CITATION: R. v. Rehill, 2015 ONSC 6025

COURT FILE NO.: 67/14

DATE: 20150929

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

ANDREW REHILL

Thaddeus Ofiara,

for the Crown, appellant

Andrew Rehill, accused, respondent

HEARD: June 11, 2015

K.L. Campbell J.:

REASONS FOR JUDGMENT

[Summary Conviction Appeal]

A. Overview

1The fundamental issue on this appeal is the admissibility of the Intoxilyzer results of the respondent’s breath samples under s. 24(2) of the Canadian Charter of Rights and Freedoms.

2On April 22, 2014, the respondent, Andrew Rehill, was tried by the Honourable Mr. Justice M. Zuker of the Ontario Court of Justice on charges of impaired driving and driving with a blood-alcohol level in excess of .80 mgs. of alcohol per 100 mls. of blood. The offences allegedly took place in Toronto on January 16, 2012. The trial was a blended proceeding. The trial judge heard from only two witnesses: the arresting police officer and his partner. The Crown called the arresting officer, Cst. Perez, and the respondent called his partner, Cst. McConnell.

3The respondent sought the exclusion of the Intoxilyzer results of his breath samples under s. 24(2) of the Charter of Rights on the basis that he was subjected to an unreasonable search and seizure contrary to s. 8 of the Charter. The respondent argued that the arresting police officer did not have the necessary “reasonable grounds” to make a demand, pursuant to s. 254(3)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46, that the respondent provide samples of his breath for analysis in an approved instrument. The respondent argued that, accordingly, the Certificate of Analysis containing the results of the Intoxilyzer analysis of his two breath samples should be excluded from evidence.

4Conversely, the Crown sought the admission of the Intoxilyzer results to establish the commission of the “over 80” offence. The Intoxilyzer results of both breath samples showed that the respondent had a blood-alcohol level of 160 mgs. of alcohol per 100 mls. of blood. The Crown contended further that the evidence showed not only that the arresting police officer had the necessary “reasonable grounds” to make the demand for the breath samples, but that the evidence established the guilt of the respondent on the “over 80” charge and the impaired driving charge beyond a reasonable doubt. Defence counsel conceded that if the arresting officer had the necessary reasonable grounds to make the “approved instrument demand” pursuant to s. 254(3)(a)(i) of the Criminal Code, the respondent would be properly convicted of the “over 80” offence.

5After hearing the evidence and the submissions of counsel, the trial judge delivered brief oral reasons for judgment in which he excluded the evidence of the Intoxilyzer results pursuant to s. 24(2) of the Charter, and ultimately found the respondent not guilty of both alleged offences.

6The Crown appeals against the decision of the trial judge dismissing the “over 80” charge against the respondent. While the Crown originally also appealed against the acquittal of the respondent on the impaired driving charge, the Crown abandoned this aspect of the appeal during the course of his oral argument. With respect to the “over 80” charge, the Crown contends that the acquittal should be set aside and a conviction entered as the trial judge: (1) misapprehended and misunderstood the significance of important aspects of the evidence before him; and (2) erred in excluding the Intoxilyzer results of the respondent’s breath samples without any analysis of the governing principles under s. 24(2) of the Charter. The respondent contends that the trial judge did not err in either of these respects, and that he was properly acquitted of these charges.

B. The Relevant Factual Background

7Cst. Perez and his partner, Cst. McConnell, both members of the Toronto Police Service (TPS), first took notice of the respondent at approximately 3:00 a.m. on January 16, 2012, while they were on duty with radar traffic enforcement responsibilities. Using their radar device, the officers caught the respondent travelling 81 kms./hr. in a 60 kms./hr. zone. Cst. Perez, who was driving their “stealth” police cruiser, quickly turned around to follow, stop and ticket the respondent for speeding.

8While the officers immediately activated the emergency lights of the police cruiser, and employed the siren a couple of times, the respondent did not finally pull over his vehicle and stop for the police for some 200 or 300 meters.

