Court and Parties

DATE: April 29, 2024 ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — MICHAEL ARA

For the Crown: R. Verboom For the Defendant: D. Landesman Heard: March 6-8, 2024

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] Mr. Ara is charged with having a blood alcohol concentration equal to or exceeding 80 mg in 100 mL of blood within two hours of ceasing to operate a conveyance.

[2] The charges arise out of a January 11, 2023, R.I.D.E. check culminating in Mr. Ara’s arrest that same evening. Once back at the station, Mr. Ara eventually provided two samples of his breath, registering 133 mg/100 mL of blood and 127 mg/100 mL of blood respectively, according to the certificate of analysis.

[3] Mr. Landesman, on behalf of Mr. Ara, has brought a Charter application alleging that:

(1) The arresting officer (P.C. Fox) did not provide Mr. Ara with timely access to counsel after Mr. Ara signalled his desire to consult counsel, thus violating his section 10(b) Charter rights.

(2) The seizure of Mr. Ara’s breath samples at the police station constituted a s.8 Charter breach because the seizure was not made pursuant to a valid breath demand under s. 320.28 of the Criminal Code.

(3) Insofar as a valid breath demand might have been made by the breath technician officer (P.C. Daryaram), no opportunity to consult counsel was offered to Mr. Ara after that demand and before taking the breath samples, thus breaching Mr. Ara’s s. 10(b) Charter rights.

[4] Mr. Landesman further argues that the numerous Charter violations support the exclusion of the breath sample readings pursuant to s. 24(2) of the Charter.

[5] Ms. Verboom argues that Mr. Ara’s Charter rights were not violated, but if they were, the violations do not support the exclusion of the breath sample readings.

[6] Should the breath samples be admitted, Mr. Landesman argues that the certificate issued by P.C. Daryaram is defective and that the charge should be dismissed. Ms. Verboom disagrees.

B. The Evidence

(a) Introduction

[7] The trial proceeded in a blended fashion. The evidence relevant to the Charter issues consists of police video and audio of their interaction with Mr. Ara, the testimony of P.C. Fox, and the testimony of P.C. Robertson. Mr. Ara did not testify nor call any evidence on the Charter application or the trial proper.

(b) The salient details of Mr. Ara’s interaction with police

[8] Most, but not all, of Mr. Ara’s interactions with police are clearly captured on video or audio, making fact finding relatively straight forward.

[9] Mr. Ara’s interaction with P.C. Robertson is not entirely recorded and requires an assessment of the credibility and reliability of P.C. Robertson’s testimony, which I shall deal with below, after setting out the uncontroversial findings of fact.

[10] Mr. Ara was randomly stopped by P.C. Fox at 22:25:12. This was P.C. Fox’s first impaired driving investigation. He had been a police officer for only eight months.

[11] Mr. Ara complied with P.C. Fox’s demand for a breath sample into an approved screening device. He blew a “fail” and was arrested by P.C. Fox, in the company of P.C. Robertson, at 22:30:30.

[12] Mr. Ara was immediately placed in the back of P.C. Fox’s police cruiser by P.C.’s Fox and Robertson.

[13] P.C. Sean Robertson assisted with the arrest of Mr. Ara. He was at the scene in a mentoring capacity.

[14] According to P.C. Robertson, after Mr. Ara was put in the back seat of the car, and while P.C. Fox was busy, outside at the front of the police car, Mr. Ara asked P.C. Robertson, who was just outside the door to the back seat, what the next step was, and P.C. Robertson responded by telling Mr. Ara that he was required to provide a breath sample at the station. Because P.C. Robertson had not yet received training in the use of a body-worn camera, he did not have one that evening. P.C. Fox was too far away to capture the purported conversation on his body-worn camera. Thus, this purported conversation with Mr. Ara is not recorded at all. If it took place, it took place during the seven seconds during which P.C. Fox’s body-worn camera was out of range.

[15] P.C. Fox read Mr. Ara his rights to counsel at 22:31:36. Mr. Ara responded by telling P.C. Fox that he wanted to speak to a lawyer.

[16] P.C. Fox read Mr. Ara a standard police caution at 22:32:25. He forgot to read Mr. Ara the standard demand for a breath sample into an approved instrument that was contained at the back of his police notebook.

