Court File and Parties

Court File No.: 15-00011 Central East Region-Newmarket Date: 2016-04-19 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ryan Maloney

Before: Justice Peter C. West

Evidence Heard: December 18, 2015 Submissions Heard: December 18, 2015 and February 23, 2016 Reasons for Judgment: April 19, 2016

Counsel:

• Ms. S. Kumaresan, for the Crown
• Mr. B. Brody, for the accused

WEST J.:

Introduction

[1] On January 1, 2015, Ryan Maloney was charged that having consumed alcohol in a quantity such that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, he had the care or control of a motor vehicle and did thereby commit an offence under s. 253(1)(b) of the Criminal Code of Canada. He pled not guilty and a trial was commenced.

[2] The Crown called one witness, P.C. Ryan Lewis. The defence brought a Charter application respecting a breach of ss. 8 and 9 of the Charter. The defence agreed the Crown need not call the qualified breath technician on the trial. The only issue was whether the investigating officer had a reasonable suspicion Mr. Maloney had alcohol in his body in order to make an ASD demand pursuant to s. 254(2)(b). The defence did not require the Crown to prove the qualified breath technician complied with all the requirements under s. 258 or that the Intoxilyzer 8000C was in proper working order. Further, the defence was prepared to admit Mr. Brent D. Cahill's Toxicology Report, which reflected breath readings between 130 and 180 milligrams of alcohol in 100 millilitres of blood at or between approximately 7:15 a.m. and 7:30 a.m.

[3] It was the defence position that if the Charter arguments failed the Crown would have proven the charge beyond a reasonable doubt. It was agreed by counsel the trial would proceed on a blended hearing respecting the various Charter applications. Mr. Brody argued if the officer did not have a reasonable suspicion then the ASD result should be excluded and if the ASD result was excluded the officer would not have reasonable and probable grounds to make a breath demand pursuant to s. 254(3)(a), in which case the Intoxilyzer results should also be excluded. Mr. Brody also alleged ss. 9 and 10(b) Charter breaches by the investigating officer.

[4] The certificate of a qualified technician, which reflected breath readings of 140 milligrams of alcohol in 100 millilitres of blood and 130 milligrams of alcohol in 100 millilitres of blood obtained at 09:29:12 and 09:50:59 respectively, was marked as Exhibit 1 and the CFS Toxicologist's report was marked as Exhibit 2.

[5] The defendant did not testify. The defendant did not adduce any evidence.

Factual Background

[6] On January 1, 2015, P.C. Lewis had been employed by York Regional Police for approximately one and a half years. He was working in a uniformed capacity driving a marked police cruiser. He was dispatched to Ninth Line and White's Hill Avenue in the City of Markham respecting a civilian's call to police concerning a motor vehicle in the eastbound lanes facing westbound. He received the dispatch call at 7:23 a.m.

[7] P.C. Lewis arrived at the location at 7:26 a.m. and observed the vehicle facing westbound in the eastbound lanes of White's Hill Avenue at the crosswalk. The vehicle was running when the officer approached it. The driver appeared to be sleeping as the driver's seat was slightly reclined and the vehicle was in park according to the gear shift.

[8] P.C. Lewis had to knock on the window several times before the driver woke up and put the window down. He asked the driver if he had anything to drink and the driver said, "No." The officer asked the driver to turn off the vehicle so he could not put it in motion.

[9] The officer asked the driver where he lived and the driver told the officer his mother had kicked him out of the house on Boxing Day and he had spent the night at a party at his friend's house. The officer asked for the driver's license and the driver provided it. The driver's license identified the driver as Ryan Maloney. The officer asked the driver to step out of the car and he observed Mr. Maloney was well dressed in nice jeans and a blazer as if he had been at a party. Mr. Maloney told the officer he had nowhere to go and was going to another friend's house to try and stay there.

[10] The officer noted Mr. Maloney had no difficulty speaking as he spoke clearly. He had no difficulties providing the driver's license or with his walking. The officer was unable to detect any odour of alcohol and part of the reason was because it was minus 17 degrees with a wind chill and the officer's nose was running and his eyes were watering. During the officer's conversation with the defendant, Mr. Maloney indicated he did have a couple of drinks the night before. This conversation occurred at the front of the police cruiser.

