Court File and Parties
Ontario Court of Justice
Date: 2019-04-23
Court File No.: 17-15002720
Toronto Region – Old City Hall
Between:
Her Majesty the Queen
— AND —
Kristen Vandermeer
Before: Justice H. Pringle
Heard on: February 7, September 6, September 13, October 3, 2018 and March 26, 2019
Reasons for Judgment released on: April 23, 2019
Counsel
Rachel Verboom and Benjamin Janzen — counsel for the Crown
Jonathan Lapid — counsel for the defendant
Judgment
PRINGLE J.:
Facts Underlying the Charge
[1] Ms. Vandermeer was arrested on April 7, 2017, following an encounter with two police officers. Shortly before 2 a.m., these two officers, Constables Hwang and Zver, were driving southbound on Keele Street. At the same time, Ms. Vandermeer pulled her car out of a fire hall and turned right on northbound Keele. Her turn was so wide that her car almost hit the police car in the northbound lane.
[2] This naturally attracted the officers' attention. They turned on their emergency lights and made a U-turn to follow her northbound. Ms. Vandermeer was driving fast. Her car had crossed the dividing lane and was now driving northbound while in the southbound lane. The officers pulled her over at 1:49 a.m.
[3] Cst. Hwang made the usual demand for driver's licence, insurance, and ownership. Ms. Vandermeer pulled out between six to eight cards before finding her licence. He asked, again, for insurance and ownership documents. The defendant produced her car ownership manual to him before locating the correct items. She denied having had anything to drink. Meanwhile, Cst. Zver noticed a wooden pylon stuck in between the passenger side front tire and the wheel well, and a small damaged yellow light hanging outside of the car.[1]
[4] Knowing that many bars close around 2 a.m., and given the aberrant driving, Cst. Hwang asked the defendant to step out of her car. Upon his request, she breathed into his face. Detecting a slight odour of alcohol on her breath, Cst. Hwang told Ms. Vandermeer she was under detention for impaired driving. In his evidence, Cst. Hwang explained that he wanted to know if she was over "the limit", which he particularized as over 80 mgs of alcohol in 1 ml of blood. This chemically impossible aspect of his testimony evolved into the defendant's first Charter application.
[5] It was 1:54 a.m. and the defendant was told she was detained. Cst. Hwang immediately demanded she provide a breath sample into an approved screening device. Because he knew he would have to await the arrival of such a device, he immediately informed the defendant about her rights to retain and instruct counsel.
[6] Cst. Hwang noticed Ms. Vandermeer's face and neck were flushed. She was, however, steady on her feet. But when she failed the approved screening device test, Cst. Hwang's reasonable grounds crystallized and he arrested her at 2:02 a.m. In his evidence, Cst. Hwang again explained that this 'fail' result meant the defendant's blood alcohol content exceeded 80 mg of alcohol in 1 ml of her blood.
[7] At 2:04 a.m., Cst. Hwang made a breathalyzer demand and the defendant understood. He brought her to the closest station with a breath technician available, arriving at 2:22 a.m. At the station, before being taken into the breath room, she declined the opportunity to speak with a lawyer.
[8] Cst. Hwang briefly spoke with the breath technician Cst. Poytner, telling him that she was under arrest for "over 80" and was there to provide breath samples. He did not spell out, for Cst. Poynter, what grounds led to the defendant's arrest. This conversation forms the basis of a second Charter application before the court.
[9] Despite the earlier waiver of counsel, Cst. Poynter, before beginning the breath test process, confirmed Ms. Vandermeer's understanding of her right to counsel. When he did, the defendant changed her mind and invoked her s. 10(b) rights. The resulting conversation, about accessing counsel of choice, underlies the defendant's third Charter application. The relevant exchange between the two follows:
POYNTER: …whenever anyone is detained or arrested, they have a right to talk to any lawyer that they choose to talk with …… or they don't have to, it's up to that person to make that decision. I've been informed that you don't want to speak with a lawyer, is that correct?
DEFENDANT: Yes.
POYNTER: It is? I'm just going to say this, if you change your mind at any time, or if you do want to talk to one, let me know. Or you can let this officer know, or anybody else you come into contact with. And we can get you in contact with a free lawyer, if that's your choosing.
DEFENDANT: Actually, yeah, yeah, I'd like that. Yeah.
POYNTER: You'd like that?