[17] At 22:37 P.C. Fox told Mr. Ara the following:

“We’re going to take you back to the station. You will do more tests into an Approved Instrument that’ll give us the exact number that you register. That will be with a breath technician.”

[18] At around 22:38, after a discussion between Mr. Ara and P.C. Fox about access to counsel, P.C. Fox offered Mr. Ara the opportunity to have a non-private cell phone conversation with duty counsel right there and then while in the back of the police cruiser. Mr. Ara told P.C. Fox that he did not mind the lack of privacy and that he wanted to speak to duty counsel immediately.

[19] P.C. Fox then looked for duty counsel’s phone number in the back of his notebook and began punching the number into his cell phone when P.C. Agyarko, a more senior officer, stuck his head into the passenger window and suggested to P.C. Fox that he wait until they had returned to the police station to call counsel. P.C. Fox followed that suggestion and stopped his efforts to call duty counsel.

[20] For the next 12 minutes, prior to departing for the police station, P.C. Fox, under the tutelage of P.C. Agyarko, entered data into his police computer.

[21] On the way back to the station, P.C. Fox had a further discussion with Mr. Ara after Mr. Ara reiterated that he had never been in trouble before and was unfamiliar with the process. P.C. Fox essentially then said, among other things:

Mistakes happen. We’ll go…we’ll deal with it…

So, after your breath test, we will give you the opportunity to call your wife.

So, what’s going to happen now is we’re going to go in…I’m going to parade you…then I’ll read you your rights to counsel again in front of the sergeant. I’ll bring you around and introduce you to the sergeant…

You will be searched again…

Then you’ll meet with the breath tech…he will introduce the Intoxilyzer, the approved instrument. You’ll do your tests…based on what your test is you’ll be released shortly after that…

You’ll get the opportunity to speak to a lawyer, I believe, before you have to do the test and then they’ll give you the advice that they give you…

Be aware that refusal of blowing into it is the exact same as failing the device…I’m just letting you know your jeopardy there.

[22] Mr. Ara was paraded at the police station before Sgt. Taylor, beginning at 23:01. As he was brought into the booking hall, he was again read his rights to counsel. Sgt. Taylor was advised by P.C. Fox that “he is here to do the Approved Instrument test”. Sgt. Taylor advised Mr. Ara that they were going to “start the process”, and that there would be two tests/samples and then, depending on his levels, he would be released.

[23] At 23:18 The booking process was complete, and Mr. Ara was placed in interview room #3.

[24] At 23:19 P.C. Fox explained the circumstances of Mr. Ara’s arrest to P.C. Daryaram, the breath technician.

[25] At 23:25 Mr. Ara requested to speak with his real estate lawyer. P.C. Fox called the requested counsel. P.C. Fox also called Duty Counsel and left a voicemail.

[26] At 23:27 Mr. Ara spoke with his real estate lawyer. At 23:33 that call was complete. Mr. Ara then advised P.C. Fox that he did not wish to speak with Duty Counsel.

[27] At 23:35, shortly after he entered the breath technician room, Mr. Ara changed his mind and advised he wished to speak with Duty Counsel. At 23:45 Duty Counsel returned the call and Mr. Ara was placed back in a privacy booth for the conversation.

[28] At 23:56 Mr. Ara’s consultation with Duty Counsel was complete and he was brought back to the breath room.

[29] At 23:58 P.C. Daryaram read Mr. Ara the Approved Instrument demand.

[30] At 00:03 Mr. Ara provided his first sample – 133 mgs in 100 mLs of blood. At 00:07 he was brought to a privacy booth again to speak with his wife.

[31] At 00:23 Mr. Ara provided a second sample – 127 mgs in 100 mLs of blood. At 1:07 he was released from the station.

C. The Alleged S. 8 Violation

(a) Introduction

[32] Mr. Landesman argues that:

• P.C. Fox’s discussions with Mr. Ara do not constitute a demand pursuant to s. 320.28 of the Criminal Code.
• Alternatively, if they do, the demand was not made as soon as practicable after P.C. Fox developed reasonable grounds to believe that Mr. Ara was operating a conveyance with excess alcohol in his blood.
• P.C. Robertson’s testimony to the effect that he made a demand should be rejected.
• Insofar as the Crown relies on P.C. Daryaram’s breath demand in the breath room, that demand was not made as soon as practicable after P.C. Daryaram developed reasonable grounds.

