Court Information

Court File No.: Brampton 15-14353 Date: 2018-04-19 Ontario Court of Justice

Between: Her Majesty the Queen — AND — Kaitlin McIntyre

Before: Justice I. Jaffe

Heard on: February 27 and 28, 2018

Reasons for Judgment released on: April 19, 2018

Counsel

S. Scully — counsel for the Crown

B. Daley — counsel for the accused Kaitlin McIntyre

Judgment

JAFFE J.:

Introduction

[1] On November 8, 2015, at 2:11 a.m., P.C. Lassaline of Peel Regional Police Service arrived at the home of Kaitlin McIntyre just in time to observe her turning off the engine of her car, and exit the vehicle. The officer had attended the home in response to a radio call in which he was advised that a possibly impaired driver had been observed swerving and straddling lanes on highway 401, and had exited onto Highway 410 in Brampton.

[2] Having formed a suspicion that Ms. McIntyre had been operating her vehicle with alcohol in her system, the officer made an ASD demand. After several refusals, Ms. McIntyre provided a sample, and the 'fail' result led to her arrest. Ms. McIntyre was transported to 22 Division, and one hour and 22 minutes after the officer observed Ms. McIntyre exit her car, she provided her first sample of breath into the Intoxilyzer. Both samples revealed a blood alcohol level in excess of the legal limit, and Ms. McIntyre was charged with being in the care and control of a vehicle while her blood alcohol level exceeded the legal limit contrary to s. 253(1)(b) of the Criminal Code.

[3] Counsel seeks to exclude the evidence of Ms. McIntyre's breath readings on the basis of various Charter violations. Specifically, Mr. Daley has argued that the police breached Ms. McIntyre's s.10(b) rights in three ways: the standard caution issued to Ms. McIntyre upon her arrest improperly invited a response from her after she had expressed desire to consult counsel, but prior to being able to do so; the rights themselves were not issued immediately upon her detention; and the police failed to appropriately respond to her unequivocal expression of dissatisfaction with the advice she received from duty counsel.

[4] It is further alleged that Ms. McIntyre's s.8 right to be free from unreasonable search and seizure was violated. Specifically, it was argued that the arresting officer's subjective belief that Ms. McIntyre failed the roadside breath test, was not objectively reasonable by virtue of the officer's lack of understanding concerning the calibration requirements for the ASD.

[5] Finally, on the trial proper, counsel for Ms. McIntyre argued that the Crown is not entitled to rely on the statutory presumption in s. 258(1)(c)(ii) of the Criminal Code, because the breath tests were not taken as soon as practicable. Without the presumption, the Crown has not proven the charge beyond a reasonable doubt.

[6] The Charter applications and the trial proper proceeded before me in a blended fashion. Two witnesses testified: P.C. Lassaline, the arresting officer and P.C. Wood, the qualified breath technician.

The Timeline

[7] Many of the arguments advanced in this case relate to the timing of events. Accordingly, it is useful to provide at the outset of my reasons, a chronology of events as revealed in the evidence:

Time	Event
2:11 a.m.	P.C. Lassaline observed a silver SUV parked in the driveway of 108 Main Street. Both the vehicle was running, its lights were on, and both front tires were propped up on the edge of the driveway. P.C. Lassaline observed Ms. McIntyre exit the driver's side and approach him.
2:13 a.m.	P.C. Lassaline formed a suspicion that Ms. McIntyre had been operating the SUV while her ability to do so had been impaired by alcohol. The officer read Ms. McIntyre the ASD demand and by way of demonstration, performed a self-test.
2:23 a.m.	The officer read Ms. McIntyre the ASD breath demand again, and performed a second self-test in order to demonstrate the use of the ASD.
2:29 a.m.	Ms. McIntyre provided the sample into the ASD, which registered a 'fail'. P.C. Lassaline formed a belief that Ms. McIntyre had been in "care and control"
2:38 a.m.	P.C. Lassaline began reading rights to counsel.
2:39 a.m.	P.C. Lassaline read the caution.
2:40 a.m.	P.C. Lassaline made the breath demand. Sgt. Wood was notified that his services as a breath technician were required at 22 Division.
2:42 a.m.	P.C. Lassaline departed the scene with Ms. McIntyre
2:46 a.m.	P.C. Lassaline and Ms. McIntyre arrived at 22 Division
2:52 a.m.	Sgt. Wood performed the first check of the Intoxylizer 8000
2:53 a.m.	Sgt. Wood performed a calibration check on the Intoxylizer
2:56 a.m.	P.C. Lassaline placed a call to duty counsel and Sgt. Wood performed another calibration check on the Intoxylizer.
2:58 a.m.	Sgt. Wood performed a self-test on the Intoxylizer and deemed the instrument ready to receive samples.
3:00 a.m.	P.C. Lassaline provided his grounds to Sgt. Wood in the breath room
3:06 a.m. to 3:10 a.m.	Ms. McIntyre spoke to duty counsel.
3:25 a.m.	P.C. Lassaline turned over Ms. McIntyre to the breath technician P.C. Wood.
3:33 a.m.	Ms. McIntyre provided her first breath sample.
3:56 a.m.	Ms. McIntyre provided her second breath sample.
4:01 a.m.	Ms. McIntyre completed her breath tests.

