Court File and Parties

Ontario Court of Justice

Date: November 9, 2018

Between:

Her Majesty the Queen

— and —

David Fleming

Before: Justice P. Harris

Reasons for Judgment released: November 9, 2018

Counsel:

Erin Winocur — counsel for the Crown

Stephen Price — counsel for the defendant David Fleming

Reasons for Judgment

[1] Charges

David Fleming is charged with operating a motor vehicle in Toronto on March 10, 2015 when his ability to operate a motor vehicle was impaired by alcohol, and his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[2] Charter Application

Mr. Fleming alleges breaches under sections 8 and 9 and applies to exclude the breath tests pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[3] Undisputed Facts

There is no issue that Mr. Fleming was operating his motor vehicle on March 10, 2015, or that the two Intoxilyzer tests both showed results in excess of 80 mgs of alcohol in 100 millilitres of his blood.

The Evidence

[4] Initial Stop and Police Observations

On March 10, 2015, David Fleming made a prohibited right turn (11:32 pm) at Bloor and Keele Streets in Toronto, and proceeded northbound on Keele Street one block. P.C. Simpson thought he was travelling at a fast speed on Keele Street but did not know for sure if he was over the 50 Km speed limit. Mr. Fleming turned right on Glenlake Avenue and travelled east one block to Indian Grove. When the police vehicle approached his car with emergency equipment activated, he was stopped at a stop sign at Indian Grove. The officer driving the police vehicle expected the car to stop or pull over in some manner. She agreed in cross-examination that some drivers don't pull over right away. When it started to move forward and turn, P.C. Cruden said: "We hit the horn to get it to stop."

[5] Vehicle Stop and Initial Contact

The video recording of the scene shows Mr. Fleming hesitating momentarily at the stop sign then slowly turning right onto Indian Grove and pulling over at a snow bank. At 11:33 pm, P.C. Simpson and her partner P.C. Cruden approached the Fleming vehicle and P.C. Simpson spoke to the driver. According to P.C. Simpson, Mr. Fleming had difficulty removing his insurance and ownership from a small plastic folder that was in the glove compartment, but no difficulty retrieving his license from his wallet. He said he had a "couple beer" at a local restaurant.

[6] Officer Simpson's Observations and Arrest

P.C. Simpson noted the defendant's clothing was "sloppy" and there was a stain on his clothes as well. In her opinion, his "fine motor skills seemed to be impaired" because of his difficulty producing his ownership and insurance from the plastic folder. She detected an odour of alcohol on his breath. Also noted was the fact Mr. Fleming's rear lights were not on. She observed that his speech was slurred and testified it remained slurred throughout her dealings with the accused. On the basis of the foregoing as well as "the place where he had been and what he was doing before" and the "manner in which the vehicle actually pulled over," she formed the opinion "the accused was impaired by alcohol," made an arrest for impaired operation and an ASD demand. While this was not one of her enumerated grounds to arrest the defendant for 'impaired operation', she noted that he stumbled upon exiting his vehicle.

[7] Officer Cruden's Limited Observations

P.C. Cruden's only observations were that: (1) His rear lights were not on; (2) When the police vehicle, with emergency equipment activated, approached the Fleming vehicle, which "was stopped at a stop sign, he waited and turned southbound onto Indian Road (sic) from Glenlake even though the emergency lights and siren were on." She was asked: "In a drinking, driving case you would want to make notes of everything you saw, heard or smell that you perceive to be an indicium of impairment?" She replied, "Yes." She later amended that answer by stating: "If I was the initial officer dealing with the male I would make those observations." She also commented: "Well I didn't have much dealings with him, so my observations were mostly the vehicle and how long it took to pull over." She agreed that she "saw the accused exit the vehicle" but it was clear from her testimony she didn't see him stumble. "And you were standing facing the door of the car when the accused exited?" She replied, "Yes." Did you make any note of anything unusual about the manner in which he does that?" Answer: "No I don't." She also mentioned that at times his voice was loud in the police vehicle and she thought, "It seems like a slow pace to speak." "But I don't know if that's normal for him or.."

[8] Transport to Police Division and Handcuff Complaints

Upon arrest outside his car, Mr. Fleming was heard to say: "The cuffs are painful." He was handcuffed behind his back from 11:45 pm until he was presented to the Booking office at 22 Division at about 12:15 am. He was transported to 22 Division in the rear seat of the police vehicle, while handcuffed behind his back and on a number of occasions he complained loudly about the cuffs being too tight causing pain and discomfort. When the police vehicle reached the 22 Division sally port, after considerable discussion in the vehicle about the pain he was experiencing, Mr. Fleming explained that he had recently had surgery on his wrist. At 22 Division the officers told the Officer in Charge that Mr. Fleming was cooperating but complaining about his hands (that the cuffs were too tight).

[9] Breath Tests and Post-Test Detention

The defendant provided two breath samples directly into an approved instrument at 22 Division and was told by at least one of the arresting officers and the breath technician that he would be going home after the breath test and paperwork was completed. Mr. Fleming's wife, Lisa Fleming testified she was called by P.C. Simpson and told that she could come to the station to "get him." She stated she was prepared to drive to the police division to receive Mr. Fleming and drive him home. She called the station five times to ascertain when he would be released and was finally advised he would be held at 11 Division until the next day. Mr. Fleming was in a position to be released from 22 Division at 2:09 am but was not released until 9:30 am from 11 Division, a total of 6 hours, 21 minutes later.

[10] Sergeant Woodhouse's Decision to Detain

Sgt. Woodhouse testified he was the Officer in Charge of 22 Division. He gave evidence that he did not have any notes about impairment in regards to Mr. Fleming. He testified he vaguely recalled speaking to the 11 division officers (P.C.s Simpson and Cruden) and asking about the breath readings (187 and 182 mgs. percent) and he stated: "I asked them to take him back to 11 Division so his body could get rid of some of the alcohol." Sgt. Woodhouse had no contact with Mr. Fleming after the Booking interview. He didn't recall having a conversation as to whether there was a responsible person who could "pick him up." He was asked: "Would you have released him to a responsible adult?" He replied: "…As long as I am satisfied that they – they would understand and that they were safe walking out the front door. Then yeah, I – I see it, a strong possibility that I would release somebody on a Form 9 for that."

