ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-11655

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JASON CROOKE Appellant

John Semenoff, for the Respondent

Lawrence Greenspon, Eric Granger for the Appellant

HEARD: July 25, 2012

SUMMARY CONVICTION APPEAL

On Appeal from the decision of the Honourable Justice J.F.R. Levesque of the Ontario Court of Justice, on August 11, 2011, at Ottawa, Ontario

Mcmunagle J.

Introduction

[ 1 ] On July 1, 2010, the Appellant was charged with Impaired Driving and Operating a Motor Vehicle, Over 80 milligrams of Alcohol in 100 Millilitres of Blood, contrary to sections 253(1) (a) and 253(1)(b) of the Criminal Code of Canada, R.S.C., 1985, c. C-46.

[ 2 ] The Appellant was tried in the Ontario Court of Justice, in Ottawa, Ontario, on June 29 and June 30, 2011. The learned trial judge rendered his decision on August 11, 2011.

[ 3 ] The trial commenced with an Application by Mr. Crooke alleging violations of sections 7, 8 and 9 of the Charter of Rights and Freedoms 1982, c. 11 (U.K.), Schedule B, on the basis that the arresting officer, Constable Alex Kirady, lacked reasonable and probable grounds to believe that the Appellant had operated a motor vehicle within the preceding three hours. Therefore, lacking reasonable and probable grounds for such belief, Constable Kirady had no authority to arrest the Appellant for impaired operation of a motor vehicle, and make a demand for the warrantless search and seizure of breath samples.

[ 4 ] On August 11, 2011, the Appellant’s Charter Application was dismissed by the learned trial judge, and therefore he was convicted of Impaired Driving, contrary to s. 253(1) (a) of the Criminal Code , supra . As a result of the foregoing, the Drive Over 80 count, contrary to s. 253(1)(b) of the Criminal Code, supra, was judicially stayed . The Appellant was sentenced to a fine of $1,500, pursuant to s. 255(1) (a)(i) of the Criminal Code, supra . The Appellant was also given a 15 month Driving Prohibition, pursuant to s. 259(1) (a) of the Criminal Code, supra. The Appellant appealed against his conviction, on the basis that the learned trial judge erred in his disposition of the Charter Application.

Summary of Facts

[ 5 ] On July 1, 2010, Constable Alex Kirady, of the Ottawa Police Services, was dispatched to the scene of a motor vehicle accident on Orangeville Street in the City of Ottawa, at approximately 6:11 p.m. Constable Kirady had received information via dispatch that one vehicle had stuck three other vehicles. There was an argument going on. People were saying that the driver was drunk and trying to get away and that people were restraining the driver. The request was to “get police there quick.” Constable Kirady also testified that based on the dispatch information, it was his belief that the accident had occurred just prior to the dispatch.

Evidence at Trial of Constable Kirady - Volume 1 at page 44 – lines 1-12; Volume 1 at page 47 – lines 3-10

[ 6 ] Constable Kirady arrived on the scene at approximately 6:15 p.m. He observed a large group of people. He observed three damaged vehicles to his right, on the south side of the street, as well as one damaged vehicle in the middle of Orangeville Street further up, eastbound from the three damaged vehicles. He further observed that the vehicle in the middle of the street was a Honda Civic and that it was extensively damaged. He noted that there was a crowd of people in the vicinity of the Honda Civic, standing on the sidewalk and claimed that there was a single male, later identified as the Appellant, “…standing in the middle of the street near the Honda Civic.” The people in the crowd were described as being “a little agitated” and that there was “a lot of commotion.”

Evidence at Trial of Constable Kirady - Volume 1 at page 44 – line 16; Volume 1 at page 45 – lines 11-27; Volume 1 at page 53 – lines 30-31; and Volume 1 at page 61 – lines 2-8

[ 7 ] Constable Kirady had made no note of the fact that the Appellant had been located in the middle of the street near the Honda Civic, nor in his Investigative Action Report. He had not told anyone of this fact prior to giving his testimony at trial. The best explanation he could offer from omitting to record this important piece of information, which he said he relied upon as part of his grounds for arrest was, “I guess – I just – I didn’t put everything in my report. There is no explanation for it.”

