Her Majesty the Queen v. MacMillan

[Indexed as: R. v. MacMillan]

Ontario Reports

Court of Appeal for Ontario,

Winkler C.J.O., Rosenberg and Hoy JJ.A.

February 21, 2013

114 O.R. (3d) 506 | 2013 ONCA 109

Case Summary

Charter of Rights and Freedoms — Exclusion of evidence — Police officer violating accused's rights under s. 10(b) of Charter by not informing her of her right to counsel when he made approved screening device demand — Officer not requiring accused to comply with demand for further 57 minutes as he was concerned about her medical condition and emotional state — Demand invalid as result of delay — Subsequent Intoxilyzer demand also invalid — Accused's rights under s. 8 of Charter infringed — Infringements on accused's privacy and liberty interests not serious but impact on freedom of choice significant — Overall impact on accused's Charter-protected interests in middle of spectrum — Breath test evidence reliable and important to Crown's case — Trial judge erring in finding that admission of evidence would bring administration of justice into disrepute — Crown appeal allowed and new trial ordered — Canadian Charter of Rights and Freedoms, ss. 8, 10(b).

Criminal law — Drinking and driving offences — Approved screening device ("ASD") demand — Police officer attending scene of fatal boating accident and forming grounds for ASD demand while questioning accused — Officer not making ASD demand for another 29 minutes while dealing with others at scene — Accused fainting and taken to ambulance — Accused not detained until ASD demand was made — Accused's rights under ss. 9 and 10(b) of Charter not infringed before demand was made — Delay in making ASD demand reasonably necessary in circumstances and complying with "forthwith" requirement in s. 254(2) of Code — Officer violating accused's rights under s. 10(b) of Charter when he did not inform her of her right to counsel upon making ASD demand — Officer not requiring accused to comply with demand for further 57 minutes — ASD demand invalid as result — Subsequent Intoxilyzer demand also invalid as predicated on results of ASD demand — Accused's rights under s. 8 of Charter violated by taking of breath samples — Accused failing to show that admission of breath samples would bring administration of justice into disrepute — Crown appeal allowed and new trial ordered — Canadian Charter of Rights and Freedoms, ss. 8, 9, 10(b). [page507]

The accused was charged with operating a vessel "over 80" causing death and impaired operation causing death. The investigating officer was dispatched to the scene of a fatal boating accident and questioned the distraught accused. By 5:50 p.m., he had formed the requisite suspicion to ground an approved screening device demand. He did not make the demand at that time, but rather dealt with other people who were arriving at the scene. In the meantime, the accused fainted and was taken to an ambulance by paramedics. The officer read the demand at 6:19 p.m., but did not inform the accused of her right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. The accused became very upset and started to cry. The officer decided to hold off making the demand until she was medically fit. He accompanied her to the hospital. At 7:06, the emergency room physician told the officer that the accused was medically fit to provide a breath sample but indicated that he wished her to remain under observation for another half hour. At 7:16, the accused provided a sample and registered a "fail" result. At 7:18, the officer arrested her, made an Intoxilyzer demand and informed her of her right to counsel. The trial judge found that the accused was detained when the officer formulated the necessary grounds to make the ASD demand and that her rights under ss. 9 and 10(b) of the Charter were violated. He found that the ASD demand should have been made immediately and that it was not made "forthwith" as required by s. 254(2) of the Criminal Code, R.S.C. 1985, c. C-46. He found that the ASD demand was invalid. As the officer had no grounds for the Intoxilyzer demand other than the "fail" result on the ASD test, the Intoxilyzer demand was also invalid. The taking of the breath samples violated the accused's rights under s. 8 of the Charter. He excluded the breath test evidence under s. 24(2) of the Charter and acquitted the accused. The Crown appealed.

Held, the appeal should be allowed.

The trial judge erred in finding that the accused was detained from the moment the officer had the grounds to make the ASD demand. Since the accused was not detained until the demand was made, her rights under ss. 9 and 10(b) of the Charter were not infringed in the period before the demand was made. The 29-minute delay between the formation of the suspicion and the demand was reasonably necessary in the circumstances. The demand complied with the "forthwith" requirement in s. 254(2).

The accused's s. 10(b) rights were violated when she was not informed of her right to counsel when the ASD demand was made. Even if the officer believed that he had a good reason to hold off requiring the accused to comply with the demand, there was no justification for not giving her the opportunity to consult counsel. The post-demand delay resulted in the ASD demand being invalid. As a result, the Intoxilyzer demand was also invalid. The taking of the breath tests violated the accused's rights under s. 8 of the Charter.

The trial judge committed a number of errors in his analysis under s. 24(2) of the Charter. He erred in finding that the violations were serious. In his assessment of the impact on the accused's Charter-protected interests, he improperly considered discoverability as a factor, and he failed to first identify the interests engaged by the Charter violations and then assess the degree of impact on those interests. Section 8 protects the right to privacy and bodily integrity. The impact of the s. 8 breach was minimal given that breath tests are considered not very intrusive. Section 9 protects an accused person's liberty interest but in the circumstances of this case it was the accused's medical condition, not the demands of the police, which impacted her liberty. Section 10(b) protects an accused person's freedom of choice and the impact of the breach on the accused's freedom of choice was serious. Overall, the impact on the accused's Charter-protected [page508] interests was in the middle of the spectrum. The trial judge correctly noted that the breath test evidence was reliable and that its exclusion would substantially undermine the Crown's case, and that the public interest in having the case decided on the merits favoured the admission of the breath test results. The appellate court was entitled to re-weigh the relevant s. 24(2) factors in light of the trial judge's errors. On balance, admission of the evidence would not bring the administration of justice into disrepute.

Cases referred to

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, apld

R. v. Côte, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46, 246 C.R.R. (2d) 213, 421 N.R. 112, 2011EXP-3108, J.E. 2011-1739, EYB 2011-196883, 87 C.R. (6th) 1, 276 C.C.C. (3d) 42, 342 D.L.R. (4th) 77, 97 W.C.B. (2d) 17; R. v. Quansah, [2012] O.J. No. 779, 2012 ONCA 123, 287 O.A.C. 383, 92 C.R. (6th) 1, 286 C.C.C. (3d) 307, 101 W.C.B. (2d) 461; R. v. Woods, [2005] 2 S.C.R. 205, [2005] S.C.J. No. 42, 2005 SCC 42, 254 D.L.R. (4th) 385, 336 N.R. 1, [2006] 1 W.W.R. 1, J.E. 2005-1246, 195 Man. R. (2d) 131, 197 C.C.C. (3d) 353, 29 C.R. (6th) 240, 132 C.R.R. (2d) 168, 19 M.V.R. (5th) 1, 65 W.C.B. (2d) 611, EYB 2005-92056, consd

