Court File and Parties
Ontario Court of Justice
Date: 2017-06-29
Court File No.: Guelph 4611-998-16-645 & 4611-999-16-79
Between:
Her Majesty the Queen
— and —
Warren Taylor
Before: Justice M.D. McArthur
Heard on: May 1, 2, 3 and June 1, 2017 at Guelph
Reasons for Ruling on Application released on: June 29, 2017
Counsel
J. MacDonald — counsel for the Crown
P. Dotsikas — counsel for the defendant Warren Taylor
McArthur, M.D. J.:
Introduction
[1] Warren Taylor is charged with the offences of impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code of Canada and operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code of Canada, both offences in the Township of Nichol, Wellington County.
[2] The trial has proceeded on the basis of a blended voir dire proceeding to this point. Counsel for the defendant brought an Application initially alleging a Section 8 Charter breach and, subsequently, during the hearing, an Application alleging additional Section 9, 10(a) and 10(b) Charter Rights breaches.
[3] After the hearing of evidence on the voir dire and application, it was conceded by the parties that verbal statements of the defendant made to the police were voluntary and I would have likewise otherwise so found.
The Charter Issues
[4] This application and ruling involves the allegations of the Charter violations. At the outset, I find that the detention of the defendant was not arbitrary and that it is unnecessary to make reference to Section 8 allegations at this stage of the proceeding. Consequently, this ruling will focus on the allegations of violations under s. 10(a) and (b) of the Canadian Charter of Rights and Freedoms.
Counsel for the defendant alleges violations of both s. 10(a) and s. 10(b) and submits that evidence of the results of breath tests of the defendant be excluded under s. 24(2) of the Charter. Counsel for the Crown takes the position that there were no such breaches and, if there had been, this evidence should not be excluded in this proceeding.
The Facts
[5] I will review the facts in this case at this point in a more comprehensive manner than what might be usual since this may provide a more thorough basis if a review of this decision is necessary and also since this is ruling in the context of an ongoing trial involving only a part of the evidence in this case and is not determinative of the case overall.
[6] On March 14, 2016 at approximately 4:00 a.m., Anthony Jenkins was driving a car to deliver newspapers and was travelling northbound on Highway 6 from Guelph toward Fergus when he observed a white van, not running, in the ditch beside the southbound lane to the west of the road. He pulled over and exited his car and went to the van. He tried unsuccessfully to open the driver's door, yelled for anybody without response and observed a male near a fence jump over the fence and disappear. He observed on entering the passenger side of the white van, blood on the dashboard, steering wheel, floor and seat. He then called 911 and remained on the scene for police to arrive about 20 minutes later.
[7] Brian Crabbe, a truck driver on his way home operating his own personal vehicle northbound on Highway 6, also stopped and observed the white van in the ditch off the gravel shoulder and on a slight angle. He likewise observed drops of blood on the center console and smears of blood on the passenger side door of the white van and noticed the van smelled like alcohol inside.
[8] The first police officer on the scene was Cst. Ryan Carson of the OPP in Wellington County. He was dispatched at approximately 4:30 a.m. and arrived at about 4:40 a.m. along with another officer at the collision scene. There was front wheel assembly damage to the white van in the ditch which lead him to believe the van could not be operated safely on the road. The van was into the bottom of an embankment, not running and with the exterior lights on. He likewise observed blood on and across the floor to the passenger side of the van. He remained at the location until approximately 5:42 a.m. when he was picked up by another officer and driven north a short distance to where another officer was with the defendant who was bleeding from his head and seated in the back of an ambulance. This officer also attended the hospital and observed the defendant with mud and burrs stuck to him, not wearing shoes, soaking wet and with a compress under bandages on his head and receiving medical attention.
[9] Cst. Melissa Tutin was also driving north bound on Hwy 6 and came across the other police cruisers at the scene. She received some information and continued to travel north bound on Hwy 6 for about 2 concessions when she observed a male person walking northbound on the east shoulder of the road who had injury and blood on his face, muddy pants with burrs, shoeless, stumbling and swaying when he walked. She did not have any direct dealings with this person who was the defendant.
