Ontario Court of Justice

Date: April 24, 2018

Court File No.: Halton 17-901

Parties

Between:

Her Majesty the Queen

— And —

Benjamin Hamel

Court Information

Before: Justice D.A. Harris

Heard on: January 23 and 24, 2018

Reasons for Judgment released on: April 24, 2018

Counsel:

• Arish Khoorshed, for the Crown
• Michael Engel & Alexandra Rowell, for the defendant Benjamin Hamel

Judgment

D.A. HARRIS J.:

Introduction

[1] Benjamin Hamel is charged with operating a motor vehicle in the City of Burlington on March 20, 2017 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. Hamel pled not guilty and a trial was held.

[4] Mr. Hamel 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 Constable Kyle Morris testified for the Crown. No evidence was led by the defence.

[7] There is no issue that Mr. Hamel was operating his motor vehicle in Burlington on March 20, 2017 or that the two Intoxilyzer tests showed results of 200 and 180 milligrams of alcohol in 100 millilitres of his blood.

Issues Before the Court

[8] The issues before me are:

1. whether the breath certificate relied upon by the Crown should be excluded on the basis that the preconditions set out in section 258(1)(g) of the Criminal Code had not been satisfied;

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

3. whether the Crown had proven beyond a reasonable doubt that Mr. Hamel's ability to operate a motor vehicle was impaired by alcohol.

[9] With respect to the first issue, Crown counsel argued that counsel for Mr. Hamel raised this argument too late in the proceedings.

[10] With respect to the Charter application, counsel for Mr. Hamel 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. Hamel's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter;

2. the police did not inform Mr. Hamel promptly of the reasons for his detention as required by section 10(a) of the Charter; and

3. 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.

[11] An alleged infringement of Mr. Hamel's section 7 rights based on a denial of privacy in the holding cells was abandoned at the beginning of the trial.

[12] I will deal with the admissibility of the certificate first, followed by the Charter application and then address the issue of proof of impairment last.

Admissibility of Certificate

[13] The relevant portions of section 258(1)(g) of the Criminal Code provide that:

258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 ...,

(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating [contents of statement not pertinent to present case and not included here]:

…is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;

[14] The law is clear in Ontario that the certificate cannot be admitted in evidence until it is proved that a sample of breath of the accused was taken and that it was taken pursuant to a demand.

[15] The law is not so clear as to how those two preconditions can be proven.

[16] In R. v. Pickles, the Ontario Court of Appeal stated:

12 At the moment, we are inclined to agree with the proposition that the certificate cannot be admitted in evidence until those two conditions, namely, that a sample of breath of the accused was taken and that it was taken pursuant to a demand, under section 235(1) have been proved apart from the contents of the certificate. Putting it another way those two conditions may have to be shown without reference to the certificate; and, of course, if that is so, the certificate cannot prove them. This point is not discussed in the Teague judgment.

13 In this case, however, we do not have to decide that point, for it is our view that, apart from the contents of the certificate, there was evidence from which any Court could logically conclude that this accused received a demand pursuant to section 235(1) and that a sample of his breath had been taken. According to the stated case, a demand was made by Officer Doidge to the accused, at approximately 4:15 a.m., requiring him to deliver a sample of his breath into a breathalyser machine. Doidge then took the accused to the London Detachment office and handed him over to the custody of Police Constable Berdan, who was described by Doidge as a breathalyser operator. At the conclusion of the testimony of Constable Doidge, the Crown "tendered a certificate of the breathalyser operator, pursuant to section 237(1) (f) of the Criminal Code ." Having regard to the special type of operator and the form of certificate that is contemplated by section 237 of the Criminal Code, this was a significant circumstance with respect to this issue. Thus, we are of the opinion that on the evidence before Judge Carson, and at the stage when the certificate was tendered to him, the only logical inference which could be drawn was that a breath sample had been taken from the accused and that it was taken pursuant to a demand proved to have been made under section 235(1). That being so, then, in our view, the certificate ought to have been admitted in evidence; and once admitted, it therefore follows from what I said earlier that it was evidence of the statements contained in it, which statements permit the application of the rebuttable presumption created by section 237(1) (c). That being so, we conclude that the trial Judge ought to have convicted the accused, unless he adduced some evidence to rebut the presumption. Since he really had no opportunity to do so, we grant leave to appeal, pursuant to section 771(1) of the Code, allow the appeal, answer the question put by Judge Carson in the affirmative, and remit the case to the learned Provincial Court Judge to admit the certificate in evidence and to complete the trial.