Other cases referred to

R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, [1986] S.C.J. No. 20, 26 D.L.R. (4th) 493, 66 N.R. 114, J.E. 86-452, 69 N.B.R. (2d) 40, 25 C.C.C. (3d) 207, 50 C.R. (3d) 289, 19 C.R.R. 209; R. v. Clayton, [2007] 2 S.C.R. 725, [2007] S.C.J. No. 32, 2007 SCC 32, 281 D.L.R. (4th) 1, 364 N.R. 199, J.E. 2007-1368, 227 O.A.C. 314, 220 C.C.C. (3d) 449, 47 C.R. (6th) 219, 158 C.R.R. (2d) 81, 73 W.C.B. (2d) 672, EYB 2007-121591; R. v. Cole, [2012] S.C.J. No. 53, 2012 SCC 53, 269 C.R.R. (2d) 228, 297 O.A.C. 1, 96 C.R. (6th) 88, 2012EXP-3703, 2012EXPT-2118, J.E. 2012-1986, D.T.E. 2012T-731, [2012] CLLC Â210-059, 436 N.R. 102, 223 L.A.C. (4th) 1, 290 C.C.C. (3d) 247, 353 D.L.R. (4th) 447, 104 W.C.B. (2d) 458; R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, 38 D.L.R. (4th) 508, 74 N.R. 276, [1987] 3 W.W.R. 699, J.E. 87-516, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, 15 W.C.B. (2d) 387; R. v. Danychuk (2004), 2004 CanLII 12975 (ON CA), 70 O.R. (3d) 215, [2004] O.J. No. 615, 184 O.A.C. 131, 183 C.C.C. (3d) 337, 47 M.V.R. (4th) 25, 60 W.C.B. (2d) 442 (C.A.); R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31, 124 N.R. 278, J.E. 91-689, 63 C.C.C. (3d) 289, 4 C.R. (4th) 144, 3 C.R.R. (2d) 315, 12 W.C.B. (2d) 579; R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, [1991] S.C.J. No. 78, 130 N.R. 250, J.E. 91-1609, 93 Nfld. & P.E.I.R. 181, 67 C.C.C. (3d) 268, 7 C.R. (4th) 388, 5 C.R.R. (2d) 193, 31 M.V.R. (2d) 309, 14 W.C.B. (2d) 167; R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, 309 D.L.R. (4th) 87, 245 C.C.C. (3d) 86, EYB 2009-161618, J.E. 2009-1377, 66 C.R. (6th) 105, 193 C.R.R. (2d) 74, 391 N.R. 147, 253 O.A.C. 358; R. v. Lackovic, 1988 CanLII 7075 (ON CA), [1988] O.J. No. 1732, 29 O.A.C. 382, 45 C.C.C. (3d) 80, 9 M.V.R. (2d) 229, 6 W.C.B. (2d) 151 (C.A.); R. v. MacMillan, [2011] O.J. No. 5001, 2011 ONSC 3305 (S.C.J.); R. v. Orbanski; R. v. Elias, [2005] 2 S.C.R. 3, [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, J.E. 2005-1172, 195 Man. R. (2d) 161, 196 C.C.C. (3d) 481, 29 C.R. (6th) 205, 132 C.R.R. (2d) 117, 19 M.V.R. (5th) 23, 65 W.C.B. (2d) 615; R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, 144 D.L.R. (4th) 193, 209 N.R. 81, J.E. 97-704, 185 N.B.R. (2d) 1, 113 C.C.C. (3d) 321, 5 C.R. (5th) 1, 42 C.R.R. (2d) 189; R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, 309 D.L.R. (4th) 114, 252 O.A.C. 340, 245 C.C.C. (3d) 112, EYB 2009-161620, J.E. 2009-1378, 66 C.R. (6th) 127, 193 C.R.R. (2d) 96, 390 N.R. 303; R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, [1988] S.C.J. No. 31, 84 N.R. 347, J.E. 88-582, 27 O.A.C. 85, 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, 32 C.R.R. 257, 4 M.V.R. (2d) 185, 4 W.C.B. (2d) 125; [page509] R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337, [1992] O.J. No. 294, 52 O.A.C. 321, 70 C.C.C. (3d) 529, 12 C.R. (4th) 58, 9 C.R.R. (2d) 360, 34 M.V.R. (2d) 296, 15 W.C.B. (2d) 415 (C.A.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 8, 9, 10, (b), 24(2)

Criminal Code, R.S.C. 1985, c. C-46, ss. 254(2), (b), (3), 255(3) [as am.], (3.1)

Tackling Violent Crime Act, S.C. 2008, c. 6, s. 19(3)

APPEAL by the Crown from the acquittal entered by McMillan J., [2011] O.J. No. 5001, 2011 ONSC 3305 (S.C.J.).

Philip A. Perlmutter, for appellant.

Paul K. Burstein, for respondent.

The judgment of the court was delivered by

[1] ROSENBERG J.A.: — The Crown appeals from the respondent's acquittal on charges of operating a vessel "over 80" causing death contrary to s. 255(3.1) of the Criminal Code, R.S.C. 1985, c. C-46 and impaired operation causing death contrary to s. 255(3). The acquittals followed the decision of McMillan J. on a voir dire excluding the results of analysis of breath tests because of violations of the respondent's rights under the Canadian Charter of Rights and Freedoms: R. v. MacMillan, [2011] O.J. No. 5001, 2011 ONSC 3305 (S.C.J.). The principal basis for the trial judge's decision turned on his view of the investigating officer's delay in demanding a breath sample and administering the approved screening device test. While I agree with the trial judge that the respondent's rights were violated, in my view, he misconstrued the legal framework and misapprehended the nature of the delay. I am also of the view that the trial judge erred in law in his application of the test for exclusion of evidence under s. 24(2) of the Charter.

[2] Accordingly, I would allow the appeal, set aside the acquittals and order a new trial.

The Facts

[3] In light of the nature of the appeal, it is necessary to set out the facts in some detail. These facts are largely taken from the reasons of the trial judge.

[4] The charges against the respondent arise out of a fatal boating incident. On June 15, 2009, at about 5:30 p.m., O.P.P. Constable Ariss was dispatched from the Blind River detachment to Lake Lauzon. Ariss was told by the dispatcher that a male person had been struck by a vessel and had been pulled out of the water. When he arrived a few minutes later, Ariss saw an [page510] ambulance at the boat landing and a body covered with a sheet on the shore. At the end of a long dock was a man with an oxygen mask over his face who was being attended by a paramedic and a young woman who was sitting at the end of the dock. This person, the respondent, appeared distraught and was crying.

[5] Constable Ariss went to the respondent and attempted to comfort her. The respondent was visibly upset and told him he should be performing C.P.R. on a man who was still in the water. Ariss told her that the man was dead. During a three- to four-minute conversation, Constable Ariss detected an odour of alcoholic beverage on the respondent's breath. She said that she did not want to go to jail, that she had four drinks and was driving the boat. The conversation finished at 5:50 p.m. At that point, the officer had a reasonable suspicion that the respondent had alcohol in her body and had operated a vessel within the preceding three hours. This was sufficient to give the officer grounds to make an approved screening device demand under s. 254(2)(b) of the Criminal Code.

[6] Ariss did not make a demand at that time. Rather, he left the respondent and went to deal with other people who were arriving at the scene, including the deceased's brother, another young woman who was hysterical and the respondent's mother. By this time, other officers had arrived. In the meantime, the respondent fainted and the paramedics took her to the ambulance. Ariss retrieved the approved screening device from his cruiser and entered the ambulance. He read the demand to the respondent at 6:19 p.m. and demonstrated how she was to comply with the demand. At that point, the respondent became very upset and began to cry. Ariss held off requiring the breath sample to ensure that the respondent was medically fit, given that she had previously fainted and had become very upset. Ariss and the respondent left the scene in the ambulance at 6:46 p.m. There was no other evidence as to what occurred in the 27 minutes between when the demand was made and the ambulance left the scene. The ambulance arrived at the hospital at 6:51 p.m. At 7:06, the emergency room physician finished examining the respondent and told Ariss that the respondent was medically fit to provide a sample of her breath. At 7:16, she gave the breath sample and the instrument registered a fail. The physician required that the respondent remain in the hospital for 30 minutes for observation. At 7:18, Ariss arrested the respondent for "over 80" causing death and informed her of her right to counsel. At the urging of Ariss, the respondent spoke to a lawyer at 7:32 p.m.

[7] The physician cleared the respondent to leave the hospital at 8:05 p.m. She was taken to the detachment, arriving at 8:14 p.m. [page511] The respondent provided breath samples at 8:24 and 8:42 p.m., with results of 170 mg of alcohol per 100 ml of blood.

The Trial Judge's Ruling

[8] The trial judge found that Constable Ariss had formulated the necessary grounds to make the approved screening device demand at 5:50 p.m. At this stage, the respondent was a suspect and would not have been allowed to leave. The trial judge therefore concluded that the respondent was detained at this point, which engaged her s. 10 Charter rights. The trial judge also held that the demand should have been made immediately after the officer had grounds to make it. The trial judge found that this delay was not justified. As he said, at para. 46:

The circumstances of the pre-demand delay as represented by Officer Ariss are insufficient to justify his failure to make the demand at the earliest opportunity upon formulating his reasonable grounds and in a position to do so. Upon formulating his reasonable grounds, he had back up available to him, other officers who could have assisted him or undertaken his involvement with other attendees and which would have left him free to make and process the s. 254(2) demand of the Applicant. His failure to do so is more likely attributable to his inexperience and as characterized by Detective Staff-Sergeant Gaynor, an officer with some 21 years experience, "he appeared confused and very anxious about what was going on".

