ONTARIO COURT OF JUSTICE DATE: 2023 01 16 COURT FILE No.: Central West Region 998 19-N5104

BETWEEN:

HIS MAJESTY THE KING

— AND —

Gregory Williams

Before: Justice J. De Filippis

Heard on: September 29 & November 14, 2022 Reasons for Judgment released on: January 16, 2023

Counsel: Ms. M. Birsan....................................................................................... counsel for the Crown Ms. B. Walker............................................................................... counsel for the defendant

De Filippis, J.:

INTRODUCTION

[1] The defendant was charged with operating a motor vehicle with a blood alcohol content that exceeded the legal limit, contrary to s. 320.14(1) (b) of the Criminal Code. It is not in dispute that the Crown evidence proves guilt beyond a reasonable doubt. However, the Defence challenges the admissibility of that evidence and seeks a stay of proceedings. It is claimed that the police infringed the defendant’s rights as guaranteed by sections 9 and 10(b) of the Charter of Rights and Freedoms.

[2] Specifically, it is alleged that the defendant was not given the opportunity to contact counsel of choice and that he was held in custody too long. These claims are discussed in written submissions filed by the parties. In oral argument, the Defence added a claim; namely, that the approved screening device demand was not made immediately.

[3] I find that the Charter challenge fails.

EVIDENCE

[4] October 14, 2019, Police Constable Bowman was conducting speed enforcement in the Regional Municipality of Niagara. The posted speed limit on the street in question is 50 km/hour. At 9:38 pm he obtained a reading from his radar device that a motor vehicle was travelling at 111 km/hour. At 9:49 PM, he pulled the car over on Stanley Road in Niagara Falls. It was a 2013 Volkswagen Jetta registered to the defendant, Gregory Williams. The defendant was the driver and sole occupant of the car.

[5] When PC Bowman showed the defendant the radar reading, the latter stated he had been at a family gathering and asked the officer to give him the speeding ticket so he could leave. PC Bowman testified that he smelled the odour of alcohol from within the vehicle and the defendant. The officer went to his cruiser to query the defendant and called for an approved screening device (ASD) to be brought to the scene. The officer returned to the defendant’s motor vehicle and asked if he had consumed alcohol. The defendant replied that he had had two beers and was not drunk. Soon after, at 9:58 PM, another officer arrived with the ASD and PC Bowman asked the defendant to exit the motor vehicle. He observed that he did so slowly and was unsteady on his feet, swaying back and forth. He emitted a strong odour of alcohol. At 10 PM, the defendant was subjected to an ASD demand. The defendant understood the demand and asked what would happen if he refused. After the officer explained the charge of refusal to comply, the defendant provided a suitable sample of his breath. He registered a “fail” on the ASD and was arrested, at 10:04 PM, for the present offence. He was placed in the police cruiser and a tow truck was called.

[6] At 10:10 pm, PC Bowman advised the defendant of his right to counsel, cautioned him, and made a breath demand, using standard wording from his police book. As such, the right to counsel included information about free legal advice from duty counsel. The defendant understood what was said to him and did not request the opportunity to talk to a lawyer.

[7] The defendant was transported to the police station in Niagara Falls, arriving at 10:26 PM. The Sergeant in charge of the cells informed him of the right to counsel and the defendant asked for his cousin to obtain the name of a lawyer. PC Bowman contacted the cousin and was given the name of George Walker. He called the number given for Mr. Walker at 10:51 and 10:53 PM. At 11:11 PM, 18 minutes after the second telephone call to Mr. Walker, the officer told the defendant that the lawyer had not called back and that he believed he had retired. At 11:13 PM, PC Bowman contacted duty counsel and the defendant spoke to that person in private.

[8] At 11:39 PM, the defendant was taken to an office for the purpose of providing breath samples. It is not disputed that a qualified intoxilyzer technician, using an approved instrument in proper working order, obtained two suitable readings from the defendant; the first, at 11:48 pm and the second at 12:11 am, both revealed a blood alcohol level of 238 milligrams in 100 milliliters of blood, well over the legal limit. The Certificate of a Qualified Breath Technician was received in evidence, subject to the Charter motions.

[9] PC Bowman was not involved in the release of the defendant and cannot say when that happened. He testified that the release of detainees is handled by the cell Sergeant. PC Bowman had no further dealings with the defendant after serving him with the Certificate with respect to the breath tests.

