Court File and Parties
Court File No.: Central East - Newmarket 14-02344 Date: 2015-03-20 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Carrie Lynn Sheppard
Before: Justice P.N. Bourque
Counsel:
- D. Lerner, for the Crown
- M. Forte, for the accused, Carrie Lynn Sheppard
Heard: In Writing
Ruling on Charter Application
Released on March 20, 2015
Overview
[1] The defendant is charged with impaired driving and driving with excess alcohol. The defendant has brought a Charter challenge and states that the police officers entered her property without warrant and without permission as they sought her out. Unlike most cases, this Charter application proceeded before the trial proper.
Defence Evidence
Ryan Jamieson
[2] Ryan Jamieson is a security guard hired by the owner of the premises at 14225 Kennedy Road. The defendant resides at the house with her husband (the owner) and their two children. The witness stated that the house sits on a large rural acreage (Exhibit 1 was a Google map photo of the property). Other exhibits were filed which showed that the property where the defendant lived with her family had only one vehicular entrance and that was a motorized metal gate which led to a road or drive, which was some 200 metres long. Neither the house nor any vehicles in front of the house was visible from the gate area.
[3] The gate was normally closed and could only be opened by inserting a code on a pad at the entrance or from someone opening the gate from inside the house. There was an intercom for communicating with the house. The witness worked at the house and there was inside the house a station into which some 27 cameras all over the property including two cameras at the gate, one right beside the left side of the gate and another just inside the gate showing the whole gate area. The witness said that the owner of the house was a jewellery merchant and wanted protection from thefts. He stated that the defendant, her husband, her children and her maid and himself were the only ones who had the combination.
[4] The witness stated that on that day he came to work in the morning and when he got to the house, there was a police vehicle parked outside the gate. The witness said that he was driving a civilian car but was wearing a blazer with a security button around his neck. He stated that he got out of his vehicle and went up to the officer as he was concerned that perhaps there was some type of emergency. He stated that he had to get out of his vehicle to access the keypad.
[5] He stated that he spoke to the officer and the officer stated that he needed to get onto the premises and wanted him to open the gate. He said that it was about a drunk driver. The witness stated that he said to the officer that he should wait at the gate as the witness wanted to get his boss. He stated that the officer did not give him a problem and he got into his car and opened the gate and drove in. He noticed that the officer followed him through the gate and down the drive. He stated that when he got to the house he went inside and spoke to his boss and when he came out, he saw the officer beside the defendant's car and the officer was sounding aggravated.
[6] I note that at no time did he specifically tell the officer to follow him onto the property.
Jeff Mantifel
[7] Jeff Mantifel is a constable with York Regional Police. He was on patrol alone and heard a dispatch at 10:33 which indicated that a civilian had called in a possible impaired driver in the general area. The vehicle was last seen by the civilian going south on Kennedy Road. The officer got the plate info on the dispatch, ran it and it was tied to a white Mercedes owned by the defendant. The officer knew that this defendant had operated that vehicle on previous occasions. The officer attended at 14225 Kennedy Road, which was the address of the defendant. He stated that he parked on the other side of the road facing southbound. He saw a vehicle which had come at the same time and he spoke to the driver through their open windows.
[8] He stated that he did not believe that the other driver got out of his car. He said he did not see any uniform on the person. In-chief he stated: "All I can recall is that he said his boss resided there and I said I needed to get inside to speak with and employee and he told me to wait to have his boss come." For some reason the officer was of the opinion that this exchange (as he remembered it) was some sort of permission for him to come onto the property.
[9] The officer stated that when the gate opened and the other car went in, the officer came right in behind him. He stated that he did not want to go away as "he didn't know who was beyond the gate". He opined that the person could have been "medically impaired" and perhaps the person could "drive away". The officer stated that "I didn't know what was beyond the gate".
[10] When the officer came into the house area, he saw a white Mercedes with the defendant sitting in it talking on a cell phone. There was a young girl in the car. The officer went up to the car and he asked for her driver's licence. He stated she was fumbling with papers and it took her a long time before she gave him her passport. He noticed she had watery eyes and puffy cheeks. He thought she was having difficulty following directions. She seemed to be having a dispute on the phone with her husband. He stated that her speech was slurred and she was drawing out her "s"s. He smelled an odour of alcohol coming from her mouth and she was in the driver's seat. He does not remember if the vehicle was running or whether there were keys in the ignition.
