Court File and Parties

Date: November 24, 2016

File Number: CR-4411-998-15-5871-00

Ontario Court of Justice

Her Majesty the Queen

v.

Audrey Moxon

Proceedings

Before the Honourable Justice C. Parry

on November 24, 2016 at Kitchener, Ontario

Appearances

C. Avery – Counsel for Audrey Moxon

B. Thomas – Counsel for the Crown

Heard: In Writing

Table of Contents

Witness	Exam. in-Ch.	Cr-exam.	Re-exam.

[sic] - indicates preceding word has been reproduced verbatim and is not a transcription error

(ph) - indicates preceding word has been spelled phonetically

Transcript Ordered: April 12, 2017

Transcript Completed: May 2, 2017

Ordering Party Notified: May 2, 2017

Proceedings – Thursday, November 24, 2016

THE COURT: Good morning Ms. Moxon. I gather you have instructions from Mr. Thompson?

MR. AVERY: I do Your Honour.

THE COURT: All right. And just to confirm.

MR. AVERY: Sorry Your Honour, my friend is indicating that Mr. Thompson emailed me something just now; I'm not sure why he would do that when he knows I'm in court. I don't know whether it is relevant to this matter but perhaps – I don't see how it could be relevant before Your Honour's judgment so certainly if...

THE COURT: Okay.

MR. THOMAS: When I was told the message that he had just emailed his colleague in 403, there was nothing of the – put brakes until its read, it was just a...

THE COURT: Yeah and I understood that I was being invited to dismissed the impaired charge by Mr. Thompson on the previous day during submission, I don't think it had yet to be done if I recall correctly.

MR. AVERY: That's my understanding that it had not been done but the invitation was there.

THE COURT: All right, I was just making sure I was remembering things correctly because I didn't actually make a note of that, I just had a memory of it, all right. Okay bear with me. I would have liked to reduce this to a written judgment, perhaps to save everybody the pain of listening to me but I unfortunately did not have the time to do it and as thing evolved, so I appreciate your patience as I read this.

Reasons for Decision

PARRY, J. (Orally):

Overview of the Charges and Charter Application

This is the judgment on the Charter Application brought by Audrey Moxon in her criminal trial. She is charged with two offences: operating a motor vehicle while her blood alcohol concentration was over the legal limit and operating her motor vehicle while her ability to do so was impaired by alcohol.

Ms. Moxon alleges that she was the subject of an unreasonable search and seizure as guaranteed by section 8 of the Canadian Charter of Rights and Freedoms. In short she alleges that the officer lacked the requisite reasonable and probable grounds to make a demand to provide a sample of her breath into an Intoxilyzer device at the police station.

The defence also argues that the breath samples were not taken as soon as practicable even though they were taken well within the statutory two-hour time limit.

The primary point of contention here is that the officer made an error and it caused a delay in the taking of the breath samples and at one other significant point in time delayed briefly in the conduct of his duties thereby cumulatively creating a delay of roughly speaking twenty to twenty-five minutes where he could have, had he executed his duties with perfect efficiency accomplished his task even sooner than he did.

Ms. Moxon also alleges that she was arbitrarily detained contrary to section 9 of the Canadian Charter of Rights and Freedoms, specifically she alleges that her arrest was made without reasonable and probable grounds, accordingly she asserts that her arrest was unlawful and also an unlawful arrest or by definition, arbitrary as indicated by the Supreme Court in the case of R. v. Suberu and companion case Grant.

Factual Background

The factual backdrop is as follows:

On September 5, 2015 at about 7:31 p.m. Ms. Moxon was operating her motor vehicle near Homer Watson and Fountain Avenue in the City of Cambridge.

Constable Ford was conducting a uniform patrol in that area as part of an operation intended at detecting and prosecuting motorists who were using cell phones while driving their cars.

Constable Ford saw Ms. Moxon operating her vehicle at a high rate of speed as she merged on to the 401 and travelled along the 401. He followed her and paced her vehicle travelling at about 130 km/hour. He did not notice any driving behaviour that suggested he was dealing with an impaired driver. At the time he decided to initiate the traffic stop he expected to be dealing only with a speeding infraction.

