Ontario Court of Justice

Date: June 28, 2021

Between:

HER MAJESTY THE QUEEN

— AND —

MARSHALL DAVIDSON

Before: Justice P.K. Burstein

Heard on: May 11 and 13, 2021

Reasons for Judgment released on: June 28, 2021

Counsel: K. Buker, for the Crown T. Balka, for the accused

Overview of the case

[1] At 10:10 p.m. on June 19, 2020, Marshall Davidson was sitting in the living room of his parents’ home with a glass of beer beside him when D.R.P.S. Cst. Elkington arrived at the residence to follow up on a complaint by Mr. Davidson’s girlfriend about a potential domestic assault and about him driving while impaired. After a brief exchange with an unidentified elderly woman standing on the front porch, Cst. Elkington entered the residence to speak with Mr. Davidson.

[2] Cst. Elkington briefly questioned Mr. Davidson about the domestic assault allegation. Based on what she had heard and observed during that exchange, Elkington then directed Davidson to exit the residence for the purpose of a roadside screening test. She did so knowing that she did not have an ASD on hand.

[3] After waiting outside with Mr. Davidson for a few minutes, another D.R.P.S. officer (Cst. Grainger) arrived at the residence with a roadside screening device (“ASD”) to administer the test which Cst. Elkington had demanded. Mr. Davidson registered a “fail”. He was arrested by Cst. Grainger for drinking and driving and placed in the rear of Cst. Grainger’s police vehicle. About 6 minutes later, Cst. Grainger informed Mr. Davidson of his “rights to counsel”.

[4] Mr. Davidson was transported to the nearest D.R.P.S. police station. At approximately 11:30 p.m., he provided two samples of his breath for analysis by an approved instrument (“AI”). Those two analyses determined that his blood-alcohol concentration was well over the legal limit.

[5] Mr. Davidson pleaded “not guilty” at his trial before me. His primary defence to the charge was that the AI breath test evidence was obtained after the police had violated his ss. 8 and 10(b) Charter rights and, thus, should be excluded pursuant to s. 24(2) of the Charter. In addition, at the end of the trial, counsel for Mr. Davidson contended that the viva voce evidence of Cst. Elkington about the times the two breath tests were conducted impugned the statements she had recorded in the Certificate of Qualified Technician about those times and so the Crown had failed to adequately prove that the tests were taken “at least 15 minutes apart”, as required to engage the necessary evidentiary presumption in s. 320.31 of the Code.

Summary of the evidence

[6] Rachel Case, Mr. Davidson’s girlfriend, testified at trial. In March of 2020, they had started living together in a townhouse in Whitby. On the night of June 19, 2020, she called the police to report that the two of them had gotten into a heated argument and that Mr. Davidson had left the townhouse after having consumed alcohol. She believed that he was going to his mom’s house at 815 Annes Street. According to Ms Case, Mr. Davidson used to live there and would still stay there on occasion.

[7] On the night of June 19, 2020, Cst. Best was on duty in an unmarked cruiser in the area of Annes Street. He observed Mr. Davidson’s silver Jeep proceed through an intersection prior to the traffic light turning green. He followed it into the driveway of 815 Annes Street. It was just after 10:00 p.m. After checking Mr. Davidson’s licence, ownership and insurance, Cst. Best informally cautioned him in relation to the traffic offence. Mr. Davidson remarked that he “had a bad night and [had] snapped”. Cst. Best did not observe anything which led him to believe that Mr. Davidson’s ability to drive may have been impaired by alcohol. Mr. Davidson was walking towards the front entrance of the house as Cst. Best departed 815 Annes Street.

[8] Cst. Elkington responded to a police dispatch call that emerged from the report made by Ms Case on the night of June 19, 2020. Elkington arrived in her fully marked police cruiser at 815 Annes Street at 10:09 p.m. Cst. Best was no longer there. As she pulled up to the house, Elkington saw a vehicle parked in the driveway matching the one referred to in the dispatch call. There was an older woman standing on the front porch of the house. Elkington walked up the porch stairs and had a brief exchange with the woman. Elkington learned that the owner of the vehicle was inside the house. At trial, Elkington was unable to identify who the woman was and had no notes to assist in refreshing her memory. Elkington testified that she had assumed the woman was Mr. Davidson’s mother and was the owner of the home. Elkington testified that the woman on the porch invited her to enter the home to speak with Mr. Davidson.

