R. v. Jodhan, 2015 ONSC 3183

CITATION: R. v. Jodhan, 2015 ONSC 3183

COURT FILE NO.: CR-14-10000099-00AP

DATE: 20150608

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

CHRISTOPHER JODHAN

Respondent

Megan Petrie, for the Appellant

Peter Thorning, for the Respondent

HEARD: April 13, 2015

REASONS FOR JUDGMENT [ON APPEAL FROM THE JUDGMENT OF JUSTICE C. MOCHA OF THE ONTARIO COURT OF JUSTICE DATED JULY 22, 2014)

B. P. O’MARRA j.

OVERVIEW

[1] In the early hours of June 14, 2013, the respondent was driving toward a RIDE spot-check in Toronto. He reversed his vehicle and drove the wrong way on a one-way street. Police followed and located him and the parked vehicle a short distance away. The officer detected a strong odour of alcohol on the respondent’s breath and other indicia of impairment.

[2] The respondent complied with a demand made by the officer for a breath sample into an Approved Screening Device (ASD).

[3] The use of an ASD by police is an important tool in the investigation of possible drinking and driving offences. A “fail” result on a properly calibrated device will provide grounds for an arrest and a demand for breath samples pursuant to s. 254(3) of the Criminal Code. The presence of recent mouth alcohol complicates the process. There may be a need for a short delay before the ASD test to obtain a valid result and the requisite reasonable grounds for an arrest and breath demand. This has led to protracted and complex Charter litigation based on ss. 8 and 24(2).

[4] In this case, the officer did not ask the respondent when he had his last drink. The officer also did not turn his mind to the issue of mouth alcohol before administering the ASD test. The result was a “fail”. On that basis he arrested the respondent for Over 80 and read a demand for samples into an approved instrument. Later at Traffic Services, the respondent provided two samples of his breath with truncated readings of 160 and 140 milligrams of alcohol per 100 millilitres of blood, respectively.

[5] The trial judge acquitted the respondent on the basis that his s. 8 Charter right was violated by the failure of the arresting officer to turn his mind to the issue of mouth alcohol before relying on the accuracy of the ASD result. The trial judge found the breach of s. 8 serious and excluded the evidence of the breath test results pursuant to s. 24(2) of the Charter.

[6] The Crown appeals on the basis of the following alleged errors by the trial judge:

1. applying the incorrect legal test in assessing the officer’s reasonable grounds;

2. finding that the officer’s failure to turn his mind to the issue of mouth alcohol constituted an automatic breach of s. 8 of the Charter;

3. misapprehending the evidence in her analysis related to ss. 8 and 24(2) of the Charter; and

4. failing to properly apply the Grant factors in her s. 24(2) analysis.

SUMMARY OF THE EVIDENCE

Evidence of P.C. Douglas Watkinson

[7] P.C. Watkinson was operating a RIDE program on Lakeshore Boulevard in Toronto in the early morning hours of June 14, 2013. He described the set-up of the RIDE program as it would appear to approaching drivers. There was a white metallic RIDE sign followed by a series of orange cones guiding drivers to a single lane. Police cruisers, with their emergency red and blue lights and an orange flashing arrow above the emergency lights, indicated to drivers to go to the right of the police vehicles to speak to the police. The set-up was designed so that drivers travelling eastbound had to go through the RIDE program.

[8] At 2:36 a.m., P.C. Watkinson observed a vehicle driving eastbound on Lakeshore Boulevard. The vehicle stopped approximately 300 to 400 meters away from him. The vehicle then reversed and began travelling in the wrong direction on the one-way road. Sergeant Brett Moore advised P.C. Watkinson to catch up with the vehicle. P.C. Watkinson followed the vehicle and found it parked on a side street. The respondent was exiting from the driver’s side and a female was exiting from the passenger’s side of the vehicle.

[9] P.C. Watkinson asked the respondent why he had reversed away from the RIDE spot-check. The respondent did not reply. P.C. Watkinson subsequently asked the respondent who was in the car. The respondent replied, “We were.” P.C. Watkinson then asked who was driving. The respondent stated “I was.”