I pause here to note, I believe I may have done so later on in the judgment but I pause here to note, that she did negotiate the bend in the merge lane by going wide on that bend but he attributed that solely to her speed with which she negotiated that bend.

Upon pulling Ms. Moxon over, he approached the passenger side window and when he spoke to her through the open window he noticed a smell of alcoholic beverage coming from the breath of Ms. Moxon. She subsequently admitted to consuming a glass of wine.

Having formed the suspicion that Ms. Moxon had alcohol in her body, Constable Ford demanded that Ms. Moxon provide a breath sample into an approved screening device. He asked her if she understood the demand, Ms. Moxon then replied "you may as well arrest me. I'm going to blow over". She also informed the officer that she had consumed three more glasses of wine.

In the officer's opinion she was being extremely polite and cooperative and appeared very truthful in what she was saying. He told the court "she was being honest at all times; she is a very truthful person."

Due to her size, her sex and the admitted amount consumed the officer concluded that the consumption would impair her ability to operate a motor vehicle. He estimated her size to be 5'6 and 175 pounds.

Apart from stating a belief that his training disclosed women could become impaired by alcohol more easily than men, he did not further elaborate upon why he believed a woman of this particular size, and who I say with all respect and without any offence intended, could not be described as being a slight build, would be impaired by three glasses of wine consumed over an unknown period of time.

It should be emphasized that he had no idea of the time frame over which the consumption occurred or when the last consumption occurred. He also did not know the size of the drinks consumed. The officer did not know what she meant by blowing over, whether she meant being over zero milligrams in 100 millilitres of blood. For example, driving with any BAC which would violate the Highway Traffic Act laws for novice drivers, with driving over 50 milligrams of alcohol in 100 millilitres of blood which would violate HTA laws for any drivers and result in a brief loss of driving privileges or blowing over 100 milligrams of alcohol in 100 millilitres of blood which would violate Criminal Code laws.

In this regard I have no evidence before me as to whether the accused was a novice driver whose license prohibited her from having any BAC or whether she was simply under the limits of a fully licensed Class G driver.

And because he did not ask enough questions of the driver, he had no idea whether the driver's opinion was a reasonable and reliable opinion based on fact or was an unreliable opinion based upon urban myth.

In my view, he did not at all turn his mind to the issue of the timing of consumption, the actual volume of consumption for the full basis of the inculpatory opinion of the driver. At a critical moment he engaged in almost no critical thinking.

As noted, despite failing to observe any indicia of the impairment of the ability to drive and despite knowing the intended nature and quality of the admission made to him regarding the timing of consumption, I should say, not knowing the intended nature and quality of the admission made to him regarding the timing of the consumption and the volume consumed, the officer concluded that he had reasonable and probable grounds to believe Ms. Moxon's ability to operate a motor vehicle was impaired by alcohol.

His observations appeared to be at odds with the admissions he received but the admission he received was not an actual admission about the level of impairment caused by alcohol consumption. Rather, it was an admission about blood alcohol content. I note here that the officer testified that the officer subjectively believed that an excessive blood alcohol content may in fact not give rise to impairment.

Thus, his conclusion that Ms. Moxon's ability to operate a motor vehicle was impaired by alcohol was all the more perplexing given the admittedly virtual absence of any indicia of impairment. In this regard it should be noted that the officer agreed that had Ms. Moxon provided an ASD sample and failed the test he could not have used the results of that fail to conclude that Ms. Moxon's ability to operate a motor vehicle was impaired by alcohol.

Rather, a fail, according to his evidence, would have provided the officer with grounds to conclude that Ms. Moxon's BAC was above the legally allowable limit, i.e. over 80.

Similarly, the officer acknowledged that the existence of grounds to believe a person is impaired by alcohol does not necessarily provide grounds to believe a person is over 80.

The officer further conceded that sufficient grounds to arrest for impaired driving must be based upon observations of the suspect in the manifestation of drinking and the behaviour and conduct of the suspect in question. In other words, you need to see signs of impairment, tells the officer to the court.

