ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-30000115-00AP
DATE: 20140408

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MIN ZHAO

Lori Hamilton, for the Respondent

David Genis, for the Appellant

HEARD: March 28, 2014

M.A. CODE J.

REASONS FOR JUDGMENT

[1] The Appellant Min Zhao was charged with driving “over 80”, contrary to s. 253(1)(b) of the Criminal Code. The Crown proceeded summarily at a trial before Lipson J. on August 13, 2013. The Appellant was convicted and sentenced to the mandatory minimum $1,000 fine and one year license suspension. He appeals his conviction to this Court and seeks a new trial.

[2] The Appellant filed a Charter Motion, prior to trial, alleging s. 8 and s. 9 violations. The Motion sought alternative remedies: either exclusion of the Intoxilizer test results, pursuant to s. 24(2) of the Charter; or an order, pursuant to s. 24(1) of the Charter, to the effect that the Crown could not rely on the “presumption of identity” in s. 258 (1)(c) of the Criminal Code. The only basis for the Charter violation alleged by the Appellant was that the Intoxilizer demand, made pursuant to s. 254(3), was unlawful as the arresting officer lacked reasonable and probable grounds to believe that the Appellant was committing the “over 80” offence. The only ground of appeal relates to the s. 24(1) Charter remedy.

[3] The trial on the merits and the Charter Motion were heard together in a single blended proceeding. The Crown called the arresting officer, P.C. Moffat, and tendered the breath technician’s certificate. The certificate showed blood alcohol readings of 140 and 130. The defence cross-examined this one Crown witness and called no defence evidence, either on the Charter Motion or in relation to the merits. There was no suggestion of any defence to the “over 80” charge, aside from the Charter issue. The entire transcript of the one Crown witness’ evidence at trial is twenty-two pages.

[4] The evidence relating to the Charter issue can be briefly summarized. P.C. Moffat testified that he stopped the Appellant’s car pursuant to a random mobile R.I.D.E. program. The Appellant admitted to drinking “a little bit” and the officer noted a “strong odour” of alcohol. Given this information, P.C. Moffat made a roadside screening device (ASD) demand, pursuant to s. 254(2). The Appellant blew into the device, registering a “fail”. At this point, the officer arrested the Appellant for driving “over 80” and made the impugned Intoxilizer demand, pursuant to s. 254(3).

[5] There was one deficiency alleged in P.C. Moffat’s assertion that he had formed the requisite “reasonable and probable grounds” to believe that the Appellant was driving “over 80”, as required by s. 254(3). That one deficiency was P.C. Moffat’s reliance on the ASD test results. The officer testified, both in chief and in cross-examination, that he used what he described as an “approved screening device”. However, he went on to specify the make of the particular device that he used, describing it as a “6810 GLC” and as a “Drager Alcotester”. He also provided a serial number for the device and its date sticker, namely, September 28, 2012. The “over 80” offence allegedly occurred on October 18, 2012, shortly after the sticker date, and P.C. Moffat testified that this particular ASD was one of “the new Alcotesters that we use”. Finally, P.C. Moffat provided the ASD test number related to the breath sample obtained from the Appellant, explaining that these new Alcotesters “document each test number”.

[6] The problem with the above description of the ASD, according to the Appellant’s Charter argument, is that the federal regulation titled Approved Screening Devices Order, S1/85-200, enacted pursuant to s. 254 of the Criminal Code, does not include the exact same description that P.C. Moffat provided in his testimony. The regulation lists nine different devices as “approved screening devices” and includes two that bear some resemblance to the one described by P.C. Moffat, as follows: “Drager Alcotest 6810”; and “Alcotest 7410 GLC”. However, there is no approval of any device described as “Drager Alcotester 6810 GLC”. The federal regulation came into force on March 28, 2012 and it had, therefore, been in force for over six months when P.C. Moffat stopped the Appellant’s car on October 18, 2012.