The 10(B) Charter Arguments

i) Wording of Caution

[8] Upon arresting Ms. McIntyre and immediately following her rights to counsel – in response to which Ms. McIntyre indicated a desire to call counsel at the police station – P.C. Lassaline read the standard caution which culminates in the officer asking if Ms. McIntyre would like to say anything in answer to the charge. Though no details were adduced at trial, the officer acknowledged that Ms. McIntyre made a statement in response to that question.

[9] On February 19, 2018, the Supreme Court released its decision in R. v. G.T.D., 2018 SCC 7, in which the Court unanimously held that the above wording, administered after a detainee has expressed a desire to contact counsel, violates the obligation on the police to hold off their attempts to elicit information.

[10] In G.T.D, the appellant had been charged with sexual assault, and upon being asked if he wished to say anything, he replied that he did not think it was rape because he and the complainant had a prior relationship. A majority of the Supreme Court concluded that the appellant's admission must be excluded under s. 24(2).

In light of G.T.D., the Crown concedes that the wording of P.C. Lassaline's caution violated Ms. McIntyre's s. 10(b) Charter rights.

ii) Timing of Rights to Counsel

The Evidence

[11] The evidence disclosed that Ms. McIntyre was arrested at 2:29 a.m., yet her rights to counsel were not furnished until nine minutes later at 2:38 a.m. Asked what was happening in that 9-minute time period, P.C. Lassaline explained that because of her back injury, it took "several minutes" for Ms. McIntyre to exit his cruiser after the failed ASD test, be handcuffed, and return to the cruiser.

[12] P.C. Lassaline also explained that he had commenced the rights to counsel two or three times, but on each occasion, he had been interrupted by Ms. McIntyre who was complaining about the temperature, and the number of police cars in the vicinity. Finally P.C. Lassaline explained that the retrieval of his yellow notes from his trunk (which contained the s. 10(b) script) took "maybe another minute".

[13] In cross-examination, Mr. Daly suggested to the officer that the reason it took him nine minutes to read rights to counsel, is that he had not turned his mind to the necessity to read them immediately, because he was not aware of that requirement. The officer disagreed and replied:

"I know that I need to read them right away but I have to satisfy my own needs and their needs, right. But if I'm going to read rights to counsel, for one my needs are my own safety concerns, and then I would consider still too that they're in a position that I can read them and there is nothing that is going to interfere with that, like being cold, they're you know, make sure they are in an environment that they can clearly understand the rights."

[14] Asked why he could not have simply left Ms. McIntyre in the back of his cruiser after she failed her ASD test, P.C. Lassaline explained that she had not been searched and in the absence of a female officer on scene who could perform the search, she needed to be handcuffed for her transportation in the police car. He explained he had no safety concerns during Ms. McIntyre's ASD test because the door of the cruiser remained open during the test, and there were three other officers present.

The Arguments

[15] Mr. Daly argued that the nine minutes which elapsed between Ms. McIntyre's initial detention and the provision of her rights to counsel, were in clear breach of the immediacy requirement established by the Supreme Court in Suberu, 2009 SCC 33. On this point, Mr. Daly relied on the Sandhu, 2017 ONCJ 226, in which Schreck J. excluded breath test results having found that the delay in administering rights to counsel violated the detainee's s. 10(b) rights. Mr. Daly argues there was not a scintilla of evidence that a concern for officer or public safety justified the delay.

[16] The Crown argued that much of the delay in furnishing Ms. McIntyre's rights to counsel, was caused by Ms. McIntyre. Had the officer forged ahead with the process despite Ms. McIntyre's mobility issues and her requests for information, he would have undoubtedly been met with a different Charter complaint based on his disregard for Ms. McIntyre's concerns and her physical limitations. In support of its argument that the immediacy requirement must be afforded some flexibility depending on the circumstances, the Crown referred to R. v. Foster, 2017 ONCJ 624, a decision of mine in which I found that a four-minute delay in furnishing rights to counsel did not violate the defendant's s. 10(b) rights.

The Analysis

[17] There is no doubt that s. 10(b) obligates the police to provide a detainee with rights to counsel "without delay". In Suberu, 2009 SCC 33, at para. 42, the Supreme Court made it clear that "without delay" means immediately. This immediacy requirement is subject only to concerns for officer or public safety.

[18] On its face, the nine-minute delay appears to run afoul of the immediacy requirement. However, the determination of whether a delay constitutes a breach is not a purely mathematical exercise. The reasons for the delay must be examined.

[19] It was the middle of a November night and it was reasonable for P.C. Lassaline to place Ms. McIntyre in the back of his cruiser for the purpose of providing her with rights to counsel. The officer explained that concerns for officer safety required that Ms. McIntyre exit the cruiser following her failed ASD test, be handcuffed, and be seated back into the cruiser. There was no female officer on site who could search Ms. McIntyre, and handcuffing her until she was transported to 22 Division was in my view, a reasonable safety precaution.

