Court File and Parties

Court File No.: Halton 11/2813 Date: 2012-10-23 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Eugene Dignum

Before: Justice Sheilagh O'Connell

Heard on: July 26, 27, September 17, 2012

Reasons for Judgment released on: October 23, 2012

Counsel:

• Arish Khoorshed, for the Crown
• Douglas Lent, for the accused Eugene Dignum

O'CONNELL J.:

1.0 INTRODUCTION

[1] Eugene Dignum is charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code.

[2] Mr. Dignum alleges that the police violated his rights under section 8 of the Charter of Rights and Freedoms. He submits that as a result of the Charter breach, the evidence obtained of his breath samples during the course of the police investigation should be excluded.

[3] The trial proceeded with a blended voir dire on the Charter issues.[1] On September 17, 2012, I delivered my decision orally, with reasons to follow. These are my reasons.

2.0 THE EVIDENCE

[4] The Crown first called the arresting officer, Constable Kevin Scime. Officer Scime has been a member of the Ontario Provincial Police for seven years. Prior to that, he was in the military police for three years.

[5] On August 24, 2011 at approximately 12:39 a.m., Officer Scime received a call from dispatch about a "possible impaired" traveling northbound on the Queen Elizabeth Way (QEW). The vehicle was described as a beige Jaguar with license plate number BJCY287, owned by the accused, Mr. Dignum.

[6] At approximately 12:48 a.m. Officer Scime located Mr. Dignum travelling on Highway 407 eastbound from the northbound QEW, approaching Neyagawa Boulevard in the Town of Oakville. Officer Scime testified that he observed that Mr. Dignum was driving fine, his speed was appropriate and although there was some slight swerving, there was "nothing drastic".

[7] Officer Scime activated his emergency lights and siren at 12:52 a.m. to stop the car and check Mr. Dignum's sobriety, based on the slight swerving and driving complaint.

[8] Mr. Dignum did not stop initially and turned left on Trafalgar Road. A moment later, he got back on Highway 407 westbound at Neyagawa. Mr. Dignum then stopped at 12:53 a.m., one minute after Officer Scime activated his emergency equipment.

[9] Officer Scime approached the car and spoke to Mr. Dignum at 12:54 a.m. He detected a slight odour of alcohol on Mr. Dignum's breath. When asked if he had any alcohol to drink that night, Mr. Dignum admitted to having maybe "three or four drinks", and that he had his last drink "about one or two hours ago".

[10] Officer Scime testified that at that point, he began to form the reasonable suspicion that Mr. Dignum "had consumed alcohol and his ability to operate a motor vehicle was impaired." At 1:04 a.m. Officer Scime read Mr. Dignum the roadside approved screening device demand for a breath sample as well as the standard caution. Officer Scime had a roadside screening device on site.

[11] Officer Scime testified that the machine was an approved screening device and it had been calibrated on August 14, 2011. Officer Scime tested the machine himself by blowing into it and demonstrating to Mr. Dignum how the machine worked. He reset the machine at 1:08 a.m. Mr. Dignum's first and second breath samples registered an "error" because he was not blowing hard enough, according to the officer. Prior to providing a third sample, Officer Scime then cautioned Mr. Dignum that the failure to provide a suitable sample "would result in the immediate arrest for impaired operation of a motor vehicle." At 1:14 a.m., Mr. Dignum provided a third sample which registered an "F", according to Officer Scime.

[12] At 1:15 a.m. after the approved screening device registered an "F", Mr. Dignum was arrested, searched and place in Officer Scime's cruiser. At 1:17 a.m. Mr. Dignum was read his rights to counsel. At 1:20 a.m., Mr. Dignum was cautioned and at 1:22 a.m., Officer Scime read Mr. Dignum the demand to provide breath samples in a breathalyzer test at the police station, to which Mr. Dignum agreed.