[7] Based on the above inconsistency between the descriptions of the approved devices in the federal regulation and the approved device described by P.C. Moffat, counsel for the Appellant submitted that P.C. Moffat could not reasonably have formed the requisite grounds for a s. 254(3) demand. He framed the argument in the following terms:

“And therefore a reasonable person standing in the shoes of the officers, knowing that his device was 6810 GLC and knowing that the law is that only 6810 is approved, would not be able to form reasonable and probable grounds …”

[8] The trial judge concluded that a s.8 Charter breach had been made out but he declined to exclude the evidence of the Intoxilizer test results pursuant to s. 24(2) of the Charter. In relation to the s. 8 breach, he reasoned as follows:

“I have no doubt that the officer believed that he administered an approved screening device in this case. I also tend to think he simply made an error in his description of the device in his evidence. Nevertheless, the evidence falls short of establishing that the device used in this case was an approved screening device. There is no dispute that a registered fail result on an approved screening device is sufficient to provide an officer with the necessary grounds to make a subsequent Intoxilizer demand. The difficulty for the prosecution here is that it has not proven that the device used in this case was an approved screening device. The subsequent Intoxilizer demand was therefore not made in compliance with s. 254(3) of the Criminal Code. That being the case, I am persuaded that there was a s.8 Charter breach.

I view the breach here as essentially a technical breach. As I indicated earlier, I tend to think that the officer’s description of the screening device was simply a testimonial error or a clerical error, as opposed to any notion that the officer was employing a device that was not approved by the government. I say this because P.C. Moffat testified not only as to the type of screening device but also gave the model number and the test number for Mr. Zhao that was seen on this device.”

[9] In relation to the requested s. 24(2) remedy, namely, excluding the test results, the trial judge held that the Appellant’s detention at the roadside was lawful and not contrary to s. 9 of the Charter, that the officer had sufficient grounds for the s. 254(2) roadside screening device demand (“reasonable grounds to suspect” alcohol in the body), and that there was no s. 8 or s. 9 Charter violation prior to the s. 254(3) demand. More importantly, Lipson J. found that the s. 8 breach was merely “an error” or a “technical breach”, that it was made in “good faith” and was “minimally intrusive”, that it produced “highly reliable” evidence, and that the case involved “serious societal concerns” about drinking and drinking. Applying the framework for s. 24(2) analysis set out in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), the trial judge concluded that the evidence should be admitted.

[10] The Appellant does not challenge the trial judge’s reasoning or his conclusion in relation to the s. 24(2) issue. The sole ground of appeal is that the trial judge failed to go on and consider the alternative remedy sought pursuant to s. 24(1) of the Charter, namely, preventing the Crown from relying on the “presumption of identity” in s. 258(1)(c).

[11] There is no doubt that the Appellant set out alternate remedies, pursuant to s. 24(2) and s. 24(1), in his Notice of Motion and in his oral submissions at trial. There is equally no doubt that the trial judge addressed the s. 24(2) remedy in thorough and detailed reasons, as summarized above, but did not expressly address the alternate s. 24(1) remedy.

[12] The Crown submits that Lipson J.’s conclusions concerning s. 24(1) are implicit or can be inferred from his reasons concerning s. 24(2) and that, in any event, this Court on appeal can further articulate the reasons as to why the requested s. 24(1) remedy would not be “appropriate and just” in this case. I agree with the Crown, that the failure of the trial judge to explicitly or separately address the requested s. 24(1) remedy is an issue that can be amplified or clarified on appeal by taking the trial judge’s findings in relation to s. 24(2) and applying them to the established legal principles concerning s. 24(1) remedies. As Binnie J. put it in the leading case on the duty to provide reasons, R. v. Sheppard (2002), 162 (C.C.C. (3d) 298 at paras. 46 and 55 (S.C.C.), speaking for a unanimous Court:

These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene.

Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record.

Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court’s explanation in its own reasons is sufficient. There is no need in such a case for a new trial. The error of law, if so found, would be cured under the s. 686(1)(b)(iii) proviso.