DEFENDANT: Yeah.
POYNTER: So I guess what we'll do is we'll take her back to the interview room so……do you have a lawyer that you deal with?
DEFENDANT: Not off hand. But in Newmarket.
POYNTER: Who's that?
DEFENDANT: Umm, I don't remember his name at this time but…
POYNTER: Do you have the first name or a last name? A law firm?
DEFENDANT: Not off hand.
POYNTER: Do you know anyone who would have that information?
DEFENDANT: Nope.
POYTNER: There's nobody that you know that would have that lawyer's information?
DEFENDANT: (gestures no)
POYTNER: And you don't have that info?
DEFENDANT: Not at the moment, no.
POYNTER: That makes it difficult for me to get into contact with anyone.
DEFENDANT: Yeah it sure does, but, but yeah I'd like to speak to a lawyer.
POYNTER: Okay, so you have the option of a free lawyer seeing as we don't have any information for your lawyer of choice. Is that agreeable?
DEFENDANT: (nods yes)
[10] Accordingly, the testing process was halted. Ms. Vandermeer was taken out of the breath room and spoke with duty counsel between 3:18 and 3:22 a.m. When she returned, Cst. Poynter spoke with her again:
POYNTER: So the last time that we were in here, we had a discussion about the reason why you are here. So it's a drinking and driving offence. As well as this officer's demand of you to provide suitable samples of your breath in an approved instrument. Do you remember talking about that?
DEFENDANT: Yes.
POYNTER: You also stated at that point, when we talked about lawyers, you were wanting to speak with one. And that you did have one, however there was no way of getting into contact with him, because you didn't remember the name. There was no one that we could really contact to get that information. So you elected duty counsel, which is the free lawyer. And ( inaudible )
DEFENDANT: Jean-Paul Rodrigues.
POYNTER: Sorry, what's the name?
DEFENDANT: Jean-Paul Rodrigues.
POYNTER: Rodrigues?
DEFENDANT: Rodrigues.
POYNTER: You were in there for a little bit I take it. You had a conversation, and I don't want to know the contents of that conversation were, but you were able to understand what that person was saying?
DEFENDANT: Yes.
[11] Ms. Vandermeer then provided two breath samples to PC Poynter. Her readings were 190 and 180, respectively.
[12] Cross-examination of Cst. Poytner did not attack his version of events. Rather, it focused on what efforts he made, or did not make, to facilitate Ms. Vandermeer's right to counsel of her choice.[2] He believed, reasonably given comments like, "I don't remember his name", that the defendant wanted to speak to a specific lawyer from Newmarket.
[13] With just a city name, he testified, it was difficult to locate her counsel of choice. He fruitlessly asked questions designed to find out who that lawyer was, or whether someone else would know who that lawyer was. He considered other options, such as a lawyer's directory, a phone book, or an internet search. Ultimately, he concluded these options would be useless without a name or phone number to start from.
[14] Cst. Poytner never offered Ms. Vandermeer the option of using the internet to search for a lawyer. He never offered her use of her cell phone to use the internet. He added that the defendant asked for neither an internet search nor her cell phone. Instead, she elected to speak with duty counsel. When she returned to the breath room, Cst. Poynter confirmed she was able to speak with duty counsel. He did this, he testified, because people dissatisfied with duty counsel advice typically say so at this point.
[15] Ms. Vandermeer's testimony gave her perspective on Charter-related events only. After some memory difficulty, she recalled that at the roadside, Cst. Hwang told her she could call any lawyer that she wanted to. She clearly understood that she could call any lawyer she wanted to. Being unsophisticated in matters of criminal law, she did not have a specific lawyer's name or number handy. So before going into the breath room, Ms. Vandermeer said, she had declined to call a lawyer.
[16] This changed in the breath room, after PC Poynter told her she could change her mind. She did, but had no lawyer of choice at all. Despite using some language that made it seem as though she had a specific Newmarket lawyer in mind, she was just communicating her situation poorly. She lived in Newmarket and mentioned it because she preferred a lawyer close to home. Ideally, she testified, she would have liked to have selected an experienced impaired driving lawyer in Newmarket, using google to search for names.
[17] Despite communicating her own wishes poorly, Ms. Vandermeer understood what PC Poynter was telling her and understood she could call any lawyer she wanted to. She presumed police would not let her have her phone back, so she never asked for her phone to access the internet. She never asked for internet access at all, because she presumed she was not allowed it. She had no lawyer's name to give police, so she agreed to speak to duty counsel because this was the only option offered.