9When Cst. Perez approached the stopped vehicle, the respondent was seated in the driver’s seat. The respondent was accompanied by a female, who was seated in the front passenger seat. Cst. McConnell approached the passenger side of the respondent’s vehicle for officer safety purposes, while Cst. Perez conducted the investigation from the driver’s side of the vehicle. Cst. Perez asked the respondent why he did not pull over, but he received no response to this inquiry. The officer noticed that the respondent’s movements and reactions were “very slow” and “different.” Cst. Perez detected the “strong odour” of an alcoholic beverage from the inside of the vehicle. When the officer asked the respondent if he had consumed any alcohol that night, the respondent hesitated and, after some delay, responded “no.” When the officer asked him if he was sure that he had not consumed any alcohol, the respondent replied “nothing.” During this exchange, the respondent stared straight ahead and did not make eye contact with the officer. According to Cst. Perez, at that point, believing that he had a “reasonable suspicion” that the respondent had alcohol in his body while operating a motor vehicle, he made a demand, pursuant to s. 254(2)(b) of the Criminal Code, that the respondent provide a sample of his breath for analysis in an approved screening device. This took place at approximately 3:04 a.m.

10The police officers had an approved screening device in their police cruiser, and Cst. Perez asked the respondent to accompany him to the police car in order to administer the breath test. At that point, the officers noticed that the respondent was smoking a cigarette, which he was told to put out, and he complied with this request. Given that the respondent had been smoking, Cst. McConnell mentioned to Cst. Perez that they would have to wait two or three minutes before administering the road-side screening test.

11According to Cst. Perez, as the respondent walked from his vehicle back to the police car, he walked “fairly slow,” and when he got to the police car he seemed to lose his balance briefly, and stumble a step backwards, reaching out to the middle pillar between the front and rear doors of the passenger side of the police vehicle to steady himself. In cross-examination, Cst. Perez agreed that it was “very windy” at the time, and it was possible that it was the wind that caused the respondent to stumble. Cst. Perez then had the respondent sit down in the rear passenger seat of the police car. As the respondent sat in this position, Cst. Perez could detect the odour of an alcoholic beverage on the respondent’s breath.

12Cst. Perez testified that, at that point, he believed that he had “reasonable grounds” to arrest the respondent for impaired driving and to make a demand, pursuant to s. 254(3)(a)(i) of the Criminal Code, that the respondent provide samples of his breath for analysis in an “approved instrument.” Cst. Perez testified that he believed that the respondent’s ability to operate a motor vehicle was impaired by alcohol. Cst. Perez was, however, a relatively inexperienced police officer, having spent just some eight months on the road, and he was not sure whether, having made the demand that the respondent provide a breath sample into an approved screening device, he was still obliged to follow through with that process notwithstanding that he had reached the conclusion that he now had reasonable grounds to arrest the respondent and demand that he provide breath samples into an approved instrument.

13During this time period, a number of other police officers stopped by in their vehicles to determine if they could be of any assistance. One of these officers, Cst. Matthews, happened to be a qualified breath technician. As Cst. McConnell was preparing the approved screening device for operation, Cst. Perez asked the breath technician if he was still obliged to continue with the roadside screening process pursuant to s. 254(2)(b) of the Criminal Code. The breath technician told Cst. Perez that, if he had reached the “reasonable grounds to believe” threshold required by s. 254(3)(a)(i) of the Criminal Code without the approved screening device analysis of the respondent’s breath sample, then he was not obliged to continue with the roadside screening process. Cst. Perez then placed the respondent under arrest, advised him of his right to counsel, and demanded that he provide samples of his breath for analysis in an “approved instrument.” This took place at approximately 3:06 a.m. Cst. Perez then advised his partner to forget about the approved screening device, explaining that he had already arrested the respondent.

14The respondent was then transported back to the police station, arriving there at approximately 3:16 a.m.

