Court File and Parties

Court File No.: Toronto M – 12005054 – 12

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mario De Chiara

Before: Justice Paul H. Reinhardt

On: 18, 19 March & 9 April 2013

Reasons for Judgment released: 2 May 2013

Counsel:

• Marieke Newhouse, for the Crown
• Heather Spence, for the Applicant

REINHARDT J.:

Introduction

[1] On 9 November 2011, Mr. De Chiara was charged with the Criminal Code offence of 253(1)(b): Operating a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood ("Over 80") with an alleged offence date of 8 November 2011.

[2] By Notice of Application dated 6 February 2013, returnable 18 March 2013, defence counsel brought application before this court for constitutional relief based upon a number of alleged breaches of her client's rights, pursuant to Sections 8, 9 & 10(b) of the Canadian Charter of Rights and Freedoms.

[3] The Applicant alleges the following breaches of his Charter-protected rights, and seeks the remedy of the exclusion of the results of his breath tests:

(1) The roadside screening device was not administered forthwith, and as such, the samples of the applicant's breath were taken in violation of ss. 8 & 9 of the Charter;

(2) The applicant was not read his rights to counsel while waiting for the roadside screening device to arrive, in violation to s. 10(b) of the Charter;

(3) The roadside screening device was administered improperly, outside of the time period for calibration and therefore in violation of s. 8 of the Charter;

(4) The arresting officer lacked the necessary reasonable and probable grounds to believe an offence had been committed under s. 253(1)(b) of the Criminal Code;

(5) The arresting officer lacked the necessary reasonable and probable grounds to arrest the applicant without a warrant in accordance with the statutory requirements found in s. 495 of the Criminal Code, and thus the applicant was arbitrarily detained in breach of his s. 9 rights under the Charter;

[4] The Applicant also alleges an arbitrary "overhold" of some eight and three-quarters hours following his giving of his breath samples and thus a breach of his s. 9 rights not to be unlawfully detained and thus submits I should either stay these proceedings pursuant to s. 24(1) of the Charter, or grant the relief of exclusion of the breath test results pursuant to 24(2).

[5] The Crown resists all of these allegations and, in the alternative resists the relief claimed.

[6] I will now summarize the evidence in relation to the initial stop and arrest.

1: Summary of the Evidence With Respect to the Roadside Stop & "Overhold"

[7] In this proceeding I heard from:

(1) Staff Sergeant James David Walker, 22 Division;

(2) Constable Antoine Ashkar, 11 Division.

[8] Constable Antoine Ashkar testified that he was on patrol just before midnight on 8 November 2011, driving a marked police car eastbound on St. Clair West, with his companion officer, Constable Mark Griffiths, in the passenger seat.

[9] Constable Ashkar testified that as they were approaching Keele Street he observed a Silver Audi, despite a red light accelerate into the intersection and make a "U-Turn".

[10] Constable Ashkar testified that this driving caused him to first notice and then follow the Audi and attempt to pull it over for investigation.

[11] Constable Ashkar testified, with the assistance of his "in-car" camera that is automatically activated when he engages his lights and siren and records his observations and the road from a camera mounted on his front dash board. He testified that the DVD time markings created by his camera were internally consistent but about two minutes ahead of the actual time. With the agreement of both counsel, for the purposes of convenience in this proceeding, I have decided to refer to the DVD time markings to discuss the legal arguments raised. Exhibit 2 in this proceeding is the "in-car" DVD from that camera, covering the time periods of the investigation and arrest, which was played in court while Constable Ashkar testified.

[12] Constable Ashkar testified that at approximately 11:34 in the morning he activated his lights and siren, thereby activating the camera, and attempted to cause the Audi to pull over on St. Clair Avenue West for purposes of investigation.

[13] Constable Ashkar testified that initially the Audi did not pull over immediately, but continued to drive away in front of him and turned on to Old Weston Road.

[14] Constable Ashkar testified that only after approximately two minutes, after he activated his air horn did the Audi pull over, on Old Weston Road, at a time of 23:35:57 on the DVD, Exhibit 2.

[15] Constable Ashkar testified that at approximately 11:36 he drove up, pulled his police car in behind the Audi at the side of Old Weston Road and approached the vehicle to investigate.

[16] He testified that he approached the driver's side window, on the left side of the Audi, and Constable Griffiths approached the passenger side window, on the right.

[17] Constable Ashkar testified that at approximately 11:38 he spoke to the accused, who was the driver of the vehicle.

[18] Constable Ashkar observed that the driver's eyes were red and bloodshot, there was a smell of alcohol coming from the driver's mouth and that he was covering his mouth with his left hand.

[19] Constable Ashkar testified that he had a conversation with the accused about his driving and inquired of the accused as to how much he had had to drink that evening and was initially told "one beer".

[20] Constable Ashkar testified that he didn't believe this and when he questioned the accused further, the accused, who had identified himself as Mr. De Chiara, conceded that he had had three beers.

[21] Constable Ashkar testified that at approximately 11:42 he requested an approved roadside screening device ("ASD") be brought to the scene. (This is shown as occurring at 23:44:10 on the DVD.)

[22] Constable Ashkar testified that shortly after requesting the device, Constable Kuznetsov arrived at the scene with a device. (This is shown on the DVD occurring at 23:49:39.)

[23] Constable Ashkar testified that at approximately 11:48 he read the accused a roadside screening device demand. (This is shown as 23:51:05 on the DVD.)

[24] In cross-examination later on the time he used to investigate the accused before calling for a roadside screening device, and to make the roadside screening demand, Constable Ashkar conceded that only three to four minutes were actually used or needed to form his reasonable suspicion that the accused had alcohol in his system at the roadside, leaving four to five minutes for which he could not account, before he called for a roadside device, and eleven to twelve minutes before he made the roadside demand.

[25] Constable Ashkar testified that shortly thereafter the accused blew into the ASD and recorded a "fail" reading and he formed his reasonable and probable grounds to charge Mr. De Chiara with "Over 80".

[26] Constable Ashkar testified that at approximately 11:54 he arrested the accused for "Over 80" and at 11:55 he advised him of his right to retain and instruct counsel without delay and made the "approved instrument" demand, to provide a breath sample at the station into an approved instrument. (The DVD records the time of the arrest as 23:54:15 and the informing of the accused as to his right to counsel commencing at 23:55:08.)

