Court Information

Ontario Court of Justice

Date: November 22, 2017

Court File No.: St. Catharines - 2111-998-17-T3981-00

Parties

Between:

Her Majesty the Queen

— And —

Matthew Hallmark

Judicial Officer and Counsel

Before: Justice R.C.B. Watson

Heard: October 3, 2017 at Milton

Reasons for Judgment Released: November 22, 2017 at St. Catharines

Counsel:

• Christina Lynch, Counsel for the Crown
• Ken Byers, Counsel for the Defendant, Matthew Hallmark

Reasons for Judgment

R.C.B. WATSON J.:

I. Overview and Summary of the Evidence

A. Observations of Driving

[1] At approximately 3:18 a.m. on June 12, 2016, Halton Regional Police Officer PC Dylan Danch's attention was drawn to the sound of a motor vehicle revving its engine on Mount Forest Drive in the City of Burlington. PC Danch was operating a fully marked police cruiser at the time. When he observed the vehicle in his rear-view mirror to be pulling out of a driveway, PC Danch did a three-point turn and followed the motor vehicle on Mount Forest Drive. PC Danch observed the vehicle driving at a high rate of speed after it left the driveway. The vehicle was approximately 100 to 200 yards ahead of PC Danch when it turned left onto Fisher Avenue and proceeded northbound. The vehicle turned eastbound on Parkway Drive. PC Danch lost sight of the vehicle briefly twice during his pursuit but was certain the vehicle he pulled over was the vehicle he observed revving its engine and driving at a high rate of speed.

B. Observations of Mr. Hallmark at the Roadside

[2] The vehicle pulled over on Parkway Drive after PC Danch activated his emergency equipment. The observations of the driving occurred for approximately one minute. Other than the speed and the revving of the engine there was nothing untoward about the driving of the motor vehicle. PC Danch attended at the driver's window and spoke to the driver, Mr. Matthew Hallmark. PC Danch immediately smelled cigarette smoke and had a conversation with Mr. Hallmark. Mr. Hallmark appeared to slur his speech during this conversation. PC Danch was unclear as to the specifics of the slurring of Mr. Hallmark's speech other than to say that he rolled his r's and his s's seemed to drag. This description is of no assistance to this court as it is a common occurrence in this multi-cultural country that many people speak with different accents, some have speech impediments and others have peculiar pronunciation. The issue of Mr. Hallmark's speech was not clarified and I am unable to therefore attribute this to an indicia of impairment by alcohol. Mr. Hallmark did appear very nervous and indicated he suffered from anxiety. Nervousness itself is also not an unusual attribute of a citizen who has been pulled over by a police officer in the middle of the night. PC Danch requested that Mr. Hallmark extinguish his cigarette as the hand holding it was shaking. Mr. Hallmark extinguished the cigarette without difficulty.

C. The Arrest for Possession of a Controlled Substance

[3] During this brief interaction PC Danch observed a small glass pipe protruding from Mr. Hallmark's left front pocket with what he believed contained marijuana residue around the bowl. PC Danch indicated that he has seen this many times in his four-year history as a patrol officer. It should be noted that there was no odour of freshly burnt marijuana detected by PC Danch. PC Danch at this point advised Mr. Hallmark that he was under arrest for possession of a controlled substance as a result of the observation of the pipe and the unidentified residue in the bowl of the pipe. Up to this point PC Danch had not observed any indicia of impairment by alcohol on Mr. Hallmark.

D. The Arrest for Impaired Operation

[4] PC Danch requested Mr. Hallmark exit his vehicle, which he did. While searching Mr. Hallmark incident to the arrest for possession of a controlled substance PC Danch detected the odour of alcohol emanating from Mr. Hallmark's breath, he stumbled when he stepped out of the vehicle and was observed to be wearing flip flops. PC Danch testified that he did not think Mr. Hallmark's footwear impacted on Mr. Hallmark's steadiness on his feet as the road was flat asphalt with no debris present. PC Danch at this point then arrested Mr. Hallmark for impaired operation of a motor vehicle on these observations alone.