15According to the Certificate of Thomas Reimer, a Qualified Technician, an Intoxilyzer 8000C, an approved instrument, was used to analyze the two breath samples ultimately provided by the respondent, and it revealed that the respondent had 160 mgs. of alcohol in 100 mls. of blood at both 3:53 a.m. and 4:18 a.m. on January 16, 2012.

C. The Positions of the Parties at Trial Regarding the Admissibility Of the Intoxilyzer Results of the Respondent’s Breath Samples

16At trial, defence counsel argued that the police had taken an “impermissible shortcut” in their investigation of the respondent, in that while Cst. Perez might have had a “reasonable suspicion” justifying an approved screening device demand, the officer lacked the necessary “reasonable grounds” justifying the arrest of the respondent and the demand for breath samples for analysis in an approved instrument. Defence counsel argued that the trial judge should have at least a “reasonable doubt” on this issue. Finally, defence counsel argued that the reputation of the administration of justice is jeopardized by judicial indifference to shoddy and unacceptable police conduct, suggesting that the results of the respondent’s breath samples should be excluded from evidence.

17At trial, the Crown argued that in all of the circumstances of this case, the police had the necessary reasonable grounds to arrest the respondent and demand breath samples suitable for analysis in an approved instrument. The Crown argued that Cst. Perez not only clearly had the subjective belief that he had the necessary reasonable grounds, but that those grounds were objectively reasonable. Alternatively, the Crown argued that even if there was a violation of s. 8 of the Charter, the evidence was still admissible under s. 24(2) of the Charter as: (1) the police conducted their investigation of the respondent in “good faith,” and any misconduct in violating the rights of the respondent was not serious; (2) the impact of the Charter violation was toward the “lower end of the spectrum” given the more limited privacy interests of the respondent in his breath samples; and (3) society has a pressing interest in having these types of cases determined on their merits. Indeed, the Crown argued that to exclude the results of the respondent’s breath samples would bring the administration of justice into disrepute.

D. The Rulings by the Trial Judge – The Acquittal of the Respondent

18In the result, the trial judge excluded the results of the respondent’s breath samples under s. 24(2) of the Charter.

19Zuker J. began his brief ruling on this issue by referring to the decision in R. v. McCarthy, 2013 ONSC 599, 42 M.V.R. (6th) 114, summarizing it as holding that “reasonable and probable grounds for a breath demand is not a pre-condition to the admissibility of breath test results,” but that a “lack of reasonable grounds would be a violation of s. 8 of the Charter … making the results susceptible to exclusion under s. 24(2)” of the Charter.

20The trial judge then concluded that, in his view, there was no question that “there was reasonableness” by Cst. Perez “with respect to the approved instrument demand” under s. 254(3) of the Criminal Code, given his opinion as to the “possible impairment” of the respondent, and given that the demand under s. 254(3) of the Criminal Code is “not an onerous demand.” The trial judge concluded that, in the totality of the circumstances, “the demand was lawful.” In this regard, the trial judge noted that the respondent appeared off balance and impaired, his physical reactions seemed slow, there was a strong odour of alcohol coming from the vehicle, and yet the respondent denied having consumed any alcohol. The trial judge then noted that at 3:03 a.m. there existed a “reasonable suspicion,” and then the respondent was arrested at 3:06 a.m. for impaired driving.

21Parenthetically, there are, of course, two provisions of the Criminal Code which permit a police officer to make a demand for breath samples from a motorist. First, according to s. 254(2)(b) of the Criminal Code, if an officer has “reasonable grounds to suspect” that a motorist has alcohol in their body the officer may demand that the motorist “provide forthwith a sample of breath” that can be analyzed by an “approved screening device.” Second, according to s. 254(3)(a)(i) of the Criminal Code, if a police officer has “reasonable grounds to believe” that a motorist is committing an offence under s. 253 as a result of the consumption of alcohol, the officer may demand that the motorist provide “samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood” by means of an approved instrument. In his ruling on the admissibility of the Intoxilyzer results of the respondent's breath samples, the trial judge expressly held that it was the “approved instrument demand” made by Cst. Perez “under s. 254(3)” of the Criminal Code that was reasonable and lawful.

