Court File and Parties

Information No.: 15-S0931-00

Ontario Court of Justice

Between:

Her Majesty the Queen

Crown

-and-

Peter Zachary Stelmach

Accused

Appearances

J. Strecansky – Counsel on behalf of the Crown

M. Evans – Counsel on behalf of the Accused

Trial Date: November 30, 2015

Reasons for Judgment dated: January 8, 2016

Thibideau, J.: (Written)

Overview

[1] Peter Stelmach is charged that on the 8th of March 2015 he operated a motor vehicle while impaired by alcohol in St. Catharines with over 80 milligrams of alcohol in 100 millilitres of blood. The defence Charter application is blended into the trial.

[2] The defence accepts that the Crown can make out the essential elements of the offence, that the investigation was timely and the suitable samples were appropriately taken with the resultant readings of 92 and 97 milligrams of alcohol in 100 millilitres of blood, respectively, except for the following. It is argued that there are three distinct time periods during the course of the roadside investigation and arrest process during which the defendant's section 8, section 9 and section 10(b) Charter rights were violated with the result that the intoxylizer readings should be excluded from evidence, resulting in a failure of the Crown's case.

Time Sequence - #1: 11:15 p.m. to 11:23 p.m.

[3] The uncontroverted evidence of the investigating officer for this time period is as follows. At 11:15 p.m. there was a roadside stop on the Queen Elizabeth Way east of the Jordan Sideroad ramp. The officer, at the roadside in conversation with the driver seated in the driver's position of the vehicle, observed a lit cell phone in the hands of the driver. The driver denied using it. At the same time the officer detected an odour of alcohol on the breath of the driver. When questioned he denied consumption of alcohol. It is at this time that the officer formed a suspicion the driver was operating the motor vehicle with alcohol in his body.

[4] The officer continued the investigation, asking for the usual documents. The driver handed over driver's licence and ownership and admitted he had no motor vehicle insurance. Collateral investigation caused the officer to ask the driver about the status of the licence plates attached to the vehicle. The driver admitted they belonged to a friend and that he was using them on his vehicle to get back and forth to work. The officer requested the driver to exit the vehicle, which he did. The officer decided to place the driver in the rear of the police cruiser because it was a cold night and therefore more comfortable for the driver in the cruiser, with the rear door left open.

[5] As per the officer's custom the roadside screening device was in the motor vehicle. The officer, a qualified operator, determined the unit was operating correctly after the usual checks and preparation.

[6] At 11:23 p.m. the officer made the formal demand for a roadside sample which was complied with. At 11:25 there was the officer's self-test and at 11:26 the driver provided a suitable sample resulting in a FAIL reading, which caused the officer to form the opinion that the blood alcohol of the driver exceeded 80 milligrams of alcohol in 100 millilitres of blood, with formal arrest at the same time.

[7] The defence argues the time from the stop at 11:15 p.m. to demand at 11:23 p.m. and/or the time to sample at 11:26 p.m. do not comply with the forthwith requirements resulting in a section 8 Charter breach by requiring the defendant to comply with an invalid breath demand. It is argued that the suspicion was formed at 11:15 p.m. and the delay to demand, 11:23 p.m., was not lawful.

Time Sequence - #2 & #3: 11:26 p.m. to 11:33 p.m.; 11:26 p.m. to 11:36 p.m.

[8] At 11:26 p.m. the FAIL sample resulted in immediate arrest for having excess blood in alcohol while driving. The officer requested the driver to exit the police cruiser for a safety search and handcuffing, after which the driver was again placed back in the cruiser. The officer then contacted his communications centre regarding assistance for an unattended motor vehicle on scene at the shoulder of the Queen Elizabeth Way and for attendance at the detachment of a breath technician to take suitable samples.

[9] At 11:33 p.m. the officer read right to counsel to the driver with respect to the over .80 charge. The driver stated he did not want to speak to a lawyer. At 11:35 p.m. the caution regarding right to silence was read and acknowledged as understood. At 11:36 p.m. the formal demand for approved instrument samples was read and acknowledged as understood.