[10] Cross-examination of PC Bowman focused on whether he had complied with section 10(b) of the Charter. The officer detected the odour of alcohol from the defendant’s breath when he first spoke to him about speeding. When the officer returned to his cruiser to make the usual inquiries about the motor vehicle plate, he also requested that an ASD be brought to the scene. He confirmed he did so because he suspected the defendant might be impaired. He did not tell the defendant about his suspicion. He did not advise him of the right to counsel before making the ASD demand or when the defendant asked what would happen if he refused to comply. The officer explained he could be charged for refusal and the test was conducted, resulting in an arrest for the present charge. At this point, the defendant was advised of the right to counsel. He did not assert that right at the roadside. PC Bowman confirmed that the defendant was in possession of a cell phone.

[11] Video excerpts from the appearance by the defendant before the cell Sergeant show that the defendant stated he did not know a lawyer, but that his cousin could provide the name of one. The cell Sergeant replied that the cousin would be contacted, and that the defendant could call a different lawyer or duty counsel if he changed his mind. PC Bowman testified that after unsuccessfully contacting Mr. Walker, he did not contact the cousin again for the name of another lawyer and he did not provide the defendant with a list of lawyers. Instead, he asked the defendant if he wished to speak to duty counsel and, receiving an affirmative response, made those arrangements.

[12] In re-direct examination, PC Bowman testified that he had telephoned Mr. Walker both at home and his office. After this contact failed, the defendant did not ask for information about other lawyers.

[13] PC Ogbonwaneten is the breath technician in this matter. He testified that he was the one who brought the ASD to the roadside in response to PC Bowman’s request. Before taking the defendant’s breath samples at the police station, the officer confirmed that the defendant had spoken to duty counsel. He conceded that he did not ask the defendant if he was satisfied with the advice received. His dealings with the defendant ended at 12:15 AM, after which he prepared his Certificate and provided it to PC Bowman.

[14] Mr. Matthew Dick is the defendant’s cousin. He confirmed that he was called by the police on the evening in question and provided the name and telephone number for Mr. George Walker. He testified that had he been asked for the name of another lawyer he would have given Mr. Jeff Root [another local lawyer].

[15] Ms. Olivia Harrison is the defendant’s partner. She was called by the defendant, at about 10 AM, and told he had been arrested. At 10:45 PM, she telephoned the police station to inquire about the defendant and left her name and number. Ms. Harrison testified that around midnight an officer called her back to advise she could pick up her partner. She drove to the police station and reported to the reception desk. She was told to wait in a particular area of the parking lot. After waiting for some time, she returned to the reception desk to ensure she was waiting in the correct area. Ms. Harrison was told to go back there and wait until defendant was released. After two hours she again when to the reception desk and inquired after the defendant. A different officer told her he had just left the defendant and asked her to return to the parking lot. After 30 minutes, Ms. Harrison received a telephone call from an unknown person in the police station. This person demanded to know where she had been as the defendant had been waiting for some time for his ride home. Ms. Harrison explained that she had been waiting for hours. The person apologized and said, “that should not have happened”. Soon after this conversation, the defendant walked out of the station. Ms. Harrison testified that she waited approximately four hours.

[16] The defendant testified that after being arrested he wanted legal advice but did not know any criminal lawyers. Additional video excerpts from his appearance before the cell Sergeant were introduced in evidence and commented upon by the defendant: After the Sergeant told the defendant his cousin would be contacted he was searched by another officer before being placed in a cell. The defendant appeared to be agitated. He said he did not have a lawyer and did not understand why he was arrested. During this discussion, the officer obtained the name of the defendant’s cousin.

[17] The defendant was later taken from his cell to speak to someone. He testified that he thought he would speak to the lawyer his cousin had identified. The officer said it was duty counsel as Mr. Walker had yet to call back and he “he should take the call while waiting as it can’t hurt”. The defendant added that he does not recall the name “George Walker” being mentioned. After his release, he learned that George Walker had retired and he contacted present counsel, on a referral from a family friend.

[18] The defendant testified that after speaking with duty counsel, he expected to have to provide breath samples and would be released quickly but was held for hours. The defendant said he was not satisfied with advice given; he felt “it was a copout advice” and added that, “nobody asked me if I was satisfied with it”. The defendant concluded by stating that since his arrest he has obtained legal advice, now understands rights, and he would have governed himself differently.

