Court File and Parties

Ontario Court of Justice

Date: April 21, 2015

Court File No.: North Bay 14-113

Between:

Her Majesty the Queen

— and —

Paul Gunn

Before: Justice A. H. Perron

Heard on: October 29, 2014 and January 26, 2015

Reasons for Judgment released on: April 21, 2015

Counsel:

• Marney Mazurski, for the Crown
• Adam Little, for the defendant Paul Gunn

Reasons for Judgment

Perron, J.:

Introduction

[1] Paul Gunn is charged with operating a motor vehicle with over 80 mg of alcohol in 100 mL of blood in relation to an incident that happened in the city of North Bay on January 17, 2014. A full day trial on this matter was held on October 29, 2014 with another half day of submissions being presented to the court on January 26, 2015. The matter was adjourned to April 21, 2015 for a ruling on the blended trial and charter application.

Highlights of the Facts

[2] The doorman at a local restaurant had occasion to ask one of the patrons to leave the premises during the early morning hours of January 17, 2014. This patron who was later identified as the accused now before the court, cooperated with this request and left right away. He was witnessed entering a front-end loader that was parked in the parking lot. The doorman approached him and advised him that he should not drive as it was the doorman's opinion that he was impaired and that he would call the police if he drove away. The doorman was advised by the accused that he was getting a ride and exited the loader and was waiting at the front door having a cigarette. The doorman carried on with his regular duties and 5 to 15 minutes later notice that the loader was gone. He found his way outside and noticed same leaving in the thruway and turning onto Algonquin Avenue. The police were therefore immediately contacted.

[3] Constable Hollingshead of the North Bay Police Service was on general patrol that morning and received a call via radio at 2:01 a.m. of a possible impaired driver. The loader in question was eventually located in a fenced-in compound of one of the O.P.P. parking lots in the city. The Constable approached the loader and advised the driver that she was investigating an impaired driving complaint and gave him a caution. As the motor vehicle was running, he was asked to shut it off. Police then asked him if he had been at the Fox and Fiddle Restaurant wherein he admitted that he had had two drinks at the bar approximately 20 minutes before the stop. He was requested to provide a driver's license and after looking around for it, he exited the loader to provide same to the Constable. At that time, the Constable detected blood shot eyes and the smell of alcohol coming from his breath. A roadside demand was made for a sample of his breath. As this Constable did not have an approved screening device, she made a request for same to be brought to the scene.

[4] Constable Whittle arrived at the scene shortly after the initial stop. After assisting in placing the accused in the back of the police cruiser and while awaiting the arrival of the approved screening device, he proceeded to enter the loader in order to find other documents such as ownership and proof of insurance. He mentioned that he was not familiar with this type of motor vehicle and was in fact looking for a glove box. While standing on a ladder outside the loader's cab and using his flashlight he saw and seized a bag of marijuana on the raised part of the seat. He returned to the police cruiser and asked the accused to step out of the motor vehicle at which time he arrested him for possession of marijuana. He then placed handcuffs behind his back and read him his rights to counsel and a caution. The accused advised that he understood and that he wished to speak to a lawyer but did not specify any one in particular. A short while after, the third Constable arrived to deliver the approved screening device.

[5] Constable Hollingshead continued with her investigation of impaired driving and then proceeded in obtaining a sample of the accused's breath in the approved screening device. After failing the said test, he was arrested for driving with over 80 mg of alcohol in 100 mL of blood. Constable Hollingshead then advised him of his rights to counsel which he said he understood but said nothing specific concerning this right.

[6] The accused was then transported to the police headquarters, was processed and placed in a cell. Constable Whitehead then proceeded in making a call to duty counsel and eventually the accused was provided an opportunity to speak to the lawyer in private. The accused was eventually turned over to Constable Wall who is a qualified Intoxilyzer Technician. Two samples of the accused's breath were obtained with results of the first sample being 169 and the result of the second sample 162, both of these samples being milligrams of alcohol in 100 mL of blood. The accused was then returned to the holding cells and released later that morning by staff Sgt. Tarini.

Summary of Crucial Times

[7] As is the case in many drinking and driving cases the exact time that certain things are done is very critical.