One of the cases relied on by Binnie J., in setting out the above principles, was R. v. McMaster (1996), 1996 234 (SCC), 105 C.C.C. (3d) 193 at para. 26 where Lamer C.J.C. gave the judgment of the Court and stated:

I am of the view that in cases where the law is well settled and the disposition turns on an application of the law to the particular facts of the case, it will be difficult for an appellant to argue that the failure to provide reasons requires appellate intervention. As Doherty J.A. held in R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at p. 204 (Ont. C.A.):

Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.

Also see: R. v. M. (R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 at paras. 15-19 and 37-41; R. v. Tong, 2014 ONSC 1861 at paras. 42-3.

[13] In my view, once Lipson J. found that the s. 8 Charter violation was merely “an error”, or a “technical breach” made in “good faith”, and that it was “minimally intrusive” and produced “highly reliable” evidence relevant to a case that raised “serious societal concerns”, it was either implicit or inevitable that the s. 24(1) remedy sought by the Appellant was not “appropriate and just in the circumstances”. I reach this conclusion for a number of reasons.

[14] First, I agree with the trial judge that the alleged Charter violation was, at best, a minor technical error. Indeed, as I read the trial judge’s reasons, it can be concluded that the device in question probably was an “approved screening device”. I say this because the trial judge twice stated: “I tend to think that the officer’s description of the screening device was simply a testimonial error or a clerical error as opposed to any notion that the officer was employing a device that was not approved by the government”. This is simply a matter of common sense. In R. v. Gundy (2008), 2008 ONCA 284, 231 C.C.C. (3d) 26 at para. 46 (Ont. C.A.), Rosenberg J.A. gave the judgment of the Court and agreed with the following statement of Langdon J. in R. v. James (1995), 26 W.C.B. (2d) 108 (Ont. S.C.J.):

“… what is the likelihood that the O.P.P. would supply its constables with an unapproved device with which to enforce the R.I.D.E. program?”

[15] The same could be said in the present case as P.C. Moffat was a member of a major metropolitan police force and he was enforcing an organized mobile R.I.D.E. program. Furthermore, there was no suggestion that this particular device produced test results that were somehow unreliable or inaccurate. Most importantly, P.C. Moffat testified repeatedly that he was using an “approved screening device”. Finally, the more detailed description of the device that he provided was very similar to one of the “approved devices” listed in the federal regulation. In all these circumstances, there was a sound basis for the trial judge to conclude, as he did, that the unnecessarily detailed description of the device provided by P.C. Moffat was probably “a testimonial error or a clerical error”. The trial judge could properly have found no s. 8 violation at all, based on the reasoning set out in R. v. Gundy, supra at paras. 45-6 and 50, where Rosenberg J.A. stated:

The officer is not required to refer to the device by its particular brand and number such as “Alcotest 7410 GLC”. Further, references to a part only of the identification such as “Alcotest” or “Alcotest GLC” do not rebut the reasonable inference from the officer’s reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer’s name, for example “Drager Alcotest 7410 GLC”, is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V. R. (5th) 97 (Ont. S.C.J.).

Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device.

In the absence of credible evidence to the contrary, the officer’s testimony that he or she made a demand with an approved screening device is sufficient evidence that the officer had the requisite reasonable belief. The officer is not required to give the particular model number or otherwise identify the device. Obvious errors such as incomplete reference to the model number do not undermine the officer’s testimony that the device was an approved screening device. [Emphasis added.]