[11] As a result of his observations the officer testified he had a reasonable suspicion Mr. Maloney had possibly consumed alcohol the night before both by his comments and where the vehicle was located. P.C. Lewis testified he believed Mr. Maloney had been at a New Year's Eve party the night before. He testified he believed the alcohol consumption occurred sometime around midnight. As a result of forming this suspicion the officer read an approved screening device breath demand from the back of his notebook. The defence took no issue as to the wording of the ASD demand.

[12] P.C. Lewis testified as to everything he relied upon to come to his reasonable suspicion, namely, the vehicle being located in the eastbound lanes on the west side facing in the wrong direction, the driver being asleep at the wheel of the vehicle at 7:30 in the morning with the vehicle running and it was New Year's morning so New Year's Eve was the night before. Further, P.C. Lewis referred to the fact Mr. Maloney's vehicle was stopped in the two live eastbound lanes of White's Hill Avenue, straddling the dotted line as part of his grounds.

[13] The defence took no issue respecting the proper operation of the ASD, its calibration date or that it was an approved instrument.

[14] Mr. Maloney blew into the ASD and registered a fail at 7:33 a.m. The fail indicated to P.C. Lewis that Mr. Maloney had more than 80 milligrams of alcohol in 100 millilitres of blood and was over the legal limit. He placed Mr. Maloney under arrest at 7:33 a.m. Mr. Maloney was handcuffed, searched incident to arrest and placed into the rear of the police cruiser. P.C. Lewis then read Mr. Maloney his right to counsel, caution and breath demand. The defence took no issue with the wording. The right to counsel was read at 7:42 a.m., the caution at 7:44 a.m. and the breach demand at 7:45 a.m.

[15] After Mr. Maloney was arrested at 7:33 a.m. P.C. Lewis requested a second officer attend at his location to look after the impounding of Mr. Maloney's vehicle. The second officer arrived prior to P.C. Lewis reading the right to counsel to Mr. Maloney.

[16] Mr. Maloney's vehicle was over the dotted line of the two eastbound lanes facing westbound with half his vehicle in each lane. As a result of the position of Mr. Maloney's vehicle, which was obstructing traffic, P.C. Lewis was outside his police vehicle directing traffic around Mr. Maloney's vehicle as he testified a number of the drivers proceeding eastbound were unsure of what was going on and what they should do. P.C. Lewis testified his directing traffic around the police cruiser and Mr. Maloney's vehicle could be observed on the in-car camera of P.C. Lewis' police cruiser, which was also blocking one of the eastbound lanes, with his emergency lights activated. The video was not played during the trial.

[17] In cross-examination the officer testified there was an island separating the east and westbound lanes of White's Hill Avenue at Ninth Avenue. Mr. Maloney's vehicle was straddling both of the eastbound lanes.

[18] The officer agreed he saw no signs of impairment, no red eyes, no dexterity problems, and did not detect any odour of alcohol on Mr. Maloney's breath. His notes indicated the driver told him he was going to a friend's house.

[19] The officer agreed his "rough" or "first set" of notes indicated Mr. Maloney, after the arrest, said he had some drinks six or seven hours earlier. P.C. Lewis had written in his police notebook, while events were unfolding, brief notes of what occurred. Back at the police station he later wrote a more fulsome set of notes using the first set of notes and his recollection of the events. He agreed, based on his first set of notes, it was possible Mr. Maloney admitted drinking after the demand and fail was registered on the ASD. It was P.C. Lewis' position he would have given the ASD demand because of the placement of Mr. Maloney's vehicle.

[20] P.C. Lewis testified he made the demand because of the position of the car, where Mr. Maloney was, that he was sleeping and it was New Year's Day. P.C. Lewis testified he did not know the "attrition rate of alcohol." He agreed he could have waited for another police officer to arrive on scene as he could not smell any alcohol because his nose was running and it was very cold, minus 17 degrees Celsius.

[21] P.C. Lewis testified he believed he asked Mr. Maloney if he had been at a party the night before. His notes indicated Mr. Maloney was well dressed. He agreed his notes only indicated Mr. Maloney said he was coming from a friend's. He agreed it was possible he assumed Mr. Maloney had been at a party the night before. P.C. Lewis did not agree with counsel's suggestion he only had a hunch and maintained he had a suspicion. He agreed a suspicion is to be based on evidence and again reiterated there was evidence of where the car was located and Mr. Maloney was sleeping. P.C. Lewis agreed there were other possibilities which pointed away from Mr. Maloney drinking alcohol at a party.

