Court File and Parties

Ontario Court of Justice

Date: February 2, 2017

Court File No.: OTTAWA 15-A10637

Between:

Her Majesty the Queen

— and —

Ronald Dallaire

Before: Justice Jacqueline V. Loignon

Heard on: December 13, 2016

Reasons for Judgment released on: February 2, 2017

Counsel:

• Mr. J. Ramsay, counsel for the Crown
• Ms. E. Davies, for the defendant Ronald Dallaire

Judgment

LOIGNON, J.:

[1] Charge and Application

[1] The accused is charged with driving with a blood alcohol concentration of in excess of 80 mg of alcohol per 100 ml of blood. Mr. Dallaire seeks an order staying the proceeding against him pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms based on allegations of violations of his rights under sections 7, 8, 9, 10(a) and (b) of the Charter. In the alternative, he submits that if this is not one of the "clearest of cases" where a stay of proceedings should be granted, the evidence against him ought to be excluded pursuant to section 24(2) of the Charter.

[2] The Applicant alleges the following breaches:

• that he was not advised of the reason for his roadside detention thus breaching his rights under section 10(a);
• that because the roadside test was not administered forthwith, and the accused was not provided with rights to counsel, his rights under 10(b) were violated;
• that because the samples were not taken as soon as practicable police did not comply with section 258(3) of the Code thus violating sections 7, 9 and 8 of the Charter; and
• that because he was held for a number of hours following the testing, he was arbitrarily detained, thus violating sections 7 and 9 of the Charter.

Overview

[3] The following were not at issue during the trial: date, jurisdiction, calibration of the ASD, grounds for the ASD demand, compliance with the as soon as practicable requirement for the breath testing once in the custody of the technician, and finally, that the Intoxilyzer was properly functioning and operated. The Certificate of Qualified Technician was filed as Ex. 1 and set out two readings of 230 mg of alcohol in 100 mL of blood at 18:40 and 19:02. The defence did not call any evidence on the Charter Application though the accused did swear an affidavit, which was filed with the Notice of Application.

Evidence

[4] Cst. Daniel Gervais is an Ottawa Police officer assigned to patrol in the Orleans area of the city. At 17:01 he was dispatched to a call for a possible impaired driver at 6632 Notre-Dame St. After a short patrol, he saw the van pull into the parking lot of an apartment complex at that address. He confirmed that it was the car he was looking for, and then queried the vehicle, confirming who it belonged to. At shortly before 17:20 he spoke to the driver. Though he could not recall the first thing he said to the accused, he recalled asking for his driver's licence, whether he had been drinking that day, and when had been his last drink. He did not recall if he advised the accused of the call to police. The accused said his last drink had been at 3 pm. At this point the officer noted an odour of alcohol causing him to ask the accused to exit the vehicle. He then read the ASD demand verbatim from his notebook, in French. The time noted when the officer read the demand was 17:20.

[5] Cst. Gervais did not have an ASD with him and so advised the accused there would be a short delay while one was brought. Prior to locating the van and arriving on scene, because of the nature of the call, the officer had requested that a unit in the area bring a device to him. He specifically asked for a nearby unit to minimize any delay. He was not however told how long it would take or where the unit would come from. He testified that had the delay been unreasonable or extended more than the few minutes they waited, he would have provided the accused with rights to counsel. At the time, the officer did not make any inquiries into whether the accused had a phone and did not think of allowing him into his residence to call a lawyer. The officer noted that he was not aware of a telephone having been found and the accused did not say he had a telephone or that he wished to use it.

[6] Once Cst. Armstrong arrived on scene at 17:26, she provided him with the device. Cst. Gervais turned it on, made sure it was working, conducted a self-test, explained it to the accused who had no questions, and re-set the machine. At 17:29 the accused gave a sample and the result was a "Fail". Cst Gervais showed the accused the result and advised him he was under arrest for driving over 80. Following this, he handcuffed, searched and placed the accused in the cruiser, stored the ASD and coordinated the various tasks with other officers. At 17:33 he read the caution followed by RTC at 17:36 and the demand at 17:38. At all times the accused responded that he understood. At 17:41 they left for the Elgin Street police station. Cst. Gervais noted that a breath technician was requested prior to his arrival at the station though he could not say when the request was made or by whom.

