Krallisch was addressing Charter violations in general, not a s. 8 violation due to a warrantless seizure. Even in the latter context, it properly describes the obligation on the accused, one which is met where the accused proves a warrantless seizure, thereby shifting the onus of persuasion to the Crown.

[35] Finally, the court below relied on Golden. That case is about the constitutional limits to be placed on strip searches incidental to arrest. In addressing this question, the majority described searches of the person incident to arrest as an established exception to the general rule that warrantless searches are prima facie unreasonable. The majority goes on to make clear however, that for strip searches, the onus is on the Crown to rebut the presumption of reasonableness because the Crown is in the best position to call the evidence relevant to this question. While the majority makes passing reference to other types of personal searches, like breath demands, concerning which there have been legislative developments, I do not read that reference as suggesting that they are exceptions to the general rule that [page746] the Crown bears the onus of showing that a warrantless search meets the reasonableness standard.

[36] Moreover, both statutory and policy considerations suggest that warrantless breath demands should not be such an exception. To demonstrate compliance with s. 254(3) the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so. The evidence of this will normally be the same evidence that would be called to show that the warrantless seizure of breath was reasonable. If the Crown is faced with a s. 8 Charter challenge, it is reasonable to require the Crown to call as evidence to resist that challenge the very evidence it would call at trial, particularly if that evidence can be called only once in a proceeding blending the trial and s. 8 voir dire.

[37] Moreover, as a matter of policy, to require the accused in a s. 8 Charter challenge to demonstrate the unreasonableness of the seizure of breath ignores the reality that the Crown is in the best position to know how and why the seizure took place. From this perspective it is sensible to require the Crown to prove reasonableness, rather than asking the accused to prove the opposite.

[38] In summary, I find that none of the cases relied on by the Summary Conviction Appeal Court sustain the conclusion that the warrantless seizure of breath is an exception to the general rule that the Crown has the onus of persuasion to show that the warrantless seizure is reasonable. In my view, Wills, supra, correctly states the law. In this case, the Crown having called no evidence on the issue, the taking of the breath sample from the appellant must be deemed unreasonable and a violation of his s. 8 Charter rights and the Summary Conviction Appeal Court erred in coming to the opposite conclusion.

[39] Following argument, the Supreme Court of Canada released its reasons for decision in R. v. Orbanski, 2005 SCC 37, [2005] S.C.J. No. 37, 253 D.L.R. (4th) 385. Out of caution we invited the parties to make written submissions on its relevance if any to this case. Having reviewed both the reasons of the Supreme Court of Canada and the submissions, I conclude that the decision has no direct significance to our task. However, it is worthy of note that, at para. 10 of those reasons, the language used by the majority to describe the situation being considered there is consistent with the conclusion I have reached, accepting without comment that the Crown bears the onus to establish that the police officer making the breath sample demand under s. 254 must have reasonable and probable grounds to do so. The Supreme Court also released R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42, SCC 42. In that case, Fish J. held at paras. 7 and 8 that the admissibility of a breathalyzer test, [page747] "depends on whether the police had reasonable and probable grounds to make the breathalyzer demand". The tenor of his comments supports the conclusion that the Crown must lead evidence of reasonable and probable grounds for a breathalyzer demand.

[40] I am also of the view that the Summary Conviction Appeal Court was incorrect in holding that the trial judge did not undertake any analysis under s. 24(2). The trial judge did say that the evidence of the breath analysis was excluded under s. 24(2). In so doing he did not err. The Crown called no evidence on the voir dire relevant to the s. 8 issue. Having failed to discharge the onus on it to show the seizure of the appellant's breath to be reasonable, the s. 8 Charter violation is presumed to be a serious one for the purposes of s. 24(2). See R. v. Bartle, [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, 92 C.C.C. (3d) 289, at p. 211 S.C.R., p. 315 C.C.C. Moreover, the Crown not having shown reasonable and probable grounds for the demand as required by s. 254(3), cannot show that the seizure was pursuant to law. In these circumstances, I fail to see how the trial judge could reasonably have come to any conclusion other than to exclude the evidence.

[41] Turning to the second issue in this appeal the Crown seeks to sustain the result below on the basis that the appellant did not raise in a timely way the Crown's failure to call evidence of the reasonableness of the warrantless seizure.

[42] In my view, this issue must also be decided against the Crown. The voir dire was heard over two days separated by some months. By the end of the first day the Crown was well aware of the appellant's position. Neither then nor at any time on the second day of the voir dire did the Crown claim surprise, assert prejudice, or seek to reopen the evidence. Rather it argued that, as a matter of law, it bore no onus of persuasion, a position I have rejected. In these circumstances, there is no unfairness in requiring the Crown to live with the consequences of the position it took.

[43] While the appellant undoubtedly knew from the Crown disclosure what would be asserted as the reasonable and probable grounds that the police officer had to demand a breath sample from him, the burden on the Crown is to persuade the court through evidence not to persuade the appellant through disclosure.

[44] In a case like this, if the Crown is faced with a Charter challenge framed in terms so general that it is hampered in its response, the recourse available to it is to ask the court to require the accused to particularize the complaint so that the Crown can target the accused's real concern about the reasonableness of the seizure. That is one of the purposes of the Rules of the Ontario Court of Justice in Criminal Proceedings, S.I./97-133. [page748] While that might well have been done here, it was not, apparently because of the Crown's view that it bore no onus of persuasion. Nonetheless this is the effective way for the Crown to relieve its concern about Charter challenges framed in "boiler plate" terms so general that the Crown can only guess at which aspect of the seizure it should focus its evidence on to meet the reasonableness standard.

[45] In summary therefore, I would grant leave, allow the appeal and restore the trial verdict.

Appeal allowed.