[27] Constable Ashkar testified that at approximately 12:05 he and his companion officer, Constable Griffiths, left the scene and transported Mr. De Chiara in a police vehicle to 22 Division.

[28] Constable Ashkar testified that the ASD he used on this date was a Draeger Alcotest 7410 GLC that had last been calibrated on 12 October 2011, and was, to his understanding, calibrated periodically, approximately "every few weeks".

[29] In cross-examination on this point, defence counsel produced the training guidelines manual for the use of the Alcotest 7410 GLC and at page ten, "Operating Procedures" and asked the officer whether he realized that the ASD should be calibrated, according to the manual, every 14 days.

[30] Constable Ashkar answered initially in cross that he believed it could be every two weeks, or "every two months".

[31] Constable Ashkar explained that his only training had been one day in 2004 in an auditorium at the C.O. Bick Police College, where the trainees received handouts and tested the machines on people.

[32] Constable Ashkar further testified that he believed the calibration period might be approximately every two weeks or even up to three or four weeks.

[33] When counsel read from the manual, page four "TECHNICAL DATA" where it states "Calibration interval: every two weeks (not more than fourteen days)", Constable Ashkar testified:

To be perfectly honest with you, I don't recall anyone giving page by page; I don't recall anything in that depth.

[34] On further questioning, Constable Ashkar conceded that, at the time of administering the test to the accused he did not personally know the "technical" requirements for the calibration and use of the ASD, he only knew that based upon his own "self-test" and a further "self-test" by a traffic officer, that the ASD appeared to be working.

[35] On further questioning Constable Ashkar also conceded that the accused showed no signs of impairment and the recorded "fail" on the Alcotest 7410 GLC was the sole reason he arrested the accused in this case for the "Over 80" offence.

[36] Constable Ashkar also conceded that his reason with not concerning himself with the technical details of the machine was that if the machine was defective, he wouldn't have received it from the Constable Kuznetsov, in the first place.

[37] Constable Ashkar conceded that he did not disagree with the manual's requirement that the calibration be done periodically, at least every two weeks.

[38] When further questioned on how he would ascertain whether the machine he was given that night had been calibrated within the appropriate range of dates before he used it, he stated:

I am going to trust the traffic officer.

[39] When further asked as to how that would help, where he, as the officer using the ASD did not know the appropriate range of calibration dates for the machine he was using that night, he stated:

I suggest you speak to the traffic officer.

[40] In a parallel set of cross-examination questions on the eight to nine minutes he used to investigate the accused before calling for a roadside screening device, Constable Ashkar conceded that only three to four minutes were actually used or needed to form his reasonable suspicion that the accused had alcohol in his system at the roadside, leaving four to five minutes for which he could not account.

[41] The first Crown witness in this proceeding, Staff Sergeant James Walker, 22 Division, testified regarding his decision on 9 November 2011, to keep the accused, Mr. De Chiara, in custody overnight, from the time the investigation of his driving offence was completed, at approximately 2:35 in the morning until 10:11 later in the morning.

[42] In addition to Sergeant Walker's testimony, the Crown played in court the booking video from 22 Division, when Mr. De Chiara was being processed by Sergeant Walker, and it was filed as Exhibit 1 in this proceeding.

[43] Exhibit 1, the booking video, shows Mr. De Chiara's arrival in the sally port at 22 Division, his walking into the building, and his appearance, standing, in front of Staff Sergeant Walker who was the booking sergeant that evening, starting at 00:34:54, on the booking video timer.

[44] From my watching of this video, first in court, and later in my office, I find that at no time does Mr. De Chiara show any signs of impairment whatsoever. He does not show any difficulty in his walking, standing before Sergeant Walker, or in speaking. He is calm, compliant, and totally responsive to all questions asked of him, including personal questions about his employment as a mechanic.

[45] At 00:35:57, on the video timer, Sergeant Walker advises Mr. De Chiara that he has a right to "talk to a lawyer" and make "reasonable use" of a phone.

[46] Shortly thereafter, at 00:36:56, Mr. De Chiara first asks Sergeant Walker and then turns to Constable Ashkar and further inquires as to where his cell phone is at that moment. Constable Ashkar replies that the cell phone is "still in the car", referring to Mr. De Chiara's vehicle which was still at the scene of the arrest, and therefore not available at the station.

[47] Later on that morning, at 02:34:40 and thereafter, when Mr. De Chiara returns to the booking desk, after providing two breath samples, the camera records Sergeant Walker informing Mr. De Chiara, without any further inquiry or discussion, that Mr. De Chiara will have to stay at a lock up facility at 11 Division until the morning "for your own good".

[48] After the playing of the booking hall video, Sergeant Walker testified that on the morning of the investigation, 9 November 2011, he was the officer in charge of the booking desk at 22 Division, which serves as a Breath Test Station for Traffic Services and therefore is regularly dealing with the question of the release of accused suspects after the suspect has completed breath tests.

[49] Sergeant Walker testified that he has thirty-seven years of experience as a police officer and on a regular basis, now as a booking sergeant, he observes the condition of the accused and considers the recorded readings in deciding whether to release, in circumstances such as these.

[50] Sergeant Walker testified that on this occasion he decided to detain Mr. De Chiara, solely because of the intoxiliser readings.

[51] Sergeant Walker testified that, in his opinion, if Mr. De Chiara were released from the station, Mr. De Chiara could easily fall or stumble over a curb and into the roadway.

[52] Sergeant Walker testified that he considered the two readings of 180 milligrams of alcohol in 100 millilitres of blood recorded at 1:10 and 1:32 A.M., to be very high, and he concluded that for his own personal safety Mr. De Chiara should stay in a lock-up facility at 11 Division overnight to permit him to "sober up".

[53] Sergeant Walker conceded in cross-examination that none of the factors enumerated in section 498(1.1) of the Criminal Code required him, in his view, to detain Mr. De Chiara, but again reiterated that, in his view, Mr. De Chiara's high readings raised a significant concern for his personal safety if he were to have been released from 22 Division that night.

[54] Sergeant Walker also conceded, as shown on the booking video, that he personally did not inquire of the accused, Mr. De Chiara, or of the investigating officer, Constable Ashkar, regarding alternative arrangements for Mr. De Chiara to be taken home by his family or friends.