Proceedings at Trial – Volume 1 at page 68 – line 5; Volume 1 at page 70 – line 2

[ 8 ] Constable Kirady who was approximately eight feet from the Appellant, asked one of the bystanders in the crowd, who was driving the vehicle and he or she “pointed out” the Appellant. Constable Kirady’s notes indicated that “one of the witnesses pointed out the driver of the Civic to me.”

Proceedings at Trial - Volume 1 at page 46 – lines 10-14; Volume 1 at page 63 – lines 9-24; Volume 1 at page 70 – line 29, Volume 1 at page 71 – line 6

[ 9 ] Constable Kirady acknowledged that he knew nothing about the witness who had “pointed out” the Appellant, as the driver.

Proceedings at Trial – Volume 1 at page 71 – line 7; Volume 1 at page 73 – line 10

[ 10 ] Constable Kirady also learned that there were three males that had been seen exiting the Honda Civic, though he was uncertain as to how or what he was told.

Proceedings at Trial – Volume 1 at page 51 – lines 11-16; Volume 1 at page 72 – line 23; Volume 1 at page 73 – line 10

[ 11 ] Constable Kirady testified that upon approaching the Appellant, he observed that the Appellant had glassy and bloodshot eyes and a strong odor of alcohol on his breath. He was holding a cell phone in his hand and was described as looking “generally very confused.” Constable Kirady immediately arrested the Appellant for Impaired Operation of a Motor Vehicle. The arrest occurred at 6:16 p.m., or within one minute of Constable Kirady’s arrival on the scene at 6:15 p.m.

Proceedings at Trial – Volume 1 at page 45 – line 24; Volume 1 at page 46 – line 26; Volume 1 at page 48 – lines 1-3; Volume 1 at page 62 – lines 20-28; Volume 1 at page 73 – line 24; Volume 1 at page 74 – line 9

[ 12 ] Constable Kirady testified that as July 1 st was Canada Day, he expected many people to be consuming alcohol.

Proceedings at Trial - Volume 1 at page 45 – lines 26-27

[ 13 ] After arresting the Appellant, Constable Kirady noted the Appellant crying, but did not know whether or not he had been crying prior to arrest and agreed that crying could cause glassy and bloodshot eyes. He also agreed that the Appellant’s speech was “good”, and that he had no trouble understanding the Appellant, his clothes were orderly, his attitude polite and co-operative, and he had no trouble with walking or balance, as he walked back to Constable Kirady’s police cruiser.

Proceedings at Trial – Volume 1 at page 74 – line 10; Volume 1 at page 76 – line 14

[ 14 ] After the Appellant’s arrest, a breath demand was made at 6:20 p.m., and three samples of the Appellant’s breath obtained readings of 222 milligrams of alcohol per 100 milliliters of blood, 208 milligrams of alcohol per 100 milliliters of blood, and 210 milligrams of alcohol per 100 milliliters of blood at 7:41 p.m., 8:10 p.m., and 8:31 p.m. respectively, as a result of which the aforementioned two charges were laid.

Proceedings at Trial – Volume 1 at page 48 – line 20; Volume 1 at page 49 – line 8; Volume 1 at page 91 – lines 14-17; Volume 1 at page 93 – lines 15-17; Volume 1 at page 99 – lines 17-22; and Volume 1 at page 99 – lines 25-30; Volume 1 at pages 93 and 94

Reasons for Trial Decision

[ 15 ] The learned trial judge dismissed the Appellant’s Charter application. He concluded that R. v. Debot , 1989 13 (SCC) , [1989] S.C.J. No. 118 (S.C.C.), did not apply because the officer was not dealing with “confidential information”, and that the officer was justified in relying on the bystander’s “identification” given the following:

The officer was justified to rely on identification of the accused as the driver by the stander-by in that context, considering the constellation of details available to the officer as follows:

(a) The driver of the vehicle had lost control of the Honda Civic and had collided into parked vehicles. That is based not only on the information relayed to him by distpatch, but also his observations that there were damaged parked vehicles. That these vehicles were damaged is not disputed and is well established. They were damaged to the driver’s side, facing east on the west-east street. Further, the Honda Civic was stopped in the middle of the road, east of the damaged parked vehicles on west-east Street by the name of Orangeville, as I indicated earlier. This vehicle was extensively damaged to its front and was located past the parked damaged vehicle.