[10] Andrew Sloots, a forensic biologist with the Center of Forensic Sciences, received blood samples and generated DNA profiles from known samples from swabs taken by another officer of the steering wheel of the vehicle and a sample of blood obtained as a result of the execution of a DNA Warrant involving the defendant. He established that the sample taken from the van either was from the defendant or that an extremely unlikely event occurred that the defendant happened to have the same DNA profile as the person who was the source of the blood obtained from the steering wheel in the van. The random match probability was determined to be one in 5 quadrillion.
[11] Cst. Ian Donaldson was dispatched to the accident scene at approximately 4:30 a.m. He eventually arrived at the scene and arranged for a tow of the van. He observed that the keys were in the ignition of the van. He had no interaction with the defendant.
[12] Cst. Aleisha Lusk attended the scene to assist the canine unit. Cst. Banasik had advised her that the defendant was handcuffed and was under arrest and that Cst. Banasik was conducting a search incident to arrest of the defendant. She did not know what the defendant was arrested for.
[13] Cst. Brian Kielman was a newly appointed officer in training and accompanied Cst. Banasik who was driving the police cruiser when dispatched to the scene at 4:30 a.m. He testified to being present for the arrest of the defendant by Cst. Banasik but he did not note any utterances made by the defendant. He agreed that the arrest of the defendant was for public intoxication. He then drove the cruiser and followed the ambulance with its occupants to the hospital.
[14] Daryl Mayers from the Center of Forensic Sciences testified as an expert in relation to toxicology as it involves alcohol, its absorption and elimination and levels of alcohol in the human body. He testified that breath tests provide by the defendant obtained at 7:32 a.m. and 7:55 a.m. and analyzed respectively as 133 and 135 milligrams of alcohol in 100 millilitres of blood, would provide a projected blood alcohol concentration range in the individual between 4:00 and 4:30 a.m. of 140 and 200 milligrams of alcohol in 100 millilitres of blood, provided the following conditions were met of (1) the range of elimination of alcohol between 10 and 20 milligrams of alcohol in 100 millilitres of blood per hour; (2) the person is in a plateau situation such that the person could be absorbing alcohol and the blood alcohol would be unchanged for up to 2 hours; (3) no large consumption of alcohol occurred just prior to the time of the incident: and (4) no consumption of alcohol occurred after the incident and was unabsorbed and detected by the instruments at a later time. He also testified that the individual's ability to operate a motor vehicle would be impaired by alcohol within the projected range provided.
[15] Cst. David Banasik was the main investigating officer in this case. He was in a fully marked police cruiser with and operated by Cst. Kielman when they were dispatched at 4:31 a.m. on March 14, 2016. He received information of a single motor vehicle accident near the corner of Highway 6 and 8th Line in the Township of Nichol and that the driver may have been impaired and a male was observed leaving the scene southbound who was wearing dark clothing possibly a jean or outdoor jacket and that there was a strong smell of alcohol and blood observed inside the white panel van.
[16] This officer was directed to assist in the containment and while on route to that specified location observed, between 5:39 and 5:42 a.m., the defendant walking northbound on the east shoulder of Highway 6. The defendant was not wearing shoes, was very muddy and had burrs on his pants, a large gash between his eyes and onto his forehead that was bleeding, a strong smell of alcohol coming from his breath and was unsteady on his feet.
[17] Based on these observations, Cst. Banasik placed the defendant under arrest for public intoxication, frisk searched him, requested identification and noticed slurred speech from the defendant. He requested an ambulance multiple times due to the defendant's injuries. The ambulance arrived between 5:42 and 5:54 a.m. and the officer escorted the defendant to and placed him in the rear of the ambulance.
[18] Cst. Banasik testified in chief that he was forming his grounds and had reasonable grounds to believe that the defendant was operating a motor vehicle while his ability was impaired by alcohol and came to this "conclusion", as he expressed this, at 5:54 a.m. It is sufficient to indicate that the officer at this point had a suspicion that the defendant was the driver or occupant in the van observed in the ditch.
[19] The officer then cautioned the defendant that "I am currently investigating a motor vehicle collision, it is an impaired motor vehicle collision. You are being charged with impaired operation of a motor vehicle. You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?" The defendant responded "yes". The officer then testified that he read the defendant his rights to counsel, caution card to which the defendant replied "No, if I'm not going to be held for bail. I will call one later." The defendant then made utterances to the officer that he had travelled to his brother's house in Guelph, had been drinking wine at his brother's house, left around 11:30 pm from Fergus, was the only driver of the van, lost control of the van which went into the ditch and did not lose consciousness.
