Court File and Parties

Ontario Court of Justice

Date: July 29, 2020

Court File No.: 0711 998 18 881

Between:

Her Majesty the Queen

— and —

Joshua McKee

Before: Justice Glen S. Donald

Heard on: December 19, 2019

Written submissions by the Crown, Vanessa Stewart: February 5, 2020

Written submissions by defence counsel, Patrick Ducharme: February 19, 2020

Reasons for Judgment released on: July 29, 2020

Counsel:

• Patrick Ducharme — counsel for the Crown
• Vanessa Stewart — counsel for the Accused

DONALD J.:

OVERVIEW

[1] After a trial on December 19, 2019, the Court reserved judgment in this matter. At issue during submissions were the s. 10(b) Charter application by Mr. McKee and the s. 7 and s. 11(d) Charter issues raised by the Court. For the Reasons below the s. 10(b) Charter application is dismissed but as a result of the violation of Mr. McKee's s. 7 and s. 11(d) Charter rights the breath evidence is excluded resulting in Mr. McKee being acquitted.

INTRODUCTION

[2] At approximately 2:00 am on June 29, 2018, Joshua McKee was pulled over by two uniformed members of the Ontario Provincial Police: Constables Pepping and Phair. Although these officers had made no observations of poor driving, the officers contended to be in the process of setting up a self-initiated RIDE program when they first made observations of the vehicle being driven by Mr. McKee.

[3] During the ensuing interaction, the police demanded that Mr. McKee provide a sample of his breath into an approved screening device. He complied and his sample registered a fail on the device.

[4] Mr. McKee was immediately arrested for an offence contrary to s. 253(1)(b) of the Criminal Code and transported to a nearby police detachment. Once there, he was turned over to Constable Webster, a qualified breath technician. Further to a lawfully made breath demand, Mr. McKee provided two samples of his breath into an approved instrument. The first sample, taken at 3:20 a.m., registered a reading of 113 mg of alcohol in 100 mL of blood. The second sample, taken at 3:41 a.m., registered a reading of 103 mg of alcohol in 100 mL of blood.

[5] Mr. McKee was tried on this offence on December 19, 2019.

[6] Prior to the commencement of his trial and in accordance with the rules of the Court, Mr. McKee provided notice of a Charter Application contending that the police had violated his rights to counsel. This Notice of Application seeks the exclusion of evidence, namely the breath results, pursuant to s. 24(2) of the Charter. The Crown's response to this Application indicated that there had been no breach of s. 10(b) but that, if one was found, it was too minor to attract any remedy.

[7] The trial proceeded by way of a blended hearing. The Crown's evidence consisted of three viva voce witnesses: Constable Andrew Pepping; Constable Brett Phair; and Constable Martin Webster. In addition, the Crown filed a number of exhibits including two breath certificates (one for each legislative regime) along with video evidence of Mr. McKee's interactions with the police at the detachment. The defence proffered two witnesses, Mr. McKee and Mr. Cirillo.

[8] In closing submissions, defence counsel conceded that a conviction would flow absent success under the Charter.

[9] During the course of closing submissions I asked counsel for their thoughts on the Court's authority to provide Charter relief as a result of an infringement, should one be found, which occurred during the conduct of the trial by a state actor. I made this request of counsel because of concerns that arose about the quality and clarity of Constable Pepping's oral evidence; the constable's evidence seemed problematic viewed in context of the evidence as a whole.

[10] I raised the issue with counsel only upon completion of the evidence in its entirety so as not to interfere in the trial process. I made clear my concerns and invited submissions owing to a duty of fairness to the parties. As the interrogatory unfolded, the Crown intimated a concern that I had pre-judged the matter. That insinuation had a chilling impact on the exchange between the Court and Crown counsel. Instead of continuing with an oral argument, Crown counsel asked for, and obtained, leave to make written submissions on the issue given its significance.

[11] To assist the parties, I ordered and had produced, for myself and counsel, a copy of the trial transcript. In light of the concern expressed that I had prejudged any aspect of the case, I invited the Crown to bring any application(s) necessary to address that issue upon their review of the trial evidence.

[12] The Crown did not pursue this avenue of relief.

ISSUES

[13] The issues before me are:

a. Should the Crown be granted an opportunity to re-open its case?

b. Has the Defence established, on a balance of probabilities, a breach of the applicant's section 10(b) Charter right?

c. Whether Constable Pepping's testimony constitutes a breach of ss. 7 and 11(d) of the Charter?

d. Should I find a breach of the Charter, whether an exclusionary remedy (one that would bring an end to the Crown's prosecution) under s. 24(2) appropriate?

REOPENING OF CROWN'S CASE

[14] To be clear, when I adjourned this matter to allow for written submissions, I did not do so with a view of allowing the Crown an opportunity of calling further evidence. The evidentiary hearing was at an end and the purpose of the adjournment was solely to provide the Crown with an opportunity to respond to the Charter argument, articulated by me during closing submissions, the basis of which was the result of my concern about Constable Pepping's testimony. Further, I had invited the Crown to bring any application necessary to remedy its perception that I had prejudged any aspect of Mr. McKee's case.

[15] Having asserted a concern about my prejudgment of the credibility of a witness (at the conclusion of the evidence) I could not have anticipated that the Crown's written submissions would contain the seemingly contradictory assertion that I ought to have raised this concern mid trial before the conclusion of the evidence. I am unable to reconcile these competing positions.

[16] The Crown now suggests that my failure to raise my concerns about the officer's credibility immediately after he completed his testimony prejudiced this litigant.

[17] Contained within the Crown's response is what is effectively an application to re-open its case. Proceeding in this fashion the Crown deprived Mr. McKee from being able to properly respond to this 'buried' application. That this fact was overlooked in a response otherwise so focused on issues of notice and procedural fairness is both ironic and unfortunate.

[18] The Crown's application to re-open its case is devoid of merit and as a result I did not need to hear from the defence in order to decide the issue. The Crown is never entitled to a mid-trial scorecard from the presiding judicial officer as to the relative success of the prosecution witnesses. The Crown ignores the frailties of the evidence it marshals at its own risk – the judge deserves no blame when they decline to do so.

[19] Indeed, as the Crown's submissions make plain, credibility and reliability are live issues in most criminal trials. Indeed, the tenor of the cross-examination and the initial Charter Application should have served to make obvious the fact that the defence was challenging the credibility of Constable Pepping's testimony. The only novel issue (raised in oral submissions) relates to my ability to resort to the Charter as an avenue to deal with negative credibility findings involving a witness employed by the state.