[11] Defendant's Testimony

David Fleming testified that he was at the Mugshots Restaurant for lunch and dinner. He did not count the number of drinks he had. (The receipt found on him indicated he paid his bill at 9:43 pm about an hour and 50 minutes before he was seen driving on Keele Street). He stated that when he entered his vehicle, his walking and balance were normal and he did not have any concerns about his ability to drive. Mr. Fleming gave evidence that when the police pulled up behind him at Indian Grove, he was not sure whether "they targeted me or wanted to get around me." He says he inched forward and when it became clear they had targeted him, he pulled over to a "place of safety" at a snow bank.

[12] Defendant's Account of Vehicle Issues and Arrest

He was asked about his tail lights and he testified that his turn signals were malfunctioning. He said his indicator lever was coming out and he thought the "whole headlight system was effected." He did not notice his tail lights were not on. The defendant testified he produced his driver's license and an expired insurance slip from his wallet in his back pocket without any problem. He stated his ownership and insurance were in a plastic pocket he retrieved from the "glove box" and he had some difficulty removing his insurance card from the "frozen pocket of the portfolio." He stated he did not stumble getting out of his car. He described having some difficulty getting into the back of the police car. At 6'1" and 205 lbs, he said there was "no room." He said he couldn't use his hands to get in the car, "because they were pinned behind my back with cuffs." He stated, "They sat me down on top of my hands which were sore." He testified he had carpel tunnel surgery on his wrists "three months before." He gave evidence he told the officers his hands "were sore, he had surgery", but "they did nothing."

[13] Defendant's Account of Detention and Release Expectations

Mr. Fleming testified that the breath technician told him that he would be released after the paperwork was done. He said he called his wife and he told her where to attend to "pick me up after the paperwork was complete." He gave evidence that he was not interviewed by any officer-in-charge about whether he could be released. He stated P.C. Simpson said the Staff Sergeant at 22 Division "would ask me some questions and release me." P.C. Cruden was asked: "So the accused indicated (on video) he thought he was being released, is that correct?" She agreed that her partner said "sure but we have to wait for the sergeant to give approval." He stated he never saw a Staff Sergeant and was transferred to 11 division and found out he was not going to be released from Sgt. Meech at that Division. Under cross-examination, Mr. Fleming agreed he called the arresting officer (after stepping out of his car) "Sir" (his actual words were "Sir.. M'am"), he had a pasta stain on his tie and his voice was loud and he was discourteous at times when speaking to the arresting officers in the police vehicle because his hands were getting "very sore by the minute" because the "cuffs were too tight but they refused to do anything."

The Issues

[14] Issues Before the Court

The issues before me are:

(1) Whether there were reasonable and probable grounds to make a demand for breath samples from the defendant pursuant to s. 254(3), viewed objectively, and additionally, was there a breach of his right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter, and his right not to be arbitrarily detained as guaranteed by section 9 and if so, should the breath test results be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms;

(2) Whether the detention of the defendant following the breath tests was arbitrary and a breach of s. 9 of the Charter and if so, should that breach, alone or in combination with other Charter breaches, result in the exclusion of the breath test results pursuant to s. 24(2);

(3) Whether the Crown has proven beyond a reasonable doubt that Mr. Fleming's ability to operate a motor vehicle was impaired by alcohol.

Reasonable and Probable Grounds

[15] Charter Protections

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

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

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

[16] Burden of Proof

On the s. 8 application the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or seizure was reasonable given that the search and seizure of breath samples was a warrantless one. Of course, as with most Charter applications, the defendant bears the burden of persuading the court on a balance of probabilities that his s. 9 Charter rights have been breached by reason of an arbitrary detention.

[17] Statutory Requirement

Section 254(3) of the Criminal Code provides 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, ...

[18] Crown's Burden

Accordingly, the Crown bears the onus of proving the police officer making the breath demand had the necessary reasonable and probable grounds to do so.

[19] Legal Framework for Reasonable Grounds

I have read and considered all of the authorities submitted by counsel even if I do not refer to each judgment in this decision. Any analysis of reasonable grounds must begin with an approach to the issues articulated in R. v. Bush 2010 ONCA 554, at paras. 37, 38, 47 and 48:

[37] Between suspicion and proof beyond a reasonable doubt lie reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'" (emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case.

[38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. The officer's belief must be supported by objective facts. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest.

Credibility Findings

[20] Officer Simpson's Enumerated Factors

Constable Simpson testified that she relied upon the following factors in forming her opinion that the defendant's ability to drive a motor vehicle was impaired:

1. Slurred Speech

She noted Mr. Fleming's speech was slurred while conversing with her following the vehicle stop. She was asked: "You had no trouble understanding what he was saying, correct? Answer: "Correct." Q: "And if I understand your answer, all the words that came out were slurred?" Answer: "Yes." Question: "And I think you told my friend, that his speech remained slurred throughout your dealings with him?" Answer: "Yes."

2. Sloppy Clothing

She observed that his clothing was "sloppy" and there were stains on his clothes.

3. Fine Motor Skills

She noticed his fine motor skills seemed to be impaired. She said "he was struggling to remove his ownership and insurance documents from a small plastic folder when I was – when I made demand – the demand for those documents and also for removing the driver's license from his wallet." Later, under cross-examination, the officer agreed he had no problem producing his driver's license from his wallet but had difficulty removing his insurance and ownership from a plastic folder: Mr. Fleming testified the insurance and ownership were kept in a plastic case in the glove compartment and were "frozen" and hard to open. P.C. Simpson was asked: "You notice that people that have nothing to drink sometime have difficulty or fumble with their documents?" Answer: "Yes."

4. Non-Functioning Tail Lights

She noticed his tail lights were not on. Mr. Fleming gave evidence the core of the signal lever was coming out and he thought it had affected the lighting system. Additionally, he stated he "did not know anything was wrong with the (rear) lights that day."