[9] There was no evidence as to the reason for the delay in giving the demand until 6:19 other than that Ariss was dealing with the other people who had arrived on the scene. There was also no evidence as to how long the respondent was unconscious after she fainted.

[10] The trial judge found that the subsequent delay in the officer requiring the respondent to give the breath sample for analysis in the approved screening device was due to the fact that Ariss [at para. 29] "overtly and unilaterally chose to forego the Applicant's provision of a breath sample". In the trial judge's view, this decision was not due to the respondent's refusal or inability to comply with the demand. Rather, it was because the officer "was not prepared to facilitate the reception of a breath sample in response to his demand".

[11] The trial judge referred to this court's decision in R. v. Danychuk (2004), 2004 CanLII 12975 (ON CA), 70 O.R. (3d) 215, [2004] O.J. No. 615 (C.A.), at para. 22, in which Blair J.A. wrote that the term "forthwith" in s. 254(2) imposes an obligation on the suspect to comply with the demand in a timely fashion and an obligation on the police to conduct the test in a timely fashion in order that the detainee's rights to counsel under s. 10(b) of the Charter are minimally impaired. The trial judge held that at 6:19, Ariss did not have an objective basis for suspending the taking of the breath sample, [page512] and there was no basis for not giving the respondent her s. 10(b) rights. As he said, at para. 37 of his ruling:

Officer Ariss acknowledges that the Applicant was not given her s. 10 rights to counsel following his suspension of the breath demand procedures, notwithstanding that she was being detained, and that the immediacy requirement of s. 254(2) had been abandoned. On his evidence, detention did not enter his mind at that time. Officer Ariss, of his own volition, created an environment in which he was no longer in a position to require that a breath sample be provided by the Applicant before she might have a realistic opportunity to consult counsel.

[12] In discussing the post-demand delay, the trial judge noted that there was no evidence as to what occurred in the ambulance between 6:19 and 6:46 p.m., other than that the officer demonstrated how to provide the sample and the respondent became upset. The trial judge noted that the paramedic who was present during this time did not testify. The trial judge referred to Ariss' testimony that it did not occur to him to provide the respondent with her s. 10(b) rights. The officer also acknowledged that there were telephones available in the hospital and it would have been possible for him to facilitate the respondent's Charter rights.

[13] The trial judge concluded that since the s. 254(2) demand was invalid, there was no basis for making the Intoxylizer demand under s. 254(3). Ariss had conceded that he did not have grounds to make the Intoxylizer demand before obtaining the results from the approved screening device test. Accordingly, the Intoxylizer evidence was tainted and was not lawfully obtained.

[14] Having found breaches of ss. 8, 9 and 10(b) of the Charter, the trial judge turned to s. 24(2) to determine the admissibility of the unconstitutionally obtained results of the breath tests, applying the framework set out by the majority of the Supreme Court in R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32.

[15] Under the first inquiry, the seriousness of the Charter-infringing conduct, the trial judge held that the violations of the respondent's rights were serious. The trial judge included the conduct of Ariss and Detective Staff-Sergeant Gaynor. As for the latter, the trial judge noted that Gaynor did not intervene in the investigation, despite his testimony that Ariss, who was relatively inexperienced, seemed confused and very anxious.

[16] The trial judge then referred to the following aspects of Ariss' conduct:

Although he knew he had an obligation to make the approved screening device demand upon formulating his [page513] grounds, the officer offered no explanation for the delay, saying "I don't know" when asked why he had not given the demand immediately.

When asked why he did not give the respondent her right to counsel in the ambulance, he said that the issue of detention never entered his mind.

He knew or should have known that he had to give the respondent her s. 10(b) rights when he delayed compliance with the demand; there was no emergency or other exigent circumstance that would excuse the delay in complying with s. 10(b). The violation could not be said to be inadvertent. His conduct in this respect moved considerably along the spectrum from good faith to bad faith.

The violation was also more serious because the respondent was particularly vulnerable due to the emotional trauma of the occurrence itself and the fact that she was under the influence of alcohol.

Ariss testified that he had urged the respondent to call a lawyer after he gave her the s. 10(b) rights. The trial judge seems to have been sceptical about this evidence, saying the following, at para. 64:

I have considerable difficulty reconciling the officer's eventual and purported genuine concern for her s. 10(b) rights with his evidence that the issue of detention and the corresponding requirement for s. 10(b) Charter rights to counsel had not earlier ever entered his mind.

Ariss had changed his testimony. In a prior proceeding, he had said that the respondent's statements at the scene were possibly unreliable; at this trial, he said that the statements were reliable and that he had made a mistake. The trial judge stated, at para. 65: "The significance of that inconsistent evidence in relation to his not making the s. 254(2) demand immediately has not been overlooked by the court."

The trial judge found that the delay in requiring the breath sample after the demand could not be justified by the respondent's medical condition. He said, at para. 66:

On the evidence adduced, I am unable to find justification for the officer's refusal to facilitate the receipt of the breath sample, having demanded it from her, based on medical concerns, and that she was upset.

[17] As to the impact on the respondent's Charter-protected rights, the trial judge noted that there is no longer any [page514] presumption that bodily evidence, such as breath test evidence, should be excluded as conscriptive evidence. Rather, the court must consider all the circumstances, including the discoverability of the evidence. Since the Intoxilyzer results would not have been discovered without the results from the approved screening device demand, this was an aggravating circumstance. The trial judge characterized the intrusions as significant, although not egregious. The trial judge also speculated, at para. 74, as to what legal advice the respondent might have obtained had she been given the opportunity to consult counsel:

The Applicant was and continued to be in need of legal advice. While it is speculative, that advice might well have been that by this point in time, 7:16 p.m., and in these circumstances, she was no longer required to comply with the ASD demand made at 6:19 p.m. The "forthwith" requirement of s. 254(2), recognized under s. 1 of the Charter as a reasonable limit prescribed by law, demonstrably justified in a free and democratic society, had been spent. There no longer existed any reasonable justification for not having informed the Applicant of her s. 10(b) Charter rights and "without delay". Only two minutes after providing the ASD breath sample, she was arrested and given her rights to counsel at 7:18 p.m. by Officer Ariss. The impact of the infringement of her Charter rights was considerable.

[18] As to the third line of inquiry, society's interest in an adjudication on the merits, the trial judge dealt with the reliability of the evidence as follows, at para. 76:

The results of the breath analysis in respect to both the ASD and the Intoxylizer constitute relevant and reliable evidence. The breath analysis results in this case would necessarily accommodate the discovery of the truth, but that interest must be balanced against any Charter infringement which would support exclusion to preserve the integrity of the administration of justice . . . "The court must ask 'whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial'." Here, that toll would be considerable and perhaps even insurmountable.

(Citations omitted)

[19] The trial judge acknowledged that the Intoxilyzer evidence was essential to the prosecution and that the exclusion of highly reliable evidence that makes the prosecution impossible is more likely to negatively impact the repute of the administration of justice. As to the seriousness of the offence, the trial judge noted that majority in Grant did not find this factor to be much assistance. In the end, the trial judge found that this third inquiry favoured admission of the evidence.

[20] Finally, the trial judge weighed the three lines of inquiry. He particularly relied upon the decision of Fish J. in R. v. Woods, [2005] 2 S.C.R. 205, [2005] S.C.J. No. 42, 2005 SCC 42. He noted that the statutory scheme for obtaining breath test evidence was [page515] intended to operate within constitutional boundaries and that the infringement of a vehicle operator's rights was justified as a reasonable limit under s. 1 of the Charter only where the "forthwith" requirement in s. 254(2) was complied with. The trial judge saw Ariss as [at para. 88] "attempting to do that which the Supreme Court of Canada had precisely held in Woods was not permissible as being unconstitutional". The trial judge was of the view that sanctioning the delays that occurred in this case would [at para. 88] "[strike] at the very core of the administration of justice's repute in the long-term". He concluded as follows, at para. 90:

Although the interaction of Officer Ariss with the Applicant did nothing to demean her dignity, the intrusion on her liberty and privacy through her unconstitutional detention was much more than trivial and represented an intrusion on her Charter-protected interests.