[18] Ms. Vandermeer testified on the voir dire only, while the Crown's witness testimony applied across voir dire and trial. The credibility and reliability of each witness was not actively challenged. This mirrors my own assessment of credibility and reliability, and thus I will address these issues but briefly. The cross-examination of Cst. Poytner, as stated earlier, did not challenge his version of events but rather focused on what steps he did not take in implementing Ms. Vandermeer's s. 10(b) rights.
[19] Similarly, the cross-examination of Ms. Vandermeer did not challenge her version of events either. Generally, her version tended to agree on all major points with Cst. Poynter. Rather, the cross-examination focused on the issue of reasonable diligence and the fact that Ms. Vandermeer was communicating her specific wishes quite poorly. Csts. Zver and Hwang were not cross-examined at all, leaving their testimony unchallenged.
[20] I will now address the Charter arguments, beginning with section 8.
Arrest for Offence Unknown in Law: Section 8
[21] Defence counsel Mr. Lapid argued that Officer Hwang arrested the defendant for an offence unknown in law, thereby breaching s. 8. This argument rests on Cst. Hwang's characterization of the legal BAC limit as being more than 80 mg of alcohol in 1 ml of blood. Mr. Lapid also submitted this raised questions of evidentiary sufficiency and reasonable doubt. Respectfully, I have rejected both arguments.
[22] As both Crown and defence agree, 80 mg of alcohol in 1 ml of blood is a chemically impossible circumstance to bring about. Yet, Cst. Hwang testified that to him, being "over the limit" meant having over 80 mg of alcohol in 1 ml of blood. Further, when Ms. Vandermeer failed the approved screening device test, Cst. Hwang apparently concluded, in his own mind, that she had more than 80 mg of 1 ml of blood and arrested her. But in explaining the basis for her arrest, he also stated that "I believed she was violating our laws and I arrested her for over 80".
[23] I find no section 8 breach here. No issue was taken with the officer's grounds for detention or arrest. Cst. Hwang incorrectly articulated the chemical formula in describing the offence of Drive Over 80 for the court. But he never said anything to the defendant about having 80 mg of alcohol in 1 ml of blood. He told her the basis for her detention was to investigate "impaired driving". He issued an approved screening device demand. Minutes later, he arrested her for "over 80", and issued a proper breathalyzer demand. No s. 10(a) complaint was made here. It is clear to me, and was made clear to the defendant, that she was arrested because police believed her blood alcohol content exceeded the legal limit.
[24] Secondly, any confusion in Cst. Hwang's own mind cannot possibly impact the validity of the arrest or charge. As Mr. Janzen correctly pointed out, if Cst. Hwang literally believed that Ms. Vandermeer had 80 mg of alcohol in only 1 ml of blood, he would necessarily also believe she had committed the offence of having more than 80 mg of alcohol in 100 ml of blood. In any event, Cst. Hwang knew there was a prohibited limit to the amount of alcohol permitted in a driver's blood. He knew an approved screening device fail gave grounds to believe that legal limit had been exceeded. He saw her fail that approved screening device test and then he properly arrested her, with objectively supportable grounds based on the ASD fail, the smell of alcohol on her breath, and the aberrant driving.
[25] In court, Cst. Hwang articulated his grounds as believing the defendant's blood alcohol concentration exceeded 80 mg in 1 ml of blood. But an officer's testimonial explanation of grounds need not contain specific "magic words" to retain constitutional validity. Courts have shifted away from this notion: see the case summaries at para. 15 of R. v. Shewchuk, [2006] S.J. No. 51 (Q.B.). The salient question is whether, based on all the evidence I accept, this officer had reasonable grounds to believe the defendant's blood alcohol content exceeded the legally permissible limit. Here, he did. No issue was taken with that fact. The defendant's s. 8 rights were not violated, and I do not see how Cst. Hwang's chemical confusion could possibly impact the sufficiency of the case.