[17] My interpretation of this passage is that the Court of Appeal did not decide whether the preconditions had to be proven by evidence extraneous to the contents of the certificate.

[18] Unfortunately, this question was not resolved in my mind by the statements by the Ontario Court of Appeal in R. v. Walsh where Morden J.A. wrote:

12 The approach applied in Pickles (although the point was not finally decided) required that two conditions precedent to the admissibility of the certificate be satisfied: (1) that a sample of the breath of the accused was taken, and (2) that it was taken pursuant to a demand under s. 235(1) - and that these have to be proven by evidence extraneous to the contents of the certificate. For the purpose of disposing of this appeal I am prepared to accept the reasoning in Pickles, without finally deciding the apparent point which it left open - i.e., whether compliance with the demand may not be proven inferentially by reference to the contents of the certificate. In spite of the form of s. 237(1)(f) such an approach may have been intended by Parliament.

[19] He also wrote:

15 The appellant's approach comes down to the submission that in every case the qualified technician should be required to give oral evidence of his opinion as to the necessity of the samples taken by him. Section 237(1)(f) makes no provision for this to be expressly evidenced by a statement in the certificate - and, in any event, if his general approach is to be followed right through, it is the admissibility of the certificate itself which is in issue. In R. v. Ralloff, [1977] 1 W.W.R. 391 at p.391 the British Columbia Court of Appeal held that "it is not required for the qualified technician to stipulate in the certificate that he has given, the fact that the samples taken in his opinion are sufficient for him to form the opinion." If it were the requirement that the qualified technician should attend at trial to give oral evidence on this point then the whole value of s. 237(1) (f), which enables the qualified technician's evidence to be given by certificate (subject to the technician, with leave of the court, being required to attend for cross-examination) would be defeated. It may be that the approach reflected in Pickles involves the admission of evidence which has an element of nonverbal hearsay in the form of conduct, but the circumstances in which such conduct takes place should generally guarantee the trustworthiness of the evidence, and to rely upon such evidence is in accord with the object of the provision. I would not give effect to this ground of appeal.

[20] The final decision in R. v. Walsh however may have turned on the comment that:

If the circumstantial evidence in Pickles reasonably gave rise to the inference drawn in that case that a breath sample had been taken from the accused and that it was taken pursuant to a demand proved to have been made under s. 235(1), then the evidence in the case before us is clearly capable of leading to the same kind of inference.

[21] The Ontario Court of Appeal also wrote the following in an endorsement in R. v. Boyce:

The only logical inference from these facts is that samples had been taken and had been taken pursuant to a demand. This case cannot be distinguished from R. v. Pickles, 11 C.C.C. (2d) 210 (Ont. C.A.). LaForme J. was in error in concluding that R. v. Walsh, 53 C.C.C. (2d) 568 (Ont. C.A.) had expanded upon what circumstantial evidence will be required to support the pre-conditions referred to in R. v. Pickles.

[22] Crown counsel argued that I should draw a similar inference here. Counsel for Mr. Hamel argued correctly that there is a significant difference between the facts in those three cases and the facts here.

[23] In R. v. Pickles, the facts were that a demand was made by the arresting officer to the accused, requiring him to deliver a sample of his breath into a breathalyzer machine. The officer then took the accused to the police station and handed him over to the custody of a breathalyzer operator. At the conclusion of the testimony of the arresting officer, the Crown tendered a certificate of the breathalyzer operator, pursuant to section 237(1)(f) of the Criminal Code.

[24] In R. v. Walsh, the facts were that the police officer arrested the accused and made a demand that he provide samples of his breath. He took the accused to a police station and at 2:05 a.m. he turned him over to the qualified breathalyzer operator. He related the "facts concerning the demand of the sample." Later, the breathalyzer operator returned the accused to the arresting officer and gave him a "Certificate of Analysis".