[20] The unchallenged evidence was that as a result of a pre-existing back injury, the process of having Ms. McIntyre exit the cruiser and re-enter it after being handcuffed took more time than it might otherwise have taken. The officer estimated this process took "several minutes". I find that those several minutes fall within Suberu's safety allowance.

[21] The officer's retrieval of his yellow notes prior to entering the cruiser himself – a step he estimated took about a minute - was in my view necessary. It is preferable that an officer furnish rights to counsel as written in his or her notes, rather than improvise a detainee's constitutional rights. Moreover, the contemporaneous recording on the yellow notes of the detainee's answer's to the 10(b) questions, provides a valuable record of the important exchange between the arresting officer and the detainee.

[22] Once he entered his cruiser, P.C. Lassaline began reading Ms. McIntyre's rights to counsel however on two or three occasions, his efforts were interrupted by Ms. McIntyre. For instance she complained it was too cold, and P.C. Lassaline turned up the heat. At another point, Ms. McIntyre wondered why there were so many officers on site. P.C. Lassaline provided an explanation and recalled that he might have moved his car forward to ease her mind. All of these interruptions added to the delay. It is clear from the evidence, that while P.C. Lassaline began what was to be his final attempt to read rights to counsel at 2:38 a.m., he had commenced that process at some point earlier than that.

[23] Coinciding with P.C. Lassaline's duty to inform Ms. McIntyre of her s.10(b) rights, is a duty to ensure that she understood those rights: R. v. Evans, at para. 44. Unlike R. v. Christopoulos, 2017 ONCJ 845, a case referred to by Mr. Daly, in which the arresting officer undertook a series of administrative tasks prior to furnishing rights to counsel, I find P.C. Lassaline's measures to address Ms. McIntyre's concerns, and the consequent delays, fell with the scope of the officer's s. 10(b) obligations.

[24] While the 9-minute delay in this case warranted an examination by this Court, I have not been persuaded that it amounted to a breach of Ms. McIntyre's Charter protected rights. If I am wrong about this, and the officer breached Ms. McIntyre's s.10(b) rights in opting not to forge ahead with rights to counsel, I would find that the breach was minor and committed in good faith. The officer's conduct did not demonstrate an ignorance of well-established legal principles (such as in Christopoulos), nor a blatant disregard for Ms. McIntyre's rights. Nothing was elicited from Ms. McIntyre during the pre-rights delay, and the actual impact on her Charter protected rights would have been minimal.

Counsel of Choice

The Evidence

[25] P.C. Lassaline testified that after reading Ms. McIntyre her rights to counsel, and upon asking her if she "wished to call a lawyer now?", Ms. McIntyre replied "When we get to the station". P.C. Lassaline immediately asked if there was a certain lawyer she would like to contact, Ms. McIntyre replied "I only know judges, Nancy Kastner, but I don't want her called".

[26] At 22 Division, Ms. McIntyre spoke to duty counsel from 3:06am to 3:10 a.m. The full complement of rights to counsel was conferred a second time when Ms. McIntyre was in the breath room. This included advising Ms. McIntyre that she had the right to telephone any lawyer she wished. Asked if she understood, Ms. McIntyre replied "yes".

[27] The initial portion of the breath room video was played in court, and the DVD was entered as an exhibit. The relevant portion of the exchange between Ms. McIntyre and P.C. Wood is reproduced below:

Officer: You had the opportunity to speak to duty counsel out there?

Ms. McIntyre: yes.

Officer: ok, you are satisfied with the advice you were given?

Ms. McIntyre: No.

Officer: No?

Ms. McIntyre: No.

Officer: Why not?

Ms. McIntyre: They hung up on me. It's very cold in here, do we have to have the fan on?

Officer: Yes, yes we do.

Ms. McIntyre: ok.

Officer: Ok, so the duty counsel lawyer hung up on you?

Ms. McIntyre: Yes.

Officer: Did you indicate to the officers that the duty counsel lawyer hung up on you?

Ms. McIntyre: I indicated to the female officer, and she asked me why, and I said he said "I'm done with this conversation". That's it.

Officer: The duty counsel lawyer said he was done with the conversation?

Ms. McIntyre: Yea. I asked him who he worked for. I just wanted to know.

Officer: Right. Ok. So you weren't satisfied with the advice from duty counsel. Do you want to call duty counsel again?

Ms. McIntyre: no thank you.

Officer: You don't want to call duty counsel again?

Ms. McIntyre: no thank you sir.

[28] Following the above exchange, P.C. Wood then began to ask a series of standard questions, such as whether Ms. McIntyre was suffering from any illnesses, was she on medication, or wearing contact lenses. Ms. McIntyre provided answers, but a short time into the questioning, she mentioned to P.C. Wood that duty counsel had advised her not to answer any questions. Thereafter, Ms. McIntyre responded to the officer's questions with "not going to answer."