22After making these observations about the reasonableness and lawfulness of the “approved instrument demand” by Cst. Perez, the trial judge then concluded his ruling as follows:

Perhaps the court is wrong, but I don’t think that the test with respect to the demand and the arrest is the same standard. I don’t see any evidence that would have caused, or should have caused Officer Perez to deviate from what the original intention was, and that is to test Mr. Rehill. So in all the circumstances, and also having regard to s. 24(2), I’m going to grant the application and disallow the evidence.

23Beyond this brief reference to s. 24(2) of the Charter, the trial judge undertook no further analysis or more detailed consideration of the legal principles governing the admissibility of this kind of evidence under s. 24(2) of the Charter in the circumstances of this case.

24After the evidence of the Intoxilyzer results of the respondent’s breath samples were excluded by the trial judge, the parties briefly addressed the “impaired driving” evidence. On this evidence, the trial judge simply concluded that “there is a reasonable doubt” that the respondent was driving while impaired by alcohol. In the result, the respondent was acquitted of all charges.

E. Analysis

1. Introduction

25As I have already indicated, the Crown advanced the position on appeal that the respondent’s acquittal with respect to the “over 80” charge must be set aside as the trial judge misapprehended and misunderstood the significance of important aspects of the evidence before him. While the Crown’s argument in this regard was persuasive, I need not draw any final conclusions as to its merit, as I have concluded that the trial judge erred in excluding the Intoxilyzer results of the respondent’s breath samples under s. 24(2) of the Charter. This conclusion, in and of itself, requires that the Crown appeal be allowed, the acquittal of the respondent on the “over 80” charge be set aside, and a conviction be entered on that charge.

26The Supreme Court of Canada has made it clear that a trial judge’s determination concerning the admissibility of evidence under s. 24(2) of the Charter is owed “considerable deference” by an appellate court where the trial judge has considered the proper factors and has not made any unreasonable findings. See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77. In the present case, however, the trial judge made only passing reference to s. 24(2) of the Charter and failed to expressly consider any of the relevant factors or articulate any of the governing legal principles. Accordingly, the decision of the trial judge as to the admissibility of the Intoxilyzer results is not entitled to deference on appeal. As Fish J. stated in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82, “where the relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate.”

27According to the Supreme Court of Canada decisions in R. v. Grant, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, there is a three-pronged test that must be applied when considering the admissibility of evidence under s. 24(2) of the Charter. More particularly, the court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. The court must consider all of the circumstances of the case in conducting this balancing assessment. See also R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-113; R. v. Beaulieu, at paras. 5-8; R. v. Côté, at paras. 45-48; R. v. Cole, at paras. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 45-52; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 75-81; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 37-42; R. v. Mian, at paras. 78-89; R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at paras. 64-71. In my view, a proper application of these governing legal principles in all of the circumstances of the present case leads inexorably to the conclusion that the Intoxilyzer results of the respondent’s breath samples were admissible. I simply see no basis upon which these results could properly be excluded under s. 24(2) of the Charter.

2. The Seriousness of the State Conduct

28Under the first prong of the test, the court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75; R. v. Taylor, at para. 39.

29Any potential violation of the respondent’s constitutional rights in the circumstances of the present case could only fairly be characterized as relatively minor. The trial judge’s conclusion that Cst. Perez acted reasonably and lawfully in making the approved instrument demand under s. 254(3)(a)(i) of the Criminal Code supports this assessment. Despite this conclusion, the trial judge held that Cst. Perez should not have arrested the respondent without first administering the breath tests. It is difficult to see how this amounted to a breach of the respondent’s Charter rights. One might have thought that if Cst. Perez had the necessary reasonable grounds to make the approved instrument demand, he also had the necessary reasonable grounds to arrest the respondent. In any event, assuming without deciding that this was somehow a violation of the respondent’s Charter rights, it was an extremely technical violation of his rights. There was no serious state misconduct.

