Court File and Parties

Ontario Court of Justice

Date: 2016-09-21

Court File No.: Halton 15-573

Between:

Her Majesty the Queen

— and —

Kayla Eastwood

Before: Justice D. A. Harris

Heard on: April 27 and July 25, 2016

Reasons for Judgment released on: September 21, 2016

Counsel:

• Erinn O'Marra, for the Crown
• Peter Dotsikas, for the defendant Kayla Eastwood

Judgment

HARRIS J.:

Background and Charges

[1] Kayla Eastwood was originally charged with operating a motor vehicle in the City of Burlington on May 8, 2015 when (1) her ability to operate a motor vehicle was impaired by alcohol, and (2) her blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of her blood.

[2] Crown counsel elected to proceed summarily.

[3] Ms. Eastwood pled not guilty and a trial was held.

[4] Ms. Eastwood had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.

[6] Provincial Police Constable Kevin Westhead testified for the Crown. Certain admissions were made on behalf of Ms. Eastwood. At the end of the Crown's case, Crown counsel invited me to dismiss the impaired operation charge and I did so.

[7] That then left the "over 80" charge.

[8] There is no issue that Ms. Eastwood was operating her motor vehicle in Burlington on May 8, 2015 or that the two Intoxilyzer tests both showed results of 190 milligrams of alcohol in 100 millilitres of her blood.

[9] The issue before me is whether the breath results referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

Charter Application Issues

[10] More particularly with respect to the Charter application, counsel for Ms. Eastwood argued that the results from the approved screening device test should be excluded on the basis that Constable Westhead did not have the reasonable suspicion necessary to make an approved screening device demand, thereby infringing Ms. Eastwood's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter.

[11] He further argued that in the absence of that result, Constable Westhead did not have the reasonable and probable grounds necessary to make the ensuing approved instrument demand, further infringing Ms. Eastwood's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter.

[12] Further complicating the issues he argued that even with the results of the approved screening device test, Constable Westhead still did not have the necessary reasonable and probable grounds. In either event, I should exclude the Intoxilyzer results from evidence.

Legal Framework: The Continuum of Standards

[13] 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. 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 and probable 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."

[14] I propose to review the law regarding each of these issues in what some may consider to be reverse order. I will then analyze the facts of this case in the context of the law.

SECTION 8 CHARTER ANALYSIS

The Right to Be Secure Against Unreasonable Search and Seizure

[15] Section 8 of the Canadian Charter of Rights and Freedoms provides that "Everyone has the right to be secure against unreasonable search or seizure".

[16] In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or a seizure was reasonable.

[17] The relevant portions of section 254(3) of the Criminal Code provide that:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person …

(a) to provide, as soon as practicable, …

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, ...

[18] So, to demonstrate compliance with section 254(3), the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

The Standard of Reasonable and Probable Grounds

[19] The legal test for reasonable and probable grounds is not a high one. It is more than a mere suspicion, and less onerous than a prima facie standard.

[20] It is a fact based analysis of the totality of the circumstances the arresting officer had in mind. The officer is entitled to disbelieve and disregard any evidence disbelieved. However, the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.

[21] There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds.

[22] A trained police officer is entitled to draw inferences and make deductions drawing on experience. A trial judge is entitled to take that experience and training into account in assessing whether he objectively had reasonable and probable grounds.

[23] Constable Westhead's grounds for making the Intoxilyzer demand here were based on the fact that Ms. Eastwood had provided a sample of her breath into an approved screening device which registered a "fail".

[24] The burden of persuasion is also on the Crown to show on a balance of probabilities that the taking of that sample of breath into the approved screening device was also reasonable.

The Standard of Reasonable Suspicion

[25] The relevant portions of section 254(2) of the Criminal Code provide that:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within the preceding three hours, operated a motor vehicle ... the peace officer may, by demand, require the person ....