[13] Officer Scime took Mr. Dignum back to the Burlington O.P.P. detachment. They departed at 1:26 a.m. and arrived at 1:40 a.m. Mr. Dignum was processed and at approximately 1:47 a.m. he was provided with privacy to speak to a lawyer (duty counsel). The call was approximately seven minutes in duration.

[14] At approximately 2:10 a.m., Mr Dignum was turned over to Officer Tihon, the qualified breath technician. Mr. Dignum then provided two breath samples. At approximately 2:18 a.m., Mr. Dignum registered a blood alcohol concentration of 120 milligrams of alcohol in 100 millilitres of blood and at 2:42 a.m., he registered a blood alcohol concentration of 100 milligrams of alcohol in 100 millilitres of blood.

[15] Although Officer Tihon was present and available to testify at trial, defence counsel did not take any issue with the results and the Certificate of the Qualified Technician and the Test Record cards from the intoxilyzer machine were entered on consent as exhibits at trial.

[16] After being served with the appropriate paperwork, Mr. Dignum was released from the police station at 4:00 a.m. on a promise to appear in court and to re-attend for fingerprinting.

[17] In cross-examination, Officer Scime testified that Mr. Dignum did not exhibit any signs of impairment. He candidly testified that this was not "a typical impaired driving" case because Mr. Dignum was cooperative, his driving was generally fine, his speech was not slurred, his eyes were not glassy, bloodshot or watery, he spoke in complete sentences, he was not fumbling, and he was steady on his feet. Officer Scime testified that although he had enough to formulate 'a reasonable suspicion' to make the approved screening device demand, he did not have reasonable and probable grounds to arrest Mr. Dignum for impaired driving.

[18] When asked what he meant by "reasonable suspicion", the officer said, "I had a suspicion that the accused's ability to operate a motor vehicle was impaired by alcohol." He further testified that he never had the grounds to arrest Mr. Dignum for "straight impaired" and he never arrested him for that. He testified that there is a difference between a suspicion and grounds.

[19] The officer candidly admitted that "it was not until I got the 'F'" on the approved screening device that he felt he had reasonable and probable grounds to arrest Mr. Dignum for 'over 80' and make the demand for the breath samples for the intoxilyzer machine, in accordance with section 254(3) of the Code.

[20] The officer also testified that prior to getting an "F" on the approved screening device at the roadside, Mr. Dignum's first two attempts in blowing into the machine registered an "ERR". He testified that "ERR" means "error", which typically occurs when someone does not blow properly into the device.

[21] When challenged by the defence, and over objection from the Crown, I permitted the defence to show Officer Scime the instruction manual for this particular approved screening device. Upon review, Officer Scime acknowledged that there is no "ERR" on the device but an "EO"instead. He conceded that he clearly did not see "ERR" and then corrected himself and testified that he saw an "E" and wrote "error" in his notes.

[22] When asked if he was sure that he got an "F" on the approved screening device given his mistake about getting an "ERR", he testified that "I am as sure that I got an 'F' as I am about the 'E'".

[23] During the cross-examination of Officer Scime, the defence introduced portions of the video tape of Mr. Dignum in the cell area and the breathalyser room at the police detachment after his arrest. The complete DVD of this videotape was entered as an exhibit at trial and formed part of the evidence. The defence called no further evidence.

[24] It is not disputed by the Crown, and it is conceded by Officer Scime that he would not have charged Mr. Dignum with "over 80" or made the breath demand pursuant to section 254(3) if Mr. Dignum had not registered an "F" on the approved screening device. But for the "F" on the approved screening device, there were no reasonable and probable grounds to charge Mr. Dignum with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood. Mr. Dignum was never charged with impaired driving.