[11] He believed he had grounds to arrest her for impaired driving and he did so. He said she was not cooperative so he handcuffed her and put her in the back seat of his cruiser. She was given rights to counsel, caution, the breath demand and transported to the station. She eventually gave readings of 312 and 328 milligrams of alcohol in 100 millilitres of blood.
[12] In cross-examination, the officer admitted that he had made almost no notes of the interaction with the witness Jamieson at the gate. He also added to his recitation of the discussion by saying that he told Jamieson that he would "follow him down the driveway". He also seemed to be unsure as to whether Jamieson got out of his car to talk to him and he was also unsure as to whether he had come southbound on Kennedy Road to the address. He admitted that with regard to the situation of the gate that unless the gate had been opened by Jamieson he would not have gone through it to continue an investigation. He believed that he did not have any authority to come onto the property but for his belief that Jamieson had given him permission to come into the property.
Analysis
[13] The defendant states that the officer did not without a warrant, have a right to enter onto the premises of the defendant in order to assemble evidence of a crime. He asserts that as this is a warrantless search, it is up to the Crown, on a balance of probabilities to prove that the search was reasonable in all the circumstances.
[14] The general law on entering onto a person's property without a warrant to engage in a search is set out in R. v. Tom Le, 2014 ONSC 2033:
[69] The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including police officers, who are on legitimate business, to come onto the property, even through an unlocked gate, and attend at a door of the dwelling. This implied licence applies to anyone who has a lawful reason to speak to the occupier of the dwelling. This implied licence ends, however, at the door to the dwelling. The purpose of this implied licence is to facilitate convenient communication between members of the public and the occupier of the dwelling. This implied licence may be rebutted by some express notice on the property itself, or revoked explicitly by the occupier of the dwelling. Once revoked by the occupier, the person who entered upon the property pursuant to this implied licence is obliged to leave with reasonable dispatch. Anyone who does not so leave becomes a trespasser. If a police officer enters property pursuant to this implied licence and, before the licence is withdrawn, develops the necessary grounds to detain or arrest a suspect, the police remain entitled to detain or arrest that person and use proportional and reasonable force to do so. See: Robson v. Hallett, [1967] 2 All E.R. 407 (C.A.), at pp. 412, 414; R. v. Bushman, [1968] 4 C.C.C. 17 (B.C.C.A.), at pp. 21-25; R. v. Johnson (1994), 45 B.C.A.C. 102, at para. 8; R. v. Tricker (1995), 21 O.R. (3d) 575 (C.A.), at pp. 579-581, leave denied: [1995] S.C.C.A. No. 87; R. v. Evans, [1996] 1 S.C.R. 8, at paras. 13-15, 38-42, 49; R. v. Mulligan (2000), 142 C.C.C. (3d) 14 (Ont.C.A.), at paras. 23-36; R. v. Maciel (2003), 33 M.V.R. (4th) 152, [2003] O.J. No. 126 (C.J.), at paras. 15-18; R. v. LeClaire, 2005 NSCA 165, 208 C.C.C. (3d) 559, at paras. 10-16, leave denied: [2006] S.C.C.A. No. 63; R. v. Lotozky (2006), 81 O.R. (3d) 335, 210 C.C.C. (3d) 509 (C.A.), at paras. 18-42; R. v. Desrochers (2007), 47 M.V.R. (5th) 315, [2007] O.J. No. 1482 (S.C.J.), affirmed: 2008 ONCA 255, 58 M.V.R. (5th) 16; R. v. MacDonald, 2014 SCC 3, 303 C.C.C. (3d) 113, at paras. 25-28; R. v. Zargar, 2014 ONSC 1415, at paras. 29-32.