[29] P.C. Wood testified that if Ms. McIntyre had wanted to speak to duty counsel again, he would have immediately held off the breath test process until she had another opportunity to speak with counsel. Similarly, if she indicated a desire to speak to a specific counsel other than duty counsel, he would have held off the test, and would have directed the arresting officer to contact the requested counsel.

[30] P.C. Wood was challenged in cross-examination about why he did not facilitate Ms. McIntyre's call to another lawyer by for instance, providing her with the directory of lawyers, or even a short list of lawyers from which she could have selected a name. P.C. Wood explained that the lawyer's directory is voluminous (consisting of approximately 400 pages), and providing the directory to a detainee who has no specific counsel in mind could be an open ended exercise. In response to the suggestion that he could have provided Ms. McIntyre with a list of three or four names from which to choose, P.C. Wood replied that it would be unethical of him to advocate for a specific lawyer.

Arguments

[31] Mr. Daly argued that hanging up on a detainee is a completely inappropriate response and in responding in the manner he did, P.C. Wood effectively limited Ms. McIntyre to the single option of duty counsel. He argued that when Ms. McIntyre expressed unequivocal dissatisfaction with her consultation with duty counsel, the police were obligated to provide a "Proper" warning, re-issue her rights to counsel and provide her with an opportunity to call another lawyer. Instead, the police simply offered her another opportunity to call the very counsel who she claimed had hung up on her.

[32] The Crown countered that Sgt. Wood acted reasonably. He began his interaction with Ms. McIntyre by repeating her rights to counsel, which included the right to call any lawyer she wished. In this case, Ms. McIntyre did not complain about the quality of the advice given to her by duty counsel but complained that her conversation with duty counsel was cut short when she asked who he worked for. The officer was immediately responsive to Ms. McIntyre's complaint by asking twice if she wanted to call duty counsel again. This was a direct and reasonable response to her complaint that the call was cut short.

[33] In response to Mr. Daly's suggestion that the officer should have given Ms. McIntyre a directory of lawyers from which to choose an alternate counsel, the Crown argued that Sgt. Wood's concerns about delay were reasonable, especially since Ms. McIntyre did not ask to speak to a different lawyer. As for the suggestion that the officer should have provided a shorter list of lawyers to Ms. McIntyre, the Crown urged me to accept the officer's explanation that it would be inappropriate for an officer to seemingly endorse the services of a handful of lawyers. By doing so, the officer could be seen to be limiting the detainee's counsel of choice to only a certain number of lawyers.

Analysis

[34] Section 10(b) of the Charter imposes informational and implementation obligations on the police. First, the police must inform the detainee of his or her right to retain and instruct counsel without delay, and inform them of the existence and availability of legal and duty counsel: R. v Bartle, at para. 17.

[35] Secondly, if a detainee has indicated a desire to exercise the right to counsel, the police must provide him or her with a reasonable opportunity to exercise that right. And finally, police must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity: Bartle, at para. 17.

[36] An additional informational obligation will arise when a detainee is diligent but unsuccessful in contacting a lawyer, and then changes her mind and forgoes the opportunity to contact counsel. In those situations, police must provide a "Prosper" warning, making it clear to the detainee that their unsuccessful attempts to reach counsel did not exhaust their s. 10(b) right. The police must ensure that any choice to speak with the police does not derive from such a misconception: R. v. Prosper, at p. 274; R. v Willier, 2010 SCC 37, at para. 32.

[37] In this case, there is no dispute that the police fulfilled their informational obligations. Ms. McIntyre was advised of her rights to counsel twice: once at the scene and again in the breath room. The real debate here is whether the police provided Ms. McIntyre with a "reasonable opportunity" to consult with counsel, and whether, under the circumstances, they were required to give her a "Prosper" warning. Put another way, was P.C. Wood's response to Ms. McIntyre's complaint sufficiently protective of her s.10(b) rights?

[38] I agree that a duty to issue a "Prosper" warning might arise when, despite the fact that the detainee was put in touch with a lawyer, no meaningful consultation occurred. That is what occurred in R. v. Hajovska, 2015 ONCJ 263, the case relied upon by Mr. Daly. In Hajovska, Pringle J. found that duty counsel's rude and unprofessional attitude towards Ms. Hajovska, obligated the police to re-issue her rights to counsel and facilitate her contact with alternate counsel. Their failure to do so amounted to a s. 10(b) violation.

[39] However, the facts in Hajovska are very different than the facts in the case before me. Ms. Hajovska testified on the voir dire, and claimed that duty counsel was rude and yelled at her during their first telephone conversation. She said she was unable to ask any questions of duty counsel. Police witnesses testified that Ms. Hajovska was very upset about the way she had been treated. One officer testified that duty counsel was so rude to him as well, that he threatened to report duty counsel to the Law Society: Hajovska, at para. 87.

[40] Ms. Hajovska "begged" the officers to let her speak to someone else, however, there was no other duty counsel available that night. Ms. Hajovska ultimately agreed to speak with the same duty counsel again, but the second call with him was even worse than the first. Pringle J. found that when Ms. Hajovska finally agreed to speak with duty counsel again, she did so out of a sense of hopelessness: Hajovska, at para. 100. Under those "unique" circumstances, Pringle J. concluded that Ms. Hajovska did not have a reasonable opportunity to consult with counsel, which in turn triggered additional obligations on the police to ensure she was afforded such an opportunity with another lawyer.