3.0 ANALYSIS

[25] The defence advances two arguments to support its assertion that Mr. Dignum's breath samples obtained should be excluded because the warrantless seizure of these breath samples violated Mr. Dignum's Charter rights:

1. Officer Scime did not have the appropriate thought process in his mind to formulate a reasonable suspicion to make the approved screening device demand under section 254(2) of the Criminal Code. Therefore, he had no grounds to make the approved screening device demand;

2. There was no evidence regarding what the "F" on the approved screening device meant to the officer or what he understood an "F" to mean, and therefore, the subjective component of the reasonable grounds test under section 254(3) of the Code had not been established by the Crown. Given that the whole case relies upon the "F" on the approved screening device, since there were no other signs of impairment, the Crown has not established the officer's reasonable grounds to make the breath demand, resulting in an unreasonable search and seizure of Mr. Dignum's breath samples.

[26] Section 8 of the Charter provides everyone in Canada with protection against unreasonable search and seizure. The taking of breath samples in a drinking and driving investigations amounts to a seizure for the purpose of section 8 of the Charter. The breath samples are taken without a warrant and are therefore presumed unreasonable and inadmissible. The onus then shifts to the Crown to prove on a balance of probabilities that the search and seizure is reasonable.

[27] In R. v. Haas, the Ontario Court of Appeals provides that section 8 of the Charter imposes the same duty on the Crown in a case where the breath samples have been obtained without a warrant as it does with respect to warrantless searches generally. The onus is satisfied by proof of the reasonable grounds for the demand. The Court explained the burden of proof as follows at paragraph 24 of the decision:

"Since the seizure here was warrantless, the principle in Collins v. The Queen, [1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1 (S.C.C.) applies. It set out the fundamental proposition that an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but that in the s. 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable."

3.1 Reasonable Suspicion

[28] There is a statutory two-step scheme for the taking of breath samples in drinking and driving cases under the Criminal Code. First, section 254(2) of the Code sets out the grounds that a police officer must have when making a demand that a person provide a breath sample in an approved roadside screening device to test for the presence of alcohol in the blood while at the scene or roadside:

"(2) Where a peace officer reasonably suspects that a person who is operating a motor vehicle ... has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device and, where necessary, to accompany the peace officer for the purpose of enabling such a sample of breath to be taken."

[29] It is clear from the case law that the requisite subjective standard under section 254(2) is a reasonable suspicion that an individual has alcohol in his body, and not merely the smell of alcohol on his breath nor simply a suspicion that alcohol had been consumed. See R. v. Latour. In that case, Justice Charron stated:

"The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device." [Emphasis added.]

[30] However, the standard of "reasonable suspicion" is not onerous. It is lower than the "reasonable and probable grounds" standard discussed below when obtaining breath samples from an intoxilyzer machine at the police station. As Justice R.H.K. Schwarzl explains at paragraphs 17 and 18 of his decision in R. v. Krizanac, [2012] O.J. No. 1911:

"17 The officer must have honest and reasonable grounds at the time he forms his suspicion: R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Singh, [2006] O.J. No. 5133 (S.C.J.); R. v. Pozniak, [2008] O.J. No. 687 (O.C.J.). The absence of a reasonable suspicion will make the demand invalid and the person to whom the demand is made will be under no obligation to comply with it: R. v. Grant (1991), 67 C.C.C. (3d) 268 (S.C.C.).

18 In forming his suspicion, the officer must consider all of the circumstances including the presence, if any, of the odour of alcohol: R. v. Swietorzecki, [1995] O.J. No. 816 (C.A.), and also R. v. MacPherson, [2000] O.J. No. 4777 (Ont. C.A.); R. v. Martin, [2005] O.J. No. 670 (S.C.J.). An odour of alcohol may be the best indicator of the presence of alcohol in the driver's body but it is by no means the only one: R. v. Zarokovic, [1998] O.J. No. 2668 (C.A.); R. v. Hryniewicz, [2000] O.J. No. 436 (C.A.). An admission by the driver that he consumed alcohol is sufficient entitle the officer to reasonably infer that the consumption was recent: R. v. Singh, [2006] O.J. No. 5133 (S.C.J.) at para. 15-18; R. v. Mutisi, [2011] O.J. No. 4546 (S.C.J.)."