[19] In cross-examination, the defendant conceded he had been drinking alcohol, but could not say much. He could not confirm he was travelling at 111 km/hr in a 50 zone. He could not recall being shown the radar device. He could not agree that he said he understood his right to counsel and does not remember if he asked for an opportunity to talk to counsel at the roadside. He confirmed that at the police station he asked that his cousin be called for a lawyer. The following exchange occurred:

Q: The police called your cousin, correct? A: I didn’t witness that. Q: Do you know if they did? A: yes [they did call].

[20] The defendant denies he was told that George Walker was not available and added that “they should have seen if someone else was available”. He denies he asked for duty counsel but later conceded that he agreed to the suggestion he speak to duty counsel while waiting for the lawyer recommended by his cousin to call back. The defendant explained that he did not ask for a list of lawyers because he relied on his cousin’s suggestion.

[21] The defendant testified that although the breath technician confirmed that he had spoken to duty counsel, the defendant said it was “a lack of advice”. When Crown counsel suggested the record of the breath tests does not reflect this statement, the defendant agreed that he did not say anything about the advice given to him.

[22] Two documents were put to the defendant about the time of his release. The Certificate shows the final sample was taken at 12:11 AM. The Promise to Appear shows that he was released at 2:42 AM. The defendant testified that he cannot confirm that the latter document means he was actually released at the time noted therein.

[23] The parties agree that although Mr. George Walker is now retired, he was practicing law on October 14, 2019 when PC Bowman left two messages at his office. I note that this agreed statement of fact is inconsistent with the testimony of PC Bowen and the defendant.

FINDINGS WITH RESPECT TO CONTENTIOUS ISSUES

[24] I am confident in the credibility and reliability of the officers, Mr. Dick (the defendant’s cousin) and M. Harrison (the defendant’s partner). I have less confidence in the testimony of the defendant. He could not recall much of what happened at the roadside and, when cross-examined, contradicted prior testimony about his knowledge that Mr. Walker had been telephoned by police and whether he had commented on the adequacy of legal advice received.

[25] PC Bowman suspected the defendant was operating a motor vehicle with alcohol in his system as soon as he spoke to him, after causing the vehicle to stop. Eleven minutes later he made the ASD demand. In the interim he returned to his cruiser, “ran the licence plate, and called for the ASD to be brought to the scene. Upon registering a fail with respect to the roadside test, the defendant was arrested and, among other things, advised of his right to a lawyer, in the standard format. The defendant did not request a lawyer at this time. He was in possession of a cell phone. Later, at the police station, the defendant was reminded of his right to lawyer and asked that his cousin be contacted for the purpose of finding one.

[26] The defendant did not know any lawyers to contact. After speaking to the defendant’s cousin, PC Bowman left two messages with Mr. Walker, at 10:51 PM and 10:53 PM, at both home and office. At 11:13 PM, 20 minutes after the second call, the officer suggested that the defendant speak to Duty Counsel while awaiting a response from Mr. Walker. The defendant agreed to this. Mr. Walker never responded to the messages left for him. After speaking with duty counsel, the defendant provided samples of his breath. The police did not make further efforts to put the defendant in touch with another lawyer and the defendant did not request this be done. The defendant testified he was not satisfied with the legal advice given by duty counsel but did not complain about this at the time. The defendant’s cousin would have suggested the name of another local lawyer if called again by the police after the failure of Mr. Walker to respond. There is no evidence about whether that local lawyer would have responded in the late hours of the evening.

[27] The defendant provided his second breath sample at 12:11 AM. He was returned to his cell, while the relevant paperwork was prepared. At 2:42 AM, the defendant was served with that paperwork, including a Promise to Appear. The defendant’s partner arrived at the police station at around midnight. She spoke to two different people at police station inquiring after the defendant and was told to wait by two of them. After the defendant was given his Promise to Appear, a third person in the police station contacted her demanding to know why she had not arrived to pick up the defendant. When Ms. Harrison explained that she had been waiting for hours, that person apologized. Around 4 AM, the defendant came out of the police station and she drove him home.