[16] It must be remembered, in this regard, that the burden on the Crown on a s. 8 Charter Motion in a drinking and driving case is to establish, on the civil standard, that the warrantless seizure of breath samples was reasonable. See: R. v. Haas (2005), 2005 26440 (ON CA), 200 C.C.C. (3d) 81 (Ont. C.A.). In other words, the issue was whether it was more probable than not that P.C. Moffat reasonably believed that the device he was using was an approved screening device that he could rely on when forming his grounds under s. 254(3). There was no burden on the Crown to prove that the device used was, in fact, an “approved screening device”. The trial judge, therefore, asked himself the wrong question when he twice stated: “the evidence falls short of establishing that the device used in this case was an approved screening device … the prosecution … has not proven that the device used in this case was an approved screening device”. [Emphasis added.] Once again, Rosenberg J.A.’s judgment in R. v. Gundy, supra at para. 43, sets out the correct way in which to frame the s. 8 Charter issue:

Note that it is the reasonable and probable grounds that must be shown to exist. It may turn out that, in fact, the motorist’s ability to drive was not impaired or that the motorist’s blood alcohol level did not exceed the legal limit. The question is whether a reasonable person with the same information as the officer would have concluded that there were reasonable and probable grounds to believe an offence had been committed. Thus, if the device used by the officer was not in fact an approved screening device, the objective component may or may not be made out; it depends upon whether the officer could reasonably believe that the device he or she was using was an approved device. [Emphasis added.]

Also see: R. v. Coutts (1999), 1999 3742 (ON CA), 136 C.C.C. (3d) 225 at paras. 20-21 (Ont. C.A.); R. v. Topaltsis (2006), 2006 26570 (ON CA), 34 M.V.R. (5th) 27 at paras. 8-9 (Ont. C.A.); R. v. Beharriel, 2014 ONSC 1100, [2014] O.J. No. 882 (S.C.J.); R. v. Rilling (1973), 1973 ALTASCAD 22, 11 C.C.C. (2d) 285 (Alta. C.A.), aff’d (1975) 1975 159 (SCC), 24 C.C.C. (2d) 81 (S.C.C.).

[17] Accordingly, the s. 8 violation in this case, if there was any violation at all, was of the most marginal or “technical” kind, as the trial judge put it. In these circumstances, a strong s. 24(1) remedy such as prohibiting the Crown from reliance on the “presumption of identity” was not “appropriate and just in the circumstances”.

[18] In this regard, Mr. Genis concedes that the practical effect of prohibiting the Crown from reliance on the “presumption of identity” is that the accused would be acquitted. The trial on the merits and the Charter Motion were conducted as a single blended proceeding, the Crown had closed its case, the defence had been called on and had elected not to call evidence on either the Charter Motion or the trial, and full argument about the alleged deficiency in P.C. Moffat’s s. 254(3) grounds had been made. In these circumstances, the Crown could not have successfully re-opened its case and called an expert toxicologist to relate the Intoxilizer test results back to the time of driving. Without access to the s. 258(1)(c) “presumption of identity”, which was the s. 24(1) remedy sought by the Appellant, the Crown could not prove its case and the result would have been an acquittal. See: R. v. Charette and Tran (2009), 2009 ONCA 310, 243 C.C.C. (3d) 480 at paras. 35 and 47 (Ont. C.A.); R. v. P. (M.B.) (1994), 1994 125 (SCC), 89 C.C.C. (3d) 289 (S.C.C.).

[19] In these circumstances, granting a s. 24(1) remedy that would effectively destroy the Crown’s case and inevitably lead to an acquittal, as a response to a minor “technical” error, would not have been “appropriate and just”. It would grant the Appellant an unwarranted “windfall” and “over-shoot” the nature of the s. 8 breach. See: R. v. Grant, supra at paras. 17 and 106; R. v. Zarinchang (2010), 2010 ONCA 286, 254 C.C.C. (3d) 133 at paras. 58-61 (Ont. C.A.); R. v. Piccirilli, 2014 SCC 16, 2014 S.C.C. 16 at paras. 40-44.

[20] The second reason for concluding that the trial judge must have denied the s. 24(1) remedy, and that he was correct in this regard, is that the leading authorities concerning s. 24(1) of the Charter inevitably lead to this result. It has often been said that the language of s. 24(1) – “such remedy as the court considers appropriate and just in the circumstances” – “appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights” and that “it is difficult to imagine language which could give the court a wider and less fettered discretion”. See: R. v. Mills (1986), 1986 17 (SCC), 26 C.C.C. (3d) 481 at 501 (S.C.C.); R. v. 974649 Ontario Inc. [Dunedin] (2001), 2001 SCC 81, 159 C.C.C. (3d) 321 at para. 18 (S.C.C.); Doucet-Boudreau v. Nova Scotia, 2003 SCC 62, [2003] 3 S.C.R. 3 at 23-4.