[31] In this case, the officer detected a slight odour of alcohol on Mr. Dignum's breath and Mr. Dignum admitted that he had his last alcoholic drink one or two hours before. These were the only indicia. There were no signs of impairment, as frankly admitted by the officer at trial. However, when asked what he considered the grounds for making the roadside screening demand, the officer testified that he "had a suspicion that the accused's ability to operate a motor vehicle was impaired by alcohol."

[32] This is not the meaning of "reasonable suspicion" under section 254(2) of the Criminal Code. The requisite standard of belief is a reasonable suspicion of "alcohol in the body". Mr. Lent therefore argues that the officer did not have the proper grounds to make the demand for the roadside screening device. Mr. Lent submits that given that section 254(2) overrides the common law principle that people should not be compelled by the state to provide self-incriminating evidence, the "reasonable suspicion standard" should be interpreted very strictly by the court.

[33] Mr. Khoorshed, on behalf of the Crown, submits that the case law is well settled that there are no "magic words" required in the making of a roadside screening device demand. See R. v. Martin, [2005] O.J. No. 670, R. v. Long, [1999] O.J. No. 364 (Gen. Div.); R. R. v. Shortall, [2002] O.J. No. 1447 (O.C.J.). As Justice G.P. DiTomaso states in R. v. Harris, [2007] O.J. No. 675 at paragraphs 44 and 45 of his decision, "Provided the officer can testify to objectively reasonable circumstances underlying a s. 254(2) suspicion, he need not articulate the words "reasonable suspicion" in his testimony. R. v. Long, [1999] O.J. No. 364 (Gen. Div.); R. v. Martin, supra; R. v. Shortall, [2002] O.J. No. 1447 (O.C.J.) ....The words "reasonable suspicion" are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion."

[34] While I agree with the submission that there are no 'magic words', in this case the words we have demonstrate that the officer fundamentally misunderstood the test under section 254(2) of the Criminal Code. The words that the officer used are not consistent with the thought process that Parliament requires under section 254(2) of the Criminal Code. The officer testified that he formed "a suspicion" that Mr. Dignum "was impaired by alcohol" even though he also candidly admitted at trial that he did not observe any signs of impairment prior to making the roadside screening demand. In my view, even though the officer does not need to recite the magic words or express his suspicion in the exact words of the statute, he should at least understand the test in order for a reasonable person to ascertain that he held the subjective state of mind of having reasonable suspected that Mr. Dignum had alcohol in his body. The statutory pathway still needs to be followed.

3.2 Reasonable and Probable Grounds

[35] As in the case of the road side screening demand, the taking of breath samples at a police station to analyse the concentration, if any, of alcohol in a person's blood, is also a warrantless search and therefore presumed unreasonable. The Crown has the burden of establishing on the balance of probabilities that the seizure is reasonable and authorized by law and not a breach of a person's section 8 Charter rights.

[36] Section 254(3) of the Criminal Code provides:

(3) SAMPLES OF BREATH OR BLOOD -- If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or ...

[37] The Crown must demonstrate that the police officer had reasonable and probable grounds for a breath demand under section 254(3) of the Criminal Code. See R. v. Shepherd, 2009 SCC 35, [2009] S.C. J. No. 35 at para.15-16; R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.) at page 14. The existence of reasonable and probable grounds is essential to protect the privacy rights of anyone who might be subject to a search and seizure by the police. See R. v. Bernshaw (1994), 95 C.C.C. (3d) 193 (S.C.C.) at pages 216-218.

[38] The requirement in section 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition for a lawful search and seizure under section 8 of the Charter. See R. v. Bernshaw (1994), 95 C.C.C. (3d) 193 (S.C.C.). In R. v. Bernshaw, the Court also explains the components of reasonable and probable grounds that the Crown must prove:

"The existence of reasonable and probable grounds entails both an objective and a subjective component. That is, section 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there must exist reasonable grounds for this belief."