[21] The trial judge viewed Ariss' conduct as an obvious disregard for the respondent's rights. He found [at para. 93] that the conduct was unacceptable and "if sustained would tarnish and bring disrepute to the administration of justice". Weighing all the circumstances, he determined that the evidence must be excluded under s. 24(2).

Analysis

Infringement of the respondent's rights

[22] The trial judge found that s. 254(2) was not complied with and the respondent's Charter rights under ss. 8, 9 and 10(b) were breached as a result of two delays: the delay in making the breath sample demand and the post-demand delay in facilitating the test.

[23] As noted above, the trial judge held that the respondent was detained as soon as the officer formed the requisite grounds for making the approved screening device demand. He also held that the demand had to be made forthwith after the officer had the grounds to make the demand. While Ariss had the grounds to make the demand at 5:50 p.m., he did not make the demand until 6:19. The trial judge saw no justification for this delay. As I understand it, the trial judge found that this failure to make the demand forthwith invalidated the s. 254(2) demand and resulted in a breach of the respondent's s. 10(b) rights.

[24] In my view, the trial judge erred in finding that the respondent was detained from the moment the officer had the grounds to make the demand. As a result, he also erred in holding that the respondent's s. 10(b) rights were infringed because of the delay in making the demand. In light of the circumstances, [page516] including the fact that the respondent was not detained, the trial judge erred in finding that the demand was invalid because it was not made forthwith as required by s. 254(2). However, the trial judge correctly found that the respondent was detained and denied her right to counsel as of 6:19, when Constable Ariss made the breath sample demand in the ambulance.

(1) Interpretation of s. 254(2)

[25] In considering the interpretation of s. 254(2), it should be borne in mind that this subsection was revised by the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 19(3). Under the predecessor provision, there was a relatively strict temporal limit because of the opening words of the provision: "Where a peace officer reasonably suspects that a person who is operating a motor vehicle . . . or who has the care or control of a motor vehicle, . . . whether it is in motion or not, has alcohol in the person's body . . ." (emphasis added). It would be absurd to interpret the provision so narrowly as to require that the officer made the demand while the motorist was still actually driving the vehicle; nevertheless, there was little leeway. The demand had to be made "as soon as is reasonably possible, that is, allowing only such delay as is reasonably necessary to enable the police officer to carry out his duties": R. v. Lackovic, 1988 CanLII 7075 (ON CA), [1988] O.J. No. 1732, 45 C.C.C. (3d) 80 (C.A.), at p. 84 C.C.C.

[26] This strict temporal requirement is no longer found in the legislation. The opening words of s. 254(2) now provide as follows:

254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol[.]

(Emphasis added)

As a result, the temporal requirement that flowed from the "is driving" and "has the care or control" language no longer applies.

[27] That is not to say that there are no temporal limits in considering the validity of a s. 254(2) demand. There is the obvious limit that the officer have reasonable grounds to suspect that the person "has alcohol" in their body when the officer makes the demand and that the person was operating the vessel within the preceding three hours. [page517]

[28] As well, there are temporal limits implied by the balance of subsection (2) and by the Charter right to counsel for a person who has been detained. These temporal limits relate to both the timing of the demand and the timing of the test. Paragraph (b) of s. 254(2) sets out what the officer can require the operator to do:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

(Emphasis added)

[29] With respect to the timing of the test, while s. 254(2) (b) is worded as if only the operator must act forthwith, the courts have also held that the officer must be in a position to administer the test forthwith. This latter "forthwith" requirement flows from the wording of the section and the exigencies of the Charter. Since the operator must forthwith comply with the demand, it follows that the officer must be in a position to facilitate compliance forthwith: R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, [1991] S.C.J. No. 78, at p. 150 S.C.R. One problem faced by police officers making the demand is that, on occasion, officers would not have an approved screening device and there would be a delay while the device was brought to the scene by another officer. In the result, there has been considerable litigation on how much delay in facilitating the administration of the approved screening device test can be tolerated while still complying with the forthwith requirement. However, it is important to point out that this forthwith requirement flows from the making of the demand, not from when the officer had the grounds to make the demand.

[30] The other temporal requirement, the timing of the demand, also flows from the interaction of s. 254(2) and s. 10(b) of the Charter. Soon after the Charter came into force, the Supreme Court of Canada held that a motorist was detained within the meaning of s. 10(b) when required to comply with a demand under the predecessor to s. 254(2), the former s. 234.1(1): R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, [1988] S.C.J. No. 31. At that time, the demand was limited to motorists and was described as a roadside screening device demand. In Thomsen, the court held that requiring the detained motorist to comply with the demand before being advised of the right to counsel and given the opportunity to consult counsel was a reasonable limit within the meaning of s. 1 of the Charter. The Supreme Court of Canada has since extended this principle to other roadside tests, such as requiring the motorist to comply with a physical [page518] coordination test: see R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, [2005] S.C.J. No. 37, at para. 52.

[31] Cases that have considered the relationship between s. 254(2) and s. 10(b) have generally been in the context of the operator of the vehicle being detained, either when the motorist was stopped by the police, as in Orbanski, or by reason of the demand itself, as in Thomsen. It is because the motorist is detained and would otherwise be entitled to consult counsel that the test must be administered immediately. Otherwise, there would be no justification for not giving the motorist his or her s. 10(b) rights. There does not seem to have been any consideration of how s. 254(2) should be interpreted in a case where the operator has not been detained.

[32] Be that as it may, the Supreme Court of Canada in Woods and this court as recently as 2012 in R. v. Quansah, [2012] O.J. No. 779, 2012 ONCA 123, 286 C.C.C. (3d) 307 have held that "forthwith" requires that the demand be made as soon as the officer has formed the requisite grounds to make the demand; the justifiable delay does not seem to be tied to the fact that the motorist is detained. As Fish J. held in Woods, at para. 15:

Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster.

[33] In Quansah, the Crown had argued for an expansive definition of the forthwith requirement and that the demand would be valid if "the sequence of events between the police officer forming grounds to make an ASD demand, and the detainee responding to the demand, occurs faster than the time in which the detainee realistically could consult with counsel" (at para. 15). Speaking for the court, LaForme J.A. rejected this interpretation. He held, at para. 35, that the opportunity to consult with counsel is not the only criterion for assessing whether the forthwith requirement has been met. LaForme J.A. went on to set down five things a court must consider in determining whether the demand was made forthwith. His second point is set out at para. 46:

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

[34] It follows that the trial judge in this case did not err in holding that the demand had to be made promptly after Ariss formed the grounds. The Crown argues that even if the demand [page519] had to be made forthwith after Ariss formed his grounds, the demand was still valid; Ariss had to attend to the other people who were arriving at the scene, and some delay was inevitable while the officer obtained the device from his car, powered it up and explained its use to the respondent. In Quansah, LaForme J.A. held that in unusual circumstances, a court may give a more flexible interpretation to the forthwith requirement. The test adopted by LaForme J.A., at para. 47, is one of reasonable necessity:

In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

[35] In my view, greater flexibility in the forthwith requirement can be tolerated where the suspect has not been detained between the time the officer forms the grounds and when the officer makes the demand. After all, the primary factor driving the need for immediate action is the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel.

(2) Application to this case

(a) Delay in making the demand

[36] I agree with the appellant that the trial judge erred in holding that the respondent was detained before the demand was made. Before the demand was made, the respondent was not physically restrained nor under any legal obligation to comply with a restrictive demand or direction. As is made clear in R. v. Suberu, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33, 2009 SCC 33, at para. 23, even where a person is under investigation for criminal activity and is asked questions, the person is not necessarily detained. In the absence of a legal obligation to comply, detention arises where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

[37] On this record, there is no evidence that the respondent was detained before Ariss made the demand. To the contrary, the fact that Ariss left her alone tells against any psychological detention. The fact that Ariss would not have let her leave if she had tried to does not mean that she was detained. The trial judge's reasons, at para. 24, belie any basis for finding a detention: "She would have had a legal obligation to comply with the contemplated s. 254(2) demand and on these facts a psychological detention would have materialized" (emphasis added). Until [page520] the demand was made, the psychological detention did not materialize. As was said in R. v. Clayton, [2007] 2 S.C.R. 725, [2007] S.C.J. No. 32, 2007 SCC 32, at para. 48, it is not until the officer's subjective intent is accompanied by actual conduct that the intent becomes relevant for constitutional purposes.

