Court Information

Court: Ontario Court of Justice Location: Old City Hall, Toronto Region Decision Date: May 7, 2015 Ruling Released: May 14, 2015

Parties

Between:

Her Majesty the Queen

— AND —

Shane Robert Kinnear

Before: Justice S.R. Shamai

Counsel:

• Ms. M. Goldenberg for the Crown
• Mr. J. Rosenthal for the Accused, Shane Robert Kinnear

Introduction

[1] Mr. Kinnear was charged on May 4, 2012 with the offence of driving with an excessive proportion of alcohol in his system, the "over 80" offence. He was convicted on May 8, 2013. That conviction was overturned on appeal on February 25, 2014, and his retrial came before me on March 25, 2015.

[2] On the trial before me, motions for relief arising from Charter violations were filed. Mr. Kinnear alleges that his rights under Section 8, Section 9, and 10(b) occurred, such that he is entitled to a stay of proceedings under Section 24(2).

[3] Mr. Kinnear testified in his own defence. As well, one defence witness, Scott Garvie was called. In the Crown's case, three officers on duty in the RIDE set up testified: Sgt. Paul Baynard, Cst. Christopher Pointer and Cst. Christian Pelletier. As well, Cst. Michael Thompson, the designated breath technician that night at the Traffic Services police detachment, gave evidence.

[4] Mr. Kinnear was heading on to the northbound Don Valley Parkway when he was stopped at 7:32 pm. Sixty years of age at the time, Mr. Kinnear had enjoyed some time on his penthouse terrace in downtown Toronto, sipping scotch and tending the garden before starting the drive to the cottage early that Friday evening. Based on his interviews once in police custody after his arrest, I learned that Mr. Kinnear required a number of pharmaceuticals: apparently had been undergoing chemotherapy recently, at the time. He had no criminal record, and had never been arrested before. Mr. Kinnear appeared on the breath room video just as the officers described him: very co-operative and pleasant, with an excellent command of the English language, which he exercised volubly. He talked a lot: whether that was a sign of being tipsy or nervous or just being a garrulous man, I cannot say.

[5] The first issue on the trial revolves around the so-called "approved screening device" used by the arresting officer, and which informed the officer's grounds for arrest. The second issue relates to Mr. Kinnear's exercise of rights to counsel. As I am deciding the issue on the Charter application related to the grounds for arrest in Mr. Kinnear's favour, I will deal briefly only with the issues of rights to counsel, interesting as they are.

Section 8 Application

[6] Mr. Kinnear was first investigated by the road sergeant on scene, Sgt. Baynard. The officer stated that he pulled Mr. Kinnear's vehicle over at 7:32 pm on May 4, 2012, near the ramp to northbound Don Valley Expressway from Bloor Street. He had the "standard conversation" with the driver, advising it was a RIDE spot check and asking if he'd had anything to drink. The driver said "nothing", and queried again, said "nothing at all". On his affirmation of the first response, Sgt. Baynard detected the "strong scent' of alcoholic beverage coming from the man's breath, and as well noted a reddish complexion and watery eyes. He turned him over to Cst. Pelletier, advising that he had detected the odour of alcohol coming from the driver's mouth. Cst. Pelletier in turn had a conversation with the man, and formed his own suspicion of alcohol in the man's body, while he was driving. When Cst. Pelletier asked about when he'd had his last drink, Mr. Kinnear stated, about an hour ago. Asked whether he'd consumed alcohol in the preceding 15 minutes, the driver said no. Mr. Kinnear advised that in total he'd had "around two" drinks in total. Cst. Pelletier read a demand for approved screening device sample. He brought Mr. Kinnear to the side of his vehicle to perform the test. He testified that he used a "Alcotester 6810GLC"; he read the serial number and the lot number of alcohol standard into the record. He indicated that the sticker on the back of the device showed that it was set to register F at "greater or equal to 100 milligrams of alcohol per 100 millilitres of blood". He stated that the calibration date of the instrument was April 10, 2012. The officer stated that he had received the instrument from one of his co-workers on scene, Cst. Pointer, whom he knew to be a designated breath technician, and who advised that the device had been tested and was in good working order.