(b) The accused was standing alone in front of the damaged Honda Civic. It was argued that the constable’s evidence in this respect is not reliable since there are no such references in his notes. The fact that the absence of such a note is a consideration is not disputed. However, the officer’s unwavering testimony in this respect, despite extensive cross-examination on this issue, convinces me that he is reliable in the context of the officer having been told that the driver had been drinking and had been restrained from leaving.

(c) The officer’s observations that the accused standing in front of the Honda Civic had a strong odour of alcohol on his breath, and glossy and bloodshot eyes, as well as looking generally confused, verifies and supports the identification of the accused as the driver by the stander-by since these describe the effects of alcohol, consistent with having lost control of a motor vehicle. Further, the fact that the accused was standing alone also accords with the driver of the vehicle, as reported to dispatch being restrained from leaving.

Reasons for Judgment and Sentencing, pg. 8, line 24 – pg. 12, line 10

[ 16 ] In dismissing the Appellant’s Charter application, the learned trial judge stated the following, at pages 8 and 9 of his Reasons for Judgment:

The accused forcefully argued that the officer did not have reasonable and probable grounds to believe the accused was the driver of the vehicle that struck the parked vehicles. This was based on the unverified information from an unknown civilian present that identified the accused as the driver, combined with the absence of any note on the part of Constable Kirady, that the accused was standing alone by an extensively damaged Honda Civic which had driven into the parked vehicles.

The accused argues that in the context of not recalling whether the person who identified the accused as a driver was a male or a female and the officer not obtaining any details from this person that grounded the identification of the accused, there was no basis upon which the officer could rely on such identification. The officer was not even aware of the fact that the stander-by was even a witness to the driving (see R. v. Debot , 1989 13 (SCC) , [1989] 2 SCR 1140, 53, dealing with reliability of confidential informants.)

This is not a question of acting on confidential information, but rather whether the identification of the accused as the driver is sufficiently reliable in the context of the observations and other relayed information.

[ 17 ] The learned trial judge went on to state at pages 11 and 12 of his Reasons for Judgment:

These are objective observations of the officer that confirmed the dispatch information and the stander-by identification as a witness, leading the officer to conclude that he had reasonable and probable grounds to believe that the accused had driven the vehicle that struck the parked vehicles while his ability to do so was impaired by alcohol.

As pointed out in R. v. Shepherd , [2009] SCR, 23, with respect to reasonable and probable grounds, there is no need to demonstrate a prima facie case, only that there existed objective grounds for the officer’s subjective belief. For the reasons stated above, these existed.

With respect to the ultimate identification issue of the driver, that is resolved by the statement of the accused given to the breath technician, admitted as voluntary by counsel, that the was the driver of the vehicle.

[ 18 ] Based on the forgoing analysis, the learned trial judge came to the conclusion that the Appellant’s Charter application should be dismissed, and made a finding that the arresting officer, Constable Kirady, had reasonable and probable grounds to arrest the Appellant for Impaired Driving. Ultimately at the request of Crown counsel, the learned trial judge applied the Kienapple principle , 1974 14 (SCC) , [1975] 1 S.C.R. 729, and a Conditional Judicial Stay was entered on the Operating a Motor Vehicle, Over 80 Milligrams of Alcohol in 100 Millilitres of Blood, contrary to s. 253(1) (b) of the Criminal Code , supra.

Position of the Parties

Appellant’s Position

[ 19 ] It is the Appellant’s position that the learned trial judge erred in law in failing to apply the test for reasonable and probable grounds to conduct a warrantless search and seizure based on information obtained from a non-police source as outlined by the Supreme Court of Canada in R. v. Debot , supra. It is also the Appellant’s position that the trial judge erred by limiting his analysis of reasonable and probable grounds to only the evidence that supported the identification of the Appellant as the driver of the Honda Civic. And further, that the learned trial judge erred in concluding that Constable Kirady had reasonable and probable grounds to believe that the Appellant was the driver of the Honda Civic, and finally, that all evidence obtained post-arrest, ought to have been excluded pursuant to s. 24(2) of the Charter , supra.

Respondent’s Position

[ 20 ] It is the Crown’s position that the trial judge did not err in his consideration of whether the arresting officer had the requisite reasonable and probable grounds and did not err in his conclusion that the arresting officer’s subjective reasonable and probable grounds were objectively reasonable.