[38] Since the respondent was not detained until the demand was made, her rights under ss. 9 and 10(b) were not infringed in the period before the demand was made.

[39] The trial judge, having concluded that the respondent was detained, took a strict view of the forthwith requirement. He proceeded as if Ariss was required to make the s. 254(2) demand immediately upon forming the reasonable suspicion. In light of the fact that the respondent was not detained, the forthwith requirement should have been applied flexibly. The trial judge properly considered the presence of other officers who could have assisted with the investigation. However, he also recognized that there were exigent circumstances at the scene. Ariss was dealing with the arrival of distraught friends and family members, and the respondent was unconscious for an uncertain length of time. In these exigent circumstances, applying a more flexible test, I conclude that the 29-minute delay between the formation of the suspicion and the demand was reasonably necessary and that the demand complied with the forthwith requirement.

(b) Delay in requiring compliance with the demand

[40] The trial judge found a further violation of the Charter and of s. 254(2) of the Criminal Code because of the delay from 6:19 p.m., when the demand was made, until 7:16 p.m., when the respondent complied with the demand at the hospital. Ariss' explanation for the delay was that he wanted to be satisfied that the respondent was medically fit to provide a sample; she had previously fainted and become very upset when the demand was made. Nevertheless, there was no question that the respondent was detained throughout this period, and the officer could provide no justification for not affording the respondent her right to counsel. The findings of fact by the trial judge are against the appellant on this issue. As the trial judge said, at para. 37 of his reasons:

Officer Ariss acknowledges that the Applicant was not given her s. 10 rights to counsel following his suspension of the breath demand procedures, notwithstanding that she was being detained, and that the immediacy requirement of s. 254(2) had been abandoned. On his evidence, detention did not enter his mind at that time. Officer Ariss, of his own volition, created an [page521] environment in which he was no longer in a position to require that a breath sample be provided by the Applicant before she might have a realistic opportunity to consult counsel.

[41] Even if Ariss believed that he had a good reason to hold off requiring the respondent to comply with the demand, there was no justification for not giving her the opportunity to consult counsel. I agree with the trial judge that the respondent's s. 10(b) rights were infringed. I also agree that this delay in facilitating the provision of the sample while the respondent was detained was a basis for finding that the demand was invalid under s. 254(2). As LaForme J.A. said in Quansah, at para. 49, "one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the 'forthwith' criterion is not met."

[42] As the trial judge held, since the s. 254(2) demand was invalid and the respondent's rights under s. 10(b) were infringed, the s. 254(3) demand was also invalid. However, as the trial judge recognized, the results of the s. 254(3) demand were only inadmissible if the respondent showed that they should be excluded under s. 24(2). Since the Supreme Court's decision in R. v. Grant, supra (2009), there is no longer a rule of automatic exclusion for breath test evidence. The appellant submits that the trial judge erred in his approach to s. 24(2). I now turn to that issue.

Exclusion of evidence under s. 24(2) of the Charter

The standard of review

[43] As held in Grant, at para. 86, the decision of the trial judge on whether evidence should be excluded under s. 24(2) of the Charter is entitled to considerable deference "[w]here the trial judge has considered the proper factors". The caution with which an appellate court must approach the trial judge's decision on application of s. 24(2) is demonstrated in R. v. Côté, [2011] 3 S.C.R. 215, [2011] S.C.J. No. 46, 2011 SCC 46. The Supreme Court held that it was not open to the Court of Appeal in that case to substitute its own view of the police misconduct for that of the trial judge. Justice Cromwell, speaking for the majority of the court, held that it was not open to the Court of Appeal in that case to re-characterize the evidence in the face of numerous findings of fact by the trial judge that were not tainted by clear and determinative error (at para. 51). When considering whether the findings of fact were tainted by reviewable error, Cromwell J. held, at para. 52: [page522]

The trial judge made these clear findings of fact based on his first-hand assessment of the officers' credibility by observing their testimony in court. There is no basis disclosed for interfering with the trial judge's numerous conclusions with respect to the police conduct and I thus decline to interfere with his findings.

[44] In this case, I have identified two legal errors by the trial judge in his findings of breach of the respondent's rights. The trial judge erred in finding that the respondent was detained from the moment Ariss formed the grounds to make the approved screening device demand and in finding that the demand was not made forthwith. In my view, these errors do not entitle this court to disregard the findings of the trial judge that are not tainted by the errors and simply embark on its own assessment of the seriousness of the breach and the impact of the Charter-infringing conduct. It remains to determine the extent to which these errors did taint the trial judge's s. 24(2) findings, and more generally whether the trial judge properly applied s. 24(2).

[45] The Crown argues that the trial judge made unreasonable findings of fact that tainted his s. 24(2) analysis, including the following:

Ariss could have made the screening demand earlier because there were other officers on the scene;

Ariss did not act reasonably in delaying both making the demand and requiring the respondent to comply;

the respondent's right to counsel could have been implemented sooner because of the availability of telephones at the hospital.

[46] The Crown also argues that it was unreasonable for the trial judge to find that the respondent's vulnerability increased the severity of the breach. In the Crown's view, the respondent's vulnerability mitigated the seriousness of the breach because it explained Constable Ariss' concern about administering the screening device test until after the respondent had been seen by the emergency-room physician.

[47] I will now consider these submissions in light of the test for exclusion of evidence as set out in Grant. As is well-known, the court is required to inquire into the seriousness of the Charter-infringing state conduct, the impact on the Charter-protected interests of the accused and society's interest in an adjudication on the merits. The court is then to weigh the various indications and determine whether, on balance, the admission of the evidence obtained in violation of the accused's [page523] Charter rights would bring the administration of justice into disrepute.

(1) Seriousness of the Charter-infringing state conduct

[48] The first thing to notice about the trial judge's assessment of the seriousness of the Charter-infringing conduct is that his erroneous finding that the respondent was detained prior to the demand played no explicit part in his assessment of the seriousness of the state conduct. He said, at para. 58:

Nor is this a case that turns on some novel or unsettled issue in the realm of Charter jurisprudence. Officer Ariss must be taken to have known or should have at least been alive to the issue of detention and the subject's right to counsel in those circumstances.

[49] To the extent that this finding turned on the trial judge's view that the respondent was detained from the moment the officer formed the requisite grounds to make the screening device demand, this characterization of the officer's conduct was unreasonable. I tend to think that this was not a major consideration, however, since the respondent was detained 19 minutes later when the demand was made. If this were the only consideration on the question of detention, the trial judge's finding should not be interfered with.

[50] More problematic is the trial judge's failure to consider the nature of the detention. While the nature of the detention is a factor to consider under the second inquiry, it is also relevant to the seriousness of the police conduct in this case. The detention was not an abusive exercise of police powers. Of the period from 5:50 p.m., when the officer had the grounds to make the screening demand, to 8:24 p.m., when the Intoxilyzer test was administered, the detention was somewhat abstract. As I have said, from 5:50 p.m. to 6:19, the respondent was not in fact detained. From 6:19 until 6:51, the respondent, although detained as a matter of law because of the screening device demand, was in an ambulance, not because of the demand but because of her health. From 6:51 to approximately 8:05, the respondent was in the care of the hospital. I recognize that she was arrested and informed of her rights at 7:18 because she failed the screening device test. However, the delay from 7:18 onward was due to attempts to facilitate contact with counsel, remaining at the hospital for observation and then facilitating the Intoxilyzer test. This course of conduct, as concerns detention, can in no way be characterized as abusive. [page524]

[51] That said, the main focus for the trial judge was not on the detention but on the delay in making the demand as soon as the officer had the requisite grounds. As I have discussed above, the trial judge erred in concluding that the demand was not made forthwith. Having concluded that the respondent was detained, the trial judge did not apply the flexible application of the forthwith requirement that was appropriate in the circumstances.

