Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Derek Harris

Before: Justice H. Borenstein

Heard: February 13 & 14, 2013, April 18, 2013, April 29, 2013

Reasons for Judgment Released: May 22, 2013

Counsel:

• Ms. J. Mannen for the Crown
• Mr. S. Price for the accused Derek Harris

BORENSTEIN J.:

Facts

[1] Derek Roy Harris is charged with operating his vehicle while his ability to do so was impaired by alcohol and with a blood alcohol level in excess of the legal limit.

[2] Mr. Harris left a bar at approximately 2:20 in the morning, entered his car and began driving northbound on Port Union Road. He was alone at the time. His vehicle hit a light standard in the centre of the road knocking the pole onto the road. Mr. Harris' car spun to some extent and came to rest by a nearby home. Several drivers who were travelling southbound on Port Union Road saw part of the accident and called police. They remained on scene until the police arrived shortly thereafter.

[3] Officers Hamilton and Chan arrived on scene at 2:25 a.m. By 2:29 a.m., Hamilton formed the opinion that Harris' ability to operate a vehicle was impaired by alcohol. He arrested Harris, read him the Intoxilizer demand and his right to counsel. When asked if he wanted to call a lawyer now, Harris replied: "Do I have to call one now?" Harris wanted to be taken to the hospital. Hamilton's response to that comment is the subject of dispute in this trial. An ambulance on scene transported Harris to the hospital where he was medically cleared. A breath technician attended the hospital and, at 4:58 a.m., approximately two and a half hours after the police attended, he took the first of two suitable breath samples of Mr. Harris' breath yielding breath readings of 186 and 191 milligrams of alcohol per 100 millilitres of blood respectively. A toxicologist testified that, assuming those readings, and the standard four assumptions, Mr. Harris B.A.C. at 2:20 a.m would have been between 185 and 230 milligrams of alcohol in 100 millilitres of blood. The expert also opined that Mr. Harris' ability to operate a motor vehicle would be impaired by alcohol with that level of alcohol in his body.

[4] Mr. Harris testified in his own defence and called a defence witness. They both testified that Harris was not impaired. They both testified that Harris consumed two beers just before driving. Harris testified in relation to the Charter issues as well. Mr. Harris has raised numerous arguments. However, by the end of the trial, the following issues remain to be decided:

• Has the Crown proved that Mr. Harris' ability to operate a motor vehicle was impaired by alcohol.
• Further, did the police violate Mr. Harris' Charter rights in any of the following manners:
  • did they have grounds to issue a breath demand; and
  • did they violate his right to counsel.

Evidence of Civilians Who Witnessed Part of the Accident

[5] Melissa Islan, a 20 years old student at McMaster University, was being driven home by her mother. She did not drink any alcohol that night. As they travelled on southbound Port Union Road, Melissa saw a headlight spinning and a light standard in the middle of the road. The spinning car came to rest in a driveway. Melissa's mother stopped the car and they called 911. There were two cars in front of theirs that also stopped. The driver, whom we now know to be Mr. Harris, got out of the car and appeared to be limping, or walking funny. The incident happened quickly. It looked to Melissa as though Mr. Harris's car was driving normally and went out of control.

[6] Qiyang XUE was 22 years old at the time of trial and was in his fourth year of studies at University of Toronto. He was driving south on Port Union when a car travelling north hit a centre pole and spun. It appeared to Xue that the car was drifting and drove straight into the light standard. Xue was of the opinion that the male was showing off or driving that way intentionally. Once it hit the pole, it went out of control. In cross examination, Xue agreed that there was nothing unusual about the driving before it appeared to lose control. Xue had no idea why the car lost control and did not see if it blew a tire.

Constable Hamilton

[7] P.C. Hamilton happened to be in his cruiser shortly before the accident occurred. He came upon the accident scene at 2:25 a.m. and saw debris on the road. He saw a light standard on the roadway. Mr. Harris was standing a foot or two from his car which had been considerably damaged. Both air bags had deployed. Hamilton approached Harris who admitted being the driver and having consumed some alcohol. Hamilton believed the accident had occurred within minutes of his arrival. Harris was injured and appeared to be in some pain.