[ 21 ] Further, the Respondent submits that the trial judge was correct in his conclusion that the Debot principles advanced by the Appellant had limited application to the facts before the Court. It is submitted that the trial judge correctly considered the totality of the circumstances in assessing whether it was reasonable for the arresting officer to rely upon the bystander, pointing out the Appellant.

Analysis

[ 22 ] The parties agree that the scope of review in the present appeal is limited to examining whether the acquittal was unreasonable and not supported by the evidence.

R. v. Burns , 1994 127 (SCC) , [1994] S.C.J. No. 30 (S.C.C.) , and R. v. R. v. Biniaris , 2000 SCC 15 () , [2000] S.C.J. No. 16

[ 23 ] In applying the test in R. v. Burns , supra, that the role of the Appellant Court is to determine whether on the facts that were before the learned trial judge, a jury properly instructed and acting reasonably could convict. This Court’s role is to review the evidence that was before the trier of fact and after re-examining, and to a very limited extent, reviewing the evidence, determine whether the Burns test is met. While the Appellate Court may disagree with the verdict, if the Appellant has had a trial in which legal rules have been observed and there is, on the evidence, no complaint can be upheld.

R. v. P.L.S ., 1991 103 (SCC) , [1991] S.C.J. No. 37 (S.C.C.) at page 197

[ 24 ] I agree with the Crown that the law in the area of Appellate review is clear. Specifically, considerable deference should be afforded to the trial judge on his or her findings of fact, the proper inferences to be drawn from them, in his or her assessment of the credibility and reliability of the witnesses, and the ultimate assessment of whether or not the allegations for the Court have been made out beyond a reasonable doubt. As Arbour J. wrote in R. v. Biniaris , infra, [2000] 143 C.C.C. (3d) 298 (S.C.C.) at para. 24; R. v. Boyce , 2005 36440 (ON CA) , [2005] O.J. No. 4313 (C.A.) at para. 3 :

Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown’s case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.

[ 25 ] The Ontario Court of Appeal in R. v. Wang , 2010 ONCA 435 () , [2010] O.J. No. 2490, succinctly provides the standard of review for a trial court’s determination of reasonable and probable grounds:

14 The test for deciding whether there are reasonable and probable grounds includes both a subjective and an objective component: (i) the officers must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code , and (ii) there must be reasonable grounds for his belief: R. v. Bernshaw , 1995 150 (SCC) , [1995] 1 S.C.R. 254 at para. 48 .

15 In the present case, the central issue before the summary conviction appeal judge was whether the trial judge had properly applied the law in assessing whether there was a sufficient objective basis for the officer’s subjective belief that he had reasonable and probable grounds to demand breath samples from the appellant.

16 Since the trial and summary conviction appeal proceedings, the Supreme Court of Canada, in R. v. Shepherd, 2009 SCC 35 () , [2009] 2 S.C.R. 527, has provided useful guidance on the nature of the test and the test itself in cases where a court is called upon to decide whether a police officer had reasonable and probable grounds to believe that a motorist has committed an offence under s. 253 of the Criminal Code .

17 In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established . (Emphasis added) Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 1993 3375 (ON CA) , 12 O.R. (3d) 90 (C.A.), aff’d 1994 94 (SCC) , [1994] 2 S.C.R. 478.

18 As Shepherd makes clear, where appellate courts are called upon to review the trial judge’s conclusion on the issue whether the officer had reasonable and probable grounds, the appellate court must show deference to the trial judge’s findings of fact, but the trial judge’s ultimate ruling is a question of law reviewable on a standard of correctness.

R. v. Wang , supra at paras. 14-18

R. v. Shepherd , 2009 SCC 35 () , [2009] S.C.J. No. 35 at para. 20

[ 26 ] The Court agrees with the Crown’s submission at para. 8 of their factum wherein they state:

Reasonable and probable grounds are not an onerous threshold and should not be inflated in the context of testing trial evidence. Rather, when an arrest is made under s 253 and a demand is made under s. 254(3), it is the result of a decision reached in the field and without the luxury of extended reflection. To determine whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case and the totality of the circumstances must be considered.