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

[26] The Supreme Court of Canada reviewed the reasonable suspicion standard in R. v. Chehil. That case involved the use of a sniffer dog by police with respect to luggage on a domestic flight in Canada where the same standard is applicable. In that decision Karakatsanis J. noted that "Parliament has employed this standard when authorizing certain searches in legislation" including section 254.

[27] Karakatsanis J. stated the following:

[28] The reasonable suspicion standard requires that the entirety of the circumstances, inculpatory and exculpatory, be assessed to determine whether there are objective ascertainable grounds to suspect that an individual is involved in criminal behaviour. It does not require the police to investigate to rule out exculpatory circumstances.

[29] Reasonable suspicion must be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny which is exacting, and must account for the totality of the circumstances.

[30] She cited the reasons of Binnie J. in R. v. Kang-Brown, where he provided the following definition of reasonable suspicion:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. [emphasis added]

[31] Reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, but reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime.

[32] Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. A police officer's grounds for reasonable suspicion cannot be assessed in isolation.

[33] Reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

[34] Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion.

[35] However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations.

[36] It is not permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search.

Application to the Facts: Reasonable Suspicion

[37] There is no question that Constable Westhead believed that Ms. Eastwood had been operating a motor vehicle within the requisite time period. He saw her driving. He stopped her for a valid reason.

[38] Counsel for Ms. Eastwood argued however that Constable Westhead did not subjectively have a reasonable suspicion that Ms. Eastwood had alcohol in her body. Further, any such suspicion would not have been objectively reasonable in any event.

[39] I agree.

[40] Constable Westhead never said in his evidence that he had a reasonable suspicion that Ms. Eastwood had alcohol in her body.

[41] I am aware that it may not be necessary for him to say precisely that he had a reasonable suspicion that she had alcohol in her body. Several decisions from the Superior Court of Justice have made it clear that it is an error to require an officer to articulate the words of s. 254(2) "alcohol in the body", or to find that anything less than an expression of these words fails to meet the standard of proof. Rather:

the proper determination of whether [the officer's] subjective state of mind met the standard should have been based on the totality of the evidence presented and not solely on whether he articulated the precise words of Section 254(2). To find otherwise would result in an inappropriate and unjustified reliance on the 'magic words'.

[42] My task in this case then is to make a proper determination of whether Constable Westhead's subjective state of mind met the standard based on the totality of the evidence presented and not solely on whether he articulated the precise words of section 254(2).

[43] In approaching this task, I am mindful that reasonable suspicion is an extremely low threshold to satisfy. It only allows an investigator to demand an approved screening device sample. A "fail" on the approved screening device does not constitute an offence. It cannot be used as evidence of an offence. The "fail" simply provides reasonable and probable grounds to believe that an excess alcohol offence may have occurred and therefore justifies the making of a demand for breath samples that can be used as evidence. As I stated earlier, reasonable and probable grounds can be viewed as a rather low threshold itself but it is a higher standard than the reasonable suspicion called for here.

[44] Even keeping all of this in mind, I am not satisfied that Constable Westhead had a reasonable suspicion that Ms. Eastwood had alcohol in her body.

[45] This was not a case where Constable Westhead failed to use precise or "magic" words to describe any belief or suspicion held by him. He did not refer to any such belief or suspicion at all. He testified as to what he had observed and that he then made an approved screening device demand. More particularly, he testified:

I observed a blue Mazda motor vehicle in lane three ahead of my cruiser. I observed that vehicle to be weaving back and forth within its lane and then cross over partially into lane four. Now, that type of driving behaviour at that time of night gives me concern for the potential of some form of impairment so I continued to observe it.

[46] He observed this over a period of approximately ten seconds.

[47] He then went on to state:

So as I mentioned, the vehicle did partially weave over into lane four but back into its own lane in lane three. So I proceeded to come alongside that vehicle and I observed a female driver at the time. I did observe that that female driver had been just holding a cell phone and it looked like she was just hanging it up. The illuminated screen of the cell phone was clearly observed from my passenger side window into the driver's side window of her vehicle. A moment's indulgence.

