Court File and Parties

Court File No.: Central East 11-1821 Date: 2012-06-20 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Jasvinder S. Jheeta

Before: Justice C.M. Harpur

Heard on: March 21 and April 11, 2012

Reasons for Judgment released on: June 20, 2012

Counsel:

• Shannon Curry, for the Crown
• Frederick S. Fedorsen and Adam Little, for the accused Jasvinder S. Jheeta

HARPUR J.:

Overview

[1] Mr. Jheeta is charged with care or control of a motor vehicle on March 29, 2011 with excess blood alcohol. His trial proceeded on March 21, 2012, blended with an application for relief under the Charter pursuant to ss. 7, 8, 9, 10(a)(b), 11(d) and 24(1)(2). Also on March 21, 2012, a separate voir dire was conducted in respect of Mr. Jheeta's application to stay the charge for delay under ss. 11(b) and 24(1) of the Charter. Counsel agreed that the s. 11(b) Charter application need not be resolved prior to proceeding with the trial and blended Charter voir dire.

[2] The relief other than the stay sought by Mr. Jheeta under the Charter is an exclusion of the Certificate of Analysis of the samples evidencing excess blood alcohol or, alternatively, a denial of the presumption of identity as between the lower sample and Mr. Jheeta's blood alcohol concentration at the time of his care or control.

[3] The only evidence called at trial and on the blended Charter motion was presented by the Crown. It comprised the viva voce testimony of P.C. Ronald Vandeursen, the Crown's acknowledgment of certain times of events and brief facts concerning the involvement of the third police officer at the scene, P.C. Hunter, read into the record on consent.

[4] For the reasons which follow, I find Mr. Jheeta not guilty.

Facts

[5] The facts are not in dispute. They are set out in the following paragraphs 5-19.

[6] At approximately 2:00 a.m. on March 29, 2011, P.C. Vandeursen, an O.P.P. Officer with 14 years experience, was on duty proceeding in a marked police vehicle northbound on Highway 400 close to the Highway 89 exit. He was approached from behind and overtaken by a vehicle which, his radar indicated, was travelling at 157 kilometres per hour. He activated his emergency lights. The vehicle stopped. He approached the front passenger window which the driver and lone occupant, Mr. Jheeta, opened.

[7] P.C. Vandeursen asked for Mr. Jheeta's driver's licence, insurance and vehicle registration. Mr. Jheeta advised P.C. Vandeursen that he was a police officer and showed his badge and warrant card in his opened wallet. P.C. Vandeursen again asked for Mr. Jheeta's licence and proof of insurance. These were provided.

[8] P.C. Vandeursen told Mr. Jheeta that he had been clocked at 157 kilometres per hour and was being investigated for stunt driving. P.C. Vandeursen returned to his cruiser and contacted the police Communications Centre concerning Mr. Jheeta and his licence status. Having received this information back from the Communications Centre, P.C. Vandeursen returned to Mr. Jheeta and spoke to him, putting his head inside Mr. Jheeta's car. P.C. Vandeursen smelled alcohol on Mr. Jheeta's breath. At approximately 2:08 a.m. by his watch, he enquired whether Mr. Jheeta had had anything alcoholic to drink. Mr. Jheeta acknowledged having had two beers more than two hours previously. P.C. Vandeursen immediately formed the suspicion that Mr. Jheeta had alcohol in his body.

[9] I pause at this point in the narrative to note that P.C. Vandeursen's evidence as to the times of various events was based, he said, upon his "dash notes" and his watch. At the conclusion of the Crown's case, counsel indicated their agreement that the true times of various events are to come from the Communications Centre chronology which was part of the Crown disclosure. That chronology establishes that P.C. Vandeursen's noted times are two minutes behind the Communications Centre times. P.C. Vandeursen testified, for example, that the second officer to arrive on scene, P.C. Sheardown, arrived at 2:44 a.m. whereas the Communications Centre time put this event at 2:46 a.m. Given counsels' agreement, I have adjusted each of the times to which P.C. Vandeursen testified by two minutes so as to accord with Communications Centre time. None of the interval lengths argued by counsel to be significant is affected by these adjustments. The first of them is the aforementioned time at which P.C. Vandeursen detected alcohol on Mr. Jheeta's breath, from 2:08 a.m. to 2:10 a.m. The times subsequently referred to in these reasons are adjusted times.