[8] Constable Hamilton asked Harris for his identification. Harris walked a few steps to the rear right passenger side of his car and retrieved his wallet. In those few steps, P.C. Hamilton testified that Harris was unsteady on his feet and touched the left side of his car for balance. Hamilton noted a strong odour of alcohol coming from Harris' breath. When handing over his licence, Harris initially handed over a debit card. Hamilton repeated that he was requesting his driver's licence. Hamilton searched though his wallet as though he was uncertain where his licence was located.

[9] P.C. Chan told Hamilton that Harris admitted to having had a few drinks.

[10] At 2:29 a.m., Hamilton formed the opinion that Harris' ability to operate a motor vehicle was impaired by alcohol. Hamilton testified that his opinion was based on the strong odour of alcohol on Harris' breath, Harris' unsteadiness by the car, the fact that he produced a debit card initially and then "thumbed" through his wallet and that his speech seemed slurred. He testified that the accident did not form part of his grounds for believing that Harris' ability to drive was impaired.

[11] Hamilton arrested Harris for impaired operation of a motor vehicle and read him his right to counsel. Harris told P.C. Hamilton that he understood his rights.

[12] When Hamilton asked Harris if he wished to call a lawyer now, Harris replied: "do I have to call one now?" Hamilton testified that he told Harris that he did not have to call one now but had that right if he so chose. He testified that he made sure Harris knew he had to the right to call duty counsel if he so chose but he did not choose to do so. He did not take Harris' comments as a waiver of his right to counsel. Hamilton testified that he did not recall any further discussion with Harris about calling a lawyer.

[13] Harris wanted to be taken to the hospital. Hamilton had the ambulance take Harris to Centenary hospital. P.C. Chan accompanied Harris in the ambulance. Constable Hamilton followed in his cruiser. At the hospital, Mr. Harris fell asleep a few times. He woke up crying and said he was sorry as he could have killed someone. He was eventually examined by a doctor and cleared as being able to take a breath test. There was no further discussion about counsel at the hospital though, had the matter come up, Hamilton testified that would not have felt secure letting Harris using an unsecured phone at the hospital.

[14] A qualified breath technician, Constable Kirkland, attended the hospital and set up the device.

[15] In cross examination, Hamilton testified that he did not note the fact that Harris cried at the hospital nor did he note that his speech was slurred.

[16] He did not recall whether Harris' tires were flat.

[17] He could not recall if he and Chan had discussed using an ASD though it was possible. The officers were not in possession of an ASD that night.

P.C. Chan

[18] P.C. Chan testified that, when he and Hamilton approached Harris, Harris admitted drinking. Chan accompanied Harris in the ambulance. In the ambulance, Chan could smell a strong odour of alcohol coming from Harris. Chan testified that he was in Mr. Harris' presence from that moment until Harris' eventual release from the hospital. Harris was very emotional throughout the evening ranging from laughing to crying. Chan was of the opinion that Harris was possibly impaired.

[19] The right to counsel was not discussed in Chan's presence.

[20] Chan testified that Harris was unsteady and "wavering" by his car when they first arrived. He did not note it in his memo book because he knew he would remember it at trial.

[21] Chan testified that Harris' speech was normal throughout evening. It was not slurred. He did not see Harris reach out and steady himself against his car though it was Hamilton who was dealing primarily with Harris at roadside. There was nothing unusual noted in the way Harris was walking.

Constable Kirkland

[22] P.C. Mathew Kirkland is a qualified breath technician. He attended Centenary Hospital at 3:36 a.m. He was advised that Harris had not yet been medically cleared to provide a breath sample. Kirkland set up the instrument.

[23] The only information he had received from the arresting officers was that Harris had been arrested for a drinking and driving offence, had his right to counsel read to him and had refused to speak to a lawyer.