SUBMISSIONS

[28] The Defence argues that s. 9 of the Charter was infringed because section 498 of the Criminal Code governs this situation and mandates that the defendant should have been released as soon as practicable. It is submitted that there is no reason given for the delay from 12:11 AM, when the last breath sample was taken, and 4 AM, when the defendant was released. This violates s. 498 and constitutes arbitrary detention. Counsel relies, in particular, on R v Kaur 2021 ONCJ 683.

[29] The Defence submits that section 10(b) of the Charter was infringed because the police failed to provide the right to counsel immediately and once invoked by the defendant, did not wait sufficient time for counsel of choice to call back. It is also claimed that the police “steered” the defendant to duty counsel and failed to provide a “Prosper warning”. Counsel relies, in particular, on R v Jhite [2021] No. 2178 (SCJ).

[30] The Crown argues that the requirement in s. 498 that a detainee be released as soon as practicable does not mean as soon as possible but means within a reasonably prompt time given the circumstances; R v Vanderbruggen, [2006] OJ No 1138. The law recognizes that after the taking of breath samples, the police need to prepare and serve the accused with various documents prior to the release, such as a promise to appear, license; R v Jones, [2020] OJ No 4295.

[31] The Crown points out that PC Bowman provided the defendant his rights to counsel upon arrest. At that time the Applicant did not wish to speak to counsel and was advised about duty counsel. Upon arrival to the police station, the defendant advised that he wanted the police to call his cousin for the name of his family’s lawyer. PC Bowman did contact the cousin and discovered that this lawyer was George Walker. PC Bowman first called Mr. Walker at 10:51 PM. The call to duty counsel was not made until 11:13 PM; this 22-minute period would have allowed counsel of choice the opportunity to call back. It is the Crown position that this is sufficient compliance with the requirements of s. 10(b) of the Charter.

[32] The Crown submits that in the case at hand, no Prosper warning was required and there was no steering to duty counsel. The defendant was advised of his rights to counsel, was provided an opportunity to try and reach counsel of choice, and when the defendant was advised counsel of choice was unavailable, he decided to speak with duty counsel.

ANALYSIS

Overholding

[33] Section 498 of the Code governs the police powers of release when dealing with a person arrested without a warrant. This section mandates that a detainee in police custody shall be released as soon as practicable. An officer may only continue to hold a detainee based on one of the exceptions outlined under s. 498(1.1), none of which apply in the present case.

[34] It is not sufficient to establish an overhold breach by simply pointing to the time of the release; R. v. Garrido-Hernandez, 2017 ONSC 2552, [2017] O.J. No. 1961. The question is not when the police ought to have released a detainee, but rather did the police act reasonably in the decision to detain and not release as soon as practicable. This requires a consideration of all the circumstances of the case.

[35] The defendant provided his second breath sample at 12:11 AM. He was served with a Promise to Appear at 2:42 AM. I am confident in assuming that the defendant was releasable, to a sober driver, at this time. I do not have evidence about whether he could have been released earlier. However, it could not have been right after the completion of the breath tests as the police other relevant duties, including preparation and service of the paperwork. In any event, the defendant was not actually released until up to 78 minutes after the Promise to Appear, that is, “around 4 AM”.

[36] It is a reasonable to conclude that there was miscommunication by people within the police station. At least one person at the reception desk knew that the defendant’s partner had arrived before the Promise to Appear was served on him. After this time, another person, unaware Ms. Harrison was waiting, called her to ask why she had not arrived.

[37] Had the defendant been released at 2:42 AM, I would not find non-compliance with s. 498. This is not an unreasonable amount of time after the last breath test, having regard to the remaining duties with respect to releasing a detainee. However, he was not released at this time. He was held for up to 78 more minutes. While it is unfortunate, I am not persuaded that the extent of the delay, or the miscommunication that caused it, rises to the level of “arbitrary detention”.

Right to Counsel

[38] The Supreme Court of Canada has described the purpose of s. 10(b) as ensuring “that a suspect is able to make a choice to speak to the police investigators that is both free and informed.” (R. v. Sinclair, 2010 SCC 35). This purpose is accomplished “by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations”; R. v. Willier, 2010 SCC 37. This means that s. 10(b) imposes certain duties on the police:

1. To inform the detainee of his/her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
2. If the detainee has expressed a desire to exercise this right, to provide the person with a reasonable opportunity to exercise the right;
3. To refrain from eliciting evidence from the detainee until the person has had that opportunity.