I subsequently stopped that vehicle on the right shoulder with my cruiser placed behind it. I approached the passenger-side window of the vehicle and observed the female driver had rolled down the front passenger-side window in order to talk to me, communicate with me. I further observed at that time that she did have red, glossy eyes; another possible indication to me of potentially alcohol consumption. In conversation with her I did learn that she had just earlier, according to her, had had an argument with someone and was very upset about it. It appeared to have just been or just started to cry. When inquiring about alcohol consumption she did admit to me that she had consumed alcohol earlier.

There was a large dog in the back of the vehicle. I was unfamiliar with the animal, though in my experience when it comes to animals in vehicles I tend to stay away from them because I've found that dogs don't particularly like people in uniform, certain dogs, anyway. So I normally, when conducting an investigation of this nature when I'm concerned about alcohol and possible impairment I would have my head stuck right in the car because it's very easy and quick to pick-up on an odor of alcohol. But because of that dog being in the back and readily accessible to, you know, to who knows what, if I stuck my head in the window. I was obviously hesitant to do so, so I stayed back from the window while conversing with the driver at that time.

The driver did verbally identify herself as a Ms. Kayla Eastwood, the accused here today. And having admitted to the alcohol consumption, as well as my previous observations of the weaving and the red, glossy eyes I made an ASD demand.

[48] Crown counsel asked me to infer from what he did say, that Constable Westhead did have a reasonable suspicion. Section 254(2) requires that he have such a suspicion before he can make an approved screening device demand. He made such a demand. He would not have done so without a proper basis. Accordingly, I should infer from these facts that he must have formed the necessary reasonable suspicion.

[49] I am not prepared to adopt such circular reasoning in this particular case.

[50] By his own admission Constable Westhead was "at the end of a 12 hour shift and probably not in his sharpest state". I do not know if that is the reason but I did find that Constable Westhead was rather casual in his approach to this investigation.

[51] He had an approved screening device with him that night. In fact he had exclusive use of that device for the eight months prior. Despite that he could not tell us what the serial number was for that device. He did not have it recorded anywhere. He could not tell us when it had last been calibrated or by whom. He had not recorded that information either. He did not even refer to it by the name listed in the regulations (Drager Alcotest 6810) but used an abbreviated description (Alcotest 6810).

[52] These facts do not impact directly on his evidence. An officer is not required to refer to the device by its particular brand and number or otherwise identify it. It is not necessary for the Crown to prove that the approved screening device had been properly calibrated. It is sufficient if the administering officer reasonably believes this to be true. In the absence of evidence to the contrary, I can conclude that his belief is reasonable.

[53] My concern here is that Constable Westhead did not simply fail to provide particulars as to the serial number or any information as to when the device was last calibrated and by whom. Rather he consciously chose to keep no record of this information. That leaves us with nothing more than his statement "Trust me, I made sure that the device was properly maintained". However counsel for Ms. Eastwood, and anyone else, had no way of verifying or contradicting that testimony because Constable Westhead has left no record showing where counsel might even begin to look for such information.

[54] This is in stark contrast to the fact that Constable Westhead did record the odometer readings showing his departure from the scene and his arrival at the police station. So he did know that it was important to record information, even information that many of us might consider to be unimportant and unnecessary. However, he apparently did not think that information about the serial number or the calibration of the approved screening device was important enough to warrant including in his notes.

[55] Constable Westhead's grounds must "be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest."

[56] I am not satisfied that a reasonable person would accept Constable Westhead's unsubstantiated testimony about the approved screening device being properly calibrated when he himself had made it impossible for anyone to either verify or discredit this. He was the one who chose not to identify which specific device he used or who had calibrated it. Under those circumstances, he cannot shield himself with the absence of evidence that he himself had made impossible for an accused person to obtain.

[57] In that regard, I note that while Constable Westhead had only been a police officer for three years, he had considerable experience with drinking / driving investigations and should have known better. Instead, he created an unfair situation.