[41] Ms. McIntyre's complaint about duty counsel was of a different nature. While hanging upon a detainee may not be the model of professionalism, it does not lead directly to a finding that Ms. McIntyre was not given proper legal advice. If Ms. McIntyre was dissatisfied with the advice she received, it was incumbent upon her to provide a basis for her dissatisfaction: R. v. Winterfield, 2010 ONSC 1288, at para. 75.

[42] Ms. McIntyre did not testify on the voir dire, and the breath room video provides a limited basis upon which to infer her dissatisfaction. Even though her complaint was in response to a question about whether she was satisfied with the "advice" she had been given, it appears that her complaint was not about the advice given, but rather that her phone call was cut short when duty counsel hung up on her.

[43] Based on the record before me, I assume that duty counsel hung up after he had given Ms. McIntyre legal advice. And, in the absence of evidence to the contrary, I must presume that duty counsel gave proper legal advice to Ms. McIntyre: R. v. T.(E.), at para. 27; R. v. Winterfield, at para. 73. I also presume Ms. McIntyre understood that advice. In fact, during the questioning by P.C. Wood, Ms. McIntyre advised that she was told by duty counsel not to answer the officer's questions, and thereafter, she followed that advice.

[44] I have no basis to disbelieve the evidence of P.C. Wood that had Ms. McIntyre expressed a desire to contact duty counsel, or any other lawyer, he would have held off on the breath test and facilitated contact with counsel. But that situation did not arise. Accordingly, I need not determine what efforts the officer's would have been obligated to make in attempting to find another lawyer for Ms. McIntyre. However I tend to agree with the Crown that providing a detainee with a short list of lawyers not only suggests that the officer is improperly advocating for those lawyers, but also puts limits on the detainee's counsel of choice.

[45] Providing a detainee with a 400-page lawyer directory may add to the delay in administering the time-sensitive breath test. However, when a detainee's s. 10(b) rights come into conflict with the "as soon as practicable" requirement in s. 258(1)(c)(ii) of the Criminal Code, the Charter rights must prevail. Where a detainee cannot obtain meaningful advice from duty counsel, and she has no other lawyer in mind, it may be necessary for the police to provide the detainee with the lawyer's directory or a phone book. I find however, there was no such obligation on the police in this case.

[46] P.C. Wood's offer to facilitate another call with duty counsel was appropriately responsive to Ms. McIntyre's complaint. Ms. McIntyre neither sought to call duty counsel again, nor any other lawyer. Having been twice told she had the right to telephone any lawyer she wished, and in the absence of any other evidence, I can only assume that her decision to forgo further legal consultation, and proceed with the breath test, was informed. P.C. Wood did not violate her s. 10(b) rights.

Section 8 Charter Argument

The Evidence

[47] P.C. Lassaline testified that upon observing her glossy eyes, and swaying, and upon noticing the odour of alcohol on her breath, he formed a suspicion that Ms. McIntyre was in "care and control" of her vehicle while she had excess amount of alcohol in her system. It was on that basis he issued a s. 254(2) demand for Ms. McIntyre to provide a sample of her breath into an approved screening device (ASD).

[48] P.C. Lassaline testified that an ASD will register a fail if it detects 100 milligrams of alcohol or more in 100 millilitres of blood. Prior to administering the test, P.C. Lassaline conducted two self-tests, both of which yielded results consistent with the lack of alcohol in the officer's system. P.C. Lassaline's reasonable grounds to believe were crystalized when Ms. McIntyre failed her ASD test. P.C. Lassaline acknowledged in cross-examination that but for the failed ASD result, he would not have had the necessary grounds to arrest Ms. McIntyre.

[49] P.C. Lassaline testified that the ASD was last calibrated on October 18, 2017- 21 days prior to the Ms. McIntyre's arrest. P.C. Lassaline was uncertain about the calibration requirements for the ASD. In cross-examination, the officer testified that he believed the ASD required calibration every seven days, however in re-examination he pointed out that according to his "yellow notes" calibration must be done every two weeks. It turns out he was wrong.

[50] P.C. Lassaline did however, know that if not calibrated within the stipulated time requirements, the ASD becomes inoperative and cannot be used to administer the roadside breath tests.

[51] Sgt. Wood testified that an ASD is subject to two separate checks-accuracy and calibration. The device must be checked for accuracy every two weeks and calibration checks are done within a 150-180 day period. According to P.C. Wood, the ASD is automatically disabled if the checks are not conducted within the stipulated time periods.

Arguments

[52] It is alleged that the Ms. McIntyre's s.8 right to be free from unreasonable search and seizure was violated because P.C. Lassaline's subjective belief that Ms. McIntyre failed the roadside breath test, was not objectively reasonable by virtue of the officer's lack of understanding concerning the calibration requirements for the ASD.