[33] Ms. Verboom disagrees with those assertions.

[34] The parties correctly agree that the warrantless seizure of Mr. Ara’s breath samples will only be Charter compliant if the Crown demonstrates, on a balance of probability, that the search was authorized by law - in this case, s. 320.28 of the Criminal Code. R. v. Collins, [1987] 1 S.C.R. 265; R. v. Guenter, 2016 ONCA 572 at para. 85. Ms. Verboom, in Mr. Ara’s case, must demonstrate that at least one of P.C.’s Fox, Robertson or Daryaram made a lawful breath sample demand of Mr. Ara. R. v. Guenter, supra.

(b) Did P.C. Fox make a lawful breath sample demand?

[35] The resolution of this issue requires a two-step inquiry; (1) Did the language used by P.C. Fox, in the circumstances, constitute a “demand”, and (2) if so, was it made as soon as practicable after P.C. Fox developed reasonable grounds to believe that Mr. Ara was operating a conveyance with excess alcohol in his blood.

[36] According to our Court of Appeal in R. v. Torsney, 2007 ONCA 67 at para. 6:

[t]he demand [for a breath sample] need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the ‘tenor of the officer’s discussion with the accused’. See R. v. Horvath, [1992] B.C.J. N0. 1107 (B.C.S.C.). What is crucial is that the words used be sufficient to convey to the detainee the nature of the demand…

[37] I reiterate that at 22:37, five minutes after the arrest, P.C. Fox said this to Mr. Ara, just after he was placed in the back seat of the police car:

“We’re going to take you back to the station. You will do more tests into an Approved Instrument that’ll give us the exact number that you register. That will be with a breath technician.”

[38] In my view, this information did not adequately convey to Mr. Ara that he was required to provide a sample. Absent was any unequivocal mandatory language, and any reference to the consequences of refusing. Nor were P.C. Fox’s demeanour and tone such as to convey this message. Mr. Ara’s case is distinguishable from the situation described in R. v. Commisso, 2021 ONSC 1090 where the accused was told that he “still had to do the tests” and that “refusing was a criminal offence.”

[39] Approximately 15 minutes later, on the way back to the station, after P.C. Fox was finished entering data into his computer, he said this to Mr. Ara:

Mistakes happen. We’ll go…we’ll deal with it…

So, after your breath test, we will give you the opportunity to call your wife.

So, what’s going to happen now is we’re going to go in…I’m going to parade you…then I’ll read you your rights to counsel again in front of the sergeant. I’ll bring you around and introduce you to the sergeant…

You will be searched again…

Then you’ll meet with the breath tech…he will introduce the Intoxilyzer, the approved instrument. You’ll do your tests…based on what your test is you’ll be released shortly after that…

You’ll get the opportunity to speak to a lawyer, I believe, before you have to do the test and then they’ll give you the advice that they give you…

Be aware that refusal of blowing into it is the exact same as failing the device…I’m just letting you know your jeopardy there. (emphasis added)

[40] In my view, this communication, in the context of the earlier communication and the entirety of their interaction up until then, did make clear to Mr. Ara that he was required to provide a sample.

[41] Even though P.C. Fox did eventually “demand” a breath sample, the next question is, was the demand made “as soon as practicable”?

[42] In R. v. Vanderbruggen, 2006 ONCA 306, at paras. 12 and 13 the Court of Appeal explained the meaning of this phrase, albeit in a somewhat different context:

That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry; R. v. Coverly (1979), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (Ont. C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[43] In my view, it cannot be said that P.C. Fox’s eventual demand was made as soon as practicable in the circumstances of his encounter with Mr. Ara. There was plenty of opportunity to make the demand before he did. Instead of making the demand, P.C. Fox chose to prioritize the entry of data into his computer. These tasks could have and should have been done in the opposite order.

(c) Did P.C. Robertson make a lawful breath sample demand?

[44] This issue comes down to whether I accept P.C. Robertson’s testimony. According to him, after Mr. Ara was placed in the back of the cruiser, while P.C. Fox’s body worn camera and accompanying microphone were out of “earshot”, Mr. Ara asked him what was going to happen next, and P.C. Robertson explained to him that he was required to provide a breath sample at the station.