[22] P.C. Lewis testified he was directing traffic because of safety concerns given where Mr. Maloney's vehicle was located.

Position of the Parties

[23] At the conclusion of the evidence the Crown advised she was conceding a s. 8 breach respecting P.C. Lewis' reasonable suspicion in terms of his grounds; however, she submitted the breath readings obtained by the qualified breath technician should not be excluded pursuant to s. 24(2) of the Charter. I indicated to the Crown I was of the view, based on a number of cases I was aware of, that an officer's reasonable suspicion was not an onerous test and I would want to hear argument from the Crown as to why she was conceding the officer did not have a reasonable suspicion Mr. Maloney had alcohol in his body. Ms. Kumaresan agreed I did not have to accept the Crown's concession.

[24] Mr. Brody submitted he did not understand if the Crown was conceding a Charter breach why I was asking counsel to make submissions on whether the totality of the circumstances provided a basis for the officer to form a reasonable suspicion Mr. Maloney had alcohol in his body or did not, which would be a breach of s. 8.

[25] Mr. Brody also argued Mr. Maloney's s. 9 Charter right, not to be arbitrarily detained, was infringed as a result of P.C. Lewis requiring Mr. Maloney to provide a sample of his breath into an ASD when he did not have the requisite reasonable suspicion. Mr. Brody argued the delay in reading Mr. Maloney's right to counsel and breath demand, while P.C. Lewis directed traffic around Mr. Maloney's vehicle and the police cruiser, resulted in further breaches of ss. 8 and 9.

[26] Finally, the defence argued the officer infringed Mr. Maloney's s. 10(b) Charter rights by not advising him immediately after his arrest of his right to retain and instruct counsel without delay as a result of remaining outside the police cruiser directing traffic and waiting for a second officer to arrive. Mr. Brody concedes the police properly facilitated Mr. Maloney's right to counsel at the police station; the breach was in P.C. Lewis delaying the reading of the right to counsel for a short period of time.

[27] It is the defence position the culmination of several Charter breaches requires the breath readings to be excluded; otherwise the administration of justice would be brought into disrespect.

[28] On February 23, 2016, the Crown once again conceded a breach of s. 8 of the Charter, although she submitted the decision of whether there was a breach of s. 8 remained with the Court. It was her position the uncertainty of when the admission by Mr. Maloney of consuming alcohol the previous night removed that piece of information from the circumstances used by P.C. Lewis in forming his reasonable suspicion.

[29] Her submission was despite the breach of s. 8 the breath readings should be admitted into evidence upon a consideration of the three factors in R. v. Grant, 2009 SCC 32. Further, she argued there was no breach under s. 10(b) as Mr. Maloney was provided his right to counsel and he exercised his right to counsel at the police station. The delay in reading the right to counsel was caused by the position of Mr. Maloney's vehicle and the officer's concern for safety both to Mr. Maloney's vehicle and the other drivers travelling on White's Hill Avenue. The Crown argued even if there was a s. 10(b) breach it was technical as Mr. Maloney spoke to counsel at the station and, applying the three factors in Grant, would lead to the breath results being admitted.

Analysis

[30] Section 254(2) permits a police officer to require a motorist to provide a sample of their breath into an approved screening device where the officer has a reasonable suspicion that the individual has been operating or has care or control of their motor vehicle with alcohol in their body. However, it is not necessary that the officer believe the driver has committed any criminal offence, see R. v. Lindsay.

[31] Mr. Brody concedes it was appropriate for P.C. Lewis to investigate Mr. Maloney's vehicle being in the eastbound lanes facing westbound at the crosswalk on White's Hill Avenue at Ninth Avenue. He argues P.C. Lewis' suspicion that Mr. Maloney had alcohol in his body was not subjectively reasonable. Consequently, there was no statutory basis, pursuant to s. 254(2) of the Criminal Code, for the police to make an ASD breath demand and thus the ASD demand was improper resulting in a breach of s. 8 of the Charter.