[24] Just prior to presenting the approved instrument to Harris, Kirkland explained to Harris who he was and that he would be taking at least two breath samples 17 minutes apart. He explained to Harris how to perform the test.

[25] As Kirkland performed his duties, he ticked off boxes on a form he carries. One of the boxes reads: "if counsel refused, explain". Kirkland testified that, if he is advised that someone refused to speak to a lawyer, he tells the person something to the effect that there is no cost to them and they can speak to a lawyer. There was no rush as they were beyond the two hour time frame referred to in section 258. Kirkland would not have any difficulty allowing Harris to use a phone to speak to counsel at the hospital. Kirkland ticked off that box. He was asked if he had an independent recollection about discussing counsel. He did not. He did recall Harris sitting on the bed, being emotional and saying that he wanted the tests to be finished. Kirkland testified that he generally does not ask people if they want to speak to a lawyer. He just explains that the lawyer is free. He tells that to everyone when he is told they refused to speak to a lawyer. Harris never asked to speak to a lawyer.

[26] At 4:58 a.m, once Harris was cleared medically, he provided his first suitable breath sample into the Intoxilizer 8000C after six attempts. It produced a reading of 186 milligrams of alcohol per 100 millilitres of blood.

[27] Kirkland noticed a strong odour of alcohol on Harris' breath. His eyes were bloodshot. Kirkland did recall Harris crying at some point. Harris slurred the "S"'s in his name when he spelled his name. Nothing else was slurred. Harris' skin tone was flushed. When Harris went to the washroom, he staggered as he walked. At 5:24 a.m., he provided a second suitable sample of his breath and registered a reading of 191 milligrams of alcohol per 100 millilitres of blood. Officer Kirkland formed the opinion that Harris' ability to operate a motor vehicle was impaired by alcohol.

Inger Bugyra

[28] Inger Bugyra was qualified to give expert opinion evidence in the absorption and elimination of alcohol from the body, B.A.C. calculations, the effect of alcohol and the operation of the Intoxilizer 8000C. She works in the toxicology section of C.F.S.

[29] She testified that the Intoxilizer 8000 C is an accurate and reliable instrument if properly operated and its calibration checked.

[30] She was asked what Harris' BAC would have been at 2:20 a.m. given the readings obtained of 186 mg % at 4:58 a.m. and 191 mg % at 5:24 a.m.

[31] Based on truncated readings of 180 and 190 mg %, an individual would have a B.A.C. between 185 and 230 mg% at 2:20 a.m. At 2:00 a.m., the range would be 190 to 240 mg. % and, at 1:30 a.m., it would be between 195 and 250 mg%.

[32] There were four assumptions which she made. First, that the individual eliminated alcohol at the standard accepted rate of 10-20 milligrams percent per hour. Second, the individual did not consume any large quantities of alcohol in the 15 minutes before driving. She explained that large quantities meant one standard drink or greater. Third, there was no consumption of alcohol after driving and, fourth, a two hour plateau based on the lower rate was assumed.

[33] She testified that an individual's ability to operate a motor vehicle would be impaired by alcohol at those breath readings.

[34] She agreed in cross examination that bloodshot or watery eyes reveals nothing about impairment or the quantity of alcohol consumed. One would not expect someone to exhibit imbalance caused by impairment and then none within a short time frame.

[35] That, in essence, was the case for the Crown.

Derek Harris

[36] Mr. Harris testified in his defence.

[37] He works as a plumber. He had visited his friend Andrew that night. Thereafter, he arrived at the pub around midnight. He did not drink any alcohol at Andrew's home. He was not certain how much he drank at the pub but believed he had three or four pints of Guinness between midnight and last call at 2:00 a.m. His plan was to return to Andrew's house for the night. At 2:00 a.m., when it was last call, he ordered two more pints of Guinness. He drank the first of those two in 6 minutes and drank or "chugged" the second in under one minute. He then left and went to his car.

[38] He did not believe he was impaired. As he was driving, there was some debris on the road from a construction site that caused his tire to go flat. He began to swerve. He lost control and hit a pole. It was agreed by both counsel that both right tires of his car were flattened by the time the police arrived on scene.