Findings of Fact
[15] For the purpose of this analysis, I find the following:
(i) The officer was aware that a civilian had called in a complaint about the white Mercedes and described it as possibly impaired;
(ii) The officer ran the license and the defendant was associated with that vehicle, and there was other information to associate the defendant with that vehicle;
(iii) The officer attended at the address of the defendant;
(iv) He never saw the vehicle complained about enter onto the premises;
(v) The premises have an entrance which is blocked by a substantial metal gate which is flanked by two masonry structures which frame the gate and contain the mechanical mechanism which controls the gate;
(vi) It is impossible to drive onto this property and up the drive while the gate is closed;
(vii) The opening of the gate is controlled by either the persons inside (after being contacted by the intercom system) or by a person from the outside who is in possession of the code to insert on the keypad which is on the masonry column on the left of the gate;
(viii) The officer attending had neither gotten permission from the persons inside the house, nor the did he possess the keypad information to open the gate;
(ix) At the gate there are two CVCC cameras and there are a total of 27 CVCC cameras around and on the property which has the express purpose of seeing who is approaching the house;
(x) There is a sign near the house number which indicates that the premises are protected by a security company, and it gives a number which has further information;
(xi) He made no attempt to enter onto the property until after the witness Jamieson had proceeded onto the property;
(xii) The witness Jamieson was employed by the defendant's husband as a security guard for the property and I find as a fact that part of his employment responsibility was to control the entry upon the premises by any person not a family member;
(xiii) I specifically find that Jamieson requested the officer to wait until he had consulted with the owner before proceeding onto the property;
(xiv) I specifically find that there was nothing in what Jamieson did at the gate which would give any reasonable person the impression that he was inviting the officer through the gate and onto the property. The failure of the officer to take any notes of the conversation with Jamieson and the changes he made to the details of the conversation between examination in-chief and cross-examination lead me to discount his testimony about what transpired at the gate. I prefer the evidence of Jamieson to the evidence of the officer with regard to the events at the gate;
(xv) I specifically find that the officer simply took the opportunity to proceed through a gate that had to be opened to let Jamieson onto the property.
Is there an implied license in these circumstances for the police to enter onto the property and specifically the drive and up to the front door?
[16] There are many cases (cited above) which state and re-state that there is, in the normal case, an implied licence to go onto the drive and up to the front door. I do not think that the facts of this case put it into the category of a normal case. There was a locked gate at the entrance to the property. The only reasonable means to access the property and get to the front door is by car and the nature of this gate, the intercom, the keypad, the security sign and the CVCC cameras would be a statement to any reasonable person that further entry onto the property would be allowed only with the express permission of the occupants, or their agents. I do not think that the absence of a "no trespassing" sign, in this circumstance is necessary.
[17] The owners had clearly invoked their privacy rights to the entire property and there is nothing I can think of that would say that they did not have the absolute right to do so. With regard to communicating with the outside world, there was the intercom system and the CVCC's, which would allow the owners the ability to see if the person at the gate would be admitted further. The facts of this case go far beyond any other case that has been referred to me.
[18] In my opinion, this gate and the other things that surrounded it made this gate in all practicality, the front door. I find that in this case, there is no implied consent to come onto the drive and up to the front door of the dwelling house. I note the words of Justice Hube's opinion in R. v. Evans, [1996] S.C.J. No. 1, when she commented in the same fashion upon the potential gating of the property, that any implied consent was clearly and explicitly revoked.
Did the police officer respond to a specific invitation to come through the gate and enter onto the premises to search for the white Mercedes?
[19] I find the security guard Jamieson to be a frank and open witness. It was his evidence that he would not give permission for this police officer to enter the premises without first consulting with his "boss". He said as much to the police officer.
[20] I find that the officer was not clear on many of the issues at the gate. I note that he added something to his recitation of the narrative in cross-examination. He at one point was not clear from which direction he was coming to the premises. That is more important as it sounds for it would impact upon his assertion that the officer spoke to Jamieson through their respective driver's windows. If he came from the south, he would have been on the other side of the road and the defendant would be at right angles to him at the keypad. I accept Jamieson's evidence that he got out of his car and spoke to the officer. It also follows that I do not accept that the officer said anything to Jamieson which would detract from Jamieson's request that he remain at the gate until Jamieson had spoken to his boss.