[7] On behalf of the defence, it is contended that Cst. Pelletier displayed indifference at best, certainly ignorance, and possibly flagrant disregard for the details of his investigation and compliance with mandated procedures in the investigation, both in terms of the specifics of what amounted to "proper working order" of the screening device, and other aspects of his investigation. As a result, defence urges the conclusion that an objective assessment of the officer's grounds based on the instrument fails, and that even assessed subjectively, the officer's grounds were suspect given his repeated violations of mandated police practice. Defence asserts that as a consequence the seizure of breath was unreasonable and violates his clients Section 8 rights. The evidence in this regard falls under several subject areas.

Approved Screening Device (ASD)

[8] Cst. Pelletier referred to the ASD as an "Alcotester 6810 GLC"; the synopsis he prepared referred to it as a Drager Alcotest 7410GLC. He stated that a synopsis provides a computer-generated, partially filled in form and so that is the reason that the synopsis named the device differently than his notes. In his testimony, Cst. Pelletier stated he was unaware of any of the recommended guidelines or procedures; indeed, he did not know what the Centre of Forensic Sciences was, let alone their guidelines. However he allowed that he had heard of them, and that he would rely on their directions. He agreed that at the first trial, he had testified that he would rely on what the Centre might tell him. Thus he agreed as well, that if the Centre for Forensic Science advised not to rely on a reading generated by a Drager 6810 device, which had not been calibrated within the preceding two weeks, he would follow their advice.

[9] In fact, as of August 2012, a publication of the Government of Ontario concerning ASD's, the Training Aid for Qualified Technicians (Ex. 4) refers to three ASD's in use in the Province of Ontario at the time, the Alcotest 7410 GLC, the Drager Alcotest 6810 and the Alco-Sensor FST. The calibration of Drager Alcotest 6810, according to Forensic Scientist Inger Bugyra of the Centre of Forensic Sciences, is recommended by the CFS at least every two weeks. Mr. Bugyra's letter of opinion, dated August 5, 2014, was filed as an exhibit on this trial. His qualifications and expertise as a toxicologist in the employ of the CFS, with previously acknowledged expertise in the "absorption, distribution and elimination of alcohol in the human body, the effects of alcohol and the operation a Breathalyzer and Intoxilyzer instruments and the approved screening device" (emphasis added). His letter states as well that the Alcohol Test Committee recommends that the calibration of the device be checked at least every 31 days. The manufacturer indicates that the calibration can be checked every six months. (Ex. 4, Affidavit of Inger Bugyra). He notes in conclusion of his report: "The calibration log indicates that the device remained in calibration even though the calibration check frequency was greater the Centre of Forensic Sciences recommended guideline of two weeks" (emphasis added). Exhibits 7 and 8 are the Approved Screening Device Operating Procedures and Approved Screening Device Guidelines, respectively for the Drager Alcotest 6810, issued by the Toronto Police Service, revised September 25, 2012. Those documents show that the Toronto Police Service requires calibration within the 31 days prior to a test; indeed, it appears from Exhibit 7 that the device will not allow subject tests to be performed if 31 days have passed since the last calibration. That same procedure document suggests notes to be made of several details: the name of the device, the number of days before a calibration check is due, and the approximate time the device requires prior to entering Ready mode.

Self-Test

[10] Exhibit 7, the ASD Operating Procedures direction of the TPS, states that the officer using an ASD should conduct a self-test, and note the time of this test, the test number, the approximate duration of the breath sample, that the device accepted the breath sample and the result. Cst. Pelletier testified that he relied on his co-worker, Cst. Pointer, to have properly ensured the working order of the ASD, when he received it from him. He relied solely on his knowledge that his co-worker is an officer and a designated breath tech. Cst. Pointer testified, and said he had performed a self-test, but did not refer to any of these particulars in supporting his professed conclusion that the device was in proper working order. Neither officer indicated that any information about the device was communicated when Pointer provided the device to Pelletier. This is particularly significant as the officers were assigned to a RIDE spot-check, where the intended outcome was the individuals suspected of having alcohol in their systems would be tested on the ASD. It was no surprise that an officer might require the use of an Approved Screening Device. The suitability of the instrument or instruments to be used, one would think is an issue at the very least for briefing in advance of the setup, and more particularly in light of the detailed directives on Toronto Police Service.