[9] Upon entering the home, Elkington saw Mr. Davidson in the living room. He was either sitting or standing next to a table which had a glass of beer filled near to the top. She asked him about the domestic incident involving Ms Case. Mr. Davidson said that he had been drinking and had then got into a fight with Ms Case. He said that he had not injured her. While speaking with Mr. Davidson, Elkington noticed an odour of alcohol emanating from his breath. Based on her observations and the information received, Elkington formed a belief that Mr. Davidson had alcohol in his system and so decided to have him exit the house for the purpose of providing a roadside screening sample. In doing so, Elkington was aware that she did not have an ASD in her cruiser. She believed that another officer was on route to 815 Annes Street with an ASD, but did not know how long it would be before he arrived. Once Mr. Davidson and Elkington were outside on the driveway, Elkington formally read the s. 320.27 roadside screening demand. It was 10:11 p.m.

[10] Cst. Grainger arrived on scene at 10:13 p.m. with an ASD. Mr. Davidson was still standing on the driveway with Cst. Elkington. Based on the information provided in the police dispatch call, Grainger formed the belief that Mr. Davidson had alcohol in his system and so made his own s. 320.27 demand for a roadside screening sample. Although she was standing right there, Elkington said nothing to Grainger about having seen Mr. Davidson in the living room beside the glass of beer on the table. Grainger acknowledged that, had he been told that Mr. Davidson may have recently consumed alcohol, he would have waited 10-15 minutes before administering the test. Instead, Grainger administered the roadside screening test at 10:17 p.m., within minutes of receiving custody of Mr. Davidson from Elkington.

[11] Mr. Davidson registered a “fail” on the ASD. Based on that result, Grainger formed a belief that Mr. Davidson’s blood alcohol concentration was over the legal limit and, therefore, arrested him at 10:17 p.m. He was handcuffed and escorted back to Grainger’s cruiser. After a brief search, Mr. Davidson was placed in the rear of the cruiser. PC Grainger answered some of Mr. Davidson’s questions and then interrupted Mr. Davidson to read him the “rights to counsel”. That was at 10:24 p.m.

[12] Mr. Davidson was taken to 18 Division for the AI breath tests. Cst. Elkington served as the qualified breath technician. Nevertheless, at trial, the certificate of qualified technician (“CQT”) was tendered through Cst. Grainger. The CQT shows that Mr. Davidson’s blood-alcohol concentration was 220 mgs of alcohol in 100 ml of blood at 11:23 p.m. and at 11:48 p.m.; that is, above the legal limit within two hours of the time he was seen by Cst. Best operating the Jeep. At trial, Cst. Elkington testified that the breath tests were conducted at 11:28 p.m. and 11:51 p.m. Apart from the Charter issues raised in relation to the admissibility of the breath test results, Mr. Davidson did not raise any issues about the statutory requirements for admissibility of the CQT when it was tendered by the Crown. The defence also refrained from asking Cst. Elkington any questions about the contents of the CQT when she testified at trial.

Analysis and findings

a. The facts

[13] Except for significant aspects of Cst. Elkington’s testimony which I will address in more detail below, I generally accept the evidence of all the witnesses who testified at trial. Apart from the portions of her testimony which I expressly do not accept, Cst. Elkington’s evidence was otherwise reliable and credible. As for the two other police witnesses and the two civilian witnesses, they were all fair and candid when testifying, conceding what they did not know or could not remember and admitting to points which may have seemingly cast them in a negative light. I accept the entirety of what those other four witnesses said at trial.

[14] I do not accept Cst. Elkington’s testimony about her conversation with Mrs. Davidson on the porch of 815 Annes Street. To the extent that they differ, I accept Mrs. Davidson’s version of that exchange. Mrs. Davidson’s version was clear and coherent and was consistent in both examination and cross-examination. According to Mrs. Davidson, Cst. Elkington did not ask who she was or what relationship she had to the house, nor did Cst. Elkington say anything about investigating Mr. Davidson for any particular offence, let alone a drinking and driving offence. Although Mrs. Davidson let Cst. Elkington inside the house, she did so without being told anything more than Cst. Elkington wanted to talk to the owner of the Jeep parked in the driveway. By contrast, Cst. Elkington’s description of what was said or not said during the exchange with Mrs. Davidson varied as between examination-in-chief and cross-examination. For example, despite having initially testified to only having told Mrs. Davidson about a domestic assault investigation, in cross-examination Cst. Elkington claimed that she may have said something to Mrs. Davidson about entering the house to investigate both impaired driving and domestic assault.