The following is a summary of these crucial times:

• 2:01 a.m. — radio call of possible impaired driver
• 2:06 a.m. — stop of the loader at the O.P.P. fenced in compound by Constable Hollingshead
• 2:08 a.m. — arrival at the scene of Constable Whittle
• 2:11 a.m. — demand made by Constable Hollingshead for ASD breath sample
• 2:14 a.m. — accused arrested by Constable Whittle for possession of marijuana, caution and rights to counsel given and accused requests to speak to a lawyer
• 2:17 a.m. — Constable Wall arrives at the scene with the ASD
• 2:20 a.m. — Constable Hollingshead obtains a suitable sample of the accused breath which is analyzed by the ASD and registers a failed
• 2:21 a.m. — arrested by Constable Hollingshead for operation of a motor vehicle with over 80 mg of alcohol in 100 mL of blood with rights to counsel provided
• 2:22 a.m. — breath demand made by Constable Hollingshead
• 2:23 a.m. — accused and Constable Hollingshead leaves the scene of motor vehicle stop
• 2:31 a.m. — arrival at police headquarters
• 2:32 a.m. — Constable Wall the qualified Intoxilyzer Technician arrives at station
• 2:36 a.m. — accused is lodged in cells
• 2:48 a.m. — Constable Hollingshead calls duty counsel
• 3:02 a.m. — duty counsel calls back
• 3:04 a.m. — accused provided some privacy to speak to duty counsel
• 3:06 a.m. — accused turned over to Constable Wall and first breath sample provided
• 3:28 a.m. — second sample of breath sample provided
• 3:34 a.m. — accused returned to holding cells
• 6:40 a.m. — accused served with a variety of paperwork
• 6:45 a.m. — accused released from custody

Summary of Issues

[8] Counsel for Mr. Gunn advised the court during the half-day submissions that there were 4 to 5 issues for this court to consider:

1. The presumption as provided by section 258(1)(c)(ii) cannot be relied upon as the samples of the accused's breath were not taken as soon as practicable

The other issues are charter issues:

2. Mr. Gunn's charter rights were violated as there was a delay in the formation of the requisite reasonable suspicion and the making of the ASD demand

3. Mr. Gunn's section 10(b) charter rights were violated as there was a delay in the investigating officer calling duty counsel upon arrival at the police headquarters

4. Mr. Gunn's section 10(b) rights were violated as he was not provided the opportunity to immediately speak to a lawyer as he requested after his arrest on the possession of marijuana charge

5. In the event that any of the three charter arguments are successful the resulting breath samples should be excluded under section 24(2) of the charter following a Grant analysis

Section 258(1)(c)(ii) Presumption

[9] Section 258(1)(c)(ii) provides that when breath samples are taken as soon as practicable after the time the offence was alleged to have been committed, the accused's blood level at the time of the alleged offence has been committed is presumed to be at the same level at the time of the breathalyser test if same is taken no later than two hours after that time and with an interval of at least 15 minutes between the times the two samples were taken. In our particular case, counsel for Mr. Gunn alleges the samples were not taken as soon as practicable and therefore this presumption cannot be relied upon. As we did not have a toxicologist testify during this trial, if this argument is successful, a finding not guilty must result.

[10] The accused arrived at the North Bay Police Service headquarters at 2:32 a.m. and after being processed was lodged in the cells at 2:36 a.m., Constable Hollingshead called duty counsel at 2:48 a.m. It seems to be uncontested between the parties that this 12 minute delay cannot be explained.

[11] During her examination in chief, Constable Hollingshead testified that she would call the duty counsel once she had left the cellblock area and that the accused would be properly lodged and that she would no longer be required there. In her mind this was immediately. During cross-examination she was specifically questioned about the 12 minute delay. She mentioned that she knew that she must contact duty counsel immediately or as soon as possible but does not have any specific explanation for this 12 minute delay. She in fact does not have any recollection as to whether the station was busy or not during the night in question.

