Court File and Parties

Ontario Court of Justice

Date: 2018-03-21

Court File No.: Halton 15-2725

Between:

Her Majesty the Queen

— and —

Marterreon Randle

Before: Justice D.A. Harris

Heard on: September 13, 2016, April 27, 2017 and November 27, 2017

Reasons for Judgment released on: March 21, 2018

Counsel:

Erinn O'Marra & Christina Lynch — counsel for the Crown

Brian Brody — counsel for the defendant Marterreon Randle

Reasons for Judgment

HARRIS D.A. J.:

Introduction

[1] Marterreon Randle is charged with operating a motor vehicle in the City of Burlington on September 5, 2015 when (1) his ability to operate a motor vehicle was impaired by alcohol, and (2) his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[2] Crown counsel elected to proceed summarily.

[3] Mr. Randle pled not guilty and a trial was held.

[4] Mr. Randle had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.

[6] Halton Regional Police Constables Matthew Spina, Evan McLeod, Thang Van Trinh, Luke Kriel and Gregory Giliauskas and Sergeant Bill Marshall testified for the Crown. No evidence was led by the defence.

[7] There is no issue that Mr. Randle was operating his motor vehicle in Burlington on September 5, 2015 or that the two Intoxilyzer tests both showed results of 120 milligrams of alcohol in 100 millilitres of his blood.

Issues Before the Court

[8] The issues before me are:

(1) whether the breath results referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and

(2) whether the Crown had proven beyond a reasonable doubt that Mr. Randle's ability to operate a motor vehicle was impaired by alcohol.

[9] More particularly with respect to the Charter application, counsel for Mr. Randle argued that the evidence should be excluded on the basis that:

(1) the police did not have the reasonable and probable grounds necessary to make the breath demand, violating Mr. Randle's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter, and his right not to be arbitrarily detained as guaranteed by section 9; and

(2) the police infringed his right to retain and instruct counsel without delay and to be informed of that right, as required by section 10(b) of the Charter. More particularly, they did not allow him to speak to his counsel of choice. Further they did not inform him of his right to wait for counsel of his choice to call back.

[10] I will deal with the Charter applications first.

Reasonable and Probable Grounds

[11] Sections 8 and 9 of the Canadian Charter of Rights and Freedoms provide that:

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[12] In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or seizure was reasonable.

[13] In this case then, the onus is on Mr. Randle to establish an infringement of his section 9 rights but the onus is on the Crown with respect to the section 8 rights. I have accordingly approached this alleged violation of rights as one where the Crown bears the onus.

[14] The relevant portions of section 254(3) of the Criminal Code provide that:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person …

(a) to provide, as soon as practicable, …

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, ...

[15] So, to demonstrate compliance with section 254(3), the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

[16] The legal test for reasonable and probable grounds is not a high one. It is more than a mere suspicion, and less onerous than a prima facie standard.

[17] It is a fact based analysis of the totality of the circumstances the arresting officer had in mind. The officer is entitled to disbelieve and disregard any evidence disbelieved. However, the officer must balance any circumstance detracting from the conclusion of impairment to those suggestive of impairment, and the totality of circumstances must be sufficient that a reasonable person in the position of the arresting officer would be able to conclude that reasonable and probable grounds existed.

[18] There is no minimum time period. Further, there is no mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds.

[19] A trained police officer is entitled to draw inferences and make deductions drawing on experience. A trial judge is entitled to take that experience and training into account in assessing whether he objectively had reasonable and probable grounds.

[20] The grounds need only amount to evidence of slight impairment by alcohol as opposed to gross impairment.

Constable Kriel's Evidence

[21] In this case, there were three police officers who were involved with Mr. Randle at the location where he was arrested. Constable Kriel was the police officer who actually arrested Mr. Randle and read the breath demand to him.

[22] Crown counsel argued that Constable Kriel's evidence clearly establishes that he subjectively believed on reasonable and probable grounds that Mr. Randle's ability to operate a motor vehicle was impaired by alcohol and that this belief was objectively reasonable.