5. Admission of Alcohol Consumption

She referred to his answers about where he had been and what he had been doing. He said he had lunch and dinner at restaurant call "Mugshots.' Asked what he had to drink he said: "a couple beer."

6. Failure to Stop Immediately

She referred to the fact that the Fleming vehicle did not stop after the police vehicle pulled up behind it. The Fleming vehicle had made a prohibited right turn at 11:31 pm while travelling westbound on Bloor Street at Keele Street. (A right turn is prohibited at all hours of the day). It did come to a full stop at Keele Street and proceeded northbound on Keele Street to Glenlake Avenue. The vehicle then turned right on Glenlake Ave. and came to a stop at Indian Grove at a stop sign. P.C. Simpson pulled up behind the Fleming vehicle at the stop sign with lights and siren on. The officer testified the vehicle hesitated and then made a right turn and pulled over. She said: "So he gets out of the intersection, makes the right turn, pulls over to the side of the road. Question: "In that 100 metres you didn't see anything unusual about the driving, other than it didn't stop for you, would you agree?" Answer: "Yes." Question: "Does everybody pull over immediately when you put your lights on?" Answer: "Not every single person, no." I note that P.C. Cruden, the other officer in the police vehicle, gave evidence they sounded the horn at Mr. Fleming just after he started to move from a stationary position at the stop sign. Mr. Fleming explained why he did not pull over immediately on seeing the police vehicle. "I was not sure they had targeted me or wanted to get around (my car) so I inched forward." "When I realized they had targeted me I pulled over to a snow bank."

[21] Lack of Reasonable and Probable Grounds

I am not satisfied that the Crown has established on a balance of probabilities that Constable Simpson had (objectively) reasonable and probable grounds to believe that David Fleming was operating his motor vehicle when his ability to do so was impaired by alcohol. The six factors enumerated in paragraph 9 above, when considered collectively, melt away into suspicion and conjecture under any degree of scrutiny.

[22] Officer Simpson's Experience

At the time of the arrest, P.C. Simpson had been a member of Toronto Police services for about a year.

[23] ASD Demand Would Have Been Appropriate

The demand she made to the defendant was the ASD demand, the requirement for which was "reasonable suspicion." While an ASD test is not a required first step, in this case, based on the "indicia" articulated by P.C. Simpson, it would have been the better choice.

[24] Lack of Consultation Between Officers

P.C. Simpson stated she had no discussion with P.C. Cruden, her partner that night, about arresting the defendant or about "what to arrest him for." P.C. Cruden had been a member of Toronto Police Services for twelve years. One might expect that in the natural scheme of police hierarchies, the twelve-year veteran would have been acting in a supervisory capacity and consulting with the rookie officer to determine if there were reasonable grounds or whether there should be a demand for a roadside breath test. That is not what happened. P.C. Simpson was driving the police vehicle, she went to the driver's side of the stopped vehicle to investigate and within a period of 4 minutes, she formed her opinion as to the grounds, made an arrest for 'impaired operation' and made an ASD demand entirely on her own.

[25] Officer Cruden's Lack of Corroboration

Further, when P.C. Simpson asked for Mr. Fleming's license and insurance at the driver's side window. P.C. Cruden was watching from the front passenger window. P.C. Cruden was asked: "did you notice anything unusual about the way he did – provided that to her? Answer: "No, I did not." "And in a drinking and driving case, you would want to make notes of anything you saw, heard or smell, that you perceive to be an indicium of impairment." Answer: "Yes." She was asked: "I take you've had experience where people don't react properly to being pulled – like being pulled over, they don't know if they're being targeted?" Answer: "Some people – sometimes people think we're just trying to go around them or pass them to go to a call, so they are unsure what to do, that does happen."

[26] Officer Cruden's Absence of Observations

Additionally, P.C. Cruden was asked: "Do you have any note of anything unusual about the way he was walking?" Answer: "I do not." She was asked: "I take it you were in a position to hear him speaking?" "Did you make a note of anything unusual about his speech?" Answer: "No." A further question was posed: "Did you make note of – or do you have any recollection about his facial colour?" Answer: "I don't have any note." She was asked if she had any note or recollection of anything unusual about his clothing and she replied that she had no note and no recollection of anything.

[27] Officer Cruden's Observations at the Station

P.C. Cruden was asked about how Mr. Fleming performed in terms of walking into the station at 22 Division and standing before the desk sergeant. She indicated she had no note or memory of anything unusual. To summarize, it was clear from P.C. Cruden's evidence that she never formed grounds to arrest for 'impaired operation' and make an approved instrument demand at the roadside and never made any note or observations that could confirm P.C. Simpson's opinion regarding 'slurred speech', 'sloppy clothing' or 'fumbling with documents.' Both officers agreed that not every driver pulls over when a police vehicle, with emergency equipment activated, pulls up behind them. Both officers were aware the defendant had consumed alcohol. (The fact of drinking says nothing about the effect of the alcohol consumption). And both were aware he was driving a vehicle in which the tail lights were not working.

[28] Totality of Circumstances

As has often been discussed in these cases, it is the totality of the circumstances known to the arresting officer – those which undermine the belief as well as those which support it – which must be assessed to determine if the requirement of reasonable grounds has been met: R. v. Cooper [1993] O.J. No. 501 (S.C.). The only 'indicia' common to the two officers who had an equal opportunity to observe, were (a) the (not uncommon) failure to pull over immediately and (b) faulty tail lights. These facts severely undermine the credibility and reliability of P.C. Simpson's evidence.

[29] Corroboration by Other Officers

What serves to reinforce my view that P.C. Simpson did not, objectively speaking, have reasonable grounds - is that not one officer who had contact with Mr. Fleming at 22 Division, observed slurred speech or anything unusual about his clothing, nor could anything unusual about him be observed on video recordings of his interactions at the police divisions. In fact, the breath technician, P.C. Taylor testified that he could not form an opinion about impairment. He said Mr. Fleming's clothing was neat, there were no issues with communications or fine motor skills and no slurring of speech. I conclude therefore that the only credible and reliable evidence that P.C. Simpson observed was that which was confirmed by P.C. Cruden — the smell of alcohol, the hesitation in pulling over and the faulty tail lights — and considered in its totality, that evidence could not reasonably be said to support more than a suspicion that the defendant's ability to operate a motor vehicle was impaired by alcohol.