[39] Harris was injured in the accident. He bumped his head. His leg was bleeding and his back was hurting.

[40] Hamilton asked for Harris' driver's licence. His wallet was old and documents fell out of it when Harris opened it. He did not think he produced a debit card.

[41] When asked if he wanted to call a lawyer now, he replied: "do I have to call one now" He was in the middle of the street, in pain, and his priority was getting medical attention.

[42] At the hospital, he did not recall further discussion about a lawyer. He was more concerned with getting medical attention.

[43] He conceded that, when Hamilton read him his right to counsel, he knew he could call a lawyer of his choice or duty counsel. He did not want to call one at roadside due to his medical concerns. He thought he would call a lawyer, "probably", when he saw the breath technician.

[44] He did not know he had the right to insist on speaking to a lawyer before his breath tests. Had the breath technician told him, he would have called Sheldon Altman immediately because he had met Mr. Altman previously and a friend had used his services with great results.

[45] Harris testified that he would have called a lawyer at the hospital had the subject come up because he wanted legal advice as he had never had to blow into a breath machine before, other than as part of a high school demonstration.

[46] When he gave that answer, the Crown sought a ruling that she be allowed to cross examine Harris on a 2007 acquittal on a charge of "over 80". I ruled that the Crown could cross examine Harris on that acquittal given his answer that he had never had to blow into a breathalyzer machine before. Once that ruling was given, and before the Crown asked the question, Harris stated that he wanted to "change" his answer to state that he would have called a lawyer to get more information as to what to do.

[47] The Crown concluded her cross examination at that point.

[48] Michael McCarthy testified as well. He was at the pub that night and confirmed that he had seen Harris order two beers at last call. He testified that Harris was walking fine, his speech was fine and he did not appear impaired.

[49] In Reply, Crown counsel sought to recall the toxicologist to ask her to comment on the specific amount of alcohol Harris said he consumed just before driving. Both counsel then agreed, by way of an agreed statement of fact, that the toxicologist would testify that the two beers Harris said he drank before leaving the pub would not have brought his B.A.C. below 80. It was also agreed that, if I have a doubt about Harris's testimony concerning the alcohol he consumed that night, then he would be below 80 milligrams of alcohol per 100 millilitres of blood.

[50] That was the evidence in this case.

ISSUES

[51] Returning to what I stated at the outset, the following issues must be decided:

• Has the Crown proved that Mr. Harris' ability to operate a motor vehicle was impaired by alcohol.
• Did the police violate Mr. Harris' Charter rights in any of the following manners:
  • did they have grounds to issue a breath demand; and
  • did they violate his right to counsel.

[52] I will begin with the Charter issue because, if Harris fails to exclude the breath readings, then those readings together with the toxicologist's evidence are relevant to the impaired charge as well as the "over 80" charge.

[53] Given that Harris testified on both the trial and the voir dire, the principles enunciated on R. v. D.W. apply to the trial. On the voir dire, however, he bears the onus of establishing violations on the balance of probabilities.

[54] While Harris bears the onus on the Charter application to establish the breaches, given that this was a warrantless seizure of Harris' breath samples, the Crown must establish the lawfulness of that seizure by establishing that Hamilton had reasonable and probable grounds to believe that Harris' ability to operate a vehicle was impaired by alcohol.

[55] My credibility findings will be referred to throughout the resolution of these issues.

Reasonable and Probable Grounds

[56] Harris submits that P.C. Hamilton's subjective belief that Harris' ability to drive was impaired by alcohol was not objectively reasonable. Accordingly, the arrest and breath demand were unlawful, in violation of the Charter and the breath readings ought to be excluded pursuant to section 24(2). He submits that there were grounds for an ASD demand but not more.

[57] The Crown submits there were ample grounds for the breath demand. She submits that Hamilton's evidence that he could not recall whether that the subject of an ASD was discussed does not detract from Hamilton's subjective belief that Harris' ability to drive was impaired and that those grounds were objectively reasonable.