[15] Surprisingly, Cst. Elkington had nothing in her memo book or in her typed report memorializing the details of what she had said to Mrs. Davidson (or what Mrs. Davidson had said to her). Given that the exchange with Mrs. Davidson was the basis for Cst. Elkington believing that she had authority to enter the dwelling house, it was very disconcerting that Cst. Elkington failed to make any meaningful notes memorializing her exchange with Mrs. Davidson. As I have explained in R. v. Acheampong, [2018] O.J. No. 5990, the police have a constitutional obligation to make adequate contemporaneous notes of the basis for exercising significantly intrusive warrantless powers. The absence of any contemporaneous notes about Cst. Elkington’s exchange with Mrs. Davidson prior to Elkington entering the house only adds to the serious reservations I had about Elkington’s testimony in that regard.

[16] Having considered all of the evidence on this issue, I am satisfied that:

• prior to entering the residence, Cst. Elkington did not ascertain whether Mrs. Davidson had any authority to grant permission to enter
• Cst. Elkington said nothing to Mrs. Davidson about the right to refuse entry, and
• Cst. Elkington did not inform Mrs. Davidson that the reason Elkington wanted to enter the home was to investigate Mr. Davidson for impaired driving (and not just a domestic assault).

Put differently, I am satisfied that, after learning Mr. Davidson was inside, Cst. Elkington simply asked Mrs. Davidson if it was okay to go inside and speak with him. I am not satisfied that Mrs. Davidson was told that Cst. Elkington wanted to enter the house to investigate Mr. Davidson for anything.

[17] The evidence also satisfies me that when she later made the roadside screening demand, Cst. Elkington had no idea how long it would be before another officer arrived at the residence with an ASD. While she tried to suggest in her testimony that the reason she had not informed Mr. Davidson of his s. 10(b) Charter rights was because the delay was only a few minutes, the reality was that she had no idea how long the delay would turn out to be at the time when actually made the roadside screening demand. Once again, I will return to this shortcoming in her testimony later in these reasons.

[18] Finally, I am satisfied from Cst. Grainger’s evidence that there was a 7-minute delay from the time of the arrest to the time when he informed Mr. Davidson of his s. 10(b) rights. While I accept that Cst. Grainger delayed informing Mr. Davidson of his s. 10(b) rights because he was trying to first help Mr. Davidson calm down by answering some of his questions, I am also satisfied that less than 2 minutes of that delay – the time required for a brief pat-down search and placing of handcuffs -- was occasioned by officer safety concerns.

b. Mr. Davidson’s evidentiary challenge to whether the statements in the CQT prove that the two breath tests were taken “at least 15 minutes” apart

[19] Before turning to the relevant legal principles and their application to the facts of this case, I can dispense with the defence argument about the alleged variation in the evidence about the times of the evidentiary breath tests. I note at the outset that the defence did not raise this issue at the time that the Crown tendered the CQT into evidence: see R. v. Gundy, 2008 ONCA 284. However, in light of the way the defence has framed the issue, they need not have done so at that point in the trial. The defence has not contended that the viva voce evidence of Cst. Elkington calls into question any of the preconditions for admissibility of the CQT, but rather argues that the inconsistency between her testimony and the times recorded on the CQT raises a reasonable doubt as to whether the two breath tests were taken at least 15 minutes apart and, thus, prevents the Crown from relying upon the presumption in s. 320.31 of the Code that the test results were accurate.

[20] According to s. 320.32, the statements in a CQT are “evidence” of the statements contained therein. One of those “statements” relates to the times that the breath tests were taken. In the absence of any other evidence, those “statements” are typically sufficient to discharge the Crown’s burden of proving one of the preconditions set out in s. 320.31 for engagement of the conclusory presumption of accuracy; namely, that the two tests were taken at least 15 minutes apart.