[10] P.C. Vandeursen did not have an approved screening device (ASD) in his vehicle when he stopped Mr. Jheeta. His role at the time with the Ontario Provincial Police, and on this shift, was collision reconstruction, although he acknowledged that he performed general law enforcement duties when on the road. His vehicle was full of reconstruction equipment. Without making any demand of Mr. Jheeta after smelling the alcohol, P.C. Vandeursen returned to his vehicle, again called the Communications Centre and requested an ASD. The Communications Centre response, shortly thereafter, was that another police officer was en route with the ASD. P.C. Vandeursen was not told how long the delay would be. He returned to Mr. Jheeta's vehicle and, at 2:17 a.m., told Mr. Jheeta that the ASD was en route and that he was uncertain as to when it would arrive.

[11] P.C. Vandeursen did not advise Mr. Jheeta he was being investigated for an excess blood alcohol offence or give Mr. Jheeta his s. 10(b) Charter rights at 2:17 a.m. nor had he done so previously. He said that he did not do so because he was uncertain whether the ASD would arrive and, if it arrived, whether it would be useable, in which case he would not be proceeding further with any blood alcohol investigation. He acknowledged that failing to give Mr. Jheeta his s. 10(a)(b) Charter rights in this interval was contrary to his training.

[12] After speaking with Mr. Jheeta, P.C. Vandeursen returned to his cruiser and began his paperwork concerning a stunt driving charge under s. 172 of the Highway Traffic Act. This was a process which he anticipated from his experience would take approximately 30 minutes.

[13] At 2:26 a.m., P.C. Sheardown arrived with an ASD. P.C. Vandeursen spoke with P.C. Sheardown, confirmed that the ASD had been calibrated with sufficient recency and, at 2:29 a.m., made a demand under s. 254(2)(b) C.C.

[14] At 2:32 a.m., P.C. Vandeursen began the testing procedure. At 2:34 a.m., Mr. Jheeta provided a suitable sample into the ASD, producing a "fail" reading. P.C. Vandeursen did not then either arrest Mr. Jheeta or make demand for samples of his breath under s. 254(3)(a) C.C. He said at trial that he was not aware of any obligation to do so immediately but recognized that the Intoxilyzer demand should be made "very shortly" after having grounds.

[15] Neither P.C. Vandeursen's nor P.C. Sheardown's cruiser had room for Mr. Jheeta. A third officer, P.C. Hunter, had arrived on scene at 2:29 a.m. and had parked in line behind Mr. Jheeta's car and the cruisers of P.C. Vandeursen and P.C. Sheardown. For reasons not explained at trial, P.C. Vandeursen placed Mr. Jheeta in Mr. Jheeta's own car for safety immediately following receipt of the roadside sample, not in P.C. Hunter's cruiser.

[16] At 2:38 a.m., P.C. Vandeursen arrested Mr. Jheeta for the "over 80" offence, handcuffed him, conducted a pat-down search of his person and then placed him in P.C. Hunter's cruiser.

[17] At 2:43 a.m., P.C. Vandeursen gave Mr. Jheeta his rights to counsel from his notebook. Mr. Jheeta answered "yes" when asked "do you wish to speak to a lawyer now". P.C. Vandeursen asked Mr. Jheeta if he had a lawyer. Mr. Jheeta said that he did not and requested legal aid. P.C. Vandeursen said legal aid would be contacted. P.C. Vandeursen testified that he was aware, in dealing with Mr. Jheeta, that Mr. Jheeta was in possession of a cell phone.

[18] Also at 2:43 a.m., Mr. Jheeta was cautioned and given the Intoxilyzer demand.

[19] At 2:50 a.m. P.C. Vandeursen left the scene and followed P.C. Hunter's cruiser carrying Mr. Jheeta to the Barrie detachment of the O.P.P. They arrived at 3:05 a.m. Mr. Jheeta was lodged in a cell. P.C. Vandeursen called duty counsel at 3:15 a.m. Duty counsel called back at 3:20 a.m. and spoke to Mr. Jheeta until 3:24 a.m. At 3:27 a.m., P.C. Vandeursen turned Mr. Jheeta over to the breath technician.

[20] Made Exhibit one at trial, subject to defence submissions concerning admissibility, was the breath technician's Certificate of Analysis showing a lower reading of 140 milligrams of alcohol in 100 millilitres of blood. No issue was taken by the defence with the process by which the breath samples were taken at the detachment.