[20] At this point with the utterances made, the officer could and should have arrested the defendant for impaired operation of a motor vehicle. He did not do so then nor thereafter.
[21] Between 5:55 a.m and 6:08 a.m, Cst. Banasik relayed this information as to his grounds to his on-duty shift Sergeant and was satisfied that the defendant "was the driver and that his ability to operate a motor vehicle was impaired by alcohol at the time of the collision and prior to". He then proceeded at 6:08 a.m. to read the breathalyzer demand to the defendant. The officer travelled in the ambulance along with the defendant and paramedics to the Groves Memorial Hospital where the defendant was assessed by medical staff. The breathalyzer technician arrived between 6:08 and 6:57 a.m. and the grounds were provided by him to the breathalyzer technician, Cst Pollan, that included the statement by the defendant, after caution, as follows: "consumed alcohol at friends, drove motor vehicle belonging to boss, attempted to avoid raccoon."
[22] During the cross-examination, this officer testified that the defendant was handcuffed when arrested for public intoxication at 5:42 a.m. There was confusion with the evidence of the investigating officer that was eventually clarified when the officer agreed with defence counsel's suggestion that he never arrested the defendant for impaired driving. (Volume III, page 69) The officer also went on to testify and acknowledge that he never advised the defendant of his rights to counsel for impaired driving at any time.
[23] The officer explained on re-examination that this had been neglectful on his part and he may have forgotten to do so. It became obvious that this was the first time that this officer realized and admitted what had not in fact occurred in the circumstances of this case that he had assumed otherwise beforehand. In any event, neither was the defendant arrested for impaired driving nor did this officer provide rights to counsel to the defendant once he could and should have arrested him for impaired driving.
[24] Cst. Polan was the breathalyzer technician who attended the hospital at 6:37 a.m. to take breath samples from the defendant. He testified that at 6:58 a.m. he was provided with information from Cst. Banasik that included that the time of arrest was 5:42 a.m. As noted earlier, the arrest at 5:42 a.m. had been for public intoxication. At this point the defendant was being attended by a doctor and receiving stiches. The instrument set-up was completed by 7:14 a.m. and the defendant provided breath samples at 7:33 a.m. and 7:51 a.m. with results as earlier referenced.
[25] Between the first and second samples, the defendant answered questions asked of him. Cst. Pollan had provided rights to counsel to the defendant at 7:28 a.m. after reading the breath demand at 7:27 a.m. The defendant's response to asking if he understood his rights to counsel was initially "No" and then after explanation by the officer, "No, not now. Don't need to deal with that at the hospital."
[26] Cst. Pollan testified in chief that he read a caution to the defendant at 7:27 a.m. to the effect that depending on the results, he may be charged with "a criminal offence". He went on in chief to explain when asked to indicate as to what criminal offence and he replied "driving related offences, care and control impaired, drink, drive motor vehicle and potentially care and control motor vehicle in excess of 80 milligrams." These responses did not inspire confidence with the court and particularly so where the investigating officer had admitted that he did not arrest the defendant for impaired driving at any point.
[27] Furthermore, on cross-examination, Cst. Pollan admitted that the area on the alcohol influence report in relation to the caution was left blank and was not completed by him. He also admitted this blank space related to what the defendant was told or whether the defendant was told anything about what he was charged with. The officer acknowledged the frailties of the lack of proper record taking in the circumstances and relied on saying what he would do in a normal situation or as a common practice but admitted that he was not certain what was said verbatim.
The Law and Analysis re s. 10(a) and 10(b) of the Charter
[28] The pertinent provisions of Canadian Charter of Rights & Freedoms for the purposes of this case at this point are as follows:
s.10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor; and
(b) to retain and instruct counsel without delay and to be informed of that right.
[29] The onus is upon the defence to prove on the balance of probabilities that the defendant's Charter rights were infringed and that the admission of the evidence would bring the administration of justice into disrepute.
[30] In this case, counsel for the defence contends that the defendant was not arrested for the offence of impaired driving at any point in time, that the defendant was not informed promptly of the reasons particularly when jeopardy changed to the defendant for the criminal offence of impaired driving and that there was a resulting breach of the right to retain and instruct counsel without delay and to be informed of that right. As a result, the evidence of the breath the defence contends that the results of breathalyzer tests should be excluded under s. 24(2) of the Charter.