[23] Constable Kriel testified that he relied upon the following factors in forming his opinion:

1. He had received a call from the Ontario Provincial Police relay stating that a motor vehicle was travelling in the wrong direction on the Queen Elizabeth Way;

2. He observed that motor vehicle travelling very slowly northbound on Brant Street. It almost came to a full stop before making a slow U-turn to go southbound. The U-turn was very wide and the vehicle nearly hit the curb to the right of the southbound lanes. It then merged slowly into the next lane without signalling. As it approached a green traffic light at the intersection with Faversham Avenue, the vehicle moved into the left lane without signalling and then came to a full stop in the middle of the intersection. As it started to move forward, Constable Kriel activated the emergency lights on his police vehicle. The motor vehicle did not turn left but continued south on Brant Street straddling the centre line between the southbound lanes until the next intersection where it came to a full stop in the left lane for about four seconds. As Constable Kriel was about to get out of his police car, the motor vehicle signalled and slowly pulled over into the curb lane and came to a stop;

3. When Constable Kriel approached the motor vehicle, the driver's window was up. Constable Kriel knocked on it and there was no response. He knocked a second time and the window opened;

4. Constable Kriel immediately smelled a strong smell of an alcoholic beverage coming from inside the vehicle;

5. He asked the driver, who was Mr. Randle where he was coming from. Mr. Randle replied "Pahdil". In speaking further he clarified that it was in Etobicoke.

6. He asked him if he had had anything to drink and he responded that he had had one drink at the club.

7. His eyes as he turned to face Constable Kriel were all watery and glossed and his speech was slurred and very slow and deliberate.

8. He did not appear to know where he was. He was disoriented.

[24] At that point, Constable Kriel formed reasonable grounds that Mr. Randle was operating a motor vehicle while his ability to do so was impaired by alcohol.

[25] I will stop there although he made further observations following that. These however played no part in Constable Kriel forming his opinion.

Credibility Challenges

[26] Counsel for Mr. Randle argued that I cannot rely upon Constable Kriel's evidence because of internal inconsistencies and because of differences in the evidence of the two other officers at the scene, and because of differences in the observations of those at the scene from those who dealt with Mr. Randle back at the police station.

[27] I will deal with the various arguments separately.

Alleged Mistake in Evidence

[28] Counsel argued that Constable Kriel lied about catching a mistake in his evidence-in-chief. He had suggested to Constable Kriel during cross-examination that Constable Kriel had only caught his mistake after hearing counsel discussing this during a break in the proceedings. Constable Kriel testified that he had recognized the error earlier and had tried to speak to Crown counsel about it but had been prevented by her from doing so because he was done his examination-in-chief and about to start his cross-examination.

[29] I accept Constable Kriel's evidence on this point and accept that he had simply made a mistake in his evidence which he subsequently tried to correct after he realized that mistake.

[30] In that regard, I note that he made the mistake near the end of his examination-in-chief.

[31] Further, the mistake was that Constable Kriel incorrectly described Mr. Randle having trouble with his balance during the level 2 search at the station whereas this had actually happened during the level 1 search at the scene.

[32] Constable Kriel explained that he had made the mistake because both searches were noted together at the same place in his notes and he misread them initially. He realized his mistake as he reread his notes immediately after court broke. This was before he attempted to speak to Crown counsel and before he heard her speaking to counsel for Mr. Randle.

Internal Consistency

[33] Counsel argued that Constable Kriel's answers were internally inconsistent.

[34] I disagree.

[35] His answers sometimes appeared confused and sometimes were certainly confusing. I attribute much of that however to the fact that during counsel's vigorous and extensive cross-examination of Constable Kriel, counsel often asked multi-part questions, and further repeatedly interrupted Constable Kriel's answers with further questions. It made it difficult for me to know what question was being answered and I fear that it made it difficult for Constable Kriel to know what question was being asked of him. All in all, I thought that he handled his first appearance as a witness in a criminal trial fairly well.

[36] As an aside, I note that during that vigorous and extensive cross-examination, counsel spent less than two pages questioning Constable Kriel about his observations of Mr. Randle's driving. He did not challenge Constable Kriel on any of this other than to elicit the fact that there was no mention in Constable Kriel's notes of the Randle vehicle almost striking the curb.