[25] In R. v. Boyce, the accused was arrested, a demand was made for a breathalyzer test and the arresting officer took him to the police station. Prior to releasing the accused to the breathalyzer operator, the arresting officer told the breathalyzer operator of the grounds of the arrest. Some 22 minutes later, the breathalyzer operator returned the appellant to the custody of the arresting officer and also delivered a Certificate of Analysis to him. The arresting officer was not cross-examined on this evidence. The breathalyzer operator did not testify.

[26] In all three cases, there was evidence that a demand was made. There was no such evidence in the present case.

[27] Constable Morris testified that he formed the opinion that Mr. Hamel was operating his vehicle while his ability to do so was impaired by alcohol. He arrested Mr. Hamel for that offence. He read him his rights to counsel and cautioned him. He drove Mr. Hamel to the police station. En route, Mr. Hamel kept asking, "What happens now?" Constable Morris explained that he would, "be given an opportunity to provide a sample of his breath and to speak to a lawyer". At the police station, Constable Morris completed the Intoxilyzer Information Form providing his grounds for the breath technician. He arranged for Mr. Hamel to be able to speak to duty counsel and then Mr. Hamel was given over to the breath technician. The breath technician subsequently provided him with the Certificate of Analysis which Constable Morris served on Mr. Hamel. This certificate was entered into evidence here as Exhibit #2.

[28] Notably absent from all of this is any mention of Constable Morris making a breath demand to Mr. Hamel.

[29] Crown counsel argued that it was still open to me to infer that a demand had been made and the preconditions set out in section 258(1)(g) had been satisfied.

[30] I am not satisfied that I should draw those inferences here.

[31] I am not satisfied that answering Mr. Hamel's question by saying that he would be given an opportunity to provide a breath sample constituted a demand or even provided a basis for me to infer that a demand had been made previously.

[32] However, I am satisfied that I do not have to deal with that issue.

[33] When Crown counsel Mr. Khoorshed asked to introduce the certificate into evidence, the following exchange occurred between Mr. Engel, counsel for Mr. Hamel, and myself:

MR. KHOORSHED: Next exhibit please, Your Honour.

THE COURT: Mr. Engel?

MR. ENGEL: Subject to argument, sir.

THE COURT: Subject to the Charter or...

MR. ENGEL: Yeah.

THE COURT: ...other argument?

MR. ENGEL: The Charter, yes.

THE COURT: Okay, I will make that Exhibit 1 subject to the Charter application.

MR. KHOORSHED: Well, the – I think the bottle is already Exhibit 1, sir.

THE COURT: Oh, excuse me, I – how could I forget the vodka. Exhibit 2.

EXHIBIT NUMBER 2: Certificate of qualified technician – produced and marked.

[34] Counsel did not object to the certificate being admitted into evidence until after Crown counsel had closed his case and counsel for Mr. Hamel had indicated that no evidence was being offered by the defence.

[35] I am satisfied that as in R. v. Gundy, the objection "came too late".

[36] In that case, the Ontario Court of Appeal reiterated that objection to the admissibility of evidence should be taken at the time the evidence is tendered.

[37] Rosenberg J.A. then referred to the earlier decision in R. v. Kutynec, and cited the following passages:

13. Prior to the proclamation of the Charter, no one conversant with the rules controlling the conduct of criminal trials would have suggested that an objection to the admissibility of evidence tendered by the Crown could routinely be initiated after the case for the Crown was closed. It is self-evident that objections to admissibility of evidence must be made before or when the evidence is proffered. This common sense proposition is equally applicable to Charter applications to exclude evidence: R. v. Myers, 14 C.C.C. (3d) 82 at p. 91, 28 M.V.R. 144 (P.E.I.S.C. App. Div.); Tse, "Charter Remedies: Procedural Issues" (1989), 69 C.R. (3d) 129 at pp. 136-40.

14. Litigants, including the Crown, are entitled to know when they tender evidence whether the other side takes objection to the reception of that evidence. The orderly and fair operation of the criminal trial process requires that the Crown know before it completes its case whether the evidence it has tendered will be received and considered in determining the guilt of an accused. The ex post facto exclusion of evidence, during the trial, would render the trial process unwieldy at a minimum. In jury trials it could render the process inoperative.