[20] There is no merit to the submission that I ought to have alerted the parties to my concerns as to this witnesses' credibility prior to the conclusion of the case. The request to re-open must be denied on this basis alone.

[21] However, out of an abundance of caution, I will review the various aspect of the Crown's request to re-open to ascertain whether it possesses any other relevant evidence capable of being admissible.

[22] The Crown seeks leave to re-open its case in order to recall witnesses and "perhaps" subpoena further witnesses to "properly respond" to the Charter issue raised by the Court. The Crown says that it is unable to indicate whether it would take any of these steps because it lacks "particulars" as to the elements of "viva voce evidence" that give rise to a section 7 Charter breach.

[23] I note that defence counsel had no difficulty in responding, either orally or in writing, to the s. 7 and s. 11(d) issue raised by me during oral submissions. They relied on R. v. Harrison to make the submission that I could find a breach of the Charter as a result of incredible testimony from a police constable and then provide a remedy under s. 24 of the Charter.

[24] The Crown's written response contains a fulsome submission about, and rational for, my acceptance of Constable Pepping's testimony. The Crown's primary argument is that I should not have any difficulties with Constable Pepping's credibility or reliability. The Crown's secondary argument is that I should resolve any credibility issue that I do find, without resort to the Charter. Both the oral and written submissions by the Crown are responsive to the issue raised by the Court.

[25] As I have indicated, despite the concern expressed by the Crown after conclusion of the evidence about pre-judgment, the Crown's written submissions indicate that I ought to have expressed my concerns about his evidence immediately upon its conclusion. Yet, paragraph 27 of the Crown's factum indicates "In this case, there is no issue with the notice component. The problem is timing." The Crown says that my failure to raise my concerns immediately upon the conclusion of the constable's testimony "significantly prejudiced the Crown and prevented the Crown from calling evidence in response…"

[26] Despite a lengthy adjournment, the Crown does not point to any actual evidence available to it from any of potential evidentiary sources which it listed at paragraph 28 of its submissions.

[27] More specifically, the submission that a staff sergeant could be called "to speak any direction to run a RIDE program" ignores the evidence from Constable Phair, that it was a "standing expectation" of constables, and not a direction from a superior which led to the creation of this RIDE initiative. I accept his evidence. Evidence about this "standing expectation" would not have assisted in resolving any issue in this case including credibility. To be clear, I take no issue in the reasons below with their being an expectation that O.P.P. constables ought to initiate their own RIDE programs.

[28] The Crown submits that if it were permitted to reopen its case it would seek to call evidence from other constables on shift to "bolster Constable Pepping's evidence". The record before me reveals that I heard from each of the constables involved in this investigation. The Crown's factum does not provide me with information outside of this speculative possibility. Moreover, the rule against oath-helping holds that evidence adduced solely for the purpose of proving that a witness is truthful is inadmissible.

[29] The Crown also seeks to re-open in order to tender "ICAD call or radio dispatch information" without providing any further details about even the existence of such evidence. My credibility analysis would be unaffected by evidence which confirmed that Constable Pepping entered the information that he testified about as he began "setting up" the RIDE program in question.

[30] The Crown further suggests that a re-opening would allow them to ask further questions of Constables Phair and Webster without providing any particulars of the types of further questions that would be asked of either constable. The Crown is similarly vague in its submission that re-opening would allow them to conduct their cross-examination of defence witnesses "in a different manner".

[31] The evidence of defence witnesses was clearly at odds with important aspects of Constable Pepping's. The Crown adeptly challenged both defence witnesses on those issues. As the Crown indicates in its written submissions, credibility and reliability are routinely at issue during trials. This trial was routine in that regard and counsel conducted their respective cross-examinations in a manner consistent with an appreciation of this fact.

[32] I am in no way satisfied that the Crown has any additional evidence relevant to a material issue in the case. Therefore, I reject the Crown's suggestion that they would be, in any way, prejudiced should I not allow them to re-open their case in order to adduce additional evidence. Given this finding I need not ask myself about the prejudice suffered by Mr. McKee should I prolong this case by allowing a further evidentiary hearing.

[33] The Crown's written submissions also contain veiled complaints about the fact that the Court generated its own Charter concerns. Moreover, despite the concession in its written submissions, at para. 27, that there was "no issue with the notice component", three paragraphs later, at para. 30, the Crown contradicts itself again and takes issue with the sufficiency of the notice.

[34] As the Crown aptly pointed out at para. 8 of its submissions, "credibility and reliability are always at issue in Criminal court trials". Indeed, the original Charter application directly assailed Constable Pepping's credibility. The concerns expressed by this Court at the conclusion of the trial related directly to Constable Pepping's credibility and reliability.

[35] R. v. Fraillion makes the point that it is open to a trial judge, in their mission to do justice, to point out to the parties the point in fact, raised by neither party, causing the difficulty. In this decision, the Quebec Court of Appeal, also offers a reminder of the importance of giving the parties an opportunity to completely argue the question before ruling on it.

[36] I appreciate that, in the ordinary course, a judge would not comment on a Charter issue that was not raised by an accused represented by experienced counsel. However, it is extra-ordinary (or least should be) for a court to become overwhelmingly concerned about a police constable's candour with the Court. In this case, my concerns crossed that threshold such that I raised the issue with counsel in the course of submissions.

[37] In my view, the time has come where Judge's need to speak plainly about the testimonial performance of the police constables who appear before them. Put bluntly, should I conclude that Constable Pepping's viva voce testimony is incredible, wholly unreliable, or both, charged with the duty of ensuring that Mr. McKee's trial process is a fair one, I must craft a remedy which ensures that he receives that to which he is constitutionally entitled.

[38] My question, although perhaps not as succinctly stated at its inception, was whether a negative credibility finding against a police constable could attract Charter relief. The written submissions provided by the defence were responsive to this issue.

[39] The Crown's written submissions begin with the following concise statement:

The following issue was raised by the Court

a. What is the availability of the Court to find a section 7 breach arising from the testimony of an officer at trial in conjunction with alleged breached at the roadside?

[40] Further, the Crown's submissions contain a roadmap for my acceptance of Constable Pepping's evidence. Read as a whole, the Crown's submissions are unmistakably focused on Constable Pepping's credibility and their claim of prejudice related to improper notice is baseless.