[12] Defense counsel provided a book of authorities with nine cases while the crown's refers me to one other decision. Most of these cases, if not all, make reference to the leading decision of the Ontario Court of Appeal in R. v. Vanderbruggen (2006) CCC (3d) 489. That Appeal relates to the requirement the crown must meet to rely upon the presumption of identity in drinking and driving cases. It specifically addresses the issue of "as soon as practicable" as mentioned in section 258(1)(c)(ii) of the Code. In that leading decision, the Court of Appeal is dealing with a period of 46 minutes between the time the accused is placed in cells and then turned over to the breath technician. In paragraph 12 of that decision, Justice Rosenberg mentions that "decisions of this and other courts indicate that the phrase means that nothing more than the tests were taken within a reasonably prompt time under the circumstances. There is no requirement that the test be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

He continues at paragraph 13 by saying that "in deciding whether the tests were taken as soon as practicable the trial judge should look at the whole chain of events, bearing in mind that the criminal code permits an outside limit of two hours from the time of the offense to the taking of the first test. The 'as soon as practicable' requirement must be applied with reason. In particular, while the crown is obligated to demonstrate that in all circumstances the breath samples were taken within a reasonable prompt time, there is no requirement that the crown provide a detailed explanation of what occurred during every minute that the accused is in custody."

In concluding that this is an issue of fact that the trial judge must decide as, Justice Rosenberg mentioned, that it should not be interpreted so as to require an exact accounting of every moment in the chronology.

[13] Many of the cases cited by the accused can be distinguished on their facts. In R. v. Walker [2006] OJ 2679, we are dealing with a considerably longer delay of 25 to 27 minutes. In R. v. Davidson, [2005] OJ 3474 we are dealing with a 35 minute delay and this particular decision predates the Ontario Court of Appeal decision in Vanderbruggen. The decision in R. v. Schouten [2002] OJ 4777 also predates the Vanderbruggen and relates to an 18 minute delay at the station between the time the breath technician was ready to administer the first test and the actual time of the administering the said test. The decision in R. v. Willettette [2011] OJ 504 also deals with an 18 minute delay between arriving at the detachment in being ready to be tested. In the decision of R. v. Chung [2009] OJ 1546 the court is dealing with a 16 minute delay for the police to make inquiry as to where a qualified technician could be located.

[14] The decisions in R. v. Jenkins [2012] OJ 2533, R. v. Tregear [2010] OJ 4182 and R. v. Lemarchant [2009] OJ 4297 all deal with delays between 10 and 12 minutes which are factually closer in time with the case at bar. However, the delays that were examined by the courts were for different areas of the investigation than the situation at bar. In Jenkins, the court was concerned about a 10 minute delay in the police responding to the scene while there was evidence showing that only one minute travel time was required. In Lemarchant, we are dealing with a 12 minute delay between the second and third sample. Finally, in the Ontario Court of Justice decision in Tregear, a trial decision that I am obviously not bound by, deals with 12 minute delay at the roadside.

[15] The decision of R. v. Dean [2013] OJ 2418 is factually the closest of the cases with the matter at bar. In that decision, the court is dealing with an 18 minute of unexplained delay of the investigating officer calling duty counsel once the accused is lodged in cells. However, in that particular case, the investigating officer did admit that he could have called duty counsel sooner. In our particular case, one must remember that Constable Hollingshead testified that she knew that she must call duty counsel immediately and seemed to indicate that in her mind she had. In all of the decisions cited by defense, the courts had ruled that because of the unexplained delay that the crown could not rely on the presumption as provided in section 258(1)(c)(ii).

The crown relies on the decision of R. v. Price 2010 ONSC 1898, [2010] OJ 1587 wherein the court is dealing with a 32 minute delay between the arrival at the police division and when the first sample taken. In that particular decision, the court did not have any issues with the unexplained delay and agreed that the presumption should apply. The court reminds us at paragraph 16 that "focusing on one aspect of the total time is not an appropriate way to determining if the test was taken as soon as practicable. Rather it is the entire time that must be examined". In that particular decision the time span from arrest to the first sample was one hour and seven minutes.

There clearly seems to be two lines of jurisprudence on this particular issue. The cases presented to me by defense seem to micromanage every minute while the case presented by the crown seems to take a macro management of the time. Surprisingly enough both make reference to the same leading authorities and come to very different conclusions.

[16] We must therefore go back to the leading decisions as decided by the Ontario Court of Appeal. It is clear that the starting point is that these principles must be applied to the fact of each case and must be determined on the specific fact while applying the binding authorities.

[17] I've taken the opportunity to verify if the Ontario Court of Appeal has considered these issues since 2006. The decision of R. v. Burbidge [2008] ONCA 765 specifically reviews and confirms the Vanderbruggen decision and finds no issue with an unexplained delay of 37 minutes. They remind us in that decision that what must be looked at is whether the tests were taken "within a reasonably prompt time under the circumstances" and that this is in issue of fact that the trial Judge must decide.