The Failure to "Transfer" Grounds: Section 8
[26] The defence also argued a s. 8 breach in Cst. Hwang's failure to "transfer his grounds" to the breath technician, Cst. Poytner. This argument was not raised in the defendant's Charter notice. No cases were provided to support this argument. I found no violation here. Cst. Hwang did not itemize the grounds for arrest for Cst. Poytner. He does not have to. Cst. Hwang was the officer who made the arrest. Cst. Hwang was the officer who made the breathalyzer demand. It was lawful and justified by grounds. There is no requirement that Cst. Poytner must be informed of Cst. Hwang's thought process underlying the arrest, before being permitted to conduct a breathalyzer test based on grounds that Cst. Hwang formulated.
Implementing Access to Counsel of Choice: Section 10(b)
[27] Finally, the defendant argued her s. 10(b) rights were breached, in a manner Mr. Lapid characterized as a "new informational obligation" arising from cases such as R. v. Middleton, 2018 ONCJ 387. He submitted police were required to inform a detainee of search options, such as the internet or directories, from which counsel can be chosen before resorting to duty counsel.
[28] Respectfully, I perceive this argument to be implementational, not informational, in nature. The submission, at its heart, is that police failed to facilitate Ms. Vandermeer's right to counsel. They failed to give her adequate tools to find and choose a lawyer. Instead, Cst. Poynter presented Ms. Vandermeer with the binary choice of either having a specific lawyer's name in her mind or speaking with duty counsel. Either way, the defendant submitted s. 10(b) was breached and the resulting evidence must be excluded.
[29] Mr. Janzen, for the Crown, correctly submitted that police discharged their informational obligations. The implementational duty, he argued, was met by placing the defendant in touch with duty counsel. This was her choice, and if she wished something else, she communicated that poorly and lacked reasonable diligence. In the event of a breach being found, the Crown resisted exclusion of any evidence.
Legal Overview of the Right to Counsel of Choice
[30] A person under arrest is in immediate need of legal advice. Therefore, as described at paragraph 17 of Bartle, police must discharge three duties after arresting or detaining a person:
(1) The informational duty to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) The two-part implementational duty – two parts if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances), and;
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
[31] Providing a reasonable opportunity to exercise the right to counsel means providing a reasonable opportunity to consult counsel of choice: R. v. Ross, (1989), 1 S.C.R. 3. At para. 41 of R. v. Willier, 2010 SCC 37, the Supreme Court affirmed that the concept of "reasonable opportunity" includes facilitating contact with counsel of choice. But the right to consult with counsel of choice is not absolute. There are limits to the implementational duty police bear. For example, a detainee must be reasonably diligent about exercising their right to counsel.
Legal Principles Applied to Facts
[32] The facts pertinent to the application, in summary, are:
The defendant was properly informed about her right to counsel, immediately, upon being detained for the purpose of a roadside approved screening device test;
The defendant expressly said that she did not wish to speak with a lawyer;
Cst. Poynter, before starting the breath testing process, confirmed that the defendant had declined counsel;
Cst. Poynter told the defendant that if she changed her mind about that, at any time, she was to let him or any other police officer know and they would place her in contact with a free lawyer if she liked;
The defendant changed her mind and told Cst. Poynter she wanted to speak to a lawyer;
Cst. Poynter inquired if there was a counsel of Ms. Vandermeer's choosing, and from the answers she gave him, reasonably concluded that she wanted to speak to a specific lawyer;
Cst. Poynter reasonably concluded that Ms. Vandermeer could not recall any identifying features of this lawyer she wished to speak to, besides the city in which he practised law;[3]
Ms. Vandermeer, who had no specific lawyer of choice despite the fact that she was inadvertently communicating this message, wanted to choose a lawyer to speak with and did not know how to do that;
Cst. Poynter unsuccessfully asked some questions designed to uncover the identity of the lawyer of choice that, it appeared to him, Ms. Vandermeer specifically had in mind;
Cst. Poynter unsuccessfully offered the option of third party contact to help Ms. Vandermeer locate counsel of choice, and, finally;
Cst. Poynter offered Ms. Vandermeer the binary choice of either knowing contact information for a lawyer of choice or speaking with duty counsel when he said:
"Okay, so you have the option of a free lawyer seeing as we don't have any information for your lawyer of choice. Is that agreeable?"
[33] On these facts, I find that Ms. Vandermeer's s. 10(b) rights were indeed breached. She testified that she felt her only option, short of giving police specific contact information for a lawyer, was a duty counsel consultation. I accept her evidence as true on this point. Indeed, it is corroborated by the clear 'either/or' option Cst. Poynter ultimately presented her with.