[30] Difficulty with Documents Not Reliable

Even though P.C. Cruden did not observe any difficulty in removing the insurance card and ownership from a plastic folder, I accept that that occurred. But in the context of his easy extraction of his license and an expired insurance card from his wallet, and the fact the plastic folder came out of the glove box (at a colder time of the year) in early March, I do not consider this 'difficulty' a reliable indicia of impairment. I have concluded the arresting officer did not have reasonable grounds for the intoxilyzer demand or the seizure of the defendant's breath. Consequently, the s. 8 Charter rights of the defendant to be secure against unreasonable search and seizure have been breached.

[31] Defendant's Response to Police Vehicle

Even the claim that the defendant was slow to respond to the emergency equipment on the police vehicle directing him to pull over, is not persuasive. He was stopped at a stop sign when police pulled up behind him with lights flashing. The only sensible way to pull over in this context is to turn right and stop, which is what he did. If he seemed indecisive and slow, it was likely because he did not know whether the police were interested in him or were just trying to get around him. Further, he would hardly want to drive around the corner quickly and cause the police to think he was going to try to flee. In all the circumstances, as described, and as can be observed on the video recording, I am not satisfied Mr. Fleming made an error in judgment in pulling around the corner slowly when the police arrived.

Impaired Operation

[32] Legal Standard for Impairment

According to R. v. Stellato, if the Crown proves beyond a reasonable doubt that the accused's ability to operate a motor vehicle is impaired by alcohol, even slightly impaired, he will be found guilty. As noted in R. v. Doyon (2015) O.J. No. 1100 (OCJ), "Slight evidence of impairment… is different from… evidence of slight impairment." In the case at bar, the evidence to be considered on this issue extends beyond the enumerated grounds for a breath sample demand and includes the following: (1) Mr. Fleming was said to have stumbled on exiting his vehicle; (2) The slurring of speech was said to have been continuous throughout P.C. Simpson's dealings with him; (3) Mr. Fleming was said to have raised his voice and was discourteous while in the back of the police vehicle; (4) Mr. Fleming did not turn his mind to the number of drinks he had at the restaurant; (5) The breath technician observed he had bloodshot eyes.

[33] Credibility of Impairment Evidence

First, as noted above, I find the observation about continuous slurred speech incredible and a figment of P.C. Fleming's imagination since no other officer including her partner noted any such indicia and here was no slurred speech evident on any video recordings. This finding impacts P.C. Simpson's reliability as an investigating officer. Second, the senior investigating officer, P.C. Cruden could only confirm two of P.C. Simpson's 'indicia' - the failure to pull over immediately and the faulty tail lights, two very weak indicators of impaired ability to drive. Third, any casual review of the video of Mr. Fleming's trip to the Division in the back of the police car makes it abundantly clear why he raised his voice at times and was 'discourteous' on one occasion. The officers would not respond to his complaints about the wrist pain he was experiencing (P.C. Cruden did loosen the cuffs one notch at the Division).

[34] Analysis of Remaining Evidence

Fourth, P.C. Cruden was positioned right in front of Mr. Fleming as he exited his car and noted nothing unusual about that movement. In other words, she saw no stumbling. Fifth, the fact Mr. Fleming did not know the number of drinks he had at the restaurant, seems to me to be more a mark of honesty rather than an issue of poor judgment. He did testify he thought his balance and ability to walk to his car was "normal." Sixth, P.C. Taylor, the breath technician may have observed bloodshot eyes, but it was 1:10 am when he started his investigation (which could explain the condition of his eyes) and it is more telling that he could not form an opinion about impairment. He stated that Mr. Fleming's clothing was neat, there were no issues with communications or fine motor skills and no slurring of speech. As well, I found no observable indicia of impairment on the video recordings, no unsteadiness, on his feet, no slurring of speech, no confusion, no coordination issues and no failure to recognize where he was and what was taking place. Indeed, in reference to comments about his style of speaking – the manner in which he spoke in court could be said to be both resonant and ponderous, exactly what the officers described.

[35] Conclusion on Impairment

I have concluded that considered cumulatively, the evidence of impairment is weak and slight at best and the reported indicia that were not confirmed by the more senior officer on scene, unreliable. I am not satisfied beyond a reasonable doubt that the Crown has adduced evidence of even 'impairment to a slight degree' and Mr. Fleming will be found not guilty on that charge.

Arbitrary Detention (Post-Test Detention)

[36] Post-Test Detention Period

The expression "post-test detention" is preferable to "over-holding", the latter expression importing unhelpful connotations from landlord and tenant law. In the instant case, Mr. Fleming was taken for the Intoxilyzer test and provided with the usual paperwork issuing from that process. By 2:09 am on March 11, 2015 he was in a position to be released but that did not happen. He was transferred to a different police division and detained in custody until 9:30 am. This represents a post-test detention of 6 hours 21 minutes.

[37] Officer in Charge's Vague Recollection

By all accounts, Sgt. Stephen Woodhouse was the officer-in-charge of 22 Division where Mr. Fleming was taken for breath tests. His only contact with Mr. Fleming was when the defendant was 'booked' into the station and that event was unremarkable. Mr. Fleming stood before him and there were no indications of impairment in the notes taken by Sgt. Woodhouse. This officer had no notes of what happened after the booking process and only a vague recollection of telling the officers to take Mr. Fleming to 11 Division rather than releasing him. He vaguely recalled speaking to the 11 Division officers, (P.C. Simpson and P.C. Cruden) and asking about breath readings and saying, "Take him back to 11 Division so his body could get rid of some of the alcohol."

[38] Sole Basis for Detention

Since Sgt. Woodhouse did not have any contact with Mr. Fleming after the booking process and only recalled asking the arresting officers about breath readings, I can only conclude that the decision to detain Mr. Fleming after the breath tests was based solely on Mr. Fleming's breath readings of 187 and 182 mgs. per cent. It is evident there was no assessment made by him of the defendant's condition after the breath tests and no attempt to comply with section 498 of the Code. Section 498 provides that:

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

[39] Failure to Apply Statutory Test

In other words, there was no effort made to determine whether, on reasonable grounds in the public interest, it was necessary to detain Mr. Fleming overnight to (a) prevent the continuation of the offence or the commission of another offence, or (b) ensure that he would attend court if released. It is noteworthy that the sole reason offered for the overnight detention was the accused's safety.