[10] The defence argues that the time period delay between 11:26 p.m. arrest and the 11:33 p.m. right to counsel was unwarranted, not immediate enough and excessive. The right to counsel should have immediately followed the demand and not followed the intervening things that were done by the officer.

[11] It is argued the time period between 11:26 p.m. and 11:36 p.m., formal demand, was some ten minutes with the result that the breath demand was not prompt enough.

[12] The Crown argues the time periods objected to were in compliance with the law. The officer did specific things in pursuit of this investigation and the time periods in question were taken up with reasonable specific activity such that everything was done in a forthwith manner. In particular the R. v. Quansah, 2012 ONCA 123 considerations (five) lead to the conclusion that this officer acted in a forthwith or immediate manner.

The Law

[13] Section 254(2) of the Code depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards to the police demand for a breath sample, and explicit as to the mandatory response: that the driver must provide a breath sample "forthwith".

R. v. Woods, 2005 SCC 42, para 13, 14, 44.

[14] In interpreting the "forthwith" requirement, the court must bear in mind not only Parliament's choice of language, but also Parliament's intention to strike a balance in the Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

R. v. Woods, supra, para 29.

[15] There is a body of cases that interpret "forthwith" as meaning "immediately" and "without delay". That being so delay in itself is not fatal. Delay appropriate in time for necessary intervening activity will not necessarily cause delay to be found to be lacking immediacy or characterized as unduly delayed. In this case the investigation continued after the formation of suspicion in order to accurately identify the driver being investigated. The request for the usual documentation at roadside assisted this process. In this particular case there was the added element of licence plates on the vehicle not assigned to that vehicle, an independent line of an inquiry with respect to an offence not related to drinking and driving. While there is no specific time period recorded for these activities, in context of the evidence these investigations with respect to identity and licence plate validity took between two and three minutes. The next time period involved a sequence of events related to the officer's request for the driver to exit the vehicle, the actual exit, the very short walk from the driver's vehicle to the passenger door of the police cruiser and the placement, initially for convenience and comfort, in the rear of the police cruiser. However it is clear that while there was no formal arrest at this time detention occurred upon the request to leave the driver's vehicle for placement in the police cruiser.

R. v. Yamka, 2011 ONSC 405, para 35.

[16] Before making the formal roadside demand the officer took the roadside device which was on hand and immediately commenced the process to determine to his satisfaction that the roadside device was in proper working order. This involved powering the unit and doing the usual electronic checks. Again there is no direct evidence as to the exact time period involved but in the context of all the evidence the reasonable allocation of time would be between one and three minutes. This delay constitutes the short delay necessary for the officer to obtain an accurate result, justifying the officer in delaying either making the demand or administering the test after the demand as contemplated in R. v. Quansah, 2012 ONCA 123, para 28, 29. This period of delay relates solely to exigencies of the use of the equipment contemplated in R. v. Bernshaw, adopted in R. v. Quansah.

[17] However trial courts are admonished that there are no hard and fast rules for length of delay, rather the focus is on reason for delay. Assuming no reasonable opportunity to contact and meaningfully consult counsel a variety of situations have arisen over the years causing a short delay, but with the immediacy requirement still met. For example, reasonable investigation by way of sobriety tests to determine whether or not there are reasonable and probable grounds for a formal intoxilyzer demand, questioning with respect to consumption of alcohol, immediate address of legitimate public safety issues.

R. v. Fildan, 2009, referenced in R. v. Quansah, supra, para 40.

[18] The defence relies upon the reasoning and the result in R. v. Steele, 2014 ONCJ 583, with respect to the time period of delay not being immediate or forthwith between formation of the reasonable suspicion of alcohol in body and formal ASD demand, some seven or eight minutes, as here.

[19] In R. v. Steele the driver had a cell phone and had an automatic dial number for a criminal lawyer on his cell phone. In this case a cell phone was present but Mr. Stelmach did not have the name or the number of a lawyer, and in fact declined to speak to a lawyer when read his right to counsel on scene. At the police station he exercised his right to counsel by speaking with a duty counsel on a call back.