[41] Not only am I satisfied as to my jurisdiction to raise the Charter issue I did, I am satisfied that I provided counsel with a reasonable opportunity to argue it. There is no merit to the Crown submission that the issue was insufficiently identified and that, as a result, the Crown has been denied an opportunity to respond.

[42] As a result, I deny the Crown's application to have the matter re-opened either to introduce further evidence or for continued argument.

[43] I am wholly satisfied that:

i. The issue was properly raised by me at the appropriate juncture;

ii. The Crown does not have any relevant evidence capable of being admissible in reply;

iii. It is not an appropriate case for reply evidence;

iv. The Crown had sufficient notice of the issue and an ample opportunity to respond.

CONSTABLE PEPPING'S EVIDENCE

[44] It makes sense to begin with a review of Constable Pepping's evidence.

[45] From Constable Pepping's perspective, this was an entirely straightforward case. He was on duty and in the sole company of Constable Phair when he conducted a stop of Mr. McKee's motor vehicle. Constable Pepping then administered a road side demand the results of which led to Mr. McKee's arrest. In response to Mr. McKee's rights to counsel, once at the detachment, Constable Pepping facilitated a single phone call and then turned him over to a qualified breath technician. Upon learning the results of Mr. McKee's breath samples, Constable Pepping formalized his decision to arrest Mr. McKee by preparing the appropriate charging documents and then releasing him.

[46] At trial, Constable Pepping testified, without objection from the defence, with the assistance of his duty book notes and willsay statement. It is not lost on me that the constable provided his evidence some eighteen months after he was involved with Mr. McKee; his evidence will be considered in this context.

[47] On the evening in question, Constable Pepping was operating a black SUV with subdued markings. He testified that he was just in the process of "setting up" a RIDE program when he became aware of a vehicle in his immediate vicinity. Constable Pepping followed and stopped this vehicle and discovered it to be driven by its sole occupant, Mr. McKee.

[48] Each of the constables involved in this case testified about the existence of two discrete types of RIDE programs administered by the Ontario Provincial Police. The first type, the stationary RIDE program, is the traditional ride program to which most Canadians have become accustomed. Motorists approaching this type RIDE program are alerted to its presence by such things as pylons, flares, and police cruisers with their emergency lights activated and then greeted by constables wearing reflective vests asking questions about, and make observations of, their state of sobriety.

[49] The second type of RIDE type program is a mobile RIDE program. It offers none of the trappings of the traditional RIDE program. Instead, the police internally designate a patrol area in which they subsequently pull over every vehicle travelling within it to make necessary enquiries and observations of its driver's state of sobriety. Aside from any words spoken by a police constable, in this scenario, there would be nothing to alert a driver that they had been stopped as a result of a RIDE program.

[50] In the context of this case, the nature of the RIDE program is of import only insofar as it serves as a vehicle from which to begin measuring Constable Pepping's credibility and reliability.

[51] If Constable Pepping was clear about one fact, it was that at 1:58 a.m. he was "setting up" a RIDE program when the Applicant passed his location. In his Examination in Chief, he explained that he was in the process of setting up a stationary RIDE program.

[52] Within mere minutes, still in his Examination in Chief, Constable Pepping contradicted himself.

Q. Okay. And before you can initiate a RIDE program, are there any steps internally that you have to take to do so?

A. So at this time, that specific location there's - the area we chose was to target the bar areas in Port Stanley, as they typically get out shortly after 1 a.m. This location has several exits from that area for vehicles to avoid our RIDE. So we were seated in the motor vehicle, the - which is a marked police vehicle, it's a black subdued vehicle, so it's black on back with markings, and at that point we just initiated it and we were sit - seated in the vehicle. And at that point we would just make observations for other motor vehicles.

[53] This answer connotes the contemplation of the second type of RIDE program – the mobile ride program. Indeed, this is precisely what Constable Phair said, in his evidence, that he and his partner, Constable Pepping, were about to do when Mr. McKee's vehicle was observed by them.

[54] Then, still early in his Examination in Chief, Constable Pepping contradicted himself yet again as he explained the procedural steps he contemplated as necessary to complete the "setting up" of the RIDE program in question. His evidence was that his next steps would have involved him exiting the police vehicle and adorning himself in a reflective vest to place cones and flares in the roadway. Those answers speak to the creation of a stationary RIDE program.

[55] When Constable Pepping was initially asked to describe the steps that he had undertaken in "setting up" the RIDE program, he mentioned nothing about the activation of his emergency lights. His evidence was that his emergency lights were not activated until after making observations of Mr. McKee's vehicle.

Q. So where are you located when you observe a vehicle, you indicated?

A. So I was parked on Carlow Road. My motor vehicle or police vehicle was parked facing northbound on Carlow Road and I observed a westbound motor vehicle that was travelling on Bridge Street. At that point, I activated the emergency lights on my police vehicle and attempted to initiate a traffic stop of that vehicle to stop at the RIDE program that I had just set up. [Emphasis Added]

[56] Still in examination in chief, the constable contradicted himself and testified that his emergency lights had been activated prior to Mr. McKee passing through the vicinity of the police.

[57] This inconsistency was explored in cross-examination.

Q. And when this vehicle passed, the vehicle in which Mr. McKee was the driver, there were no lights, no signs of a RIDE program, do you agree?

A. At 1:55 a.m.? No.

Q. Right. And he didn't go by your vehicle where you were about the business of setting up a RIDE program, he drove by the area where you were, going off to the right. Am I right about that? If he was the driver, if you were in his position as the driver, his vehicle went by where you were on that street, off to the right. Do you agree?

A. I'm just going to clarify. At 1:55, I wasn't at that location. The RIDE program that I was just setting up was at 1:58.

Q. All right. So at 1:58, I put the same question to you.

A. Okay.

Q. There were no lights, there was no sign of a RIDE program at 1:58 a.m. Do you agree?

A. So at 1:58 a.m., I initiated the RIDE program and I observed the motor vehicle shortly after that time proceeding westbound and I activated my emergency lights to signal that vehicle to stop, yes.

Q. Perhaps I'm not making myself clear. I'm suggesting to you when Mr. McKee drives by that area, there are no visible signs of a RIDE program. Do you agree or disagree?

A. I stated the - my evidence.

THE COURT: I need you to answer Mr. Ducharme's very fair question. Please ask it again, Mr. Ducharme.