[55] Sergeant Walker testified that even if he knew that arrangements could have been made to have Mr. De Chiara picked up that night, he would probably not permit that to happen, out of concerns for his personal liability either criminally or under the Police Services Act, if something happened to Mr. De Chiara after he was released.

2: Submissions

The Submissions on "Forthwith", "Calibration" & "Overhold"

[56] The defence submits that the failure by the arresting officer to:

(1) Comply with the "forthwith" requirement in s. 254(2) of the Criminal Code and;

(2) Insure that the "approved screening device" used at the roadside had been calibrated within the appropriate time period to ensure accuracy of the roadside test;

(3) Advise Mr. De Chiara of his right to retain and instruct counsel without delay at the roadside while awaiting the arrival of the roadside ASD.

have resulted in a warrantless and therefore unreasonable search, contrary to the accused s. 8 & s. 9 Charter-protection from "unreasonable" detention and search, as well as denying Mr. De Chiara his s. 10(b) Charter right to retain and instruct counsel without delay and, therefore, as a result of these breaches the resultant breathalyser readings in this proceeding should be excluded under 24(2) of the Charter.

[57] The defence further submits that the detention of Mr. De Chiara after the investigation was completed, solely because of high breath test results and without inquiring as to alternative arrangements to allow him to return home, was an "arbitrary" detention, contrary to his s. 9 Charter-protection from "arbitrary detention or imprisonment" and therefore should result either in a judicial stay under 24(1) of the Charter, or contribute to the factual basis for the exclusion of the breath test results under 24(2) as further and discrete evidence of the impact of the breach on the Charter-protected interests of the accused.

[58] The Crown responds to these submissions as follows:

(1) There was a breach of the "forthwith" requirement because the officer had formed his "reasonable suspicion" within four minutes of the stop, at approximately 11:40, but did not make a formal demand for the approved device until approximately 11:51, a delay of eleven minutes.

(2) There was no breach of s. 10(b) because there was, on these facts, no "reasonable opportunity" to consult counsel;

(3) There was no overhold on the facts of this case, as there was no evidence of the availability of a sober adult to bring Mr. De Chiara home. Moreover, the enumerated reasons to detain in s. 498(1.1) are not exhaustive of the reasons an officer may decide not to release, and the safety concerns due to the high readings are matters that must be seen as appropriate in "all the circumstances" of this case, as a basis for the officer's exercise of his discretion to detain;

(4) If an overhold is found, a stay is not warranted on the facts of this case, because this is not "the clearest of cases" and there are alternative remedies.

3: The Legal Framework

3.1: S. 254(2)(b) Testing for presence of alcohol or a drug

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

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

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

The Meaning of "Forthwith" in s. 254(2)(b)

[59] In R. v. Thomsen, [1988] S.C.J. No. 31, Justice Gerald Le Dain held that the requirements of the ASD demand and obtaining of a breath sample at the roadside, as set out in s. 234.1(1), now s. 254(2) is a breach of the Charter s. 10(b) right to retain and instruct counsel without delay, but justified under s. 1 of the Charter as a reasonable limit prescribed by law where the demand and taking of the sample comply with the "forthwith" requirement of the section.

[60] In R. v. Grant, [1991] S.C.J. No. 78, Chief Justice Lamer upheld a trial judge's acquittal of an accused for failing to provide a breath sample at roadside and concluded that the detention of the accused at roadside and the wait for the arrival of the roadside screening device for thirty minutes was clearly a contravention of the "forthwith" requirement in section 238(2) of the Criminal Code, now s. 254(2) and a time period outside the contemplation of Parliament in enacting the legislation. Chief Justice Lamer stated at paragraph 20 of his ruling:

20 In my opinion, the actions of the officer in this case fell outside of the ambit of s. 238(2). The demand made was not the demand authorized by s. 238(2), that Mr. Grant provide a sample of his breath "forthwith." Instead, the demand made was a demand that he provide a breath sample when the required apparatus arrived, which turned out to be half an hour later. It follows that Mr. Grant was under no obligation to comply with the police officer's demand, and did not commit the offence under s. 238(5) when he failed to do so. The context of s. 238(2) indicates no basis for departing from the ordinary, dictionary meaning of the word "forthwith" which suggests that the breath sample is to be provided immediately. Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) will not be satisfied.

[61] The recent law with respect to roadside screening delay in Canada is set out in the decision of the Supreme Court in R. v. Woods, 2005 SCC 42, [2005] S.C.J. 42. In Woods, Justice Morris Fish, speaking for the court, upheld the finding of the Manitoba Court of Appeal that a breath sample provided by a motorist at a police station more than one hour and twenty minutes after the motorist had been arrested for refusing to comply with a demand at the roadside had not been provided "forthwith".

[62] In his reasons, at paragraphs 6, 14, 15, 29, 30 & 31 Justice Fish explains the working of s. 254 of the Criminal Code which provides a procedural short-cut for the admission of evidence of blood alcohol of motorists through the use of an ASD roadside screening test and later, an approved breathalyser instrument:

6 Parliament has created, in s. 254 of the Criminal Code, a two-step detection and enforcement procedure to curb impaired driving. The first step, set out in s. 254(2), provides for screening tests at or near the roadside immediately after the interception of a motor vehicle. The second step, set out in s. 254(3), provides for a breathalyser test, which is normally performed at a police station.

14 The constitutional obstacle is no easier for the Crown to overcome. Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample "forthwith".

15 Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster. That requirement cannot be expanded to cover the nature and extent of the delay that occurred here.

29 The "forthwith" requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the "forthwith" requirement, this Court must bear in mind not only Parliament's choice of language, but also Parliament's intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

30 As earlier explained, Parliament enacted a two-step legislative scheme in s. 254(2) and (3) of the Criminal Code to combat the menace of impaired driving. At the first stage, s. 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to provide breath samples for testing on an approved screening device. These screening tests, at or near the roadside, determine whether more conclusive testing is warranted. They necessarily interfere with rights and freedoms guaranteed by the Charter, but only in a manner that is reasonably necessary to protect the public's interest in keeping impaired drivers off the road.

31 At that second stage of the statutory scheme, where the Charter requirements must be respected and enforced, s. 254(3) allows peace officers who have the requisite reasonable and probable grounds to demand breath samples for a more conclusive breathalyser analysis. Breathalysers determine precisely the alcohol concentration in a person's blood and thus permit peace officers to ascertain whether the alcohol level of the detained driver exceeds the limit prescribed by law.