[7] The officer drove directly to the station, which took approximately 14 minutes. Once there at 17:55, he completed the booking sheet, stored his firearm, paraded the accused before the cell sergeant advising of the circumstances of the arrest. Next came a secondary search by the cell block special constables followed by the accused being placed in a room to speak with a lawyer at 18:10. Cst. Gervais did not recall any delays during the cell processing.

[8] By 18:15 the accused had finished speaking with a lawyer. At that point the officer spoke with the BT. He did not speak with him earlier as he had to remain in proximity to the accused, still being responsible for him. Furthermore, he was not aware when the BT was available, if indeed he was prior to 18:15. He completed his conversation at 18:29. The only discussion which took place during this period related to the grounds for the arrest and information concerning the accused. By 18:29 the officer was ready to bring the accused to the BT, however there was another person being processed. Because two people cannot be moved around at the same time in cells, there was a 3 minute delay before the accused was brought to the BT at 18:32. The accused was returned to him at 19:05 at which time he also received various documents from BT. This ended Cst. Gervais' involvement with the accused.

[9] Cst. Sarah Armstrong was notified at 5:21 pm by dispatch and also by Cst. Gervais that he needed an ASD. She was a 5-minute drive from his location and proceeded directly there. Though a patrol car assigned to Orleans, she did not tell Cst. Gervais where she was nor how long it would take her to get there. Upon arrival at 6632 Notre-Dame in a back parking lot, she saw Cst. Gervais speaking with the accused who was outside the van, not wearing cuffs. Upon her arrival, Gervais immediately used the ASD. Once the testing was completed, Gervais asked that she search the car and do the vehicle impounding. She also spoke with a civilian on the scene at 17:30. Gervais was still there and left at 17:36. These times were taken from a watch or computer.

[10] Mazen Dikah was the cell block Sgt. on duty the evening and early morning of the accused's arrest. He testified that at 1902 hrs. he was advised of the breath testing results namely 230 mg of alcohol per 100 mL of blood. He testified that the rule of thumb when determining the appropriate opportunity to release someone is to allow for an elimination rate of 15 mg per hour. The goal is to ensure someone's level of sobriety prior to release lowers to between zero and 80 mg of alcohol per 100 mL of blood. In this accused's case, given his readings, the wait period was approximately 10 hours. In this officer's view, this calculation was generous as it would only have brought the accused down to 80 mg. The accused was ultimately released at 04:48.

[11] In terms of verification, the cellblock Sgt. is able to view detainees on CCTV but special constables do rounds every 15 minutes. He would have been made aware of any issues by the special constables. When asked if the behaviour in cells will affect how long someone is held on an impaired charge, the officer answered that sometimes, though some people can function with more alcohol in their system. The officer observed that he had a duty of care to the person being detained, thus he was responsible for the person upon leaving the station, requiring that he ensure the accused was safe. In terms of actually making arrangements to get home, police will only become involved if the individual is a youth. For an adult, they will leave it up to them. He was not provided with any information nor was he made aware of any plans for the accused to get home. Had the accused made him aware of any plans or sought to speak with him, he would have taken notes of this and certainly would have assisted.

[12] On this particular day, between 6 pm and 5 am there were between 25 and 35 detainees who went through the cellblock.

[13] The following is a summary of the relevant times:

Event	Time
Dispatch to suspected impaired driver	17:01
Grounds formed and demand read	17:20
ASD arrival	17:26
ASD result and arrest	17:29
Rights to counsel, caution and demand read	17:33–17:38
Departure for Elgin St. police station	17:41
Arrival at station	17:55
Exercising rights to counsel	18:10
Grounds provided to the technician	18:15–18:29
1st Intoxilyzer test	18:40
Testing and paperwork completed	19:05
Release from custody	04:48

[14] The time from arrest to the first test is 1 hr. and 11 minutes. From the time of dispatch to the time of arrest is 1 hour and 39 minutes.

Issue 1: Section 10(a) Breach

[15] In R v. Evans, the Supreme Court of Canada reviewed general principles underlying sections 10(a) and 10(b) of the Charter. At paragraph 35, the Court noted the following:

When considering whether there has been a breach of section 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under section 10(b).

[16] In that case, the Court considered the responses provided by the accused to ascertain whether he understood the shift in the investigation and thus any subsequent acquiescence or submission to the detention. The Court determined that there was no breach of section 10(a). I do note that in that case the investigation was into a homicide and not a roadside investigation, a very different context for the sake of a 10(b) analysis.