[5] PC Danch searched Mr. Hallmark's motor vehicle and found a small pill bottle with a couple of flakes which he presumed were marijuana. It is important to note that Mr. Hallmark was never charged with possession of a controlled substance and the pill bottle containing the couple of flakes was lost by the police, and the pipe was not seized by PC Danch. The pipe and flakes should have been available at this trial as exhibits.

E. Breath Room Evidence and Readings

[6] Mr. Hallmark was read his rights to counsel and caution, and read the breath demand and transported to 30 Division where he arrived at approximately 3:48 am. Counsel for Mr. Hallmark takes no issue with the rights to counsel and caution nor the reading of the demand. PC Pam Douglas was the Qualified Breath Technician who took two samples of Mr. Hallmark's breath which resulted in readings of 150 mg of alcohol in 100 ml of blood and 137 mg of alcohol in 100 ml of blood. PC Douglas did not detect Mr. Hallmark to have any slurred speech during her time with him in the breath room. She did detect Mr. Hallmark to have bloodshot eyes and a dry mouth. She did not observe any noticeable stumbling or swaying of Mr. Hallmark. It is conceded by Mr. Hallmark's counsel that both samples were properly taken.

II. Issues in this Trial

[7] There are two issues in this trial:

1. Did PC Danch have reasonable and probable grounds to arrest Mr. Hallmark for possession of a controlled substance?

2. If the answer to number one is yes, did PC Danch have reasonable and probable grounds to arrest Mr. Hallmark for impaired operation of a motor vehicle? If the answer to number two is yes, counsel for Mr. Hallmark concedes the over 80 count.

[8] I find the answer to number one above is no. If I am wrong in this and another court finds that there were sufficient grounds to arrest Mr. Hallmark for possession of a controlled substance I find that there were insufficient grounds to arrest Mr. Hallmark for impaired operation of a motor vehicle. If I am wrong in that I would nonetheless exclude the breath samples under a Grant analysis.

[9] For the reasons below I agree that there was a s. 9 violation of Mr. Hallmark's rights in relation to the arrest for possession of a controlled substance and the arrest for impaired operation of a motor vehicle. As a result I find that there was a s. 8 violation in the taking of the breath samples. These Charter breaches cannot be saved by application of the principles enunciated in Grant and therefore Mr. Hallmark for the reasons contained herein is acquitted of both charges.

III. The Charter Application

[10] The applicant in this case, Mr. Hallmark, bears the onus on the s. 9 Charter arguments on the balance of probabilities. The respondent bears the onus on the related s. 8 assertion because there was a warrantless search and seizure in this case.

R. v. Haas, [2005] O.J. No. 3160 (C.A.), at paras. 24-26, leave ref'd [2005] SCCA No. 423.

[11] With respect to a remedy sought pursuant to s. 24(2) of the Charter, the applicant must establish a nexus between the breath samples and the asserted Charter breach or breaches. The applicant must also establish on a balance of probabilities that the admission of the evidence would tend to bring the administration of justice into disrepute.

R. v. Pino, 2016 ONCA 389, at para. 36.

[12] The submissions in this case make it clear that the s. 8 and s. 9 complaints are dependent on the core issue of whether PC Danch had reasonable and probable grounds to arrest Mr. Hallmark for possession of a controlled substance and for impaired driving. Specifically, the applicant says that PC Danch did not have sufficient grounds to make the arrest for possession of a controlled substance and impaired driving, and that therefore the arrest was arbitrary, and the subsequent seizure of the breath samples was a s. 8 breach warranting the exclusion of the breath results pursuant to s. 24(2) of the Charter.

Analysis

Reasonable and Probable Grounds to Arrest for Possession of a Controlled Substance

[13] The test to establish reasonable and probable grounds for arrest is not a particularly high threshold to meet. It involves more than a reasonable suspicion but less than proof beyond a reasonable doubt or a prima facie case.

[14] The analysis has a subjective and objective component that must be satisfied. The officer must honestly believe that the suspect committed the offence. However, that belief must be objectively supported by facts by which a reasonable person in the officer's position would conclude there were reasonable grounds to arrest. The analysis requires an assessment from the totality of the circumstances available to the officer at the time the opinion was formed.

R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.), at paras. 37-38.