[52] A crucial finding by the trial judge was that, although Constable Ariss knew he had an obligation to make the demand forthwith, he had no explanation for the delay. The trial judge quoted the officer's response to a question in cross-examination asking him why he did not make the demand immediately: "I don't know." The trial judge, at para. 56, harshly criticized this aspect of the officer's conduct as demonstrating "a wilful blindness respecting his law enforcement duties and the Applicant's Charter rights".

[53] Accepting that it is not open to this court to simply re-characterize the police conduct, in my view, this was an unreasonable finding. The delay was 29 minutes from the time Ariss formed a reasonable suspicion to the time he made the demand. During that time, several people were arriving on the scene, the respondent fainted and was unconscious for an undetermined amount of time, and the paramedics moved the respondent to the ambulance. Given the circumstances at the scene, the officer's failure to make the demand immediately at 5:50 does not indicate wilful blindness towards the respondent's Charter rights. Since the respondent was not detained during this time, she had no constitutional right to counsel under s. 10(b).

[54] One other factor that the trial judge took into account on this aspect of the case is the presence of a more senior officer. As the trial judge said, at para. 55:

In evaluating the blameworthiness of the offending police conduct, reference should be made not only to Officer Ariss but also to Detective Staff-Sergeant Gaynor. Notwithstanding that he characterized Officer Ariss on the scene as being "confused and very anxious about what was going on", there is not any evidence that Gaynor did anything to materially intervene and assist the much junior officer but rather simply chose to excuse his inaction by suggesting that he wasn't in charge of the scene.

[55] Crown counsel argues that the trial judge misapprehended the evidence as to when the other officers, especially Sergeant Gaynor, arrived. I agree in one respect. The evidence is clear that Gaynor did not arrive until around 6:20, when the respondent was being placed in the ambulance. Thus, his presence could [page525] not have altered the sequence of events up to the giving of the screening device demand. On the other hand, if Gaynor had provided more assistance, he might have intervened to avoid the lengthy delay before the respondent was advised of her right to counsel. This is not the kind of clear and determinative error that invites appellate review.

[56] The next period of time to consider is from when the respondent and Ariss were in the ambulance from 6:19, when Ariss made the demand, to 6:51, when they arrived at the hospital. As the trial judge noted, the ambulance attendant was not called as a witness, and there was no evidence as to what occurred during this time, other than Ariss' evidence that he held off requiring the respondent to comply with the demand because the respondent became very upset and began to cry. Again, the trial judge was critical of the officer's conduct, as he said, at paras. 57-58:

Officer Ariss either abandoned or delayed facilitating, the s. 254(2) demand in the ambulance. When asked why he didn't advise the applicant of her s. 10(b) Charter rights thereafter, he testified that the issue of her detention never entered his mind. It is also noteworthy that in his evidence, the officer wouldn't directly acknowledge in cross-examination that the Applicant was ever detained by him prior to furnishing her ASD sample. Crown counsel, to his credit, did so in his submissions.

This is not a case where the officer's actions or Charter rights inaction could be excused as for example where emergency or evidence preservation is advanced as justification. Nor is this a case that turns on some novel or unsettled issue in the realm of Charter jurisprudence. Officer Ariss must be taken to have known or should have at least been alive to the issue of detention and the subject's right to counsel in those circumstances. The right to counsel is a constitutional limit that is so basic and settled that it would be manifestly unreasonable to conclude that his failure to extend the s. 10(b) Charter right to the Applicant was inadvertent.

[57] These were essentially findings of fact, and the Crown has not shown that they are tainted by clear and determinative error. Thus, it is not open to this court to re-characterize the trial judge's holding that the officer's conduct was not inadvertent. Or, as the trial judge later said, at para. 58, "the pendulum moves considerably along the arch from the 'good faith' designation towards the 'bad faith' limitation".

[58] In measuring the seriousness of the Charter-infringing conduct, the trial judge then turned to the respondent's vulnerability. He expressed the following view, at para. 60 of his reasons:

A consideration in assessing the extent or degree of departure from Charter standards can involve the vulnerability of the subject, particularly in a rights to counsel violation, see R. v. Clarkson 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383 and R. v. Evans (1991), 1991 CanLII 98 (SCC), 4 C.R. (4th) 144 (S.C.C.). [page526]

As evidence of the respondent's vulnerability, the trial judge referred to the emotional trauma of the day's events and the effects of alcohol as demonstrated by the Intoxilyzer results. In my view, the trial judge erred in his use of the respondent's vulnerability to increase the seriousness of the Charter-infringing conduct.

[59] Ordinarily, any special vulnerability of the accused is more properly considered at the stage of the second inquiry, the impact on the accused's Charter-protected interests, with one caveat. If there is evidence, as in R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, [1991] S.C.J. No. 31 and R. v. Clarkson, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, [1986] S.C.J. No. 20, that the police took advantage of any special vulnerability, the violation would be more serious. The trial judge may have had this principle in mind when he referred to the testimony of Constable Graham, who briefly attended at the hospital. The trial judge referred to her evidence, at para. 63:

Officer Graham testified that she went to the hospital at 7:11 p.m. and was only there for a brief period of time, nine minutes. She described the Applicant's emotional state during her attendance as upset and crying. She observed Officer Ariss explaining the "requirement" of the Applicant to provide an A.S.D. breath sample while awaiting the return to the room of her mother.

[60] Accepting that there may be an element of taking advantage of the respondent's vulnerability, the trial judge erred in failing to take into account that this same evidence rendered the officer's overall conduct less serious. Evidence that the respondent was upset and crying also explained much of Ariss' conduct, which the trial judge found so egregious. This conduct included holding off requiring the respondent to comply with the demand at 6:19 because the respondent became so upset, had just recovered from a fainting spell and was in an ambulance. The trial judge's reference to Graham's evidence fails to take into account that Ariss only required the respondent to provide the sample after a physician had advised him that the respondent was medically fit to provide a sample of her breath. The trial judge's use of a double standard with respect to the respondent's condition is strikingly demonstrated by his concluding comments on this first inquiry, at para. 66:

The Charter infringing state conduct in this case cannot be laid off against or justified by any exigent circumstances of necessity or emergency in the context of preserving evidence. However, other forms of extenuating circumstances as referenced in R. v. Grant at paragraph 75 . . . "may attenuate the seriousness of police conduct that results in a Charter breach". According to officer Ariss, he either abandoned or delayed facilitating the receipt of the Applicant's breath sample, pursuant to his demand therefor, based on his alleged concern for her "medical needs" and "to ensure she was medically fit [page527] to provide me a sample." His only basis for this concern, as expressed by him, was that she had fainted earlier. However, there was not any evidence adduced in regard to her medical condition or fitness by the prosecution from the paramedic, Don Hallett, who was perhaps in the best position to address the Applicant's medical condition at that point in time and particularly since she had obviously recovered from the fainting episode, the length of which is unknown. According to the officer she was clearly understanding his s. 254(2) breath demand and his demonstration of the ASD for the sole purpose of receiving her breath sample. As well, Dr. Barnes, the physician at hospital, attended her for all of three minutes according to the evidence of Constable Huffman with reliance on her notes. On the evidence adduced, I am unable to find justification for the officer's refusal to facilitate the receipt of the breath sample, having demanded it from her, based on medical concerns, and that she was upset.

[61] To summarize, the trial judge made the following errors in his characterization of the seriousness of the Charter-infringing conduct: he failed to consider the nature of the detention; he concluded that the ASD demand was not made forthwith; he found that the delayed demand was unreasonable and stemmed from wilful blindness; and he applied a double standard to evidence of the respondent's condition and vulnerability.

(2) Impact on the Charter-protected interests of the accused

[62] In the initial part of his discussion of this second inquiry under s. 24(2), the trial judge correctly set out the applicable principles. He noted that the type of evidence involved in this case, bodily evidence in the form of the results of breath tests, had been specifically addressed at paras. 99-111 of the majority reasons in Grant (2009). The trial judge then referred to the concept of discoverability, which in this case aggravated the infringement on the respondent's Charter-protected interests. The trial judge found the impact of the infringement on the respondent's rights under ss. 8, 9 and 10(b) significant, although not egregious. The trial judge returned to the evidence of Constable Graham, which he interpreted as evidencing a subtly coercive situation that deprived the respondent of her freedom to make an informed choice. Finally, while acknowledging that it was somewhat speculative, the trial judge suggested that had the respondent been given legal advice, she might well have refused to comply with the screening device demand. In conclusion, the trial judge characterized the impact of the infringement of the respondent's Charter rights as "considerable".

