R. v. Ouellette

Court File No.: Brampton 10-8518 Date: August 16, 2012 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Mark Ouellette

Before: Justice Richard H.K. Schwarzl

Heard on: April 18, September 30, and October 17, 2011; January 19, April 27, and August 16, 2012

Reasons for Judgment released on: August 16, 2012

Counsel:

• Ms. Cynthia Nadler, for the Crown
• Mr. Douglas Lent, for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] Mark Ouellette was charged on July 14, 2010 with two alcohol-related driving charges. He pled not guilty to each charge. This trial was scheduled to take one day but ultimately consumed parts of six days to complete.

[2] Numerous issues were raised. They included substantive issues on both the impaired and "over 80" charges; voluntariness of Mr. Ouellette's statements made in the police station breath room; claims of Charter violations regarding the investigation of each offence; and claims that Mr. Ouellette's right to be tried within a reasonable time was breached. I dismissed one 11(b) Charter application on October 17, 2011 but it was renewed when it took four more months to finish the case.

2.0: FACTS

2.1: Marek Rybarczyk

[3] At around 6:00 p.m. on July 14, 2010 Mr. Marek Rybarczyk was driving home from work. He was driving northbound on Kennedy Road when he stopped at a red light at Steeles Avenue in Brampton when he noticed a dark coloured Dodge Charger that failed to move when the light turned green, causing another car to go around it. When the Dodge finally proceeded, it turned west onto Steeles. Mr. Rybarczyk followed the car and noticed that it drove erratically by crossing the lines separating the westbound lanes. He pulled up beside the car and noticed the male driver to be leaning noticeably forward and to the side while driving. Mr. Rybarczyk was so concerned that he called 911 and reported the licence plate while continuing to follow the poorly driven car. When it turned from McLaughlin to Charolais, the car delayed unnecessarily when making the turn. It was also speeding, travelling around 80 km/h in a posted 50 zone. Later, while turning onto Chingcousay Road, the car lost control and side-swiped the centre median before recovering. Mr. Rybarczyk was told by the 911 operator to stop following the car, which he did on Drinkwater Street. Mr. Rybarczyk estimated that he followed the car for between five and ten minutes while on the phone to 911.

[4] Given that his attention was focused on the poor driving, Mr. Rybarczyk's evidence concerning times was an estimate based on his experience.

2.2: Jason Ferreira

[5] Jason Ferreira is a tow truck operator. He said that around 4:30 p.m. on July 14, 2010 he was in his truck at near Charolais and Chingcousay. He was monitoring the police frequencies on his radio when he overheard the dispatcher say that there was a possible impaired driver in the area. Within twenty seconds of hearing that information, he saw a grey Dodge Charger make a quick right turn onto Chingcousay, strike the centre median and swerving into the curb lane in the process. Mr. Ferreira followed the car which had a flat tire. He called 911 and stayed on the phone with them for several minutes as he followed the car onto Drinkwater, then on to Lockwood Road. Mr. Ferreira watched the car pull into the driveway of 85 Lockwood and although he saw the garage door come up, he did not see the car go into the garage. Mr. Ferreira described the driver as "An older looking guy in his mid-forties with a heftier upper body." Shortly afterwards, Mr. Ferreira met a policeman and told him the car was at 85 Lockwood.

2.3: P.C. Greg Greene

[6] On July 14, 2010 at around 6:05 p.m. P.C. Greg Greene overheard a radio dispatch regarding a possible impaired driver operating a Dodge Charger bearing licence plate AZBS 636, which was registered to 85 Lockwood. P.C. Greene drove to that address, arriving at 6:14 p.m. He saw two other police cars already there and that officers were speaking with a man on the front walkway near the garage. P.C. Greene stayed on the road and kept a watch on things from a distance. He left the scene at 6:25 p.m. without having any interaction with the man his colleagues were talking to. P.C. Greene did not note any signs of intoxication on the man.