R. v. Censoni, [2011] O.J. No. 5189 (S.C.J.) at paras. 43 , 47;

R. v. Shepherd , supra, at para. 21

[ 27 ] Our Court of Appeal has recently re-emphasized the following principles with respect to reasonable and probable grounds for arrest in R. v. Bush , 2010 ONCA 554 () , [2010] O.J. No. 3453 wherein the Court stated:

• There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable and probable grounds; (para. 60)

• In determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay; (para. 61)

• The important fact is not whether the officer’s belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed; (para. 66)

• The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. (para.70)

[ 28 ] I further agree with the Respondent that the argument advanced by the Appellant is similar to the argument that was advanced in R. v. Golub , 1997 6316 (ON CA) , [1997] O.J. No. 3097 (C.A.). In that case our Court of Appeal rejected the argument that an arrest could not be made on unconfirmed information of an untested informant. The Court of Appeal stated as follows:

Mr. Harris' proposition is a novel one. If correct, it would greatly restrict the police power of arrest. It would preclude the police from arresting a suspect based on information received from a witness to the crime even where the witness could have arrested the suspect pursuant to s. 494(1)(a). In addition, as pointed out by Mr. Hutchison for the Crown, in the course of oral argument, Mr. Harris' position would set the test for reasonable grounds for arrest higher than the eventual standard for conviction, since the respondent could be convicted based on the evidence of Hepworth absent any confirmation of his version of events.

Mr. Harris' reliance on the search warrant cases is misplaced. Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting. It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.

The justice asked to issue a search warrant based on information provided by a police source is in a very different position than the police officer who is face to face with the complainant. The justice asked to issue a search warrant based on information provided by a police source cannot assess the reliability of that secondhand information without additional information from the officer pertaining to the reliability of the officer's source. The police officer faced with a complaint from a witness to events has information from a firsthand source and can question that source, if necessary. To the extent that the position of the justice and the arresting officer can be compared at all, the officer acting on a complaint from a witness to the relevant events is in a similar situation to a justice who acts on firsthand information provided by the police officer.

The police power to arrest under s. 495 of the Criminal Code was considered in R. v. Storrey (1990), 1990 125 (SCC) , 53 C.C.C. (3d) 316 (S.C.C.). Cory J., for the court, said at p. 324:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish a prima facie case for conviction before making the arrest.

In deciding whether reasonable grounds exist, the officer must conduct the inquiry which the circumstances reasonably permit. The officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable: R. v. Storrey, supra, at pp. 423-24; Chartier v. The Attorney General of Quebec (1979), 1979 17 (SCC) , 48 C.C.C. (2d) 34 at 56 (S.C.C.); R. v. Hall (1995), 1995 647 (ON CA) , 39 C.R. (4th) 66 at 73-75 (Ont. C.A.); R. v. Proulx (1993), 1993 3677 (QC CA) , 81 C.C.C. (3d) 48 at 51 (Que. C.A.).

In this case, the police had a specific and detailed complaint from a witness to the events. Mr. Hepworth contacted the police, identified himself, and made no claim to anonymity. The officers had a firsthand opportunity to assess Mr. Hepworth's reliability. They had no reason to discount his information. Certainly, counsel for the respondent at trial did not suggest that the officers should have disregarded Mr. Hepworth's information.

[ 29 ] The Supreme Court of Canada in Debot , supra , makes it abundantly clear at para. 53 that “the three factors do not form a separate test, but rather the totality of the circumstances must meet the standard of reasonableness and weakness in one area may, to some extent, be compensated by strengths in the other two.” As such the Debot test is not fundamentally different from the test generally applied to determine objective reasonableness of an officer’s subjective grounds.

[ 30 ] The Court also agrees with the submission by the Respondent that in the totality of the circumstances, it was reasonable for the trial judge to find that the arresting officer could rely on the bystander’s information, for the reasons articulated by the learned trial judge. While the Court agrees that there may be other logical inferences that could be drawn from where the Appellant is standing, or from the Appellant’s impairment, or from the fact that he is not being restrained, when this information is properly considered in totality, along with the bystander identification, which is enhanced by the fact that the person identifying the Appellant is in within earshot of a group of bystanders and within earshot, that is, eight feet away, from the Appellant, all of which justified the officer in arresting the Appellant for impaired driving. This aspect of the case at bar is very similar to R. v. Dziadek, 1998 ABPC 116 () , [1998] A.J. No. 1464 (O.C.J.) where the arresting officer had no reason to doubt the information received from the civilian bystander, and objectively was entitled to rely on that information.