[63] To explain how and why the "forthwith" requirement relates to ss. 8, 9 & 10(b), Justice Fish reviews the facts in R. v. Cote, [1992] O.J. No. 7, and cites with approval the reasoning of Justice Louise Arbour of the Ontario Court of Appeal (as she then was) in that case:

34 In R. v. Cote (1992), 70 C.C.C. (3d) 280 (Ont. C.A.), the police officer likewise had no screening device in his car. He drove the accused to a police station nine minutes away and was not ready until five minutes later to take a breath sample. The accused refused to comply with the officer's demand and was charged pursuant to s. 238(5) [now s. 254(5)] of the Criminal Code. The Ontario Court of Appeal set aside his conviction and entered an acquittal instead.

35 Speaking for a unanimous court, Arbour J.A. (as she then was) cited the passage I have reproduced from Grant, and explained:

If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of the road, a large component of the rationale in Thomsen disappears. In other words, if the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under s. 238(2). The issue is thus not strictly one of computing the number of minutes that fall within or without the scope of the word "forthwith". Here, the officer was ready to collect the breath sample in less than half the time it took in Grant. However, in view of the circumstances, particularly the wait at the police detachment, I conclude that the demand was not made within s. 238(2). As the demand did not comply with s. 238(2), the appellant was not required to comply with the demand and his refusal to do so did not constitute an offence. [Emphasis added; p. 285.]

36 It is for these reasons that we are prohibited on constitutional grounds from expanding the meaning of "forthwith" in s. 254(2) to cover the delays that occurred in this case.

[64] Two decisions of my colleagues in the Ontario Court of Justice, involving the alleged offence of "Over 80" assist in understanding how the "forthwith" requirement should be understood in the case at bar.

[65] In R. v. Kerr, [2010] O.J. No. 2222, Justice Mel Green of this court excluded the breathalyser readings and found the accused not guilty, based upon the following facts:

(1) After a roadside stop, at 2:12 am – the police officer formed her reasonable suspicion that the defendant had alcohol in her body. She requested that an officer with an approved screening device (ASD) attend and was advised that an ASD was on its way.

(2) The arresting officer waited six minutes, ostensibly for reasons of "officer safety" to make the ASD demand until 2:18 when the ASD had arrived, a concurrence the officer attributed to coincidence.

(3) Ten minutes later, at 2:22 am the accused registered a "Fail" on the ASD and she was advised of her s. 10(b) rights to counsel at 2:27am.

[66] In R. v. Beattie, [2009] O.J. No. 4121, Justice Bruce Duncan of this court again excluded the evidence and found the accused not guilty, based upon the following facts:

(1) The defendant was stopped by police around 12:50 on a Monday afternoon after he was seen to turn left across oncoming traffic. The officer detected a smell of alcohol on the defendant's breath and noted a rosy face.

(2) The officer suspected that the defendant had alcohol in his body and read an ASD demand at 12:52. He did not have an ASD and radioed for one to be brought to the scene of the stop. The officers who responded did not have one either and had to go to the Division to pick one up. The defendant waited at or in his own vehicle. He was not read his rights to counsel.

(3) The ASD arrived at 1:09 and the test was conducted at 1:12pm, 20 minutes after the demand. The defendant failed, was arrested and read his rights to counsel. He was taken for breath testing and gave samples at 2:10 and 2:37 betraying 240 milligrams of alcohol in 100 millilitres of his blood.

[67] Justice Duncan concluded that the "forthwith" requirement in the Code was breached because the demand must be made immediately upon the officer forming the suspicion of alcohol in the body and determining that it is appropriate to administer the ASD test whether or not an ASD was immediately available at the roadside. (See also Justice Casey Hill's reasoning on this point, post-Woods in R. v. Fildan, [2009] O.J. No. 3604, which Justice Duncan cites in support of his finding of a "forthwith" breach in Beattie.)

Calibration of the Draeger Alcotest 7410 GLC Approved Screening Device ("ASD")

[68] In R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579, Justice Todd Ducharme sat as a Summary Conviction Appeal Court Justice and concluded that after the trial judge in that case had concluded that there had been a breach of the appellant's s. 8 Charter right, the trial judge erred in not excluding the appellant's breath samples.

[69] The trial judge found a breach of the appellant's rights under s. 8 of the Charter, because the Crown had not shown that the seizure of his breath sample at the police station was a reasonable one due to the arresting officer's lack of knowledge regarding the workings of the ASD, as enumerated in the trial judge's findings:

(1) The arresting officer ("AO") did not do a "self-test", and could not remember whether he was required to do so by his training 22 years before;

(2) The AO did not check when the device was calibrated and didn't remember whether he was supposed to check this;

(3) The AO testified that he had performed two or three breath tests which produced no results, but he couldn't recall what error messages had come up;

(4) The AO conceded that he was not sure what a "fail" message looked like;

(5) The AO admitted that he had forgotten a lot of his training about the use of ASD's and conceded that he was not sure that he had used the device properly "to the technical side".

[70] Justice Ducharme concluded that the trial judge had erred in not concluding that the cumulative effect of the Charter breaches required exclusion, having regard to the prospective analysis set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.)

[71] In R. v. Persaud, [2011] O.J. No. 1559, Justice Susanne Goodman upheld the decision to exclude the breath samples where the trial judge found that the ASD had not been calibrated in three months and the arresting officer admitted he did not know when the ASD was calibrated and was not familiar with the technical data for set up and use of the ASD as set out in the manufacturer's "Guidelines". The trial judge found that the AO did not check when the device was last calibrated and relied upon a "self-test" by his escort and nothing more. Madam Justice Goodman concluded that the Crown was not entitled to prove "reasonableness" simply on the basis that the officer "honestly and subjectively" believed the ASD was in working order.

[72] In R. v. Dempster, [2000] O.J. No. 4437, Justice Gloria Epstein, sitting as a Summary Conviction Appeal Justice, upheld the trial judge's decision to exclude the evidence of the breath tests on the s. 8 basis of the lack of reasonableness of the breath test where the AO testified that he was a "qualified breach technician", was familiar with the device and relied for his subjective belief on a "self-test" of the device.

[73] Justice Epstein pointed out, in upholding the trial judge's findings, that:

12 There is no statutory presumption that the machine is working properly and that the information it provides is reliable. It is therefore the Crown that bears the burden of proving whether a particular screening device reliably provided that information in any given case.