[21] As Professor Roach points out in his leading text, Constitutional Remedies in Canada, (Canada Law Book, 2013), 2nd Ed. at s. 3-15, the courts have developed a set of principles in order to give purposive effect to the broad remedial power set out in s. 24(1):

A preferable approach to either relying on unfettered remedial discretion or rule-bound remedial discretion is to exercise remedial discretion with regard to general principles. General principles differ from rules because they can be interpreted and applied in different contexts. They do not apply in an all-or-nothing manner depending on whether specific factual preconditions are present. The appeal of principles to guide remedial discretion is that it promises to bring the same type of transparent methodology to remedial decision-making that is available at other stages of Charter adjudication where courts apply a purposive approach to the interpretation of Charter rights and apply general principles of proportionality in determining whether limits on rights are justified.

As will be seen in the next section, the Supreme Court has advocated a purposive approach to remedial decision-making that is similar to the approach taken when interpreting other parts of the Charter. Moreover, it has articulated general principles such as the need to provide meaningful and compensatory remedies and the need to respect the role of courts and other branches of government to guide remedial decision-making. The courts have also articulated a framework to allow governments … to demonstrate how remedies will harm good governance in a manner somewhat similar to that used under s. 1 of the Charter in determining whether a government has justified a limit on a Charter right as reasonable and proportionate. Trial judges still exercise remedial discretion under this approach, but they must exercise that discretion reasonably and in a way that is informed by the relevant constitutional purposes, principles and constraints.

In a series of cases, the Supreme Court of Canada has articulated a purposive approach to the exercise of remedial discretion. This approach seeks to integrate Charter remedies with the purposes of the particular Charter right being remedied, the general purposes and values of the Charter and the methodology that is applied to the interpretation of all Charter rights and the justification of limits on rights. [Emphasis added.]

[22] The two leading cases, that set out the guiding principles governing s. 24(1) remedies, are Doucet-Boudreau and Ward. In the former case (Doucet-Boudreau, supra at paras. 25, 55 and 58-59), Iacobbucci and Arbour JJ. gave the majority judgment and stated:

Purposive interpretation means that remedies provisions must be interpreted in a way that provides “a full, effective and meaningful remedy for Charter violations” since “a right, no matter how expansive in theory, is only as meaningful as the remedy provided for its breach” (Dunedin, supra, at paras. 19-20). A purposive approach to remedies in a Charter context gives modern vitality to the ancient maxim ubi jus, ibi remedium: where there is a right, there must be a remedy. More specifically, a purposive approach to remedies requires at least two things. First, the purpose of the right being protected must be promoted: courts must craft responsive remedies. Second, the purpose of the remedies provision must be promoted: courts must craft effective remedies.

First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. An ineffective remedy, or one which was “smothered in procedural delays and difficulties”, is not a meaningful vindication of the right and therefore not appropriate and just.

Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right.

Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter. As such, s. 24, because of its broad language and the myriad of roles it may play in cases, should be allowed to evolve to meet the challenges and circumstances of those cases. That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case. [Emphasis in italics in the original; underlining added.]