[31] The Crown submits that if a breach did occur, this was cured by a caution provided by the investigating officer at approximately 5:54 a.m. and otherwise later with the breathalyser technician and that, in any event, the evidence of the breath test results ought not to be excluded under Section 24(2) of the Charter.
[32] In this case, the defendant was arrested by approximately 5:42 a.m. for the provincial offence of public intoxication. By 5:55 a.m. or shortly thereafter, after the defendant made the additional utterances as mentioned, the investigating officer ought to have arrested the defendant for impaired driving and immediately provide the rights to counsel to the defendant.
[33] As was stated by the Supreme Court of Canada in R. v. Suberu 2009 SCC 33, [2009] 2 SCR 460 at paragraph 39 to 40 (wording in bold for emphasis):
39 The content of the police duties under s. 10(b) is not at issue in this appeal. Instead, the question is whether the right to retain and instruct counsel "without delay" means that these duties must be executed immediately at the outset of a detention, or whether these duties manifest at some later point subsequent to the start of a detention.
40 As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.
41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[34] This immediacy requirement in relation to the rights to counsel is not static and must, in situations of ongoing detention, be revisited. In R. v Sawatsky, [1997] O.J. 3561, Justice Doherty in reference to the jeopardy in the context of detained persons stated at paragraphs 30 – 31 as follows (wording in bold for emphasis):
30 The link between a detained person's need to understand the extent of her jeopardy; that is the nature and extent of her risk of self-incrimination, and the effective exercise of the right to counsel, provides the key to the determination of when the police will be required to reiterate the right to counsel in the course of an ongoing detention. If the risk of self-incrimination changes, the right to counsel must be restated so that a detainee can decide in the face of the new risk whether to exercise her right to counsel. The risk may change either because the reason for the detention changes or the focus of the police inquiry changes. Referring to the latter situation, McLachlin J. in R. v. Evans, supra, at pp. 306-307 wrote:
... I do, however, affirm that, in order to comply with the first of the three duties set out above [the police duty to inform the detainee of the right to counsel] the police must restate the accused's right to counsel where there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. [Emphasis added.]
31 In this passage, McLachlin J. observes that the focus of the police investigation may change either because the offence changes to a significantly more serious one, even though the circumstances under investigation remain the same (e.g. R. v. Black, supra), or because the investigation turns to a different and unrelated offence (e.g. R. v. Chartrand, supra). Either change triggers the obligation to restate the detainee's s. 10(b) rights.
[35] Notwithstanding the detention and arrest of the defendant for public intoxication in this case, once the utterances were made by the defendant in this case around 5:55 a.m., reasonable grounds then existed to arrest the defendant for impaired driving and both Section 10(a) and (b) and, at the very least Section 10(b), Charter duties came alive and manifested themselves immediately. In this case, neither of these duties were met. As stated in R. v. Sawatsky, supra, and applies here, "Once the police have a realistic indication that a detainee may incriminate herself in a different and unrelated offence, the police should…reiterate the detainee's right to counsel and connect that right to the new allegations."
[36] Furthermore, reference was made to R. v. Evans, [1991] 1 S.C.R. 869, a case where the police did not formally advise a youth of subnormal mental capacity when detained for murder and had not reiterated the right to counsel. In that case the majority of the court determined as follows at:
47 A second violation of the appellant's s. 10(b) right occurred when the police failed to reiterate the appellant's right to counsel after the nature of their investigation changed and the appellant became a suspect in the two killings. This Court's judgment in R. v. Black, supra, per Wilson J., makes it clear that there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning. This is because the accused's decision as to whether to obtain a lawyer may well be affected by the seriousness of the charge he or she faces. The new circumstances give rise to a new and different situation, one requiring reconsideration of an initial waiver of the right to counsel. On this point I prefer the judgment of R. v. Nelson (1982), 32 C.R. (3d) 256 (Man. Q.B.), to the decision in R. v. Broyles (1987), 1987 ABCA 222, 82 A.R. 238 (C.A.). I add that to hold otherwise leaves open the possibility of police manipulation, whereby the police -- hoping to question a suspect in a serious crime without the suspect's lawyer present -- bring in the suspect on a relatively minor offence, one for which a person may not consider it necessary to have a lawyer immediately present, in order to question him or her on the more serious crime.