2.4: P.C. Nathan Ball

[7] On July 14, 2010 at 6:03 p.m. P.C. Nathan Ball heard a dispatch concerning a possible white male impaired driver operating a Dodge Charger bearing licence plate AZBS 636. When P.C. Ball ran the plate on his computer, it said that the registered owner was Mark Ouellette of 85 Lockwood Road, Brampton. P.C. Ball drove straight to that address, arriving at 6:14 p.m. He found the driveway empty of vehicles and walked to the front door. After he knocked, a woman answered it. When she told him that her husband drove a Dodge Charger, P.C. Ball asked her to send her husband outside. The Accused came outside and spoke with the officer. P.C. Ball noticed that Mr. Ouellette's eyes were red rimmed and watery and that he had a strong odour of alcohol on his breath. Mr. Ouellette told P.C. Ball that he drank some beer around noon.

[8] While P.C. Ball was speaking to Mr. Ouellette, P.C. Walfall arrived. When P.C. Ball asked Mr. Ouellette where his car was he told the officers that it was inside the closed garage. Mr. Ouellette agreed to open the garage after the police told him they wanted to see it. While walking to the garage, Mr. Ouellette stumbled and lost his balance. Inside the garage, Mr. Ouellette lost his balance again and nearly fell to the ground. P.C. Ball looked at the Dodge Charger, which had been skillfully backed into the tight confines of the garage despite having a flat tire.

[9] P.C. Ball took a statement from Marek Rybarczyk at 6:37 p.m. after turning over the investigation to P.C. Walfall.

[10] P.C. Ball made no threats, promises or inducements to Mr. Ouellette.

2.5: P.C. Rashid Walfall

[11] On July 14, 2010 at 6:02 p.m. P.C. Rashid Walfall received a radio call regarding a possible impaired driver operating a motor vehicle with a flat tire onto 85 Lockwood Road. P.C. Walfall arrived there at 6:16 p.m. and saw P.C. Ball speaking to Mr. Ouellette and his wife on the driveway. There were other officers there, too, but they were standing a distance away and were not involved with the Ouellettes.

[12] When P.C. Walfall approached, he notice that the Accused smelled of alcohol, had red rimmed, bloodshot and watery eyes, held the wall for support from time to time and stumbled when he walked to the garage door. The officer did not notice any problems with Mr. Ouellette's speech. Mr. Ouellette said that he had a pitcher of beer and some chicken wings at a bar earlier that day. Mr. Ouellette complied with P.C. Ball's request to look at his car. When the Accused opened his garage to allow the police inside, P.C. Walfall saw a grey Dodge Charger with a flat tire backed into the garage.

[13] After seeing the Dodge inside the Accused's garage P.C. Walfall formed his grounds to arrest Mr. Ouellette for impaired driving and did so at 6:26 p.m. P.C. Walfall's grounds to arrest the Accused and then make a breath demand were based on the following:

(i.) The smell of alcohol on Mr. Ouellette's breath;

(ii.) His admission to drinking;

(iii.) His stumbling;

(iv.) The condition of his eyes;

(v.) The citizens' complaints of bad driving; and

(vi.) The car in the garage matched the vehicle complained of.

[14] After P.C. Walfall gave Mr. Ouellette his rights to counsel, the Accused stated that he wanted to speak with his lawyer, Richard Desrocher. Mr. Ouellette provided the officer with Mr. Desrocher's phone number. P.C. Walfall also read Mr. Ouellette a breath demand and the primary police caution, both of which the Accused said he understood. He then took the Accused straight to a police station for the purpose of breath testing by a qualified technician, to whom the Accused was turned over at 7:06 p.m.

[15] Some one-half hour after arriving at the station, P.C. Walfall left a message at 7:11 p.m. for Duty Counsel to call. The delay was caused by the booking process and by P.C. Walfall giving his grounds to the qualified technician. At 7:21 p.m. P.C. Walfall tried to find a name and number for Mr. Desrocher in the Lawyer's Phone Book but could not find that name. P.C. Walfall called the phone number that Mr. Ouellette had given him but the officer believed it was the wrong number, so he did not leave any message. At 7:28 p.m. Duty Counsel called back. Mr. Ouellette spoke with the lawyer in private, completing his conversation at 7:40 p.m. Mr. Ouellette did not complain about speaking to Duty Counsel nor did he request to speak with any other lawyer, including Mr. Desrocher.

[16] After the first breath test was completed, Mr. Ouellette asked to speak with Duty Counsel again. His requested was honoured at 7:52 p.m. when Mr. Ouellette spoke to Duty Counsel in private until 8:17 p.m. before giving a second breath sample.