Discoverability

[63] In my view, the trial judge erred in law by considering discoverability as an important factor in this case. The trial [page528] judge's focus on discoverability became a proxy for the now-discredited concept of conscriptive evidence. Further, the trial judge engaged in impermissible speculation in assigning weight to discoverability as a factor.

[64] In R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 281 S.C.R., the Supreme Court concluded that the admission of evidence that deprives the accused of a fair hearing would bring the administration of justice into disrepute and thus warrants exclusion under s. 24(2). Lamer J., for the majority, held that conscriptive evidence renders a trial unfair (at p. 284 S.C.R.).

[65] In R. v. Stillman, 1997 CanLII 384 (SCC), [1997] 1 S.C.R. 607, [1997] S.C.J. No. 34, at para. 80, a majority of the court held that the compelled taking and use of the body or of bodily substances may render the trial unfair. In subsequent cases, this principle was interpreted as leading to a rule of almost automatic exclusion. This rule of automatic exclusion also embraced derivative evidence, being "real" evidence derived from conscriptive evidence, usually a statement. An exception to this rule of automatic exclusion was discoverable conscriptive evidence; such evidence would not tend to render the trial unfair. Cory J., writing for the majority in Stillman, summarized the impact of the non-discoverability of conscriptive evidence, at para. 118:

Therefore, where the conscriptive evidence would not have been discovered in the absence of the unlawful conscription of the accused, its admission would generally tend to render the trial unfair. In those circumstances it is not necessary to consider the seriousness of the violation, or the repute of the administration of justice, as a finding that the admission of the evidence would render the trial unfair means that the administration of justice would necessarily be brought into disrepute if the evidence were not excluded under s. 24(2)[.]

[66] In Grant, at para. 120, the court noted that the conscription-discoverability doctrine had been "justifiably criticized as overly speculative and capable of producing anomalous results". The court in Grant eliminated the trial fairness doctrine from Collins and Stillman, and concluded that discoverability was no longer determinative of admissibility (at para. 121). Nevertheless, in considering the admissibility of derivative evidence, the majority held, at para. 122, that discoverability retained a useful role in assessing the actual impact of the breach on the protected interests of the accused, that is, under the second inquiry. Paragraph 122 also contains the important insight that "in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry". One last point to note about discoverability as discussed in Grant is [page529] that it seemed to be limited to derivative evidence. There is no reference to this concept in the majority's lengthy discussion of admissibility of bodily evidence.

[67] The Supreme Court returned to discoverability in Côté. Writing for the majority, Cromwell J. examined discoverability at length and broadened the application of the concept beyond derivative evidence. He held that discoverability can play a role at the first and second Grant inquiries. He defined discoverability, at para. 66, as referring to "situations where unconstitutionally obtained evidence of any nature could have been obtained by lawful means had the police chosen to adopt them". At the first inquiry, a violation will be considered more serious if the evidence could have been discovered through legal means. For example, Cromwell J. observed that if the police could have conducted a search legally because they had the requisite grounds to get a warrant but failed to turn their minds to obtaining a warrant, the seriousness of the state conduct is heightened.

[68] This aspect of discoverability plays no role in this case. Constable Ariss had only a reasonable suspicion that the respondent had alcohol in her body at the relevant time. This gave him grounds to make the demand but no more; he could not have obtained a warrant, and absent consent, he had no other way to lawfully require the respondent to provide breath for an approved screening device demand.

[69] More relevant to this case is the effect of discoverability on the second inquiry. Again, referring to a violation of s. 8, Cromwell J. held, at para. 72, that the impact on the accused's Charter-protected privacy and dignity interests will be attenuated by the fact that the police had the requisite grounds to obtain a warrant, and thus the search could have been conducted lawfully.

[70] Importantly, however, Cromwell J., like the majority in Grant, emphasized that discoverability is not determinative and that it is important for the court not to engage in speculation. As he said, at para. 70:

While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry.

[71] In Côté, Cromwell J. concluded with the direction that, where relevant, a court must assess the effect of the discoverability of the evidence on the first and second s. 24(2) inquiries in light of all the circumstances (at para. 74). [page530]

[72] Recently, the Supreme Court applied the concept of discoverability in R. v. Cole, [2012] S.C.J. No. 53, 2012 SCC 53. It held that the seriousness of the impact of a s. 8 breach under the second s. 24(2) inquiry was attenuated both by the diminished privacy interest in a school-owned computer and by the discoverability of the information on the computer because the officer had grounds to obtain a search warrant: see paras. 93, 97.

[73] The trial judge in the present case discussed discoverability at two points in his analysis under the second inquiry. First, he held, at para. 71, that the Intoxilyzer evidence could not have been obtained but for the screening device demand:

Discoverability is a factor in addressing the impact of Charter breaches on Charter rights. It is acknowledged that without the s. 254(2) breath analysis result, the police would not have had grounds to make the Intoxylizer demand of the Applicant. The results thereof would not have been discoverable but for the ASD result and serves to aggravate the infringement on the Applicant's Charter-protected interests.

[74] He discussed discoverability again when considering the results of the screening device demand itself, at para. 74:

The Applicant was and continued to be in need of legal advice. While it is speculative, that advice might well have been that by this point in time, 7:16 p.m., and in these circumstances, she was no longer required to comply with the ASD demand made at 6:19 p.m. The "forthwith" requirement of s. 254(2), recognized under s. 1 of the Charter as a reasonable limit prescribed by law, demonstrably justified in a free and democratic society, had been spent. There no longer existed any reasonable justification for not having informed the Applicant of her s. 10(b) Charter rights and "without delay". Only two minutes after providing the ASD breath sample, she was arrested and given her rights to counsel at 7:18 p.m. by Officer Ariss. The impact of the infringement of her Charter rights was considerable.

[75] In my view, these passages indicate that the trial judge has failed to conduct the proper discoverability analysis mandated by Grant and Côté. The first issue was not whether the Intoxylizer results were discoverable without the screening device demand, but whether results of the screening device demand were discoverable. Whether the respondent would have complied with a screening device demand had she been given her s. 10(b) rights was, as the trial judge recognized, speculative. It was speculative whether the respondent would have consulted counsel and speculative whether counsel would have advised the respondent not to comply with the demand. This was a case where it could not be determined with any confidence whether the results of the screening device demand would have been discovered in absence of the Charter breach. Accordingly, discoverability should have had no impact on the s. 24(2) inquiry. [page531]

[76] Similarly, in my view, discoverability should have had no impact on the question of the Intoxilyzer demand. As Cromwell J. stated in Côté, at para. 72, "If the search could not have occurred legally, it is considerably more intrusive of the individual's reasonable expectation of privacy." The facts of this case do not fall within this principle. The Intoxilyzer results could have been obtained legally. Constable Ariss had the requisite grounds to make the screening device demand and had he facilitated the test promptly after the demand, the test would have been lawful and would have led to a valid Intoxylizer demand.

Analytical approach to the second inquiry

[77] In my view, the trial judge adopted an erroneous approach to the second inquiry generally. The majority of the Supreme Court in Grant (2009) mandated, at paras. 76-77, that the court evaluate the extent to which the breach actually undermined the interests protected by the right infringed. This requires the court to identify the interests engaged by the infringed right and examine the degree of impact from the violation.

[78] In this case, the trial judge found infringement of ss. 8, 9 and 10(b) of the Charter. In a case, as here, involving the seizure of breath samples, the principal focus will usually be on the s. 8 violation and hence the interests engaged by the protection against unreasonable search and seizure. Those interests are privacy and human dignity generally, as well as bodily integrity in the case of bodily samples: Grant, at paras. 78, 104.

[79] The next step is to identify the degree of impact. In Grant, at para. 109, the majority identified a spectrum of seriousness of intrusion from the highly intrusive, such as the forcible taking of blood samples or dental impressions, to the relatively innocuous, such as fingerprint or iris recognition. At para. 111, the court identified breath samples as falling at the relatively non-intrusive end of the spectrum. This is where the analysis should have begun in this case. In his discussion of the second inquiry, at para. 70, the trial judge recognized the relative non-intrusiveness of breath test evidence but only "where the breach has been less egregious and the intrusion into privacy, bodily integrity and dignity less severe". In doing so, he conflated the first and second inquiries. Properly understood, the impact of the s. 8 violation was minimal.

