ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-19165

DATE: 2015-07-17

BETWEEN:

HER MAJESTY THE QUEEN
Appellant/Applicant

– and –

REJEAN BOILY
Respondent

Lawrence Forstner, for the Appellant

Pierre R. Dumais, for the Respondent

HEARD: June 26, 2015

decision on appeal

GAUTHIER, J.

The Appeal

[1] The Crown appeals from the verdict of acquittal entered on June 6, 2014, by the Ontario Court of Justice, at Smooth Rock Falls, on the charge of operating a vehicle with over 80 B.A.C. The Crown does not appeal the verdict of acquittal of the charge of impaired driving.

The Facts

[2] The facts leading up to the respondent’s arrest for impaired driving are not in serious dispute and, in reviewing the facts, I have borrowed liberally from the factum of each of the Crown and the respondent.

[3] Police Constable Huber was the sole police officer on duty in Smooth Rock Falls in the early morning of December 22, 2012. At 2:12 a.m., she observed a white Ford pick-up travelling eastbound with no tail lights. She had seen no other traffic in the area when she pulled the vehicle over at 2:14 a.m. and spoke with the driver, the respondent. There was strong odour of alcohol emanating from the respondent’s breath. He was not wearing his seatbelt.

[4] The respondent fumbled through his wallet attempting to produce his driver’s license for the officer. He incorrectly produced a health card, looked through his wallet some more, and then gave the wallet to the front passenger. The front passenger appeared intoxicated and also produced the incorrect piece of identification in attempting to assist the respondent. The respondent took his wallet back and eventually produced a driver’s license.

[5] Throughout this interaction, Police Constable Huber observed that the respondent’s eyes were glossy and his speech was slurred. She testified that she formed reasonable and probable grounds to believe that the respondent’s ability to operate a motor vehicle was impaired by alcohol at about 2:16 a.m.

[6] The lone officer then returned to her cruiser to conduct a CPIC check in order to obtain information about the respondent’s background. She also conducted checks through the Ministry of Transportation of Ontario, verifying the respondent’s license status and the status of the pick-up which he was driving. She then called her sergeant to let him know about her stop. Because she was the only police officer on duty in Smooth Rock Falls, she requested that someone be sent her way.

[7] When her checks came back “negative”, Police Constable Huber re-attended at the respondent’s vehicle. She asked for his insurance and ownership. He fumbled some more. In response to questioning, he admitted that he had consumed seven or eight beer. At 2:29 a.m. Police Constable Huber arrested the respondent for impaired driving. She handcuffed him to the rear, conducted a pat-down, and placed him in the rear of the cruiser. At 2:31 a.m., she read the respondent his rights to counsel, a caution and issued a demand pursuant to s. 254(3) of the Criminal Code.

[8] Police Constable Huber did not make an approved screening device demand pursuant to s. 254(2)(b) of the Criminal Code, nor did she request that the respondent perform any physical co-ordination tests, pursuant to s. 254(2)(a) of the Criminal Code.

[9] The respondent was transported to the Cochrane detachment in order to provide breath samples. Enroute she met the second cruiser and handed over the keys to the respondent’s vehicle. At 3:31 a.m. and 3:52 a.m., two samples of the respondent’s breath were obtained. The readings were .140 and .134 respectively. The respondent was then charged with the over 80 offence.

[10] The respondent was released that morning on a promise to appear more than three hours after he had completed his second breath test. The respondent remained incarcerated until Police Constable Huber was prepared to return to Smooth Rock Falls at 7:10 a.m. He was dropped off at his residence at approximately 8:30 a.m.

Crown’s Position

[11] The trial judge committed three errors of law:

a. he misapprehended Police Constable Huber’s evidence regarding her continuing investigation of the respondent, from the time of detention, until the time of arrest; the trial judge’s finding that the officer called for back-up due to her concern for officer safety, became the straw man for the subsequent conclusion that the officer did not hold a real concern about officer safety, having left the scene prior to the second cruiser arriving; further the finding that the officer did not require the vehicle registration and insurance documents was contrary to the evidence;

b. finding that Police Constable Huber did not make the demand “as soon as practicable”, thus breaching s. 8 of the Charter; and

c. finding that the admission of the Intoxilyzer results would bring the administration of justice into disrepute contrary to s. 24(2) of the Charter.