[10] P.C. Watkinson testified that he detected a very strong odour of alcohol on the respondent’s breath. The respondent had very bloodshot eyes. He appeared to be having trouble grasping items from his wallet as he was retrieving his identification. P.C. Watkinson asked the respondent how much alcohol he had consumed that night. The respondent answered “Not much.” P.C. Watkinson did not ask the respondent when he had consumed his last drink.

[11] At 2:38 a.m. P.C. Watkinson read the respondent the demand to provide a roadside breath sample. He testified that he had tested the ASD, a Drager Alcotest 6810, at the beginning of his shift at 2:00 a.m. The machine had been calibrated on June 3, 2013. P.C. Watkinson had performed a self-test using the device and was satisfied the machine was working properly. He demonstrated and explained to the respondent how to use the device.

[12] The machine was calibrated to register a fail when the breath sample showed a concentration of over 100 milligrams of alcohol per 100 millilitres of blood. The respondent blew into the device and it registered a fail. P.C. Watkinson testified that as a consequence of the test result he had reasonable grounds to arrest the respondent for Over 80 and he did so.

[13] At 2:45 a.m. P.C. Watkinson read the respondent the demand to provide breath samples into an approved instrument. They left the scene at 2:49 a.m. and arrived at Traffic Services at 2:58 a.m.

[14] While he was being paraded at the station, the respondent asked for a glass of water. P.C. Watkinson noted that the respondent’s eyes were very bloodshot and he had a very strong smell of alcohol on his breath. P.C. Watkinson went into the breath room with the respondent and remained with him throughout the testing. Before the first test, the respondent asked for and was given another glass of water.

[15] The respondent provided his first sample of breath at 3:27 a.m. He provided his second breath sample at 3:50 a.m. He asked for and was given two more glasses of water during the 17-minute interval between the two tests. The truncated results were 160 and 140 milligrams of alcohol per 100 millilitres of blood, respectively. The officer provided the respondent with the paperwork related to the Over 80 charge along with the Certificate of a Qualified Technician. The respondent was released at 4:28 a.m.

[16] In cross-examination, P.C. Watkinson agreed that the strength of alcohol odour emanating from a person’s breath is not indicative of the amount of consumption. He agreed that it could be an indicator of recent consumption. He disagreed with the suggestion that there is a correlation between the strength of the odour of alcohol on a person’s breath and recency of consumption.

[17] P.C. Watkinson testified that he was aware of the concept of mouth alcohol and knew that recent consumption can sometimes skew the result of the ASD. He indicated that he did not turn his mind to whether or not the respondent had recently consumed alcohol.

[18] P.C. Watkinson further testified that he had formed no opinion about the recency of the respondent’s alcohol consumption based on the strong odour of alcohol emanating from his breath. The strength of the odour on the respondent’s breath only indicated to him that he had been drinking. In cross-examination, he stated, “I had no reason to – I didn’t ask for it, and I didn’t – like I said, I didn’t ask for it, for his recency of drinking.”

[19] P.C. Watkinson testified that the manner in which he dealt with the respondent was consistent with his training. He said that he had stopped probably “thousands” of drivers at RIDE programs and was trained on the use of the ASD. He agreed that the RIDE program had been set up at 2:04 a.m. and that last call at the bars is 2:00 a.m. He disagreed that the RIDE program was necessarily set-up to coincide with the bars’ closing time, noting that the majority of alcohol related fatalities occur between 2:00 and 5:00 a.m.

[20] In re-examination, Crown counsel sought to ask P.C. Watkinson if he had observed alcohol in the car. The trial judge interrupted the officer’s response that he had not, suggesting that the question was improper re-examination.

Evidence of Sergeant Brett Moore

[21] Sergeant Moore described the set-up of the RIDE program as highly visible, involving four police cars with their lights on, a signboard to advise motorists where to go, cones and a few flares. He testified that the set-up created a funnel effect, such that approaching vehicles had nowhere to go but into the spot-check. At 2:36 a.m. he saw a vehicle about 300 feet away reverse west on the eastbound Lakeshore Boulevard.