[80] The trial judge dealt with the impact of the ss. 9 and 10(b) violations at paras. 73-74 of his reasons:

In Grant, the court commented, with regard to bodily evidence, that the "less egregious" the Charter violation and the "less severe" the intrusion of privacy, bodily integrity and dignity, reliable evidence may be admitted as is [page532] often the case with breath sample evidence. The evidence of Officer Graham, herself a breathalyzer technician with nine years' experience, was that when she attended the examining room Officer Ariss was explaining to the Applicant "the requirement of Tiffany to provide a sample into the Alcotest 7410 GLC", which had followed the officer again testing the ASD. The only reasonable inference was that the Applicant's liberty was being and would be constrained until such time as she furnished a breath sample. As in the Grant case, she too was "into a subtly coercive situation that deprived" her of her "freedom to make an informed choice as to how to respond." [Grant, at para. 135.]

The Applicant was and continued to be in need of legal advice. While it is speculative, that advice might well have been that by this point in time, 7:16 p.m., and in these circumstances, she was no longer required to comply with the ASD demand made at 6:19 p.m. The "forthwith" requirement of s. 254(2), recognized under s. 1 of the Charter as a reasonable limit prescribed by law, demonstrably justified in a free and democratic society, had been spent. There no longer existed any reasonable justification for not having informed the Applicant of her s. 10(b) Charter rights and "without delay". Only two minutes after providing the ASD breath sample, she was arrested and given her rights to counsel at 7:18 p.m. by Officer Ariss. The impact of the infringement of her Charter rights was considerable.

[81] I will deal first with the impact of the s. 9 violation. The trial judge did not explicitly identify the state conduct that led to a violation of s. 9 of the Charter. I assume that he must have had in mind the detention that he found commenced at 5:50 p.m., and that he viewed Ariss' failure to make the demand at the time he formed the grounds as constituting a violation of the respondent's s. 9 protection against arbitrary detention. I have held above that the respondent was not detained at 5:50, but only at 6:19. I will assume that the respondent was illegally detained shortly thereafter because the provision of the sample was not facilitated forthwith, in accordance with s. 254(2).

[82] The interests engaged by s. 9 are usually liberty, freedom of choice and, sometimes, privacy. The impact on the respondent's liberty interests was, in my view, minimal. While she was detained in law from 6:19 until she provided the samples for analysis by the Intoxilyzer, the length and nature of the detention, as I have said, was mostly governed not by the demands of the police but the exigencies of her physical condition. From 6:19 until 7:06, the respondent was either in an ambulance or at the hospital awaiting care by a physician. It is true that Ariss was present during most of this time, but there is no suggestion that his presence changed the nature of the detention. The detention as a result of state action only began at 7:16, when the respondent complied with the demand. The next period of detention was to facilitate the respondent's consultation with counsel and was at the direction of the physician, who directed that the respondent remain at the hospital [page533] for observation for 30 minutes. There is no suggestion that the subsequent delay in facilitating the Intoxilyzer test was unreasonable or particularly onerous.

[83] The trial judge correctly identified freedom of choice as the interest impacted in this case by the violations of ss. 9 and 10(b). In my view, the impact of the ss. 9 and 10(b) breaches on the respondent's freedom of choice was significant. The respondent, who was in need of legal advice, was detained and not afforded her right to counsel until 7:32. She was, as noted by the trial judge in his analysis under the first inquiry, vulnerable as a result of her emotional condition and her consumption of alcohol. Her right to choose whether to speak to counsel was seriously impacted.

[84] To summarize, the trial judge made the following two errors in his assessment of the impact on the respondent's Charter-protected interests: he improperly considered discoverability as a factor; and he failed to first identify the interests engaged by the Charter violations and then assess the degree of impact on those interests, as required under the second inquiry.

[85] On the whole, when this second inquiry is approached properly and analyzed in accordance with the standards set out in Grant and Côté, the impact on the respondent's Charter-protected rights was in the middle of the spectrum. While the impact on her freedom to choose was significant, the impact on her privacy and liberty interests was minimal.

(3) Society's interest in an adjudication on the merits

[86] The trial judge identified the three factors in this third inquiry as the reliability of the evidence, the importance of the evidence to the Crown's case and the seriousness of the offence. The trial judge correctly noted that the breath test evidence was reliable and that its exclusion would substantially undermine the Crown's case. He also noted McLachlin C.J.C.'s statement for the majority of the Supreme Court in R. v. Harrison (2009), 97 O.R. (3d) 560, [2009] 2 S.C.R. 494, [2009] S.C.J. No. 34, 2009 SCC 34, at para. 34, that the seriousness of the offence not take on disproportionate significance. He held that the public interest in having the case decided on the merits favours admission of the breath test results. I agree with this conclusion.

(4) Balancing the three lines of inquiry

[87] It is for the trial judge to weigh the various indications, and where the trial judge has considered the proper factors, appellate courts should accord considerable deference to the trial judge's ultimate determination: Grant, at para. 86. I have identified [page534] several errors by the trial judge which, in my view, undermine his ultimate determination.

[88] As well, in my view, the trial judge erred in the weighing process itself. When balancing the three lines of inquiry, the trial judge relied heavily on two cases: R. v. Woods, supra, and R. v. Wills (1992), 1992 CanLII 2780 (ON CA), 7 O.R. (3d) 337, [1992] O.J. No. 294 (C.A.). While the trial judge recognized that Woods was decided before Grant and Harrison, he failed to take this factor into account. The Supreme Court's entire reasoning on s. 24(2) in Woods is found at paras. 47 and 48 of that decision:

It is common ground that the results of the ASD test and of the subsequent breathalyzer test were inadmissible against the respondent if the initial breath sample provided by him was neither voluntary nor obtained under the statutory authority of s. 254(2) of the Criminal Code.

For the reasons given, I have concluded that the respondent's ASD breath sample was inadmissible on either basis and that the breathalyzer evidence upon which he was convicted was therefore unlawfully obtained and inadmissible as well.

[89] This conclusion is a product of the pre-Grant law that had developed an almost automatic exclusionary rule for breath test evidence. That approach was expressly overruled in Grant, supra (2009), at para. 107. In its place is the analysis based on the three inquiries, which will often favour admission of breath test evidence, as explained at para. 111 of Grant:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be case with breath sample evidence, whose method of collection is relatively non-intrusive.

[90] The trial judge briefly referred to para. 111 of Grant but failed to address this holding when he came to consider the Woods decision. Rather, he appears to have interpreted Woods as supporting his view, expressed at para. 88 of his reasons, that the delay in administering the screening device demand and in failing to advise the appellant of her s. 10(b) rights "strikes at the very core of the administration of justices' repute in the long term".

[91] The trial judge's reliance upon this court's decision in Wills was similarly flawed. The trial judge relied upon the following passage from p. 347 O.R. of the reasons:

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 [page535] the taking of a person's blood or urine, insofar 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.

(Emphasis added)

[92] Again, this approach to breath samples was overruled by the majority of the court in Grant, at para. 111. The court has recognized that breath sample evidence is relatively non-intrusive and is not the significant state intrusion into one's personal privacy described in Wills.

[93] Given the errors by the trial judge in his analysis of the first and second lines of inquiry and in his balancing of the interests, it is open to this court to balance the various factors without the usual deference that is accorded the trial court.

[94] Properly understood, the first and third lines of inquiry favour admission of the evidence: the first inquiry favours admission and the third inquiry strongly favours admission. The second line of inquiry favours exclusion, but not strongly. This was not a case of serious state abuse, and the breaches of the respondent's rights were driven, in a significant respect, by the unusual circumstances. On balance, the circumstances favour admissibility of the evidence. The respondent has not met her burden of showing that the admission of the evidence could bring the administration of justice into disrepute.

Disposition

[95] Accordingly, I would allow the appeal, set aside the acquittals and order a new trial.

Appeal allowed.

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