[18] In the case at bar, the radio dispatch to the police was at 2:01 a.m. Mr. Gunn was arrested for the over 80 at 2:21 a.m. The first sample was taken at 3:06 a.m. There is therefore a delay of one hour and 5 minutes between the driving and the first sample or of 45 minutes between arrest and first sample. It is clear in this courts mind that the police acted reasonably. It is also clear in this court's mind that the tests were taken within a reasonably prompt time under the circumstances. The code permits an outside limit of two hours for the presumption to apply. We are well within these time limits. Considering the as soon as practicable requirement must be applied with reason, and the Court of Appeal reminds us that we do not need a detailed explanation of what occurred during every minute that the accused was in custody, I make a finding of fact that the breath samples in this matter were taken as soon as practicable and therefore, the presumptions as outlined in section 258(1)(c)(ii) will apply to this case.

Charter Issue #1 – Delay In Forming Reasonable Suspicion For ASD Demand

[19] The motor vehicle was stopped by Constable Hollingshead at 2:06 a.m. The ASD demand was made at 2:11 a.m. The issue to determine is when did the Constable have reasonable suspicion in making the said demand.

[20] Upon stopping the motor vehicle, the accused was cautioned and admits that he was consuming alcohol at the Fox and Fiddle Restaurant and that his last drink was approximately 20 minutes ago. On cross examination the Constable was not sure exactly how long this part of the conversation took. She did mention that perhaps same would have taken a minute. On cross examination Counsel attempted on numerous occasions to make the Constable agree that her reasonable suspicions were made after the accused admitted to drinking at the bar. Despite numerous attempts, the Constable never formally agreed to this. She does mention that other factors influenced her decision that is the blood shot eyes and the smell of alcohol from his breath. All of these factors came into consideration in making the decision of asking for a breath demand. The one thing that the Constable is consistent in her explanation is that her grounds were formed sometime between 2:06 and 2:11 a.m.

[21] The discussion in the loader's cab took approximately 1 minute. After he stepped out of the motor vehicle she noticed the blood shot eyes and that he had been fumbling in the cab looking for his license or wallet. She could also smell alcohol on his breath. She was never officially questioned on how long it took for him to exit the motor vehicle and for him to be close enough to her for her to smell the alcohol on his breath or to examine his eyes and then to make a final conclusion on reasonable suspicion. In any event the maximum duration of time is 4 minutes and most likely somewhat less than that as he had to exit the motor vehicle and she had to reach her conclusions about the eyes and the breath.

[22] We must also take into consideration the fact that she knew all along that she did not have any ASD in her cruiser and that a request for one to be brought to her location had to be made. She did turn her thoughts to requesting one from the O.P.P. as the detachment was literally steps away from the location however, she concluded that it would take less time for one to be brought from another North Bay Police Service Officer and as North Bay was a small city, same would not take more than 5 to 10 minutes.

Defense counsel refers me to two cases contained in his book of authorities. The first is the decision of the Ontario Court of Justice in R. v. Kerr [2010] OJ 2222. In this decision, which I'm obviously not bound by, the court deals with a six minute delay after the reasonable suspicion was crystallized. The second decision referred to is much more helpful in my analysis as it comes from the Ontario Court of Appeal. In the decision of R. v. Quansah 2012 ONCA 123, [2012] 287 OAC 383 it deals with a 17 minute delay. In this decision, they provided a good explanation of the R. v. Woods 2005 SCC 42, [2005] SCJ 42 decision of the Supreme Court of Canada on this issue.

[23] One must remember that a screening demand is unlike a Section 254(3) breath demand, there is no statutory requirement that the demand itself be made as soon as practicable. However there is a requirement under Section 254(2) that the test be administered forthwith. The Court of Appeal clearly explains that the analysis of the forthwith or immediately requirement must always be done contextually. It reminds us that the demand must be made promptly once the officer forms reasonable suspicions. Forthwith also connotes a prompt demand and an immediate response however, in some circumstances a flexible interpretation may be given. We must also remember that this requirement must take into account all of the circumstances of the particular matter.