[37] In addition, Sopinka, J. in agreeing with the majority also made this observation in relation to s. 10(a) of the Charter as follows (wording in bold for emphasis):
2 Section 10(a) and (b) set out very fundamental rights of a person arrested or detained. The instructions to the authorities which they contain are relatively simple. In each case, the detainee is to be "informed". In the case of s. 10(a), the right is to be informed of the reasons for the arrest or detention. The right to be informed of the true grounds for the arrest or detention is firmly rooted in the common law which required that the detainee be informed in sufficient detail that he or she "knows in substance the reason why it is claimed that this restraint should be imposed" (Christie v. Leachinsky, [1947] A.C. 573, at pp. 587-88). When an arrest is made pursuant to a warrant, this is set out in writing in the warrant. An arrest without warrant is only lawful if the type of information which would have been contained in the warrant is conveyed orally. The purpose of communicating this information to the accused in either case is, inter alia, to enable the person under arrest or detention to immediately undertake his or her defence, including a decision as to what response, if any, to make to the accusation. It seems axiomatic, therefore, that this information should be conveyed prior to questioning and obtaining a response from the person under arrest or detention. These basic and important values are included in s. 10(a) of the Charter.
[38] I should also comment on the submissions the Crown regarding the caution to the defendant at approximately 5:54 a.m. As recalled, the officer stated that he had then come to a conclusion that the defendant was operating a motor vehicle to the effect of an impaired motor vehicle collision. The officer had suspicion but did not have reasonable and probable grounds at that point to arrest the defendant at that time since there was no evidence then that the defendant was the driver of the van and/or at what time. The officer then provided a caution to the effect that the officer was conducting an impaired motor vehicle collision and that the accused had been charged with impaired operation of a motor vehicle. There was also no reference to a breath sample demand until 6:08 a.m. Ironically, as indicated on the Undertaking filed with the Information that the defendant was released upon, the charge then facing the defendant only referred to the offence of over 80 and there was no reference to impaired driving. This feature of confusion permeated throughout the evidence of both the investigating officer and breath technician and could not be clarified nor reconciled adequately to provide the court the confidence that the defendant would or could have adequately known in substance the reason claimed for his detention at that point or have the information to enable the defendant to immediately undertake his or her defence, decide and respond adequately.
[39] The Crown also referred to the case of R. v. Nagy, [1997] O.J. 1461. In that case the Ontario Court of Appeal the court decided that the accused was detained for the purpose of complying with a lawful demand for a blood sample where it was noted that the detention was technical because the accused was bed ridden from injuries in any event. Such was not the case here.
[40] Accordingly, in the circumstances of this case, the defence has established on the balance of probabilities that there occurred a violation of the rights of the defendant under both s. 10(a) and (b) of the Charter.
Section 24(2) Analysis
[41] This leaves the determination to be whether the evidence of breathalyzer results should be excluded under s. 24(2) of the Charter. This approach to this was reformulated in R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 as follows at paragraph 71:
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must 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 (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
[42] Justice Doherty in the case of R. v. McGuffie, 2016 ONCA 365, [2016] O.J 2504 explained the test in R. v. Grant as follows:
62 The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
The Seriousness of the Charter Infringing State Conduct
[43] The first stage of the analysis as explained in R. v. Grant at paragraphs 72 to 74 is as follows:
72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[44] In this case, the critical feature is that the defendant was never arrested for impaired operation of a motor vehicle. The investigating officer properly admitted at trial that was neglectful on his part. Although there is no finding of bad faith in this case, the investigating officer's belief in the state of affairs being properly conducted continued through to and only was made known for the first time during his evidence at the trial. In any event, neither was the defendant arrested for impaired driving nor did this officer provide rights to counsel to the defendant in this regard.
[45] Standing alone, this feature may not appear fatal to the admissibility of the evidence. However, either as a consequence of this error or further to this error, the breathalyzer technician, from information provided by the investigating officer at 6:58 a.m., proceeded on the basis of an arrest at 5:42 a.m. for what was actually a provincial offence. In addition, the initial indication of "criminal offence" during the caution by the breathalyser technician along with the area involving the caution area being left blank and not completed on the alcohol influence report, point rather to a larger investigation and informational breakdown creating a deficit between at least these primary officers who directly dealt with the defendant. Overall, when it came to the Section 10(a) and (b) Charter obligations, both were not addressed in the circumstances.