Respondent’s Position

[12]

a. the trial judge did not misapprehend Police Constable Huber’s evidence;

b. he did not err in finding that the s. 254(3) demand was not made “as soon as practicable”;

c. the trial judge correctly excluded the Intoxilyzer results pursuant to s. 24(2) of the Charter; and

d. as the trial judge did not commit any error of law, the Crown has no right to appeal from the acquittal.

Police Constable Huber’s Testimony

[13] The officer indicated that, at the time of the stopping and detaining of the respondent, she had concerns for her safety. She had indicated during examination in chief that “I returned to my vehicle where I conducted a CPIC and MTO query of the driver’s license as well as I ran the plates of the vehicle. Everything came back negative on the driver as well as the vehicle.” (p.10, line 8).

[14] At p. 44 of the transcript, beginning at line 18, she said the following in response to defence counsel’s question about her delay in effecting the arrest of the respondent:

“At that point it’s for officer safety reasons. I didn’t know who I was dealing with at that point or how he would react; therefore I went back to my vehicle to conduct a CPIC query to get more information if Mr. Boily had ever been arrested in the past, violent towards police. I was alone in Smooth Rock. There’s two males in that vehicle and in my experience as a police officer dealing with people who you’re about to arrest when they’re intoxicated, their behaviour changes.”

[15] She called her supervisor who indicated that he would send another unit to the scene as she was alone. She indicated to her supervisor that she would be arresting the respondent for impaired driving.

[16] The officer indicated in her evidence that the respondent’s vehicle was going to be towed and impounded. This evidence regarding Police Constable Huber’s intention to arrest and the need to impound the vehicle is corroborated by the testimony of Sgt. James:

“That she had spoken with the driver who had admitted to consuming seven or eight beer. There were some other circumstances that she described to me around grounds that she had been formulating in terms of his impairment or his level of impairment. That would be fumbling with documents. I believe she told me at the time that he provided a driver’s licence, that type of thing. She advised me at that time that he was going to be arrested for impaired, that there was no necessity for an approved screening device, alcotest and that the vehicle would be impounded.”

[17] Police Constable Huber testified that, after the search results were received, she returned to the respondent’s vehicle and requested the respondent’s ownership and insurance documentation, as she required them, both for her notes and for the towing and impounding of the vehicle. Then she placed the respondent under arrest at 2:29 a.m. At 2:31 a.m. the officer provided the respondent with his rights to counsel, the caution, and the breath sample demand. (p. 46, line 7).

The Trial Judge’s Reasons

[18] The trial judge considered that there was no evidence of bad driving, and he referred to Officer Forsayeth’s opinion that the respondent was slightly impaired by alcohol. The judge considered, among other things, the evidence that the respondent had performed the sobriety tests reasonably well, and that he had been cooperative throughout his involvement with police. The judge characterized the evidence of impairment as “equivocal” (p.9, line 30). The Crown had not made out the case for impaired driving beyond a reasonable doubt, thus the acquittal on that charge.

[19] The judge next turned his mind to the alleged s. 8 breach, and the challenge to the admissibility of the breathalyzer readings, in the context of the over 80 charge. He concluded that Police Constable Huber had reasonable and probable grounds to make the breath demand. He then went on to consider the “as soon as practicable” requirement.

[20] The judge concluded that the s. 254(3) demand made by Police Constable Huber was not made “as soon as practicable”. Accordingly, the Crown was not permitted to rely on the Intoxilyzer results. On the admissible evidence, the judge concluded that the Crown had failed to prove beyond a reasonable doubt that the respondent had operated the vehicle with over 80 milligrams of alcohol in 100 millilitres of blood on December 22, 2012.