[40] Responsible Person Available for Release

First, the safety of the accused is not a factor for consideration in deciding whether to detain under section 498. Secondly, Sgt. Woodhouse testified that if he was told there was a "responsible person who could take him home", and he was "satisfied they are safe", "there was "a strong possibility I would release on that basis." In fact, Lisa Fleming, the defendant's wife, was, by all accounts, that responsible person. She testified she had been called by the arresting officer and told her husband would be released and she indicated she was ready to drive to the station to pick him up. (She stated she called the station five times only to be told he had been taken to 11 Division for the night and would be released in the morning). The fact is Sgt. Woodhouse never asked about whether he could be released to a responsible person. It was apparent he did not understand his statutory obligations under section 498 of the Code or recognize that Mr. Fleming's constitutional rights under s. 9 of the Charter were engaged in respect to any decision to detain him overnight.

[41] Justice Durno's Approach to Post-Test Detention

I find Justice Durno's approach to post-test detention persuasive. In R. v. Price 2010 ONSC 1898, he found that there had to be an actual assessment of the detained person's circumstances in order to comply with the constitutional obligations under section 9 of the Charter. He held that "permitting the blood alcohol level to be the sole determinant results in too narrow a focus." A list of the appropriate considerations would include: "the accused's blood alcohol level", "the accused's level of comprehension", "whether there was a responsible person available to pick him up", etc.

[42] Ontario Court of Appeal Authority on Post-Test Detention

However after careful consideration, I have concluded that R. v. Price is not the law in Ontario. In R. v. Sapusak [1998] O.J. No. 4148 (C.A.) the Ontario Court of Appeal held (in the context of a 7 hour post-test detention):

We are not persuaded that the police, in light of the 130 mg reading, were not justified in detaining the appellant for his own protection.

[43] Iseler Decision

And in R. v. Iseler, the Court of Appeal referred to Sapusak with approval implying that a decision to detain for 7 hours to lower the blood alcohol levels was least an assessment and therefore not arbitrary and that detention was distinguishable from Iseler where no assessment was made of that accused for 11 hours, resulting in a s. 9 Charter violation.

[44] Post-Test Detention Not Arbitrary

It seems the law is now abundantly clear that when there is no assessment of the detainee, and no reason given for the detention (such as a decision to reduce an accused's blood alcohol levels), that detention is arbitrary. However a decision to hold a person in custody for seven hours while their blood alcohol level falls below 50 mgs. was held not to be arbitrary (Sapusak). That is precisely what occurred in the instant case and on the basis of these binding appellate authorities there can be no finding of a section 9 Charter breach.

[45] Section 24(2) Analysis and Pino

Further if I'm incorrect about this determination, what still remains in terms of an application under s. 24(2) is an insurmountable obstacle in the form of R. v. Pino 2016 ONCA 389. The evidence sought to be excluded must have been "obtained in a manner that infringed or denied any rights or freedoms." Pino holds that "the evidence and the Charter breach must be part of the same transaction or course of conduct." I agree with Heeney J. in R. v. Kavenaugh [2017] O.J. No. 430 (SCJ) that the taking of the breath sample is one transaction. The decision to hold a person in custody until they are sober is a separate transaction. He concluded: (at para. 47) "there is simply no connection – causal, temporal or contextual – between obtaining the Intoxilizer results and the decision, made subsequently, to keep the appellant in custody for his own protection." In other words where the detention has nothing to do with the gathering of evidence there can be no exclusion of evidence under section 24(2). As well this could hardly be said to be the clearest of cases for a judicial stay under section 24(1): R. v. O'connor (1995).

[46] Observations on Post-Test Detention

While I have concluded that there was no section 9 breach or section 24 remedy available for the post-test detention in the case at bar, I am mindful of the fact that the highest-ranking officer at 22 Division on the night in question did not turn his mind to the test for release under section 498 of the Code or make any inquiries about the detainee's condition or whether he could safely be released to a responsible person. By all accounts, after the tests were complete, Mr. Fleming was cooperative, there were no signs of impairment, and his wife was diligently attempting to find a way to bring her husband home. I find as a fact that both P.C. Simpson and P.C. Taylor gave Mr. Fleming the impression that he would be released after meeting with the sergeant in charge of the Division and that this meeting was just a formality. It is clear they expected he would be released. While Sgt. Woodhouse may have been minimally compliant with constitutional values in this case, I find that he acted in a manner that was remarkably cavalier towards Mr. Fleming's freedom and welfare once the tests were completed. That is a theme to which I will return.

Arbitrary Detention (Pre-Test Detention)

[47] Unlawful Arrest

There is no doubt the defendant in the instant case was unlawfully arrested, there being noncompliance with the statutory requirement in s. 254(3) of the Code that the arresting officer have reasonable grounds. According to R. v. Grant 2009 SCC 32:

[54] The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person's liberty is not to be curtailed except in accordance with the principles of fundamental justice. As this Court has stated: "This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law" ( Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, at para. 88 ). Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 ( Mann , at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9 .

[48] Section 9 Breach

It follows that since the detention in the instant case was not authorized by law, the detention was arbitrary and a breach of section 9 of the Charter. If s. 9 of the Charter serves to protect individual liberty against unlawful state interference, the question arises as to the nature of that interference in the course of being detained in advance of a search and seizure of breath sample evidence. In other words, in advance of a section 24(2) determination, it is important to set out the evidence in detail that would permit a meaningful determination of the seriousness and impact of the s. 9 Charter breach on the defendant's Charter-protected interests.

[49] Video Recording of Handcuff Complaints

Accordingly, I have reviewed the video recording of Mr. Fleming's complaint about the handcuffs as he is transported from the scene to 22 Division. The following is a generally accurate but not verbatim rendition of that ordeal:

[50] Initial Complaint

(Following his arrest at 23:37)

Fleming: My wrists hurt. They hurt. I can barely…Ow. This is very painful Sir…Ma'am. I can't… Hurting me…My whole….