[24] In the case at bar we must remember that the accused had mentioned to the police officer that he had consumed two beer 20 minutes before being stopped. The officer also knew that she did not have an ASD device and needed to request one from another officer.

[25] The Ontario Court of Appeal confirms that it is wrong to proceed on the basis that the meaning of forthwith must be strictly defined as immediately without delay and concludes that in some circumstances it will require a flexible approach. A short delay if reasonably necessary for the proper administration of the roadside test must be accommodated if the purpose of the legislative provisions is to be realized.

[26] In view of the fact that Constable Hollingshead did not have any ASD device, along with the fact that the accused had disclosed his recent drinking, and that the delay is at most three or four minutes, and using the flexible approach as defined by the Ontario Court of Appeal, I conclude that the demand for breath sample in an approved screening device was made forthwith after the investigating officer had reasonable suspicion in making such a demand and accordingly, I find that there has been no charter violation on this issue.

Charter Issue #2 – Delay in the Investigating Officer Calling Duty Counsel

[27] As discussed earlier, the parties agreed that there was a 12 minute delay in the police contacting duty counsel once the accused was lodged in the cells. Section 10(b) of the charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The arresting officer is therefore, under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonable available opportunity. The burden is on the crown to show that any given delay was reasonable in the circumstances. Whether a delay in the facilitating access to counsel is reasonable is therefore a factual inquiry.

[28] Defense refers me to the decision of R. v. Taylor 2014 SCC 50, [2014] SCJ 50. This decision in my view is only helpful in providing us with general principles in relation to section 10(b) rights. The facts are drastically different than in our case as in the Taylor decision, the accused was not given access to a phone at any time. In our case, there was a 12 minute delay in calling duty counsel. However, once the call was made at 2:48 a.m., the accused was able to speak in private to duty counsel within the 16 minutes of that call.

[29] Other courts have considered this issue and pronounced some basic principles to use in the courts analysis. The British Columbia County Court in the decision of R. v. Topping [1985] BCJ 679, mentions that considering any tardiness in isolation and not in relation to the entire picture, was an error committed by the trial court. Accordingly, all the circumstances must be considered and it is clear from the evidence we heard on this case that there is no deliberate or intentional act by the police to delay the accused rights to retain counsel. The Constable testified that she knew that it was important to act promptly in having the accused speak to a lawyer and she testified that in her mind she did so however, it is also important to note that in our case, no actions were taken by the police during that 12 minute delay.

[30] The Newfoundland Court of Appeal in the decision of R. v. Vautour (1987), 190 APR 143, reminds us that the words without delay in the context of section 10(b) of the charter have to be considered in light of the existing circumstances.

[31] The issue of reasonableness is also introduce of the Supreme Court of Canada in the decision of R. v. Manninen, [1987] 1 SCR 1233. In this decision, the court outlines at least two duties on the police in addition to the duty to inform detainees of their rights. The first is that the police must give the accused who so wishes, a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The second is that the police must refrain from attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel.

[32] In the decision of R. v. Young [1990] BCCA Doc No. CA 008546, the court addresses the issue of a 90 minute delay in the accused rights to contact a lawyer in order for the police to execute a search warrant. In that particular case, the police were concerned that a telephone call by the accused might alert others who could frustrate the warranted search. In those particular circumstances, the court concluded that this did not constitute a breach to the accused's 10(b) rights. Again, the court was looking at the total circumstances of the case.

[33] Looking at the total circumstances of this case and adopting the reasonableness approach as defined by the courts and it is this court's view that the 12 minute delay is not an infringement of the accused's Section 10(b) rights, mostly when you consider that the police took no actions towards the accused during that period of delay.

Charter Issue #3 – Opportunity to Immediately Speak to a Lawyer After Arrest on the Possession of Marijuana Charge

[34] In order to properly address this issue, it is important to review the sequence of events on this matter. At 2:11 a.m., Constable Hollingshead makes a legal demand for an ASD breath sample. No rights to counsel were provided. At 2:14 a.m., Constable Whittle arrested the accused for possession of marijuana. At that time he is provided his rights to counsel and requested to speak to a lawyer. At 2:17 a.m., Constable Wall arrives at the scene with the ASD. Constable Hollingshead's obtains a suitable sample of the accused breath in the ASD at 2:20 a.m. prior to him speaking to any legal counsel.