MR. DUCHARME: Yes. I'm suggesting to you that when the McKee vehicle went by the area where you were, there were no visible signs of a RIDE program. What do you say to that?

A. So to your suggestion, I was in a marked police vehicle and I initiated my traffic - my emergency lights would - which would signal any vehicle to stop.

THE COURT: Ask it again.

MR. DUCHARME: Yes. Q. When the McKee went by the area where you were located ...

A. Yes.

Q. ... there were no visible signs of a RIDE program. Do you agree or disagree?

A. Yes.

Q. You agree?

A. Yes, I agree.

[58] Following this exchange, Constable Pepping immediately resiled from this concession and stated that his lights were on before Mr. McKee entered the area, that he deactivated them after spotting Mr. McKee's vehicle and then reactivated before pursuing Mr. McKee's vehicle. The constable provided no rational or reason for the momentary deactivation of his emergency lights. On this evidentiary record, even by way of inference, none exists.

[59] The constable's evidence on this point went one way, then it went the other way, and upon realizing this fact, he provided an explanation designed to allow his evidence to go both ways.

[60] In this area alone, Constable Pepping's evasiveness and internal inconsistencies proves problematic to a favourable credibility assessment. Regrettably, this was but the beginning of a troubling pattern for this constable. When pressed on a particular area, instead of providing a candid and straightforward response, his first instinct in cross-examination was an effort to avoid answering the question.

[61] Understandably, defence counsel continued to probe Constable Pepping's evidence about the activation of the constable's emergency lights. As his evidence continued, the constable's responses became less clear. His evidence in this inconsequential area, strained as it was, left me with the impression that the constable either could not, or did not want to, provide the Court with a straightforward answer on such a simple issue as to whether his emergency lights were activated when Mr. McKee passed by his location. At page 24 of the transcript, during cross-examination, the following exchange took place:

Q. ... I'm suggesting none of those lights were lit up, they may be there, but I'm suggesting you had no lights that were on or visible as lit up lights. What do you say to that?

A. I disagree with your suggestion. I'm telling you I had activated those lights.

Q. I see. So every one that you've just described, you're saying is that McKee vehicle went by were activated.

A. So the light ....

Q. Is that what you're saying?

A. The lights activate intermittently, so I can't confirm each individual light that was on at the time as they turn on intermittently. So one would be on, the next one would be off, the one would be on and they - that's how you get the flashing of those lights.

Q. So even with your evidence, you're not able to say that any particular light was lit up at the time his vehicle went by?

A. At 6:30 p.m. on June 28th, I conducted a cruiser check, and involved in that cruiser check, I have to point, all of those lights were in working order.

Q. Did you hear my question?

A. Yes.

Q. My question or my suggestion to you was, you cannot say today from the witness stand that any of those particular lights were actually lit, showing some light, at the time the McKee vehicle went by you, can you?

A. No, I can say that because when I activated that button and those light illuminated, they reflected off of all the signs that were visible to me in that area.

Q. So which light or lights do you say were activated when he went by?

A. As I stated before, when they reflect intermittently, they all would've been on for split seconds at a time, so I can't confirm each individual light which was activated.

Was there a breach of the Applicant's section 10(b) Charter right?

[62] I must determine whether the defence has satisfied me, on a balance of probabilities, that there has been a breach of the applicant's section 10(b) Charter right.

[63] In his factum, the applicant alleged that Constable Pepping misled the breath technician during his recitation of grounds by creating a false impression that Mr. McKee had avoided an active RIDE program. The Crown, in its response, opposed the applicant's characterization of the exchange of grounds.

[64] The defence position, is that Constable Pepping went on the deceive his colleague about the status of the implementation of Mr. McKee's right to counsel. The rights to counsel issue was the at the core of Mr. McKee's trial.

[65] While I have no direct evidence that Constable Pepping was aware, before the trial began, that his credibility was going to be challenged on these two main fronts. His evasive answers in these and other areas does nothing to quell my suspicions in this regard.

[66] Nonetheless, neither his evidence at trial, nor my review of the breath room video capturing the moment, provides me with any confidence that Constable Pepping was not, at a minimum, intentionally vague about the state of the RIDE program when Mr. McKee passed by his location. However, on the evidentiary record before me, I am left with the impression that, for reasons unclear to me, the constable was less than candid about the circumstances leading up to his decision to stop Mr. McKee to check on his sobriety.

[67] In cross-examination, Constable Pepping was asked about the location for his stop of the McKee vehicle. Again, getting a straightforward answer to a simple, non-controversial, issue proved difficult for this professional witness.

Q. I'm suggesting to you that from where your vehicle was stopped to where you stopped him, Mr. McKee, it was a quarter of a mile away. What do you say to that distance?

A. Okay. So to the suggested distance ...

Q. Yes.

A. ... I say I can't confirm that exact distance as I didn't note my odometer reading from when I left my location to where the stop was conducted.

Q. But you're an constable in this area, right?

A. Correct.

Q. You know that area?

A. Yes.

Q. You would know it's approximately a quarter mile away. Are you not able to answer that?

A. It was a few hundred metres away, so 300 metres or so.

Q. Is that your estimate?

A. That's my estimate.

Q. Where do you say the actual stop is, where does it take place?

A. So when I initiated that stop, our MWS workstation, it would've created an exact GPS location.

THE COURT: Answer the question, please.

MR. DUCHARME: Q. I'm asking you.

Yes.

THE COURT: Listen to the question, sir ...

A. Yes.

THE COURT: ... and answer it.

MR. DUCHARME: Q. I'm asking you, where do you say that you stop the McKee vehicle?

A. On George Street, west of William Street.

Q. On George Street, west of?

A. William Street.

[68] The cross-examination then moved to the exchange that occurred between Constable Pepping and Mr. McKee at roadside. Mere minutes had passed since the constable had been reminded by me that his answers needed to be responsive to the question posed by counsel when this exchange occurred:

Q. And that - and that led you to ask, "Have you consumed any alcohol?" And he responded, "Two glasses of wine at dinner."

A. Yes.

Q. Now you didn't ask him when dinner was, did you?

A. So I explained mouth alcohol, which for that point is if you've consumed alcoholic beverage within the last 15 minutes, then I have to wait 15 minutes to conduct the test. So I confirmed when his last drink was, which he said, "Over an hour ago." [Emphasis Added]

THE COURT: Constable ...