[58] In light of all of these factors, I am not prepared to infer that Constable Westhead formed the necessary suspicion in this case.

[59] Further, I am also not satisfied that such a suspicion would have been objectively reasonable in any event.

[60] He observed the vehicle weaving on the roadway. He observed a cell-phone in the driver's hand in circumstances that were at the least highly suggestive of the fact that she was using it. At some point he testified that he thought that the weaving was more consistent with impairment by alcohol than with distracted driving but he provided no explanation or evidentiary basis for this opinion.

[61] He observed the driver to have red glossy eyes, consistent with either alcohol consumption or with recent crying. He testified that she appeared to be crying at that time.

[62] He did not note any problems with her speaking, or her comprehension of what he had to say, or with her ability to provide him with her documents.

[63] He did not smell alcohol coming from her or the vehicle.

[64] He did not follow his usual practice of sticking his head into the car in order to better smell any odours that might be present. He did not do so because of the presence of a big dog in the car. That was a sensible decision on his part, but he also did not ask her to step out of the car or go back to his car so that he could better smell her breath away from the dog.

[65] She admitted to consuming alcohol earlier. Ordinarily, I am inclined to give police officers considerable leeway with respect to what conclusions they draw from an admission of consumption of alcohol. In light of my earlier comments about the rather casual nature of this investigation, however, this is not an ordinary case. I am not satisfied that consumption of an unspecified amount of an unidentified alcohol at an undetermined time would not be enough to warrant a suspicion that alcohol was still present in Ms. Eastwood's body.

[66] In these circumstances Constable Westhead should have clarified what was meant by "consumed alcohol earlier". He did not. During cross-examination he testified that she had told him that she had been drinking at a bar with friends earlier, and that she had a glass of wine but he was unclear as to what was said before the making of the approved screening device demand and what was said afterwards.

[67] I am excluding the results of the approved screening device test from consideration as a factor in Constable Westhead forming his grounds to make an Intoxilyzer demand. My reasons for this are set out later in the section 24(2) analysis portion of this Judgment.

Application to the Facts: Reasonable and Probable Grounds

[68] It was clear from his evidence that, prior to obtaining those results, Constable Westhead did not form reasonable and probable grounds to believe that Ms. Eastwood had committed an offence and therefore lacked the grounds required before he could make an Intoxilyzer demand.

[69] I am also not satisfied that he had reasonable and probable grounds even with knowledge of the approved screening device test result.

[70] He never testified that he had such reasonable and probable grounds. In that regard, based on the totality of the evidence, I am satisfied that Constable Westhead's subjective state of mind met the standard despite his failure to articulate the precise words of section 254(3).

[71] I am not satisfied however that his subjective belief was objectively reasonable.

[72] With respect to his belief that Ms. Eastwood had committed an over 80 offence, I am not satisfied that the approved screening device was properly calibrated at the time. I have expressed my reasons for this earlier. I do note that Constable Westhead did testify that "if it wasn't up-to-date then I wouldn't have been able to utilize it". Unfortunately he never explained what he meant by that or why he believed it.

[73] With respect to his belief that she had committed an impaired operation offence, I note again that any bad driving occurred over a short period of time when Ms. Eastwood was apparently using her cell phone and likely was a distracted driver.

[74] Her red eyes were totally consistent with the fact that she was crying at the time.

[75] She had no problems walking or talking or providing her identification to Constable Westhead.

[76] He did not believe he had the necessary grounds before she failed the approved screening device test. That failure did not change the circumstances to anywhere near the requisite degree. There were no other new indicia of impairment present.

[77] In the end, I find that I am being asked to place too much trust in Constable Westhead.

[78] I am being asked to trust Constable Westhead that he did have a suspicion that Ms. Eastwood had alcohol in her body.

[79] I am being asked to trust him that the approved screening device in his sole possession for eight months was calibrated by a qualified person at the appropriate times.