[21] The judge concluded that the “as soon as practicable” test required more than the explanation provided by Police Constable Huber for the 15 minute delay between the formation of the grounds for the demand and the making of the demand. He referred to Police Constable Huber’s testimony that she had concerns for officer safety and “wanted to call backup”. (p.15, line 7)

[22] He concluded further that “The explanation is not capable of supporting itself on Police Constable Hubert’s [sic] own evidence. The Court finds that this explanation is not sufficient to have delayed the making of the breath demand and was not made as soon as practicable resulting in a violation of the defendant’s rights, pursuant to Section 8 of the Charter.” (p. 15 of transcript of reasons for judgment).

[23] The judge concluded further that Police Constable Huber had failed to explain any change in her safety concerns from the time of the stop until the time of arrest.

“At no time in her evidence did she explain what had changed from the time she went to her cruiser to the time she made the arrest. The reasons for the delay in making the arrest and demand, if they are accepted, still existed at 2:31.”

[24] The trial judge then turned his mind to the three-part Grant analysis. He firstly addressed Police Constable Huber’s decision to arrest the respondent after their first exchange, after she stopped the vehicle. The judge commented on Police Constable Huber’s decision not to avail herself of less intrusive investigative tools, such as an approved screening device or co-ordination tests. She did so because her grounds were reasonable belief, as opposed to reasonable suspicion, based on her observations of the respondent. At p. 17 of his reasons for judgement, the judge said the following:

“The strength of her belief should’ve logically led to the arrest and breath demand much sooner than what occurred here and should also have led to a more cogent explanation for the delay. It’s one thing to decide that the screening device, which is routinely used at all times of day by police forces all over this province, is not required. It’s quite another to then delay the arrest and making of a breath demand for 15 minutes without a reasonable or cogent reason. This conduct in these circumstances can only be described as serious.”

[25] The judge then turned his mind to the second part of the Grant test, that is, the impact of the breach on the respondent. Still at p. 17 of his reasons for judgement, he said the following:

“The intrusion upon the individual liberty of the defendant is significant in this case. Despite being cooperative and posing no difficulty whatsoever for the investigating officer, he was detained well beyond the time that was required. He was entitled to be made aware of the reason for his detention, to be arrested and be read the breath demand. He, instead, sat in limbo for reasons that P/C Hubert [sic] was unable to clearly justify in her evidence.”

[26] With regard to the third and final branch of the Grant test, this is what the trial judge said, at p. 18:

“While the third branch of the test tends toward the admission of this type of evidence, the first and second require closer scrutiny. In Grant, the Supreme Court stated at paragraph 68, and I quote, “….bring the administration of justice into disrepute must be understood in the long-term sense of maintaining the integrity of, and the public confidence in, the justice system.” It further clarified that this is an objective test. Namely, the Court must ask whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude the admission of the evidence would bring the administration of justice into disrepute.

The drink/drive provisions of the Criminal Code provide various shortcuts to the Crown in the prosecution of these offences; shortcuts that do not exist with respect to other offences. These provisions must be interpreted, however, in accordance with the individual rights that are guaranteed by the Charter. In some cases, a delay of 15 minutes before the arrest and breath demand may not offend the Charter. Delay caused during the securing of an accident scene while attending to the urgent medical needs of the defendant or other individuals while restraining a hostile or a dangerous defendant are all examples of reasonable delay.

In this case, there’s no cogent reason offered by P/C Hubert [sic] for the delay. Her evidence simply did not stand up to cross-examination. It left the Court with the belief that, at best, she did not understand the as soon as practicable requirement or at worst, she showed a carelessness for the truth. The Charter requires better than this. So does the long term reputation of the administration of justice. The breath readings are accordingly not admissible in the prosecution’s case against the defendant. There being no further evidence regarding the over 80, there must be an acquittal on this charge…”

Analysis

[27] The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that COULD have been reasonably reached. A court sitting on appeal should only allow an appeal of the decision if:

a. the decision cannot be supported by the evidence, or it is clearly wrong in law, or

b. it is clearly unreasonable, or

c. there was a miscarriage of justice.

R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 (Ont.C.A.) paragraph 32 (my emphasis).