[32] Mr. Brody in his submissions seemed to suggest there are certain preconditions that must be present in order for an officer to form the requisite reasonable suspicion for the approved screening device demand to be valid. On numerous occasions during his submissions he pointed to the lack of any odour of alcohol being detected by P.C. Lewis and the fact he did not observe any indicia of impairment or bad driving.

[33] I was provided a number of cases by counsel dealing with what other judges have considered sufficient grounds for a police officer forming a reasonable suspicion a motorist has alcohol in their body. While the fact scenarios of other cases are informative it would be an error to try to "pigeon hole" the facts of a case with those fact situations. As expressed by Wright J. in R. v. Defend, [2010] O.J. No. 2406 (ONCJ), at para. 18, "In all of the cases I have reviewed there is simply no support for the notion that a specific precondition, such as an odour of alcohol or an admission of consumption must be present before an approved screening device demand will be valid." Actually, appellate authority is to the contrary.

[34] In fact, the Ontario Court of Appeal has held it is not a precondition to a valid ASD demand that the driver have the odour of an alcoholic beverage on his or her breath, see R. v. Zoravkocic, [1998] O.J. No. 2668 and R. v. Hryniewicz, [2000] O.J. No. 436.

[35] In R. v. Singh, [2006] O.J. No. 5133 (Ont. S.C.), Durno J. in finding no preconditions were required to enable a police officer to form a reasonable suspicion made these additional observations, which I adopt:

Even when the test is proof beyond a reasonable doubt there is no requirement that there be any odour of alcohol on the driver's breath or an admission of drinking. For example, in R. v. Collins, [2004] O.J. No. 4249 the Court of Appeal upheld the Summary Conviction Appeal judgment dismissing an appeal from conviction for "impaired operation" where the evidence was the accused, who upon being stopped had slurred speech, drove his car at a high rate of speed towards a police officer before stopping abruptly (see para. 13).

[36] Justice Wright found the law to be clear, "there is no specific indicator of alcohol consumption that is a prerequisite to the formation of reasonable suspicion." (R. v. Defend, supra, at para. 21.) I agree. What a trial judge must examine is the totality of the circumstances to determine whether they provide an objectively reasonable basis for the officer's suspicion. In R. v. Singh, supra, at para. 14, Justice Durno held:

The only issue was whether that suspicion was objectively reasonable. In making that determination, while all of the facts known to the officer have to be considered, the constable is not required to conduct a trial of the indicia and determine if he or she has reasonable and probable grounds to believe an offence has been committed or whether he or she is satisfied beyond a reasonable doubt that the driver is impaired or has alcohol in their body. Indeed, observations of overt indicia of impairment or consumption are not prerequisites to making an ASD demand.

See also R. v. Mac, [2008] O.J. No. 1334 (Brewer J. Ont. C.J.).

[37] In R. v. Biggs, [2015] O.J. No. 1334 (Ont. C.J.), Tuck-Jackson J. provides a useful summary of the various propositions of law, which can be gleaned from appellate authority, respecting what constitutes "reasonable suspicion" as to the presence of alcohol in a detainee's body.

(1) Reasonable "suspicion" deals with "possibilities" as opposed to "probabilities", See: R. v. Chehil, 2013 SCC 49, at para 28. Reasonable suspicion means "reasonable grounds to suspect" as distinguished from "reasonable grounds to believe". To the extent one speaks of a "reasonable belief' in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as oppose to a reasonable belief than an individual is connected to the offence. See: R. v. MacKenzie, 2013 SCC 50, at para 74.

(2) "Reasonable suspicion" requires that the officer have an honestly held belief as to the presence of alcohol in the suspect's body and that the belief be reasonably held.

(3) 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. A police officer's grounds for reasonable suspicion cannot be assessed in isolation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience. Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not - indeed must not - devolve into a scientific or metaphysical exercise. Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer. See: R. v. Chehil, supra, at para 29; and R. v. MacKenzie, supra, at para 73.

(4) "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. See: R. v. Chehil, supra, at 132.

(5) 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. 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. See: R. v. Chehil, supra, at paras 33-34; and R. v. MacKenzie, supra, at paras 71-72.