[21] In the circumstance of this case, I cannot give effect to the defence challenge. Leaving aside the issue of the appropriate standard of proof for the “timing” element of the s. 320.31 presumption, the apparent conflict between Cst. Elkington’s viva voce evidence and the statements in the CQT is not enough to discredit the totality of the Crown’s evidence that Mr. Davidson’s two breath tests were taken “at least 15 minutes apart”. First, it is of considerable significance in this case that the defence did not confront Cst. Elkington with this apparent discrepancy when she testified at trial. While the discrepancy is certainly concerning, the “Rule in Browne v. Dunn” leads me to discount its potential significance given that Cst. Elkington was not offered the opportunity to explain that discrepancy. Second, and more importantly, while it is correct to point out that the times given by Cst. Elkington in her viva voce testimony are different from the times she recorded on the CQT, both sets of times differ by more than 20 minutes. The issue in relation to the precondition at issue in s. 320.31 is not the actual time that the two breath tests were administered but whether they were administered at least 15 minutes apart. Taken as a whole, the evidence before me proves (even to a standard of proof beyond a reasonable doubt) that the two tests were taken at least 20 minutes apart. Subject to the Charter issues raised by the defence, the Crown has discharged its burden of proving the preconditions necessary for engagement of the s. 320.31 presumption.

c. Did Cst. Elkington violate Mr. Davidson’s s. 8 Charter rights by entering the home without lawful authority?

[22] Mr. Davidson contends that Cst. Elkington violated his s. 8 Charter rights by entering 815 Annes Street without lawful authority. In response, the Crown primarily contends that Mr. Davidson has no right to complain about the manner by which Cst. Elkington entered the home. In the alternative, the Crown argues that Elkington honestly and reasonably believed that she had obtained valid permission from someone with authority to give it after speaking to the elderly woman on the front porch.

[23] The issue of whether Mr. Davidson has “standing” to complain about Cst. Elkington’s entry into the residence turns on whether the evidence shows that he had a “reasonable expectation of privacy” in that dwelling house: R. v. Cole, 2012 SCC 53 at paras. 34 and 36. Determining whether a person has a reasonable expectation of privacy in a place requires a court to consider the “totality of the circumstances”, including:

(i) whether the accused was present at the time of the search; (ii) whether the accused had possession or control of the property or place searched; (iii) whether the accused owned the property or place; (iv) whether the accused had a history of using the property or item; (v) whether the accused had the ability to regulate access, including the right to admit or exclude others from the place; (vi) whether the accused had a subjective expectation of privacy; and (vii) the objective reasonableness of the expectation.

[24] The seminal case setting out the “totality of the circumstances” approach for determining whether an accused has standing to raise a s. 8 Charter complaint remains R. v. Edwards, [1996] S.C.R. 128. In Edwards, the Supreme Court of Canada ultimately found that the accused was not entitled to lay claim to a s. 8 Charter violation in relation to the police having entered his girlfriend’s apartment. Similar to Mr. Davidson, the accused in Edwards was not a regular resident of the place in question but was only an occasional occupant with permission to come and go as he pleased. Like Mr. Davidson, the accused in Edwards even had his own key to the place. The Supreme Court of Canada characterized him as having been no more than a privileged guest and, thus, not someone who enjoyed a reasonable expectation of privacy in relation to the apartment.

[25] At first glance, the evidence in this case suggests that Mr. Davidson was similarly nothing more than a privileged guest at 815 Annes Street. However, unlike the accused in Edwards, the evidence before me makes clear that Mr. Davidson was entitled to admit others into 815 Annes Street, even when none of the other regular occupants were home. For example, according to Ms Case, he would often bring her over to the house where the two of them would access the food in the kitchen, even when no one else was home. Indeed, the evidence leads me to conclude that on the night of June 19, 2020, Mr. Davidson arrived at 815 Annes Street, entered on his own and took a seat in the living room area with a beer that he had poured for himself. He was sitting alone in the living room enjoying that beer until Cst. Elkington arrived. That behaviour exhibits a subjective expectation that he was going to be free of unjustified state intrusion for the rest of the night.