[51] Officer's Response to Pain

(After 23:42)

Officer: Would you like me to help you sit up?

Fleming: Yes.

Officer: I'll help you sit up.

Fleming: (Wrists are cuffed behind him) Ah,..Ah,..Hurts my wrists. This is very painful.

Officer: They're (the cuffs are) not built for comfort, Sir.

[52] Continued Complaints

(After 23:44)

Fleming: Is there anywhere I can get these cuffs off? They're very… Hurting me…

Officer: They're not for comfort, okay?

[53] Escalating Pain and Numbness

(After 23:47)

Fleming: You know I am compliant. Why do you guys need me in these? (The handcuffs).

Officer: This is just (police) procedure for your safety and our safety.

Fleming: I'm compliant. I'm not trying to hurt you in any way. This is hurting. My left wrist is… I've got tingling. I can't feel my arm. Can you please hurry?

Officer: It won't be long….

Fleming: I've got tingling. I can't feel my arm. Can you please hurry?

Officer: Sir. Being anxious is not going to help it, so just relax.

Fleming: It really hurts. My left wrist is hurting very badly. I don't understand why the handcuffs. I'm very compliant.

[54] Officer's Dismissive Response

Officer: I don't understand why you're yelling. Everybody who gets arrested has handcuffs put on, okay?

Fleming: But I'm very compliant. My arm is hurting.

[55] Continued Pleas for Help

(After 23:51)

Fleming: Is there any way you guys can help me with..? My wrists are really sore. It's very tight. Where's the police station?

Officers: (No response).

[56] Arrival at 22 Division and Cuff Adjustment

(After 23:59) (On arrival at 22 Division)

Fleming: I can't feel my hands.

Officer: They'll be coming off any minute as soon as we are inside.

Fleming: My hand's asleep. I can't feel it. Can you take the cuffs off or no?

Officer: We've already been over this…I have told you. We do not take the cuffs off as per our procedure. We keep them on for everyone we arrest.

Fleming: I can't feel my fingers. I can't feel them.

Officer: Sir. Those handcuffs are not built for comfort.

Fleming: It's just that I have had surgery on my right wrist. My right hand is injured. And my left hand is the one - which is bothering me. My right hand not so much.

Officer: All right I'm going to check your circulation.

Fleming: My left hand please. My left hand is bad. I can't feel my left hand.

Officer: Looks okay to me.

Fleming: My right hand's fine. My left hand's terrible.

Officer: All right. I'm going to loosen it by one click.

Fleming: Thank you. I can barely feel my left hand.

[57] Continued Numbness and Circulation Issues

(After 12:05 am)

Fleming: I'm just moving my hand so that I can feel it. It's very numb. I can barely feel it. Especially my index finger and my… What do you call that finger…? My fuck off finger.

Officer: That's not very respectful sir.

Fleming: I'm sorry. But I can barely feel my left hand. My index finger is gone. I can't feel it at all. The blood flow to my hands is constricted and so… my left hand, I can barely feel anything. My right hand is fine. My right hand is fine but my left hand is completely gone and I can't feel it. The cuffs are too tight.

[58] Booking Sergeant Notification

During the parade before the Booking Sergeant, P.C. Cruden tells the officer in charge that Mr. Fleming is cooperative but he's complaining about his hands.

[59] Section 24(2) Analysis Required

I must therefore determine whether the breath sample evidence should be excluded pursuant to section 24(2) of the Charter.

Section 24(2) Analysis

[60] Grant Framework

In regard to the above-noted section 8 and 9 Charter breaches, R. v. Grant mandates an assessment and balancing of the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors:

(1) the seriousness of the Charter-infringing state conduct,

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

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

[61] Balancing Exercise

In this analysis, I am required to balance the assessments under each of the above lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

First Inquiry: Seriousness of Charter Infringing Conduct

[62] Good Faith and Negligence

The Grant decision sets the parameters for this analysis. There are several considerations to be applied. Here there is no basis for concluding that the police deliberately set out to violate Mr. Fleming's section 8 and 9 rights under the Charter. What occurred here is more in the nature of a cascading series of errors in judgment that resulted in a breach of his rights. While good faith will reduce the need for the Court to disassociate itself from the police conduct, ignorance of Charter standards must not be rewarded and negligence, (here, a lack of careful consideration) or willful blindness cannot be equated with good faith. I find that all of the police officers in this case were dedicated, hard-working members of the force. However I cannot equate the level of Charter deficiency in this case − in the arrest and detention of the defendant − with good faith.

[63] First Grant Factor Analysis

The first Grant factor, the seriousness of the Charter-infringing state conduct, involves the following assessment:

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.

[64] Public Confidence in Rule of Law

The main concern of this inquiry is to preserve public confidence in the rule of law and its processes.

[65] Wilful or Reckless Disregard

While good faith on the part of the police will reduce the need for the court to disassociate itself from the police conduct, 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.

[66] Seriousness of Breaches

I am satisfied that the Charter breaches here were serious.

[67] Absence of Reasonable Grounds

The absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could have genuinely believed that such grounds existed. The breach of section 8 flows into the breach of section 9 of the Charter. Where the statutory requirements of reasonable grounds were not met, the ensuing search is unlawful and according to R. v. Grant, a person held in custody for an unlawful search is arbitrarily detained. In my view, in this case there was a significant departure from the standard of reasonable and probable grounds, which raises serious concerns as to the honesty of the belief in the existence of reasonable grounds on the part of the arresting officer. The fact there were two officers in a position to make observations and engaged in doing so, as P.C. Simpson and P.C. Cruden were, tends to cast doubt on the reliability of the evidence that is unfavourable to the defendant on account of the evidentiary inconsistencies between them.