It should also be noted that the officer is a Qualified Breath Technician. Despite this body of knowledge and despite being a Breath Technician, recently trained and despite turning his mind – sorry I am going to pause here for a moment.

Sorry, despite being a Breath Technician recently trained and despite not turning his mind to the issue of the timing of consumption or the actual volume of consumption and despite seeing virtually no physical signs of impairment, the officer nevertheless postulated that this suspect's ability to operate a motor vehicle was impaired by alcohol.

After forming subjective grounds to arrest Ms. Moxon, Constable Ford then made a breath demand, read Ms. Moxon her rights to counsel and transported Ms. Moxon to the police station where two suitable samples were obtained. The first sample resulted in a reading of 132 milligrams in 100 millilitres of blood; the second sample resulted in a reading of 118 milligrams of alcohol in 100 millilitres of blood.

The Position of the Crown

The Crown argues that the implication by Ms. Moxon to Constable Ford to arrest her amounts to an admission of impairment. The Crown further argues that the court must consider the totality of the circumstances when assessing the objective reasonableness of the grounds of the officer. The Crown refers me to the case in R v. Censoni.

The Crown argues that the ostensible admission of impairment is corroborated by the admission of alcohol consumption. The Crown further argues that while there were outward signs of physical impairment, a person who has excessive blood alcohol may still be impaired despite their ability to mask outward signs of impairment.

I would note at this junction that this notion did not enter into the thought process of the arresting officer.

The Crown argues that given the presence of subjectively held grounds that are objectively reasonable to believe the accused's ability to operate a motor vehicle was impaired by alcohol, the arrest of the accused was authorized by section 495 of the Criminal Code and the taking of the samples at the station was authorized by section 254(3) of the Criminal Code.

The Crown therefore argues that the detention was authorized by law and was not arbitrary. The Crown also argues that the seizure of the breath samples was authorized by law. The law was reasonable and the samples were taken in a reasonable manner.

The Crown further argues that the officer was in a catch twenty-two, if the officer conducted an ASD test rather than proceed with the arrest and breath demand, despite his stated subjective belief and grounds for arrest, then the defence might argue that the demand was not made as soon as practicable. On the other hand, his subjective belief is being challenged as insufficient. The Crown therefore argues that the officer was in a no win situation.

The Crown argues that if the officer did err that evidence ought to be admitted into evidence, effectively arguing that this was an error made in good faith.

The Crown argues that the taking of the breath sample is a minimally intrusive procedure that has a minimal impact upon privacy of the accused. The Crown also argues that the officer, as I say, was in good faith and that the Charter-infringing conduct was relatively minor.

The Position of the Defence

The defence asserts that the seizures of the breath samples were warrantless and were therefore prima facie unreasonable.

The Crown therefore bears the onus of establishing reasonableness of the seizure. The search and or seizure will be reasonable when it is authorized by law, the law is reasonable and the search was conducted in a reasonable manner.

The law permitting the search and seizure in this case is section 254(3) of the Criminal Code which requires the police officer have reasonable and probable grounds to believe that the suspect within three hours of the demand committed an offence under section 253, in other words, impaired driving or over 80 driving.

The officer in this case had no grounds to believe Ms. Moxon was over 80, rather, the officer – and I mean no subjective grounds to believe Ms. Moxon was over 80. Rather, the officer made the demand on the belief that Ms. Moxon was impaired.

The defence asserts that Ms. Moxon did not admit being impaired, rather she admitted in response to a request for an ASD test to determine the quantity of alcohol in her blood that she would blow over. The defence points out that the officer had no clue whether Ms. Moxon was admitting she would blow over zero, 50 or 100 milligrams of alcohol in 100 millilitres of blood.

The defence also points out that the officer saw no signs of the impairment of the ability to drive. The officer also had no idea about the timing of the admitted alcohol consumption or the actual volumes consumed. As a breath technician the officer ought to have known the enormous importance of the factor of time and its influence upon blood alcohol concentrations and on impairment.