[26] In addition, unlike the accused in Edwards, Mr. Davidson had a history of being a full-time resident of 815 Annes Street. Subject to the recent temporary arrangements made to accommodate Mrs. Davidson, whenever Mr. Davidson would stay over at 815 Annes Street he would occupy the same room that he had occupied as a full-time resident there. For the most part, the décor of that room remained the same as it was when Mr. Davidson had been living there full time. Even after taking up residence on his own (and then later with Ms Case), Mr. Davidson continued to keep some of his clothes and toiletries in his living space at 815 Annes Street. While Mr. Davidson was no longer a full-time resident of 815 Annes Street, there was no evidence at trial suggesting that the other full-time residents of 815 Annes Street had revoked any of the rights and privileges which Mr. Davidson enjoyed as a full-time resident. In the absence of such evidence, the fact that he still had a key on June 19, 2020 suggests that Mr. Davidson continued to enjoy the same rights which he had historically enjoyed as a full-time resident of 815 Annes Street. By contrast, although the accused in Edwards had a key, he had never acquired the rights of a full-time resident – his access had always been that of a guest.

[27] While ownership of the place is a relevant factor in deciding whether a person has a reasonable expectation of privacy for the purposes of s. 8, it is not determinative: see R. v. Edwards, supra and R. v. Cole, 2012 SCC 53. Section 8 of the Charter protects privacy rights, not property rights. Appellate courts have recognized that people may enjoy reasonable expectations of privacy in places they do not own, such as hotel rooms and bus station lockers: see R. v. Buhay, 2003 SCC 30. Equally, appellate courts have held that “control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest”: see R. v. Marakah, 2017 SCC 59 at para. 38. In the particular circumstances of this case, the fact that Mr. Davidson did not own, nor have a controlling interest in, 815 Annes Street is not fatal to his s. 8 standing. Although it was not his principal residence on June 19, 2020, 815 Annes Street remained a second home for Mr. Davidson – a safe haven which he was entitled to access any time in his sole discretion. I am satisfied from the evidence of Mr. Davidson’s historical and current use of 815 Annes Street that on June 19, 2020 he had a reasonable expectation of privacy for the purposes of s. 8 of the Charter.

[28] In view of my finding that Mr. Davidson has standing to raise a s. 8 complaint to Cst. Elkington’s actions, I turn now to the issue of whether the Crown has established that Elkington’s warrantless entry to 815 Annes Street was constitutionally reasonable. According to the Crown, Cst. Elkington’s authority for entering the home was the permission granted to her by Mrs. Davidson.

[29] There remains some debate as to whether a co-resident can provide the police with constitutionally adequate authority for entering a home to investigate another resident. Most recently, in R. v. Reeves, 2018 SCC 56, the Supreme Court of Canada expressly declined to decide that issue. Given the evidence in this case, I need not resolve that legal debate. As noted above, even assuming that Mrs. Davidson was capable of providing constitutional authority for Cst. Elkington to enter the house to investigate Mr. Davidson, the Crown has not discharged its burden of proving that Cst. Elkington obtained constitutionally valid consent from Mrs. Davidson. Indeed, the evidence satisfies me that Cst. Elkington did not obtain constitutionally valid permission from Mrs. Davidson to enter the home.

[30] When the police seek to rely on a person’s consent as authority for a warrantless search or seizure, the police must make sure that the person first understands (1) the purpose of the proposed privacy intrusion and (2) the fact that the person has an absolute right to withhold consent. In this case, apart from her abject failure to first ascertain whether Mrs. Davidson had authority to permit the police to enter 815 Annes Street, the evidence shows that Cst. Elkington did not tell her that the purpose of entering the home was to investigate Mr. Davidson for impaired driving nor that Mrs. Davidson could refuse Elkington permission to enter. Any “permission” granted by Mrs. Davidson fell well short of the standard required for a constitutionally valid consent. I am satisfied that Cst. Elkington’s entry to the 815 Annes Street home violated Mr. Davidson’s s. 8 Charter rights.

d. Did Cst. Elkington violate Mr. Davidson’s ss. 8 and/or 10(b) Charter rights in relation to the approved screening device?