[21] Having rejected the officer's evidence on this point, I find that there is no evidence that any reasonable person could conclude that the police officer had an invitation to beyond the gate. In my opinion, the officer simply took an opportunity that presented itself. I do not think that the officer at the time was at all concerned about whether he needed any permission. He was going to investigate what he thought was a possible criminal offence, and once the gate was open, there was no physical impediment to his continuing with his investigation.
Was the officer in hot pursuit or responding to exigent circumstances which would allow his intrusion onto the property?
[22] The factors which are relevant to this issue are as follows:
(a) The officer received information of a possible impaired driver at 10:33 with a description of the car and the plate number and the vehicle was going southbound on Kennedy Road;
(b) The officer went to an address listed with the plate on Kennedy Rd. a short time later. The defendant was listed as the owner of the vehicle and the officer had information that the defendant had driven that vehicle on other occasions;
(c) The officer did not see the described vehicle come to the property and could not see the house or the garage on the property and at no time before entering through the gate and driving some 200 metres up the drive was he able to observe the vehicle;
(d) At the time he went through the gate, he did not have any other evidence as to any particulars of an offence nor did he have any other evidence as to the identity of the driver;
(e) He freely admitted that at the time he did not have reasonable and probable grounds to arrest the defendant (or anyone for that matter). His purpose was to continue with an investigation.
[23] The Crown argues that these facts constitute an officer in "hot pursuit" and thus the breach of this privacy right (going through the gate) was justifiable under this doctrine. I agree that there are circumstances where this doctrine is applicable (R. v. Haglof, 2000 BCCA 604, [2000] B.C.J. No. 2236 BCCA), and other circumstances where it is not, (R. v. Moser, [2012] O.J. No. 1734). I agree that the determining factor is not whether the officer himself had seen the (person) car go onto the property. However, I think the following factors make a finding of hot pursuit impossible:
(i) He had nothing more than a suspicion that an offence had been committed;
(ii) He had nothing more than a suspicion that the culprit was on the premises;
(iii) He was not following anyone and was not in any position to affect an arrest without further investigation, in other words his entry on the property was to "investigate a possible commission of a crime".
[24] There are several cases dealing with officers following cars into parking garages for multi-unit dwellings. In R. v. Clarke, [2005] O.J. No. 1825, an officer who sees a vehicle committing an offence is acting within his duty to ask it to stop. After putting on their emergency lights to effect the stop, and following the vehicle into the garage can do so because of an implied right of invitation from the way this driver went into the garage. Justice Favret in R. v. Ayoub, [2013] O.J. No. 6407 found that unlike R. v. Clarke, the officer did not have any reasonable grounds to believe a crime had been committed and there was no basis on the Highway Traffic Act to make a stop.
[25] In addition, Justice Favret, in Ayoub, did not find anything about the actions of the defendant to find any implied invitation for the police to follow. Justice Favret also found that this was not a continuous transaction with the police in "hot Pursuit". In R. v. Kaltsidis, [2007] O.J. No. 1400, an officer followed the defendant into his car port without, at that time, having reasonable and probable grounds to make an arrest. It was not a case of hot pursuit.
[26] The court also stated:
[29] Had the officer been able to observe the indicia of impairment from his cruiser while following the respondent, or even from the respondent's driveway, without entering the carport to make the observation, then there would be no breach of the respondent's s. 8 Charter rights.
[27] Based on all of the above it is my opinion that there is not "hot pursuit" on the facts of this case.
[28] Based on the total analysis above, it is my opinion that the Crown has not proven on a balance of probabilities that the warrantless entry by the police officer through the gate and onto the property of the defendant and her family, was a reasonable search and I find that the section 8 rights of the defendant have been breached.
Did the officer have reasonable and probable grounds to arrest the defendant for impaired driving?
[29] Assuming that the officer had the right to attend at the house and past the gate, did he have reasonable and probable grounds to arrest the defendant for impaired driving and make a breath demand. In R. v. Busch, 2010 ONCA the Court of Appeal stated the test to be applied:
[36] Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an approved screening device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator's ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver's blood alcohol concentration was over the legal limit.