[39] As explained above, the concept of "reasonable grounds to believe" has both a subjective and objective component. It is more onerous than the grounds required for "reasonable suspicion". The subjective branch is satisfied where the police officer honestly believes the suspect has committed an offence and that evidence of the offence can be seized. Under the objective component, the question is whether the officer's opinion is supported by objective facts. The test is met where a reasonable person in the position of the officer would be able to conclude that there were reasonable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at page 250; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 35; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) at para. 38.

[40] The officer's subjective belief is a subjective opinion that may be inferred in the appropriate case. Even when an officer does not say so explicitly, the court is entitled to draw an inference that the officer formed the requisite subjective opinion. See R. v. Hall, [1995] O.J. No. 544 (C.A.).

[41] In this case, the officer candidly admitted that but for the "F" reading on the approved screening device, he did not have reasonable and probable grounds to arrest Mr. Dignum and demand that he provide two samples of his breath. The officer testified that this was not a "typical impaired driving case" since he did not observe any signs of impairment. He testified that Mr. Dignum was cooperative, his driving was generally fine, his speech was not slurred, his eyes were not glassy, bloodshot or watery, he spoke in complete sentences, he was not fumbling, and he was steady on his feet.

[42] However, the Crown did not lead any evidence at trial regarding what the officer subjectively understood "F" to mean, nor did the Crown seek to recall the officer to provide that evidence once the defence raised its position about the deficiency in the officer's evidence in argument at the conclusion of the blended voir dire and trial.

[43] Mr. Khoorshed, on behalf of the Crown, submits that a police officer need only have a reasonable belief that an approved screening device is properly calibrated and in working order before relying upon a 'fail' test to confirm his suspicion that a motorist may be "over 80" or the legal limit. The Crown does not have to prove the calibration of the device or that it is working properly. He relies upon the Court of Appeal decisions in R. v. Kosa [1992] O.J. No. 2594 and R. v. Topaltsis, [2006] O.J. No. 3181.

[44] While I agree with this submission, in both of those cases, the Court of Appeal also held that it was sufficient for the officer to rely upon a set of facts which provided him with reasonable and probable grounds that the accused committed an offence under section 253(1)(b) of the Code. Here, the only fact that the officer had was his stated observation of the "F" on the approved screening device. There were no other grounds, as he admitted at trial, and he had not formulated the proper reasonable suspicion. The court did not hear any evidence as to what the officer understood an "F" to mean.

[45] The Crown also relies upon R. v. Macdonnell [2004] O.J. No. 927 and R. v. Ponnampalam [2012] O.J. No. 1425. In both of those cases, the officers gave evidence regarding their subjective understanding about what "F" meant on a properly calibrated approved screening device. They also had other objective evidence that the accused indicated signs of impairment. In R. v. Macdonnell, supra, the officer observed the odour of alcohol, glassy and bloodshot eyes, and testified to the following, as summarized by Justice C. Hill at par 20 of his decision:

"(1) based on his observations of Mr. MacDonnell, he had a reasonable suspicion that the appellant, with alcohol in his body, was operating a motor vehicle

(2) the ASD in the officer's possession had been calibrated earlier in the day by a qualified breathalyzer technician

(3) a sufficient sample of the appellant's breath was analyzed by the ASD which Const. Sparrock found to be working properly

(4) on the evidence, the officer had no reason to believe that smoke or very recently consumed alcohol or any other factor would affect the reliability of the ASD test result

(5) it was the officer's understanding that the ASD was calibrated in such a way that a Fail test result reflected at least 100 milligrams of alcohol in a driver's blood

(6) the appellant registered a Fail in the ASD test

(7) in a criminal drinking/driving context, Const. Sparrock, based on the Fail test result, believed he had reasonable and probable grounds relating to an "excess blood alcohol charge" and, as a result, made a s.254(3) Code demand for breath samples

(8) in describing the excess blood alcohol crime, the officer was of the view that it was a criminal offence for someone to drive a motor vehicle with 100 milligrams of alcohol in their blood."