[28] Where a misapprehension of the evidence is alleged, appellate interference is only warranted where the misapprehension is material rather than peripheral to the reasoning of the trial judge. The error must play an essential part of, not only the narrative, but of the reasoning process which resulted in the acquittal. A mere misstatement of or an inaccuracy in the trial judge’s treatment of the evidence does not constitute reversible error. A misapprehension of evidence may refer to a failure to consider evidence relevant to a material issue, a mistake concerning the substance of the evidence, or the failure to give proper effect to the evidence. R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911 (C.A.) at paras. 29 to 32. R. v. Morrisey, 1995 3498 (ON CA), [1995] O.J. No. 639 (C.A.) at para. 83. R. v. C. L. Y., 2008 SCC 2, [2008] S.C.J. No. 2 at para. 19. R. v. J. H., 2005 253 (ON CA), [2005] O.J. No. 39 (C.A.) at para. 46.

[29] On matters of credibility and on factual matters, the reviewing court ought to afford due deference to the advantageous position of the trial judge who heard and saw the evidence.

[30] This is a summary court conviction appeal, pursuant to s. 813 of the Criminal Code. The powers of the appeal court are set out in s.822.

[31] The Crown asks that I substitute a conviction for the over 80 offence and rule on the overholding issue or, that the matter be remitted to the trial judge on the "issue of overholding" or, in the alternative, that I order a new trial on that charge with the judge to rule on the overholding issue. No appeal is taken from the acquittal on the impaired driving charge.

[32] In order for me to substitute the verdict of guilty for the acquittal, I must find that the trial judge's findings of fact support a conviction beyond a reasonable doubt. R. v. Katibak, (2011) 88 C.R. (6th) 276 C.C.C. (3d) (S.C.C.). All of the findings of fact necessary to support the verdict of guilty must have been made either explicitly by the trial judge or not be in issue. R. v. Cassidy (1989), 1989 25 (SCC), 71 C.R. (3d) 351, 50 C.C.C. (3d) 193 (S.C.C.).

[33] In order for me to order a new trial, I must conclude that the judge's error had a material bearing on the verdict of acquittal. R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609.

[34] A demand complies with this requirement if it is made “within a reasonably prompt time. R. v. Squires, 2002 44982 (ON CA), [2002] O.J. No. 2314 (C.A.).

[35] “As soon as practicable” does not mean “as soon as possible”. R. v. James (1987), 1987 6800 (NS CA), 40 C.C.C. (3d) 209, [1987] N.S.J. 395 (N.S.C.A.).

[36] The overall circumstances of the case are to be considered. R. v. Singh, 2014 ONCA 293.

[37] In R. v. Vanderbruggen, the Ontario Court of Appeal said this:

That leaves the question that is at the heart of this appeal – the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 1988 198 (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 1980 2920 (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne, (1990), 1990 10931 (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 1981 2063 (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, 1998 5146 (ON CA), [1998] O.J. No. 4362 (C.A.).

[38] I will address the issues raised on this appeal in the same order as they were considered by the trial judge in relation to the over 80 charge.

[39] At the outset of his reasons, the trial judge identified the following issues:

a. has the offence of impaired driving been established;

b. if not, was there a violation of the defendant’s righto not be subjected to unreasonable search and seizure of his breath, pursuant to section 8 of the Charter;

c. if so, what remedy, if any should be imposed by the Court;

d. was the defendant arbitrarily detained under violation of section 9 of the Charter and;

e. if so, what remedy, if any, should be imposed by the Court.

[40] The judge next turned his mind to the alleged s. 8 breach, and the challenge to the admissibility of the breathalyser readings, in the context of the over 80 charge. He concluded that Police Constable Huber had reasonable and probable grounds to make the breath demand (p.1, line 25).

[41] The trial judge did not accept Police Constable Huber's explanation for having delayed the request for a breath sample for some 16 minutes from the time that she formed the reasonable and probable grounds.

[42] At p. 18, line 23, he said this:

“Her evidence simply did not stand up to cross-examination. It left the Court with the belief that, at best, she did not understand the as soon as practicable requirement or at worst, she showed a carelessness with the truth.”