[38] Both decisions recognized that a judge has a discretion to allow counsel to challenge evidence already received and "will do so where the interests of justice so warrant". An example where the judge would exercise that discretion is if other evidence subsequently given puts into doubt the admissibility of evidence to which no objection was previously taken.

[39] I note that this was not the case here.

[40] I also note the following statement in R. v. Gundy:

In my view, the trial judge erred in permitting the defence to challenge the admissibility of the certificate and the results of the Intoxilizer test at the completion of the trial. Allowing the argument at that stage did not serve the interests of justice. I do not agree that the Crown was not prejudiced by the manner in which the challenge to the evidence unfolded. Had timely objection been taken, Crown counsel would have had the option of calling additional evidence. A month later, the case was closed and presumably the witnesses were gone. As it turned out, the trial judge dismissed the objection, but the Crown could have been unfairly prejudiced because of the defence's failure to make a timely objection. These observations do not relate solely to the Charter issue but apply to all of the other objections to the admissibility of the Intoxilizer results that were taken by counsel for the first time at the end of the case.

[41] I will comment here that I accept completely counsel's statement that this was not a deliberate stratagem adopted by him in this case. He simply missed the fact that Constable Morris had failed to refer in his evidence to making a demand. It was only brought to his attention by his co-counsel moments before he raised the issue before me.

[42] That does not change the fact that the admissibility of the evidence was not challenged in a timely fashion. Had the objection been raised then it would have been open to Crown counsel to ask further questions of Constable Morris which may or may not have cured the deficiency in his evidence. Whether that would have succeeded will never be known but only because of counsel's failure to object at the appropriate time.

[43] The application to exclude the certificate on this basis is dismissed.

[44] I will next deal with the Charter application.

[45] I will deal with the alleged section 10 breaches first, because counsel argued (and I have accepted) that these should lead me to exclude some evidence from consideration of the alleged section 8 breach.

Section 10(a) and (b) of the Charter

[46] 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. This includes alleged breaches of section 10 rights.

[47] Section 10(a) and (b) of the Canadian Charter of Rights and Freedoms provide that:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right.

[48] It is well established that a driver who stops his or her vehicle when signalled to do so by a police officer is "detained".

[49] The Supreme Court of Canada held that the right to counsel does not apply at the roadside when the police are conducting road-safety inquiries, for example, questioning a driver about alcohol consumption or requesting that the driver participate in sobriety tests. The right to counsel is implicitly overridden in such circumstances by the "operating requirements" of the "interlocking scheme of federal and provincial legislation" governing motor vehicle travel. In other words, the right is overridden because of the impracticality of implementing it at the roadside.

[50] However, any responses given by the motorist to police questions or the results of any roadside sobriety tests can only be used as an investigative tool to confirm or refute the officer's suspicion that the driver might be impaired; it cannot be used as direct evidence to incriminate the driver.

[51] While a limitation on section 10(b) in the context of roadside screening is justified, no similar justification exists in relation to section 10(a). It in no way interferes with an officer's duties in this context to impose an obligation to advise a person of the reason that he or she has been stopped.

[52] Section 10(a) provides that the person detained must be informed "promptly" of the reason(s) for their detention. According to the Court of Appeal for Ontario, "promptly" properly understood in the context of section 10(a), means "immediately".

[53] The right to be promptly advised of the reason for one's detention fundamentally rests on the notion that one is not obligated to submit to an arrest or detention if one does not know the reason for it, and secondarily in aid of deciding how to exercise the right to counsel under section 10(b). A detained person still has the right to know why they have been detained, so that they can consider whether they must submit to the detention.

[54] 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).

[55] For a person detained by the police, knowing why one has been detained could well assist in making a more informed decision whether to make a potentially incriminating admission or to participate in physical sobriety tests.

[56] Section 10(a) is complied with when the person arrested or detained is informed "in substance ... as to the reason why the restraint is being imposed," "unless the circumstances are such that he or she knows why." The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed.

[57] In this case, Constable Morris initially advised Mr. Hamel that he had been stopped because he was speeding.