[45] A careful review of P.C. Fox’s body worn camera record leaves merely seven seconds for this unrecorded conversation to occur – in my opinion, insufficient time during which a legally sufficient demand, following a question from Mr. Ara, could have occurred.

[46] I am not convinced on a balance of probabilities that P.C. Robertson administered a legally sufficient breath demand to Mr. Ara that night.

(d) Did P.C. Daryaram make a lawful breath sample demand?

[47] Even though P.C. Daryaram was not the arresting officer, he could nonetheless, in law, make a valid breath demand. See R. v. Guenter, supra.

[48] There is no doubt that P.C. Daryaram’s language meets the test for what constitutes a “demand”. The only matter in dispute is whether that demand was made as soon as practicable after P.C. Daryaram developed reasonable grounds to believe that Mr. Ara was operating a conveyance with excess alcohol in his blood.

[49] It is worth noting that P.C. Daryaram did not testify. As a result, I must rely on circumstantial evidence for proof that he subjectively had the necessary reasonable grounds to make the demand. In my opinion, the fact that P.C. Fox described the details of the arrest to P.C. Daryaram along with the fact that P.C. Daryaram did indeed make a demand supports the conclusion that P.C. Daryaram had the necessary grounds, from both a subjective and objective perspective.

[50] As for whether his demand was made as soon as practicable after forming those grounds, 39 minutes elapsed between him hearing the details of the incident from P.C. Fox, and the making of the demand.

[51] In the absence of testimony from P.C. Daryaram, I find that Ms. Verboom has not met her burden of demonstrating that the demand was made as soon as practicable. While there is some evidence from P.C. Fox as to Mr. Ara’s two calls to counsel, P.C. Fox’s testimony and the breath room videos are not sufficient substitutes for an explanation from P.C. Daryaram as to why he did not make his breath demand earlier during this lengthy interval.

[52] In the result, I find that the seizure of Mr. Ara’s breath samples was in breach of his s. 8 Charter rights.

D. The Alleged 10(b) Violations

(a) Introduction

[53] To reiterate, Mr. Landesman alleges two s. 10(b) Charter violations. He argues that:

• Mr. Ara ought to have been allowed to contact counsel from the back of P.C. Fox’s police cruiser immediately upon having asked for that opportunity.
• Insofar as a valid breath demand might have been made by the breath technician officer (P.C. Daryaram), no opportunity to consult counsel was offered to Mr. Ara after that demand and before taking the breath samples, thus breaching Mr. Ara’s s. 10(b) Charter rights.

(b) The immediacy issue and the failure to allow Mr. Ara access to counsel from the rear of the police car

[54] It is now well settled law that the police must inform a detainee of his rights to counsel immediately upon arrest, unless to do so poses undue risk to the safety of officers or the public. R. v. Debot, [1989] 2 S.C.R. 1140 at paras 3 and 42; R. v. Suberu, 2007 ONCA 60 at paras 47-48; R. v. Pino, 2016 ONCA 389.

[55] Mr. Ara was indeed immediately informed of his right to counsel after his arrest. He told P.C. Fox that he wanted to speak to a lawyer and when offered the opportunity to do so immediately on the officer’s cell phone (albeit without privacy) he said he wanted to do so. Yet, as set out above, P.C. Fox changed his mind and did not set up the call. Fifty-six (56) minutes passed between Mr. Ara’s request to speak to counsel at the roadside and P.C. Fox’s first call to Duty Counsel at the station. At no point during this interval did P.C. Fox alert anyone at the station that Mr. Ara had asked to speak to counsel, so that a call could be placed while P.C. Fox and Mr. Ara waited at the scene, and then made their way back to the station.

[56] The duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. Where the police delay access to counsel the Crown bears the burden of demonstrating that the delay was reasonable in the circumstances. R. v. Taylor, 2014 SCC 50, at para. 24; R. v. Desilva, 2022 ONCA 879.

[57] In R. v. Rover, 2018 ONCA 745 at paras. 26-28 Doherty J.A. summarizes the law on this issue as follows:

The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

See too R. v. La, 2018 ONCA 830; R. v. Mitchell, 2018 ONCJ 121; R. v. Campoli, 2020 ONSC 100.

[58] It is abundantly clear from decades of Charter jurisprudence that the right to privacy is inherent in the right to retain and instruct counsel. R. v. McKane (1987), 35 C.C.C. (3d) 481 (Ont. C.A.) at para 11; R. v. Burley.