[43] The Crown suggests that the trial judge made a crucial error when he interpreted Police Constable Huber's evidence to be that she had called Sgt. James for "back up". He says that while initially Police Constable Huber was concerned for her safety (the middle of the night, no other persons or traffic, a vehicle with two males, both of whom appeared impaired by alcohol), this concern was alleviated by the results of her MTO and CPIC searches, which told her that the person she was detaining did not have a criminal record for violence, among other things.

[44] The Crown suggests that in reality, Police Constable Huber's call for another cruiser was related to the need to have a tow truck attend to impound the vehicle, the need to remit the keys to such tow truck operator, and the need to transport the respondent to the Cochrane O.P.P. detachment for processing. No single officer could accomplish all these tasks, thus the request for someone to "be sent her way".

[45] The Crown correctly points out that the words "back up" were never used by Police Constable Huber and her actions, after having received the results of the searches, are consistent with the request for officer assistance in completing all the tasks associated with processing a person charged with impaired driving and arranging for the impounding the vehicle involved, including handing over the keys to the vehicle.

[46] As indicated earlier in these reasons, the trial judge found that Police Constable Huber failed to provide an explanation for her decision to arrest and make the breath demand BEFORE another cruiser arrived, when she had concerns for officer safety.

[47] This finding overlooks Police Constable Huber's evidence that "everything came back negative on the driver as well as the vehicle." (p. 10, line 10). Her concern for officer safety was alleviated. By the time Police Constable Huber returned to the respondent's vehicle, she knew that the driver had no record for violence or otherwise, that there was no issue with regard to the plates on the vehicle, that her supervisor was alerted to the arrest she was about to effect, and another cruiser was being dispatched to the site. Her knowledge of those facts was "what had changed from the time she went to her cruiser to the time she made the arrest".

[48] In addition to finding fault with Police Constable Huber's evidence about officer safety, the trial judge was also critical of Police Constable Huber's actions around obtaining the respondent's ownership and insurance documents. He found that those documents had not been required at the time. In fact, Police Constable Huber's evidence was that she required the vehicle ownership and insurance documentation for her notes and for the impounding of the vehicle. (p. 46, line 11).

[49] I have already referred to the corroborating testimony of Sgt. James.

[50] I conclude that the judge did misapprehend Police Constable Huber's evidence about officer safety and that her actions between 2:15 am or 2:16 a.m. and the time of the arrest and breath demand at 2:31 a.m. This misapprehension played an essential role in the reasoning process which ultimately led to the trial judge’s finding that Police Constable Huber had not made the breath demand "as soon as practicable".

[51] Despite the fact that Police Constable Huber's notes do not indicate the time at which she formed her grounds for the breath demand, the evidence establishes that the grounds would have been formed between 2:14 a.m. when she stopped the respondent's vehicle, and 2:29 a.m., when she placed the respondent under arrest. This is consistent with the testimony of Sgt. James that, in speaking to Police Constable Huber by telephone 2:15 a.m., she advised him that she would be making the arrest. She had formed her grounds by that time.

[52] The demand was made two minutes following the arrest of the respondent.

[53] The delay of 15 or 17 minutes is not unreasonable in the circumstances in which Police Constable Huber found herself at the time. Therefore, the demand was made "as soon as practicable".

[54] The trial judge wrongly decided this issue of fact.

Section 8

[55] After having found that the breath demand was not made as soon as practicable, thereby disentitling the Crown from relying on the presumption in s. 258 of the Criminal Code, the trial judge went on to conclude that the respondent's s. 8 right had been breached.

[56] This finding was in error as well, given that the judge had already come to the conclusion that Police Constable Huber did have reasonable and probable grounds to request the breath sample from the respondent. The taking of the sample then would have been a lawful search. That would have ended the s. 8 inquiry. The fact that the statutory prerequisite of “as soon as practicable” had not met does not automatically result in a breach of s.8.