[58] Counsel for Mr. Hamel argued that the purpose of the detention changed however once Constable Morris began to suspect that Mr. Hamel's ability to drive might be impaired by alcohol and then began to ask questions as part of investigating that possible offence.

[59] I am satisfied that Mr. Hamel's jeopardy changed at that point and that Constable Morris should have informed him of that fact.

[60] Crown counsel argued that it must have been apparent to Mr. Hamel that this had occurred once Constable Morris began asking questions about consuming alcohol.

[61] I accept that there may be cases where that is so but I find that I cannot reach that conclusion here based on the evidence before me.

[62] That evidence included the fact that Mr. Hamel appeared surprised by the fact that he was arrested for impaired driving. When asked if he understood his right to counsel he replied, "No. No. I don't. No. No. You have no rationale to arrest me at this point."

[63] While driving to the police station, Mr. Hamel kept asking, "What happens now?" and appeared confused by Constable Morris' answers.

[64] These are not circumstances that would lead me to conclude that a simple question about his drinking that night led Mr. Hamel to appreciate the change in the reasons for his detention.

[65] Crown counsel argued that only a very short period of time, no more than one or two minutes, passed before this situation was remedied. I find that this goes to the extent of the breach however and not to whether it occurred.

[66] Accordingly, I am satisfied on a balance of probabilities that Constable Morris infringed Mr. Hamel's section 10(a) rights.

[67] With respect to rights to counsel issue, I note that counsel for Mr. Hamel was arguing only that statements made by Mr. Hamel and certain observations made prior to him being arrested and informed of his right to counsel were admissible only in relation to reasonable and probable grounds for the arrest but not as substantive evidence on the trial proper.

[68] As stated above in paragraph 50 of these reasons, this is clearly the law.

[69] I will now deal with the alleged breach of Mr. Hamel's section 8 rights.

Reasonable and Probable Grounds

[70] Section 8 of the Canadian Charter of Rights and Freedoms provides that everyone has the right to be secure against unreasonable search or seizure.

[71] As I stated above, 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 a seizure was reasonable. To demonstrate compliance with s. 254(3) the Crown must show that the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

[72] 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,...

[73] 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.

[74] 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.

[75] 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.

[76] 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.

[77] 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.

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

[79] It is clear from the evidence that Constable Morris subjectively formed the opinion that Mr. Hamel's ability to operate a motor vehicle was impaired by alcohol. The question I have to answer is whether this opinion was objectively reasonable.

[80] Constable Morris relied upon the following factors in forming his opinion:

1. Mr. Hamel passed Constable Morris' marked police vehicle at a speed well in excess of the posted speed limit;

2. The Hamel motor vehicle began to slow and move to the right within a reasonable time after Constable Morris activated his emergency lights, but he continued along the shoulder of the highway for an unnecessarily long period of time;

3. There was a slight odour of an alcoholic beverage coming from his breath. This became more pronounced over time. Constable Morris was able to detect this odour from the passenger side window;

4. There was a partly full bottle of vodka on the front passenger seat beside him;

5. He had red glossy eyes;

6. He stared at Constable Morris. The manner in which he was staring was not typical of people that Constable Morris normally stops;

7. He was mumbling initially, to the extent that Constable Morris had difficulty understanding what he was saying. He subsequently spoke with a slight slur;

8. When asked the driver for his ownership and insurance, Mr Hamel very slowly and deliberately moved his right arm and hand over reached over into the glove box, and started rummaging and fumbling around. He provided the licence and ownership to Constable Morris, and then he just stared at him for approximately 10 to 15 seconds. Constable Morris then reminded him that he had also asked him for his insurance and he then went into the glove box again and very slowly and deliberately reached for the glove box and produced his insurance;

9. Constable Morris testified that he never considered making an approved screening device demand because there was no need to. He had sufficient grounds to proceed as he did.

[81] Constable Morris asked some further questions that elicited responses from Mr. Hamel. These include asking if he had anything to drink, pointing to the vodka bottle, and asking a second time where he was going. I have not included those responses in my analysis here. Rather I have excluded them from consideration because, at the time that Constable Morris asked the questions, he had moved on to the investigation of a possible impaired driving offence and had not notified Mr. Hamel of that fact. See below for my section 24(2) analysis leading to this decision.