[17] Case law has developed to the effect that where drivers are stopped at a police sobriety spot check program; are stopped after erratic driving or are questioned about drinking and driving by the investigating officer, the reason for detention is plain to the detained driver and does not require the officer to specifically articulate the reason. (See R v Borer, [2015] OJ No 3811 (SCJ); R v Carrier, [2008] AJ No 361(CA); R v Daw, [2012] OJ No 2518; R v Hazlett, [2008] NBJ No 476 (QB); R v Herter, 2007 ABQB 756; R v Kumarasamy, [2011] OJ No 2114 (SCJ); R v Martin, [1998] BCJ No 819 (CA); R v Perret, [2007] AJ No 1034; R v Williams, [2007] BCJ No 257(S.C.))

[18] In Kumarasamy, supra, a decision relied upon by the Crown, the Court referred to R v Nguyen, 2008 ONCA 49, a prior Court of Appeal decision on section 10(a). In that case, the Court of Appeal recognized that there is compliance with section 10(a) when the person arrested or detained is informed in substance as to the reason for detention or the circumstances show that the person would have been aware of the reason for detention.

[19] In this case, the officer immediately asked the accused for his driving documents, whether he had been drinking, and when had been his last drink. The accused answered the questions in relation to his alcohol consumption and a screening demand was then made. In my view, it was not necessary for the officer to advise the accused of the 911-call in relation to a suspected impaired driver. The reference to alcohol consumption, time of the last drink, the request for driving documents, and his presence in his vehicle when seconds before he had been driving are all objective factors that made it plain that the officer was investigating him in relation to driving and alcohol. There is no other evidence, which suggests or lends itself to support that subjectively this was not the case. I therefore find that the accused has not established on a balance of probabilities that there was a breach of section 10(a) of the Charter.

Issue 2: Was the ASD Test Administered Forthwith?

[20] As noted above, the accused takes issue with the late arrival of the ASD and suggests that because of the wait for the device, the test was not administered forthwith. During that time he was detained, the accused was not provided with rights to counsel thus constituting a breach of his section 10(b) rights.

[21] It is well settled that forthwith connotes an element of immediacy, both in terms of the demand and compliance. It is this factor, which allows the regime in section 254(2) to pass constitutional muster, otherwise the detention would be illegal, the search unreasonable and the failure to give rights to counsel without delay a further violation of Charter rights. Indeed, as stated in R v Quansah, 2012 ONCA 123:

So long as the demand is validly made pursuant to section 254(2) - that is, so long as it is made "forthwith"- for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her rights to counsel.

[22] To determine whether a demand under section 254(2) has been made forthwith, the Court of Appeal gave the following guidance in Quansah at paras 45-50 which I am summarizing:

• The analysis of the immediacy requirement must be done contextually;
• The immediacy requirement commences at the stage of reasonable suspicion;
• Though in unusual circumstances a more flexible interpretation may be given, the time must be no more than is reasonably necessary to enable the officer to discharge his or her duty;
• "Reasonably necessary" may arise where a delay is occasioned because the ASD is not immediately available, to ensure an accurate result, or due to articulated and legitimate safety concerns; and
• Whether police could realistically have fulfilled their obligation to implement the detainee's section 10(b) rights before requiring the sample.

[23] With respect to the analysis concerning implementation of rights to counsel in this context, the Court of Appeal in R v George, quoting R v Côté, said that even where an ASD demand has been made immediately,

"if an officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under section 238(2)."

[24] A two-step approach has been recommended to determine whether there is a realistic opportunity to consult with counsel prior to the arrival of the ASD. (See R v Steele, 2014 ONCJ 583) The questions were framed in the following manner:

1. whether the facilities required to consult counsel are available having regard to privacy, security and the integrity of the investigation; and

2. whether the period of delay is long enough in the particular circumstances to enable the right to counsel to be accommodated including contact and meaningful consultation.

Analysis

[25] In this case the issue is not with the demand having been made in violation of the forthwith requirement rather, it is the administration of the test. Indeed, the officer made the demand at 17:20 immediately upon forming his grounds. Subsequently, he advised the accused that there would be a short delay for the device to arrive on scene. It bears noting that prior to arriving at the Notre-Dame street location, the officer had already radioed for a device to be brought to him by a nearby unit. He was made aware that one was being brought to him though he could not recall the specifics of who was assigned the task, where the unit would be coming from, or how long it would be. Notably, the request was made before he had located the accused and before he had any confirmation of the need for a device. He was being cautious and anticipating the need based on the nature of the call. When asked whether he considered giving rights to counsel, he advised that had the delay become unreasonable, more than the few minutes they waited, he would have provided rights to counsel. The device arrived within 6 minutes.