As a breath technician the officer did know that blowing over on an ASD would not provide grounds to believe the accused was impaired by alcohol, the officer therefore knew or ought to have known that admission of blowing over would not and could not have provided grounds to believe that the accused's ability to operate a motor vehicle was impaired by alcohol.

The defence also points out that the officer conceded that an impaired arrest must be based on observation upon physical manifestation of the effects of alcohol consumption on the accused's ability to drive.

I pause here to note; the defence was not required to argue or contest that the officer based a belief on hearsay evidence about the – received during training about the effects of being over 80 on the ability to drive. He did not testify that he was aware of toxicological opinions that anyone over the legal limit of 80 milligrams of alcohol in 100 millilitres of blood would, in the ordinary course, be considered to be impaired by alcohol. That was not a thought that entered his thought process.

Despite the rather rudimentary academic knowledge that the officer, in one breath seemed to possess and despite the failure to observe any indicia of the impairment of the ability to drive, the officer nonetheless formed an illogical and unreasonable subjective belief that Ms. Moxon was impaired by alcohol, so says the defence.

Lacking objectively reasonable grounds, the defence argues that the arrest was unlawful, unlawful detentions are by definition arbitrary, so the defence argues that Ms. Moxon's detention was arbitrary. Likewise, lacking objectively reasonable grounds the defence argues that the seizure of breath samples was not obtained pursuant to law and therefore the Crown has failed to rebut the presumption that the seizure was unreasonable.

The defence further argues that the officer was not in a catch twenty-two, if he felt he had grounds to arrest, he should act on it. However, if the subjective grounds are objectively unreasonable then his investigation can, and should be judged on the basis of his unreasonable conclusion.

The defence concedes that the officer was honest, forthright, fair, careful, friendly and kind. In short, the defence concedes that but for the alleged Charter breaches the officer is an exemplary officer, including being an officer who is not afraid to admit mistakes and be very clear about being mistaken.

I will pause here to indicate that I could not agree more, regardless of any errors he made in this case I have no hesitation in saying that this officer should be considered an example of integrity, kindness and fairness. It was a pleasure to have met him during the course of this case.

Exclusion of Evidence Analysis

Moving to the question of the exclusion of the evidence, the defence points out that I must consider the following factors: the seriousness of the Charter-infringing state conduct, i.e. admission may send a message that the judicial system condones serious state misconduct. Secondly, the impact of the breach on the Charter-protected rights of the accused i.e. the admission may send a message that individual rights count for little. And third, society's interest in seeing cases judged on their merits.

With respect to the serious nature of the state conduct, the defence submits as follows, the defence argues that the officer's error appears to be the product of what is described as a "gap in his knowledge", a gap which ought to have been – to be considered alarming because of his recent training as a breath technician. In short, the defence argues that officers must know the roots of their power and not be ignorant of them. Ignorance of fundamental and basic concepts upon which the exercise of power is founded, it is something that the court should distance themselves from even if the officer was otherwise exemplary in his characteristics.

With respect to the impact of the breach on the Charter-protected interests of the accused, the defence relies upon the case of R. v. Au-Yeung, wherein Justice Ducharme noted that the breaches involved prolonged detention of the suspect where the suspect is arrested at the roadside, brought to the police station, processed, searched and forced to provide self-incriminatory evidence.

So the defence argues that the impact of the breaches is serious, despite the fact that the privacy interest in one's breath sample constitutes a minimal intrusion upon the right to privacy.

With respect to society's interest in the adjudication of the matter on its merits, the defence concedes this branch of the test favours inclusion but on balance, the defence argues that the weighing of the three groups of factors favours exclusion.

Analysis of "As Soon as Practicable"

I have not spent much time addressing the complaint that the breath samples were not taken as soon as practicable but I will do so now.

I am instructed by appellate authorities to define the term as soon as practicable, as reasonably prompt in all of the circumstances. The Criminal Code does not require samples to be taken as soon as possible; the Code does not require perfection. Large unexplained gaps may result in the conclusion that the samples were not taken in a reasonably prompt manner but the determination of that issue is contextual and rests upon the reasonableness of the officer's conduct.