[31] The issue of whether Cst. Elkington violated Mr. Davidson’s s. 10(b) Charter rights in relation to the ASD demand turns on whether that demand was in compliance with s. 320.27 of the Code. If so, then that provision provides justification for Cst. Elkington having failed to inform Mr. Davidson of his s. 10(b) rights immediately upon having detained him for the purpose of making that ASD demand.

[32] Section 320.27(1)(b) of the Code authorizes an officer to demand that a person “immediately” provide samples of their breath for the purposes of analysis by an approved roadside screening device. In this case, Cst. Elkington made the demand knowing that there would be some delay in administering the roadside screening test because she did not have such a device in her possession. Although she knew that another officer was on the way to 815 Annes Street, she did not know how much delay would ensue at the time that she made the demand. Indeed, when asked about this by the Crown in chief, Cst. Elkington focused only on how soon Cst. Grainger actually arrived. She avoided answering the question of how long a delay she had thought there would be at the time she made the s. 320.27 demand. For the reasons set out above, in light of her testimony on this issue, I was left with no credible evidence as to whether she believed the device would arrive without unreasonable delay at the time that she made the demand.

[33] In the circumstances of this case, I find that Cst. Elkington also violated Mr. Davidson’s s. 10(b) rights by detaining him for the purpose of an invalid s. 320.27 roadside screening demand without having immediately informed him of his right to call a lawyer.

[34] On the facts of this case, I also find that Cst. Elkington’s failure to tell Cst. Grainger about the glass of beer she saw beside Mr. Davidson was a constitutionally significant omission, albeit not one that may have given rise to a s. 8 violation. As a qualified breath technician, Cst. Elkington knew the potential significance of recent alcohol consumption to the reliability of the roadside screening test. The concern arising with respect to the glass of beer was about the potential presence of mouth alcohol and not whether that potential consumption could have accounted for Mr. Davidson’s blood-alcohol concentration. In other words, Elkington ought to have recognized that even if Mr. Davidson had recently sipped from the glass that could impact the reliability of the screening test result. She had an obligation to inform Cst. Grainger of her observation once he had decided to make the s. 320.27 demand of Mr. Davidson. For the purposes of deciding this case, I need not decide whether this omission independently amounts to a s. 8 Charter violation as I would not have excluded the AI breath test results on this basis alone. As I will explain more fully below, it is an important factor in deciding whether the other Charter violations require the exclusion of that evidence.

e. Did Cst. Grainger violate Mr. Davidson’s s. 10(b) Charter rights by waiting 7 minutes before informing him of those rights?

[35] Once a person is placed under arrest, s. 10(b) of the Charter requires the police to inform them of their right to consult with counsel “without delay”. In R. v. Suberu 2009 SCC 33 (at para. 42), the Supreme Court of Canada held that:

…In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.”

[36] Since Suberu, many courts in Ontario have strictly applied the immediacy requirement for s. 10(b)’s informational component. Those courts have held that delays in the range of only 5 to 9 minutes are constitutionally unjustified: see discussion in R. v. Davis, 2021 ONSC 3305. While the police may be entitled to delay reading an arrestee the rights to counsel until the arrestee has been safely detained in the rear of a cruiser, delays occasioned by other investigative requirements have generally been rejected as acceptable constitutional excuses.

[37] In this case, the evidence suggests that Cst. Grainger delayed 7 minutes before informing Mr. Davidson of his s. 10(b) rights following his arrest at 10:17 p.m. It is a bit unclear on the evidence before me as to when Cst. Grainger actually placed Mr. Davidson in the rear of the cruiser after having taken the time to handcuff him and to search him. Based on Grainger’s testimony, I infer that those actions took approximately one minute, and no more than two. Accordingly, there was a 5- to 6-minute delay in Cst. Grainger informing Mr. Davidson of the s. 10(b) rights to counsel following the arrest. In light of the recent summary conviction appeal decision in Davis, I am prepared to find that this brief delay also amounted to a breach of Mr. Davidson’s Charter rights.

f. Should the breath test results be excluded pursuant to s. 24(2) of the Charter as a consequence of any of the Charter violations?