MR. DUCHARME: Q. My question .....

THE COURT: ... Mr. Ducharme is asking very specific questions. Your answers need to be responsive to his questions. Please ask your question again.

MR. DUCHARME: Q. He told you he had two glasses of wine at dinner. You've agreed with that.

A. Yes.

Q. And I said, you didn't ask him when dinner was, did you?

A. No. [Emphasis Added]

[69] Again, instead of answering the simple question, the constable continued to view his cross-examination as an opportunity to advance his own narrative. Quite simply, this is not how cross-examinations operate – witnesses must provide answers that are responsive to the questions posed – and if that was not known to the constable when his testimony began, by this stage of his cross-examination, he surely could have had no difficulty in appreciating this Court's expectations in this regard.

[70] I appreciate that demeanour evidence is often of little assistance in terms of assessing the credibility and/or reliability of a witness. In this case however, the officer's words and demeanour, which included an element of disdain for defence counsel, left me with the sense that he viewed his role during cross-examination simply to frustrate the cross-examiner. Utilizing this tactic, simply made his evidence even more difficult to accept.

[71] Several aspects of the Charter Application are non-contentious. At the police detachment, Mr. McKee spoke on the phone to only one person in furtherance of his s. 10(b) right to counsel – Mr. Nicola Cirillo. Mr. Cirillo is a licenced paralegal in the Province of Ontario; he is not a lawyer. Constable Pepping is the constable who facilitated the phone call between Mr. McKee and Mr. Cirillo.

[72] The audio and video evidence provided from the breath room (exhibit 2) revealed the following exchange between Constable Pepping and Constable Webster before any samples of breath were provided by Mr. McKee into the approved instrument.

Webster: Okay. And so, I understand, so you brought him back here and lodged him and he spoke to a lawyer?

Pepping: Yes.

Webster: Okay

Pepping: So, he, at the roadside, … do you have a lawyer. I gave him all the options using the local list, the phone book..

Webster: Okay.

Pepping: Or pick one on his own. He requested to pick a phone number out of his phone.

Webster: Okay

Pepping: … is a lawyer. So, he gave me that phone number. I called him at the detachment, he spoke to his lawyer at 2:39.

Webster: Okay, do you know if it was a criminal lawyer?

Pepping: He said he's not counsel when he called, so after he was done speaking, I requested if he was satisfied with the advice that he was given.

Webster: Okay.

Pepping: Asked if he'd like to speak to another lawyer, which he refused. So….

Webster: Okay. Just so you know, I will go through that with him when he comes in any way.

[73] Once, in the breath room, Mr. McKee had the following exchange with Constable Webster.

Webster: I understand you spoke to your lawyer, as well?

McKee: Yeah.

Webster: Are you happy with the advice he gave, he or she gave?

McKee: Yeah. We just have to go through due process.

[74] Beyond this very brief exchange, prefaced by a (mis)leading question which ignored the fact that Constable Webster had been told that the individual with whom Mr. McKee spoke was "not counsel", Constable Webster made no further enquiry about the implementation of Mr. McKee's s. 10(b) rights.

[75] I do not wish to be overly critical of Constable Webster. He was given conflicting information by Constable Pepping with respect to whether or not Mr. McKee had consulted counsel. On the evidentiary record before me, the responsibility to implement Mr. McKee's rights to counsel belonged to Constable Pepping.

[76] Constable Webster's evidence was precisely what is expected of a police witness. His testimony, largely unchallenged by the defence, was clear, concise and fair. I have no difficulty accepting any aspect of Constable Webster's evidence.

[77] Mr. Cirillo, a licenced paralegal, is an officer of the Court. I am cognizant of the fact that he enjoys a friendly relationship with the accused and am mindful that his experiences are such that he would be acutely aware of the repercussions that a conviction would have for his friend. Nonetheless, he presented his evidence in a fair, clear and concise manner. He made concessions where it was appropriate to do so and the result is that I also found him to be a credible, reliable and trustworthy witness.

[78] In cross-examination, the accused's memory of events proved unreliable. Until he was shown video evidence, he was certain that he had accessed his phone while standing in the detachment. I am satisfied that the passage of time, stress of the situation and consumption of alcohol offer explanations for his faulty memory. I have no credibility concerns in relation to his evidence – he was quick to make concessions, including that he had been wrong about the location where he accessed his phone, that he would know were averse to his interests.

[79] From R. v. Bartle, a decision of our Supreme Court, the obligations imposed on police by s. 10(b) of the Charter are both "informational" and "implementational". On the evidentiary record before me, I am satisfied only that Constable Pepping provided the Applicant with his rights to counsel and that in response to hearing those rights to counsel the Applicant chose Mr. Cirillo's phone number from his phone. I am unable to find, due to the credibility and reliability concerns I have identified so far with Constable Pepping's evidence, that the Applicant ever held Mr. Cirillo out as "a lawyer" while speaking to Constable Pepping. It bears noting that, at the detachment, as Constable Pepping handed Mr. McKee the telephone, he told him "your friend is on the phone".

[80] The Applicant had no complaint about Mr. Cirillo's advice. If Mr. Cirillo had been counsel, there could be no suggestion that Constable Pepping had failed in the discharge of the 10(b) obligations owed to Mr. McKee. To be clear, it is my view that had the applicant misrepresented Mr. Cirillo's status as a lawyer to the police, with the result being that they unwittingly put him in contact with a person who, in fact was not, the Charter would provide Mr. McKee no remedy.

[81] In his Examination in Chief, Constable Pepping testified that he provided Mr. McKee with his "rights to counsel". Those rights to counsel were read from a card issued to him by his police service. The following words were spoken:

I'm arresting you for driving with over 80. It's my duty to inform you, you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free legal advice from a Legal Aid lawyer. If you're charged with an offence, you may apply to the Ontario Legal Aid Assistance Plan, 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now.

Do you understand?

[82] Noteworthy is that the force issued card interchanges the words "lawyer" and "counsel". Those words are synonymous and the constable's own force issued card makes that point plain. Moreover, the "rights to counsel" service issued card states the key component of the right: You have the right to telephone any lawyer you wish. The right to counsel is not restricted to contacting a criminal defence lawyer.