[37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'" (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni, at para. 31; and R. v. Shepherd, [2009] 2 S.C.R. 527, [2009] S.C.J. No. 35, 2009 SCC 35, at para. 23.
[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, 9 M.V.R. (4th) 67 (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 S.C.R.
[30] The officer stated his criteria as follows:
(a) Info from dispatch that a civilian driver described the driving as a person "impaired";
(b) The defendant had red watery eyes;
(c) There was a smell of alcohol from the defendant;
(d) The defendant fumbled for her Id and dropped a document before producing her passport;
(e) The defendant had slurred speech.
[31] The fact that the officer reached his conclusion within 2 minutes is not important. The fact that the officer smelled alcohol is not an indicator of impairment, only an indicator of alcohol consumption.
[32] With regard to the other observations, I have some difficulty with the officer's description of the search for the documents. He also made the observation (in his notes) that the defendant was "very uncooperative". This related to the fact that while looking for her identification, she was asking him to say why he was there. In the context of this investigation, I do not see that as anything unreasonable. I find this observation not supported by any objective facts and I am also not convinced that the way that she searched for her identification was any way an indication of impairment. It is not that there is an explanation, it is that it is not a sign of impairment at all. I do not accept his evidence that there was any fumbling for documents.
[33] We are left with red watery eyes, slurred speech, and a conclusion drawn by someone who did not provide to the officer (through dispatch) any objective statement of how this person (who was not identified as the defendant, but I accept that the officer believed that it was the defendant), actually drove.
[34] In other words, there was no information as to whether this person was swerving, speeding, or anything. I do not find it objectively reasonable for an officer to simply rely upon a conclusion of a civilian witness that someone was impaired. I believe that it is up to the officer to ascertain (or be provided by another witness) the objective facts of impairment to support his demand.
[35] We are left with watery red eyes and slurred speech. I have searched the case law and I cannot find any cases where these two symptoms are sufficient in and of themselves to objectively be the reasonable and probable grounds to support an arrest and breath demand. In R. v. Busch, the officer had a report of "erratic driving" and on the scene, the defendant's vehicle was crashed into a parked truck. This is much stronger that the objective grounds in our case. I know I cannot simply compare one case to another, however different facts can be instructive.
[36] I am of the view that while the standard is a low one, and I am not here to try the issue of proof of impairment, I cannot see how these meagre objective facts give the officer had the necessary reasonable and probable grounds to make the arrest. In other words, I do not think that a reasonable person put in the position of the officer would believe there are reasonable and probable grounds for the arrest.
[37] I find that the defendant's section 8 rights have been breached in this fashion.
Should any evidence be excluded under section 24(2) of the Criminal Code?
[38] I have found two breeches of the defendant's Charter rights. I will do an analysis of both breaches separately and then cumulatively. The test to be applied is that enumerated in R. v. Grant and involves a three part test which is to assess 1; the seriousness of the Charter-infringing conduct, 2; the impact of the breach on the Charter-protected interests of the accused and 3; society's interest in the adjudication of the case on its merits.
A. Intrusion into the property of the defendant
1. The Seriousness of the Charter-Infringing Conduct
[39] Based upon the facts of this case and the great and obvious lengths that the defendant and her family went to preserve their privacy on this entire property (at least that portion accessible only by a car) led to the conclusion that there was a very high expectation of privacy. In R. v. Clarke, [2005] O.J. No. 1825, and in R. v. Kaltsidis, [2007] O.J. No. 1400, the courts commented upon the lower level of privacy in a multi user parking garage, as compared to one's home. The "occupants of the apartment building expect to share access and enjoyment of the underground garage with other occupants, most of whom will be strangers to each other, and thus each would have a reduced expectation of privacy from that of the single-dwelling home owner with respect to his/her garage or carport."
[40] In my opinion, the facts of this case even go beyond a carport and garage: See (R. v. Kaltsidis) and R. v. Clarke.