[26] There is no evidence that the accused had a phone, no evidence that he had the name of a lawyer, and no evidence whether the accused's home was viewed as a suitable place for a phone call. Though logistically its suitability is obvious, there would be other concerns including safety and investigative integrity. On these issues, I have no evidence one way or the other. I do however know that once the accused was put in contact with counsel, he spoke with them for only five minutes – a relatively brief period of time. It is unclear whether the accused selected a name from a list or whether he had his own. Obviously, selection from a list at the station is a much neater and faster proposition than the accused having to search for various names to then select counsel. Even bearing in mind that the accused took 5 minutes to consult with counsel, given all of the other uncertainties, I am not satisfied that it has been established that the accused had a realistic opportunity to meaningfully speak with counsel in the 6 minutes he and the officer waited for the arrival of the device.

[27] Concerning the two questions to be answered, first, I am not satisfied on a balance of probabilities that the facilities required to consult counsel were available or necessarily appropriate in the circumstances. As to the second line of inquiry, I am not satisfied that there was a realistic opportunity for a meaningful consultation with counsel in the time that it took for the device to arrive on scene. I make this last finding bearing in mind the specifics of this case but also prior case law where this has been at issue: See as cited in R v Torsney, 2007 ONCA 67 para 11: R v Singh, [2005] OJ No 4787 (Ont CA), eleven minutes from demand to the arrival of the ASD and a further six minutes to testing; R v Pilon, [2006] OJ No 701 (Ont SCJ), five minutes to the arrival of the ASD and a further two minutes to testing; and in R v Latour, eight minutes from demand to the arrival of the ASD and a further four minutes to testing. In Torsney, supra, the delay was 6-7 minutes; R v Yamka (2011), 2011 ONSC 405, the delay was 10 minutes; R v Au-Yeung, 2010 ONSC 2292, the delay was 8 minutes.

Issue 3: As Soon as Practicable

[28] Counsel for the accused argues that the Crown has not satisfied the requirement in section 254(3) in that the samples were not taken as soon as practicable. The Ontario Court of Appeal has defined the term "as soon as practicable" as meaning nothing more than that the tests were taken within a reasonably prompt time under the circumstances; the tests need not be taken as soon as possible. (R v Vanderbruggen at para 12.) Looking at the whole chain of events, bearing in mind an outside limit of two hours from the time of the offence to the taking of the first test, the court must look at whether the police acted reasonably. The Crown is obligated to demonstrate that, in all the circumstances, the breath samples were taken within a reasonably prompt time. There is no requirement however that the Crown provide a detailed explanation of what occurred during every minute that the accused was in custody. (Vanderbruggen at paras 12-13.)

[29] It is of course for the Crown to provide the explanation for any delays. As noted by Justice Durno in R v Schouten, [2002] CarswellOnt 4528, and cited with approval in R v Him, [2011] CarswellOnt 2118 at para 48:

The case law appears to be quite clear that absent any evidentiary basis upon which the court can come to a decision, the court is left to speculate as to the reason or reasons for any significant delay in the process of dealing with the defendant, and that factor alone can result in the court being left in doubt as to whether the Crown has met its onus of proving beyond a reasonable doubt that the tests were taken as soon as practicable.

Analysis

[30] Ms. Davies argues that police took too much time processing the accused at the station and points to the following delays: the time after the initial arrival at the station; the wait during the call to counsel; and the time taken to give the grounds to the technician.

[31] The trial record before me provides an almost minute-by-minute accounting of what happened from the time of arrival at the station to the transfer of custody to the technician. All of the actions related to the accused and the investigation. None in my view were unreasonable or unnecessary: there is paperwork that is required to process the accused in cells; the officer in charge of the cell-block needs to be made aware of why the accused is in cells; the accused must be searched prior to being lodged in cells; the accused must speak to counsel; and the officer must communicate the grounds as well as other tombstone information to the technician prior to the tests being administered. This must be recorded. Though there was no impaired driving investigation that does not mean that the officer should not relate the full extent of what they feel is necessary to the technician. The officer testified that there was no other peripheral conversation with the technician, that all of his time during that particular period was in relation to this accused and his investigation. Bearing in mind that the Code allows for an outside limit of 2 hours, and that in this case the time from arrest to the first test was 1 hr. and 11 minutes while from the time of dispatch to the first test was 1 hour and 39 minutes, and that all time periods are explained, I am satisfied that the Crown has demonstrated that the tests were taken reasonably promptly under the circumstances.