[38] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, the Supreme Court of Canada held that the fate of evidence obtained following one or more Charter breaches depends on whether it is shown that admission of that evidence would likely bring the administration of justice into disrepute. The burden remains on the accused seeking an exclusionary remedy to satisfy the trial judge that the administration of justice could be brought into disrepute having regard to the following three factors:

i) The seriousness of the Charter-infringing state conduct; ii) The impact of the breach on the Charter-protected interests of the accused; and iii) The societal interest in an adjudication of the case on its merits.

i) Seriousness of the Charter-infringing state conduct

[39] I begin by noting that, in the circumstances of this case, the s. 10(b) violation arising from Cst. Grainger’s 5- or 6-minute delay in advising Mr. Davidson of his rights to counsel bordered on being trivial. The evidence made clear that the reason for the delay was Cst. Grainger’s belief that it would be better for him to first answer some of Mr. Davidson’s questions about what was going to happen rather than him launching into a formalistic reading of the rights to counsel. While that may not be constitutionally permissible under s. 10(b), the motivation for Cst. Grainger’s brief delay was to enhance Mr. Davidson’s understanding of what Grainger was about to read to him concerning the rights to counsel. In other words, the breach was not occasioned by any lack of respect for the Charter right but rather by the officer’s attempt to promote one of the underlying purposes of the s. 10(b) rights; namely, that the detainee appreciates their right to speak to a lawyer.

[40] Moreover, given their distinct roles in this investigation, Cst. Grainger’s s. 10(b) shortcoming does not bear upon the appropriate characterization of Cst. Elkington’s Charter violations nor does Grainger’s conduct raise any concerns about some larger systemic failure on the part of the D.R.P.S. to respect the Charter. There was no evidence before me that Cst. Grainger’s delay in informing Mr. Davidson of the rights to counsel following arrest reflected any systemic problem with local law enforcement.

[41] By contrast, the evidence at trial does satisfy me that Cst. Elkington’s Charter violations demonstrate a pattern of disregard for her constitutional obligations. Her unconstitutional entry into the home, her unjustified detention of Mr. Davidson pursuant to an invalid ASD demand and her failure to tell Cst. Grainger about Mr. Davidson’s potential recent alcohol consumption all occurred in the span of less than 10 minutes. On their own, each was a serious constitutional failing. Taken together, however, this series of Charter violations persuaded me that Cst. Elkington had little regard for the Charter and its requirements.

[42] More particularly, I reject any suggestion that Cst. Elkington entered the home under a “good faith” belief that she had been granted permission by a resident with authority to do so. At the risk of being overly repetitive, the evidence only supports the opposite conclusion; namely, that Elkington entered without any concern for whether she had constitutionally valid permission to do so. Elkington could not recall whether she asked the woman on the porch for her name or who she was. Elkington could not recall whether or not she told the woman that she wanted to enter to investigate Mr. Davidson for impaired driving. Elkington could not recall whether she made sure the woman knew that the woman had the right to refuse entry. Elkington had no notes in relation to any of those points. Far from acting in “good faith”, the evidence persuades me that Cst. Elkington acted with reckless disregard for her Charter obligation to secure lawful authority before entering a private dwelling.

[43] Cst. Elkington’s testimony at trial aggravated the seriousness of her Charter violations; see R. v. Pino, 2016 ONCA 389 at para. 103 and R. v. Harrison, 2009 SCC 34 at para. 26. As I have explained above, I found her testimony about the events in question to be very troubling. While I am not prepared to say that she deliberately misled the court, she exhibited an obvious lack of concern when she was unable to provide the court with a clear and comprehensive account of the constitutionally relevant details, such as her exchange with Mrs. Davidson prior to entering the house. I was also troubled by Cst. Elkington’s obvious attempt to obfuscate when asked how long she thought it was going to take for another officer to arrive on scene when she decided to make the ASD demand. Her inability to provide adequate responses on these key factual issues was due to her failure to make adequate contemporaneous notes in those regards. In the circumstances of this case, Cst. Elkington’s failure to make those notes, and the consequent negative impact that had on the credibility and reliability of her testimony, added to the seriousness of her Charter violations. Overall, Elkington’s testimony on these issues fortified my conclusion that she has little regard for the importance of the rights enshrined in ss. 8 and 10(b) of the Charter.

ii) Significance of the impact of the Charter-infringing state conduct

[44] While it is likely obvious from my comments above, I find that Cst. Grainger’s s. 10(b) violation had no real impact on Mr. Davidson. This violation did not lead to the discovery of any information which furthered the police investigation. The delay, though constitutionally significant, had no significant impact on Mr. Davidson’s Charter-protected interests. There is no evidence that Cst. Grainger’s brief delay in informing Mr. Davidson of his right to counsel at the scene in any way impacted Mr. Davidson’s ability to exercise his s. 10(b) rights when later afforded the opportunity to do so at the police station.