[39] When the police assist the detainee in exercising his or her right to counsel, the police are not required to exhaust all reasonable means for a detainee to speak with a lawyer. The test is not whether the police could have done more, but whether the police provided the detainee with the necessary information and assistance to allow the detainee a reasonable opportunity to exercise his or her rights; R v Wilding, 2007 ONCA 853.

Steering to Duty Counsel

[40] The defendant must establish an evidentiary basis for a finding that he was improperly steered to duty counsel. There evidence does not permit me to make such a finding.

[41] When counsel of choice is not immediately available the police are allowed to follow up by asking the detainee is they wish to speak with duty counsel; R v Shen, 2020 ONSC 2629. And R v Persaud, 2020 ONSC 3413. Where the detainee accepts the opportunity to speak with duty counsel after an unsuccessful attempt to contact counsel of choice, no Prosper warning is required. The detainee has not waived their right to counsel, they have chosen to exercise their right to counsel by speaking with duty counsel; Willier, supra. Where the officer leaves a message for counsel of choice and then immediately puts the accused in contact with duty counsel, there is no s.10(b) breach where the accused did not express any concern and there was no indication that the accused did not understand their rights; R v Littleford, [2001] OJ No 2437.

[42] In the present case, the defendant accepted the police suggestion that he speak to duty counsel while waiting for counsel of choice to call back. After he was (erroneously) told that counsel of choice had retired, the defendant did not ask for his cousin to be called again to obtain the name of another lawyer, nor did he complain about the advice he had been given by duty counsel. In these circumstances, I find that a Prosper warning was not required and that s.10(b) was not infringed.

[43] In coming to this conclusion, I feel it is necessary to comment on the suggestion that the police should have determined if the legal advice received by the defendant was adequate and that the failure to do so affects the assessment of the Charter claim. Although the defendant said nothing at the time, he testified at trial that he was not satisfied with the advice given by duty counsel. Defence counsel argued that the failure of the police to ask the defendant if he was satisfied with the legal advice is relevant to the s. 10(b) claim. I disagree. The police have no business inquiring into the sufficiency of legal advice and are in no position to evaluate it. For example, the defendant’s testimony that he was not satisfied with the advice given may simply reflect the fact that he did not like it. It may be that duty counsel reviewed the facts of the arrest and personal circumstances as related by the defendant and concluded that the law required him to provide a breath sample or face a charge of refusal to comply. Or duty counsel may have been negligent. Without details of the solicitor client conversation, I don’t know. Neither would the police know.

Immediately

[44] I adopt the following comments from my colleague in R v Kaur 2021 ONCJ 683:

[121] Section 320.27 of the Code requires that a person comply with a screening demand "immediately." The prior provision required compliance "forthwith." In R. v. Woods, [2005] 2 S.C.R. 205, [2005] S.C.J. No. 42, 2005 SCC 42, the Supreme Court held at paragraph 13 that the "forthwith" requirement in the prior s. 254(2) meant"immediately" or "without delay." The prior case law concerning the "forthwith" requirement applies to the immediacy requirement as the terms are equivalent…..

[123] The section does not explicitly require that the police officer's demand be immediate, rather, it only specifically requires that the motorist comply immediately. However, it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. That is the only interpretation that would be consistent with the limit on the s. 10(b) right to counsel in that section…..

[45] The link between the immediacy requirement and the s. 10(b) analysis was explained by the Court of Appeal for Ontario, in R. v. Quansah, 2012 ONCA 123:

The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, at para. 29. This justifies what would otherwise be sustained as violations of ss. 8, 9 and 10(b) of the Charter. Thus, in interpreting "forthwith", this court must bear in mind Parliament's choice of language and Parliament's intention, which is to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights…

[46] Recently in R v Tadesse 2022 ONSC 5128, the summary conviction appeal court upheld the trial Judge’s finding that a seven-minute delay did not breach s. 10(b) of the Charter. During the seven-minute period the officer walked the accused back to the cruiser, searched the accused incident to arrest, placed the accused in the back of the cruiser, and made preliminary notes about what transpired. In finding that there was no breach the court stated as follows:

In referencing both Suberu and Rossi, it was clear that the trial judge was alive to the immediacy principle set out in Suberu, was satisfied Cst. MacTavish was taking steps to secure his and her safety, that she was diligent in moving towards providing the right to counsel once it was safe to do so, and most importantly, that she was not eliciting incriminating information from the Appellant with respect to the offence.