In this case the first breath test was obtained about an hour and twenty-two minutes after the stop. The second procedure was commenced twenty-four minutes later and completed twenty-seven minutes after the completion of the first test.

Human error caused about a ten to fifteen-minute delay when the officer failed to input some data into the Intoxilyzer 8000C, an error which he caught and corrected. An error which he was more than frank about in giving his testimony and one might say he fell on a sword in that regard but he did so in the interests in truthful, honesty and integrity.

In addition, the officer could likely have prepared the Intoxilyzer to accept samples somewhat sooner and would have saved approximately ten more minutes, potentially.

Operating at a standard of perfection the officer could have performed his duties about twenty to twenty-five minutes sooner. Again, I use that as a rough approximation.

However, the officer was able, by and large, to explain what he did or failed to do over this alleged lost period of time. As I say, the law does not require perfection. Having considered the entirety of the circumstances including the speed with which both samples were taken, in my view, the samples were taken within a reasonably prompt time.

Ultimately I am not left wondering what the police were doing over large tracts of time, and by and large, in my view, the officer was acting expeditiously, if not perfectly, in obtaining the breath samples.

Main Charter Findings

I now turn to the main focus of the Charter complaint. Having considered the evidence and the submissions of counsel, I am persuaded on a balance of probabilities that Constable Ford conducted an unreasonable search and seizure and arbitrarily detained Ms. Moxon.

I am also persuaded on a balance of probabilities that the admission of the evidence obtained during the course of the Charter breaches would bring the administration of justice into disrepute. And before elaborating further I will note at the outset that I adopt, effectively, the position of the defence as outlined a moment ago.

At the outset, I will note, that I appreciate that an officer is entitled to consider an admission like Ms. Moxon's when assessing the totality of the factors before him. I note the case of R. v. Vandal, [2009] SCJ 153 in the Saskatchewan Court of Appeal where the suspect told the officer "yes sir, I've consumed more than the legal limit." However, in that case the suspect had numerous indicia of impairment as opposed to the virtual lack of any indicia of impairment in this case.

In particular, Mr. Vandal exhibited the following, in addition to the odour of alcohol; Mr. Vandal failed to stop when signalled to do so for several blocks. When he was ultimately stopped, the officer observed that Mr. Vandal had glazed over eyes, when Mr. Vandal exited his motor vehicle to accompany the officer, Mr. Vandal walked in a laboured and deliberate fashion. In addition, he was unresponsive when asked about his failure to stop. Looking at those factors cumulatively he presented as someone who is moving in a slow, laboured, deliberate fashion who seems to be unable to respond promptly and responsibly to questions, who has an odour of alcoholic beverage and has a glazed over look on their eyes, those circumstances alone, in my view, would have created reasonable and probable grounds to believe the accused was impaired by alcohol. In that case, the officer had all of those grounds and the admission of being over the legal limit. It was an admission that corroborated a conclusion that was already available. In other words, the admission was surplusage, not merely corroborative.

In Ms. Moxon's case the observable evidence suggested the absence of impairment, not the presence of it and that conclusion comes from the frank admission of the honest officer who testified in this case. He tells us, he thought he was simply dealing with a speeding driver, even while conversing with Ms. Moxon. He never considered the speeding to be indicia of impairment. Again, apart from the wide negotiation of the ramp, which he attributed solely to the speeding, the driving was unremarkable and he saw no other signs of physical impairment, no slurred speech, no slowed speech, no glassy eyes, no glazed eyes, no watery eyes, no unsteadiness or deliberateness of movement, no unresponsiveness, nothing.

All physical symptoms pointed to a lack of impairment, but because of the odour of alcohol on her breath, nevertheless a presence of alcohol in her body. In short, the officer in his mind was dealing with a speeding driver, who in no way appeared to the officer to be impaired by alcohol.

So, he most certainly had grounds to suspect the driver had alcohol in her body, and this suspicion as I say, came from the odour of alcohol and the admission of drinking that day. However, despite the admission that she would blow over and despite her admission that she had consumed three glasses of wine at some point during the day, he could not reasonably have concluded Ms. Moxon was probably impaired in her ability to drive by alcohol.