[20] In R. v. Steele the roadside device was not on hand, arrived four minutes after request for device to be on site, but in requesting the device the officer had no clear understanding of how long it would take for the device to arrive. In short the opportunity to consult counsel at scene was open-ended.

[21] The defence relies on R. v. Ouimet, 2015 ONSC 3135, an appeal of a lower court decision. In that case it was determined that the trial judge committed two errors resulting in an order for a new trial. There was mistake of fact. The judge misinterpreted the significance of the accused's response to the right to counsel being read. This is not an issue in our case.

[22] The judge fatally concluded the determinative issue for the time appropriateness of the time of demand for a roadside screening device sample was the presence or absence of a reasonable opportunity to consult counsel prior to compliance with the approved screening device demand, thereby not addressing the five considerations necessary in determining the forthwith or immediacy requirement of section 254(2) of the Code. In Ouimet the error was identified and the error correction was left to a new trial court that would apply the correct reasoning process to determine whether the immediacy requirement was met or not.

[23] Similar issues arose in R. v. Kim, 2014 ONCJ 568, where the issues relevant to our case were as follows:

1. Did the officer fail to make a valid demand for the approved screening device sample by failing to make the ASD demand immediately upon forming the requisite suspicion?

2. Was the failure of the officer to inform Mr. Kim of his right to counsel while he was detained at the roadside a breach of his section 10(b) Charter right?

In R. v. Kim the relevant time sequence facts are these. The stop occurred at approximately 2:22 a.m., conversation between officer and driver along with request for usual documents occurred at 2:22 a.m. At 2:22 or 2:23 a.m. there were indicia of impairment observed by the officer including odour of alcohol in vehicle with possible smell of alcohol on breath. At 2:23 a.m. the officer asked the driver to exit the vehicle in order to confirm or dispel the alcohol on breath possibility. Alcohol smell was confirmed at this time and the reasonable suspicion of alcohol in body as well. At 2:24 a.m. the officer requested delivery to the scene of a screening device without knowing when it would arrive. It arrived 14 minutes later at 2:38 a.m. with an ASD demand at 2:39 a.m. A sufficient sample with a FAIL result and arrest occurred at 2:43 a.m. At 2:46 a.m. the right to counsel was read before the 2:47 a.m. formal intoxilyzer demand.

[24] There was a finding of a 15 minute delay between the formation of reasonable suspicion and resultant detention, and the ASD demand. This was determined to be a time period that was not within the time period in the circumstances that would result in a forthwith or immediate ASD demand, those circumstances being that delivery time for the ASD device was open-ended and delay was partly attributable to the compliant conduct of the person being investigated, not a reasonable reason for any appropriate delay.

[25] In addition in R. v. Kim the judge found a section 9 Charter breach with respect to unlawful detention for not being told reason for detention and a section 10(a) breach because Mr. Kim was not promptly informed of the reasons for his detention.

[26] In R. v. Kim the officer failed to provide right to counsel upon detention based on ignorance of the law and compounded the problem by asking questions of Mr. Kim in an attempt to illicit incriminatory evidence prior to right to counsel. The result was it was found that the time period between request and arrival of the ASD was sufficient to require the officer to provide Mr. Kim with his opportunity to consult counsel. In fact when advised of his right to counsel Mr. Kim did wish to call a named lawyer.

[27] A number of other cases were provided to support the defence arguments, all of which involved a lack of screening device on scene, waiting time for device to arrive, or fact issues not relevant to this case, such as officer's ambivalent attitude as to whether or not he had a reasonable suspicion based upon facts already present as in R. v. Schmidt, [2000] O.J. No. 1227.

[28] The Crown case book focuses on cases where any delay has been determined to be appropriate and in keeping with the immediacy requirements with respect to ASD demand and provision of right to counsel. R. v. Storrey, focuses on the section 450 (1) & (2) application to the facts at hand for an aggravated assault charge. The issues were not so much one of immediacy, but of sufficient grounds for arrest, not analogous to our case.