[68] Credibility Concerns

I have concluded in the instant case that no reasonable person could have genuinely believed that reasonable grounds existed, particularly with reference to slurred speech. Indeed the partner of the arresting officer observed no such indicia while dealing with the defendant over the course of more than 3 hours. It cannot be considered to be an honest and good faith exercise of an officer's powers of observation when the arresting officer maintains in spite of overwhelming evidence to the contrary, that Mr. Fleming's speech remained slurred continuously throughout her contact with him. That position is patently at odds with the evidence of every other officer with whom Mr. Fleming came in contact, as well as the video evidence.

[69] Nature of the Breach

In my view this was not so much a deliberate falsification of evidence, but more the product of an initial mistake on the part of an inexperienced officer. P.C. Simpson made an arrest rather than an ASD demand and follow-up roadside test. Having stumbled into an arrest for impaired operation, some indicia were cobbled together in haste such as "where he was and what he was doing" before the vehicle stop, resulting in grounds that were compiled without adequate care, and exaggerated in the pressure of the moment. The rush to judgment in the form of a premature arrest and detention, amounted to a serious state interference with an individual's freedom of movement and right to privacy in relation to the search. P.C. Cruden took the unusual position – that she was really just on scene for officer safety. Since there were no safety issues from the outset, her position seemed designed to avoid any acknowledgement of inconsistencies between herself and P.C. Simpson. The assessment of the 'seriousness of the breach' factor favours exclusion with a view to the Court's need to disassociate itself from this conduct.

Second Inquiry: Impact of Charter Protected Interests of the Accused

[70] Extent of Breach Impact

This inquiry focuses on the extent to which the breach actually undermined the interests protected by the right infringed. According to R. v. Grant, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights "are of little avail to the citizen breeding public cynicism and bringing the administration of justice into disrepute."

[71] Protected Interests

In terms of the breach's impact on protected interests – it must be said that the protected interests under section 8 and 9 are privacy, bodily integrity, security of the person and human dignity.

[72] Breath Sample as Minimally Intrusive

In terms of the s. 8 protected interests of the defendant, it is noteworthy that Charron J. in Grant, in a wide-ranging discussion, referred to breathalyzer tests as being relatively non-intrusive. More recently in R. v. Jennings, 2018 ONCA 260, the Ontario Court of Appeal put an end to the debate as to whether the comment in Grant about the breath test being 'relatively non-intrusive' was obiter. At para. 29 the Court explained:

29 Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, 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.

[73] Minimally Intrusive Search Favours Inclusion

Clearly then, the law is now settled that section 8 breaches in breath sample cases involve a minimally intrusive search that generally favours the inclusion of evidence under the second Grant factor. In other words, the impact of the minimally intrusive search favours the admission of the breath sample evidence.

[74] Non-Routine Detention

However, this is one of the rare cases in which the arrest and transport of the detainee to the station was anything but routine or uneventful. This detention did not fall within the parameters of a minimally intrusive process. By all accounts, the defendant was made to sit on his hands that were handcuffed too tightly at the rear, in the cramped back seat of a police cruiser. For a part of the trip to the Division, the only way he could relieve the pressure on his hands was to lie on his side. He complained continually and loudly about the pain he was experiencing. The officer's response is: "They're (the cuffs are) not built for comfort, Sir." Mr. Fleming asks: Is there anywhere I can get these cuffs off? They're very… Hurting me…The Officer replies: They're not for comfort, okay? Mr. Fleming asks: You know I am compliant. Why do you guys need me in these? (The handcuffs). The officer replies: This is just (police) procedure for your safety and our safety. Mr. Fleming then says: "I'm compliant. I'm not trying to hurt you in any way. This is hurting. My left wrist is… I've got tingling. I can't feel my arm. Can you please hurry? … It really hurts. My left wrist is hurting very badly. I don't understand why the handcuffs. I'm very compliant."

[75] Continued Suffering and Dismissal

Later the officer comments: "I don't understand why you're yelling. Everybody who gets arrested has handcuffs put on, okay?" Mr. Fleming explains: "But I'm very compliant. My arm is hurting." At 22 Division Mr. Fleming says: "I can't feel my hands." Officer: "They'll be coming off any minute as soon as we are inside." Mr. Fleming continues: "My hand's asleep. I can't feel it. Can you take the cuffs off or no?" The Officer replies: "We've already been over this…I have told you. We do not take the cuffs off as per our procedure. We keep them on for everyone we arrest." Then Mr. Fleming points out: "I can't feel my fingers. I can't feel them." The Officer says: "Sir. Those handcuffs are not built for comfort." After waiting in the police vehicle at the Division, for some time, Mr. Fleming complains: "I can barely feel my left hand. My index finger is gone. I can't feel it at all. The blood flow to my hands is constricted and so… my left hand, I can barely feel anything. My right hand is fine. My right hand is fine but my left hand is completely gone and I can't feel it. The cuffs are too tight."

[76] Booking Sergeant's Dismissal of Complaint

After all the discussion in the car about the pain he was experiencing, P.C. Cruden advised the booking sergeant (Sgt. Woodhouse) that the defendant was cooperative but was complaining about his hands. No questions were asked about that complaint by the booking sergeant as if it were a regular occurrence of no real consequence.

[77] Impact on Dignity and Bodily Integrity

Essentially, Mr. Fleming had undergone wrist surgery and was made to endure extreme pain from 11:37, the time of the arrest and the placing of him in handcuffs and about 12:10 am when he was taken before the booking sergeant. The back seat of a cruiser is a sealed compartment and there was no (security) reason to insist on handcuffing a 'compliant' prisoner' other than police policy: "Everybody who gets arrested has handcuffs put on, okay?" That treatment impacted his dignity. When his complaint about his treatment in the cruiser was presented to the Booking Sergeant at the Division, that complaint was all but ignored.

[78] Multiple Breaches in This Case

First, I note that in R. v. Jennings, supra, there were only 2 issues on appeal, a section 8 breach in respect to the taking of a breath sample at the police station and the question of whether that evidence should be excluded under s. 24(2). In the instant case, there is a s. 9 breach of the Charter as well. Still, an arrest and routine trip to the nearest police division involving a brief detention until the breath sample can be taken, would in most cases fall within the concept of a minimally intrusive search.