13 That being said, in cases such as this where a roadside screening device test is being used solely for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be over the legal limit, the specifics of calibration need not be proved. In the words of Mr. Justice Moldaver in R. v. Coutts (unreported decision of the Ontario Court of Appeal on April 13, 1999) "it is sufficient if the administering officer reasonably believes them to be true".

14 Clearly, the trial judge applied her mind to the test articulated in Coutts. Equally clearly, the trial judge was not satisfied with the Crown's evidence supporting the reasonableness of the administering officer's belief that the roadside screening device was working properly and therefore that it would yield reliable results. She found that the evidence on the subject; namely, the testimony of the police officer essentially to the effect that based on his experience the machine appeared to be working properly, as insufficient.

[74] In a consistent pattern over the last twenty years, where AO's have relied for the reasonableness of the breath test request on the ASD "fail", trial judges have found a s. 8 Charter breach and excluded the results of breath tests where the Crown could not establish that there was an objective basis to conclude that the ASD that produced the "fail" was working properly. (See R. v. Censoni, [2001] O.J. No. 5189 and R. v. Costa, [2010] O.J. No. 1881)

[75] Where the Draeger Alcotest 7401 ASD has been used outside the 14 day calibration "guidelines" or the calibration dates are unknown, the Crown has been found not to have established "reasonableness" and the breath test results have been consistently excluded by trial judges. (see, for examples R. v. Fehrenbach, [2001] O.J. No. 4552; R. v. Ramsden, [2002] O.J. No. 5868; R. v. Hanson, [2006] O.J. No. 5347; R. v. Pruski, 2006 ONCJ 506, [2006] O.J. No. 5256; R. v. Johnston, [2007] O.J. No. 500; R. v. Kaseba, [2011], unreported)

[76] For a full understanding of the issue, also see R. v. Valdez, [2010] O.J. No. 4767, where Justice Carol Brewer found that where the officer administering the 7401 ASD improperly assumed that the roadside device was properly calibrated based upon the fact it showed no error code when used, the s. 8 breach did not require exclusion. In applying s. 24(2) and concluding that the ASD results should not be excluded, Justice Brewer ruled that the breach was technical only, because the officer had ample basis to arrest the accused for impaired driving in any event.

3.2 The "Overhold" Argument

When is a Detention Arbitrary?

[77] In R. v. Sapusak, [1998] O.J. No. 3299, Justice Ron Thomas found that where two intoxiliser breath readings of 130 milligrams of alcohol in 100 millilitres of blood were taken at 3:30 and 4:00 AM and the accused was then lodged in a cell and not released by the officer-in-charge until 11:10 AM, there was not an arbitrary detention.

[78] Justice Thomas heard testimony that the police had a policy in the region of Peel not to release an impaired suspect until the blood alcohol level was "safely below 50 mgs."

[79] The accused testified that he was only able to sleep for one hour because he was disturbed and upset by the conduct of other persons lodged in cells nearby.

[80] The accused conceded, however, that he did not ask for arrangements to be made to permit him to be picked up from the station.

[81] Justice Thomas ruled that the failure of the officer in charge to release did not contravene s. 498 of the Criminal Code and was not arbitrary as the decision was made in the public interest, because of the high readings.

[82] At the appeal hearing in the Ontario Court of Appeal, R. v. Sapusak, [1998] O.J. No. 4148, Associate Chief Justice John Morden stated that the decision to detain overnight was made for the protection of the accused, and if it was arbitrary, the breath readings should not be excluded because it was not the "clearest of cases".

[83] In R. v. Iseler, [2004] O.J. No. 4332, the Ontario Court of Appeal heard an appeal in which both an initial s. 9 Charter application and a resultant summary conviction appeal ruling concluded that there had not been an arbitrary detention of the accused who had been kept in a jail cell for 11 hours with virtually no police contact, due to high breath test results of 177 and 175 respectively.

[84] In the Charter application in the Ontario Court of Justice, the booking officer testified that, as a matter of policy, persons charged with impaired driving and related offences are released according to their level of sobriety. He testified that "as a rule of thumb" police officers in Ottawa-Carleton rely on an elimination rate of approximately 15 mg of alcohol per hour. However, he could not say that any such assessment had been made in the appellant's case.

[85] After reviewing all the facts, Justice Robert Armstrong concluded that both the trial court and summary conviction court had erred in concluding that there was no s. 9 breach.

[86] However, again, as in Sapusak, Justice Armstrong concluded that this was not a case in which a stay was appropriate. Justice Armstrong reasoned that although the police failure to monitor the accused while in detention for 11 hours was "inexcusable" abuse of their discretion to detain intoxicated accused persons, because the arbitrary detention occurred after the investigation and gathering of evidence, there was no impact on trial fairness.

[87] In R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587, Justice Bruce Durno, concluded on appeal that while a seven hour delay in releasing the accused where his wife was available to pick him up as an "arbitrary detention", the appropriate remedy was a waiving of the $600 minimum fine rather than a stay.

[88] In a like manner, in R. v. Kisil, 2009 ONCJ 424, [2009] O.J. No. 3821, where the accused was held for three hours after providing breath samples, Justice J.S. Nadel found although there was an arbitrary detention, the police policy in Peel of detaining impaired drivers until their blood alcohol level was reduced to 100 mg was reasonable, and a stay was not appropriate.

[89] In consecutive decisions in the Ontario Court of Justice in Peel, R. v. Ewert, [15 April 1999, unreported] and R. v. Owen, [26 July 2001, unreported], Justice Kathryn Hawke, in both cases found arbitrary detentions and concluded that her original attempt to vary the sentence in the first case was not, in fact, an adequate remedy, and therefore, in the second case, granted a stay.

[90] In R. v. Boyce, [2003] O.J. No. 5498, Justice Gilles Renaud concluded that a stay was the appropriate remedy for the cumulative s. 9 breaches where there was both a 12 minute breach of the "forthwith" requirement for the roadside demand, and a three hour delay in the release of the accused following the investigation because she was distraught and intoxicated, despite the availability of a friend to drive her home.

3.3: Remedies under ss. 24(1) & 24(2)

[91] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:

(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.