[29] R. v. MacMillan, 2013 ONCA 109, is a case where the issue was at what point in time detention occurred in the investigative process. The Court of Appeal disagreed with the trial judge's finding of fact and law that the detention occurred much earlier than it did, thereby creating a timeliness issue regarding a sample demand. Our case has a similar situation issue, but I find there is a separation of time issue between detention and demand to be dealt with. This case also confirms the implicit and explicit time requirements when section 254(2) is in play.

[30] While the issue of time of detention is relevant the test of timeliness of demand has come to be linked to the officer's formation of requisite grounds, not simply detention. But greater time flexibility is permitted if detention has not occurred.

R. v. Woods, supra

R. v. Quansah, supra

[31] In MacMillan the Appeal court, while not finding fault with the demand timing, did find fault with demand implementation timing, section 254(2) breach, and timing of right to counsel being read, section 10(b) Charter breach.

[32] The Crown relies on R. v. Singh, 2014 ONCA 293, for the accepted proposition that in examining the appropriateness of relevant time periods the fact finder is to look at the whole chain of events and must not require the Crown to provide a detailed explanation of what occurred during every minute the accused was in custody.

Resolution

[33] In reality the issue with respect to the time periods contested is whether or not the periods of delay were justified in the sense that the reasons for delay, after scrutiny, were deemed sufficient to have the delays characterized as sufficiently short and justifiable in the circumstances that the delays can be characterized as part of a process that was immediate or forthwith so as not to violate Charter rights. Rosenberg, J. in R. v. MacMillan, 2013 ONCA 109, sets out in paragraphs 25-35 of his judgment the general propositions that must be considered by the trier of fact in determining the immediacy or forthwith issues.

[34] The first limit is a factual one. The officer must have reasonable grounds to suspect both that a person has alcohol in their body when the demand is made and that the person was operating a motor vehicle within the preceding three hours. Not an issue here. A combination of the provisions of section 254(2) of the Code and Charter right to counsel for a detained person place temporal limits on the timing of the demand and the timing of the test. There is the specific or overt requirement that the operator of the vehicle comply forthwith with the demand. This requirement with respect to motor vehicle operator conduct implies that the investigating officer must make the demand for the sample and facilitate compliance on a forthwith basis. Requiring the detained motorist to comply with the demand before being advised of right to counsel and given the opportunity to consult counsel has been determined to be a reasonable limit within the meaning of section 1 of the Charter with respect to a person's section 10(b) Charter rights. The fact that a person is detained, not formally arrested, and therefore entitled to consult counsel creates the requirement that the test be administered immediately. Otherwise Charter rights are engaged.

[35] Even so the test becomes even more onerous for the Crown. The Supreme Court of Canada in R. v. Woods, 2005 SCC 42, and the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123, have held that "forthwith" requires the demand be made as soon as the officer has formed the requisite grounds to make the demand; the justifiable delay does not seem to be tied in a dispositive way to the fact that the motorist is detained. While this is intimately tied to the Charter right to counsel, the opportunity to consult counsel is not the only criterion for assessing whether the "forthwith" requirement has been met. Thus the five Quansah considerations to determine whether the demand has been made on a forthwith or immediate basis.

The Quansah Considerations

[36] The analysis of the forthwith or immediacy requirement must be done in the context of the court bearing in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. Judicial comment at all court levels have reinforced the perception that death and injury directly related to drinking and driving are a major societal concern. The changes in social perception with respect to the hazards of drinking and driving, along with increased penalties, and judicial recognition that investigative and arrest procedures while they might infringe Charter rights are saved by section 1 of the Charter, all attest to this.

[37] At the same time delay in providing prompt information as to right to counsel and delay in demanding roadside breath samples of as little as six or seven minutes have proved fatal to prosecutions with respect to timeliness where such delay is not characterized as falling within the immediacy requirements of the law. The time connections between the actual formation of reasonable suspicion, not reasonable and probable grounds for an offence, not arrest for an offence, and the roadside demand is the proper time connection in requiring the demand be made and rights to counsel voiced.

[38] The roadside demand needs to be forthwith but with flexibility for exigent circumstances focused on the officer's duty to the person under investigation and the community at large. In our case a focus on the safety of drivers on the Queen Elizabeth Way, but not taking control of the roadside vehicle per se. As well time for set up and testing of the instrument for accuracy, and instruction of the suspect in the use of the device.