[79] Contextual Analysis Required

In my view, the finding in Jennings, supra, did not create a categorical rule that breath sample cases automatically favoured the inclusion of the evidence under the second Grant factor. What I must do, to give effect to the considerations mandated in Grant, is to carry out a second factor analysis on the s. 9 breach and consider the combined impact of both the s. 8 and s. 9 breaches on Mr. Fleming's rights as accorded to him under those two sections of the Charter. To apply a categorical rule approach, "would not only be inconsistent with the "in all the circumstances" requirement of section 24(2) but it would also impede a material "inquiry [that] focuses on the seriousness of the impact of the Charter breach on the protected interests of the accused": R. v. Grant, supra at para. 76. That impact varies with different kinds of breaches and from case to case," according to Paciocco J. (as he then was) in R. v. Steele 2014 ONCJ 583.

[80] Combined Impact of Multiple Breaches

As the Court explained in R. v. Mann (2018) ONSC 1703, it is necessary to consider both the section 8 and 9 breaches where they appear in a drinking and driving case:

I now consider the impact of the s. 9 breach on Mr. Mann's Charter rights. Unlike the facts found in the R. v. Jennings, supra case, this is a case of multiple breaches. As was directed by the Supreme Court of Canada in the Grant case, the trial court is directed to consider in its second line of inquiry the interests engaged by the infringed rights and the impact of the breach on those engaged rights. Mr. Mann's stop, detention and arrest were illegal from the very beginning due to the officer's mistake. The interests engaged and deprivation caused by this illegal stop was the deprivation of liberty, privacy, dignity and mobility interests. It can be considered significant and highly intrusive (see R. v. Grant, 2009 SCC 32; R. v. Brown, [2002] O.J. 1569; R. v. Harrison, 2009 SCC 34).

[81] Significant Impact Favouring Exclusion

Similarly, in the case at bar, Mr. Fleming's stop, detention and arrest were not lawful from the very beginning due to the arresting officer's mistake. The interests engaged and deprivations caused by this event were the deprivations of liberty, privacy, dignity and mobility interests. Most importantly, the hardship inflicted on him unnecessarily, in the form of handcuffs tightened to the point of causing pain for close to 33 minutes, shifts the impact of the combined s. 8 and s. 9 Charter breaches out of the range of 'fleeting and technical' to profoundly intrusive. For these reasons, when considered as a whole, I conclude that the combined impact of both the s. 8 and 9 breaches on Mr. Fleming's Charter rights are significant and favour exclusion.

Third Inquiry: Society's Interest in an Adjudication on the Merits

[82] Truth-Seeking Function

The Court in Grant emphasizes that the public generally expects that a criminal allegation will be adjudicated on the merits. Consequently, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. The exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair. In this case the exclusion of evidence of Mr. Fleming's breath sample will prove fatal to the Crown's case on the 'over 80' charge. This favours inclusion.

Balancing

[83] Balancing the Three Factors

This is not an easy case to decide. However, this serious breach of sections 8 and 9 of the Charter that occurred in this case — in which an impulsive decision to arrest was made in 4 minutes (between 23:33 and 23:37 while the defendant was seated in his car) by an inexperienced officer, without consultation, and without reasonable and probable grounds — favours exclusion. The second factor weighs moderately strongly in favour of exclusion as noted above. It seemed as though police handcuffing policy trumped all other human considerations. When these two conclusions are balanced with the third factor, which strongly favours inclusion, I am of the view that it results in the exclusion of the evidence of the breath samples. Case authorities suggest that where the first and second Grant criteria favour exclusion, the third factor, "will seldom, if ever, tip the balance in favour of admissibility": R. v. Davidson, 2017 ONCA 257 (at para. 63). (See also R. v. Patterson, 2017 SCC 15, at paras. 55-56).

[84] Post-Test Detention Observations

In this decision I have not taken into account the rather neglectful approach taken by the sergeant in charge of 22 Division towards the freedom and welfare of the defendant in detaining him for a further 6+ hours notwithstanding the fact a responsible person was available to take him home after the tests were completed. As noted, this did not constitute a Charter breach but is nonetheless a style of prisoner management that could benefit from some improvement.

[85] Long-Term Integrity of Justice System

Finally, I have concluded that the failure to adhere to constitutional standards of conduct in this case may have the effect of undermining the long-term integrity of the administration of justice. This points in the direction of exclusion of the evidence. I am mindful that "negligence in meeting Charter standards cannot be equated with good faith." Further, "Charter-infringing conduct …need not be deliberate, nor result from systemic or institutional abuse to result in exclusion of evidence.": R. v. Szilagyi, 2018 ONCA 695; R. v. Patterson, supra.

[86] Balancing Truth-Seeking with Justice System Integrity

According to Grant, the Court must balance the interests of truth seeking with the integrity of the justice system (see R. v. Mann 2004 SCC 52, per Iacobucci J). The Court must ask whether the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial particularly having regard to the carnage on Canadian highways caused by the drinking driver. As had been said so often, the public expects the justice system to reliably deal harshly with conduct that is perennially so dangerous to life and limb.

[87] Final Balancing and Conclusion

Balancing the interests of truth seeking with the need to maintain the long-term integrity of the justice system and having considered the three lines of inquiry contemplated by R. v. Grant, I have concluded that the exclusion of the evidence would better serve the long-term repute of the administration of justice. The need for this court to disassociate itself from such a fundamentally deficient exercise in arrest and detention (suggesting a major gap in police training) considerably outweighs the important societal values in admitting the evidence, particularly where the deficient s. 8 practice was compounded by the failure to protect the health and welfare of a person detained in police custody.

Conclusion

[88] Final Judgment

Having made the above three inquiries, and after engaging in a balancing process, and having regard for s. 24(2)'s focus on the long term interests of society, I have concluded that the admission of the evidence obtained by these Charter breaches would bring the administration of justice into disrepute in the long term. Accordingly, the breath sample evidence will be excluded pursuant to section 24(2) of the Charter. Having found Mr. Fleming not guilty on the charge of 'impaired operation,' and there being no admissible evidence on the 'over 80' charge, I have entered an acquittal on both counts before the Court.

Harris, J.