[23] In the subsequent Ward case, the plaintiff Ward successfully sued the Vancouver police for breaches of his s. 8 Charter rights, in particular, for strip searching him and seizing his car without cause. The British Columbia courts awarded damages as a s. 24(1) remedy for both of these s. 8 violations. On further appeal, the Supreme Court of Canada upheld the remedy of damages for the strip search but not for the seizure of the car. McLachlin C.J.C. gave the unanimous judgment of the Court and built on the s. 24(1) principles set out by Iacobucci and Arbour JJ. in Doucet-Boudreau, holding that the basic framework for s. 24(1) analysis requires two distinct steps: first, an inquiry into whether the particular remedy sought (damages in the Ward case) is functionally justified; and second, whether the state can establish any countervailing factors, relating broadly to “good governance”, that would justify limiting access to the particular remedy. The Chief Justice summarized this framework in the following terms (Ward, supra at paras. 32-3):

As discussed, the basic requirement for the award of damages to be “appropriate and just” is that the award must be functionally required to fulfill one or more of the objects of compensation, vindication of the right, or deterrence of further Charter breaches.

However, even if the claimant establishes that damages are functionally justified, the state may establish that other considerations render s. 24(1) damages inappropriate or unjust. A complete catalogue of countervailing considerations remains to be developed as the law in this area matures. At this point, however, two considerations are apparent: the existence of alternative remedies and concerns for good governance. [Emphasis added.]

[24] The first step in the Ward analytical framework, concerning functional justification, builds on the requirement in Doucet-Boudreau that s. 24(1) remedies must be “responsive” and “must address the circumstances in which the right was infringed or denied”. The second step in the Ward framework, concerning countervailing considerations, builds on the requirement in Doucet-Boudreau that a s. 24(1) remedy must also be “fair to the party against whom the order is made”, that is, the remedy “should not impose substantial hardships that are unrelated to securing the right”. In relation to the second step in the framework, McLachlin C.J.C. stated in Ward, supra at paras. 37-9, that “countervailing considerations” related to “good governance” may require an inquiry into whether the impugned state conduct “meets a minimum threshold of gravity” and, if not, whether lesser remedies such as “declarations of Charter breach may provide an adequate remedy”.

[25] The Court proceeded to apply this two-step framework to the facts of the Ward case and held that the remedy of damages was “appropriate and just” for the strip search violation of s. 8 but not for the vehicle seizure violation of s.8. The Court reasoned (Ward, supra at paras. 64-6) that the “unnecessary and violative” strip search was a “serious” s. 8 violation and it justified the strong remedy of damages for two reasons, both of which effectively mirror the first two lines of inquiry for s. 24(2) analysis set out in R. v. Grant, supra:

“In sum, the [strip search] Charter breach significantly impacted on Mr. Ward’s person and rights and the police conduct was serious.”

[26] However, in relation to the vehicle seizure, which had not led to any search of the car before it was returned to the plaintiff Ward, the Court reached the opposite result. McLachlin C.J.C. stated (Ward, supra at paras. 76-8):

“While the seizure was wrong, it was not of a serious nature … I conclude that a declaration under s. 24(1) that the vehicle seizure violated Mr. Ward’s right to be free from unreasonable search and seizure under s. 8 of the Charter adequately serves the need for vindication of the right and deterrence of future improper car seizures.”

[27] Mr. Genis, counsel for the Appellant, has not attempted to apply the framework for s. 24(1) analysis that emerges out of Doucet-Boudreau and Ward to the case at bar. Indeed, none of the leading s. 24(1) authorities were cited at trial or on appeal. I am satisfied that, had this task been undertaken before Lipson J. or before this Court, it would not have led to the requested s. 24(1) remedy. The difficulty for the Appellant, in this regard, is that the s. 8 violation was minor and technical and did not involve any significant state misconduct. Furthermore, Lipson J. found that the breath sample demand was “minimally intrusive” of the Appellant’s s.8 privacy interests. Applying the principles set out in Ward, the lesser remedy of a declaration was more than sufficient to achieve the functional purposes of s. 24(1) remedies in this particular case. Any stronger remedy, such as denying the Crown access to the “presumption of identity” and effectively directing a verdict of acquittal in a case where there were “serious societal concerns” about drinking and driving, would have been disproportionate and unfair to countervailing “good governance” interests.