[15] In this case PC Danch may well feel that he had subjective grounds to make an arrest for possession of a controlled substance but when viewed objectively and in view of the totality of the circumstances available to the officer at the time the opinion was formed, a reasonable person would not conclude that there were reasonable grounds to arrest for either possession of a controlled substance or impaired operation of a motor vehicle. Mr. Hallmark was entitled to carry a small glass pipe on his person, this is not an offence. A small glass pipe containing a residue around the bowl absent any analysis of the residue or other indicia of possession of a controlled substance such as the odour of freshly burnt marijuana in the air or on the person of Mr. Hallmark indicated nothing other than something was at some point smoked in the bowl. It was properly pointed out that this could have been tobacco. No other grounds existed for arrest. Because PC Danch seized flakes in a pill bottle (which were never analyzed) subsequent to the arrest does not retroactively make the arrest valid.

Reasonable and Probable Grounds to Arrest for Impaired Operation of a Motor Vehicle

[16] In the context of an impaired driving investigation, the officer must have grounds that the driver's ability to operate a motor vehicle was at least slightly impaired by alcohol. Slight impairment to drive involves a diminished ability "in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road".

R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at para. 47.

[17] There appears to be no single test or observation of impairment of control of faculties, standing alone, which is sufficiently conclusive. There should be consideration of a combination of several tests and observations such as general conduct, smell of the breath, character of the speech, manner of walking, turning sharply, sitting down and rising, picking up objects, reaction of the pupils of the eyes, character of the breathing. If a combination of several tests and observations shows a marked departure from what is usually considered as the norm, it seems a reasonable conclusion that the driver is intoxicated with consequent impairment of control of faculties and therefore that his ability to drive is impaired. I do not think such a finding should be made on a slight variation from the norm.

[18] A slight deviation in one factor standing alone does not likely constitute proof beyond a reasonable doubt of impairment. No circumstance should be considered in isolation. All of the evidence as a whole must be considered.

R. v. McKenzie, [1955] A.J. No. 38 (Dist. Ct.).

[19] PC Danch was a relatively inexperienced officer of about four years when he arrested Mr. Hallmark. He was a candid and forthright witness. In fact he conceded that he would do things differently in the future. He did not attempt to overplay any issues or shade his evidence in favour of the prosecution. In short, he was a credible and professional witness. It is however apparent that he lacked the necessary training with respect to the grounds for his arrest of Mr. Hallmark for possession of a controlled substance and impaired operation of a motor vehicle.

[20] The driving of Mr. Hallmark in this case is reasonably unremarkable. He appeared to be revving his engine and speeding, he was not swerving on the road, and he stopped properly when PC Danch activated his emergency equipment.

[21] Subjective reliance on these factors would likely cause an objective observer to opine that the officer was "reaching". There is little support for impairment to be found in the observed driving or Mr. Hallmark's conduct at the roadside.

[22] PC Danch's interaction with Mr. Hallmark also does not assist in the issue of impairment. Mr. Hallmark was nervous and stumbled when he exited his motor vehicle. PC Danch did not observe any odour of alcohol emanating from his breath until after he formed his grounds to arrest Mr. Hallmark for possession of a controlled substance.

[23] Mr. Hallmark may well have utilized the vehicle when he exited the vehicle but this in and of itself is equally consistent with exiting a motor vehicle and not necessarily a reliable indicia of impairment. Leaning against the vehicle on one occasion was more likely to result from normal causes than being a reliable indicator of impairment from drugs or alcohol where there was no other evidence of problems with balance.

R. v. McGuigan-Scott, [2004] S.J. No. 659 (Prov. Ct.), at para. 41.

[24] Nervousness was rejected as an excuse for indicia of impairment.

R. v. James, [2001] A.J. No. 243 (Prov. Ct.).

[25] The odour of an alcoholic beverage emanating from a driver's breath is an indication that the driver is operating or has been operating a motor vehicle with alcohol in his body. Grounds for an approved screening device demand were present in this case and not much more. An approved screen device demand was never given to Mr. Hallmark and a roadside screening test was never performed in this case. One should have been done in the circumstances.