Where to Administer Test

[11] The guidelines for use of ASD, specifically the Drager Alcotest 6810, issued by Toronto Police Service, suggest "subject breath testing be performed inside a scout car for reasons of officer safety and to ensure each test will be done under similar environmental conditions". Cst. Pelletier answered questions about his awareness of this guideline, and appeared unaware of the guideline at the time the investigation occurred. He performed the test outside his scout car.

Use of In-Car Camera System Policy

[12] In contrast to the Guidelines and Procedures regarding the Approved Screening Device, the excerpt from the TPS Policy and Procedure manual concerning the In-Car Camera System is couched in mandatory terms. In particular, I note that the policy stipulates that:

"When operating a Service vehicle equipped with an ICCS (a police officer) shall … use the ICCS to visually and audibly record … all investigative contacts with the general public, initiated from an ICCS equipped vehicle… (emphasis added)

[13] While the officer went so far as to agree that the administering of the ASD was an investigation, and that investigative contact with the public was "a possibility" in conducting a RIDE programme, he quibbled about the use of the in-car camera system, saying that it was not to be worn at all times as it might be in the holder of the car. Clearly he did not activate the system during his investigation of Mr. Kinnear, nor, contrary to guideline, did he administer the ASD in the police vehicle.

[14] The cross-examination of the officer was in part predicated on suggestions that non-compliance with the policies and guidelines was an offence under the Police Act. I suppose that the officer's attitudes towards non-compliance could further my understanding of his interest in abiding by the rules generally, thus in assessing the bona fides of his assertion of belief that the device was in proper working order, and his recall of utterances and so on. However, inviting the Court to consider violations in a discursive manner seems to me to be inviting consideration of strictly collateral matters, and I place, in the result, little weight on these questions and responses.

Analysis

[15] Where a warrantless search or seizure is performed by a police officer, the reasonableness of that search must be beyond reproach. At least, the Crown bears the burden of showing reasonableness, on a balance of probabilities. Section 8 of the Charter guarantees that. The Charter jurisprudence on this point since the Supreme Court of Canada's decision in Hunter v. Southam, [1984] 2 S.C.R. 145 has become trite law. In this case, there is no warrant, and so I look to the Crown to discharge an onus showing that the search is reasonable.

[16] To show that, Crown must establish reasonableness from a subjective and objective perspective. I have concerns, as the above review of the departures of the instrument from what is mandated as proper working order for a ASD. The officer seemed unaware and uncaring about the requirements, and directions and suggestions of his police service, as to the particulars of the instrument, starting with its name. He noted a name in his notebook, which does not correspond to any Approved Screening Device. He created a synopsis naming another ASD. Even if part of the synopsis was a form already filled in, in part, the lack of attention demonstrated by the officer appears again. While this may in itself be insufficient in and of itself (see R. v. Gundy, 2008 ONCA 284) to undermine the constitutionality of the taking of a sample of breath in the circumstance, it is not the only concerning factor. The investigating officer obtained the ASD from another officer on scene. He did not, either at the outset of the shift on the RIDE setup, or at the time he took the instrument from Cst. Pointer, check the details which in my estimation he should have known. Details about its working order which he should have known would be required in court, should an arrest follow the investigation. He did not make note of the information he was required to. Worse, nor did the officer from whom he received the device.