[28] I should not leave this issue without noting that there appears to be no binding authority, from the Ontario Court of Appeal or the Supreme Court of Canada, as to whether a Charter claimant can resort to s. 24(1) remedies in a drinking and driving case where a remedy pursuant to s. 24(2) has been denied. Moldaver J.A. declined to address the issue, when giving the judgment of the Court of Appeal in R. v. Charette and Tran, supra at para. 30. Mr. Genis concedes that the argument is a “novel” one. At the trial proceedings, he submitted forthrightly that the s. 24(1) argument “allows us to go around Grant essentially”. This apparently frank acknowledgement, that the Grant approach to s. 24(2) is a difficult one in drinking and driving cases and so s. 24(1) provides a better remedial means of getting to essentially the same result, does not sound like a principled reason for allowing resort to s. 24(1) when s. 24(2) has failed.

[29] However, it must be acknowledged that the remedy being sought under s. 24(1), namely, an order prohibiting reliance on the “presumption of identity”, does not strictly involve the admissibility of evidence. See: R. v. Charette and Tran, supra at para. 46. Accordingly, there is a principled basis for situating this particular remedy under s. 24(1) and not under s. 24(2). However, the practical effect of the remedy is very similar to excluding evidence of the Intoxilizer test results. Without access to the “presumption of identity” under s. 258(1)(c), the test results on their own are essentially valueless. The Crown would have to call an expert toxicologist in every case where s. 24(1) is raised, to relate the test results back to the time of driving, or else risk an inevitable acquittal if s. 24(1) relief is granted at the end of the trial. Alternatively, the Crown could refuse to consent to blended trial and Charter proceedings whenever s. 24(1) is raised and could insist on a separate s. 8 voir dire at the start of the trial, and then await the trial judge’s ruling on any s. 24(1) remedy before closing its case. Needless to say, this would significantly lengthen, delay and complicate drinking and driving trials.

[30] Given that the traditional s. 24(2) remedy in drinking and driving cases (exclusion of the test results) and the novel s. 24(1) remedy (denial of access to the “presumption of identity”) have very similar impacts, and given that the s. 8 violation is identical in either case, one would not expect significantly different remedial results under these two closely connected provisions of the Charter. Both provisions are found in s. 24 and both provisions require a broad consideration of all the circumstances, before granting a particular remedy. Indeed, it could be argued that s. 24(2) simply particularizes the test for when it would be “appropriate and just” under s. 24(1) to grant the remedy of excluding evidence. In this regard, it should be remembered that the introductory words to s. 24(2) are: “where, in proceedings under subsection (1) …” Furthermore, as noted above, the s. 24(1) framework for analysis that emerges out of Doucet-Boudreau and Ward bears a number of similarities to the s. 24(2) framework for analysis that emerges out of Grant. Indeed, McLachlin C.J.C. authored both Grant and Ward, exactly one year apart, and Grant was cited and referred to in Ward, supra at para. 52, for the proposition that:

“The seriousness of the breach must be evaluated with regard to the impact of the breach on the claimant and the seriousness of the state misconduct.”

[31] For all these reasons, I am sceptical of the proposition that s. 24(1) and s. 24(2) will yield different results in this specific context. I am certainly satisfied that they did not yield different results in this particular case.

[32] Finally, I should note that I was referred to the decision of Tuck-Jackson J. in R. v. Francois Jordaan, unreported, November 28, 2012 (Ont. C.J.), where she granted the same s. 24(1) relief sought in the present case after finding a relatively minor s. 8 violation and after denying s. 24(2) relief. I did not find the decision helpful, given that the trial judge’s brief analysis of the s. 24(1) issue contained no reference to, or application of, the s. 24(1) analytical framework that has emerged out of binding authorities from the Supreme Court of Canada, as set out above.

[33] For all these reasons, the appeal from conviction is dismissed.

M.A. Code J.

Released: April 8, 2014

COURT FILE NO.: CR-13-30000115-00AP
DATE: 20140408

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MIN ZHAO

REASONS FOR JUDGMENT

M.A. Code J.

Released: April 8, 2014