[37] I mention this because I find that the manner in which Mr. Randle was driving his vehicle was a significant factor in determining both whether Constable Kriel's grounds were reasonable and whether Mr. Randle's ability to drive was impaired.

Missing Notes

[38] I also note here that I do not attach much, if any, weight to the fact that the reference to almost striking the curb was not in Constable Kriel's notes.

[39] I am of the view that Justice Duncan's judgment in R. v. Zack did not stand for the proposition that if something is not in a police officer's notes, then it did not happen. Justice Duncan himself clarified that point in R. v. Golubentsev.

[40] Common sense however dictates that one should record the specific details that go to the heart of the case but I would not describe the missing reference here in such terms.

Vehicle Identification

[41] I also note that counsel questioned Constable Kriel as to whether he knew for certain that the Randle vehicle was the same vehicle referred to in the original Ontario Provincial Police dispatch. Constable Kriel conceded that he did not know for certain but that he believed that they were one and the same. In all of the circumstances known to him, I am satisfied that it was objectively reasonable for him to draw that conclusion for the limited purpose of determining reasonable and probable grounds.

Alternate Explanations

[42] I also note that counsel questioned Constable Kriel and the other officers as to alternate explanations for the various observations they made. The law is clear that these factors should not be excluded from consideration just because alternate explanations might be advanced to explain some of them. Constable Kriel correctly took all of these factors into account collectively in forming his opinion.

Consistency with Other Officers' Evidence

[43] Counsel argued that Constable Kriel's evidence was inconsistent with that of both Constables McLeod and Giliauskis, the two other officers who were present when Mr. Randle was arrested.

[44] I again disagree.

[45] In providing my reasons for this, I will review here the relevant portions of their evidence up to the point where they left the scene.

[46] I will review the remaining evidence later in my assessment of whether the Crown has proven impairment by alcohol beyond a reasonable doubt. I have taken all of the evidence into account in assessing credibility of the various officers. I have simply chosen not to set it out twice.

Constable McLeod's Evidence

[47] Constable McLeod testified that he and Constable Giliauskas arrived at the scene after Constable Kriel had stopped Mr. Randle. They did not observe any driving.

[48] Constable McLeod testified that Mr. Randle was incoherent in his speech patterns when speaking to the police officers. His eyes were wide open. He was looking around. It appeared to Constable McLeod that he did not know what was going on or where he was. He was unable to indicate that he was in Burlington or on Brant Street in Burlington.

[49] When asked where he was coming from, he answered "Patel". Eventually he heard Mr. Randle say "Parkdale" and "Etobicoke" and "at the club".

[50] When asked where he was going to, Mr. Randle answered "South on the QEW".

[51] There was a strong smell of alcohol coming from inside the vehicle. Mr. Randle was the sole occupant of that vehicle.

[52] Mr. Randle was intoxicated by alcohol. His ability to operate a motor vehicle was impaired. There were grounds to arrest Mr. Randle and Constable McLeod would have done that if Constable Kriel had not.

Constable Giliauskas' Evidence

[53] Constable Giliauskas testified that he stood on the passenger side of Mr. Randle's vehicle. He could see that there was only one person in the car. Both Constable Kriel and Constable McLeod were speaking to Mr. Randle but Constable Giliauskas could not hear what was being said. When he moved to the driver's side, he noted that Mr. Randle was speaking very quietly. He was slurring his speech. The start and the end of his words would die out. Constable Giliauskas did not record any specific words. He was brand new on the job and conceded that he did not make very good notes on that occasion.

[54] Mr. Randle's eyes were wide and glassy.

[55] An odour of alcohol was coming from the window.

[56] Constable Kriel and Constable McLeod both observed vomit on the floor on the driver's side of the car.