Issues and Analysis

a. The s. 254(2) C.C. "forthwith" issue

[21] Mr. Little and Mr. Fedorsen, for Mr. Jheeta, do take issue with the Crown's ability to prove its case by introducing the Certificate. Their submission is based primarily on the law as recently set out in R. v. Quansah, 2012 ONCA 123. Paraphrased, that argument is as follows: The two step detection and enforcement procedure in s. 254 C.C. is a legislative ratification of what would otherwise be a violation of ss. 8, 9 and 10(b) Charter. Accordingly, the demand made pursuant to s. 254(2) C.C. must be validly made in order to avoid an unjustified seizure of the suspect's breath or an arbitrary detention of the suspect or a wrongful failure to advise the suspect of his right to counsel. The demand under s. 254(2) C.C., like the suspect's provision of the sample, must be made "forthwith". "Forthwith" means a prompt demand and immediate compliance subject to "delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty". Tolerable delay can include "a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available". What constitutes "forthwith" demand and compliance – and thus what constitutes reasonably necessary delay – is to be determined by a "careful consideration of all the circumstances of the particular case" and whether the demand and response have taken "no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2)". The defence further submits that in this case a delay of 22 minutes (2:10 a.m. to 2:32 a.m.) from formation of suspicion to commencement of ASD testing exceeds the time reasonably necessary.

[22] The reason for the delay here is the fact that P.C. Vandeursen did not have an ASD and had to await one. It took 16 minutes for the ASD to be brought to P.C. Vandeursen by P.C. Sheardown, three minutes for P.C. Vandeursen to speak to P.C. Sheardown, receive the machine and check its calibration and three more minutes for P.C. Vandeursen to begin to take a sample from Mr. Jheeta.

[23] In Quansah, LaForme, J., for a unanimous bench, said that if the sample is not obtained before there is a reasonable opportunity to consult with counsel, the "forthwith" requirement will not have been met. The Ontario Court of Appeal also held in that case that, even if a sample is obtained before there is such reasonable opportunity, nonetheless, if there has been a delay beyond what is reasonably necessary for the steps in s. 254(2) C.C., again, the "forthwith" requirement will not have been met.

[24] Here, I find that P.C. Vandeursen's demand and administration of the roadside test were not "forthwith" in the sense of preceding a reasonable opportunity for Mr. Jheeta to contact counsel. I note P.C. Vandeursen's evidence that (i) he was aware of Mr. Jheeta's possession of a cell phone in their dealings; (ii) twenty-two minutes elapsed between his suspicion of alcohol and the start of his roadside sampling; (iii) when given rights to counsel at 2:42 a.m., Mr. Jheeta indicated a desire to speak to a lawyer immediately; and (iv) once back at the detachment, P.C. Vandeursen was able to receive a call back from duty counsel within five minutes and Mr. Jheeta was able to complete his consultation with duty counsel within four minutes. The after-the-fact speed of the return call from duty counsel and of Mr. Jheeta's ability to receive the advice he required are relevant evidence concerning what might have been accomplished had an effort to afford Mr. Jheeta his s. 10(a)(b) Charter rights begun at 2:10 a.m., as is his possession of a cell phone to the knowledge of P.C. Vandeursen: R. v. Tornsey, 2007 ONCA 67; R. v. George.

[25] P.C. Vandeursen's performance of his demand and compliance duties was not in accordance with the requirements of s. 254(2) C.C. Accordingly, P.C. Vandeursen's detention of Mr. Jheeta was arbitrary, his seizure of the roadside sample unreasonable and his failure to observe the requirements of s. 10(a)(b) Charter unexcused.

[26] Even if I concluded that Mr. Jheeta did not have a reasonable opportunity to consult counsel prior to commencement of the roadside test, nonetheless I would find that the delay from P.C. Vandeursen's suspicion to the commencement of the test is more than reasonably necessary to enable P.C. Vandeursen to discharge his s. 254(2) C.C. duties.

[27] P.C. Vandeursen acknowledged in his evidence in chief that, despite his primary role as a collision reconstruction investigator, his duties included law enforcement generally when he was travelling on the province's highways. One can readily sympathize with the travails of a police officer who is, as he said, ten hours into a twelve hour shift returning to his detachment from a collision investigation and who is suddenly called upon to deal with, initially, an apparent stunt driver and, latterly, a driver who had consumed alcohol, possibly to excess. However, given the breadth of the officer's duties on March 29, 2011, there is no basis to distinguish him from any other officer then patrolling Highway 400. His lack of an ASD, while understandable, necessarily meant that there would be some delay if he were compelled to act under s. 254(2) C.C. In the event, that delay was twenty-two minutes.