[26] While considering the totality of the circumstances I must consider factors that both support and undermine the officer's grounds. Apart from the revving of the engine and the speed of driving and the slurring of the speech which I have referred to above there is no objective support for problematic driving leading to a conclusion of impairment. When Mr. Hallmark exited his vehicle he stumbled once but his balance and walking and gait were fine when he walked to PC Danch's police cruiser.

[27] A general reference to slurred speech by the arresting officer without detail or context does not permit an independent objective assessment.

R. v. Lozanovski, 2005 ONCJ 112, [2005] O.J. No. 1322 (O.C.J.), at para. 33.

[28] In the frequently cited decision of Justice MacDonnell, then of this Court, in R. v. Cooper, [1993] O.J. No. 501, the court was presented with similarly limited grounds in support of an arrest for impaired driving. The officer in that case testified to a strong odour of alcohol from within the vehicle, glassy eyes and slurred speech. Aside from squealing tires which resulted in a Highway Traffic Act stop, there was nothing unusual in the driving.

[29] In finding an absence of reasonable and probable grounds, the court observed on page five:

The information known to Constable Ellis considered in its totality cannot reasonably be said to support more than a suspicion in that regard. Based on that suspicion the officer might properly have required a screening test at roadside, but by placing the accused under arrest and proceeding directly to a breathalyser demand, Constable Ellis took an impermissible shortcut.

R. v. Cooper, supra, p. 5.

[30] I would draw the same conclusion here. This is a case for an approved screening device demand. By moving to arrest without sufficiently objective grounds, an impermissible shortcut was taken.

[31] For the reasons stated, I find an assessment of the totality of the circumstances do not support objectively reasonable and probable grounds to arrest for either the possession of a controlled substance or the impaired operation. Consequently the applicant's s. 8 Charter right to be secure from unreasonable search and seizure were ultimately violated in this case and the applicant's s. 9 Charter right to not be arbitrarily detained or imprisoned have also been violated. This does not end the analysis however.

[32] If I am wrong, and an appellate court determines that there were reasonable and probable grounds to make the arrest for possession of a controlled substance and/or the impaired operation I must now turn to the evidence on the voir dire and trial proper (which in this case is the same) and whether it meets the test outlined in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (S.C.C.), that any degree of impairment from slight to great is established then the offence is made out. In this case on these facts I find there is no degree of impairment which meets the low threshold in Stellato.

Section 24(2) of the Charter

[33] In 2009 the Supreme Court revised the framework by which to consider the admissibility of evidence obtained in violation of the applicant's Charter rights. At paragraph 71 of the majority judgment in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32:

When faced with an application for exclusion under Section 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.

[34] 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.

[35] Since Grant, there have been countless decisions applying this framework in the breath sample context where there have been s. 8 and s. 9 breaches due to lack of reasonable and probable grounds. This therefore is a fact-driven exercise in balancing the three factors.

Seriousness of the Breach

[36] An arrest in the absence of reasonable and probable grounds can and in most cases will be a serious violation of the applicant's Charter rights. As outlined in Grant I have to consider in this case the seriousness of the Charter-infringing state conduct on a continuum which ranges from conduct which is inadvertent or minor, to conduct which is willful or reckless. Good faith can mitigate the seriousness of the breach, however negligence and willful blindness cannot constitute good faith.

R. v. Tsekouras, 2017 ONCA 290, at para. 109.

[37] The breach in this case is a result of the negligence. Although I do not find that PC Danch acted with bad faith, he demonstrated a lack of understanding of what constituted reasonable and probable grounds to arrest Mr. Hallmark for possession of a controlled substance. This is a serious breach as I have found that there were no grounds to arrest Mr. Hallmark for possession of a controlled substance. Ignorance of Charter standards cannot be ignored and negligence cannot be equated with good faith. This is sufficiently serious that the first of the Grant factor favours exclusion of the evidence.

[38] This concern is highlighted in the over 80 context where the police have ready access to relatively easy means to confirm grounds where a reasonable suspicion exists that the driver had alcohol in his system. As observed by Justice Beninger in R. v. Robinson, 2009 ONCJ 450, [2009] O.J. No. 4018, infra at para. 30:

It was clearly contemplated by Parliament that there be two different standards to be followed by police in their investigation of drinking and driving offences. In my view, taking what is referred to in Cooper as an "impermissible shortcut" is a serious breach of Charter rights. The different standards for making demands for an ASD and for arrest for breath testing have existed for a substantial amount of time and should be well known to, and well recognized by the police who enforce those different standards.