[22] The Respondent did not testify at trial.

THE TRIAL JUDGE’S ASSESSMENT OF REASONABLENESS

[23] The trial judge accepted P.C. Watkinson’s evidence that he had an honest belief that the ASD fail result was accurate. However, she determined that his belief was not reasonable. She found that, in not turning his mind to the issue of mouth alcohol, the officer had failed to take into account an “essential element” of the appropriate decision making process. She rejected the Crown’s argument that mouth alcohol was not a concern in this case and noted that it is not for the court to engage in its own assessment of the reasonableness of the officer’s grounds. In her reasons for judgment, she indicated as follows:

… the officer, had he turned his mind to that, may have pointed out other factors that were not testified to.

Had he turned his mind to it, he may have noticed other things. He may have had other questions, or at least may have taken other things into account that this court is not aware of.

For this court to make an assessment without being on the scene, without having the benefit of someone who didn’t turn their mind to it, is trying to make an assessment in a vacuum. It is up to the officer to do that, and to bring to the attention of the court what factor (sic) they took into account and then the court to decide whether or not that is an honest belief, based on reasonable grounds.

STANDARD OF APPELLATE REVIEW

[24] The standard of review on the determination of reasonable grounds is correctness. Appellate courts must show deference to the trial judge’s findings of fact when asked to assess the objective reasonableness of officers’ grounds. However, the trial judge’s ultimate ruling is a question of law reviewable on the standard of correctness. See R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 18 and 20; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, at para. 48; and R. v. Wang, 2010 ONCA 435, [2010] O.J. 2490, at para. 18.

REASONABLE AND PROBABLE GROUNDS

[25] s. 254(3) of the Criminal Code authorizes an officer to make an intoxilyzer breath demand if he or she has reasonable grounds to believe that a person is committing or has in the preceding three hours committed the offence of impaired operation or Over 80. Reasonable and probable grounds have both a subjective and an objective component. The officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code and there must also be reasonable grounds for his belief.

[26] The objective reasonableness of the officer’s grounds must be assessed in light of the totality of the evidence. It is an error of law to test individual pieces of the evidence offered to establish the existence of reasonable and probable grounds. See R. v. Huddle, 1989 ABCA 318, 21 M.V.R. (2d) 150.

[27] Justice Durno of this court reviewed the leading authorities on delaying ASD tests, including R. v. Bernshaw, [1995] 1 S.C.R. 254 and R. v. Einarson, [2004] O.J. No. 852 (C.A.), in R. v. Mastromartino et al., [2004] O.J. No. 1435 (S.C.J.) and summarized the relevant principles as follows at para. 23:

1. Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.

2. If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.

3. Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.

4. Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.

5. Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer’s belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.

6. The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.

7. If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.

8. If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.

[28] Further on, at para. 31, Durno J. made the following observations about the characteristics and knowledge of the reasonable person:

[A]s regards, the objective criteria, the “reasonable person” standing in the shoes of the officer must possess the same information as the officer. That knowledge includes that residual mouth alcohol may affect the reliability of the test. If it is part of the officer’s knowledge, it is also part of the reasonable person’s knowledge.

[29] The requirement that an officer turn his or mind to mouth alcohol does not impose a duty to check in every case whether there has been recent consumption. The crucial determinant is whether there is any evidence of one or more of the circumstances that mandate the delay, such as recent consumption, vomiting, regurgitation or any other factor that requires waiting. Furthermore, the mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the statutorily approved screening device. Where an officer honestly and reasonably concludes on the basis of available information that he can form no opinion as to whether the driver has consumed alcohol within the prior 15 – 20 minutes, the officer is entitled to rely on the accuracy of the statutorily approved screening device and administer the test without delay. In each case, the officer’s task is to form an honest belief based on reasonable grounds about whether a short delay is necessary to obtain a reliable reading and to act on that belief. See R. v. Bernshaw; R. v. Einarson; R. v. Bridgeman, [2005] O.J. No. 5334 (S.C.J.); and R. v. Burns, [2002] A.J. No. 219 (Alta. Q.B.).