[28] Unlike the facts in Quansah and its seventeen minute delay, here, no evasive conduct by Mr. Jheeta, nor need to search his car for weapons, nor other factor apart from the wait for the ASD serves to explain the elapsed time. Mr. Jheeta's case is, accordingly, more analogous on its facts to R. v. Grant. There, a thirty minute delay defeated the "forthwith" requirement. The Supreme Court so found in the following terms:

Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who was without an alert unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) [now, s.254(2)] will not be satisfied.

[29] I can see no logical basis to distinguish between Grant's thirty minutes and the twenty-two minutes here. Both seem to me to fall outside the time requirements which, viewed objectively, are incidental to "prompt performance of the steps contemplated by s. 254(2)", in the words of Laforme, J. in Quansah, under a legal regime which calls for demand coincidental with reasonable suspicion and immediate compliance or refusal by a detainee.

b. The "Rilling" Issue

[30] The defence submission is that, if the court finds non-compliance with s. 254(2) C.C., as I have, it is at a fork in the road of legal analysis. Mr. Little for Mr. Jheeta notes the traditional route forward at this point: an analysis under s. 24(2) Charter and a determination of whether the Certificate evidence is to be excluded. However, he proposes that there is another, less travelled path to be explored first, namely, that Mr. Jheeta required no more for an acquittal than a finding that the "forthwith" requirement of s. 254(2) C.C. was not honoured, regardless of whether this connotes a Charter breach or breaches. In short, the defence argues that the law is no longer the holding in R. v. Rilling that absence of grounds to demand a breath sample under the current s. 254(3) C.C does not, per se, render the Certificate evidence inadmissible.

[31] Mr. Little and Ms. Curry for the Crown have provided comprehensive written and oral submissions on both points.

[32] Wary of adventure, I propose first to examine the admissibility of the evidence under the more conventional Charter approach.

S. 24(2) Charter

a. The "additional breaches"

[33] In submitting that a s. 24(2) Charter analysis should lead to exclusion, the defence proposes that I should take into account not only the Charter violations comprising the s. 254(2) C.C. shortcomings but additional, alleged Charter breaches. Specifically, Mr. Little observes that P.C. Vandeursen obtained a "fail" reading on the ASD at 2:34 a.m. yet did not arrest Mr. Jheeta until 2:38 a.m. and did not give rights to counsel and breath demand until 2:42 a.m.

[34] On cross-examination, P.C. Vandeursen acknowledged that a police officer should arrest a suspect immediately on having grounds to do so and that he had not observed this obligation, although there was no impediment to an immediate arrest of Mr. Jheeta. P.C. Vandeursen also said he was aware of the need for the making of s. 254(3) C.C. demand "shortly after" having reasonable grounds, and that, again, he could have done so immediately upon Mr. Jheeta's registering an "F" on the ASD.

[35] As noted, P.C. Vandeursen also acknowledged in cross-examination that P.C. Hunter had arrived and parked close to where P.C. Vandeursen was administering the roadside test. From this, the defence argues, the time spent putting Mr. Jheeta in his car and then transferring him to P.C. Hunter's cruiser was time wasted and cannot be regarded as reasonable delay either for the arrest, the giving of rights to counsel or the giving of an Intoxilyzer demand.

[36] Thus, the defence proposes that P.C. Vandeursen breached Mr. Jheeta's s. 10(a)(b) Charter rights by delaying four minutes from having grounds until the arrest and eight minutes from having grounds to provision of the informational counsel right. The defence further proposes that P.C. Vandeursen breached Mr. Jheeta's s. 7, 8 and 9 Charter rights by allowing eight minutes to elapse from grounds (2:34 a.m.) until demand (2:42 a.m.) failing to make the s. 254(3) C.C. demand "as soon as practicable", and thus causing an arbitrary detention and, ultimately, an unreasonable seizure of the samples producing the 140 mg. reading.

[37] Dealing with the last of these alleged additional breaches first, I am satisfied on a balance of probabilities that P.C. Vandeursen's demand met the requirements of s. 254(3) C.C., leaving aside his reliance on the ASD failure. The Criminal Code does not require that the samples demand and the arrest be simultaneous. R. v. Squires interprets the requirement of "as soon as practicable" in s. 254(3) as "within a reasonably prompt time". The eight minute delay between the fail and the approved instrument demand was attributable to P.C. Vandeursen's initially taking Mr. Jheeta to his own car to prevent his exposure to danger at the side of the highway (apparently not then considering P.C. Hunter's cruiser), briefing P.C. Hunter about his investigation of a person who was apparently a police officer, returning to Mr. Jheeta's car, telling Mr. Jheeta the test result, arresting Mr. Jheeta, handcuffing Mr. Jheeta, cursorily searching Mr. Jheeta and, finally, placing him in P.C. Hunter's cruiser. While P.C. Vandeursen could have made the demand earlier than 2:42 a.m., I do not regard the steps taken by him as dilatory in this context.