Issue 4: Overholding and Stay of Proceedings

a) Overholding

[32] An accused person's right not to be arbitrarily detained may be violated where, in the impaired driving context, consideration is not given to their release following completion of the breath testing. R v Sapusak, [1998] OJ No. 4148, and R v Iseler, are examples of the Ontario Court of Appeal's views on overholding. In the former case, no breach was found while in the latter, the cavalier disregard by custodial officials of their obligations and the accused's circumstances resulted in a breach. More recently, the Summary Conviction Appeal Court found a breach in R v Price, [2010] ONSC 1898, where custodial officials limited their consideration to the breath readings rather than the readings combined with the statutory factors prescribed in section 498 of the Criminal Code and the accused's circumstances, including his wife's availability to attend and pick him up. Section 498 of the Code requires that individuals arrested without a warrant be released as soon as practicable. The exceptions to this requirement are where the officer in charge believes on reasonable grounds that the person will fail to appear in court, or it is necessary in the public interest to detain. The "public interest" in this context includes the need to establish the identity of the person, secure or preserve evidence of or relating to the offence, prevent the continuation or repetition of the offence or the commission of another offence, or ensure the safety or security of any victim of or witness to the offence.

[33] In order to ensure compliance with section 498 of the Code and thus section 9 of the Charter, the Summary Conviction Appeal Court noted the following relevant considerations at para 93:

• The accused's blood alcohol level;
• Whether the accused is charged with impaired operation of a motor vehicle;
• The accused's level of comprehension;
• That the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension);
• That the accused's vehicle has been impounded;
• Whether there is a responsible person available to pick the accused up;
• Whether the accused has a criminal record and its contents;
• Whether the accused has any outstanding charges;
• The accused's attitude;
• The poor judgment displayed by the accused by drinking and driving; and
• Any other factors relevant in the particular circumstances.

[34] The Court observed that custodial officials may ultimately decide to detain because of the blood alcohol readings, however, in order to meet their Charter obligations, they must nonetheless turn their minds to alternatives to detention. (Price, Ibid)

b) Stay of Proceedings

[35] In R v Gowdy, [2016] ONCA 989, the Court of Appeal recently re-stated the categories and criteria a court must consider where an accused person seeks a stay of proceedings because of a violation of his or her rights. The Court described the categories as follows:

Cases necessitating a stay of proceedings for an abuse of process generally fall into two categories. The "main" category is where state conduct compromises the fairness of an accused's trial. The "residual" category captures where there is no threat to trial fairness but the state conduct risks undermining the integrity of the judicial process: Babos, at para. 31.

[36] The test to be applied was summarized at para 59 and then explained in the subsequent paragraphs:

[59] The standard according to which courts are to determine whether to stay proceedings has three requirements:

i. prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested, perpetuated or aggravated through the conduct of the trial or its outcome;

ii. no alternative remedy capable of addressing the prejudice; and

iii. where uncertainty persists after requirements i. and ii. have been considered, whether the interests in favour of granting a stay prevail over society's interests in having a final decision on the merits. See Babos, at para. 32; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (S.C.C.), at paras. 54, 57.

[60] […] The question that requires answer in connection with the first requirement is whether proceeding to trial in light of the state conduct would do further harm to the integrity of the justice system: Babos, at paras. 35, 38.

[61] For the second requirement, the question is whether any other remedy short of a stay is capable of redressing the prejudice [,or] will adequately disassociate the justice system from the impugned state conduct going forward: Babos, at para. 39.

[62] The third requirement — a balancing of interests — is of great significance in the residual category. Balancing is only required when uncertainty remains after consideration of the first two requirements. What the court is asked to decide is which of two options — staying proceedings or holding a trial — better protects the integrity of the justice system. Relevant factors include but are not limited to:

i. the nature and seriousness of the impugned conduct;

ii. the isolated or systemic and ongoing nature of the conduct;

iii. the circumstances of the accused;

iv. the charges faced by the accused; and

v. the interests of society in having the charges determined on their merits.

See Babos, at para. 41.