[17] I will take a moment to review the knowledge of that officer, Cst. Pointer, regarding the instrument he provided to Cst. Pelletier. First, Cst. Pointer asked, nearly three years after the event, to refer to notes to refresh his memory. Unfortunately, these were not notes made at a time proximate to the event: those notes had gone missing. He made a "willsay" at some point before the first trial, possibly when disclosure of the Crown's case was required, but even the willsay was not dated. Given the position taken by counsel, I allowed the witness to refer to these notes; however I am very dubious about the accuracy and completeness of details they record. This is significant, as the witness provided the Court with detail about the identity of the approved screening device, and the alcohol standard lot number. At an unspecified time after the officer discovered that his notes had gone missing, I have no idea how he was able to recall this very particular information. I find it especially puzzling as he was unable to tell the Court the calibration date of the device. He believed, in sum, that the ASD, which he provided to Pelletier, was in proper working order because he performed a self-test, and received a "zero" reading. He was satisfied in the result, as he had not consumed alcohol that day. This assessment of working order is so far from the mark, in terms of manufacturer's recommendations, TPS guidelines and CFS recommendations. Without apparently having advised Cst. Pelletier of any of this, not even the self-test, the latter was content with the working order of the device as it was provided to him by his co-worker on the RIDE setup. Pelletier did note the calibration date, but it would appear that this was a rote notation: the significance of the 24 days since calibration date did not appear to resonate with him.

[18] Cst. Pelletier did not activate the in-car camera system, although he was clearly involved in an investigative detention of Mr. Kinnear. He did not take the sample within his scout car. None of the directives and mandatory policies of the TPS concerning use of in-car camera system seemed known to him as policy or procedure and that in itself did not seem to bother him, as he testified. I think I had an officer who appeared unconcerned with the manner in which he purported to take a breath sample as he detained a citizen roadside. In the result he could not inform the court about the sufficiency of the sample, nor, if he knew of the guidelines for calibration, on his own evidence, should he have had confidence in the sample thus taken.

Reasonable Grounds

[19] For a belief to reasonable, when it comes to search, it must be so, on both subjective and objective grounds. In this case, the officer who performed a test to obtain the sole grounds leading to Mr. Kinnear's arrest did so in circumstances which show a breathtaking disregard for the means and procedures attendant on his obtaining that test result. He did not inform himself about the working order of the device when he received it from another officer, and although he noted the calibration date of the device, it did not have any meaning to him. He did not use the in-car camera system to record his interaction with this citizen. He did not follow directives about where to conduct the test (in his vehicle) nor did he demonstrate any awareness of these guidelines and directives. I have not reviewed the evidence concerning proper content of notes taken in such a circumstance, but suffice it to say that the officer did not record the information recommended as appropriate.

[20] I find this particularly concerning as the officer was participating in a RIDE setup: the whole purpose of the detail, as part of RIDE, is to determine whether drivers are operating motor vehicles with alcohol in their systems, and if so, whether it is at a level in violation of the law. The minimum that the public can expect with this system of random stops, is that the officers are conducting their business according to law. When the resulting proposed evidence amounts to information generated by ASD and the attendant investigation is in fact gathered without regard to the scientific and regulatory guidelines, one doubts mightily the reliability of the evidence, and the propriety of police action in collecting it.

[21] It follows that I find the reading generated by the ASD that evening to have yielded information obtained by a search which violated Section 8 of the Charter. The reading was obviously obtained without judicial preauthorization, and the circumstances detailed above provide no objective basis of reliability. As to the subjective belief in reliability professed by the officer, I am dubious about even that, given his apparent ignorance of every aspect of procedures and practice concerning the obtaining of ASD samples. Although I am far from suggesting the officer acted in bad faith, the ease with which he professed ignorance of the many aspects of police procedure and the operating procedures for the ASD make me wonder to what degree the officer could genuinely claim an honest belief in the integrity of the results he placed before the court. I fear ingenuousness.

[22] This leads me to the analysis of the admissibility of the evidence under Section 24(2) of the Charter. Before setting out my conclusions in that regard, I will briefly advert to the allegation of Section 10(b) violation.