[58] In the 2010 decision of R. v. Bush, the Ontario Court of Appeal noted that drinking and driving prosecutions involve a continuum of findings from reasonable suspicion to proof beyond a reasonable doubt. The Court then noted that:

[59] [37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. ….

[60] [38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

[61] Insofar as the objective component of the assessment is concerned, the Supreme Court of Canada in R. v. Storrey, supra, held:

(a) There is an additional safeguard against arbitrary arrest. It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest. See R. v. Brown, 33 C.C.C. (3d) 54 (N.S.C.A.), at p. 66; Liversidge v. Anderson, [1942] A.C. 206 (H.L.), at p. 228.

[62] In R. v. Stellato, the Supreme Court held that impairment may be established where the Crown proves any degree of impairment, from slight to great, [1994] 2 S.C.R. 478.

[63] In Bush, therefore, the Court of Appeal held:

[64] [48] The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol:

[65] Hamilton came upon a single vehicle accident at 2:30 in the morning. That did not form part of his grounds. Nonetheless, he saw the driver, Harris, outside his car. He noted a strong odour of alcohol coming from Harris' breath. Harris admitted to having consumed alcohol. He had some difficulty producing his licence. Whether it was as described by the officer, namely, handing over a debit card instead of a licence, or as described by Harris, items falling out of his wallet, there was some unusual difficulty producing his licence and that is a factor Hamilton could consider. I do not consider Harris "thumbing" through his wallet for his licence as described to be at all significant. I do not accept the reliability of the evidence that Harris' speech was slurred. It was not in Harris' notes and it was significantly undermined by other evidence in this case. As for some unsteadiness in the few feet Harris walked before his arrest, I accept that that occurred. That unsteadiness may have been due to the accident. It may have been the same limping seen by Melissa. It may have been due to the knee and back injury Harris said he suffered. Whatever the cause of that unsteadiness, be it the accident or alcohol, it was present and Hamilton was entitled to consider it as a factor.

[66] In assessing whether Hamilton's subjective belief was objectively reasonable, it must be established that a reasonable person, standing in the shoes of the officer, would believe that there were reasonable and probable grounds to believe that Harris' ability to drive was impaired by alcohol. In making that assessment, I can consider the facts known by or available to the officer at the time he made that demand. In R. v. Censoni, [2001] O.J. No. 5189 (S.C.J), Hill, J. referred to Storrey and noted that (at paragraph 35):

[T]he court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief

[67] Accordingly, at the point of the inquiry when the Court is assessing whether the officer's subjective belief was objectively reasonable, the Court already accepts that the officer honestly believed that Harris' ability to drive was impaired. In deciding whether a reasonable person, standing in the officer's place, would have believed that reasonable and probable grounds existed, the Court may consider those factors known or available to the officer at the time. In this case, Hamilton was presented with the following factors. He came upon a single vehicle accident at 2:30 in the morning. The driver had a strong smell of alcohol on his breath. He admitted to drinking. He was slightly unsteady on his feet. When he was asked to produce his licence, he either handed over a debit car or dropped various items out of his wallet. Faced with these factors; a single vehicle accident late at night, a driver with a strong smell of alcohol on his breath, some unsteadiness and some unusual difficulty producing his licence, a reasonable observer would also conclude that there were reasonable and probable grounds to believe that Harris' ability was impaired to some extent by alcohol.

[68] While there are other indicia absent which are commonly seen such as slurred speech, and while there may possibly be alternative explanations for some or all of the indicia seen, the factors I enumerated that were known by or available to the officer at the time objectively support P.C. Hamilton's subjective belief that Harris' ability to drive was impaired by alcohol. There was no breach of section 8 in this regard.