[63] In the residual category, it must appear that the state misconduct is likely to continue into the future, or that pursuit of the prosecution will offend society's sense of justice: Babos, at para. 36; Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (S.C.C.), at para. 91

[37] Given the burden on an accused, cases warranting a stay of proceedings are "exceptional" and "very rare": Babos, at para 44.

Analysis

[38] In this case, Sgt. Dikah testified that it would take approximately 10 hours to bring the accused's blood alcohol concentration to 80mg of alcohol per 100 ml of blood given his readings. He advised that there was no policy for police to proactively make arrangements for accused persons to return home unless they are youths. Should an accused wish to speak with the officer however, the cell sergeant is available. In this case he had no notes of the accused wishing to speak with him and as a result, he did not believe that a request had been made. He had no recollection as to the accused's behaviour that night in cells. He testified that he himself can monitor the cells via CCTV and, as well, special constables make the rounds of the cells every 15 minutes. If there are any issues, or if an accused persons makes a request to the sergeant, then the special constables will advise him. I have no evidence of a request having been made to the cell sergeant but denied, nor do I have any information of arrangements that could have been made by the accused for a responsible person.

[39] Counsel Ms. Davies argues that the accused did not know that he could speak with the sergeant and suggest a responsible person and thus it is unreasonable, without knowing of the option, to put the responsibility on the accused to speak up. The obligation ought to be on the police to make the inquiry. On the point of what the accused knew or did not know, I have no evidence from the accused on that point. That having been said, the inquiry as to a responsible person seems to me to be part of what should be the larger consideration of whether an accused can be released, once the conditions under section 498 of the Criminal Code have been satisfied. Indeed, it is police who must consider the alternatives to detention. On the evidence before me, though the officer testified to a willingness to consider a plan, because he received no inquiry, he had nothing to consider. Other than the readings, I have no other evidence of information or circumstances that were considered in relation to the accused. It does not appear that he was aware of the circumstances related to the accused's vehicle; of the accused's level of comprehension or functioning; or any details in relation to the accused, including the existence of a prior criminal record or outstanding charges. I appreciate that in this case the readings were very high. I also appreciate that the cell Sergeant is responsible for the individuals being held and their circumstances upon release and thus must ensure their safety and well-being, along with that of the community upon release. In some cases, where the readings are high and no responsible adult can be located, it may be entirely justified to hold a detainee until their blood alcohol level drops. However, in this case I have no evidence that suggests that anything other than detention was considered for this accused in view of his readings. Therefore, on the evidence before me, I find a violation of the accused's section 9 Charter right.

[40] Having found a Charter violation, what then of the remedy? To begin with, the breach in this case was post offence and post investigation. In that regard, there is no evidence resulting from the breach to be excluded. What then of a stay of proceedings under section 24(1)? Is this the clearest of cases where a stay ought to be granted?

[41] As just noted, the breach in this case is post offence and post investigation therefore without impact on trial fairness. There was no egregious conduct in this case similar to that noted in Iseler: the accused was monitored regularly; there is no evidence that any of his needs went unattended; and the elevated readings were a relevant concern for the cell sergeant. In these circumstances, I do not believe that proceeding to trial in light of the state conduct would do further harm to the integrity of the justice system.

[42] In terms of the second prong, the availability of remedies to address the breach, the overholding cases suggest the existence of other remedies including a reduction of sentence. (See Iseler; Price and Sukraj, 2015 ONCJ 260.) That remedy is one available to me and would be an appropriate fashion to recognize the breach without being an unjustified windfall to the accused.

[43] Overall, in my view, this case does not reach the threshold of the "clearest of cases" for the following reasons: there is evidence that the sergeant was prepared to consider a proposal by the accused to go home; there is no evidence of this being a systemic or widespread issue; the accused was monitored every 15 minutes in person and via CCTV; there is no evidence of any particular requests or needs that went ignored; the readings were very high and were not an irrelevant consideration; and the seriousness of the charges in terms of the carnage wrought by impaired driving offences. In sum, this is not a case where egregious state conduct requires that the Court disassociate itself from it or one where the conduct would shock the conscience of the community.

[44] Accordingly, while I find that there had been a breach of the accused's section 9 right, I decline to order a stay of proceedings.

Conclusion

[45] Having dismissed the balance of the allegations of Charter breaches, I admit the Intoxilyzer readings and find Mr. Dallaire guilty of operating a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol per 100 ml of blood.

Released: February 2, 2017

Signed: Justice Jacqueline Loignon