[30] In R. v. Maracle, [2008] O.J. No. 2974 (S.C.J.), the officers did not ask the driver about the time of his last drink when they stopped him shortly after he left an establishment where alcohol was being served. Justice Lalonde on appeal found that the trial judge had erred in finding that the court could not assess the reasonableness of the officers’ grounds. He indicated that the trial judge applied the wrong test, as there was evidence for him to determine if the police officer’s belief was reasonable. Cross-examination of the arresting officer showed that the officer did not have any concerns about the time of the last drink. The suspect was not smoking, not burping, not vomiting and had nothing in his mouth prior to providing the sample. This was enough to allow the trial judge to assess whether or not the officer had acted reasonably. The officer had a subjective belief in the reliability of the roadside test. Justice Lalonde went on to refer to Mastromartino, which summarized the principles contained in Bernshaw and Einarson. He confirmed the test as enunciated on the reasonableness of the police officer’s action upon stopping a motorist, noting that officers are not required to ask when a detained motorist had his last drink.

[31] The failure of an officer to address his mind to the issue of mouth alcohol before making an ASD demand does not necessarily result in a breach of s. 8 of the Charter. Justice Ducharme of this court addressed this point in R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579. In that case, there was no evidence as to when the appellant had last drank alcohol. The arresting officer made no inquiries prior to the ASD test. The appellant did not volunteer the information. Justice Ducharme indicated that it would be wholly speculative to assert that the result of the ASD test was unreliable due to the presence of mouth alcohol. If the officer had considered the mouth alcohol issue and decided that he could perform the ASD test without waiting, his decision would have been unassailable on the evidence before the trial judge.

[32] The court went on, however, to consider whether the same can be said when the officer fails to even consider the issue of residual mouth alcohol before performing the ASD test. Justice Ducharme referred to the Einarson decision and indicated that it cannot be said that an officer can reasonably rely on the “fail” registered on an ASD when, despite understanding the concern of mouth alcohol, he fails to even consider an issue so crucial to the proper functioning of the ASD. He went on to explain that if this occurs, and the officer lacks other grounds, the result may be that he will not have the reasonable and probable grounds to make a breath demand pursuant to s. 254 (3) of the Criminal Code or to arrest the driver for a drinking and driving offence. On the facts of that case, however, the officer’s failure to consider the issue of mouth alcohol did not lead to a s. 8 Charter violation. There was no evidence that the appellant was drinking shortly before the administration of the ASD test, and it would have been speculative to conclude that the ASD reading might not have been accurate on that basis. There was no reason to believe that if the officer had considered this issue he would have proceeded in a different fashion than he did.

[33] In the case at bar, the trial judge did not err in finding that the first summarized principle in Mastromartino is an essential element of the reasonableness test. Without turning their mind to recent consumption, officers cannot form opinions about the reliability of the ASD test. However, the trial judge erred in finding that P.C. Watkinson’s failure to turn his mind to the issue of mouth alcohol could not be assessed objectively. The law requires the court to assess the objective reasonableness of an officer’s subjective belief in light of all the evidence available to the officer at the roadside. The reasonable officer in P.C. Watkinson’s position would be aware of the concept of mouth alcohol. He would also be in possession of all the information available to the officer, including the fact that the respondent reversed his vehicle and drove in the wrong direction on a one-way road; had very bloodshot eyes; had difficulty grasping his cards; and his response that he did not drink much alcohol. A reasonable officer in these circumstances could have concluded that the ASD fail result would be reliable.

MISAPPREHENSION OF THE EVIDENCE

[34] The standard of review in regard to an alleged material misapprehension of evidence is that it must go to the substance, rather than the detail. It must be material rather than peripheral to the reasoning of the trial judge. Further, the error must play an essential part in the judge’s reasoning. See R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 1 and 2.

[35] The appellant submits that the trial judge improperly interrupted the trial crown’s re-examination and thus prevented the officer from explaining his reasons for not turning his mind to the issue of mouth alcohol.