[92] In my view, in applying these principles, where the court is considering a submission for the exclusion of evidence, under s. 24(2) for alleged breaches of Charter-protected rights during detention before the arrest and breath demands were made and, in the alternative, a stay, under s. 24(1) due to an alleged "overhold" referring to discreet state conduct infringing Charter-protected rights following investigation and charging of an accused all of the police conduct must be considered in fashioning an appropriate remedy in the initial s. 24(2) analysis.

[93] In particular, where the exclusion of evidence is being considered, the discreet state conduct following investigation and charging, when the accused is detained for "sobering-up" purposes, while not affecting trial fairness, in my view, may still be considered, as defence counsel submits, in considering the impact of the police conduct during the initial detention, prior to the ASD demand, roadside testing and arrest, because this alleged "overhold" if proven to be a breach of s. 9, exacerbates and prolongs the invasion of constitutionally-protected privacy and liberty interests as discussed by Justice John Sopinka in R. v. Bernshaw, [1994] S.C.J. No. 87, at paragraph 74:

74 Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat the purpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would be rendered totally unreliable and flawed. The flexible approach strikes the proper balance between Parliament's objective in combatting the evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure. I do not believe that the matter is advanced by quoting statistics. Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code.

[94] In my view, the alleged "overhold", if proven, is part of the "circumstances" to be weighed by the trial court, even where a "stay" is not the appropriate remedy for the s. 9 Charter breach due to a decision to detain after the investigation is complete, even though it does not impact trial fairness.

[95] This is not to say that a trial court can or should ignore the consideration and primacy of "trial fairness" in evaluating the seriousness of multiple Charter breaches under s. 24(2), as set out in the decision of the Supreme Court of Canada in R. v. Collins, [1987] S.C.J. No. 15, in which Chief Justice Brian Dickson for the majority stated:

39 The final relevant group of factors consists of those that relate to the effect of excluding the evidence. The question under s. 24(2) is whether the system's repute will be better served by the admission or the exclusion of the evidence, and it is thus necessary to consider any disrepute that may result from the exclusion of the evidence. In my view, the administration of justice would be brought into disrepute by the exclusion of evidence essential to substantiate the charge, and thus the acquittal of the accused, because of a trivial breach of the Charter. Such disrepute would be greater if the offence was more serious. I would thus agree with Professor Morissette that evidence is more likely to be excluded if the offence is less serious (supra, pp. 529-31). I hasten to add, however, that if the admission of the evidence would result in an unfair trial, the seriousness of the offence could not render that evidence admissible. If any relevance is to be given to the seriousness of the offence in the context of the fairness of the trial, it operates in the opposite sense: the more serious the offence, the more damaging to the system's repute would be an unfair trial.

[96] In my view this approach simply requires of the court an awareness that the consideration of pre-charge and post-charge police conduct are not watertight compartments in weighing the impact of the initial unlawful detention and search on the constitutionally-protected Charter interests of the individual accused.

[97] Therefore, in my view, all the surrounding circumstances as they impact on the citizen must be assessed under s. 24(2) in deciding whether the exclusion of evidence is appropriate.

[98] To summarize, I will therefore look at all the circumstances of Mr. De Chiara's detention, arrest and after-arrest detention in weighing the competing interests that are addressed when a court is being asked to exclude evidence.

[99] It is also clear from the application of these principles by the Supreme Court of Canada in R. v. Grant and R. v. Harrison, 2009 SCC 34, [2009] S.C.J. No. 34 that in the weighing of these factors, the trial court must be forward-looking and attempt to evaluate the impact not just on the accused who has brought the Charter application, but on the societal interest to have trials determined on the merits and finally the impact on future trials, if the Charter-protected interests are not acknowledged and an appropriate and meaningful remedy found in the final result of the matter before the court.

[100] In R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579, Justice Todd Ducharme was sitting as a Summary Conviction Appeal Court Justice and concluded that the trial judge in that case had erred in not excluding the results of the breath samples due to the arresting officer's lack of knowledge regarding the workings of the ASD, as I set out in the summary of the arresting officer's deficiencies in paragraph 69, in this judgment, above, under the heading "Calibration".

[101] In R. v. Au-Yeung, at trial, the arresting officer, P.C. Wollenzien, admitted in that case that he had forgotten a lot of his training about the use of ASDs and, most strikingly, conceded that he wasn't really sure whether he had used the device properly in this case "to the technical side."

4: Application of the Legal Framework to this Case

Did The Arresting Officer Fail to Comply with the "Forthwith" Requirement of s. 254(2)(b)?

[102] The Crown has conceded that there was a breach because the officer had formed his "reasonable suspicion" within the first four minutes of the stop but delayed in making his formal demand for approximately eleven minutes. However, the Crown quickly adds, in her submissions, that this did not impair the accused's s. 10(b) "right to consult counsel" as there was no "reasonable opportunity" to do so, on the facts before me.

[103] With respect, I must disagree. Constable Ashkar conceded in cross-examination that when he belatedly made a request for the ASD to be brought to the roadside, he did not inquire as to how long it would take for the device to arrive.

[104] The booking hall video at 00:36:56 reveals in Constable Ashkar's response to the question from Mr. De Chiara about the location of his cell phone that Constable Ashkar is aware at that juncture of the investigation that Mr. De Chiara was in possession of a cell phone that evening and that the cell phone was in the accused's car which remained at the roadside.

[105] In my view, the evidence from the booking video supports the conclusion that in the course of investigating Mr. De Chiara at the scene, Constable Ashkar knew, or ought to have known that Mr. De Chiara had a cell phone and could have made a phone call while he was detained and Constable Ashkar and Mr. De Chiara were waiting for the ASD to arrive.

[106] In R. v. Cote, above, decided in 1992, the detaining police officer, like the facts in the case at bar, did not have a screening device in his car. In that case, he decided to drive the accused to a police station nine minutes away and was not ready until five minutes later to administer a screening device. Justice Arbour found on those facts that there was a realistic opportunity to consult counsel at the station, during that five minute wait. She therefore concluded that the demand made under 238(2), now 254(2) was not a legal demand, because it failed to respect the accused's constitutionally-protected right to contact counsel without delay.

[107] On the facts in this case, I also find that there was a realistic opportunity to consult counsel at the roadside, during the approximately seven minute wait at the roadside, from 23:44:10, when Constable Ashkar requested an ASD be brought to the scene, and 23:51:05 when he read the accused a roadside screening device demand.