[38] The same cannot be said of what P.C. Vandeursen did, or failed to do, about Mr. Jheeta's s. 10 Charter rights following Mr. Jheeta's failing the roadside test. At this point, any suspension of Mr. Jheeta's counsel rights during P.C. Vandeursen's s. 254(2) C.C. procedure had unequivocally come to an end. The need to inform Mr. Jheeta of the intention to arrest for the "over 80" charge and of his right to consult legal counsel was urgently present. As McLachlin, C.J. stated for the majority in R. v. Suberu, 2009 SCC 33:

The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged.

[39] Immediacy applies to s. 10(a) as well as to s. 10(b) Charter rights; a detainee's decision-making under s. 10(b) Charter can only be exercised properly if he or she is sufficiently apprised of the jeopardy faced: R. v. Evans, [1991] S.C.R. 869.

[40] Thus, while I regard the delay from 2:34 a.m. (the fail) until 2:42 a.m. (counsel rights and breath demand) as "reasonably prompt" for purposes of s. 254(3) C.C., it does not comply with the more rigorous standard of immediacy under s. 10 Charter. I recognize that Suberu qualifies the general immediacy requirement with an exception in the form of concerns for officer or public safety and that R. v. Strachan, [1998] 2 S.C.R. 980 establishes the legitimacy of brief delay in complying with a detainee's counsel rights when necessary for the police to gain control of a situation. However here P.C. Vandeursen had escorted Mr. Jheeta to his car and placed him there immediately following the fail. Safety and control were not issues. As P.C. Vandeursen fairly acknowledged, he could and should then have arrested Mr. Jheeta and given him his rights to counsel.

b. The s. 24(2) analysis

[41] Turning to s. 24(2) Charter, R. v. Grant, 2009 SCC 32 calls for an assessment and balancing of the effect of admitting the Certificate evidence on society's confidence in the justice system, having regard to the seriousness of the Charter-infringing state conduct, the impact of the breach or breaches on the Charter-protected interests of Mr. Jheeta, and society's interest in the adjudication of this case on its merits.

[42] As to seriousness, while one can be sympathetic to the demanding circumstances in which P.C. Vandeursen found himself on the morning of March 29, 2011 and while I see no evidence of bad faith on his part, nonetheless good faith cannot be claimed: at best, P.C. Vandeursen appears not to have turned his mind to the fact that his actions, both before and after Mr. Jheeta's "fail" reading, were not, as he now concedes, in keeping with his training or his obligations. The Charter breaches were absent-minded rather than egregious or flagrant but significant nonetheless.

[43] Hill, J. in R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.) described the range of Charter breaches as "a continuum of unconstitutional departure from the minor, trivial, technical or product of an understandable mistake to wilful or reckless disregard of Charter rights". P.C. Vandeursen's departure in the form of his s. 254(2) C.C. shortcomings was, I think, a mistake but closer to careless than understandable on this continuum. When it is combined with the persistence of the s. 10 Charter breach even after the 'fail" reading was obtained, I would, using the "somewhat serious/moderately serious/very serious" scale implied by Durno, J. in R. v. Yamka, [2011] O.J. No. 283 (S.C.J.), regard the rights-infringing conduct here as moderately serious. In this regard, the conduct favours exclusion.

[44] Turning to the impact of P.C. Vandeursen's actions on Mr. Jheeta's rights, Mr. Jheeta's perspective is that which is to be considered: Fildan; Yamka. Mr. Jheeta did not testify or file affidavit evidence on the voir dire concerning these Charter violations. Impact specific to him is not in evidence. However, generic impact in the form of the suspension of his liberty for several hours, the seizing of his roadside breath sample and, ultimately, the seizing of his Intoxilyzer samples can be inferred.

[45] Ms. Curry for the Crown points out that, in Grant, the Supreme Court of Canada described the intrusion of bodily integrity which the taking of breath samples represents as "relatively non-intrusive" and she submits that generic impact on Mr. Jheeta should be so regarded.