[46] In this context, the infringing conduct arose largely from the lack of an arrest ever being made, but assumed, of the defendant for impaired driving. Without an arrest, the defendant is left largely in an informational vacuum which is the result of implementation failures of both Section 10(a) and (b) Charter rights. These errors are not merely technical. Even if the errors are considered as mere oversights, such errors demonstrate the cascading and compounding effect of assumed Charter compliance. Moreover, such errors remained unknown and uncovered even to the primary investigating officers through to the trial of this case.
[47] As was stated by Ducharme, J. in R. v. Yeung, 2010 ONSC 2168, [2010] O.J. 1597:
55 The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers. As Sopinka J. observed in Bernshaw at para. 74:
• Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, that objective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this is what Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added.]
56 As Chief Justice McLachlin noted in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 (S.C.C.) at para 22, courts should dissociate themselves from police activity, "where the police knew (or should have known) that their conduct was not Charter-compliant." There is no question that P.C. Wollenzien should have known his actions did not comply with either the Criminal Code or the Charter and this weighs in favour of excluding the evidence.
[48] There are indeed situations where good faith will reduce the need for the court to dissociate itself from state conduct. This is not one of those cases. While done in good faith, the errors that occurred here were compounded between principal officers over a lengthy period of time and lead to a complete oversight of core Charter rights.
Impact on the Charter-Protected Interests of the Accused
[49] The second stage of the analysis is likewise explained in R. v. Grant as follows:
76 This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) - all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
[50] In the circumstances of this case, the issue is the admissibility of breath results as a result of the defendant participating and providing breathalyser samples. This court is mindful of the instruction in R. v. Grant, supra, dealing with bodily evidence as follows:
109 The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused's protected interests. In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions (as in Stillman). At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.
[51] In this case, the breach impacted the Charter-protected interests of the defendant in relation to both Section 10(a) and (b) rights. As mentioned before, these are specifically enumerated Charter rights that must be immediately provided and maintained throughout any detention. In R. v. Brown, [2017] O.J. 2196, the accused was likewise detained and found not to have been informed of his Section 10(a) and (b) rights. Such a failure was found to be more than a technical and that the impact significant upon the accused's Charter protected interests.
[52] There is no waiver of these rights by the defendant that could reasonably arise in this case and, as noted in many other cases, the standard to prove waiver by the defendant is significant. There also is no burden on the defendant to outline or speculate on what legal advice might have been provided to him. However, it is sufficient to note on the facts of this case as presented to this point, there certainly were issues that might well be addressed by experienced counsel in relation to the provision of breath samples in such a case. In any event, this feature favours exclusion of the breathalyzer readings.
Society's Interest in the Adjudication of the Case on its Merits
[53] Also, Justice Doherty's comments in R. v. McGuffie are instructive where he states as follows:
63 In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.
[54] The evidence from breath tests is certainly regarded generally as reliable and would be essential in relation to the over 80 charge. However, such samples of breath are not provided voluntary or on consent here but were provided in face of being presumably legally compelled to do so without the benefit of Section 10(a) and (b) Charter rights.
[55] Balancing the effect of admitting the breathalyzer readings obtained on society's confidence in the justice system, having proper consideration to the serious Charter-infringing state conduct and understanding the serious impact on the breach on well-recognized Charter-protected interests of the defendant, the results of breathalyzer readings cannot tip the balance for admissibility in these circumstances. In addition, the perception and considerations to guide the court to the "obtained in a manner" as outlined by Laskin, J. in R. v. Pinot are instructive and as follows:
72 Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):
- the approach should be generous, consistent with the purpose of s. 24(2);
- the court should consider the entire "chain of events" between the accused and the police;
- the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
- the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
- but the connection cannot be either too tenuous or too remote.
Conclusion
[56] Here, on a generous approach and considering the entire chain of events between the defendant and at least 2 principal police investigators in this case, the breathalyzer evidence was obtained as a part and during an ongoing breach of the Charter-protected rights of the defendant. Accordingly, it is this court's conclusion the breathalyzer results were obtained in a manner that infringed the defendant's rights and should not be admitted into evidence for the reasons outlined above.
[57] The breathalyzer results shall be excluded from evidence in this trial proceeding.
Released: June 29, 2017
Signed: Justice M.D. McArthur