[35] As long as a breath demand for an ASD is made pursuant to Section 254(2), and that it is made forthwith, there is no un-justified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her rights to counsel. Case law has clearly established that a detained person, for the purpose of obtaining an approved screening device sample, does not have a right to counsel as this is the reasonable limitation and justifiable under Section 1 of the Charter.

[36] Upon arrest, the police must inform the detainee of his or her right to retain and instruct counsel without delay. Upon arrest, Section 10(b) of the charter is engaged and guarantees an individual the right to retain and instruct counsel without delay and must be informed of that right.

[37] In the case at bar, Mr. Gunn found himself detained for the purpose of an ASD breath demand and also under arrest for the purpose of the narcotics charge. There appears to be some contradiction about how the police should proceed in the circumstances. I questioned counsel for the accused on more than one occasion as to what the police were to do in these circumstances. His response was that they simply need to follow the law and basically refused to answer or did not know the answer to the practical situation presented in this matter.

[38] It is clear that between 2:11 a.m. and 2:14 a.m., the accused's rights to counsel were suspended as there was a legal demand for an ASD breath sample. It is also clear that as of 2:21 a.m., the accused clearly had rights to counsel at that time as he was under arrest for both the over 80 and the narcotics charge. The issue therefore is whether the suspension of his rights to counsel continued between 2:14 a.m. and his subsequent arrest at 2:21 a.m. for the over 80.

[39] A variety of levels of courts have addressed some of the issues we are dealing with. In the decision of Canada v. Vautour [1987] NJ 53 The Newfoundland Court of Appeal, is dealing with an accused that was stopped by police on suspicion of impaired driving. Police asked the accused to accompany them to their police cruiser at which time they noticed a bag protruding from his jacket. Police recovered the bag and discovered the controlled substance. The police continued with the impaired driving investigation and then made a breath demand. After the accused failed the breath demand, he was then arrested on the narcotics charge and was advised of his rights to counsel on that charge.

[40] The court mentions that "whether or not the Constable intended to lay a charge under the narcotics control act is irrelevant, what is of importance is that the Constable continued his investigation into the suspected 236 offense (the then Drinking and Driving Section) and made no attempt to solicit any information from the respondent with respect to the drugs. Immediately the decision was made to arrest the respondent and charge him under the Narcotic Control Act. He was informed of his rights under Section 10(b) of the charter. In the circumstances it cannot be said that the respondent's rights guaranteed under Section 10(b) of the charter were contravened". It therefore appears from this decision that the suspension of the accused's rights to counsel triggered by the ASD demand continues until that investigation is concluded if no further actions are taken on the other arrestable charge.

[41] It appears that the Alberta Court of Appeal reached a similar conclusion in the decision of R. v. Abouhamad [1988] AJ 827. In that case, the Court of Appeal upheld the conviction wherein the accused was stopped by police for erratic driving and eventually arrested on outstanding warrants and informed of his charter rights including his rights to counsel. While en route to the police station, police formed reasonable grounds to believe that he was under the influence of alcohol and made a ASD breath demand. The accused was explained at the time that he was not entitled to consult counsel before giving such a sample. The accused eventually refused to give a sample and was charged accordingly. It therefore appears that the suspension of the rights to counsel triggered by the ASD demand continued despite the fact that he was under arrest on the warrants and had been provided rights to counsel following that arrest.

[42] The Alberta Court of Queen's bench also addresses similar issues in the decision of R. v. Good [2007] AJ 1256. In this case, the accused was arrested on outstanding warrants after officers saw him operating a motor vehicle. Upon arrest, he was read his rights and asserted his rights to counsel. En route to the police station, officers detected an odor of alcohol coming from the accused, stopped the motor vehicle and made an ASD demand. The accused refused to comply with said demand and was charged with refusal. The court concluded that there was no breach of the accused Section 10(b) charter rights to counsel as the rights to counsel were temporarily suspended for the purpose of an ASD demand when such sample are taken forthwith.

[43] Finally, in the decision of R. v. Miller [2013] AJ 1140, police witnessed the accused damage some of her roommates property then take off in a motor vehicle. The Constable did a traffic stop and arrested the accused for mischief. The accused was advised of her rights to counsel and mentioned that she in fact wanted to speak to a lawyer. After the arrest, the police formed grounds to make in ASD demand to which the accused refused to comply with. The court concluded that since the ASD demand was valid and forthwith, such demand suspends the accused rights to counsel and accordingly there is no charter violation in these circumstances.