[46] I do not regard Grant as authority for the proposition that the overall procedure set out in s. 254(2)(3) C.C., from roadside stop to second Intoxilyzer sample, is relatively non-intrusive. That description comes in Grant at the point where the Court is dealing, not with impact on the accused, but with an aspect of the third line of inquiry: the effect of admitting the bodily sample evidence on the public interest. In that limited context, the Court is commenting that bodily sample evidence does not suffer from lack of reliability - the traditional, perceived flaw of compelled evidence - but is a deliberate intrusion on bodily integrity and dignity and thus is presumptively to be excluded. The "collection of a breath sample" is given as a possible exception to the presumption by reason of its relative innocuousness. In my view, the Court was denoting roadside sampling and Intoxilyzer testing per se with the phrase "method of collection", in contrast to procedures where the interference with bodily integrity and dignity are high, such as an unlawful strip search. A similar view is expressed by Ducharme, J. in R. v. Au-yeung, 2010 ONSC 2292, as follows:

[60] As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significant compelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from the breath sample is far from the "biographical core of personal information" that is protected by s. 8. These factors favour the admission of the evidence.

[61] But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to the police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of s. 9.

[47] P.C. Vandeursen's basis to detain Mr. Jheeta apart from the excess alcohol investigation was the stunt driving investigation under s. 172 of the Highway Traffic Act. He said the paperwork for that offence would take approximately thirty minutes. While that delay, a licence suspension and the impounding of Mr. Jheeta's car were going to ensue under the provisions of the Highway Traffic Act even in the absence of a continuation of the excess blood alcohol investigation, the implications of the Criminal Code investigation in terms of its additional length and increased jeopardy were material.

[48] As did Ducharme J. in Au-Yeung, I regard this factor as favouring exclusion.

[49] The third branch of s. 24(2) Charter analysis favours inclusion of Mr. Jheeta's roadside "fail" and, following from it, the Certificate evidencing Mr. Jheeta's excess blood alcohol concentration. They are essential to proof of the Crown's case and are reliable. They are not bodily samples the collection of which, per se, involved significant interference with Mr. Jheeta's dignity or physical integrity. Mr. Jheeta's offence is one of those exacting a huge toll of death, personal injury and property damage in our communities. Mr. Jheeta is a police officer who stands, and must be seen to stand, equally with all other accused persons before the criminal law. In sum, the public interest in trying the offence on its merits is high.

[50] Balancing the three Grant factors requires two things: the positing of an informed and enlightened Canadian society and an assessment of whether, in a given case, that society would regard a Court's overlooking of the violation or violations of an accused's Charter rights – thus enhancing the search for the truth regarding the accused's criminal conduct – as detracting from the trustworthiness of our system of criminal justice. The balancing is certainly not an exact science. The scale here does not tip resoundingly in favour of inclusion. However, an experienced police officer, having been trained and regularly refreshed in administering roadside tests and familiar with the requirements of arrests, strayed repeatedly from that training and those requirements. His omissions cannot be said to be the product of an understandable mistake or as having been momentary. As his conduct relates to s. 254(2) C.C., it resulted in the wrongful seizure of the roadside breath sample, a wrongful arrest, a wrongful deprivation of liberty and a wrongful seizure of the Intoxilyzer samples. The s. 254(2) C.C. error was compounded by a failure to observe Mr. Jheeta's s. 10 Charter rights.

[51] I am persuaded that this is a case where the court would be seen as condoning serious state misconduct and little valuing Mr. Jheeta's rights if the Certificate evidence were admitted. The state wields great power in relation to the citizen. Careless overlooking of rights can be as harmful as deliberate disregard in the result.

[52] P.C. Vandeursen's infringements of Mr. Jheeta's rights were not deliberate or flagrant but they were multiple and protracted, were contrary to P.C. Vandeursen's own understanding of his duties, as he very fairly admitted, and had significant negative repercussions for Mr. Jheeta. They are infringements from which the justice system should disassociate itself by my excluding the Certificate.

[53] The exclusion of the Certificate deprives the Crown of proof beyond reasonable doubt of the offence charged and Mr. Jheeta is entitled to an acquittal.

[54] By reason of the foregoing findings, I do not propose to consider Mr. Jheeta's application for a stay under ss. 11(b) and 24(1) Charter nor, despite Mr. Little's invitation and the clearly invigorating nature of the exercise, to attempt to determine the question of whether Rilling remains the law. I am grateful to counsel, however, for the obvious hard work underlying their thorough submissions on those two issues. They will prove very helpful another day.

Released: June 20, 2012

Signed: "Justice C.M. Harpur"