He did not, as argued by the defence, turn his mind to the timing of drinking. He did not turn his mind to the volume of the said three glasses of wine. He did not turn his mind as to what the suspect meant by blowing over, what legal limit she was said to be exceeding. He did not articulate why he thought a woman weighing 175 pounds would be impaired by three glasses of wine consumed over an unknown, I stress unknown, period of time.

He simply failed to think critically or reasonably about the evidence presented to him, and I say this with great respect because I share the view that the officer was cordial, kind and honest and fair. In many respects he is the kind of officer any citizen would like to encounter on the street.

However, this kind and cordial man wields the power of the state as he encounters citizens on the street. That power is curtailed by the rule of law. It is the rule of law that protects our democracy, that ensures that we are governed by the people and for the people.

It is incumbent upon any officer to know the roots of their power and the limits placed upon their power. It is little consolation to a citizen that an officer who exceeded the limits of his power and infringed upon the citizen's liberty and security of the person, was cordial and kind when doing so.

Despite being recently trained as a breath technician, this officer did not turn his mind to rather rudimentary concepts that underline the biology of the absorption and elimination of alcohol from the body. Most importantly, he failed to turn his mind to the crucial factor of time.

In addition, he relied upon an admission by a suspect that she would fail a test, without knowing what the witness considered to be the passing grade on that test. He also relied upon an admission that he knew, even if it amounted to an assertion that the subject would blow over 80, would not necessarily give rise to the grounds to believe that the suspect was impaired by alcohol. Had the suspect failed the ASD procedure, he would have arrested her for over 80, not impaired driving. Yet when the suspect admitted she would fail the ASD procedure he nevertheless arrested for impaired driving.

To make matters worse, he had no way of knowing whether the suspect was referring to blowing over 100, 50 or 0 milligrams of alcohol in 100 millilitres of blood. He simply did not turn his mind to the issue. He was not thinking. He had a mental lapse and so the admission could not reasonably carry the same force as an actual fail on an ASD, a result was – would have resulted in grounds to arrest for a different offence than the offence for which the officer arrested the accused.

Interestingly, the officer believed Ms. Moxon to be a truthful and honest detainee, which begs the question, why on earth not ask her what she meant by her remark. For example, are you telling me you feel your ability to drive is impaired by the wine you consumed? That may have been a simple question to ask and a truthful, honest answer to that question had the potential to either provide sufficient grounds or to reaffirm the need to do an ASD test. This kind of inquiry would have taken only a few seconds and given the suspension of the right to counsel at this time – sorry, at the time of this voluntary inquiry, answers to which are not compelled, this kind of inquiry would have been minimally intrusive.

So I agree that either the officer suffers from a gap in knowledge or suffered from a gap in logic or a gap in critical thinking or all of the above. Whatever the gap, it occurred as he was holding an ASD device in his hand and was ready and able to administer an ASD test and he forewent a brief procedure that had the potential of establishing or eliminating grounds for arrest and in the absence of evidence on his point, I will never know what the results of an ASD procedure would have been.

But I do know that they could and would have been obtained quickly and in a relatively un-intrusive manner. The officer bypassed this un-intrusive procedure and embarked upon a much more intrusive one. In doing so, he arbitrarily detained Ms. Moxon and compelled her to participate in a warrantless and unreasonable seizure of her breath samples.

Section 24(2) Analysis

I turn now to the issue of section 24(2) of the Charter. In my view, the seriousness of the state infringing state conduct is made more serious in this case by the fact it was committed by a breath technician who had just, about a year earlier, completed his training. Of all people, a breath technician should have known to consider the factors of time and volume when considering the import of the admissions made to him.

While he was no doubt a kind and cordial man, this was not a trivial error, made in good faith belief that he was acting within the limits of his statutory authority. This was an error based upon a gap in his knowledge or failure to take the time to think logically and critically about the limits of the inferences that can be drawn from the information before him. This is an error that is easily fixed. The basic principles of biology and law in this context are not complicated.