[17] At 8:26 p.m. P.C. Walfall served Mr. Ouellette with a Notice of Intention to Produce the Certificate of the Qualified Technician as well as true copy of the qualified technician's certificate, both of which were filed as exhibits.

[18] In his dealings with Mr. Ouellette, P.C. Walfall made no threats, promises or inducements. The only officers to have any contact with Mr. Ouellette were P.C. Walfall, P.C. Ball, the qualified technician, the booking sergeant and the cell's officer.

2.6: P.C. Kresimir Smintich

[19] P.C. Kresimir Smintich is a qualified technician. On July 14, 2010 at 6:39 p.m. P.C. Walfall gave him his grounds for arrest. At 6:50 or so P.C. Smintich spoke to Mr. Ouellette about his lawyer, whose name was given to the officer as Derosh. P.C. Smintich could not find a lawyer by that name in the Lawyer's Phone Book nor on the Law Society's website. At 7:16 p.m. P.C. Smintich found a lawyer whose name was Desrocher and gave that lawyer's phone number to P.C. Walfall to call. P.C. Walfall told P.C. Smintich that he had left a message for the lawyer who was a family and estates lawyer.

[20] P.C. Smintich's contact with the Accused inside the breath room was audio and video recorded on DVD. On the video, Mr. Ouellette explicitly stated that he did not want speak to Mr. Desrocher because "He is only my family lawyer." Mr. Ouellette wished to speak to Duty Counsel instead, which he was permitted to do twice. He called Duty Counsel the first time before any breath test and the second time between the first and second breath tests. At no time did Mr. Ouellettle complain about Duty Counsel or about the advice he received.

[21] It is clear from the breath room video that Mr. Ouellette was experiencing some occasional coordination problems. For example, he dropped the first mouthpiece while unwrapping it and at one point, when meaning to say "refusing", Mr. Ouellette said, "refooshing". Otherwise, he appeared to have no difficulty in his coordination of his thoughts or actions.

[22] At no time did P.C. Smintich threaten, induce, or make promises to Mr. Ouellette. To the contrary, after P.C. Smintich gave Mr. Ouellette the primary and secondary police cautions he made it very clear that Mr. Ouellette did not have to answer any questions unless he wanted to and that he could speak to a lawyer before deciding to talk to him. Mr. Ouellette chose to speak with the officer between breath tests after he spoke to Duty Counsel for the first time. Mr. Ouellette told P.C. Smintich the following material information:

(i.) He had beers and wings earlier that afternoon with three friends in Mississauga;

(ii.) He said the group drank three pitchers of beer;

(iii.) He drove his Dodge Charger with licence AZBS 636;

(iv.) He dropped off a friend at 4:30 and drove home from there;

(v.) He last drove around 5:15 p.m.;

(vi.) When the qualified technician told him that a citizen complained of erratic driving, Mr. Ouellette stated "I cut nobody off. I was doing regular speed, within the limit. I travelled Matheson to Mavis. From there I went north to Drinkwater. Mavis turns into Chingcousay at Steeles."

[23] P.C. Smintich used a properly functioning Intoxliyzer 8000C approved instrument to obtain and analyze two suitable samples of Mr. Ouellette's breath. The first sample was taken and analyzed at 7:50 p.m. with a blood alcohol concentration of 130 milligrams of alcohol per one hundred millilitres of blood. The second sample was taken and analyzed at 8:22 p.m. with a blood alcohol concentration of 130 milligrams of alcohol per one hundred millilitres of blood.

[24] P.C. Smintich made the following observations of Mr. Ouellette:

(i.) He was talkative and somewhat argumentative with the cell's officer and the booking sergeant;

(ii.) When told he would have to blow when they got into the breath room, he told P.C. Smintich "You blow me";

(iii.) There was an odour of alcohol on his breath;

(iv.) His entire face was flushed;

(v.) He eyes were red rimmed and watery;

(vi.) His speech was fair, having occasionally slurred or stammered words;

(vii.) He dropped the mouthpiece when unwrapping it.

[25] P.C. Smintich recalled that the booking sergeant was S/Sgt. Schultz and the cell officer was P.C. Morris, both of whom communicated with Mr. Ouellette only as part of the booking process upon his arrival at the station.