Section 9

[57] The judge concluded that, although Police Constable Huber had reasonable and probable grounds to arrest and make the breath demand, the decision to delay the arrest and the making of the breath demand "for 15 minutes without a reasonable or cogent reason" was a "serious" breach of the respondent's right to not be arbitrarily detained.

[58] At p. 17 of his reasons, the trial judge said the following:

“The intrusion upon the individual liberty of the defendant is significant in this case. Despite being cooperative and posing no difficulty whatsoever for the investigating officer, he was detained well beyond the time that was required. He was entitled to be made aware of the reason for his detention, to be arrested, and be read the breath demand. He, instead, sat in limbo for reasons that PC Huber was unable to clearly justify in her evidence.”

[59] The trial judge's reasons indicate his view that all three branches of the grant analysis favoured the exclusion of the breathalyzer results.

[60] The judge concluded that there was no evidence to support the over 80 charge and he acquitted the respondent of that offence.

[61] Although a trial judge's finding that there has been a charter breach and his s. 24(2) analysis are entitled to deference on appeal, that deference is not absolute. The trial judge must consider the proper factors in the analyses.

[62] In determining whether evidence has been obtained in a manner that infringed or denied an accused's rights, the trial judge must consider whether there is a sufficient connection or nexus between the evidence sought to be excluded (the breathalyzer results) and the alleged breach (arbitrary detention) such as to render the evidence potentially inadmissible under s. 24(2). R. v. Simon 2008 ONCA 578, [2008] O.J. No. 3072.

[63] I am not convinced that the trial judge did undertake the required analysis of a sufficient connection between breach and evidence. Whether or not that is the case, I will review the judge's s. 24(2) analysis.

[64] In the first stage of his analysis, the trial judge described the breach of the respondent's s. 9 rights to be serious given that at best, Police Constable Huber "did not understand the as soon as practicable requirement or at worst, she showed a carelessness for the truth."

[65] The judge ascribed what can only be described as misconduct or negligence to Police Constable Huber's actions in questioning and ultimately arresting the respondent. He did so in the context of his earlier finding that the officer had not offered any cogent reason for the delay.

[66] As I have concluded that that finding was in error, the characterization of the breach, if any, as serious, cannot stand. I refer as well to the evidence that the respondent was questioned about operating his vehicle without lights and without wearing his seatbelt. He was questioned about his alcohol consumption. I find it difficult to imagine that the respondent would not know, at least in a general sense, why he was being stopped in his vehicle. Although the respondent was detained some 15 or 17 minutes, likely unable to determine how he would defend against any possible criminal accusations, the period of detention was relatively brief.

[67] Taking all of these facts into account, the breach, if any, was not serious.

[68] Additionally, there is no evidentiary basis to find a deliberate denial of the respondent’s Charter rights. As was the case in Karst [2009] O.J. No.4974, the officer had reason to detain the respondent to address officer safety concerns, and where the period of time is relatively short, the seriousness of any Charter infringing conduct is lessened significantly.

[69] Turning now to the impact of the breach on the respondent, the question to be asked, at this stage of the s. 24(2) inquiry, is whether the admission of the breathalyzer results in the face of the respondent having been detained in his vehicle, while the officer performed investigative and duty-related tasks, would result in a greater risk of a signal to the public that charter rights, however laudable, are of little actual avail to citizens thus "breeding public cynicism and bringing the administration of justice into disrepute." (see para. 76 of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.

[70] This second stage of the Grant analysis requires an evaluation of the extent to which a breach actually undermined the interests of the rights infringed.

[71] With respect, this inquiry was not embarked upon by the trial judge.

[72] The trial judge appears not to have considered how the respondent's detention in his vehicle, in the company of his son, for a short period of time, in the middle of the night, impacted on the respondent. Although he described “the intrusion upon the individual liberty of the defendant as significant"(p.17, line 12), the only impact was "sitting in limbo". (p. 17, line 20).

[73] The comments contained in paragraph 66 above are equally applicable to the issue of the impact of the breach.

[74] The trial judge did not have any evidence upon which to analyse the impact of the breach on the respondent. The respondent did not testify about his pre-arrest detention whatsoever. He said nothing about being in limbo.