The Impact of the Breach on the Charter-Protected Interests of the Accused

[39] The impact of the breach on the accused's Charter-protected interests can range from "fleeting and technical to profoundly intrusive." The Supreme Court in Grant discussed the minimally intrusive nature of breath testing and cautioned against the tendency at the time to presumptively exclude breath samples from minor violations. Under this line of inquiry, a court must look at the interests engaged by the rights infringed and evaluate the extent to which the violation impacted these interests.

R. v. Grant, supra, at para. 106.

[40] Some recent decisions applying the Grant framework to breath readings obtained in the absence of reasonable and probable grounds, have found the impact on Charter-protected interests to be relatively substantial. In this vein, these decisions have noted the collective strain on the Charter-protected interests of the accused of being detained, handcuffed, searched, transported, subjected to extraction of breath samples, lodged in a cell for hours and subjected to the automatic administrative suspension of driving privileges. Almost all of these circumstances apply to the applicant in this case.

R. v. McMeekin, [2014] O.J. No. 1062 (O.C.J.)

R. v. Outri, [2015] O.J. No. 3981 (O.C.J.)

R. v. Leonardo, 2009 ONCJ 507, [2009] O.J. No. 5082 (O.C.J.)

[41] I find that the impact on the applicant's Charter-protected interest in this case to be very significant, favouring exclusion. PC Danch arrested Mr. Hallmark for possession of a controlled substance in the face of no objectively reasonable grounds. The pipe that Mr. Hallmark had can be purchased legally at many local variety stores and other places. The residue was never analyzed, the pipe was not seized and the flakes were lost by the police. An arrest in the face of no objectively reasonable grounds and the subsequent lack of seizure of what would have been a key piece of evidence to prove the possession of the controlled substance, namely the pipe, and the fact that the flakes were lost by the police are serious problems which lead me to favour exclusion. This is less than acceptable police work. The arrest for the impaired operation was not much better.

[42] The facts of this case involve a brief period of driving and a safe stop. The safe stop was followed up by a flawed arrest for possession of a controlled substance and a flawed arrest for impaired operation of a motor vehicle. Society has a right to have matters adjudicated on their merits, but this right is not an absolute or limitless right. Society and its citizens also have a right to conduct themselves without the unnecessary intrusion into their rights for insufficient grounds. To arrest a person for being in lawful possession of a legal item cannot be seen to be consistent with having an adjudication on the merits. These are not the foundations that a free and democratic society are built on. To admit the evidence in this case would send that clear message that individual rights count for little.

Societal Interest in Adjudication on the Merits

[43] The breath readings are highly reliable evidence. The third line of inquiry asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. This step involves the testing of the reliability of the evidence of the Crown and its importance to the case of the Crown.

R. v. Grant, supra, at para. 79.

[44] Without this evidence, the Crown would have no case on the over .08 charge. As the Supreme Court of Canada observed in Grant, the third branch of the s. 24(2) inquiry will rarely favour exclusion of breath samples.

[45] There is a compelling societal interest to see drinking and driving cases determined on their merits. The case law is replete with references to the dangers and prevalence of impaired driving and the related carnage it has wrought on our roads, streets and highways. The crucial and highly reliable nature of breath samples have also been repeatedly cited in support of admissibility.

[46] There is also a related line of reasoning, countenanced in Grant, advancing a more tempered assessment of society's interest in seeing drunk driving cases all the way through. It cannot be at all costs. At para. 80 of Grant:

The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained ... is inconsistent with the Charter's affirmation of rights.

More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.

[47] This third line of inquiry – the effect of admitting the evidence on the public interest in having a case adjudicated on its merits – will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from an accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.

[48] As would be the case with many over 80 cases, the application of this factor supports the admission of the breath samples. That however is not the case here. The violations of s. 8 and s. 9 of the Charter in this case cannot support the admission of the otherwise reliable breath samples of Mr. Hallmark. The intrusions on Mr. Hallmark's constitutionally guaranteed rights are simply too great to allow the readings into evidence. The readings are excluded.