2.7: Johanna Dinwoody

[26] Johanna Dinwoody is an audio analyst for the Peel Regional Police. She listened to the 911 recordings made regarding this occurrence. She noted that two different people called 911.

2.8: Anna Cleary

[27] Anna Cleary is a communications officer with the Peel Regional Police. She was the dispatcher who received and logged the 911 calls in this case. The police computer system automatically inserts the times of all communications, including those made by the 911 callers and those made by police officials. Although she did not note the time the 911 call was received, she said that she logged the call at 6:02:50 p.m. She ran the licence plate and dispatched the purported owner's name and address to officers. She said she was on the phone until 6:09 p.m. updating information from the 911 callers until the callers were no longer following the suspect vehicle.

[28] Ms. Cleary deals with hundreds and hundreds of 911 calls each year as part of her duties. She testified that she has no personal memory of the times of this call and that she relied entirely on the report for times and details, although her memory as to some details was refreshed by listening to the 911 recording.

2.9: Santina Ouellette

[29] Santina Ouellette is the wife of the Accused. Unlike the prosecution witnesses whose evidence applied to both the trial and the Charter voir dire, her evidence applied only to the Charter voir dire. On July 14, 2010 a policeman knocked on her front door. He was accompanied by at three other officers. The officer wanted to speak with her husband who was sleeping on the sofa. Both she and Mr. Ouellette went outside. Her husband was in his stocking feet. She recalled that there were "quite a few" officers around her husband, all of whom conducted themselves professionally. The police told her husband to open the garage so they could see his car. Neither she nor her husband was told that Mr. Ouellette had an option to not cooperate with the police.

3.0: ISSUES

3.1: Were Mark Ouellette's Charter Rights Violated?

3.1.1: Section 8

[30] Mr. Ouellette submitted that his right under section 8 of the Charter to be free from unreasonable searches and seizures was infringed twice by the police by (a) unlawfully attending his house and then (b) unlawfully searching his garage for his car.

Police Attendance at Mr. Ouellette's House

[31] With respect to the attendance of the police at Mr. Ouellette's house, the defence relies on a number of authorities, including R. v. Lotozky, [2006] O.J. No. 2516 (C.A.). In that case, the Ontario Court of Appeal endorsed the principle set out by the Supreme Court of Canada in R. v. Evans, [1991] 1 S.C.R. 869 that the section 8 Charter right of a home owner is violated where the police approach the residence for the purposes of gathering evidence against the occupant. However, where the police attend a residence while still trying to figure out what happened and are invited in by an occupant, the occupant's s. 8 Charter right is not engaged: R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.J.); R. v. Desrochers, [2008] O.J. No. 1273 (C.A.).

[32] I do not agree with the defence that the initial attendance by police and their dealings with Mr. Ouellette at and outside his door infringed his section 8 Charter right. Here, when the police arrived at Mr. Ouellette's house they did not have reasonable and probable grounds to charge him or anyone else with an offence. They were not there to "gather evidence against the occupant" to use the words of Evans. The police investigation was too early for that. Reasonable grounds to believe that Mr. Ouellette had committed a crime did not crystallize until P.C. Ball and P.C. Walfall saw the damaged Dodge Charger inside the Accused's garage. The initial police attendance at the Ouellette's property did not violate Mark Ouellette's section 8 Charter right.

Police Search of the Garage

[33] With respect to the police entering the garage and searching it for Mr. Ouellette's car, I do agree with the defence that this was a violation of Mr. Ouellette's section 8 Charter right. The search in the circumstances of this case would only have been legal if it had been conducted with either a search warrant or with Mr. Ouellette's informed consent. The police did not have a search warrant, leaving them informed consent as the only lawful means of searching the Accused's garage.

[34] To be a valid consent search, the police had to comply with the principles set out in R. v. Wills (1992), 70 C.C.C. (3d) 529 (Ont. C.A.) wherein it was held that the Crown must establish on a balance of probabilities six criteria, namely:

(i) there was a consent, expressed or implied;

(ii) the giver of the consent had the authority to give the consent in question;

(iii) the consent was voluntary in the sense that it was free from coercion and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested;

(iv) the giver of the consent was aware of the nature of the police conduct to which he was being asked to consent;

(v) the giver of the consent was aware of his right to refuse to permit the police to engage in the conduct requested; and

(vi) the giver of the consent was aware of the potential consequences of giving the consent.