[59] This case raises the question of whether a detainee can waive his right to privacy to secure a more immediate consultation with counsel. I believe he can.

[60] P.C. Fox certainly thought so, at least at first. He very quickly offered Mr. Ara the opportunity to speak to Duty Counsel on P.C. Fox’s cell phone from the back of the police car. He told Mr. Ara that the call would not be private, and Mr. Ara clearly said he was fine with that. P.C. Fox began to make the call but stopped when a senior officer, P.C. Agyarko, told him not to, since the station wasn’t far, and privacy could be afforded there. P.C. Fox aborted the call only because a senior officer told him to – not for any considered reason.

[61] If it can be said that P.C. Fox adopted that senior officer’s thinking on the subject, delaying the call to Duty Counsel for privacy reasons when Mr. Ara had expressly waived his right to privacy, was unreasonable in the circumstances and thus a breach of s. 10(b).

(c) The failure of the police to grant access to counsel after the breath demand and before taking samples

[62] It is important that an accused understand that he is legally required to provide a breath sample when he speaks to counsel. Failure to make the demand before putting the accused in touch with counsel can constitute a s. 10(b) Charter breach, as it did in R. v. Coates, 2022 ONSC 3262.

[63] While I have found that Mr. Ara never received a proper lawful demand as soon as practicable prior to speaking to both his real estate lawyer and duty counsel, I have also found that he did nonetheless know (from his discussion with P.C. Fox on the way to the station) that the provision of breath samples was mandatory, and that he knew this before speaking to either lawyer.

[64] As a result, I find no s. 10(b) Charter breach by the police failure to provide further access to counsel after P.C. Daryaram’s “demand”.

E. Section 24(2)

[65] Section 24(2) of the Charter reads as follows:

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.

[66] There is no dispute as between the parties that if the alleged breaches occurred, the breath results were obtained in a manner that infringed Mr. Ara’s Charter rights. R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12.

[67] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

See too R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12.

(a) The seriousness of the breaches

[68] I have found two Charter breaches.

[69] A delay in access to counsel’s advice is always serious, and the unlawful taking of breath samples is not trivial, but in this case the seriousness of the breaches is mitigated by several factors:

• P.C. Fox was a young, inexperienced officer who did not purposely set out to trample on Mr. Ara’s Charter rights. His missteps were inadvertent.
• The delay in providing access to counsel was not particularly long.
• No attempts were made to elicit evidence form Mr. Ara during the delay.
• All the officers who dealt with Mr. Ara that night were kind to him. He was treated with dignity and respect. P.C. Fox arranged a call to Mr. Ara’s personal real estate lawyer, Duty Counsel, and Mr. Ara’s wife.
• Although no lawful demand for breath samples was made, the police tried to, and eventually succeeded in properly informing Mr. Ara of his obligations before he spoke to counsel.
• There was no evidence at trial that the Charter-infringing conduct was systemic.

[70] I find that the breaches, although serious, lie at the less serious end of the seriousness spectrum. The breaches mildly favour exclusion.

(b) The impact of the breach on Mr. Ara’s Charter protected interests

[71] Mr. Ara was forced to be without access to and advice from counsel when he clearly felt the need for such. Even though he did not testify, I can infer that this deprivation must have caused some distress.

[72] As concerns the s. 8 breach, Mr. Ara immediately appreciated that he was under arrest and why. I am convinced that Mr. Ara understood the upcoming procedures at the police station, even though there was a relatively brief delay in making him understand that the breath samples were mandated by law.

[73] The taking of Mr. Ara’s breath samples was minimally intrusive. See R. v. Jennings, 2018 ONCA 260 at paras. 29-30.

[74] This second Grant factor neither favours admission nor exclusion.

(c) Society’s interest in the adjudication of the case on its merits

[75] The Supreme Court in Tim, supra at para. 96 said this:

The third line of inquiry considers factors such as the reliability of the impugned evidence and its importance to the Crown's case. It asks "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion" (Grant, at para. 79). Reliable evidence critical to the Crown's case will generally pull toward inclusion (see Grant, at paras. 80-81; Harrison, at paras. 33-34).

[76] The Supreme Court in Harrison, 2009 SCC 34, at paras. 33 and 34, deals with this factor as follows:

At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.