[36] The officer was cross-examined on the issue of mouth alcohol as follows:

Q. Okay, so you then, therefore, had no opinion about the recency of the consumption based on the strong odour that you say was emanating from Mr. Jodhan’s breath?

A. Well, I had no reason to – I didn’t ask for it, and I didn’t – like I said, I didn’t ask for it, for his recency of drinking.

Q. I know. I know you didn’t ask for it. What I’m asking you now is that you had no opinion, sir, about whether or not his consumption was recent?

A. As for recency, no.

Q. All right, so the strength of the odour played no role, absolutely zero role, in your estimation as to whether or not consumption was recent?

A. No, just that there was consumption.

Q. Okay, and, in fact, that wasn’t something that you turned your mind to, whether or not there had been recent consumption?

A. It wasn’t on my mind, no.

[37] The relevant portion of the re-examination of the officer is as follows:

Q. Officer, just – now, officer, when you pull – you first pulled up with your vehicle and got out, we have heard the DVD, you said, I believe, “Hi,” is that correct?

A. That’s correct.

Q. Did you smell alcohol on the accused at that point?

A. No.

Q. At what point in this process did you smell alcohol?

A. It was during the course of the conversation. The more conversation I had, the more alcohol I could smell.

Q. All right, and do you remember the line of – the suggestion to you from defence counsel that it was inconsistent for you to ask who was driving when you knew who was driving?

A. Yes.

Q. Do you remember that? And why did you feel that’s not inconsistent?

A. Because I already knew the answer to the question.

Q. Okay, so if you knew the answer, defence counsel’s point is it’s inconsistent to ask it, why did you think it was not inconsistent?

A. It was just a question I asked.

Q. Now, did you have occasion to observe any alcohol in the car, or beer cans, or anything like that?

A. Not that –

The court: Just a minute, just a minute, just a minute. How is that re-examination?

Mr. O’Connor: Well, it was raised by counsel.

The court: Counsel never asked a question about whether or not there was any alcohol in the car.

Mr. O’Connor: Well, he has asked about 15 minutes, and –

The court: No, he actually never put that amount of time. What he did was repeat what was said in-chief, about the fact that he had never questioned the defendant about when his last drink was.

Mr. O’Connor: I see.

The court: There was nothing about 15 minutes. There was nothing about –

Mr. O’Connor: All right.

[38] The trial judge indicated the following at pages 23 and 24 in her judgment:

I would have had no concern had the officer said, even if he had used the words, ‘I didn’t turn my mind to this because I didn’t see any reason to consider this as affecting my assessment that the fail or the result would be accurate,’ then, in essence, he did turn his mind to it, and that was a decision he made. There is no duty on him to ask when the last drink was consumed, and that makes sense because there is no duty on anyone to respond to the officer.

And if the officer feels that, as a result, that the test can be taken right away, then that should be sufficient, but the officer is required to at least consider whether or not that is an issue, and to at least turn his mind to that issue because it is relevant as to whether or not the result will be accurate.

He certainty, and I accept that he had an honest belief that the result was accurate, but I can’t see that that honest belief was based on reasonable grounds, given the officer’s testimony that he didn’t turn his mind to it, and that is an essential element, and the case law has indicated that that’s an essential element.

[39] The transcript excerpts provided above indicate that the questions on cross-examination did in fact pertain to the issue of a 15 minute delay and mouth alcohol. In the absence of re-examination and clarification, the trial judge may have materially misapprehended the evidence on this point.

SECTION 24(2) OF THE CHARTER

[40] Based on P.C. Watkinson’s testimony that his treatment of the respondent was consistent with his training and that he had stopped “thousands” of drivers at RIDE spot-checks, the trial judge found that the Charter breach and its impact on trial fairness were serious. In her view, the seriousness of the breach was magnified by the fact that thousands of people were stopped pursuant to RIDE programs and that police training did not require officers to turn their minds to the issue of mouth alcohol. It appears that the trial judge found that the officer’s failure to turn his mind to the issue of mouth alcohol in this case was symptomatic of a systemic flaw in police training that enables police officers to ignore the first summarized principle in Mastromartino.