30Indeed, Cst. Perez acted in good faith in arresting the respondent and demanding suitable samples of his breath for analysis in an approved instrument. Cst. Perez subjectively believed that he had the necessary reasonable grounds to make the arrest and the demand. Yet, before acting on that subjective belief, Cst. Perez consulted with a more experienced police officer who was a qualified breath technician, about whether he was still obliged to administer the “approved screening device” breath test, notwithstanding his reasonable and probable grounds to arrest the respondent and make the “approved instrument demand.” Cst. Perez then followed the advice he was given by the qualified breath technician. Further, the trial judge expressly found that Cst. Perez acted with “reasonableness” in making the “approved instrument demand” under s. 254(3) of the Criminal Code and that, in the totality of the circumstances of this case, the demand under s. 254(3) of the Criminal Code was a “lawful” demand. These conclusions by the trial judge necessarily banish any suggestion of negligence or recklessness on the part of Cst. Perez, and are supported by the evidence.

31In addition, following the arrest, Cst. Perez fully and properly advised the respondent of his right to counsel, as required by s. 10(b) of the Charter. At no point in his dealings with the respondent, did the police treat him with anything other than dignity and respect.

32In summary, there is no evidence in this case that Cst. Perez acted negligently, recklessly, or in ignorance of any statutory or Charter requirements. He certainly did not deliberately violate any constitutional guarantee. In these circumstances, in my view, the first prong of the applicable s. 24(2) Charter analysis favours the admissibility of the Intoxilyzer results of the respondent’s breath samples.

3. The Impact of the Charter Violation on the Accused

33As to the impact of any Charter violation, the second prong of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the accused. The impact of the Charter violation may range from “fleeting and technical to profoundly intrusive.” Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, at paras. 76-78.

34The collection of the respondent’s breath samples for analysis was accomplished by means of an “approved instrument” within the meaning of s. 254(1) of the Criminal Code. This procedure has long been judicially acknowledged as a relatively non-intrusive procedure, which has no more than a slight impact upon the Charter-protected interests of motorists.

35Even under the now abandoned Stillman regime for determining the admissibility of evidence under s. 24(2) of the Charter, which gave rise to a near-automatic exclusionary rule for “conscriptive” evidence emanating from an accused, the taking of breath samples was said to be minimally intrusive upon constitutional rights. Indeed, in the decision in R. v. Stillman, 1997 384 (SCC), [1997] 1 S.C.R. 607, 113 C.C.C. (3d) 321, itself, Cory J., delivering the judgment of the majority of the court, noted, at para. 90, that the “the Criminal Code provisions pertaining to breath samples are both minimally intrusive and essential to control the tragic chaos caused by drinking and driving” [emphasis added]. See also R. v. Richfield (2003), 2003 52164 (ON CA), 175 O.A.C. 54, 178 C.C.C. (3d) 23 (C.A.), at paras. 16-18.

36Of course, more recently, in R. v. Grant, the leading judgment of the Supreme Court of Canada interpreting the governing principles under s. 24(2) of the Charter, McLachlin C.J.C. and Charron J., writing for the majority of the court, at para. 111, described the collection of breath sample evidence in drinking and driving cases as a “relatively non-intrusive” procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the accused [emphasis added]. Accordingly, the second factor in the s. 24(2) analysis will usually favour the admission of the evidence of the results of such breath samples. See R. v. Taylor, 2010 ONSC 4850, 1 M.V.R. (6th) 103, at para. 44, leave denied, 2011 ONCA 681, [2011] O.J. No. 4838; R. v. McDowell, 2012 ONSC 7028, 40 M.V.R. (6th) 317, at paras. 50-54. Indeed, in R. v. Grant, at para. 111, the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a “high” impact upon the accused’s privacy, bodily integrity and dignity, reliable breath sample evidence will “often” be admitted under s. 24(2) of the Charter, given that the “method of collection is relatively non-intrusive.”