Observations of Balance and Coordination

[57] Constable Kriel said that when getting out of his vehicle, Mr. Randle took hold of both the car frame and the door to assist himself. Constable McLeod said that he hesitated in getting out. He was unsteady on his feet immediately after he got out. He took a slight step forward and then a step back, bumping into the car. Constable Giliauskas had no recollection of Mr. Randle having any difficulty getting out of his car. He had made no notes regarding any such difficulty. He did not recall Mr. Randle ever bumping into the car.

[58] He did have notes and recollection of Mr. Randle being unsteady on his feet on a number of occasions, including when Constable Giliauskas conducted the level 1 search. He described Mr. Randle as swaying from side to side.

[59] Constable McLeod described him as being unsteady on a number of occasions at the scene. He described Mr. Randle as swaying back and forth.

[60] Constable Kriel described Mr. Randle as swaying from side to side.

Observations of Driver's Licence

[61] Constable McLeod said that he asked Mr. Randle to produce his driver's licence and that he had difficulty doing so. Constable Giliauskas testified that when asked for his driver's licence, Mr. Randle handed over his full wallet. Constable Kriel gave evidence about Mr. Randle producing his licence but not in sufficient detail to suggest that he had any problem in producing that document.

General Consistency

[62] All three officers testified that Mr. Randle was asked to step off the road and that he took his time doing so.

[63] Counsel for Mr. Randle made much of the fact that many of the police statements were more general than specific and that they disagreed at times with respect to some details. While I agree with that to a certain degree, I find that the evidence of the other officers was more consistent with that of Constable Kriel than not.

[64] Further, any inconsistencies were of the type one would expect to see in any case where a number of witnesses have testified.

Conclusion on Reasonable and Probable Grounds

[65] I accept Constable Kriel's evidence. I am satisfied that the Crown has established on a balance of probabilities that Constable Kriel subjectively believed on reasonable and probable grounds that Mr. Randle was operating his motor vehicle when his ability to do so was impaired by alcohol and that this belief was objectively reasonable. The eight factors enumerated above in paragraph 23 gave him ample reason to reach that conclusion.

[66] Accordingly, I find that Mr. Randle's section 8 and 9 rights were not infringed here.

Section 10(b) of the Charter

[67] Section 10(b) of the Canadian Charter of Rights and Freedoms provides that "everyone has the right on arrest or detention, … to retain and instruct counsel without delay and to be informed of that right."

[68] Mr. Randle bears the burden of persuading me on a balance of probabilities that his section 10(b) rights have been infringed.

[69] Counsel for Mr. Randle referred me to the summary of the law regarding rights to counsel in drinking / driving cases set out by Schwartzl J. in R. v. Persaud. Much of the following is taken from that judgment.

Legal Framework for Section 10(b) Rights

[70] The police must give a detainee rights to counsel before breath samples are taken and they must give him (a) sufficient information concerning rights to counsel and (b) a reasonable opportunity to exercise those rights.

[71] In this case, counsel agreed that the police initially informed Mr. Randle of his rights to counsel. He argued however that they later failed to inform him of his right to wait for his counsel of choice to call back. (I will say more about this later.) He also argued that the police failed to take reasonable steps to permit Mr. Randle to implement his rights.

[72] The law is clear that where a detainee states his intention to exercise his right to counsel, the police have a duty to provide the detainee with telephone access to counsel at the first reasonable opportunity. The burden is on the Crown to show that any delay in accessing counsel was reasonable in the circumstances.

[73] Where the police assist the detainee in exercising his rights to counsel, the police must be reasonably diligent in that assistance.

[74] However, the police are not required to exhaust all reasonable means for a detainee to speak with a lawyer.

[75] The test is not whether the police could have done more, but whether the police provided the detainee with the necessary information and assistance to allow the detainee a reasonable opportunity to exercise his rights.

[76] The police must hold off from attempting to elicit evidence from the detainee until he has been afforded a reasonable opportunity to exercise his rights to counsel.

[77] A detainee is required to be reasonably diligent in the pursuit of his right to counsel.

[78] Detainees have a right to choose their own counsel and it is only if the lawyer chosen cannot be available within a reasonable delay that the detainee should be expected to exercise his right to counsel by calling another lawyer, including duty counsel.