[82] I am however including in my analysis the fact that he was steady on his feet when he got out of the car.

[83] None of these factors should be excluded from consideration just because alternate explanations might be advanced to explain some of them. Constable Morris correctly took all of these factors into account collectively in forming his opinion.

[84] Passing a marked police vehicle at a speed well in excess of the posted speed limit, especially during daylight hours, raises the logical inference that Mr. Hamel did not recognize the police car for what it was or he did not care. Either explanation exhibits bad judgment on his part and is some evidence of impairment.

[85] Delay in bringing his car to a full stop and in producing his documents are also some evidence of impairment, as is the fact that he had to be asked a second time to produce his insurance papers.

[86] The same can be said of his red glossy eyes, his mumbling and occasional slight slur, and his staring at Constable Morris.

[87] The odour of an alcoholic beverage on his breath and the presence of a partial bottle of vodka on the seat beside his provide some evidence that his impairment was caused by alcohol. The presence of the bottle there also provides further evidence of lack of good judgment on his part at that time.

[88] I am satisfied on a balance of probabilities that Constable Morris subjectively believed, on reasonable and probable grounds that Mr. Hamel had been operating his motor vehicle within the previous three hours while his ability to operate that motor vehicle was impaired by alcohol. I am further satisfied that his belief was objectively reasonable.

[89] The section 8 Charter challenge is therefore dismissed.

[90] In light of my ruling with respect to section 10(a), I will now assess what if any evidence should be excluded pursuant to section 24(2) of the Charter.

Section 24(2) Analysis

[91] 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) the impact of the breach on the Charter-protected interests of the accused, and

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

[92] 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.

[93] In R. v. Grant, supra, 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.

[94] 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.

[95] 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.

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

[97] The degree of seriousness of the Charter-infringing conduct here must be determined in light of the evidence sought to be excluded.

[98] With respect to the responses elicited from Mr. Hamel at the scene, I am satisfied that the failure to make him aware of his actual jeopardy was serious in that it deprived him of the ability to make an informed decision as to how to respond to the questions that were asked of him.

[99] It is serious enough in my view to favour exclusion of the evidence of those responses.

[100] I reach a different conclusion with respect to the results of the breath tests.

[101] Seven minutes elapsed between the time Constable Morris stopped Mr. Hamel's vehicle and the time Constable Morris arrested Mr. Hamel. Before speaking to Mr. Hamel, Constable Morris ran the licence plate through the computer in his police car. He then got out of his vehicle and walked up to the passenger side of Mr. Hamel's vehicle. He asked some questions and received answers. He requested documents which Mr. Hamel provided slowly. Accordingly, several minutes elapsed before Constable Morris began to treat the investigation as a possible impaired driver as opposed to a speeder. There was therefore a period of one to at most three minutes in which Mr. Hamel's section 10(a) rights were being infringed.

[102] I also note that the situation was dynamic as opposed to static. There was no time where Constable Morris paused and reflected and decided that the nature of the investigation had changed. He did not deliberately decide to deprive Mr. Hamel of his rights.

[103] Further, the section 10(a) rights were satisfied once Constable Morris arrested Mr. Hamel for impaired driving. His section 10(b) rights were provided too and Mr. Hamel spoke to a lawyer before the breath tests took place.

[104] So, with respect to the breath tests, I am satisfied that the breach of his 10(a) rights was not so serious and that the degree of seriousness favours admission of the results of the breath tests.

[105] With respect to the second factor, the impact of the breach on the Charter-protected interests of the accused depends on which Charter-protected interests we are talking about.

[106] Again, with respect to the responses elicited from Mr. Hamel at the scene, I am satisfied that the failure to make him aware of his actual jeopardy had a significant impact in that it deprived him of the ability to make an informed decision as to how to respond to the questions that were asked of him.

[107] That favours exclusion of those responses.

[108] The ensuing breath test, however, was minimally intrusive both in terms of what took place and the evidence obtained.

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

[110] 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.

[111] I also note the comments in the recent decision of the Ontario Court of Appeal 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.