[41] I believe that this front gate is more analogous to the front door of a house. Like a front door, strangers can come to the front gate, be observed by the occupants of the home who can hear them state their business and the occupant can then make the decision whether to let them onto the property. I do not believe, as stated by the police officer, that the sole purpose of this gate was to "keep out the bad guys". The fact that most people do not seek such great privacy and would lack the financial means to facilitate such gate and security system at the end of their driveway, does not detract from its observable purpose in this case. I also note that there was also a visual privacy element, as the house and the end of the drive was a great distance from the gate (over 200 metres) and was completely obscured by tress and other foliage. This reinforces my belief that this gate was more like the front door of a house.
[42] Having entered unlawfully, I find that this is serious Charter-infringing conduct and on this ground exclusion of all evidence obtained by the police from the point of entry to the end of their investigation would justified.
2. The Impact of the Breach Upon the Charter-Protected Interests of the Accused
[43] As stated in Grant and other cases, An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. I do not find that the incursion in this situation was "fleeting and technical". It was profoundly intrusive. It in intruded on the accused's expected privacy on her home property. I must also assess the actions of the officer. I find that he had absolutely no regard for the privacy interests of the defendant. I find that he was not a reliable witness in his justification for his entry onto the premises. I find that his comment that the gate was "to stop the bad guys" to be a statement of his true intentions in this matter. In his mind, there is no privacy interest so great that it would stop the police.
[44] I find this a serious breach upon the Charter-protected interests of the accused. It would weigh heavily against the admission of this evidence.
3. Society's Interest in Adjudication on the Merits
[45] The evidence sought to be excluded her is twofold, the observations of the officer upon coming up to the front of the house, including those observations made during his investigation there, and the ultimate breath sample results. The breath results in this case are extremely high. I cannot really assess that in terms of potential impairment as there was no expert evidence led. However, the fact they were high is a significant factor impacting on the potential seriousness of the offence. We don't have any evidence of an accident of injury. There is really no evidence of driving as the report from the civilian (a hearsay statement) goes only to an assessment of the officer's grounds. The breath sample results are also reliable evidence, and exclusion would eviscerate that aspect of the Crown's case. The observations of the officer with regard to the symptoms of impairment are much less reliable evidence and I have already found that they do not rise to the level of providing reasonable and probable grounds to arrest for the impaired. On balance, an analysis of this ground would favour admission.
[46] Ultimately, I must balance all of the factors. I find that the intrusion of the officer upon the Charter protected interests of the accused are so great that they outweigh the need to adjudicate this case upon the merits and I find that to admit any evidence obtained by the officer once he passed the gates would indeed bring the administration of Justice into disrepute.
B. Arrest without reasonable and probable grounds
1. The seriousness of the Charter-Infringing Conduct
[47] I have found that the officer lacked sufficient objective grounds to make the arrest. He certainly had the subjective feelings that the defendant was impaired. Like all assessments of the objective grounds in a drink and drive case, it can be a close run thing. In that sense it is more of a technical breach and while the conduct is always serious, I find it at the lower end of the scale, and on this ground alone, it would not favour exclusion.
2. The Impact of the Breach Upon the Charter-Protected Interests of the Accused
[48] The obtaining of the grounds led inexorably to all that followed, including a trip to the police station, the searching, the placing in a cell for several hours and the breath test. In our case it was compounded by the trip to a public hospital while in police custody. I find the impact significant upon the Charter-protected interests of this particular defendant and on this ground I would favour exclusion.
3. Society's Interest in Adjudication on the Merits
[49] The comments on the previous analysis are applicable here. The reliability of the readings would favour inclusion. The observations of the officer and any other direct evidence of any previous driving of this defendant would not be impacted and in any event not excluded on this ground.
[50] Balancing all of these factors, I think that this breach of the officer's reasonable and probable grounds to make the arrest, in and of itself would not favour exclusion of the breath test results.
Conclusion
[51] I have found two Charter breaches. Based upon my analysis of each breach and applying the cumulative effects of both breaches, I feel that on balance the defence has clearly satisfied the onus of showing that to admit the evidence of the breath results and the evidence of any observations of the police officer after he proceeded down the defendant's drive would bring the administration of justice into disrepute. I exclude all such evidence from the ultimate trial of this action.
Signed: "Justice P.N. Bourque"
Released: March 20, 2015