Driving Within Last 3 Hours

[69] Harris further submits that Hamilton never turned his mind to when the accident occurred and therefore, could not have been satisfied that the operation of the motor vehicle occurred within the preceding three hours as required. In my view, that argument can be summarily dismissed. Debris was still on the road as Harris arrived. He was one of the first responders on scene. Other drivers were still waiting by the side of the road. Hamilton testified that he believed the incident occurred recently and that belief is objectively reasonable. There was no breach in this case as had occurred in R. v. Pavel.

Right to Counsel

[70] Harris submits that his right to counsel was violated. While Hamilton properly advised him of his right to counsel at roadside, Harris' reply: "do I have to do it now" was not a waiver of his right to counsel and Hamilton did not take it as such. Harris was understandably more concerned with getting medical attention at that particular moment. Therefore, the defence submits that it was encumbent on the officers to follow up and determine if Harris wished to consult with counsel before having him submit to breath testing.

[71] Hamilton gave evidence however that, at the side of the road, he told Harris that he could contact counsel at any time. Defence counsel submits that Hamilton's evidence in chief on that point was unreliable. Moreover, the defence submits that officer Kirkland had no independent recollection of speaking with Harris about counsel and Chan never heard any discussion about right to counsel. On balance therefore, Harris never waived his right to counsel. Hamilton knew that and the officers were obliged to follow up.

[72] The Crown submits that Chan's evidence should be entirely discounted due to his evidence that he chose not to note important indicia he said he observed because knew he would remember it at trial.

[73] The Crown submits that I can rely upon officer Kirkland's evidence as to his usual practice. In essence, the Crown submits that the police fulfilled the informational and implementational duties of 10(b) albeit separated by time. Hamilton properly advised Harris of his right to counsel at roadside. Officer Kirkland let Harris know he could call counsel from the hospital.

[74] I agree with defence counsel that Constable Hamilton's evidence as to what he said to Harris in response to Harris' comment at roadside was unreliable in light of the absence of notes and the cross examination on point. As for officer Kirkland's evidence, the problem with the Crown's argument is that Kirkland had no independent recollection of the event. While he was credible, he testified as to his general practice and had no specific recollection of any discussion about counsel that night. Further, his general practice did not include asking the subject if he wished to call counsel.

[75] So, based on the evidence of the officers, by failing to ensure that Harris properly waived his right to counsel, and by failing to ask him if he wished to exercise his right at a time when he would reasonably have been able to do so (i.e. at the hospital once medically stable), Harris' right to counsel was violated.

[76] Even though Harris was properly advised of his right to counsel at roadside, there was still an obligation on the part of the police to follow up on this issue and either have Harris waive his right to counsel or not. Accordingly, despite their good faith, there was a violation of the right to counsel.

Credibility Assessment

[77] Before continuing my reasons, I will address Harris' evidence.

[78] Harris testified that he was not impaired that evening. He arrived at the pub around midnight. He did not drink alcohol before he arrived. He had three or four 16 ounce drafts of Guinness at the pub between midnight and 2:00 a.m. He ordered two more pints at 2:00 a.m. and drank them in the ten minutes before he left the pub. His driving was fine. The accident was caused by debris on the road which caused him to lose control and hit the pole. He did not think he handed Hamilton a debit card although his wallet was old and cards fell out of it when he opened his wallet. Once at the hospital, he would have called counsel had the subject been brought up as he had never before been in a situation where he had to blow into a breathalyser machine. As already indicated, once the Crown obtained a ruling that she could cross examine Harris on his 2007 acquittal on the charge of driving while "over 80", Harris indicated that he wanted to change his answer. He wanted his answer changed to reflect that he would have called counsel to get further information.

[79] With that change, the Crown asked no further questions.

[80] Defence counsel submits that the crown counsel let Harris off the hook by not asking him any questions about the 2007 incident when he changed his answer. He submitted there was therefore no evidence of any prior charge. In the absence of that evidence, his credibility was not shattered.

[81] I disagree. In the context of his evidence, the submissions that were made and his change of answer, the damage to his credibility was done. The Crown did not let him off the hook. Harris firmly secured himself on that hook and, in the process, lost all credibility in this trial. I have no faith in his material evidence at all, I disbelieve him and his evidence does not raise a doubt in my mind. The evidence of his friend Mr. McCarthy does not add anything other than establish that he had two pints of beer before driving. The friend did not believe he Harris was impaired.