[39] Finally the implementation element of the right to counsel needs to be addressed. In this case the presence of cell phone, but with no knowledge of lawyer of choice or a telephone number for lawyer, and a decision not to contact and instruct counsel at the scene result in this factor having little weight.

[40] In this case the time period commences with the 11:15 a.m. stop. In the time period from 11:15 a.m. to 11:16 a.m. a great deal occurred. Initial verbal contact, conversation regarding cell phone use prior to observation of alcohol on breath, request for and production of required documentation. Conversation regarding legitimacy of licence plates appears to have occurred after realization that there was alcohol on breath. It was at this time that the formation of the reasonable suspicion of alcohol in body was formed, it is at this time that detention commences. That portion of time taken up by walking the documents back to the cruiser, doing the computer check and obtaining results from computer check regarding identification documents, and apparently licence plate documents, is not included in the forthwith time period.

[41] The time period of the informal physical detention, removing the driver from the vehicle, escorting him to the police cruiser and placing him in the backseat of the cruiser with door open to facilitate the demand and obtaining of roadside breath sample is included in the forthwith time period. The one to three minutes required for powering the device and making sure it was in proper working order ready to accept a sample is included in the forthwith time period because this activity logically and appropriately took place for purposes of accuracy and to obtain the sample. The result is that the total eight minute delay is attributed as approximately three to five minutes characterized as forthwith and approximately three to five minutes characterized as inappropriate not forthwith delay using the officer's stated time sequence.

[42] I find the thinking of Justice Melvyn Green (O.C.J.) in R. v. Bahra, 2013 ONCJ 489, very helpful. In that case the time periods were very straightforward. At 3:00 a.m. there was a stop with observation of alcohol on breath. At 3:03 a.m. documents received from the driver were referenced for a computer check in the cruiser by which time the investigating officer had already determined that he had a suspicion of alcohol in the body of the operator of a motor vehicle within the preceding three hours. By reason of delay accounted for by the computer check of the documentation and/or no identified reason for delay there was a demand for a roadside sample at 3:10 a.m. resulting in a seven minute delay. That delay was attributable to two things. One, the investigating officer training a recruit on scene and the investigating officer performing further investigation to build up an impaired driving charge, chiefly by protracted questioning. No such charge was laid. The proper test for immediacy is that the section 254(2) demand will in the ordinary course be made immediately of a detained driver once the investigating officer has determined that there is reasonable suspicion and has also determined that it is appropriate to administer an ASD test.

R. v. Bahra, supra

R. v. Fildan, supra

[43] In our case the reasonable suspicion was formed at the driver's door virtually on first verbal contact and the time analysis proceeds from there. That analysis with respect to appropriate investigation and ambient circumstance results in the time breakdown as set out. A delay of a maximum of five minutes unaccounted for, does not meet the immediacy requirement. This is so keeping in mind the Crown need not account for each and every minute in any time sequence.

[44] The right to counsel informational component was also triggered upon detention coinciding with formation of reasonable suspicion in this case. It is reasonable to conclude in the circumstances that the investigating officer equated the right to counsel with the formal arrest at 11:26 p.m. and not the detention at 11:15 p.m. The arrest was followed by appropriate safety search and handcuffing and replacement in cruiser. However the arrest was also followed by the focusing on assistance with respect to the vehicle parked on the Queen Elizabeth Way and obtaining a breath tech officer for the intoxilyzer samples at the station resulting in a further seven minute delay from 11:26 p.m. to 11:33 p.m. between arrest and reading of rights to counsel. Based upon this analysis the investigating officers' delay in making the ASD demand and providing right to counsel after he had formed the requisite suspicion failed to comply with the forthwith requirements of the law and were therefore in violation of section 8 and section 10(b) Charter rights. The result is the Crown has not demonstrated that the presumptively unreasonable warrantless searches and seizures are, in the circumstances, constitutionally redeemed by the officers' compliance with the statutory obligations.