[75] I turn now to the third prong of the s. 24(2) inquiry that is, society's interest in an adjudication on the merits.

[76] It has long been accepted that breathalyzer evidence is generally reliable and that the method of collection of the breath analysis is relatively unobtrusive. See R. v. Grant, para. 111.

[77] Drinking and driving and the consequent carnage it can cause is a serious and troubling problem. It has been recognized again and again that society has a high interest in having drinking and driving cases adjudicated on their merits.

[78] On addressing this last stage of the grant analysis, the trial judge appears to have reverted back to the availability of the s. 258 presumption.

[79] At p. 17, line 32, and continuing on at p. 18, he says this;

“The Court must ask whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude the admission of the evidence would bring the administration of justice into disrepute.

The drink/drive provisions of the Criminal Code provide various shortcuts to the Crown in the prosecution of these offences.; shortcuts that do not exist with respect to other offences. These provisions must be interpreted, however, in accordance with the individual rights that are guaranteed by the Charter. In some cases, a delay of 15 minutes before the arrest and breath demand may not offend the Charter. Delay caused during the securing of an accident scene while attending to the urgent medical needs of the defendant or other individuals while restraining a hostile or dangerous defendant are all examples of reasonable delay.

In this case, there’s no cogent reason offered by P/C Hubert [sic] for the delay. Her evidence simply did not stand up to cross-examination. It left the Court with the belief that, at best, she did not understand the as soon as practicable requirement or at worst, she showed a carelessness for the truth. The Charter requires better than this. So does the long term reputation of the administration of justice. The breath readings are accordingly not admissible in the prosecution’s case against the defendant.”

[80] The trial judge incorrectly determined that the third branch of the grant test favoured exclusion.

[81] The judge’s verdict of acquittal on the over 80 charge is a direct result of his misapprehension of Police Constable Huber’s evidence about the steps she took initially to address the officer safety issue and then to address the need to have the respondent’s vehicle towed and impounded,(obtaining and reviewing ownership and insurance documents), which steps account for the period between the officer having formed the reasonable and probable grounds and her having made the breathalyzer demand. The verdict cannot stand.

[82] Additionally, the finding that there had been serious charter breaches, as a result of the 15-17 minute delay, which impacted significantly on the respondent, such that it overrode society’s interest in having the case dealt with on its merits, is neither supported by the evidence, nor is it reasonable.

[83] Finally, the trial judge erred when he applied charter principles to the “as soon as practicable” requirement for the admissibility of the breathalyzer results as evidence of the driver’s blood alcohol concentration level at the time of operation of the motor vehicle. The “as soon as practicable” requirement is a statutory pre-condition to admissibility of the breathalyzer results. It is separate and distinct from a person’s section 8 and 9 Charter rights, the breach of which may or may not result in otherwise admissible evidence being excluded. I agree with the Crown’s submission that the “as soon as practicable analysis” has no place in the context of a s.24(2) inquiry.

[84] Given that all of the facts necessary to support a finding of guilty are before me (the respondent operated the motor vehicle when his blood alcohol concentration was more than .08, on December 22, 2012, at the Town of Smooth Rock Falls, contrary to section 253(1)(b) of the Criminal Code), I will substitute a verdict of guilty for the acquittal entered on June 6, 2014, and remit the matter to the Ontario Court of Justice at Cochrane to impose sentence. Counsel are directed to communicate with the Trial Co-ordinator of that court to set an appropriate date for same.

The Overholding Issue

[85] At trial, the respondent raised the issue of delay in having been released, following the completion of the breathalyzer testing. Specifically, he took issue with the three hour period, between the completion of the testing and leaving the detachment with Police Constable Huber who drove him home to Smooth Rock Falls.

[86] The trial judge reviewed the facts in connection with this issue, but declined to make a ruling, given his dismissal of the two drinking and driving charges.

[87] The Crown has invited me to rule on this issue, submitting that the trial judge's review of the facts on this issue enable me to make the determination.