The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

[77] The evidence (the breath samples and readings) is crucial to the Crown’s case and is highly reliable.

[78] Society has an interest in seeing trials of this nature dealt with on their merits given the terrible toll impaired driving takes every year.

[79] I find that the third Grant factor favours admission of the evidence.

(d) Balancing the three Grant factors

[80] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[81] The breaches of Mr. Ara’s Charter rights were moderately serious and mildly favour exclusion of the evidence. The impact of the breaches neither favours inclusion nor exclusion. The reliability of the evidence, its importance to the Crown’s case, and the public interest in an adjudication of this case on its merits favour admission of the evidence.

[82] Balancing these factors, I find that the admission of the evidence would not bring the administration of justice into disrepute.

[83] The breath samples are admitted.

F. Are the Certificate’s Shortcomings Fatal?

[84] Mr. Landesman points out that the date of the taking of the samples is incomplete in the breath technician’s certificate in that while the day and month of the administration of the tests are set out, the year is missing. He argues that this is a fatal flaw in the certificate, rendering it incapable of proving the results of the breath tests.

[85] He relies principally on the 1978 decision of the Supreme Court in R. v. Noble, [1978] 1 S.C.R. 632. In Noble the Crown tendered a certificate that only attested to one breath sample. Two samples were required to create a certain rebuttable presumption in the Criminal Code at the time. The Court found the certificate incapable of supporting proof of the administration of the two required breath tests.

[86] This case has been commented upon in many drinking and driving cases since. In Ontario, the Superior Court in R. v. Rebelo and the Ontario Court of Justice in R. v. Furlano, 2007 ONCJ 438 distinguished Noble.

[87] Furlano, citing Rebelo, inter alia, is almost directly on point. Kenkel J. explained:

The defence submits that the certificate fails to identify on its face the time the samples were taken because it does not state the year in the section where the test times are recorded. The certificate otherwise specifies the times that both samples were taken, the date and the month. Elsewhere on the face of the certificate, there is a portion where the accused acknowledged receipt of service which indicates the date including the year - 2005. There is also a s. 258(7) notice section on the face of the same certificate which identifies the year as 2005. The defence agreed during the course of argument that the issue is really one of admissibility, not weight as the investigating officer's evidence at trial otherwise establishes that all events in this case including the breath tests occurred in 2005.

I agree with the defence that proof via certificate is a statutory shortcut and subject to strict construction.

Section 258(1)(g)(iii)(b) includes a requirement that the certificate state "the time and place where each sample ... was taken". The identification of the time at which samples were taken is an important element as it relates directly to the availability of the presumption of identity in s. 258(1)(c). This certificate complies with that requirement in that it states the times both samples were taken. It happens to go on to state the day and the month the samples were taken although those statements are not required by the section. Where Parliament requires the date to be included in a certificate in this context, they state that specifically as seen in s. 258(1)(i). I find that this certificate complies with the "time" requirement in section 258(1)(g)(iii)(b).

In the alternative, if the reference to "time" in that section does require the police to state the day, month and year each sample was taken, then I note that there is circumstantial evidence that establishes the year of testing on the face of the certificate. There is also external evidence on this point from Constable Metcalfe which the defence agrees otherwise establishes the precise date of testing. As a general rule, the Crown may supplement the certificate by reference to external evidence to clarify an omission or ambiguity where the accused would not be misled and his right to a fair trial is not compromised. See: R. v. Carbno at para. 12 and the cases cited therein, and R. v. Bykowski (1980), 54 C.C.C. (2d) 398n (S.C.C.). I note Justice Durno's instruction that, "the weight of authorities since Noble has favored a pragmatic approach to certificates which contain omissions or typographical errors, provided the accused has not been prejudiced and the error is manifest having regard to all of the evidence". R. v. Rebelo at para. 38.

In this case the Crown may rely upon the external evidence, even from persons other than the breath technician, to establish the time requirement with respect to admissibility. This is not a case where the accused would be misled or there would be any prejudice to the accused from the alleged omission.

[88] For the reasons expressed in these two Ontario decisions I reject Mr. Landesman’s argument concerning the certificate of analysis in this case.

G. Conclusion

[89] Mr. Ara is guilty as charged.

Released on April 29, 2024 Justice Russell Silverstein