R. v. Bahra, supra, para 12

Section 24(2) Considerations

[45] The Charter breaches under consideration relate to lack of timeliness for the ASD demand, the informational aspect of right to counsel and the following intoxilyzer demand. Defence argues and the Crown disagrees, that the Charter breaches resulting from lack of timeliness should result in the intoxilyzer results being excluded from consideration of the evidence. This requires a determination of whether the defence has established that the admission of the evidence would bring the administration of justice into disrepute. If so the evidence is excluded. It is necessary to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to the three part test set out in R. v. Grant, 2009 SCC 32, considering:

1. The seriousness of the Charter infringing state conduct to avoid the impression that admission of the evidence may be perceived as the justice system condoning serious state misconduct;

2. Impact of the breach on the Charter-protected interests of the accused to avoid the impression that admission may result in the perception that individual rights are discounted;

3. Society's interest in the adjudication of the case on the merits to ensure the perception is preserved that the justice system works and final outcomes are not improperly avoided.

The three part inquiry is objective in nature focused on whether or not "a reasonable person, informed of all relevant circumstances and the values underlining the Charter, would conclude the admission of the evidence would bring the administration of justice into disrepute".

R. v. Grant, supra para 68.

[46] In determining the issue with respect to bodily evidence, as here, the admissibility of bodily evidence is determined in the same way as all other types of evidence by inquiring into the effect admission would have on the administration of justice having regard to seriousness of police conduct impact of the Charter breach on the protected interest and the value of trial on the merits. Focusing on whether or not the evidence was conscripted is no longer appropriate.

R. v. Grant, supra para 107.

1. Seriousness of the Charter Breach

[47] The first factor is the blameworthiness of the officer's conduct. There is no evidence of bad faith. The unacceptable delays relate almost entirely to a combination of factors. The officer appeared to misunderstand that right to counsel is triggered by detention and not by formal arrest. The delays here were partly attributable to the officer engaging in investigative conduct regarding the use of licence plates which should not have taken precedence over the Charter mandated forthwith requirements focusing on a Charge or Charges related to drinking and driving. The result was officer conduct that did not pay sufficient attention to the Statute and Charter mandated time requirements. It did not enter the investigating officer's mind that the time sequence did not constitute a forthwith demand and a forthwith or immediate reading and right to counsel. The connection between reasonable suspicion and the timeline requirement was simply not in the officer's mind.

[48] That being said it is clear the officer understood the necessity of reasonable suspicion in order to make the ASD demand and the requirement, albeit tardy, that a proper informational right to counsel be given to the operator of the motor vehicle. The constable's evidence appears to indicate an unacceptable understanding of the obligations involved rather than a disregard of them.

[49] In this particular case three breaches are argued. One of which, timeliness of ASD Demand, has a separate time sequence than the other two. The result is a section 8 breach with respect to a lack of forthwith ASD demand with consequent section 10(b) right to counsel breach. The formal arrest occurred at 11:26 p.m. with right to counsel some seven minutes later creating a second section 10(b) Charter violation. The tardy intoxilyzer demand led to other section 8 and section 10(b) Charter violations. The result is a number of violations, but some were repeats of earlier ones.

[50] There is a fundamental principle at work. The investigating officer, by lack of proper understanding, subjectively in his mind, did not believe that the necessary suspicion formed for purposes of the ASD demand required an immediate demand, and that failing triggered the right to counsel issue at first instance.

[51] There is an important principle involved. Can the courts permit, however much in good faith, the detention and arrest of an individual where the delays are such that the fundamental right to counsel is significantly jeopardized. This has to be viewed in the context that the delay with respect to right to counsel was meaningful, a cell phone was available, a search for an appropriate lawyer's name would be required, and the person involved chose not to seek counsel at that time when eventually asked.

[52] These considerations demonstrate a case where the breaches were significant and meaningful, but not egregious. On balance these considerations mildly favour exclusion due to the seriousness of the Charter breaches.