[53] Mr. Daly argued that the officer clearly did not appreciate the difference between calibration and accuracy and he clearly did not know the calibration requirements of the ASD. The officer's explanation that the device would not operate if it was not calibrated correctly, is circular reasoning which does not assist the officer in objectively supporting his belief that Ms. McIntyre had failed the ASD test.

[54] The Crown countered that the ASD was in fact working properly (it had been subject to a calibration and accuracy tests within the prescribed times), and despite the arresting officers' confusion about the calibration requirements of the ASD, his subjective belief was objectively reasonable. The officer administered the self-test twice, and ensured the device was properly functioning.

Analysis

[55] The onus is on the Crown to demonstrate that the warrantless seizure of Ms. McIntyre's breath sample was reasonable: R. v. Collins, at p.278. The law that authorized the seizure is s. 254(3) of the Criminal Code, which permitted P.C. Lassaline to make a breath demand of Ms. McIntyre provided he had reasonable grounds to believe that she was at any time within the preceding three hours, driving while impaired by alcohol, or with an excess amount of alcohol in her blood. The officer's subjective grounds to make the demand must have also been objectively reasonable. R. v. Bernshaw, at p. 284.

[56] Where an officer suspects that a driver has alcohol in his body, a failed ASD test may be sufficient to elevate his suspicion to the reasonable and probable grounds required to make a breath demand: Bernshaw, at p. 285. The question in this case is whether P.C. Lassaline's confusion about the calibration requirements of the ASD, compromised the objective reasonableness of his belief.

[57] Almost 25 years ago, Sopinka J. held that in the absence of credible evidence to the contrary, an officer is entitled to rely on the accuracy of a road side screening device: Bernshaw, at p. 298. The Court of Appeal in Coutts (1999), held that where the results of an ASD are being used to confirm an officer's suspicion that a driver might be impaired or driving while "over 80", the Crown need not prove that the device was properly calibrated. It is sufficient if the administering officer reasonably believes it was: Coutts, at para. 21. These legal principles are equally binding today.

[58] Very recently in Jennings, 2018 ONCA 260, the Court of Appeal allowed a Crown appeal where the trial judge and the summary conviction appeal judge, concluded there were no objective grounds to support the arresting officer's subjective belief in both the proper functioning of the ASD, and in the presence of reasonable and probable grounds to believe the respondent had been driving "over 80". In that case, the police officer who made the ASD demand had not followed the procedures in the ASD manual to ensure the device was in proper working order.

[59] Miller J.A. writing for the Court, held that a failure to follow policy or practice directions will not automatically invalidate an officer's grounds to believe: Jennings, at para. 17. What is important is how, if at all, the failure of the officer to follow the policy undermined his belief that the ASD was functioning properly: Jennings, para. 17.

[60] Here, there was no evidence that P.C. Lassaline failed to do anything, other than understand the calibration schedule for the ASD. However, P.C. Lassaline twice administered self-tests with the ASD, both of which yielded results accurately reflecting the absence of alcohol in his system. As well, he correctly understood that if the ASD had not been calibrated according to the mandated schedule, it would not operate. I find that P.C. Lassaline had a reasonable basis to conclude that the ASD used to administer Ms. McIntyre's road side breath test was in good working order. The confusion P.C. Lassaline expressed on the stand concerning the calibration schedule, does not detract from the reasonableness of his belief on the offence date.

[61] And while it has been long understood that there is no onus on the Crown to tender calibration evidence: R. v. Beharriell, 2014 ONSC 1100, at para 41, in this case, there was evidence from P.C. Wood that the ASD used by P.C. Lassaline was, in fact, properly calibrated.

[62] I conclude that the 'failed' ASD result in this case objectively supported P.C. Lassaline's "grounds for belief", and his s. 254(3) breath demand. Having found that Ms. McIntyre's breath samples were obtained pursuant to a valid demand, and their seizure authorized by law, her s. 8 Charter application is dismissed.

Section 24(2)

[63] I have found only one breach of Ms. McIntyre's Charter rights, which occurred when P.C. Lassaline as part of the standard caution, asked if Ms. McIntyre wanted to say anything in answer to the charge. By then, Ms. McIntyre had already asserted her right consult with legal counsel. However, despite the breach of Ms. McIntyre's 10(b) rights, a contextual consideration of the three lines of inquiry in R. v. Grant, 2009 SCC 32, leads to the admission of her breath test results.

Seriousness of the Charter Infringing State Conduct

[64] Police conduct which results in Charter violations runs along a continuum, with willful or egregious disregard for Charter rights on the one end, and minor breaches committed in good faith on the other. The more wilful or deliberate the state conduct, the greater the Court's need will be to disassociate itself from the conduct: Grant, at paras. 72 and 74.

[65] Mr. Daly argued that the violation was systemic, the offending question forming part of the standard caution read by every police officer in the service. This may be so, however, the impropriety of the caution's final question was not made clear to the police until the release of the Supreme Court's decision in G.T.D. in February 2018 -over two years after P.C. Lassaline posed the offending question to Ms. McIntyre.