[108] I therefore find that the 254(2) demand made of Mr. De Chiara at 23:51:05 was not made "forthwith" and was not a proper or legal demand, because it infringed Mr. De Chiara's ss. 8, 9 & 10(b) Charter rights. Let me explain why.

[109] Constable Ashkar conceded and the Crown submitted that he had formed his "reasonable suspicion" within four minutes of the stopping of the vehicle, which occurred at 23:35:57, shortly before midnight according to the time-setting on his "in-car" camera.

[110] The "in-car" DVD records the time as 23:49:39 when Kuznetsov is seen to arrive at the scene with the ASD device.

[111] In my view, by applying the reasoning in R. v. Cote, supra, there was ample "reasonable opportunity" for Mr. De Chiara to use his cell phone to attempt to contact and consult counsel between approximately 23:40:00 when Constable Ashkar had formed his "reasonable suspicion" and the officer's reading of the roadside breath demand, which was made at 23:51:05, a period of over ten minutes.

[112] The defence further submits, and I agree, that whether or not I can conclude with certainty that Constable Ashkar was aware during this time period that Mr. De Chiara had his cell phone with him in his car that night, the application of a 10(b) breach is made out.

[113] In my view, it is reasonable to expect police constables to know, and to be aware that most citizens and drivers keep personal cell phones, whether in pocket or purse while travelling outside of their residences.

[114] Just as officers must be certain, for officer's safety, that detained individuals do not possess any weapons, a simple and appropriate approach should be to inform the citizen of their right to retain and consult counsel without delay, and then ask the detained citizen is "Do you have a cell phone with you?" as part of the comprehension enquiry.

[115] In my view it is both logical and reasonable that Constable Ashkar, in this case, inform Mr. De Chiara of his right to retain and instruct counsel without delay while waiting the seven minutes for the ASD to arrive and give him the opportunity to do so with his cell phone, where, as is the case here, a cell phone is available.

[116] I therefore find, on the facts before me, that there was both an arbitrary detention and a s. 9 Charter breach, and also a breach of Mr. De Chiara's s. 10(b) right to "retain and instruct counsel without delay and to be informed of that right".

[117] I have concluded that the accused right under s. 8 of the Charter not to be subject to an unreasonable search and seizure was also breached.

[118] I have reached this conclusion both because of the failure of the officer to make the ASD demand "forthwith" and because of the officer's lack of training and understanding of how to use the ASD, and the central importance of "calibration" dates, when the ASD is the sole factual basis being relied upon for the officer's reasonable and probable grounds to arrest.

[119] On this issue, Constable Ashkar conceded that he did not know the "technical" requirements for the calibration and for his use of the ASD and relied solely on his self-test and that of the traffic officer, and did not consider the calibration date when conducting the test.

[120] The trial evidence discloses that the ASD was last calibrated on 12 October 2011, and then used to test Mr. De Chiara on the morning of 9 November 2011, some twenty-eight days later, well outside the 14 day calibration requirement in Exhibit 7, the Operating Manual for the Alcotest 7410 GLC.

[121] I further find that Constable Ashkar was not familiar with the calibration requirements of the machine, and that his training in the use of the ASD, which occurred at the C.O. Bick Police College in 2004, was, by his own admission, inadequate for him to properly understand the workings of the machine or its use.

The Decision to Detain Mr. De Chiara After the Investigation was Complete

[122] Sergeant Walker testified that he considered the two readings of 180 milligrams of alcohol in 100 millilitres of blood recorded at 1:10 and 1:32 A.M., to be very high, and he concluded that for his own personal safety Mr. De Chiara should stay in a lock-up facility at 11 Division overnight to permit him to "sober up", despite the fact that the booking video reveals absolutely no indication that Mr. Chiara was intoxicated or unable to function appropriately.

[123] Sergeant Walker conceded in cross-examination that none of the factors enumerated in section 498(1.1) of the Criminal Code required him, in his view, to detain Mr. De Chiara, but again reiterated that, in his view, Mr. De Chiara's high readings alone raised a significant concern for his personal safety if he were to have been released from 22 Division that night.

[124] Sergeant Walker also conceded that he personally did not inquire of the accused, Mr. De Chiara, or of the investigating officer, Constable Ashkar, regarding alternative arrangements for Mr. De Chiara to be taken home by his family or friends.

[125] This is especially troubling on the facts before me, where, as revealed by the booking video, shortly after Sergeant Walker advised Mr. Chiara that he could consult a lawyer and make reasonable use of a phone, Mr. Chiara started to speak to Sergeant Walker, hesitated and turned to Constable Ashkar and inquired as to the location of his cellphone.

[126] My concerns are heightened by the fact that Sergeant Walker testified that even if he knew that arrangements could have been made to have Mr. De Chiara picked up that night, he would probably not permit that to happen, out of fears for his personal liability either criminally or under the Police Services Act, if something happened to Mr. De Chiara after he was released.

[127] This "mindset" was graphically illustrated on the booking video, where, once Constable Ashkar responded to Mr. Chiara's question about the location of the cell phone, and the fact it was still in Mr. Chiara's vehicle, neither Ashkar or Walker initiated any further discussion with Mr. De Chiara about facilitating a phone call to counsel or to a family member to arrange for a family member to pick him up.

[128] In my view, the testimony of Sergeant Walker and the booking video, Exhibit 1, reveal a police "mindset" on the part of Sergeant Walker that resulted in an unnecessary and unwarranted fettering by Sergeant Walker of his own discretion as the booking Sergeant to release Mr. De Chiara.

[129] In my view, this resulted in a clear breach of the accused's s. 9 right not to be unreasonably detained.

What is the Appropriate Remedy under ss. 24(1) & 24(2)

[130] In my view, the appropriate remedy is the exclusion of the breath test results and the acquittal of the accused. Here are my reasons to exclude under s. 24(2).

The Seriousness of the Charter-Infringing State Conduct

[131] In my view, the breaches of the accused's constitutionally-protected Charter rights are multiple and cumulative in their effect.

[132] I have found there was an approximate eleven minute delay in making the roadside demand resulting in an arbitrary detention contrary to s. 9.

[133] The initial delay in making the demand for the roadside breath sample resulted in a further delay in requesting a roadside device and a delay before the "failed" roadside test. This resulted in a continuing detention in which the accused was not informed of his right to counsel or afforded an opportunity to contact, instruct or consult with counsel.