[23] The essence of the right to counsel seems to be that while Mr. Kinnear requested to speak with and did speak (twice) with his friend, Scott Garvie, Mr. Garvie was not a lawyer in practice and thus unqualified to provide Mr. Kinnear with advice. With respect, this argument cannot succeed. Mr. Garvie is trained as a lawyer, having graduated at the University of Toronto in 1986 and been called to the Bar in both Ontario and British Columbia. He has continued to pay annual dues to the Law Society of Upper Canada. He testified however that he stopped practicing law in the early 90's. Thus although Mr. Kinnear said that Mr. Garvie was the lawyer he wanted to speak with, and later, in the breath room, talked about how Mr. Garvie was a "great lawyer", he apparently did not have the practical knowledge of criminal law, that area perhaps residing only in distant memory of his law school days. However, neither on the first contact with Mr. Garvie, nor the lengthier conversation, which Mr. Kinnear had with him when Garvie called back, did either Garvie or Kinnear advert to the limitations of Garvie's knowledge of criminal law. I have no doubt that if Mr. Garvie reminded Mr. Kinnear that he was not a criminal lawyer and would like to refer him to a specialist in the field, that Mr. Kinnear would have been permitted by police to contact another lawyer. Mr. Kinnear appears to me to be confident and reasonably sophisticated, as does Mr. Garvie, both in their testimony, and in Mr. Kinnear's case, in the recorded video's of his interactions with police upon and pursuant to arrest. It is not the task of police to inquire into the expertise of the lawyer, who is requested by an individual in custody. That might be a slippery slope indeed, and quite inimical with the role of police in administering rights to counsel on the one hand, and the solicitor client relationship on the other. One can, I suppose, imagine a scenario of fraud on an unsuspecting, naive member of the public in police custody. That might raise different considerations, but in terms of the facts at hand, I do not find that Mr. Kinnear's rights to counsel were infringed.

Section 24(2): Just and Appropriate Remedy

[24] I must consider the remedy for the Section 8 violation. I appreciate the framework set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 and the companion case of Harrison. I appreciate as well that courts in the intervening years have applied the law to different facts and even similar fact scenario's and come up with varying results. In this case, I test the violation of Section 8 through the three sets of criteria the law provides me, to determine whether the evidence should be excluded as a result of the violation, or, whether, despite the infringement of right to be secure from unreasonable seizure, the reading on the ASD should be admitted into evidence.

The Seriousness of the Breach

[25] Here, the breach is not at the high end of interference with privacy, bodily and integrity and dignity. Nonetheless, a roadside investigation, being handcuffed and subjected to transport in custody and investigation and interrogation, friendly as it might have been, are most certainly events which citizens do not welcome. The further sequelae of retaining counsel and pursuing justice for years through the courts are the consequence an interference with one's right to be secure from unreasonable seizure. I bear in mind, in considering the seriousness of the breach, that it must be modified by the consideration of whether evidence obtained in this manner is so reliable as to overcome such a violation. Here, the court's inability to gauge the reliability of the evidence is what is particularly offensive about this breach. Many of the indicators of reliability, set up by the manufacturer of the ASD, and the Centre for Forensic Science and the Toronto Police Service, were matters to which the officer simply did not turn his mind. Consequently he cannot assist the Court in understanding whether notwithstanding the violation of Section 8, the results were in fact reliable. The officer's own evidence was that if he had been aware of the CFS guideline for calibration, he would have abided by it. As to the other requirements in conducting the investigation, from which he had clearly departed, there was no such concession. He depended on the readings provided by the device to have reasonable and probable grounds for arrest: in the absence of an objectively reasonable basis for his belief, it is impossible to gauge reliability.

Impact on the Defendant's Charter-Protected Rights

[26] Although the intrusion may be seen to fall at the low end of Charter violations, I advert to the analysis of Justice Ducharme in the case of R. v. Au Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579. After reviewing the Section 24(2) implications of a very similar Section 8 violation, involving inadequate police conduct in administering in ASD test:

52 I strongly disagree with this characterization of the s. 8 violation. It was not based on one or two errors that might be dismissed as merely "technical." P.C. Wollenzien's testimony makes is clear that he did not use the ASD properly. This alone means that the alleged "fail" provides no objective grounds for the breath demand. But that is not all. Due to the officer's lack of knowledge, combined with the evidence of P.C. Rose 5 , the trial judge concluded:

So I am left with no evidence that the device into which you blew and registered was an approved screening device. In my view this is not fatal to the Crown's establishing that the subsequent taking of your breath samples into an approved instrument was a reasonable seizure.