[79] Where the detainee does not express to the police dissatisfaction with advice received, he might not meet his onus of proof.

The "Prosper Warning"

[80] As I referred to briefly above, in certain circumstances, there is an additional informational component to the right to counsel where a detainee is diligent, but unsuccessful, in his or her efforts to reach counsel and subsequently declines an opportunity to consult with counsel. In those circumstances, the police must advise the detainee that he or she can wait a reasonable period of time for counsel to call back. This is now commonly referred to as the "Prosper warning".

[81] The Supreme Court of Canada stated in R. v. Prosper that:

43 In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

44 Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10(b) must not be turned into an obligation on detainees to seek the advice of a lawyer.

Issues Raised

[82] The issues raised by counsel for Mr. Randle are that:

1. The police did not take reasonable steps to facilitate Mr. Randle contacting counsel of his choice; and

2. They did not inform him of his right to wait a reasonable time for that counsel to call back.

[83] Crown counsel added one more issue to this list when she argued that Mr. Randle had asked to speak to a licenced paralegal and that licenced paralegals do not qualify as counsel.

[84] I will address this last issue first.

Licenced Paralegals as Counsel

[85] Crown counsel provided me with a number of cases in which it was found that licenced paralegals were not counsel within the context of section 10(b).

[86] The reasoning behind this is quite straightforward.

[87] Counsel is defined in section 2 of the Criminal Code as "a barrister and solicitor, in respect of the matters or things that barristers and solicitors, respectively are authorized by the law of a province to do or perform in relation to legal proceedings".

[88] Paralegals are licenced and regulated by the Law Society, but they are not counsel.

[89] In 2007, the Law Society of Upper Canada commenced regulation of paralegals and enacted the Paralegal Rules of Conduct. Rule 3.02 sets out the criteria for "Advising Clients" and reads as follows:

(3) A paralegal shall not undertake or provide advice with respect to a matter that is outside his or her permissible scope of practice.

[90] Section 802.1 of the Criminal Code provides that:

802.1 Despite subsections 800(2) and 802(2), a defendant may not appear or examine or cross-examine witnesses by agent if he or she is liable, on summary conviction, to imprisonment for a term of more than six months, unless the defendant is a corporation or the agent is authorized to do so under a program approved by the lieutenant governor in council of the province.

[91] The maximum sentence for the offences here is imprisonment for 18 months where the Crown elects to proceed summarily.

[92] Accordingly, a paralegal cannot represent an accused at trial for these offences.

[93] Therefore, providing advice to an accused charged with such offence is outside the permissible scope of practice as defined by the Paralegal Rules of Conduct.

Crown's Position Rejected

[94] Having said that, I cannot accept the Crown's position on this.

[95] Sergeant Bill Marshall testified that he was the acting staff sergeant on duty at the police station when Mr. Randle was brought in. His duties included ensuring that Mr. Randle understood his right to counsel and that he had an opportunity to exercise that right.

[96] He informed Mr. Randle of his right. He asked Mr. Randle if he wished to speak to a lawyer. Mr. Randle replied that he wished to speak to MT.

[97] It was at this point that the evidence deviated substantially from the many cases previously tried before me.

[98] Sergeant Marshall testified that he knew MT. MT was married to his sister. MT had been working as a paralegal previously but had recently stopped doing so as he had become employed as a police officer with the Peel Regional Police Service.

[99] Sergeant Marshall told Mr. Randle only that he knew MT and that MT was no longer working. He did not tell Mr. Randle that MT had become a police officer. It is not clear from the evidence if he told Mr. Randle how he knew this.

[100] I find nothing in the evidence to indicate that he told Mr. Randle that MT had never been a lawyer. Further I find nothing in the evidence to indicate that he proceeded as he did because of the fact that MT had never been a lawyer. In light of this, I am not prepared to accept Crown counsel's argument that I should reject the section 10(b) claim solely on the basis that MT did not qualify as counsel.

Police Efforts to Facilitate Counsel

[101] I do agree with her argument that Sergeant Marshall did many things to attempt to facilitate Mr. Randle's right to counsel.