2. Impact of Breaches on Charter-protected Rights

[53] Based upon what the officer knew from personal observation and third party report the stopping of the defendant's motor vehicle was lawful. That being so the defendant was properly the focus of a criminal investigation with respect to drinking and driving whether or not any breaches occurred. Anything done during the course of the investigation itself leading up to reasonable grounds to suspect an offence were proper and minimal.

[54] In R. v. Grant, supra, the court determined that the obtaining of breath sample evidence is considered to be a relatively non-intrusive procedure. This has been found so by several courts even though the procedure involves hours of detention, intrusive interrogation, personal search, lodging in cell, and the breath sample collection procedure itself. Nevertheless, there is multiple binding authority the procedure is not unduly intrusive.

[55] The evidence in this particular case indicates that the access to counsel, once the right to consult counsel was taken up by the defendant, proceeded in an appropriate fashion. Given the time periods involved in this particular case, appropriate delay and inappropriate delay, the totality of those time periods at that particular time at night without the defendant's direct knowledge of a lawyer to call would not have been sufficient for a meaningful consultation with a lawyer at the scene. The first realistic opportunity for such consultation was at the police detachment.

[56] In this case the breath samples obtained were reliable evidence with a negative result for the defendant. This branch of the test favours inclusion in evidence.

3. Societal Interests in Adjudication on the Merits

[57] This case involves drinking and driving. In this particular case the readings of 93 milligrams and 97 milligrams of alcohol in 100 millilitres of blood were on the lower end of the scale. The officer observed lane drifting on the Queen Elizabeth Way as he followed the subject vehicle and a civilian vehicle monitoring the subject vehicle. This observation demonstrated a likely impairment of function by alcohol.

[58] The Crown's case stands or falls on the introduction into evidence of the results of the intoxilyzer breath samples obtained. There is nothing in the evidence that would prevent the admission of these results into evidence except for the Charter breach issues.

[59] As in R. v. Steele, supra, the alcohol blood level readings were low and the driving was far from egregious. Based on the facts of our case the competing considerations are as described by Justice David Paciocco in R. v. Steele, supra, at paragraph 60. Alcohol related driving offences have a high profile in the community with particular community concern. Loss of key evidence in such cases bears directly on the community perception of the justice system. Conversely, the use of Charter breach evidence in serious cases increases the impact of the Charter breach for the defendant. This is why the R. v. Grant thinking emphasizes the long term effect on the administration of justice in the perception of those reasonable persons in the community who are appropriately informed of the facts of the case and the importance of Charter rights for individuals, looking beyond the case to be decided.

[60] Looking at the specific facts of this case, this branch of the R. v. Grant test supports inclusion.

Ruling

[61] The overriding test is whether or not, on objective inquiry, a reasonable person informed of all the relevant circumstances and the values underlining the Charter, would conclude the admission of the evidence would bring the administration of justice into disrepute.

[62] As well the seriousness of the offence must not take on a disproportionate significance. While the public has a heightened interest in seeing a determination on the merits where the offence charged is perceived as serious, it also has a vital interest in having a justice system that is above reproach, particularly when the penal stakes for the accused are high.

R. v. Grant, supra, para 84.

R. v. Harrison, 2009 SCC 34, para 34.

[63] The determination is not a numbers game based upon the three considerations. The trier of fact must use best judgment in assessing the value to be attributed to each of the three considerations based upon specific evidence in the case related to factual circumstance and weight to be attributed to the considerations. Using the reasonable person in society test cognizant of the legal principles involved and the factual situation as described there will be no exclusion of the breath samples from evidence.

[64] The features that are prominent, but not dispositive in themselves, are the fact that there was no reasonable opportunity to contact and instruct counsel within the time limits available and the fact the defendant told the officer at the roadside he did not wish to contact counsel. The time periods at issue were relatively short, there was no officer bad faith and initial detention was lawful. The flaws here are not so fundamental as to require exclusion of the breath sample evidence. The dispositive portion of the defendant's Charter application is dismissed.

[65] With the breath samples forming part of the evidence before the court the Crown has proved its case beyond reasonable doubt and there will be a finding of guilt.

Dated at St. Catharines, Ontario

This 8th day of January 2016

The Honourable Justice L.P. Thibideau