(6) The significance of strict construction and sound evidentiary proof in the context of enforcing a conscriptive provision such as s. 254(2) should not be understated. In this respect, the "reasonable suspicion" prerequisite in this provision should be interpreted and applied with care. See: R. v. Martin, [2005] O.J. No. 670 (Sup. Ct.), at para 10; and

(7) In the context of a demand made pursuant to s. 254(2), an officer can, in law, reasonably suspect that a detainee has alcohol in his or her system, even in the combined absence of the odour of breath alcohol and an admission of alcohol consumption. See: R. v. Zoravkovic, [1998] O.J. No. 2668 (C.A.), at para 2. Indeed, trial courts have reached this very conclusion relying upon a combination of indicators, which jointly or severally, are consistent with the consumption of alcohol, including manner of driving, manner of speech, co-ordination/gross and fine motor skills, responsiveness, evasiveness, physical presentation, and demeanour. See, for example, R. v. Defend; R. v. Otchere, 2013 ONCJ 14; R. v. Gill, [2014] A.J. No. 327 (Prov. Ct.); and R. v. Larocque, [2014] O.J. No. 5360 (Ct. Just).

[38] In Kang-Brown, 2008 SCC 18, Justice Binnie provided the following definition of reasonable suspicion in para. 75:

…"reasonable suspicion" 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 mere suspicion and something less than a belief based upon reasonable and probable grounds.

[39] Further on in the same judgment at paras. 45 and 46, addressing the issue of judicial scrutiny:

The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent, after-the-fact review by the court and protects against arbitrary state action. Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that, a reasonable person standing in the shoes of the police officer would have held a reasonable suspicion of criminal activity. Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on, "factual elements" which can be adduced in evidence permitted an independent judicial assessment.

[40] P.C. Lewis was quite candid in admitting he did not detect the odour of an alcoholic beverage coming from Mr. Maloney while he was speaking to him. He testified he considered the fact he did not detect the odour of alcohol coming from Mr. Maloney's breath and provided an explanation of the extreme cold and his having a plugged nose because of a cold. He was clear in the circumstances that caused him to reasonably suspect Mr. Maloney had alcohol in his body. I find P.C. Lewis subjectively believed Mr. Maloney had been consuming alcohol the previous evening, New Year's Eve. Mr. Brody conceded the officer honestly believed he had a reasonable suspicion Mr. Maloney had alcohol in his body. The only issue to be determined is whether his belief was objectively reasonable by examining the totality of the circumstances which were present.

[41] P.C. Lewis testified he received a dispatch at 7:23 a.m. about a car in an intersection facing the wrong way and it was referred to as "check welfare." When P.C. Lewis approached the car he testified he knocked on the window several times before the driver woke up. He agreed in cross-examination his notes only indicated he knocked on the window and the driver woke up and put the window down. Mr. Brody takes issues with the officer's evidence in-chief and submits I should draw an adverse inference respecting P.C. Lewis' credibility. I do not draw that conclusion as I found P.C. Lewis overall to be a very credible and reliable witness. He was not evasive in his answers and provided observations which were favourable to Mr. Maloney. I found P.C. Lewis did not attempt to embellish or exaggerate any of his observations.

[42] In his evidence in-chief, P.C. Lewis testified Mr. Maloney said he had a couple of drinks the previous night when he was standing in front of the police cruiser, although he agreed his notes were unclear whether this comment was made before or after the ASD demand and the "Fail." In cross-examination P.C. Lewis agreed it was possible Mr. Maloney made this comment after he failed the ASD test. Although I was advised by Mr. Brody there was an in-car video, it was not played or filed as an exhibit during the trial. It is my view this evidence should not form part of the circumstances forming the basis of the officer's reasonable suspicion. I do not agree with Mr. Brody's characterization of this evidence as seriously affecting and damaging P.C. Lewis' credibility. I find P.C. Lewis was quite candid in agreeing there was a possibility this conversation could have occurred after the "Fail." If P.C. Lewis had maintained this conversation with Mr. Maloney occurred prior to the ASD demand this alone would have provided a basis for his reasonable suspicion. I do not, however, take this evidence into account in assessing the reasonableness of P.C. Lewis' suspicion given P.C. Lewis' evidence this information was possibly provided after the ASD test.

[43] P.C. Lewis testified the following circumstances caused him to reasonably suspect Mr. Maloney had alcohol in his body: the position of Mr. Maloney's car straddling the two eastbound lanes of White's Hill Drive, facing westbound, the fact Mr. Maloney was sound asleep in the driver's seat, the car was running and the car was found in this position at approximately 7:30 a.m., the day after New Year's Eve.