37In any event, the collection of the respondent’s breath samples by means of an “approved instrument” in the present case was a relatively non-intrusive procedure which had a minimal impact on the respondent’s Charter-protected interests. Accordingly, this second prong of the s. 24(2) analysis also favours the admission of the Intoxilyzer results of the respondent’s breath samples. See R. v. Grant, at paras. 106, 111.

4. The Importance and Reliability of the Evidence to a Trial on the Merits

38Under the third avenue of inquiry, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown’s case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84.

39As the Supreme Court of Canada observed in R. v. Grant, at para. 110, this third area of inquiry under the governing s. 24(2) analysis “will usually favour admission in cases involving bodily samples,” as such evidence is generally reliable and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission of the evidence.

40In my opinion, that approach is directly applicable in the circumstances of the present case. The Intoxilyzer results of the respondent’s breath samples provide entirely reliable evidence that is vital to an accurate determination of the merits of the case. If this evidence is excluded, the Crown’s case necessarily fails on the “over 80” charge. On the other hand, if the evidence is admitted, the Crown is able to establish that the respondent was, in fact, operating his vehicle with an unlawful blood-alcohol concentration. Indeed, the admission of the evidence establishes that the respondent was driving his vehicle with twice the legal limit of alcohol in his blood. The societal interest in a criminal trial on its merits would be seriously undermined if such highly reliable and critical evidence were excluded. Of course, the public has long had a very strong interest in dealing with “drinking and driving” cases on their merits.

41Accordingly, this third aspect of the governing analysis under s. 24(2) of the Charter also favours admission of the evidence. See R. v. Taylor, at para. 45; R. v. Grant, at para. 106.

5. Conclusion

42There is no overarching rule that governs how to balance these three critical factors in ultimately determining the admissibility of the evidence under s. 24(2) of the Charter. The three factors are designed, however, to encapsulate consideration of all of the circumstances of the case. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of “decision tree.” See R. v. Grant, at paras. 85-86.

43The balancing of these three factors against the background of all of the circumstances of this case leads me to conclude that the Intoxilyzer results of the respondent’s breath samples are admissible under s. 24(2) of the Charter, and that the trial judge erred in reaching the contrary conclusion.

44In this case, all three prongs of the governing s. 24(2) analysis support the admission of the evidence. While there is no recognized mathematical calculus that can be employed to simply resolve admissibility issues where the individual prongs of the three-part analysis point in different directions, where all prongs of the analysis point in the same direction, the final balancing assessment is more one-sided, and the ultimate results more predictable. This is especially so where all three prongs of the analysis support the admissibility of the evidence. After all, the burden of proof in Charter applications is upon the accused to establish, on the balance of probabilities, that the evidence obtained by the police in violation of his or her rights ought to be excluded under s. 24(2) of the Charter. See R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, 118 D.L.R. (4th) 83, at pp. 211-213; R. v. Sandhu, 2011 ONCA 124, 103 O.R. (3d) 561, at paras. 41-47. It is difficult to imagine factual circumstances in which this burden of proof might be met and evidence appropriately excluded, in any case where all three prongs of the governing s. 24(2) analysis favour the admission of the evidence. In any event, in the circumstances of the present case, I am satisfied that the final balancing process must result in the admission of the evidence.