[83] In Examination in Chief, when first asked about the roadside exchange directly on the heels of advising Mr. McKee of his right to counsel Constable Pepping said this:

Q. Okay.

A. So at that point he requested to check his own cellular device ...

Q. Okay.

A. ... for his - for a lawyer of his choice. He provided a name of Nichola Cirillo and at that point he picked a number from his phone and provided me a number of 647-808-3202.

[84] Clearly in contemplation of the Charter Application before the Court, the Crown elicited the following evidence from Constable Pepping as his Examination in Chief continued:

Q. Okay. And do you get any information about this Mr. Cirillo?

A. I just confirmed his identity, he said he was Nicola Cirillo. I notified him that Mr. McKee was in custody and he requested him as his choice of lawyer and if he was willing to speak to him, which he was.

Q. Okay. And do you get any other information from Mr. Cirillo at this time?

A. No. [Emphasis Added]

[85] The constable's answer to this question was untrue. He had received other important and relevant information from Mr. Cirillo and he had conveyed it to Constable Webster if only in a muddled way; at a minimum, Mr. Cirillo had told him that he was not counsel. I find the above answer by Constable Pepping to be an attempt to be misleading about a central issue in the case.

[86] While being cross-examined on this crucial point Constable Pepping continued to be an evasive witness. Before having his memory refreshed by a recording of his interaction between himself and Constable Webster, he denied that Mr. Cirillo had told him that he was not a lawyer. However, he did recall being told by Mr. Cirillo that he "normally doesn't deal with impaireds". When asked if Mr. Cirillo had told him that he was "not counsel", the constable claimed to have no memory.

[87] According to Constable Pepping, at no point was Mr. McKee investigated or arrested for "impaired" driving. I appreciate that the offence of "over 80" (as it then was) and the offence of "impaired driving" are related offences and they are sometimes used interchangeably, albeit inaccurately, by justice system participants including police constables.

[88] In cross-examination, in answer to a non-leading question, Constable Pepping testified that he told Mr. Cirillo that Mr. McKee had "Selected him as a lawyer". (Emphasis added.) Although readily discernable, it was not until the breath room video was played for a second time (at the officer's request) that the constable conceded that he had told his fellow constable, mere minutes after his phone call with Mr. Cirillo, that Mr. Cirillo had told Constable Pepping that he was "not counsel". While the video contained portions of audio where the words were difficult to discern, this exchange was not. That the constable required the video to be replayed for him a second time before making an obvious concession speaks to a witness with a steadfast desire to frustrate the truth seeking function that lies at the center of the trial process.

[89] Still in cross-examination, Constable Pepping faced with the above reality, the following exchange took place:

Q. And what do you mean by counsel, what do you take counsel to mean?

A. Not sure to be honest. If ....

Q. You mean it to be a lawyer, right?

A. Yeah, like if ...

Q. Right.

A. ... that's the definition.

Q. So I want to go back to what I suggested to you earlier.

A. Okay.

Q. That Mr. Cirillo told you he wasn't a lawyer, didn't he?

A. So counsel for me, in my opinion - so there's different areas of law, so to me I believed him to still be a lawyer, but counsel would be I guess defence counsel or a defence lawyer. Like he can be a civil lawyer, a business lawyer, anything to that effect. So, I had no idea if he was a lawyer or not, but clearly he stated there that he wasn't counsel.

Q. But I just asked you, what do you mean when you hear counsel? You think that means a lawyer and you said, "Yes."

A. I just explained what I thought that counsel meant.

Q. Okay. Now if you had any doubt about it, if somebody else had a different interpretation of counsel, because your task is to make sure that Mr. McKee gets an opportunity to speak to a lawyer, you would ask questions about that, wouldn't you? You would find out if he used the term counsel, okay, I want to understand what you mean by that, you're not a counsel, like what are you? Wouldn't you ask that?

A. So I did mention that he said he doesn't deal with impaireds, so that's why I asked if he was willing to speak with him, which he said, "Yes." And then after that, because there was the doubt that he was possibly a lawyer, the again, I afforded the opportunity and the other options to Mr. McKee to choose to speak to someone else if he chose.

[90] I completely reject the constable's strained effort to distinguish between counsel and lawyer. As I have already indicated, his own force issued card interchanges these terms. Beyond that, so had the constable in his evidence: in response to rights to "counsel", the accused provided him with the name of a "lawyer". If constable Pepping's evidence about the narrow restrictions he placed on the word counsel is accepted (and it is not) then it follows that he ought not to have been satisfied in connecting Mr. McKee with "a lawyer" and instead could only have been satisfied in connecting him with a "defence lawyer".

[91] The constable's evidence in this area merits continued scrutiny given my findings so far.

[92] First, it is noteworthy that the constable later also backed away from his recollection that Mr. Cirillo had told him that he did not do impaireds, stating that Mr. Cirillo had only said "something to that effect". This provides yet another example how this witness was prepared to steadfastly maintain confidence in an area of his evidence until it became inconvenient or impossible for him to do so.

[93] Second, the constable would have me believe that his view of "counsel" was restricted to defence counsel. In other words, a criminal defence lawyer. This does not explain why he did not provide the breath technician with a straight answer to his direct question – "Do you know if it was a criminal lawyer?". On his evidence, constable Pepping was capable of answering this question: Yes I do know and no he was not.

[94] This gives rise to another obvious concern – that his lack of honesty and candour extends beyond the walls of the courtroom and infects other aspects of his job such as the reliability of the information he passes along to his fellow constables.

[95] He told a fellow officer, Constable Webster, that Mr. McKee had "spoke[n] to a lawyer". Let me make clear that I accept Mr. Cirillo's evidence that he had told the constable that he was neither a lawyer nor counsel. While I do not accept Constable Pepping's evidence that he advised Mr. Cirillo that Mr. McKee had selected him "as a lawyer", I accept that the topic was broached during their phone conversations. I find, despite Constable Pepping's evidence to the contrary, that he heard Mr. Cirillo tell him that he was neither lawyer nor counsel but that he would speak to, his friend, Mr. McKee. As I have indicated, Constable Pepping's evidence was that, after speaking to Mr. Cirillo, as he handed Mr. McKee the telephone, he said "Your friend is on the phone".

[96] It follows that, Constable Pepping was misleading a colleague when he told Constable Webster that Mr. McKee had spoken to a lawyer.

[97] I accept that Constable Pepping, who began his career as a police constable in 2017, may not have known what to do when presented with a situation where an accused chooses a non-lawyer when given his right to counsel and is subsequently satisfied with the advice he receives from that person. However what a constable cannot do is attempt to cover over their lack of knowledge or fear of criticism for their handling of a situation, with evasive and misleading evidence. The truth must always prevail.