[102] He attempted to call what he believed to be MT's work number in front of Mr. Randle so as to confirm to Mr. Randle that MT was no longer in business.

[103] He attempted to contact MT privately using his personal cell phone.

[104] He asked Mr. Randle if he had another lawyer who he wished to speak to since MT could not be reached. When Mr. Randle did not provide the name of any other lawyer, he suggested that Mr. Randle speak to duty counsel and he arranged for duty counsel to speak to Mr. Randle.

[105] There was no evidence that Mr. Randle was not satisfied with the advice that he received from duty counsel. He gave no indication of that to the police officers at the time and he did not testify to that effect during the trial.

[106] I am satisfied that the police informed Mr. Randle of his right to counsel.

[107] I am satisfied that they also did everything required of them in order to allow him to exercise that right. In fact they did more than what was required of them.

[108] In that regard I specifically reject the suggestion of counsel for Mr. Randle that they should have made further attempts to contact MT or that they should have gone into Mr. Randle's phone to find his contact information.

The Charter Breach

[109] I am troubled however by the fact that Sergeant Marshall did not inform Mr. Randle of those extra steps he had taken. He did not tell Mr. Randle that he had made a personal call to MT and that this was one reason for his belief that MT would not be calling back. He did not inform Mr. Randle that MT had become a police officer and that this fact was another part of his belief that MT would not be able to help him.

[110] Had he told Mr. Randle that MT was not a lawyer, Mr. Randle might have replied that he did not know that and that he no longer wanted to speak to MT. On the other hand, he might have replied that he knew that but that he was just looking for MT to refer him to someone else.

[111] Had Sergeant Marshall told him that MT had become a police officer, Mr. Randle may have decided to look elsewhere.

[112] The reality is that we do not know what he would have done had he been fully informed because Sergeant Marshall kept some of that information to himself.

[113] In these very particular circumstances, I am satisfied on a balance of probabilities that Sergeant Marshall deprived Mr. Randle of the opportunity to make an informed (emphasis added) decision as to what he wished to do and thereby infringed Mr. Randle's right to retain and instruct counsel without delay.

[114] I must therefore now determine whether any evidence should be excluded pursuant to section 24(2) of the Charter.

Section 24(2) Analysis

[115] The test set out in R. v. Grant by the Supreme Court of Canada directs me to 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,

(2) its impact on the Charter-protected interests of the accused, and

(3) society's interest in the adjudication of the case on its merits.

[116] I must 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.

First Factor: Seriousness of Charter-Infringing Conduct

[117] In R. v. Grant, the Court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:

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.

[118] 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.

[119] 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.

[120] Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

[121] I am satisfied that the Charter breach here was a less serious one.

[122] Sergeant Marshall faced an unusual situation. This was not a case where he could fall back on standard operating procedure.

[123] As I stated above, he did many things to attempt to facilitate Mr. Randle's right to counsel. I shall not repeat them here.

[124] The degree of seriousness of the Charter-infringing conduct here favours inclusion of the evidence.

Second Factor: Impact on Charter-Protected Interests

[125] With respect to the second factor, the ensuing breath test was both minimally intrusive both in terms of what took place and the evidence obtained.

[126] In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant that:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the 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. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[127] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.

[128] I also note the comments in the very recent decision of the Ontario Court of Appeal at para. 29 in R. v. Jennings:

Although … the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

[129] R. v. Au-Yeung is not good law.

[130] After considering all of this I conclude that the second branch of Grant weighs in favour of inclusion of the evidence.

Third Factor: Societal Interest in Adjudication on Merits

[131] As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.

[132] I must also consider the fact that the evidence which Mr. Randle seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence." The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.

[133] I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.

Balancing the Factors

[134] As I stated above, I must 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.

[135] I must not give any one factor "an unjustified analytical pre-eminence" while doing this.

[136] I do note however the comments of Fish J. in R. v. Morelli, where he stated "justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices".

[137] In R. v. Beattie, Duncan J. stated:

Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.

[138] In R. v. Mehta, Lipson J. wrote:

Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system.

[139] I conclude that the long term interests of the administration of justice are better served by inclusion in this case.