45There are many judicial authorities that support the admissibility of the results of motorist’s breath samples in these types of circumstances. See, for example R. v. Du, (2009), 2009 39783 (ON SC), 87 M.V.R. (5th) 105, [2009] O.J. No. 3194 (S.C.J.), at paras. 18-31, affirmed, 2010 ONCA 703, 100 M.V.R. (5th) 21, at para. 1; R. v. Taylor, at paras. 41-46; R. v. Yamka, 2011 ONSC 405, 267 C.C.C. (3d) 81, at paras. 68-92; R. v. Anderson, 2011 SKCA 13, 366 Sask.R. 175, at paras. 23-31; R. v. McDowell, at paras. 45-60; R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at paras. 48-94; R. v. Pavlovsky, 2013 ONSC 6800, 58 M.V.R. (6th) 75, at paras. 15-21; R. v. McKay, 2014 ABQB 70, 582 A.R. 285, at paras. 68-93; R. v. Ng, 2014 ONSC 4105, [2014] O.J. No. 3224, at paras. 32-39; R. v. Huang, 2014 ONSC 4785, [2014] O.J. No. 3820, at paras. 8-13; R. v. Foley, 2015 ONSC 2766, [2015] O.J. No. 2409, at paras. 39-42; R v Schulhauser, 2015 SKQB 205, [2015] S.J. No. 362, at paras. 23-37; R. v. Noel, 2015 ONSC 2140, 79 M.V.R. (6th) 245, at paras. 83-100; R. v. Jodhan, 2015 ONSC 3183, [2015] O.J. No. 2984, at paras. 43-49; R. v. Dixon, 2015 ONSC 4329, [2015] O.J. No. 3685, at paras. 6-11, 31-36; R. v. Sukraj, 2015 ONCJ 260, [2015] O.J. No. 2426, at paras. 83-87.

46At the same time, there are empirical statistical studies concerning the admissibility of evidence under s. 24(2) of the Charter following the Supreme Court of Canada decision in Grant which suggest that breath sample evidence is still being excluded at a “striking” and “remarkably” high rate – perhaps at “too high” a rate. See Mike Madden, “Empirical Data on Section 24(2) under R. v. Grant” (2010), 78 C.R. (6th) 278, at p. 281; Mike Madden, “Marshaling the Data: An Empirical Analysis of Canada's Section 24(2) Case Law in the Wake of R. v. Grant” (2011), 15 Can. Crim. L. Rev. 229, at pp. 242-243; Ariane Asselin, “Trends for Exclusion of Evidence in 2012” (2013), 1 C.R. (7th) 74, at p. 88; R. v. Hamzehi, 2015 ONCJ 95, [2015] O.J. No. 907, at paras. 15-31.

47While there may well be a variety of explanations for such trending figures over any given period of time, the existence of such puzzling statistics suggests that it may be important to recall that, in R. v. Grant:

• The Supreme Court lamented the “anomalous result” that under the previous Stillman regime, “breath sample evidence tendered on impaired driving charges” had “often suffered the fate of automatic exclusion even where the breach in question was minor and would not realistically bring the administration of justice into disrepute” [at para. 106];

• The Supreme Court expressly rejected the prior Stillman regime in relation to the admissibility of “bodily evidence,” concluding that the former approach, which asked simply “whether the evidence was conscripted,” should “be replaced by a flexible test based on all the circumstances, as the wording of s. 24(2) requires” [at para. 107];

• The Supreme Court stated that the third prong of the s. 24(2) inquiry “will usually favour admission in cases involving bodily samples” as such evidence “is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission” [at para. 110]; and

• The Supreme Court observed that where the Charter violation is “less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted,” which “will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive” [at para. 111].

48These important directions from the Supreme Court of Canada, like all aspects of the governing Grant/Harrison analysis, must be carefully considered by any court determining the admissibility of the results of breath sample evidence under s. 24(2) of the Charter. The trial judge in the present case erred in failing to consider these directions, and erred in failing to undertake the required analysis. The days when such breath sample evidence was routinely and near-automatically excluded under s. 24(2) of the Charter are over.

F. Conclusion

49In the result, the appeal by the Crown against the acquittal of the respondent on the “over 80” charge must be allowed, the acquittal set aside and a conviction entered.

50The respondent did not suggest, in argument or with any evidence, at trial or on appeal, that he has any potential defence to the “over 80” charge if the evidence of the Intoxilyzer results of his breath samples is admissible. The evidence is admissible. Accordingly, a new trial would serve no useful purpose. A conviction will be entered. The matter is hereby remitted back to the trial judge for sentencing.

51The Crown appeal against the respondent’s acquittal on the impaired driving charge is dismissed as an abandoned appeal.

52An order shall issue accordingly.

Kenneth L. Campbell J.