[98] Faced with the opportunity presented by s. 10(b) of the Charter Mr. McKee spoke to someone that he trusted and whom he believed to be "knowledgeable in the law". As Mr. McKee put it during his cross-examination "if I ever had a legal question, he [Mr. Cirillo] usually would have an answer".

[99] Leaving aside my concerns with Constable Pepping's credibility, ultimately this is a case in which an otherwise reasonably high functioning individual made a voluntary and informed decision to speak to a non-lawyer in response to a informationally complete s. 10(b) right.

[100] A review of Mr. McKee's evidence makes it clear that he was never confused about his right to counsel. His evidence revealed that he was entirely satisfied with the choice that he made (to speak to Mr. Cirillo) and the advice that he received as a result. As he put it "I thought it was adequate enough from my friend that knows about this, was enough advice for me."

[101] As a result, I am satisfied that the police complied with their implementational obligations under s. 10(b) of the Charter and that Mr. McKee, effectively waived his right to counsel upon being connected to Mr. Cirillo and being satisfied with the advice that he received.

[102] Contrary to what Constable Pepping would have me believe, I am not at all satisfied that Mr. McKee was provided with any options following the completion of his phone call. However, I do not find that the lack further options is fatal to the Crown having to meet the "very high" burden of establishing his waiver of his right to counsel solely on the basis of Mr. McKee's evidence.

[103] It follows that the defence application contending a s. 10(b) breach is dismissed.

Intentionally Misleading Police Evidence as Breach of ss. 7 or 11 of Charter

[104] I must next determine whether constable Pepping's misleading evidence rises to the level that would constitute a breach under either s. 7 or s. 11(d) of the Charter.

[105] It goes without saying that truth is a fundamental component of a fair trial. Before testifying, witnesses either take an oath or affirm to speak only the truth while testifying. The purpose of the oath or affirmation is to highlight the fact that, in a courtroom, there is a premium placed on the truth. The absence of truth during a trial imperils the justice system.

[106] Police hiring criterion provided for under s. 43(1)(d) of the Police Services Act is meant to ensure, among other things, that courts are able to credit the testimony of police officer as truthful.

[107] Speaking the truth under oath or affirmation is of such importance that a failure to do so constitutes a straight indictable offence where the maximum period of imprisonment is fourteen years.

[108] At times, the Crown, charged with the obligation to continuously assess its reasonable prospect of conviction feels duty bound to abandon a prosecution on the basis of police evidence that they deem incredible or unreliable. While these decisions are laudable they have the effect, intentionally or not, of sparing police officers from censure.

[109] These proper exercises of Crown discretion have the unintended consequence of making it difficult for an accused to establish a pattern of deception on behalf of an individual officer.

[110] Opportunities for judges to provide forceful condemnation of misleading police evidence is resultingly rare.

[111] It has long been understood, at least in the context of ex-parte applications such as search warrants, that police constables have "special duties of candour and full disclosure". In R. v. Morelli, the Supreme Court considered this issue in the context of a search warrant that had been drafted in a misleading, albeit non-deliberate, manner. In that instance, although there was no ill-intent attributed to the officer whose evidence was misleading, the majority held that "the repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct".

[112] The Court continued to assess the long-term ramifications upon the administration of justice at paragraph 103:

We are bound to accept the trial judge's finding that there was no deliberate misconduct on the part of the constable who swore the Information. The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers.

[113] In the context of an unlawful warrantless search, the Supreme Court of Canada, in R. v. Harrison grappled with the complicating feature of a constable who's in-court testimony on the issue was misleading. For the majority, Chief Justice McLachlin, at paragraph 27 wrote:

I note that the trial judge found the constable's in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, "the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority" (para. 160).

[114] Although I resolved the s. 10(b) Charter issue that was before me, I am convinced that Mr. McKee's right to a fair trial was compromised by the half-truths and lies told by Constable Pepping from the witness box.

[115] Recently, Justice Mew of the Superior Court of Justice, in R. v. McAllister had occasion to consider the common law doctrine of abuse of process. Relying on R. v. O'Connor he concluded that two categories of abuse of process exist. The first is police or prosecutorial misconduct affecting the fairness of the trial – the "rights-based category". The second is police or prosecutorial conduct that contravenes fundamental notions of justice and thus, undermines the integrity of the judicial process – the "residual category".

[116] In this case, both residual and rights based categories are engaged. It is clear to me that Constable Pepping's misleading in-court testimony impairs the truth-seeking function of the Court in a way that affects the fairness of the trial. This constitutes an abuse of process, under the "rights-based category".

[117] If, as in Morelli, unintentionally misleading statements by police constables made in the course of an application for a search warrant has the effect of eroding the public's confidence in the repute of the judicial system, it follows that intentionally misleading statements made in the course of an constable's testimony could only have a similar, if not a greater, impact on the integrity of the system. The result is an abuse of process in the "residual category".

[118] The reality is that this scene, captured here only in words, played out in real time before an accused for whom innocence was at stake. The transcript of the proceedings does no justice to the moment as it does not reveal the pauses, inflection, or otherwise nervous appearance of the constable as he spoke the words I have found to be untruthful.

[119] Indeed, in closing oral submissions, experienced defence counsel aptly replied in answer to a question I posed about my authority to proceed as I now am:

And I know exactly what you're referring to and I doubt that there was anybody in this courtroom who watched that that didn't feel that there were answers given by him that just were not acceptable and not credible.

[120] I am cognizant that judges are often loathe to make such negative findings against an individual constable. However, in an era marked by an ever-increasing number of unrepresented persons, the dangers created by this sort of police conduct increase exponentially and strike at the heart of the presumption of innocence, a fundamental tenet of the justice system, and our democratic institutions.

[121] I am satisfied, on a balance of probabilities, that the conduct of Constable Pepping during the course of Mr. McKee's trial constituted an abuse of process under both headings such that his rights guaranteed under ss. 7 and 11(d) were violated.

Is a remedy under section 24 of the Charter appropriate?

[122] Having found that ss. 7 and 11(d) of the Charter were violated, I must consider the appropriateness of a remedy, including one that would bring an end to the Crown's prosecution, under s. 24.