[44] In addition to these circumstances Mr. Maloney advised the officer he had been at a friend's house the previous night and he was "well-dressed," wearing nice jeans and a blazer, which caused P.C. Lewis to believe Mr. Maloney had been at a New Year's Eve party the previous night and early morning hours. Further, when P.C. Lewis asked Mr. Maloney where he was living Mr. Maloney advised his mother had kicked him out of her home on Boxing Day and he was on his way to another friend's house to see if he could stay there. Mr. Maloney also told the officer he sometimes was forced to sleep in his car.

[45] It is my view these additional circumstances can be taken into account in determining whether the officer's suspicion was objectively reasonable. Mr. Brody argued there were a number of other reasonable explanations for why Mr. Maloney's vehicle was located in the manner it was on White's Hill Drive that did not involve the consumption of alcohol. While this may be true, P.C. Lewis was not required to seek out exculpatory explanations or rule out possible innocent explanations. The issue is whether, on the totality of the circumstances presented, a reasonable person would suspect Mr. Maloney had alcohol in his body. As I have indicated above a police officer can, in law, reasonably suspect that a detainee has alcohol in his or her system, even in the combined absence of the odour of breath alcohol and an admission of alcohol consumption.

[46] On the totality of the circumstances it is my view P.C. Lewis' suspicion was objectively reasonable. I do not agree with Mr. Brody's characterization of P.C. Lewis forming a hunch and as a result making a demand pursuant to s. 254(2). It is my opinion the entirety of the circumstances gives rise to something more than mere suspicion. Therefore, it is my view the Crown's concession that there was a s. 8 breach is in error as I find P.C. Lewis' suspicion was subjectively and objectively reasonable and the defence Charter application as to the ss. 8 and 9 breaches is dismissed.

[47] It is my view P.C. Lewis did not breach Mr. Maloney's ss. 8 and 9 Charter rights as a result of delaying the right to counsel and breath demand. The delay was for a short period of time until the second officer arrived and it occurred because of safety concerns for Mr. Maloney's car and other motorists' vehicles who were trying to proceed on White's Hill Avenue. Section 254(3) indicates where a police officer has formed reasonable and probable grounds the person has more than 80 mg of alcohol in 100 ml of blood the officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, samples of their breath into an approved instrument. The section does not require the demand to be made forthwith. The Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time (see R. v. Squires, at para. 31; R. v. Vanderbruggen, at paras. 12 and 13; R. v. Singh, 2014 ONCA 293, at paras. 14 and 15; R. v. Phillips). In this case the exigencies of the circumstances presented to the officer necessitated the officer to delay the breath demand for a short period of time. It is my view this was reasonable and does not, in any way, amount to a breach of ss. 8 or 9 of the Charter.

[48] With respect to whether P.C. Lewis infringed Mr. Maloney's right to counsel, I am of the view there was no breach of s. 10(b) as it was necessary for safety reasons for the officer to direct traffic around Mr. Maloney's car, which was clearly obstructing other drivers by being stopped in the two "live" eastbound lanes. P.C. Lewis had to do this until a second officer attended the scene to take over this responsibility until a tow truck arrived to remove Mr. Maloney's car. Mr. Maloney was advised of his right to counsel as soon as it was practically possible for the officer to do so. He exercised his right to counsel at the police station by speaking to counsel after the booking.

[49] Consequently, all of the Charter applications are dismissed and the two breath samples of 140 and 130 are admitted.

[50] Even if I was satisfied that Mr. Maloney's rights had been infringed, respecting whether P.C. Lewis had a "reasonable suspicion," I would not have excluded the evidence pursuant to section 24(2) of the Charter.

[51] The test set out in R. v. Grant, 2009 SCC 32, at para. 71, 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.

[52] Under the first prong of the test, the court must consider whether admitting the evidence would send a message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe and deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to dissociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence (see R. v. Grant, supra, at paras. 72-75; R. v. Rehill, 2015 ONSC 6025, at para. 28).