[88] The respondent responds that as this is a summary conviction appeal under s. 813 (and not s. 830) therefore this court's jurisdiction on appeal is limited to that set out in s. 822 of the Criminal Code, and does not include sending the matter back to the summary conviction court, with or without an opinion regarding the overholding issue, or deciding the issue myself.

[89] All of the facts relating to the respondent’s application for charter relief relative to his detention following the completion of the breath samples were reviewed by the trial judge, and are contained in the record before me. I am in as good a position as the trial judge was to rule on the issue of “overholding”.

[90] The respondent was detained, in a cell, in Cochrane, from 3:54 a.m. until 7:00 a.m., at which time he was released and driven back home to Smooth Rock Falls, by Police Constable Huber.

[91] The respondent had no contact with any police officer while he was in the cells. He did not attempt to make contact with any police officer during that period of time.

[92] Police Constable Huber testified that during the three hour period, she was occupied preparing the release documents relative to the respondent, and she was completing other paper work related to the charges facing the respondent, including the charges under the CDSA that Police Constable Huber had arrested the respondent for, while en route to Cochrane after the respondent advised her that he was in possession of a controlled substance.

[93] Although she testified that the processing of the documentation took up all of her time, extending beyond the end of her shift, the trial judge questioned this, stating, at p. 7, line 24 of his reasons:

“One must wonder how it is possible that P/C Hubert[sic] did not turn her mind to the defendant’s release until she completed the paperwork, if the paperwork consisted of two documents, one of which was the release document. It does not make sense, particularly considering that this was a three hour period….P/C Hubert[sic] therefore had three hours to complete the two documents and fingerprint and release the defendant with no other interfering obligations.”

[94] Also dealing with the decision not to release the respondent until she ended her shift, Police Constable Huber indicated that the respondent was not released earlier for the following reasons:

a. He was impaired by alcohol;

b. He did not have winter footwear or appropriate winter apparel;

c. It was December in Northern Ontario; it was -20 Celcius outside;

d. The Respondent was not in his home community, which was some 30 to 40 minutes away by vehicle;

e. It was the middle of the night;

f. Only two public locations where the respondent could have gone at that time of night were open;

g. There was nothing to suggest that the respondent knew anyone in Cochrane, or that there might be someone available to come to get him. The respondent’s son who had been in the vehicle with him, had appeared to also be impaired by alcohol; and

h. There is no public transportation between Cochrane and Smooth Rock Falls.

[95] At trial, the respondent testified that the police officers had treated him well, and been nice to him throughout the events in question.

[96] The above is the relevant evidence which was before the trial judge on the issue of overholding.

[97] Even if the judge had found that the accused had been arbitrarily detained between 3:54 a.m. and 7:00 a.m., thereby having suffered a breach of his s.9 rights, the only remedy potentially available would have been to grant a stay of the proceedings, pursuant to s. 24(1) of the Charter, which relief had not been requested of the trial judge.

[98] An exclusion of evidence under s. 24(2) was not available as a remedy given the lack of nexus between the evidence and the unlawful detention between 3:54 a.m. and 7:00 a.m. The breach would have occurred subsequent to the police obtaining the evidence. The breach, if any, was unrelated to the investigation and gathering of evidence relating to the two charges the respondent faced. Therefore, a stay of proceeding was not an appropriate remedy; this was not one of “clearest of cases” warranting a stay of proceedings. See R.v. Iseler 2004 34583 (ON CA), [2004] O.J. No. 4332.

[99] There is no likelihood that the respondent would have been granted a stay on the facts of this case, had he asked for same. Indeed, to have released the respondent in the circumstances may have been imprudent, even reckless. Instead, the police released him within a three hour period and provided him with a ride home. Their conduct in having detained the respondent as they did cannot be faulted.

Conclusion

[100] The appeal is allowed, the acquittal on the over 80 charge is set aside and a verdict of guilty is entered in its place. The matter is remitted back to the Ontario Court of Justice in Cochrane for the imposition of sentence.

The Honourable Madam Justice Louise L. Gauthier

Released: July 17, 2015