[45] Turning to Cst. Elkington’s Charter violations, I similarly find that her earlier violation of Mr. Davidson’s s. 10(b) rights had little impact on his Charter-protected interests. While her invalid s. 320.27 demand did not justify overriding the s. 10(b) rights which otherwise arise immediately upon detention, Cst. Grainger’s subsequent s. 320.27 demand did provide such justification. Accordingly, because Grainger made his valid s. 320.27 demand only a few minutes after Elkington had made her invalid demand, there is no realistic possibility on the evidence before me that Mr. Davidson would have been able to successfully exercise his s. 10(b) rights in those first few minutes even if Elkington had properly informed him of them immediately upon detention. Moreover, as with Cst. Grainger’s breach of Mr. Davidson’s s. 10(b) rights, nothing of investigative significance was obtained as a consequence of Cst. Elkington’s short-lived s. 10(b) violation.

[46] By contrast, Cst. Elkington’s unconstitutional entry into the home did have a significant impact on Mr. Davidson’s Charter-protected interests. Unlike the typical drinking and driving investigation where the privacy interests at stake relate to the seizure of the motorist’s breath samples, Elkington’s violation of Mr. Davidson’s s. 8 rights involved an unauthorized intrusion into his family home. Mr. Davidson had gone to 815 Annes Street to retreat from the turmoil of the earlier argument with Ms Case. According to Cst. Best, when Mr. Davidson first arrived at the house, he was very upset, but did not exhibit any signs of impairment. By the time that Cst. Elkington entered the home, Mr. Davidson had taken up a spot in the living room and was ready to drink a glass of beer. Mr. Davidson was clearly expecting to take up refuge at his family home that night, as he had several times before. Instead, however, as a result of Cst. Elkington’s unconstitutional entry to the home, Mr. Davidson was forced to leave the safe haven offered by his family home and stand out on the driveway awaiting further police investigation.

[47] In this case, Cst. Elkington’s unconstitutional entry to the family home struck at the heart of Mr. Davidson’s right to be “left alone by government”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 160. It was Cst. Elkington’s unconstitutional entry to the family home that allowed her to locate Mr. Davidson and to extract him from inside the house so that Cst. Grainger would be in a position to make the ASD demand and then administer the test to Mr. Davidson. On the evidence before me I am satisfied that, but for Cst. Elkington’s unlawful entry to the home, Cst. Grainger would never have arrested Mr. Davidson and, thus, would never have taken him to the police station for the breath tests. Cst. Elkington’s s. 8 violation had a significant impact on Mr. Davidson’s Charter-protected interests, that is, well beyond the minimal impact on an accused’s privacy interests caused by taking AI breath samples or by arresting a motorist at the roadside: see R. v. Jennings, 2018 ONCA 260.

iii. Society’s interest in the adjudication of the case on its merits

[48] The third factor – society’s interest in an adjudication of the case on the merits – was explained by the Supreme Court of Canada in Grant as follows (at para. 79):

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[49] In the context of prosecution for driving over the legal limit, the reliability and importance of the breath test results almost always weigh in favour of admission.

iv. The final s. 24(2) balancing

[50] In sum, I have found that the s. 8 violation in this case was serious and that it had a significant impact on the privacy interests involved. While admission of the breath test results would better serve the truth-seeking function of the trial, balanced together, the three sets of factors weigh in favour of that evidence being excluded: see R. v. McGuffie, 2016 ONCA 365.

Conclusion

[51] In view of the breath test results being excluded, there is no admissible evidence showing that Mr. Davidson’s blood-alcohol concentration was over the legal limit at the relevant time. Accordingly, Mr. Davidson is found “not guilty” of that charge.

Released: June 28, 2021 Signed: Justice P.K. Burstein