[34] The defendant constitutionally had the right to choose her own lawyer. Police had full control over her ability to exercise that right. She had no justice system experience and was uncertain of her options. The defendant, had she been given internet access, would have chosen a lawyer through that mechanism. Many people would. Her instinct to turn to the internet is a common and sensible way to go about making such choices.
[35] In Ontario, as jurists before me have repeatedly observed, police have chosen to bear responsibility for enabling access to counsel. This is, and should be, a heavy burden. As Stribopoulos J., said at para. 43 of R. v. Maciel, 2016 ONCJ 563:
If the police did not assume this responsibility [of contacting counsel for the accused], those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing.
The specific question of whether a detainee should, constitutionally, be allowed internet access to choose counsel is not squarely before me. I cannot help but observe, however, the tension between police assuming responsibility for facilitating contact with a counsel of choice, and the fact that most people need the Internet to inform and make such choices.
[36] Cst. Poynter candidly admitted he could have done more to try and facilitate contact with counsel of choice. But the question here is not whether he could have done more. Police could conceivably always do more. The question is whether what he did to facilitate contact with counsel of choice was reasonable. I find, in the defendant's case, it was not.
[37] Instead of accessing, or allowing her access, to any source of information such as the Yellow Pages, a Lawyer's Directory, or internet resources, Cst. Poynter decided pursuing those options would be futile. This was a decision he made for Ms. Vandermeer, and without asking for her input on it. The defendant was then specifically, and incorrectly, limited to two options: know how to contact a specific lawyer or talk to duty counsel. She lacked the tools to achieve the first. So Ms. Vandermeer made the only viable choice she was told about. She spoke with duty counsel.
[38] In many ways, the facts of Ms. Vandermeer's case find echo in R. v. Middleton. Like Ms. Vandermeer, Mr. Middleton was unsophisticated in matters of criminal law. He did not have a lawyer conveniently in place prior to his roadside arrest. At para. 64, Parry J. said:
This did not mean, however, that he was required automatically to resort to duty counsel. Mr. Middleton had the right to the opportunity to search for and choose a lawyer….The police in this case controlled completely the means by which Mr. Middleton exercised his right to counsel. They separated the accused from his phone. They did not present him with a lawyers list, a phone book, access to the internet, or any means by which to search for and find a lawyer of his choosing. They also did not advise him of his right to use any of these resources to choose a lawyer. In addition, they did not allow him to place the call himself. … They acted as the exclusive conduit to legal advice, without providing the necessary information and tools to Mr. Middleton to empower him to assert his rights. Consequently, Mr. Middleton was inexorably steered towards duty counsel. This practice is constitutionally suspect.
[39] I adopt Parry J.'s conclusions and, having applied them to Ms. Vandermeer's case, find that police failed in their duty to implement Ms. Vandermeer's right to counsel and to choose her own counsel. This is their duty, not hers. Police did not take reasonable steps to implement this right. Instead, they presented her with an incomplete set of choices – know who you want to call now, or we will call duty counsel. The defendant chose the only option that she could.
[40] Further, the defendant cannot be described as lacking in reasonable diligence because she was unsure of asserting herself, or because she complied with the situation that police arranged for her. She had no power here. She had no knowledge of how to go about exercising her right to counsel. She was entirely reliant on how the police decided to implement her right to counsel of choice. The police, who were charged with that duty, instead breached her s. 10(b) rights.
The Test under Section 24(2)
[41] Moving to section 24(2), which is governed by the Grant test of whether or not admission of evidence would bring the administration of justice into disrepute. Three categories inform this analysis:
Seriousness of the Charter-infringing State Conduct
Impact on the Charter-protected Interests of the Accused
Society's Interest in an Adjudication on the Merits
[42] Beginning with seriousness, I find the breach to fall on the lesser end of that spectrum. I did not find the police acted out of any maliciousness or bad faith. All officers treated Ms. Vandermeer with respect, and I have no doubt that defaulting to duty counsel was, in the breath technician's view, the necessary steps he had to take to ensure timely counsel access at almost 3 o'clock in the morning.
[43] That said, he took a fast short cut to get around a constitutionally protected right, out of inattention to well established constitutional principles. This is not novel law here. Right to counsel of choice, and for police to be reasonably diligent in facilitating that right, has been entrenched in Supreme Court jurisprudence since 1989.