[46] In R. v. Ponnampalam, supra, the officer testified that the accused was driving unusually slowly, very close to the curb, he was unable to focus, smelled of alcohol, and his hands were shaking. Further, Justice D. Hackett sets out the officer's testimony regarding what an "F" means at paragraph 45 of her decision:

"The Crown argued that the officer made it clear in her testimony in chief that she was well aware of what an "F" on the instrument meant. At page 14 of the transcript, she testified:

A. When someone registers an 'F' on the roadside device it means that the concentration of alcohol in the male's system — or sorry, the accused's system was over 100 milligrams. They're calibrated to be at 100, but an fail [sic] for an impaired driving is an 80.

Q. 100 milligrams of what?

A. Of alcohol per millilitre of blood.

Q. How many millilitres?; sorry.

A. 100."

[47] As Justice Hackett states at paragraph 48 of her decision:

"In my view, based upon all of the evidence, the officer's evidence is clear that she knew what an "F" meant on this roadside screening test and took that into account. For these reasons, I find that she both subjectively and objectively had reasonable and probable grounds to make the breathalyzer demand."

[48] These cases are distinguishable on their facts from the case before me. Here, we have an officer who testified that he did not have reasonable and probable grounds to arrest Mr. Dignum for driving with excess blood alcohol until he got an "F" on the roadside screening device. Yet he gave no evidence at all about what he understood "F" to mean. The only evidence that the officer gave regarding his understanding of the roadside screening device is that when someone does not blow properly into the device, the device registers an "ERR". The officer was very firm about this. Under cross-examination, he denied that the machine actually registered an "EO" in these circumstances until he was presented with the instruction manual for this particular machine. When then asked how sure he was that he got an "F" on the approved screening device, he testified that "I am as sure that I got an "F" as I am about the "E".

[49] Given that the officer was wrong about the "E", the court is concerned about what weight, if any, I should give to the officer's testimony about reading an "F", particularly given that he did not describe "F" to mean 'fail' nor did he give any evidence at all about what it meant to him.

[50] I do not believe that I can infer what the officer subjectively understood "F" to mean based on the facts of this case. The court cannot use judicial notice to correct this serious omission in the evidence nor can I infer that the officer subjectively had an honest belief that an "F" generally means the accused had in excess of 100 milligrams of alcohol in 100 millilitres of blood. This is not a notorious fact. See R. v. Nyman, [1998] O.J. No. 4064 (Ont. C.A.). As the Supreme Court of Canada states in R. v. Bernshaw, [1994] SCJ 87 at paragraph 50, "...it cannot be said that a 'fail' result per se provides reasonable and probable grounds. If that were the case, it was open to Parliament to indicate this intention in the Criminal Code."

[51] In my view, as there was no evidence regarding what the officer understood an "F" to mean and that but for the "F", the officer admitted that he had no reasonable and probable grounds to arrest Mr. Dignum, the subjective component required to establish that the officer has reasonable and probable grounds has not been made out.

[52] On the whole of the evidence, I find that the Crown has not established that the arresting officer properly formulated a "reasonable suspicion" triggering the approved screening device demand under section 254(2) nor has the Crown established that the officer had reasonable and probable grounds to make the demand for the breath samples under section 254(3) of the Code. The demands were therefore unlawful and Mr. Dignum's constitutional right to be secure against an unreasonable search and seizure under section 8 of the Charter has been violated.

3.3 Section 24(2) Analysis

[53] This does not end the analysis that a court is required to make when considering a Charter violation. I now must consider whether the evidence of the breath samples obtained from Mr. Dignum should be excluded as a result of the breach of his section 8 Charter right.