[112] The Court of Appeal rejected the approach taken in R. v. Au-Yeung where Ducharme J. held that a trial judge is to consider the impact of the entirety of the procedure faced by an accused after arrest including the initial detention, being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time.

[113] Counsel for Mr. Hamel has drawn my attention to R. v. Mann, where Justice Linhares de Sousa wrote that "the Ontario Court of Appeal did not conclude that R. v. Au-Yeung was wrongly decided on its own facts and that there could be cases where the impact of the breach of an accused's section 8 rights is anything but minimal favouring exclusion."

[114] I disagree with that interpretation of what the Ontario Court of Appeal said.

[115] In any event, I also find that this is not a case such as is suggested in R. v. Mann.

[116] I also note that all of the things referred to in paragraph 112 above would have occurred here in any event. I found that there was no section 8 breach even after excluding certain evidence from consideration, and accordingly Mr. Hamel was properly arrested before being placed in the back of the police cruiser, transported to a police station, and detained there for some time.

[117] I also reject the argument that R. v. Jennings is obiter and not binding on me. The Court of Appeal makes it quite clear in its reasons that it was intended that the issue be clarified once and for all.

[118] I do agree however that R. v. Jennings does not create an automatic rule that the second branch of Grant always weighs in favour of inclusion for evidence of breath tests.

[119] After considering all of the facts in this case however I conclude that the second branch of Grant weighs in favour of inclusion of the results of the breath tests.

[120] 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.

[121] That applies both to Mr. Hamel's responses at the scene and to the results of the breath tests.

[122] However, with respect to the breath tests, I must also consider the fact that the evidence which Mr. Hamel 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.

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

[124] 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.

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

[126] 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".

[127] 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.

[128] 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.

[129] I conclude that the long term interests of the administration of justice are better served by exclusion of Mr. Hamel's responses at the scene. Accordingly, they will be excluded from evidence.

[130] I conclude that the long term interests of the administration of justice are better served by the inclusion of the results of the breath tests. Accordingly, they will be included in evidence.

[131] I am therefore satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hamel was operating a motor vehicle in the City of Burlington on March 20, 2017 when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[132] I find him guilty of that offence.

[133] That then leaves the impaired operation charge against Mr. Hamel.

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

[134] 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.

[135] In determining this, I have taken into account all of the factors set out in paragraphs 80 through 87 above.

[136] I have also taken into account the following factors.

[137] While being transported to the station, he kept asking Constable Morris what would happen next. He stumbled on his words while doing this and did not seem to understand Constable Morris' replies. I note that these statements occurred after Mr. Hamel had been read his right to counsel. Further, they were initiated by him, as opposed to being responses to anything said by Constable Morris.

[138] He called Constable Morris "Wallace" twice at the police station.

[139] He continued to be steady on his feet throughout.

[140] Finally, the results of the breath tests provided further confirmation that Mr. Hamel still had alcohol in his body at the time that he was driving and for some time after.

[141] After considering all of these factors, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Hamel was operating a motor vehicle in the City of Burlington on March 20, 2017 when his ability to do so was impaired by alcohol.

[142] I find him guilty of that offence.

A Further Comment

[143] This is yet another case where an audio-video recording of events by means of a dash-cam and / or a body camera could have shortened or even eliminated the trial proceedings. The points in issue here included the length of time that Mr. Hamel drove along the shoulder of the highway before bringing his vehicle to a complete stop. A recording of these events by means of a dash-cam in the police car would likely have provided a clear answer to that question. Other points in issue were what was said to and by Mr. Hamel and when these things were said. An audio-video recording of these events by means of a body camera worn by Constable Morris might well have resolved those issues. Instead, we spent a full day hearing evidence and submissions and I spent many hours preparing these reasons for judgment.

[144] I will point out that more than 30 per cent of the trials held in Halton Region in 2017 involved drinking / driving cases. The above comments are equally applicable to many of them. Some of these cases however took two or three days to complete in court rather than just one. It strikes me that it would be a much better allocation of resources to place cameras in police cars and on police officers thereby freeing up much of this court time and allowing us to hear cases in a more timely manner.

Released: April 24, 2018

Signed: Justice D.A. Harris