[66] Good faith will be found when the police have acted in a manner consistent with what they subjectively and reasonably believed to be law: R. v. Washington, 2007 BCCA 540 at para. 78. Similarly worded cautions as the one used by P.C. Lassaline have been used by police in Canadian jurisdictions since the Charter was adopted: G.T.D. 2017 ABCA 274, at para. 22, appealed allowed 2018 SCC 7. Until the Supreme Court definitively pronounced its unconstitutionality, the caution was the subject of minimal, and conflicting, Charter scrutiny: G.T.D., 2017 ABCA 274, at para. 22, appealed allowed 2018 SCC 7.

[67] I find the breach in this case was committed in good faith as P.C. Lassaline was acting in accordance with what he reasonably believed to be law at the time.

The Impact of the Charter Violation on the Accused

[68] The actual impact of the violation on Ms. McIntyre was minimal. Unlike in G.T.D where the Crown sought to tender the incriminating comment made by the accused in response to the unconstitutional question, the Crown in this case did not seek to introduce any statements made by Ms. McIntyre.

[69] Moreover, the procedure of taking breath samples has been repeatedly recognized as being minimally intrusive: Jennings, at paras. 29 to 32. A consideration of the minimal impact occasioned by the breach, favours admission under this branch of the inquiry.

The Importance and Reliability of the Evidence to a Trial on the Merits

[70] Under this line of inquiry, the focus is on whether the truth-seeking function of this trial would be better served by admission of the evidence, or by its exclusion: Grant, at para. 79. It is beyond dispute that the evidence sought to be excluded is crucial to the Crown's case.

[71] The evidence is also reliable, which is an important factor in the 24(2) analysis: Grant, at para. 81. Generally speaking, the reliability of bodily sample evidence, such as breath samples, will favour admission under this third line of inquiry: Grant, at para. 110. Under the circumstances, I find that the truth-seeking function of the criminal trial process would be better served by the admission of the breath test results, rather than by their exclusion.

[72] All three lines of the Grant inquiry favour the admission of Intoxylizer readings and accordingly Ms. McIntyre's application to exclude them under s. 24(2) is dismissed.

The Presumption Argument

The Evidence

[73] The evidence established that the time which elapsed between the commission of the alleged offence at 2:11 a.m., and the taking of the first breath sample at 3:33 a.m., was 1 hour and 22 minutes. The argument in this case focusses on the 15-minute time period between 3:10 a.m. (when Ms. McIntyre completed her call with duty counsel) and 3:25 a.m., when she was turned over to P.C. Wood, the breath technician.

[74] While P.C. Lassaline could not specifically recall where he took Ms. McIntyre once she completed her call with duty counsel, he explained that the only place she would have been was on the bench in front of the cell officers. Asked what was happening in that 15 minute period, P.C. Lassaline explained that he had to wait for P.C. Wood to set up the equipment and then brief P.C. Wood on the grounds for Ms. McIntyre's arrest.

[75] However, it would appear from the evidence that by 3:10 a.m., P.C. Wood had been briefed and was prepared to accept Ms. McIntyre into the breath room. P.C. Wood testified that the Intoxylizer machine was ready to take the first sample by 3:10 a.m. and he could only surmise that at the time, Ms. McIntyre was in the booking area outside of the breath room.

[76] P.C. Wood was asked in cross-examination what processes must be undertaken with a detainee prior to being turned over to the breath technician. P.C. Wood explained that the cells officer follows procedures to ensure that the detainee has removed jewelry, belts and shoes. All of the detainee's possession must be itemized and placed into property bags. The Staff Sergeant will have a series of standard questions for the detainee and it is only once that conversation is completed and the detainee's belongings have been lodged, that the detainee will be turned over to the breath technician.

The Arguments

[77] Mr. Daly argues that Ms. McIntyre's first breath sample was not taken as soon as practicable, and accordingly, the Crown is disentitled to the presumption in s. 258(1)(c)(ii) of the Criminal Code. Mr. Daly argued that we simply do not know what was happening within the 15-minute time period during which Ms. McIntyre was waiting to provide her breath samples. He suggested that only the cells officers could fill in the gaps in the timeline, and in the absence of such evidence, the Court should not speculate as to what was happening.

[78] Both the defence and the Crown rely on R. v. Vanderbruggen (2006) in support of their arguments. The Crown argued by way of comparison, that the unexplained delay in Vanderbruggen was 46 minutes, and yet the Court of Appeal upheld the trial judge's finding that the samples were taken as soon as practicable. The entire time period between the commission of the alleged offence and Ms. McIntyre's breath tests was 1 hour and 22 minutes, well within the two hour time frame. And while it would have been preferable in this case to explain what was happening in the 15 minutes immediately preceding Ms. McIntyre entering the breath room, there is nothing to suggest anything unreasonable was occurring during that short period of time.

Analysis

[79] In order to rely on the presumption of identity set out in s. 258(1)(c)(ii) of the Criminal Code, the Crown must establish that the breath samples were taken "as soon as practicable" after the offence was alleged to have been committed. This requirement has been judicially interpreted as requiring the police to take the breath samples "within a reasonably prompt time under the circumstances": R. v. Vanderbruggen, at para. 12. The focus of the inquiry should be whether, in the circumstances, the police acted reasonably: Vanderbruggen, at para. 12.