[54] Section 24(2) of the Charter provides that where a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[55] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.), the Supreme Court of Canada developed a more flexible, comprehensive and balanced test that courts must apply to determine when a Charter breach would bring the administration of justice into disrepute. At paragraph 71 of that decision, the majority directed courts to assess and balance three lines of inquiry:

"When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute."

The Seriousness of the Breach

[56] The arrest of a person without reasonable and probable grounds is a serious breach of a person's rights under the Charter. There needs to be strict compliance with the Criminal Code provisions in drinking and driving cases, given that Parliament has given the police the power to arrest someone without a warrant and requires that person to provide self-incriminating evidence. Officer Scime is an experienced officer and he was acting in good faith but his testimony did not articulate the grounds for Mr. Dignum's arrest. The requirement of reasonable and probable grounds is not just a statutory requirement but an essential part of the constitutionality of the entire two-step scheme in section 254 of the Criminal Code. See R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (Ont. S.C.J), citing R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 (S.C.C.).

The Impact on Mr. Dignum's Charter Protected Interests

[57] Mr. Dignum was arrested, placed in the back of a police cruiser, driven to a police station where he was detained for approximately three hours before he was released on a Promise to Appear. He was not mistreated in any way, however a three hour detention is a sufficiently serious interference with Mr. Dignum's liberty. Further, he was required to provide a number of samples of his breath. Although this is relatively non-intrusive, it is a conscripted search and has an effect on the principle of self-incrimination in our criminal justice system. Although I recognise that in the post-Grant era, conscriptive evidence is given less emphasis, it is still an important consideration, given that it would not have been discovered in any other way than by means of the Charter breach. In this case, I have found two Charter breaches. See Justice S.D. Brown's decision in R. v. Winter, 2010 ONCA 312, [2010] O.J. No. 1773, at paragraph 56, where he quotes Gage J. in R. v. Leonardo, [2009] O.J. No. 5018, as follows:

"The taking of breath samples although a conscripted search of the subject has been described elsewhere as relatively non-intrusive. It does however impact on concerns about self-incrimination which are, in my view, more acute when the foundation for the arrest and demand is found to be absent."

Society's Interest in the Adjudication of the Criminal Charge on its Merits

[58] There is no question that our society has a very strong interest in adjudicating a drinking and driving case on its merits, given the tragedy that drinking and driving has caused in our community. However, our society also has a strong interest in having a justice system that is administered properly, particularly when an accused's liberty is at stake. In this case, Mr. Dignum's blood alcohol concentration was relatively low. There were no signs of impaired driving or impairment. There was no accident or collision. Mr. Dignum was polite and cooperative throughout his arrest and detention. His driver's license was immediately suspended and he has had to pay a private lawyer to defend this prosecution, which was no doubt costly.

[59] In balancing all of the above factors, including the seriousness of the breach, Mr. Dignum's loss of liberty, and the less serious nature of the offence in the particular facts of this case, the evidence of the breath samples should be excluded under section 24(2) of the Charter.

4.0 CONCLUSION

[60] Given that the evidence of the breath samples is excluded, the Crown has no other evidence regarding Mr. Dignum's blood alcohol level. The charge of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code, is therefore dismissed.

[61] I thank counsel for their very helpful submissions, including the case law provided.

Released: October 23, 2012

Signed: Justice Sheilagh O'Connell

Footnote

[1] At the outset of the trial, the Crown sought to have Mr. Dignum's Charter application dismissed because on its face, the Notice of Application did not disclose a breach or a factual foundation for any breach. In a preliminary ruling, after hearing submissions, I dismissed, without prejudice, Mr. Dignum's application for alleged breaches of section 7 and 10 of the Charter, but allowed the application regarding the section 8 alleged breach as the voir dire on this issue involved essentially the same evidence that would be heard on the trial proper and would not prejudice the Crown, following R. v. Blom, [2002] O.J. No. 3199 (C.A.).