[35] Here, the Crown has failed to establish the fifth and sixth of the Wills criteria for a valid consent search. There is no evidence that Mr. Ouellette was informed or otherwise made aware of his right to refuse to open his garage to the police. To the contrary, there is evidence from Mrs. Ouellette that she and her husband did not know that they had the option to refuse. At page 540 of Wills, the court observed that "co-operation must… be distinguished from mere acquiescence in, or compliance with, a police request. True co-operation connotes a decision to allow the police to do something which they could not otherwise do. Acquiescence and compliance signal only a failure to object; they do not constitute consent." I find that Mr. Ouellette did not cooperate with the police, but rather merely complied with the police request to look into his garage. In addition, there is no evidence that the police made Mr. Ouellette aware of the real or possible consequences of consenting to the search.

[36] The Crown relies upon R. v. Kandiah, [2011] O.J. No. 2752 (S.C.J.) wherein the court held there was no section 8 Charter breach because the police had no surreptitious intent to investigate or to detain at the time of entry into the garage. I find the case before me is distinguishable from Kandiah. Here, the police could not see into the garage without first conscripting Mr. Ouellette to open it. The sole purpose of the police search was to gather evidence that the car which had been driven so badly was in fact at the home of the purported registered owner. This was the crucial piece of evidence that linked Mr. Ouellette to the offences with which he was charged. It was only with this information that P.C. Walfall had enough to form his grounds to arrest and to make a breath demand. In the absence of a warrant or of informed consent the search of the garage was illegal. Since the only purpose of the attendance at the garage was to gather evidence against Mr. Ouellette, the police presence in the garage became trespassory, violating the principles set out in Evans, supra.

[37] I find that Mr. Ouellette's section 8 Charter right was violated by the illegal search of his garage. It was only because of the illegal search that the car Mr. Rybarczyk and Mr. Ferreira had seen driving so dangerously was discovered in the Accused's garage.

[38] It will be recalled that P.C. Walfall's reasonable and probable grounds to arrest Mr. Ouellette were formed seeing the damaged suspect car. Prior to seeing the car he had only a suspicion, albeit a good and strong one, that Mr. Ouellette was the driver. Finding and viewing the car cinched the deal. Without that evidence, P.C. Walfall did not have reasonable grounds to believe Mr. Ouellette was the driver. Without that essential piece of the puzzle, the officer could not make a valid arrest or valid breath demand. Without a valid arrest or a valid breath demand, there was no basis in law to compel Mr. Oullette's attendance at the police station. Without a valid basis to compel his attendance at the police station, the breath test results and Mr. Ouellette's admissions to the qualified technician including that he was the driver were obtained illegally.

3.1.2: Section 9

[39] As I have found that the arrest of the Accused and the breath demand made to him were unlawful, I find that his detention and custody by the police was a violation of his right under section 9 of the Charter to be free from arbitrary detention.

3.1.3: Section 10(b)

[40] The defence submits that Mr. Ouellette's right to counsel was infringed because the police did not make reasonable efforts to put Mr. Ouellette in contact with Richard Desrocher, the lawyer he said he wanted to speak with upon his arrest.

[41] While there is some confusion in the evidence regarding P.C. Walfall's efforts to contact Mr. Desrocher, this confusion was cleared up after watching and listening to the breath room DVD wherein Mr. Ouellette expressly and unequivocally asserted his desire to not speak with Mr. Desrocher. He told P.C. Smintich that Mr. Desrocher was merely his family lawyer and that he preferred to speak with Duty Counsel, which he did not once but twice. He did not complain about the advice Duty Counsel gave him and he did not express a desire to speak to any other lawyer. Mr. Ouellette has failed to establish that his right to counsel was violated.

3.2: Having Established breach of his sections 8 and 9 Charter rights, should the evidence following those breaches be excluded?

[42] In R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 the Supreme Court set out a test wherein (1) the seriousness of the breach, (2) the impact of the breach on the Charter-protected interests of the Accused and (3) society's interest in the adjudication of the case on its merits must assessed and balanced to decide what, if any, remedy to give a person whose rights have been violated by the state.