[ 31 ] In the alternative, if this Court is in error, and in the event that a Charter breach is found, the exclusion of the breathalyser readings and the Appellant’s statements would be “neither automatic nor obvious.” The law in this area has now been clarified with the Supreme Court of Canada’s reformulation of the test for exclusion under s. 24(2) of the Charter in R. v. Grant , 2009 SCC 32 () , [2009] S.C.J. No. 32 at paras. 71 and 102 . In Grant , supra, the Supreme Court made it abundantly clear that the factors relevant to the admissibility inquiry have not changed. This Court agrees with the Respondent’s submission that “…taking into account that there was no hint of bad faith in the trial judge’s findings, coupled with the fact that if there was a breach, it was not a serious breach and that the administration of justice would not be brought into disrepute by the admission of the breath test readings and the Appellant’s statements.”

[ 32 ] Further, the Court agrees with the Respondent that any purported Charter violation in this case could only be described as “minimal.” If it is found that the arresting officer failed to have the objectively reasonable grounds for a breath demand, “…he did not miss by much.” The arresting officer made his judgment based on all of his subjective observations. In addition to his observations, he had the bystander point to the Appellant, who was standing by the said suspect’s motor vehicle and that the Appellant was impaired. This Court would conclude that there is no evidence that the arresting officer acted on, or was motivated by bad faith.

R. v. Grant , supra, at paras. 72-75, 108, 133 and R. v. Taylor , 2010 ONSC 4850 () , [2010] O.J. No. 3723 (S.C.J.) at para. 43

[ 33 ] With respect to the issue of the impact of the purported breach on the Charter protected interest of the accused, this Court finds that the law in this area is now settled. Specially, the taking of breath samples is now regarded as relatively unobtrusive and is now routinely performed and that it is accepted by society without question.

R v. Grant , supra, at para. 109 and R. v. Taylor , supra, at para. 44

[ 34 ] The Court also finds that the impact on the Appellant’s Charter protected interests was not significant, given the serious facts of this case.

[ 35 ] Lastly, with respect to the issue of society’s interest in the adjudication of the case on its merits, this Court finds that this criteria would also favour admissibility of the breath results and the Appellant’s statement. Given that if there was a Charter violation it could best be described as a “minor violation” and a “minor intrusion of bodily integrity.”

R. v. Grant, supra, at paras. 110, 111, 115, 139

[ 36 ] Finally, with respect to the Appellant’s statement, this Court finds that where the Appellant was accorded all procedural safeguards prior to the giving of the statement, and given the Application of the common law confessions rule, reliability of the statement is not seriously in issue. This Court finds that there is no factual or legal nexus between the alleged s. 8 breach and the later obtaining of the Appellant’s statements and therefore the statements should not be excluded.

R. v. Grant , supra, at paras. 89-98

[ 37 ] In all the circumstances of this case, the Court finds that the Honourable Justice Levesque’s reasons, when read as a whole, and cross-referenced with the transcript, demonstrated a clear understanding of the critical issue, and that the Honourable Justice Levesque was alert to the arguments raised. In arriving at his finding of guilt, Justice Levesque navigated an apparent and acceptable path through the evidence and provided obvious and rational explanations for his conclusion as required.

R. v. Tzarfin, 2005 30045 (ON CA) , [2005] O.J. No. 3531 (C.A.) at para. 10

[ 38 ] The Court also finds that the learned trial judge addressed the issues fully and that his findings of fact were available to him on the evidence.

[ 39 ] Accordingly, and in summary, the Court finds that there was no error committed by the learned trial judge. Further, the Court agrees with the learned trial judge’s decision that there was ample evidence sufficient to provide reasonable and probable grounds for the arrest of the Appellant and the subsequent breath demand. The evidence was certainly beyond the threshold required by the existing jurisprudence. The Court also agrees with the learned trial judge’s conclusion that there was in fact no Charter violation in this case.

[ 40 ] In the alternative, the Court further finds that if Charter breaches are founded, including sections 8 , 9 and 10(b) of the Charter, supra, in all the circumstances, they were not so egregious as to justify the exclusion of the breathalyser readings, which were collected in a non-intrusive manner.

[ 41 ] In the result, the Appeal is dismissed and the original conviction is confirmed.

Mr. Justice John A. McMunagle

Released: October 22, 2012

COURT FILE NO.: 10-11655

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – JASON CROOKE Appellant summary conviction appeal McMunagle J.

Released: October 22, 2012