[123] In R. v. Babos, the Supreme Court of Canada set out a three-part test for determining whether a stay of proceedings is an appropriate remedy:

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

[124] At paragraphs 38 and 39, the Court provides further assistance:

Second, in a residual category case, regardless of the type of conduct complained of, the question to be answered at the first stage of the test is the same: whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. While I do not question the distinction between ongoing and past misconduct, it does not completely resolve the question of whether carrying on with a trial occasions further harm to the justice system. The court must still consider whether proceeding would lend judicial condonation to the impugned conduct.

At the second stage of the test, the question is whether any other remedy short of a stay is capable of redressing the prejudice. Different remedies may apply depending on whether the prejudice relates to the accused's right to a fair trial (the main category) or whether it relates to the integrity of the justice system (the residual category). Where the concern is trial fairness, the focus is on restoring an accused's right to a fair trial. Here, procedural remedies, such as ordering a new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for a wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of a stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward.

[125] I am mindful that the majority of the Supreme Court in Babos affirmed the Quebec Court of Appeal's decision overturning the trial judge's decision to stay the charges. The mischief left to redress by resort to s. 24(1), once the Supreme Court had completed its analysis in Babos, was limited to collusion by two police constables involved in a trunk search and the subsequent threatening conduct by crown counsel state prosecutor.

[126] The collusion consisted of the two police constables, in advance of the trial, but after the completion of the preliminary inquiry, speaking to each other about the circumstances surrounding the search of the trunk. During this conversation, one constable convinced the other that it was an accused, and not the police, who had opened the trunk. So convinced, the constable delivered different evidence on this point at trial than he had at the preliminary inquiry. Resultingly, during cross-examination at trial, he was confronted about this obvious discrepancy.

[127] Writing for the majority, Justice Moldaver noted that the collusion (a finding about which he expressed some reluctance) needed to be viewed in its context – that the constable's testimony changed after he gave sworn testimony at the preliminary inquiry. Most importantly, Justice Moldaver held that there was "no attempt by the constables to cover up their discussions or hide anything from the court". Viewed in its proper context, the threat to the integrity of the justice system stemming from the collusion was slight. Justice Moldaver remarked also that the trial judge had at his disposal another remedy, the exclusion of evidence (a semi-automatic firearm).

[128] The court also considered the appropriateness of a stay in a hypothetical wherein the police tampered with a jury. The court noted that such conduct would impact on the accused's right to a fair trial ('rights based category') but would also impinge on the integrity of the justice system ('residual category'). In considering this hypothetical, the majority found that "jury tampering strikes at the heart of the justice system" such that it might necessitate a stay of proceedings.

[129] In Harrison, Justice McLachlin adopted the words of Justice Cronk of the Ontario Court of Appeal, who found that misleading in court testimony from a person in authority directly undermines the integrity of the judicial system and the truth-seeking function of the court.

[130] I have found that the police conduct constituted an abuse of process under both headings. The authorities cited stand for the proposition that the integrity of the justice system cannot be maintained if there is judicial condonation of intentional police deception. The risks cannot be more pronounced than when this occurs during the course of a trial. The first part of the test set out in Babos is amply made out on the facts before me.

[131] The second part of the test requires that I consider alternatives to a stay of proceedings that are capable of remedying the mischief. A mistrial, in the circumstances, would only be an invitation for further prejudice to the accused and the integrity of the justice system.

[132] Another of the remedies at my disposal is a sentence reduction. Although, I could spare Mr. McKee from a conviction by granting him a discharge (perhaps even an absolute discharge) and also reduce the length of the mandatory driving prohibition, a discharge would leave Mr. McKee with a licence suspension under the Highway Traffic Act flowing from my finding of guilt. I am unconvinced that a sentence reduction, especially in light of the licence suspension, is capable of providing sufficient redress for the abuse of process that I have found.

[133] I could also exclude the breath samples. The result, in effect, would be tantamount to a stay of proceedings. The remedies are nearly indistinguishable in the circumstances of this case given that the exclusionary remedy, like a stay, would bring a conclusion to Mr. McKee's prosecution. Arguably, exclusion, along with the resulting acquittal would provide Mr. McKee with a greater sense of finality about the matter.

[134] In R. v. Bellusci, Justice Fish, writing for the majority of the Supreme Court of Canada, restored a stay of proceedings in a circumstance where the accused had been viciously assaulted by prison guards. The trial judge had held that Mr. Bellusci's trial was marred by the reluctance and "sclerotic solidarity" of the testimony of the prison guards. In so doing, at para 31, he referred to nine other cases from across the country where a stay of proceedings was considered a "proportionate remedy for mistreatment suffered at the hands of law enforcement constables".

[135] Mistreatment can be either physical or mental. In the instant case, it was mental and was compounded by the fact that it occurred in the presence of a judicial officer.

[136] I appreciate that a stay of proceedings is rare and is reserved for the clearest of cases because it impairs the Court's truth seeking function. In this case, the exclusion of the breath samples would have the same net effect. I am mindful though that I have already concluded that Constable Pepping's misleading testimony has itself impaired this Court's truth seeking function.

[137] Although I have no uncertainty about the appropriateness of a stay, or exclusion, after considering the first two prongs of the test as set out in Babos, I shall conduct the balancing required in the third prong.

[138] While impaired driving offences undoubtedly lead to carnage on our roadways, I note that the evidence before me is that there was nothing untoward about Mr. McKee's driving. Interestingly, the evidence was that, at the time the offence before me was committed, the OPP had a policy whereby they did not charge persons with a BAC under 100 mg of alcohol in 100 mL of blood.

[139] Justice is not only about results, it is also about how those results are obtained. The public's interest in a trial on the merits in this particular case must yield to the transcendent interest in protecting the public's confidence in the integrity of the justice system.

CONCLUSION

[140] For all of these reasons, a stay of proceedings is the necessary remedy for Constable Pepping's assault upon any reasonably informed person's sense of justice. To the extent that exclusion would achieve the same net result, while providing Mr. McKee with a higher degree of certainty, by way of an acquittal, I have decided, in accordance with the authorities, that it is the most appropriate remedy in the circumstances of this case. The Crown cannot introduce as evidence the samples of breath Mr. McKee provided to the qualified breath technician.

[141] The exclusion of the breath evidence leaves the Crown with no evidence of Mr. McKee's blood alcohol concentration and therefore an acquittal will result.

Released: July 29th, 2020

Signed: Justice Glen S. Donald