In fact, the situation was worse as the evidence of the two officers taken together was that the device used was not an approved screening device. While there is conflicting authority on this question, the trial judge failed to explain why this further problem was not fatal. In my view this is a further, independent reason why the Crown failed to prove objective grounds for the breath demand under s. 254(3). 6 Finally, the testimony of P.C. Hodgert about the "fail" signal on the machine suggests that, whatever result P.C. Wollenzien thought he got, it was not a "fail."

Justice Ducharme says the following:

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

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

61 But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of s. 9.

62 While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter , the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.

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

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices .

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause . To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

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

I would therefore exclude that evidence ... [Emphasis added.]

69 In my view, the public should expect that when they are stopped by the police their Charter rights will be expected. Certainly, the public must have confidence in the competence of the police and in the fact that they will not detain or arrest drivers without the requisite grounds. Even more importantly, the public must have confidence that those officers who are charged with exercising the important powers under s. 254 of the Criminal Code have the necessary skills and training to do so in a matter that complies with both the Criminal Code and the Charter . Thus, while the facts in Morelli are more serious than those in this case, 10 the foregoing comments of Fish J. are nonetheless applicable to this case. In conclusion, I am persuaded for all of these reasons that admitting the breath sample evidence in this case would bring the administration of justice into disrepute.

I respectfully adopt the analysis of Justice Ducharme, applicable as it is to the case before me.

[27] In considering the seriousness of the breach, I examine whether the police conduct resulting in the breach is conduct from which the Court should distance itself. As I have suggested earlier, the fact of a RIDE setup, designed to advance an important societal objective of road safety by randomly stopping and investigating drivers, often by means of Approved Screening Device, seems to me to be a police initiative which can easily and properly be facilitated by ensuring that each officer is familiar with the device which he or she is to employ, even at a time prior to the setup, as in a briefing, prior to going out on the road. At the very least, the public should have confidence that the officers deploying the devices are knowledgeable about their suitability. The obligations placed on officers generally in terms of note-taking and investigations where an in-car camera system is available raise another broader range of concerns. With regard to the in-car camera system, I am particularly concerned that the officer appeared entirely ignorant of the obligations placed on him for use of that system. This system can provide important evidence to the Court, where a prosecution follows the police contact. In terms of the community's confidence in policing, it may be more important to consider that all contacts or investigations do not necessarily result in charges laid. Members of the public may have the reassurance that their contacts with the police are being recorded by these audio visual devices, implemented consistently in accordance with the mandated procedures. We do not have that assurance, if officers do not inform themselves about the use of those devices, and follow the mandatory directives and guidelines. All citizens need assurance that their contacts with police be conducted according to the rules, and that such contact, whether or not they result in charges, be duly recorded, by notes or by technology.

[28] For these reasons I find the violation in this case to have serious ramifications, in terms of the reliability of the evidence and the impact of this citizen's rights, and the broader, forward looking perspective of the relationship of citizens with police in Toronto.

Society's Interest in an Adjudication on the Merits

[29] It is trite to say that the prosecution of drinking and driving is important to public safety and the prevention of drunk driving. By detecting drinking drivers, even when the driving appears unaffected by consumption of alcohol, we further that interest. The case here depends on a reliable reading obtained by an approved screening device. Without that there is no further investigation warranted in any way. The truth seeking function of the trial is certainly not furthered by the admission of questionably reliable evidence, obtained in violation of the citizen's rights. That is all I have here. Thus the infringement in this case goes to the heart of society's interest, that drinking and driving be reliably investigated. If the police are not able to do that, then we are all vulnerable. My view is that in this case, the third ground as well weighs in favour of excluding the evidence.

Decision

[30] For the foregoing reasons, I am allowing the application and excluding the evidence. As a consequence, the Crown's case fails, and I am dismissing the charge.

Decision: May 7, 2015

Ruling Released: May 14, 2015

Signed: Justice S.R. Shamai