Balancing the Grant Factors

[49] In further support for the exclusion of the breath samples in this case I am also mindful of the Grant analysis at paras. 72-74 as cited in the case of R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 at pp. 49-62. The breaches here are on the higher end of the spectrum and arise from a misunderstanding of the grounds to arrest and a corresponding disregard for Mr. Hallmark's rights. There is a very strong need for this court to disassociate itself from this conduct. I do not find PC Danch to have been a discreditable or dishonest witness in any regard, far from it, but I do find that he was insufficiently aware, perhaps given his training, of the rights of Mr. Hallmark.

[50] The absence of reasonable and probable grounds in any investigation and arrest is concerning.

[51] Grant of course requires that I bear in mind the long term effect on the administration of justice by admitting evidence obtained by the infringement of constitutionally protected rights. The conduct or practices of the police in this case were below a constitutionally acceptable standard. The long term public confidence in the administration of justice would be hampered or harmed through the admission of the breath samples in this case.

[52] I am also guided by the case of R. v. Rehill, 2015 ONSC 6025, [2015] O.J. No. 5068, which is a decision of Justice Kenneth Campbell of the Superior Court wherein at paras. 46-48:

[46] At the same time, there are empirical statistical studies concerning the admissibility of evidence under s. 24(2) of the Charter following the Supreme Court of Canada decision in Grant which suggest that breath sample evidence is still being excluded at a "striking" and "remarkably" high rate – perhaps at "too high" a rate. See Mike Madden, "Empirical Data on Section 24(2) under R. v. Grant" (2010), 78 C.R. (6th) 278, at p. 281; Mike Madden, "Marshaling the Data: An Empirical Analysis of Canada's Section 24(2) Case Law in the Wake of R. v. Grant" (2011), 15 Can. Crim. L. Rev. 229, at pp. 242-243; Ariane Asselin, "Trends for Exclusion of Evidence in 2012" (2013), 1 C.R. (7th) 74, at p. 88; R. v. Hamzehi, 2015 ONCJ 95, [2015] O.J. No. 907, at paras. 15-31.

[47] While there may well be a variety of explanations for such trending figures over any given period of time, the existence of such puzzling statistics suggests that it may be important to recall that, in R. v. Grant:

• The Supreme Court lamented the "anomalous result" that under the previous Stillman regime, "breath sample evidence tendered on impaired driving charges" had "often suffered the fate of automatic exclusion even where the breach in question was minor and would not realistically bring the administration of justice into disrepute" [at para. 106];

• The Supreme Court expressly rejected the prior Stillman regime in relation to the admissibility of "bodily evidence," concluding that the former approach, which asked simply "whether the evidence was conscripted," should "be replaced by a flexible test based on all the circumstances, as the wording of s. 24(2) requires" [at para. 107];

• The Supreme Court stated that the third prong of the s. 24(2) inquiry "will usually favour admission in cases involving bodily samples" as such evidence "is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission" [at para. 110]; and

• The Supreme Court observed that where the Charter violation is "less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted," which "will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive" [at para. 111].

[48] These important directions from the Supreme Court of Canada, like all aspects of the governing Grant/Harrison analysis, must be carefully considered by any court determining the admissibility of the results of breath sample evidence under s. 24(2) of the Charter. The trial judge in the present case erred in failing to consider these directions, and erred in failing to undertake the required analysis. The days when such breath sample evidence was routinely and near-automatically excluded under s. 24(2) of the Charter are over.

[53] The breaches in this case are serious. The impact on the applicant's Charter protected interests in this case are very significant. Despite the line of authority under the third prong of the s. 24(2) inquiry cited above which indicates courts "will usually favour admission in cases involving bodily samples" as such evidence "is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission" the admission of the breath samples in this case cannot be supported for the aforementioned reasons. A right and clear thinking member of the public could not understand the behaviour of the police to have been consistent with a proper and just society. The breath samples are excluded.

[54] Based on the above findings, I find Mr. Hallmark not guilty of impaired driving and not guilty of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood.

Released: November 22, 2017

Signed: "Justice R.C.B. Watson"