[80] Deciding whether the breath samples were taken "as soon as practicable" requires an examination of the entire chain of events and, as the Court in Vanderbruggen made clear at paragraph 13, the Crown is not obligated to fill every evidentiary gap in the timeline:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while 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 that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), at para. 20; R. v. Carter; R. v. Cambrin (1982) at 61-3, and R. v. Seed at para. 7.

[81] In Vanderbruggen, the total time which elapsed between the offence and the first sample was 1 hour and 15 minutes. At trial, there was 46-minute period during which it was established that Mr. Vanderbruggen was in a holding cell, but about which there was little other evidence. Not surprisingly, the argument centred on the 46-minutes of unexplained delay.

[82] In upholding the trial judge's conclusion that the samples were taken "as soon as practicable", Rosenberg J.A. writing for the unanimous Court, clearly considered the entire chain of events, and did not hyper-focus on the 46-minute time period. Moreover, the absence of any evidence of unreasonable prioritizing by the police, was also an important consideration.

[83] More recently in R. v. Singh, 2014 ONCA 293, at para. 14, Juriansz J.A., urged trial courts to apply the "as soon as practicable" requirement with reason. Juriansz J.A. reminded us that the statutory presumption was enacted to expedite the trial process and its application should not depend on an exact accounting of the chronology from offence to the breath tests: Singh, at para. 15.

[84] The Court of Appeal's holistic interpretation of the "as soon as practical" requirement in Vanderbruggen and Singh, was not new. In Seed, the Court of Appeal denied the Crown's leave to appeal because it failed to perfect the appeal. However, the Court took the unusual step of commenting on the merits of the appeal because in the Court's view, the trial decision concerned a "significant issue and does not accord with established authority": Seed, at para. 2.

[85] In Seed, the accused had been charged with operating his boat with a blood alcohol level that exceeded the legal limit. A total of 31 minutes elapsed from the time he was arrested operating his boat, to the taking of his first breath sample. The trial judge concluded that the Crown's failure to account for what happened during a fourteen minute period from the time the respondent left the dock to his first breath sample deprived the Crown from relying on the statutory presumption. Court of Appeal made it clear at para. 7, that had it granted leave to appeal, the result might have been different:

It would have been our view had we granted leave to appeal that both the trial judge and the appeal judge misconstrued the meaning of "as soon as practicable" and in imposing an evidentiary burden on the prosecution to account for every minute between the time of arrest and the administration of the first test, rather than focusing on whether the police had acted reasonably, and expeditiously, in all the circumstances. Their decisions were contrary to an established line of authority. In addition to the Phillips case and the Payne case, see, for example, R. v. McCarthy (1981); R. v. Carter (1981); R. v. Carter (1980); R. v. Rasmussen (1981).

[86] In this case the total time which elapsed was 1 hour and 22 minutes. Much of that time period has been explained in the evidence. The ASD test was delayed as a result of Ms. McIntyre's multiple refusals to provide breath sample, her physical limitations and her complaints. Notwithstanding these interruptions, P.C. Lassaline was en route to the 22 Division just over half an hour after he first encountered Ms. McIntyre in her driveway. The officer arrived at 22 Division a mere four minutes later, and within ten minutes of arriving, P.C. Lassaline had placed a call to duty counsel.

[87] The only time period which has not been explained fully is the 15 minutes between the completion of Ms. McIntyre's call to duty counsel, and her entrance into the breath room. I will not speculate about what exactly was occurring during the 15 minutes immediately preceding Ms. McIntyre's entrance into the breath room, however, P.C. Wood's evidence concerning the standard booking procedures provide some basis to believe that at least some of that time was consumed by routine processing: R. v. Price, 2010 ONSC 1898, at para. 18.

[88] I remain mindful that the onus is on the Crown to establish compliance with the pre-conditions of s. 258(1)(c)(ii) beyond a reasonable doubt, however as Rosenberg J.A. noted in Vanderbruggen, there is no suggestion nor evidence in this case that the police improperly prioritized their tasks or acted unreasonably. Considering as I must the entire chain of events, and bearing in mind the two hour period permitted in s. 258(1)(c)(ii) of the Criminal Code, I find that the samples were taken "as soon as practicable", thereby allowing the Crown to rely on the statutory presumption.

Conclusion

[89] Counsel for Ms. McIntyre submitted that the only "live" issue on the trial proper was whether the Crown could rely on the presumption. The care and control element of the offence has been conceded. Having ruled the breath test results admissible notwithstanding the one Charter breach, having dismissed the remaining Charter applications, and having ruled that the Crown is entitled to rely on the statutory presumption of identity, I find the Crown has proven beyond a reasonable doubt that when Ms. McIntyre was in care and control of her vehicle on November 8, 2015, the concentration of alcohol in her blood exceeded the legal limit. I therefore find her guilty.

Released: April 19, 2018

Signed: Justice Jaffe