[80] I am being asked to trust him as to which words Ms. Eastwood used when admitting to consuming alcohol earlier the evening before.

[81] I am being asked to trust him that he had reasonable and probable grounds to believe that her ability to operate a motor vehicle was impaired by alcohol when the totality of the evidence before me was such that even Crown counsel conceded at the end of her case that there was insufficient evidence for me to require Ms. Eastwood to answer to that charge.

[82] I am being asked to trust him that he did not make any more mistakes at the end of his long shift other than the ones he admitted to us.

[83] I am unable to do all this.

[84] In light of all of the above, I am satisfied that Constable Westhead infringed Ms. Eastwood's section 8 rights here.

[85] That then leaves the question as to whether I should exclude the evidence pursuant to section 24(2) of the Charter.

SECTION 24(2) ANALYSIS

[86] The test set out in R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

1. the seriousness of the Charter-infringing state 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.

[87] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Factor 1: Seriousness of the Charter-Infringing State Conduct

[88] In R. v. Grant, supra, the court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:

The first line of inquiry relevant to the s. 24(2) analysis requires a 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, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

[89] The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.

[90] Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.

[91] Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

[92] I am satisfied that the Charter breach here was a serious one.

[93] The proper use of approved screening devices by police officers is "central to the constitutional integrity of the two-step legislative scheme in sections 254(2) and 254(3) of the Criminal Code designed to combat drinking and driving offences".

[94] Further, there were a number of objectionable acts by Constable Westhead. He did not keep records that would enable anyone else to verify or contradict his evidence. He made the approved screening device demand without either a subjectively or an objectively valid suspicion. He further formed the opinion that Ms. Eastwood's ability to drive was impaired by alcohol without objectively reasonable grounds. I must consider all of these factors in conjunction with one another.

[95] The degree of seriousness of the Charter-infringing conduct here favours exclusion of the evidence.

Factor 2: Impact of the Breach on the Charter-Protected Interests of the Accused

[96] With respect to the second factor, the ensuing breath test was both minimally intrusive both in terms of what took place and the evidence obtained.

[97] In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant, supra that:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[98] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.

[99] I do note the comments of Ducharme J. of the Superior Court of Justice at paras. 60 through 62 in R. v. Au-Yeung, supra:

60 As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significant compelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the "biographical core of personal information" that is protected by s. 8. These factors favour the admission of the evidence.

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.

[100] In this case, Ms. Eastwood was arrested. She was not handcuffed. Constable Westhead brought her dog along with them to the police station. It certainly appeared to me that Constable Westhead was attempting to be as considerate as possible with her. However, she was in police custody for approximately two hours before she was released with a Promise to Appear. In light of Justice Ducharme's comments above, I too conclude that her personal liberty was interfered with to such a degree that the second branch of Grant also weighs in favour of exclusion of the evidence.

Factor 3: Society's Interest in the Adjudication of the Case on Its Merits

[101] As for the third factor, the offence is recognized to be a serious one. That is certainly true regarding cases where the accused person was operating her motor vehicle with a blood alcohol concentration of 190 milligrams of alcohol in 100 millilitres of blood. The societal interest in having a trial on the merits would usually favour admission here.

[102] I must also consider the fact that the evidence which Ms. Eastwood seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence." The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.

[103] I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.

Balancing the Factors

[104] As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[105] I must not give any one factor "an unjustified analytical pre-eminence" while doing this.

[106] I do note however the comments of Fish J. in R. v. Morelli, where he stated "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".

[107] In R. v. Beattie, Duncan J. stated:

Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.

[108] In R. v. Mehta, Lipson J. wrote:

Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system.

[109] I conclude that the long term interests of the administration of justice are better served by exclusion in this case.

[110] Accordingly, the results of the breath tests will be excluded from evidence.

[111] Without valid breath samples, neither the presumption of reliability nor the presumption of identity apply. Accordingly there is no evidence to make out the "over 80" offence and that charge is dismissed.

Released: September 21, 2016

Signed: Justice D.A. Harris