[44] But other circumstances of this case counter-balanced the notion of seriousness. It was an isolated breach and the defendant's right to counsel was otherwise well-respected. Cst. Hwang complied with the informational component upon making the approved screening device demand, although he was not required to. This was commendable. The right to counsel of choice was repeatedly made clear to Ms. Vandermeer. Cst. Poytner wanted to satisfy himself both that the defendant's earlier waiver of counsel was valid, and that she knew she could change her mind about it. When she did change her mind, evidence-gathering stopped immediately.
[45] By way of contrast, the breach in Middleton was made more serious because police ignored the accused's request for his cell phone, which he sought to help choose and contact a lawyer. The breach in R. v. Sakharevych, 2017 ONCJ 669, was made more serious because police ignored calls from a third party calling to help put the accused in touch with counsel of choice. Here, Cst. Poynter asked if there was a third party who could help them contact counsel of choice.
[46] In the case at bar, police did not ignore the accused expressing dissatisfaction with duty counsel advice. Here, Ms. Vandermeer expressed no such dissatisfaction. Police did not interfere with a trust-based relationship with a preferred counsel of choice by defaulting to duty counsel, because on Ms. Vandermeer's own testimony, she did not have a counsel of choice. Unlike Middleton, Ms. Vandermeer said nothing that evidenced confusion about her constitutional options. Unlike Sakharevych, R. v. Manuel, 2018 ONCJ 381, and R. v. Maciel, nothing in the evidence hinted at any systemic police inattentiveness to this constitutional standard.
[47] This is not to say that it was incumbent on Ms. Vandermeer to do any of these things in order to have her right to counsel properly implemented. It was not. But the defence authorities presented these aspects which aggravated seriousness. The breach in the defendant's case factually mirrors that of Konyer J. in R. v. Ferose, 2018 ONCJ 305, affirmed 2019 ONSC 1052. There, the evidence was admitted despite a similar s. 10(b) breach accompanied by three other minor Charter violations. Overall, in the defendant's case, the breach fell on the lesser end of the seriousness spectrum and weighs in favour of evidence admission.
[48] I find the impact of the Charter breach, on the Defendant's constitutionally-protected interests, weighed in favour of exclusion. This conclusion was driven by my consideration of the interests protected by section 10(b) and the "degree to which the violation impacted on those interests": Grant at para. 78.
[49] The impact of the Charter infringement was that the defendant was not permitted to exercise her constitutional right to retain and instruct counsel of choice. This occurred in circumstances where as I stated earlier, a person is in custody, cut off from all outside access to information, and most vulnerable. One of the only protections a person has in that situation is legal advice, and they, not police, are permitted within reason to choose who to receive that legal advice from. What happened in the case at bar stripped Ms. Vandermeer of that protection and of her right to choose her own counsel in a time of need. The impact of the breach was significant. This tends in favour of excluding the evidence.
[50] The final factor, society's interest in adjudication of this trial on its merits, weighs in favour of admitting the breath test results. This is reliable evidence of a serious offence. There is a strong public interest in truth-finding that would be well-served by admission of the breath test results. Exclusion of the breath test will end the prosecution entirely, as the defendant is only charged with Driving while over 80 mg. Admission of the evidence would clearly meet society's interest in a trial on the merits.
[51] Balancing all three factors, I have concluded that admitting evidence obtained by the s. 10(b) Charter breach would not bring the administration of justice into disrepute. The breach was on the lower end of the seriousness spectrum, although its impact was significant. Balancing these two factors along with society's interest in a trial on the merits I have, therefore, concluded the breath readings should be admitted into evidence.
[52] As Ms. Vandermeer's defence rested on these Charter arguments, I must find her guilty of the offence of Driving with a blood alcohol content of over 80 mgs of alcohol in 100 ml of her blood.
Released: April 23, 2019
Signed: Justice H. Pringle
Footnotes
[1] Cst. Zver was unsure whether she communicated these observations to her escort, Cst. Hwang. Accordingly, her observations are unavailable for use on the issue of grounds to detain and arrest.
[2] Cst. Hwang, whose cross-examination commenced after Cst. Poytner's evidence was completed, was not substantively cross-examined on the Charter issue or any other topic.
[3] Although I accept that the defendant was communicating badly, and actually had no counsel of choice from Newmarket in mind, Cst. Poynter was reasonably operating on that understanding and cannot be faulted for that.