[140] After balancing the assessments under each of these three lines of inquiry, I have determined that admission of the evidence would not bring the administration of justice into disrepute.

[141] Accordingly, the results of the breath tests will be included in evidence. Exhibit A, the certificate, will now be entered as Exhibit 4.

Impairment by Alcohol

[142] Accordingly, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Randle was operating a motor vehicle when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood. I find him guilty of that offence.

[143] That then leaves the impaired operation charge against Mr. Randle.

Was His Ability to Operate a Motor Vehicle Impaired by Alcohol?

[144] The test with respect to impairment has long been established by our appeal courts in R. v. Stellato, as follows:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[145] The issues to be determined here are very similar to those in the section on reasonable and probable grounds.

[146] The first factor set out in paragraph 23 above is not a factor in this analysis. The dispatch from the Ontario Provincial Police was admitted as evidence solely with respect to the issue of reasonable and probable grounds. The other seven factors are relevant to the issue of impairment.

[147] So are the other observations made by the police officers at the scene.

[148] These include the presence of vomit in the car, Mr. Randle's uncertainty as to his whereabouts, and difficulties with his speech and his balance.

[149] As I stated earlier counsel argued that the three remaining police witnesses contradicted the evidence of Constable Kriel. Again I disagreed.

Evidence at the Police Station

[150] Constable Spina arrived at the scene after Mr. Randle had been arrested and placed in Constable Kriel's police car. He followed Constable Kriel back to the station where he accompanied Constable Kriel into the building. He did not have much conversation with Mr. Randle. He stood him up and took his property. He made no notes of any signs of impairment. Most of his brief evidence dealt with the right to counsel issue.

[151] Sergeant Marshall's evidence was primarily focused on the right to counsel issue and he had little to say on anything related to Mr. Randle's possible impairment.

[152] Constable Trinh was the qualified breath technician in this case. His evidence was somewhat ambiguous.

[153] During examination-in-chief he said that he received custody of Mr. Randle at 5:25 a.m. Mr. Randle was very "slurry". "He was unable to seat properly". If Constable Trinh did not speak to him, Mr. Randle would begin to fall asleep. There was an odour of alcohol on his breath. His eyes were bloodshot. Everything else was normal. He was cooperative and polite.

[154] During cross-examination he said that there was a strong odour of alcohol present. His eyes were bloodshot but not watery. His speech was fair. He did not indicate "slurred". He did not indicate "good". It would be normal for anyone to be sleepy at that time of day.

[155] The breath results establish that Mr. Randle had been consuming alcohol and that alcohol was still present in his body.

[156] None of these witnesses seriously contradicted Constable Kriel.

[157] They did not note any significant signs of impairment but it appeared that none of them were seriously looking for them. As I stated above, the evidence of Constable Trinh was somewhat ambiguous.

[158] I watched the video. Quite frankly, it was not particularly helpful as I saw movements that could be consistent with either swaying or simple nodding or stretching.

[159] In addition, I am mindful that some time had passed and that it is not unusual for a person's ability to perform simple tasks to improve over time.

Conclusion on Impairment

[160] In any event, I find that the driving described by Constable Kriel, together with the presence of vomit in the car, and the fact that Mr. Randle had been consuming alcohol were sufficient for the Crown to prove guilt here.

[161] The driving shows significant problems with Mr. Randle's ability to operate a motor vehicle.

[162] The presence of vomit strongly suggests that he was the one who vomited in the car. If so, that shows that he was not able to control basic human functions.

[163] No matter who vomited there, the fact that he had not cleaned it up before continuing to drive exhibits a serious lack of judgment.

[164] The fact that he had been drinking alcohol provides the only reasonable explanation for all of this. His faculties, and his ability to operate a motor vehicle were impaired by the alcohol.

[165] The other observations made by Constable Kriel and the others only strengthen the Crown's case.

[166] After considering all of these factors, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Randle was operating his motor vehicle while his ability to do so was impaired by alcohol. Accordingly, I find him guilty of that offence.

Released: March 21, 2018

Signed: Justice D.A. Harris