[82] I also found Harris' evidence implausible. He testified that he is comfortable with about one drink an hour. He was at the pub for two hours and had three or four drinks yet, at 2:00 a.m, just before leaving, he ordered and drank two 16 oz drafts of Guinness, the last one in less than a minute.

[83] In my view, that pattern of "chugging" two pints of beer just before driving, the last one in less than a minute, is inconsistent with someone who responsibly nurses a beer or so an hour. While this last point caused me to be sceptical of Harris' evidence, it was the change in his evidence that destroyed his credibility at this trial.

Section 24(2) Analysis

[84] Turning to section 24(2), the Supreme Court in R v Grant, instructed trial judges to assess the specifics of what actually occurred in a case when assessing whether the evidence ought to be excluded. It is not an abstract approach as often occurred in the older Stillman analysis. Further, when determining whether the Charter breach ought to result in exclusion of evidence, the Court held:

[85] It must be remembered that a violation of an accused's rights under the Charter means there has already been damage done to the repute of the administration of justice. Section 24(2) seeks to determine whether admitting the evidence could bring the administration of justice into further disrepute. It is the long term that must be considered.

[86] Turning to the first issue, how serious was the Charter infringing state conduct.

[87] Upon arrest, P.C. Hamilton properly advised Harris of his right to counsel. Harris understood his right to counsel at roadside. Hamilton also asked Harris if he wanted to call a lawyer now and Harris said no, not now. Hamilton did not take Harris' response as a waiver. He understood that, in context, Harris was more interested in getting seen at the hospital. The officers facilitated Harris getting to the hospital to ensure his safety. Once his safety was ensured, he was presented to the breath technician. There was likely some further discussion about counsel by officer Kirkland though the specifics are not before me. I do prefer Kirkland's evidence to Chan's or Harris'. I do not believe Harris's evidence that he would have called counsel from the hospital had the subject been brought up for reasons I have given. There was a breach but it was mitigated by the fact that the right to counsel was promptly and properly communicated to Harris and roadside. There was an offer to have him call a lawyer. There were concerns for Harris' safety which were addressed. Once Harris was cleared medically, there was some further discussion about counsel though no further offer to have Harris call counsel. Harris said nothing either. Therefore, while I have found a breach, the seriousness of the charter infringing conduct was minor. The officers acted in good faith throughout. There is no pressing need for the Court to distance itself from this particular conduct. This factor militates towards admitting the evidence.

[88] What was the actual impact of this breach upon Harris' Charter protected interests. The breach resulted in Harris not being asked, a second time, if he wanted to call a lawyer. He conceded that he knew of his right to call a lawyer. He was asked initially if he wanted to call one now. He was told he did not have to call one now. There was some further discussion about counsel with officer Kirkland though no offer to call counsel made nor requested. I reject his evidence that he would have called counsel had it been offered again. Whether he would have accepted an offer again at that hour is unknown to me. In the end, there was a potential impact upon Mr. Harris' Charter protected interests. This factor militates somewhat toward exclusion though less so than a case where no right to counsel was ever provided or offered.

[89] The third factor noted in Grant militates towards admission. This evidence is both reliable and necessary to substantiate both charges before the Court.

[90] On balance, in my view, the long term repute of the administration of justice does not require exclusion of the breath readings.

Verdict

[91] That being the case, the charge of over 80 has been made out.

[92] With respect to the impaired count, in light of the readings and the evidence of the toxicologist, I am satisfied that that count has been made out. Were it not for the breath readings, that charge would have been dismissed as, without those readings and the evidence of the toxicologist, I would have a doubt about whether Mr. Harris' ability to operate a motor vehicle was impaired by alcohol. With those readings, I am left with no doubt and he will be found guilty of both charges.

Released: May 22, 2013

Signed: Justice H. Borenstein