[53] It would be difficult to characterize P.C. Lewis' actions as wilful, deliberate or flagrant disregard for Mr. Maloney's Charter rights. I agree with the Crown's submission that P.C. Lewis' conduct comes down to poor note taking by a young police officer. This is not a case whether the officer is caught out in a lie, where he fabricated an admission of alcohol consumption. In this case P.C. Lewis' notes were not clear and he candidly and fairly conceded it was possible the admission of consumption was after the ASD result of "Fail." I find this is not an egregious or flagrant or deliberate conduct on the part of P.C. Lewis.

[54] P.C. Lewis was presented with a number of circumstances, outlined above, that pointed to alcohol being a factor. P.C. Lewis believed he had a reasonable suspicion and acted in good faith in making the ASD demand. There was very little time elapsed from when he formed his reasonable suspicion and the "Fail" and his placing Mr. Maloney under arrest for over 80. He formed his suspicion at 7:30 a.m. and made the ASD demand. At 7:33 a.m., Mr. Maloney blew into the ASD and it registered a "Fail." P.C. Lewis arrested Mr. Maloney at 7:33 a.m.

[55] P.C. Lewis, following the arrest and the arrival of the second officer, fully and properly advised Mr. Maloney of his right to counsel and his right to counsel was properly facilitated once they arrived at the police station. The evidence and concessions by the defence reflect Mr. Maloney, at all times, was treated with dignity and respect. I find P.C. Lewis did not deliberately violate any constitutional guarantee.

[56] The low degree of seriousness of any Charter infringing conduct here favours the admissibility of the breath samples obtained.

[57] As to the impact of the Charter violation, the second prong of the legal test under Grant, the court must assess the extent to which a breach undermines the Charter-protected interests of the accused. The impact of the Charter violation may range from "fleeting and technical to profoundly intrusive." Of course, the more serious the impact on those constitutionally protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts must examine the interests engaged by the infringed Charter right and consider the degree to which the Charter violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, supra, at paras. 76-78.

[58] In R. v. Rehill, supra, at paras. 34 and 36, Justice Campbell made the following comments, which I adopt:

34 The collection of the respondent's breath samples for analysis was accomplished by means of an "approved instrument" within the meaning of s. 254(1) of the Criminal Code. This procedure has long been judicially acknowledged as a relatively non-intrusive procedure, which has no more than a slight impact upon the Charter-protected interests of motorists.

36 Of course, more recently, in R. v. Grant, the leading judgment of the Supreme Court of Canada interpreting the governing principles under s. 24(2) of the Charter, McLachlin C.J.C. and Charron J., writing for the majority of the court, at para. 111, described the collection of breath sample evidence in drinking and driving cases as a "relatively non-intrusive" procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the accused [emphasis added]. Accordingly, the second factor in the s. 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples. See R. v. Taylor, 2010 ONSC 4850, 1 M.V.R. (6th) 103, at para. 44, leave denied, 2011 ONCA 681, [2011] O.J. No. 4838; R. v. McDowell, 2012 ONSC 7028, 40 M.V.R. (6th) 317, at paras. 50-54. Indeed, in R. v. Grant, at para. 111, the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive."

[59] I find the collection of Mr. Maloney's breath samples by means of an approved screening device was a relatively non-intrusive procedure which had a minimal impact on the respondent's Charter-protected interests. The same observation has been made by the Supreme Court in Grant, supra, at para. 111, respecting the taking of breath samples with an approved instrument:

…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.

[60] It is my view the second factor favours the admission of the Intoxilyzer results of Mr. Maloney's breath samples.

[61] The third factor deals with whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The reliability of the evidence is, of course, an important issue in this step of the analysis. The exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown's case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively the repute of the administration of justice where the remedy effectively terminates the prosecution. As the Supreme Court of Canada observed in R. v. Grant, at para. 110, this third area of inquiry under the governing s. 24(2) analysis "will usually favour admission in cases involving bodily samples," as such evidence is generally reliable and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission of the evidence (see R. v. Grant, supra, at paras 79-84 and R. v. Rehill, supra, at para. 38).

[62] It is my view the balancing of these three factors against the background of all the circumstances of this case leads to the conclusion the Intoxilyzer results are admissible under s. 24(2) of the Charter.

[63] Consequently, the defence calling no evidence on the trial, the breath sample results demonstrate Mr. Maloney's blood/alcohol concentration was over 80 and there will be a finding of guilt and a conviction registered.

Released: April 19, 2016

Signed: "Justice Peter C. West"