(i) Seriousness of the Breach

[43] Here, there were breaches of two of Mr. Ouellette's Charter rights. I find the breaches to be at the high end of the seriousness scale. It is clear that the police either did not know, or did not care, about the principles set out in Evans or in Wills. Both of these cases are binding appellate authorities that have been, and remain, the law of the land for nearly twenty years before this investigation. In R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at ¶ 22 Chief Justice McLachlin noted that courts should dissociate themselves from police activity, "where the police knew (or should have known) that their conduct was not Charter-compliant."

[44] The seriousness of the violations is compounded because two officers were involved in infringing Mr. Ouellette's rights during the search. Both P.C. Ball and P.C. Walfall appeared ignorant of, or indifferent to, the constitutional rights of the Accused. While there was no evidence regarding their training, it must be more than sheer chance that two officers were blind to, or unconcerned about, their unlawful conduct. The public has the right to expect, and the police authorities have a fundamental duty to ensure, that front-line police officers possess knowledge of basic and long-standing principles of law. Being a policeman is not easy. They work in an environment that contains a vast amount of law which is constantly evolving and expanding. Nevertheless there is never an excuse for employing casual and ignorant attitudes towards the rights of accused citizens as was demonstrated in this case. The requirements to conduct a valid consent search have been well known for decades.

[45] Just as ignorance of the law is no excuse for those who break the law, this same ignorance cannot be an excuse for those who enforce the law. To say that the police in this case did not act callously or maliciously but instead acted in a state of well-intentioned indifference or guileless ignorance is to damn their sub-standard conduct with the faintest of praise.

[46] The seriousness of the breach in this case was exacerbated by conducting an illegal search of a detainee's home, which includes the attached garage. In the Ontario Court of Appeal's decisions of R. v. Clarke, [2005] O.J. No. 1825 and R. v. Atkinson, 2012 ONCA 380, [2012] O.J. No. 2520, apartment building underground parking garages and front porches of homes were found to offer a citizen a diminished privacy interest from the main dwelling because these areas can either be easily seen by the public or is subject to ready access by the public approaching the front door. In the case before me the situation here is different from those in Clarke and Atkinson. Here, the Accused's garage had doors on it which were closed. The Accused's garage was not an area where the public would expect to have a view or access without permission from the homeowner. In my view, the Accused's privacy interest in his garage was very high, thereby increasing the seriousness of the breach.

[47] I find that the seriousness of the breaches tends towards exclusion of all incriminating evidence acquired after the garage was searched.

(ii) Impact of the breaches on the Accused's Charter protected interests

[48] I assessing the impact of the breaches on Mr. Ouellette's Charter protected interests, I adopt the following reasons of Ducharme, J in the case of R. v. Au-Yueng, 2010 ONSC 2292, [2010] O.J. No. 1579 at ¶ 58 to 62:

58 When dealing with bodily evidence obtained in violation of s. 8, Grant at para. 109 instructs judges as follows:

The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused's protected interests. In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions (as in Stillman). At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.

59 The arrest of the appellant impacted his rights under sections 8, 9 and 10 of the Charter. The police respected his rights under sections 10(a) and 10(b) of the Charter. However, as [the officer] lacked the requisite grounds for the breath demand pursuant to s. 254(3) of the Criminal Code, the taking of the appellant's breath samples constituted an unreasonable search and seizure contrary to s. 8 of the Charter. Finally, although this was not argued by the appellant as a separate Charter violation, the arrest and detention of the appellant constituted a violation of sec. 9 of the Charter.

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 a 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 a 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.

62 While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.

(iii) Society's Interest in Adjudication on the Merits

[49] The breath tests are wholly reliable evidence and are necessary evidence in the prosecution of serious crimes. The admissions against interest made by Mr. Ouellette are reliable, relevant and highly material evidence. Society's interest in adjudication of these two charges on their merits favours admission of the evidence.