[41] The relevant portion of P.C. Watkinson’s testimony is reproduced below:

Q. The manner in which you acted on this video, we have already established that that’s something that you would do in every single case when there’s a drinking driver, is the manner in which you deal with this case, how you have been training to deal with drinking drivers in similar situations?

A. How I have been trained, yes, however, this is a unique situation in itself, as well.

Q. Okay, in terms of – is it fair to say, sir, that you have been training that when you detect an odour of alcohol emanating from a driver at a RIDE program in this type of situation, that you have been trained then, therefore, to make a demand in the manner in which you did in this case?

A. Well, it also comes from the Criminal Code as to why I make those demands.

Q. All right, is that consistent with your training though?

A. That’s what would be taught to me at the Ontario Police College, yes.

Q. Okay, all right, now, in this case, you’re aware, sir, of the concept of mouth alcohol?

A. Oh, yeah.

Q. And you understand, sir, don’t you, that recent consumption can sometimes skew the results of the road-side screener, right?

A. It can, yes.

Q. And that what happens is, is that if you have recent consumption, and that alcohol is in your mouth, you can have a false positive, you can have a false fail; is that fair?

A. Yeah.

Q. And you didn’t ask – in fact, you didn’t turn your mind to whether or not there was recent consumption in this case?

A. No.

Q. And you say that that’s consistent with your training?

A. To not ask about mouth alcohol?

Q. How you dealt with Mr. Jodhan in this case, you say it’s consistent with your training.

A. Yeah.

[42] The trial judge’s conclusion reflects inferences about police training that are not supported by the testimony of the officer. It is a leap to conclude that police are trained never to consider the potential unreliability of ASD tests as a result of mouth alcohol.

[43] The balancing of the relevant concerns under the Grant analysis is subject to considerable appellant deference. However, in this case the trial judge’s exclusion of evidence under s. 24(2) was based apparently on a material misapprehension of the evidence. Thus, she did not properly assess and balance the effect of admitting the evidence on society’s confidence in the justice system. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 71-72, 76-77, 79, 86 and 127.

[44] In an application to exclude evidence under s. 24(2) of the Charter, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the seriousness of the Charter infringing state conduct, the impact on the Charter protected interest of the accused and society’s interest in the adjudication of the case on its merits.

[45] At the first stage of the s. 24(2) analysis, based on the officer’s testimony that his treatment of the respondent was consistent with his training, the trial judge drew unwarranted inferences about the prevalence of the Charter infringing conduct.

[46] The second stage of the inquiry requires an evaluation of the extent to which the breach actually undermined the interest protected by the infringed right. The more serious the incursion on these interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. In the absence of a widespread practice of police ignoring the issue of mouth alcohol, the impact of the breach on this particular driver’s rights was not severe. Breath samples are not particularly intrusive. Since there was no independent evidence of mouth alcohol in this case, the impact of the Charter infringing conduct was arguably minimal.

[47] At the third stage, the court considers whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence in its support for the Crown’s case should be considered at this stage. Society has a vested interest in the prosecution on the merits of drinking and driving offences. The exclusion of the evidence of breath samples in this case is particularly damaging since there is no evidence that the readings themselves were unreliable or skewed by recent alcohol consumption.

[48] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. In all cases it is the long-term repute of the administration of justice that must be assessed. See R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 36.

[49] In this case, if there was a breach of s. 8 of the Charter, the seriousness of the state conduct and the impact on the Charter protected interests were not serious. There is a significant societal interest in a trial on the merits. A balancing of these factors favours inclusion of the evidence.

RESULT

[50] The appeal is allowed and a new trial is ordered before a different judge.

Mr. Justice B. P. O’Marra

Released: June 8, 2015

CITATION: R. v. Jodhan, 2015 ONSC 3183

COURT FILE NO.: CR-14-10000099-00AP

DATE: 20150608

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Appellant

– and –

CHRISTOPHER JODHAN

Respondent

REASONS FOR JUDGMENT

Mr. Justice B. P. O’Marra

Released: June 8, 2015