[47] As noted in Tadesse the word “immediately connotes a more urgent standard than ‘as soon as practicable’ or ‘reasonably promptly’”, but it does not mean “instantaneously”. The immediacy requirement permits an officer to take steps necessary to secure his or her own safety, the safety of the accused and related to the safety of the public. In the present case, I have little information about the 11-minute delay in advising the defendant of his right to counsel.

[48] As soon as PC Bowman spoke to the defendant, after stopping him for speeding, he reasonably suspected that the defendant had alcohol in his system. This entitled him to make an ASD demand. He did not do so at this time. He returned to his cruiser to query the defendant by “running the plate”. This is both prudent and justifiable. The officer was entitled to know something about the detainee before continuing the interaction. It was also prudent to take this opportunity to call for an ASD to be brought to the scene. Although I do not know is how long it took to take these steps, I can safely assume it would be at least several minutes. It may be that the defendant could have been advised of the right to counsel before the ASD arrived and accessed counsel (or his cousin) with his cell phone. Instead, just as the ASD was brought to the scene, PC Bowman asked the defendant if he had consumed alcohol.

[49] The delay in making the demand has not been fully explained. As such, I conclude that the right to counsel was not provided immediately.

THE IMPUGNED EVIDENCE SHOULD NOT BE EXCLUDED

[50] I dismiss all Charter challenges except for the violation of s. 10(b) because the police did not advise the defendant of his right to counsel immediately at the roadside. That requires an explanation for why I conclude that the evidence should nevertheless be admitted.

[51] Section 24(2) provides that, “Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.

[52] In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors must be considered: (1) The seriousness of the Charter-infringing state conduct; (2) The impact of the breach on the Charter-protected interests of the accused; and (3) Society's interest in the adjudication of the case on its merits. The three factors to be considered are fact specific. After considering these factors, a court must then balance the assessments under each line of inquiry in determining whether admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, 2009 SCC 32, 2009 SCC 32 (SCC).

[53] Assessing the seriousness of a breach requires an examination of the police conduct and a determination of where it fits on a spectrum from technical breaches to bad faith violations. In this case, if there was not a significant departure from Charter standards. The 11-minute delay in this case must account for the time needed by the officer to query the defendant. In other words, the delay in providing the right to counsel is probably somewhere between five and eight minutes. In my view, this breach is not serious and supports admission.

[54] The second stage in the analysis is to identify the interests protected by the relevant Charter right and evaluate how seriously the infringement impacted those interests. The right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation. The provision also helps to ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination. In this regard, I am mindful that PC Bowman asked the defendant at the roadside, before the right to counsel was given, if he had consumed alcohol. However, the officer had already formed the reasonable suspicion to make the ASD demand and directed that the device be brought to the scene. It was the fail result on this test that provided him with the grounds to arrest. The defendant’s admission of alcohol consumption played no role in the grounds for the ASD demand. In my opinion, the impact of this breach on the defendant’s interests is not significant and supports admission of the evidence.

[55] The societal interest in an adjudication of a case on the merits will usually support admission of the impugned evidence because this serves the truth-seeking function of the criminal process. That is the case here: The breath samples are highly reliable, minimally intrusive, and vital to the Crown’s case. In the present case the societal interest in an adjudication on the merits also reflects the fact that the evidence establishes that the defendant was driving at more than twice the speed limit with almost three times the permissible blood alcohol level. While I cannot say the extent to which a man with such blood alcohol readings would be impaired, I can rely on the fact that in arriving at the legal limit for Parliament accounted for its impact on impairment – and the defendant was well above that minimum standard.

[56] In applying the balancing test in Grant I conclude that the admission of the evidence obtained in violation of s. 10(b) would not bring the administration of justice into disrepute.

CONCLUSION

[57] As noted at the outset of these reasons, there is no doubt that the Crown evidence proves the offence in question. Since I have decided that the Defence challenge to the admissibility of that evidence fails, I find the defendant guilty.

Released: January 16, 2023 Signed: Justice J. De Filippis