[44] Counsel for the accused refers me to the decision of R. v. Aston 2004 ONCJ 187, [2004] OJ 3810 and the decision of R. v. Mitchell 2005 ONCJ 133, [2005] OJ 1761. Both of these decisions are from this court and the issues have been elaborated on and expanded upon from the cases I noted above.

[45] Counsel includes in the book of authority the decision of R. v. Grant, [1991] SCJ 78, but did not make any reference to it during submissions. As many of the cases I noted above make reference to this important decision of the Supreme Court of Canada, I feel obligated to comment on how that case can be distinguished from the case at bar. In Grant, the accused was under arrest for disqualified driving and later the police formed a reasonable suspicion necessary for an ASD demand. Justice Lemaire mentions in at that case that "The initial detention triggered Mr. Grant's Section 10(b) rights and the requirements for charter warning did not come to an end when the officer subsequently demanded a breath sample." What is important to note in Grant is that Justice Lemaire concludes that this was not a legal ASD demand as same could not be provided forthwith. Because there was no lawful ASD demand, the issue of the suspension of the accused 10(b) rights did not arise. In the case at bar, I have already concluded that the ASD demand was a legal demand and therefore the case at bar is significantly different than the Grant decision.

[46] Accordingly, I find that Mr. Gunn's 10(b) charter rights were not violated in the present circumstances of this case as those rights were suspended following a legal demand for an ASD sample and I therefore reject this portion of the accused's application.

Section 24(2) Grant Analysis

[47] As I have not found any charter violations I obviously do not need to do a 24(2) Grant analysis. However in the event that I am wrong and that there were charter breeches, I do wish to briefly address the analysis under Section 24(2) of the charter.

[48] The test is set out in the case of R. v. Grant [2009] SCC 32 and the purpose generally is to maintain the good repute for the administration of justice. It is an objective test that is whether a reasonable person would conclude that the admission of the evidence would bring the administration of justice into disrepute. The exercise of the Grant test involves three separate inquiries:

1) Seriousness of the Charter Breach

The first line of inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts an institution responsible for the administration of justice, effectively condoned state deviation from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. It is clear that any charter breach is a serious matter. However it is important to consider the breach on a scale of seriousness with blatant disregard to someone's charter rights as being extremely serious.

In the case at bar, any delays were for only a few minutes and were reasonable under the circumstances. It is clear from my finding of facts that the police officers acted in good faith.

2) Impact of the Breach on Charter Protected Interests

The second stage of inquiry focuses on the seriousness of the impact of the breach on the charter protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interest protected by the right infringed.

In the case at bar, one must remember that Mr. Gunn was legally arrested for the possession of marijuana. The requirement for him to provide a breath sample into the ASD was minimally intrusive. Mr. Gunn's detention was not arbitrary nor was there any heavy-handed or even discourteous conduct on the part of the police. If there are any charter breaches, these would only be minor technical breaches which would not warrant a remedy under Section 24(2). In fact these minor factors tend to favor the inclusion of evidence.

3) Society's Interest in Adjudication on the Merits

The third phase of the test focuses on the society's interest in the adjudication of the case on its merits. Will the truth seeking function of the criminal trial process be better served by the admission or the exclusion of the evidence?

The evidence in our case is important and reliable. All drinking and driving cases are serious matters. These factors militate in favour of admitting the evidence. In fact when you look at the totality of the circumstances in this matter, the accused was advised not to operate a motor vehicle over concerns of his impairment. He disregarded this advice and then operated and heavy piece of equipment and was located in or near and O.P.P. detachment. In the circumstances, is clear in the courts mind that in order to maintain the good repute of the administration of justice, that if they would of been a charter violation, the evidence would not be excluded as by doing same in the circumstances of this matter would bring the administration of justice in disrepute.

Accordingly, the accused charter application is therefore dismissed.

Conclusion

[49] It therefore appears that all other issues in relation to this matter are not contested and on reviewing the totality of the circumstances of this case, I am satisfied beyond a reasonable doubt that the crown has proven each and every element of the offense and accordingly there will be a finding the guilt on the charge.

Released: April 21, 2015

Signed: "Justice A.H. Perron"