(iv) Analysis and Balancing

[50] In balancing the Grant factors, I conclude that the evidence obtained by the police after the illegal search of the Accused's garage must be excluded. The breaches were very serious and the impact upon Mr. Ouellette's Charter protected rights was significant. I am mindful of the social toll of drunk driving and society's need to be protected from those who commit such crimes. However, it is equally important to remember that all persons are entitled to protection of their rights by the courts, especially where the police elect to violate them. A clear message must be sent to those who enforce the law that they have to understand, respect, and apply the law. This is particularly true when the police disregard, or are unaware of, long-established and well known legal concepts of critical importance to preserving and respecting fundamental rights in our democracy.

[51] The long-term protection of the administration of justice requires the evidence in the circumstances of this case to be excluded. As the Supreme Court of Canada stated in R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 at ¶ 110-111:

110 Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

111 The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

[52] Therefore, I exclude from the trial evidence the breath test results as well as Mr. Ouellette's admissions made to P.C. Smintich, including his confession that he was the driver.

3.3: On the admissible evidence has the Crown proven the charge of impaired driving?

[53] On the totality of the admissible evidence, I find that the Crown has proven beyond a reasonable doubt that Mr. Ouellette's ability to operate a motor vehicle was impaired by the consumption of alcohol when the police showed up at his house. I have considered all of the frailties and inconsistencies pointed out by the defence in the evidence of P.C. Walfall. However, taking the admissible evidence as a whole, including not only P.C. Walfall's testimony but also that of both P.C. Ball and P.C. Smintich, it is clear that Mr. Ouellette was substantially under the influence of alcohol and that it would not have been safe for him to drive at the time the police encountered him at his house.

[54] The evidence of Mr. Rybarczyk and Mr. Ferreira overwhelmingly proves that the grey Charger was driven in a dangerous and reckless manner, entirely consistent with the operator being intoxicated by alcohol.

[55] The main issue is whether or not the Crown has proven beyond a reasonable doubt on the admissible evidence that Mr. Ouellette was the driver. Mr. Rybarczyk said the driver was white, male and about 50 years old. Mr. Ferreira said the driver was a man in his mid-forties with a hefty upper chest. Even though Mr. Ouellette certainly fits the general descriptions given by these witnesses, neither could identify him as the driver.

[56] The evidence that Mr. Ouellette was the registered owner is hearsay. It was led through police witnesses who said their computers told them that he was the registered owner. This is second hand information that could not be tested in court. As hearsay, and without an exception to the rule being shown to apply, it is not admissible as evidence tending to show that Mr. Ouellette was the driver. It was only admissible as evidence of the officer's reasonable and probable grounds. Admissible evidence of ownership would have been readily available and easily obtained had the police applied for a certificate of ownership from the Ministry of Transportation.

[57] If admissible evidence of ownership had been adduced, it would have been powerful circumstantial evidence regarding the driver's identity because it is reasonable that the owner of the car would be the one driving it. A government certificate of ownership provides not only the name of the owner, but also his address. The evidence of seeing the car going to the address of the proven owner would have strongly point to Mr. Ouellette as the driver even without looking in the garage. However, no admissible evidence of ownership was tendered.

[58] At its highest, the admissible evidence of identity of the driver in this case is that a man who looks generally like Mr. Ouellette drove badly and stopped in Mr. Ouellette's driveway. But for the illegal search of the garage, there was no evidence that the car was to be ordinarily found there. While the admissible evidence establishes a strong suspicion, I am not prepared to conclude on the criminal standard of proof that Mr. Ouellette was the driver, even though he probably was. Therefore, I am left in a state of reasonable doubt regarding the identity of the driver.

[59] I find that the Crown has not met the criminal standard of proof regarding the impaired driving charge.

3.4: On the admissible evidence has the Crown proven the charge of driving with excess blood alcohol?

[60] For reasons given earlier, I found that P.C. Walfall did not have reasonable and probable grounds to make a breath demand. His belief that Mr. Ouellette was the driver transcended his earlier suspicion only when he illegally found the suspect car inside the Accused's garage. Without knowing the car was in the garage P.C. Walfall's state of mind was no more than a suspicion and his demand under section 254(3) of the Criminal Code was invalid. Without a valid demand the breath tests were not taken legally and, for the reasons given earlier, I excluded the breath readings from the evidence. In addition, I find that the Crown has failed to prove beyond a reasonable doubt that Mark Ouellette was the driver.