[134] In my view this was a breach of Mr. De Chiara's 10(b) right to retain counsel without delay and to be informed of that right.

[135] The arresting officer's lack of understanding of the timing of the demand and the calibration and use of the ASD resulted in an illegal arrest for which there was no other factual basis in law and the resulting breath test at 22 Division was unlawful contrary to s. 8.

[136] In a similar circumstance to the facts found in R. v. Au-Yeung, supra, the testimony of Constable Ashkar is that he was only trained in a very rudimentary way as to the use of the ASD at the C.O. Bick Police College, and that this was the only training he received.

[137] I therefore find as a fact that Constable Ashkar's lack of proper training in the use of the ASD was the proximate cause of the s. 8 breach.

[138] I agree and adopt the reasoning of Justice Ducharme, in R. v. Au-Yeung, and I question how it came to pass that Constable Ashkar was assigned to these highway patrol duties and permitted to use an ASD for which he had not received sufficient training.

[139] As stated by Justice Ducharme at paragraph 53 of his judgment in R. v. Au-Yeung:

53 Central to the constitutional integrity of the two-step legislative scheme in sections 254(2) and 254(3) of the Criminal Code designed to combat drinking and driving offences is the proper use of ASDs by police officers.

In considering this standard of behaviour, the following passage from paragraph 75 of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 is apposite:

"Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [Emphasis added.]

[140] The illegal arrest and the subsequent intoxiliser readings resulted in the further decision by Sergeant Walker to detain Mr. De Chiara overnight, for a period of close to eight further hours.

[141] In my view this detention could have been avoided if further inquiries had been made of the accused, and therefore the failure of Sergeant Walker to make those inquiries was a further s. 9 breach, and increased the impact on Mr. De Chiara of the initial breaches of ss. 8, 9 & 10(b).

[142] In this approach I agree with the general approach of my colleague, Justice Renaud, in R. v. Boyce, supra, in which he considered both breaches and decided that although only the first delay compromised trial fairness, he could consider the cumulative effect on the accused in deciding on the appropriate remedy.

[143] In my view, trial judges must attempt to fashion a remedy that reflects recognition by the court of the impact of Charter breaches on the liberty interests of the citizen.

[144] As stated by Justice Ducharme in R. v. Au-Yeung at paragraph 55:

The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers. As Sopinka J. observed in R. v. Bernshaw at paragraph 74:

Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added.]

The Impact of the Breach on the Charter-Protected Interests of the Accused

[145] As I stated above, I have found that the unlawful arrest of Mr. De Chiara resulted in breaches of ss. 8, 9 and 10(b) of the Charter.

[146] Again, I agree with the analysis of Justice Ducharme that the taking of breath samples is not significantly intrusive in a physical sense or invasive in terms of being part of a "biographical core of personal information". These factors favour the admission of the evidence.

[147] But as Justice Ducharme also points out, the demands on the driver, once arrested, are anything but minimal.

[148] In this case, Mr. De Chiara was arrested, handcuffed, placed in the rear of a police car and taken to a police station, and, once at the station, he was kept in police custody for another two hours and forty minutes, in order for the police to complete the initial investigation and the taking of the breath tests.

[149] Following this detention he was kept overnight at 22 Division until his release at 10:11 the next morning, a further detention of almost eight hours.

[150] In my view, this resultant series of detentions constitute a significant violation of Mr. De Chiara's s. 9 constitutionally-protected right against arbitrary detention.

[151] In my view, the impact on Mr. De Chiara of this extended period of time in police custody weighs in favour of exclusion.

Society's Interest in the Adjudication of the Case on its Merits

[152] This third principle asks the court to carefully evaluate whether the "truth-seeking" role of the court and the longer term reputation of the administration of justice going forward support the admission of the evidence, rather than exclusion.

[153] It cannot be disputed that evidence obtained by analysis of breath samples is generally reliable and would not in most cases mislead a trier of fact, where the allegation is of "Over 80".

[154] In addition, the public accepts the use of breath sample evidence, and therefore the use of such evidence by the judge would not usually create an impression that the accused's trial was unfair or otherwise bring the administration of justice into disrepute.

[155] However, in my view, where the problem in the unlawful obtaining of the breath sample results can be directly attributed to the lack of proper training at the C.O. Bick Police College in 2004 of a police officer empowered to employ the ASD to determine whether or not a motorist should be detained, the reputation of the administration of justice and law enforcement, generally, is adversely affected.

[156] In this case there has also been an extended unlawful detention for a further eight and three-quarter hour period after the completion of the investigation that was not warranted on the facts.

[157] Thus, on the particular facts of this case, I cannot conclude this third branch of the analysis mandated by R. v. Grant favours the admission of the breath sample evidence.

Conclusion

[158] Although no trial court should minimize the public concern for and impact of the "carnage" of the sometimes toxic combination of drinking and driving on the highways, that same trial court must also not ignore the fact that the Charter protects all those accused of criminal offences, no matter how serious the offence.

[159] In balancing these competing societal interests, on the question of whether to exclude the evidence in this case, I agree with Justice Ducharme, in his conclusion in R. v. Au-Yeung, at paragraph 68, that the balance weighs in favour of exclusion and for last word on this I rely on Justice Ducharme's summary and his quotation of the sage advice to trial judges proffered by Justice Morris Fish, in R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8:

68 In considering this question Grant requires that I bear in mind the long-term and prospective effect upon the fair administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused. In doing so, I note the comments of Fish J. for the majority at paras. 110 to 113 of R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 (S.C.C.):

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.

112 I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute.

113 I would therefore exclude that evidence and, since there was no possibility that the accused could have been convicted in the absence of the evidence, I would allow the appeal, quash the appellant's conviction and enter an acquittal in its place.

[160] Without deciding the submissions of counsel on the availability of a s. 24(1) stay on the issue of the "overhold" I am of the view that, on the facts before me, the s. 9 breach has been established, but that the Crown would likely succeed in her submission, that, strictly on the "overhold" taken by itself, as a discreet set of facts in this case, that the "overhold" facts do not give rise to the conclusion that this is the "clearest of cases" and for this reason, a stay would not be warranted.

5: Ruling

[161] In the result, I am granting the Charter application herein and excluding the evidence of the results of the breath tests.

[162] The charge herein of "Over 80" is therefore dismissed.

Released: 2 May 2013

Signed: "Justice Paul H. Reinhardt"