However, it is precisely because the thinking lapses or thinking errors are so easily addressed that the state infringing conduct should be considered serious. It is the kind of error that should not happen. Unfortunately, in my first year as a Judge, it appears to be the kind of error that appears somewhat frequently in matters that proceed to trial on this type of charge.

I have come to wonder why as counsel I did not take more of these charges to trial. The long term repute of the administration of justice will be enhanced if the court distances itself from this kind of easily avoided error. Exclusion serves as an opportunity for learning and prevention of future similar errors. Conversely, admission of the evidence would serve to condone such lapses and thereby abet their repetition.

When I consider the impact of the breaches on the Charter-protected rights of the accused, I am mindful that the provision of the breath sample only minimally intrudes upon the privacy of the person. However, that same person is subject to a search incident to arrest. That same person is subject to a public roadside arrest. That same person is subject to a prolonged detention where she is locked in a jail cell to await the breath testing procedure. That same person is conscripted to provide evidence against herself.

While the Supreme Court cases of R. v. Goodwin and R. v. Grant, comment in obiter on the minimal intrusion on the right to privacy involved in the taking of breath samples, the court was not tasked in those cases with actually litigating a section 24(2) argument in the context of an over 80 case involving both section 8 and section 9 breaches.

The court was not likewise asked to visit comments made in prior decisions like Bartle and Prosper wherein the court remarked upon the significance of the self-constrictive nature of the evidence in the section 24(2) analysis.

The court was not asked to consider the impact of the section 9 breaches when discussing the expectation of privacy in its obiter. In that regard, I've considered the comments of Justice Ducharme in R. v. Au-Yeung and I whole heartedly agree, though I am mindful of the contrary views of other Superior Court Justices, including Justice Code on the same subject. And I respectfully disagree with contrary views to those expressed by Justice Ducharme.

Viewed holistically, the entire arrest procedure involves a significant impact on the Charter-protected rights of the accused even though considered in isolation there is limited expectation of privacy in the breath sample in question and minimal intrusion upon that expectation to privacy.

For all of these reasons, I am of the view that the impact of the breaches on the Charter-protected rights of Ms. Moxon was significant. I agree that society has an interest in the adjudication of a trial on its merits. I accept the breath tests provide reliable and accurate evidence capable of conclusively proving Ms. Moxon's guilt, however, when I consider the seriousness of the state infringing conduct and the impact of the breaches on the Charter protected rights of Ms. Moxon, I am forced to conclude that the long term repute of the administration of justice favours exclusion.

Conclusion

I sincerely hope that Constable Ford treats this case as an opportunity for growth and learning, of course I'm mindful that there has been a reasonable counsel that I infer, reasonably disagrees with the position I have taken or that the defence counsel has taken but nevertheless I hope this is treated as an opportunity for learning and growth and in many respects I would say this officer is a fine example of what we as a community expect of an officer. Indeed, his honesty, candour and fairness gave rise to the evidence, or lack thereof that led to the exclusion of evidence in this case. While in my respectful view, he needs to brush up on the principles of impaired driving investigations, this is a task easily accomplished. I have every faith that he will respond to this judgment in a constructive way and perform his duties even more admirably as a result.

All of that said, the evidence of the results of the breath test in this case shall be excluded from the evidence in this trial. There will be no other evidence capable of establishing the charge over 80, that charge will be dismissed.

As discussed prior to giving this judgment, the Crown has conceded that there is insufficient evidence bordering on no evidence to establish Ms. Moxon's ability to operate a motor vehicle was impaired by alcohol, as a result that charge will also be dismissed.

MR. AVERY: Thank you Your Honour.

THE COURT: Thank you.

...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

Certificate of Transcript

Form 2

Evidence Act, Subsection 5(2)

I, M. Marcos, certify that this document is a true and accurate transcription of the recording of R. v. Audrey Moxon, in the Ontario Court of Justice held at Kitchener, Ontario taken from Recording No. 4411_CRTRM403_20161124_085839.6_PARRYC.dc, which has been certified in Form 1.

(Date) (Signature of authorized person)

Melissa Marcos

ACT ID: 1322916612

1-855-443-2748

mmarcos@vptranscription.com