[61] On the admissible evidence, I find that I am left in a state of reasonable doubt concerning the charge of driving with excess blood alcohol.

3.5: Other Issues

[62] Given my findings set out above it is unnecessary for me to address several other issues argued in this case, including voluntariness of Mr. Ouellette's statements in the breath room, the time of driving, and the 11(b) Charter application. Nevertheless, I will make some comments about each of them.

3.5.1: Voluntariness

[63] With respect to the voluntariness of the breath room statements made by Mr. Ouellette, the police observed the principles set out by the Supreme Court in R. v. Oickle, 2000 SCC 38, [2000] S.C.J. 38 and R. v. Singh (2007), 2007 SCC 48, 225 C.C.C. (3d) 103 in that there was no atmosphere of oppression or trickery. In addition, notwithstanding the failure of the Crown to call evidence from the cell officer and the booking sergeant, I am satisfied that they played only an administrative role and not an investigative one so that there was no risk that they would engage in conduct that would cause Mr. Ouellette to have his will overborne and to incriminate himself: R. v. Menezes (2001), 48 C.R. (5th) 163 (S.C.J.). Mr. Ouellette also had the benefit of independent legal advice before deciding whether or not to answer any of the qualified technician's questions. I find that the statements of Mark Ouellette to P.C. Smintich that I excluded due violations of his Charter rights were made voluntarily.

3.5.2: Time of Driving

[64] Regarding the time of driving, the first test was taken within two hours of driving. I do not consider Mr. Ouellette's statements as to time of driving because they were excluded from the evidence. Taking into account the admissible evidence as to time as a whole, I find Mr. Ferreira was wrong to say it was around 4:30. All the officers said they were dispatched and receiving up-to-date information while the car was still in motion, which was sometime after 6:02 p.m. The police evidence is in accordance with Mr. Rybarczyk's recollection as to time. I find that the time of driving was around 6:00 p.m. and beyond. The first breath test was taken at 7:50 p.m. thereby fitting comfortably within the statutory two hour time limit.

3.5.3: s. 11(b) Charter

[65] There would have been no way this case would have finished on January 19, 2012 despite assurances from both counsel that it would. Not only did the parties take much more time than predicted to complete the evidence, submissions took far longer than expected. I note that after the evidence finally completed on April 27, 2012 Mr. Lent used well over two hours, or nearly half a court day, in his submissions. This left little more than one-half hour for Ms. Nadler who, not surprisingly, was unable finish her on that date. The additional four months between January and April 2012 to attempt to complete this matter is neutral time: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) and R. v. Tran, 2012 ONCA 18 (C.A.).

[66] This case took far too long to litigate, mainly because of the unrealistic time estimates by both parties. In my experience with Mr. Lent, for whom I have the utmost respect as a seasoned and capable barrister, it is unusual to complete his driving offence cases within one day as they most frequently take parts of two or more days. This is because of his strategy to exhaustively explore each and every issue, whether potential or real. In the future, I would hope that when he and the prosecution sit down to discuss trial time estimates that more than one trial date is booked to reflect the usual course of proceedings with Mr. Lent.

[67] If the parties cannot or will not make reliable time estimates in the future, both Mr. Lent and the Crown may well find that the court will take a more active role in managing his cases to facilitate and guide more accurate time assessments. Greater care in planning trial time will help ensure finding adequate space on court dockets and, being likely to be more than a one-day trial, this in turn would mean that Mr. Lent's cases would not be bumped to, and delayed by, the "stand by" lists that are utilized in Brampton every day for out-of-custody cases of one day or less. Mr. Lent, his clients, the courts, and the public all deserve, and would benefit from, accurate and realistic time estimates.

[68] I find that Mr. Ouellette's 11(b) Charter right remained intact throughout this proceeding despite the protracted time it took to complete it.

4.0: CONCLUSIONS

[69] For the reasons given herein, my verdicts with respect to the charges against Mark Ouellette arising out the events of July 14, 2010 are as follows:

(i.) Count #1 – Impaired Driving – not guilty; and

(ii.) Count #2 – Driving with Excess Blood Alcohol – not guilty.

(ORIGINAL SIGNED BY JUSTICE RICHARD H.K. SCHWARZL)

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice