Reasons for Judgment

Court File No.: CR-1800000066-00-AP Date: 20190412 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Appellant And: Brian Walsh, Respondent

Counsel: Kim Motyl, counsel for the Appellant Stephen Whitzman, counsel for the Respondent

Heard: March 27, 2019

M.A. Code J.

A. OVERVIEW

[1] The Respondent Brian Walsh (hereinafter Walsh) was charged in an Information with one count of driving with a blood alcohol level of “over 80”. The Appellant Crown proceeded summarily in the Ontario Court of Justice. The case was tried by M. L. Cohen J. She released written Reasons for Judgement finding Walsh not guilty on August 28, 2018. The Crown appeals against that acquittal.

[2] In brief summary, the facts of the case are that Walsh was driving his vehicle late at night on June 16, 2016. The vehicle’s lights were off and he repeatedly failed to stop when P.C. Egan tried to pull him over. After almost four minutes of following Walsh’s vehicle with the police siren and emergency lights activated, P.C. Egan eventually succeeded in getting Walsh to pull over. After an exchange of words and documentation at the roadside, P.C. Egan formed grounds to make a demand for Walsh’s breath sample into an ASD, pursuant to s.254(2)(b) of the Criminal Code. After some delays, a properly functioning ASD was brought to the scene and Walsh failed the test. He was arrested for the “over 80” offence and taken to the police station. Breath samples were taken by a qualified technician and the Intoxilyzer produced readings of 150 and 140 milligrams of alcohol in 100 millilitres of blood. I will set out the evidence in more detail below, when addressing the three grounds of appeal.

[3] The defence gave notice of certain Charter of Rights violations to be raised and the trial was conducted as a single proceeding, blending both the merits of the case and the Charter issues. The Crown called P.C. Egan and the breathalyzer technician. The defence called no evidence, either on the trial or in relation to the Charter issues. After a short trial, Cohen J. reserved judgement for just over a month. In her written Reasons she found two s.8 Charter violations, as follows: P.C. Egan lacked the requisite “reasonable suspicion” for a lawful ASD demand at the roadside; and the ASD test had not been administered “forthwith”, as required by s.254(2)(b) of the Criminal Code. As a result, the warrantless ASD samples had been obtained unlawfully and in violation of s.8 of the Charter. Cohen J. proceeded to exclude the Intoxilyzer samples, pursuant to s.24(2) of the Charter.

[4] The Crown’s appeal to this Court alleges three broad errors: first, that the trial judge erred in various ways in concluding that P.C. Egan lacked “reasonable suspicion” when he made the ASD demand; second, that the trial judge further erred in concluding that the ASD sample was not taken “forthwith”; and third, that the trial judge erred in various ways in excluding the Intoxilyzer samples pursuant to s.24(2) of the Charter. These three broad grounds of appeal raise distinct factual and legal issues and I will address them separately.

B. THE “REASONABLE SUSPICION” GROUND OF APPEAL

[5] Section 254 of the Criminal Code requires “reasonable grounds to suspect that a person has alcohol… in their body and that the person has, within the preceding three hours, operated a motor vehicle”. Where these grounds exist, a police officer can lawfully demand that the driver “provide forthwith a sample of breath” in an “approved screening device” (or ASD). Absent these grounds, an ASD demand is unlawful and, therefore, contrary to s.8 of the Charter.

[6] There was no question that Walsh was operating a motor vehicle when P.C. Egan stopped his car. The only issue was whether the officer had “reasonable suspicion” that there was alcohol in Walsh’s body. P.C. Egan testified that he subjectively “formed my reasonable suspicion” at a point in time when he had made the following four relevant observations:

• first, “no lights on the motor vehicle”;
• second, “his driving… him not pulling over for approximately three to five minutes”;
• third, “slow reaction time” in producing his driver’s license, insurance, and ownership documents when requested; and
• fourth, “slow speech” during their roadside conversation.

P.C. Egan testified that “those factors combined formed my reasonable suspicion that he had alcohol in his system”. P.C. Egan acknowledged that at this early roadside stage of the investigation he did not detect an odour of alcohol from Walsh, he did not see open alcohol in Walsh’s car, and Walsh denied drinking any alcohol when asked.

[7] The trial judge accepted P.C. Egan’s assertion that he had a subjective belief that “reasonable suspicion” existed. However, the trial judge concluded that P.C. Egan lacked a sufficient objective basis for that belief. Given that the issue in relation to this ground of appeal is the sufficiency of the above four factors, in the context of a case where there was no odour of alcohol detected at the roadside, I will set out P.C. Egan’s evidence in further detail about each of the four factors that he relied on. There was no defence evidence in relation to any of these four factors and no issue was raised concerning the credibility of P.C. Egan’s account.

[8] The first factor was that P.C. Egan’s attention was drawn to Walsh’s vehicle because the SUV was traveling on Lawrence Avenue West in Toronto at 1:06 am and its lights were not on. P.C. Egan explained: “It was dark, so obviously when the lights are not on a vehicle, that’s a concern… I proceeded to pull over the motor vehicle to ensure the lights would go back on”. P.C. Egan activated his on board camera. As a result, there is a complete video record of the pursuit. I watched the video of P.C. Egan’s pursuit of Walsh’s SUV. There are street lights at intervals along Lawrence Avenue but it was obviously dark outside. There was traffic on the street, traveling in both directions, and the cars had their lights on.

[9] The second factor was Walsh’s failure to stop when P.C. Egan pulled up behind the SUV, activated his police siren and emergency lights, and followed both behind and alongside the SUV. Again, this evidence is captured on the police “dash camera”. The entire pursuit lasts for just under four minutes, from 1:15:22 am until 1:19:14 am. The details of the pursuit and the repeated failures to stop are important. Initially, Walsh pulled over and stopped after a short pursuit. Before P.C. Egan exited the police car, Walsh’s SUV pulled away and continued along Lawrence Avenue with the police car again in pursuit. After driving for some distance, Walsh pulled over and stopped for a second time. Once again, he pulled away before P.C. Egan exited the police car. The SUV continued along Lawrence Avenue with the police car again in pursuit. After driving for some distance, Walsh pulled over and stopped for a third time. Once again, he pulled away before P.C. Egan exited the police car. The SUV continued along Lawrence Avenue. This time, P.C. Egan followed and then pulled up alongside Walsh’s SUV and yelled through the open passenger window of the police car, “pull over, pull over”. Walsh continued driving for a short distance until he pulled over and stopped for the fourth and last time. P.C. Egan exited the police car, approached the SUV, and asked Walsh why he had failed to pull over. Walsh replied that “he didn’t know he was being pulled over”. P.C. Egan testified about Walsh’s manner of driving as follows: “for approximately four to five minutes without pulling over, and he attempted to pull over twice and then drove on after that, and having no lights on your vehicle at night, that is a big, big factors that led to my reasonable suspicion that he had alcohol in his system”.

[10] The third factor was that “when [P.C. Egan] made a demand for his documents which included his driver’s licence, insurance, and ownership, I noticed a slower than normal reaction in getting the documents”. P.C. Egan explained that, “the time it took him to get his documents, I do understand that sometimes you don’t know where the documents are, they’re somewhere where you don’t believe they are. I just believed his motions, his movements just to be slower than what would happen if someone… was not or had not been drinking”. In cross-examination, P.C. Egan testified that Walsh exhibited “a slower reaction than I would typically see from a normal driver”. P.C. Egan agreed that he had no prior knowledge about Walsh, and that Walsh was “quite a bit older than any average driver”, and that it would not “really be fair to be making a judgement on him against the average because he’s at least a senior citizen”. Walsh’s date of birth on the Information indicated that he would have been 75 years old at the time of the relevant events.

[11] The fourth and last factor was Walsh’s “slow speech”. As noted previously, there was some conversation between Walsh and P.C. Egan at the roadside as the officer asked why Walsh had not pulled over, asked if he had been drinking, asked for his driving related documents, told him that his car lights were not on, and asked him to turn off the car engine. P.C. Egan testified that Walsh’s “speech was pretty slow which seemed a little off than what I normally find”. P.C. Egan also testified that, “Later on, when I end up reading his rights to counsel and he has to talk back to me, I do observe glossy eyes as well as his speech being a little slurred”. In cross-examination, P.C. Egan clarified that, “his speech got a lot more slurred as the night proceeded… his speech got a little bit worse”. P.C. Egan agreed that “his speech and general responsiveness [at the roadside] was at least a little bit better than it was as exhibited [later] in the breath room” at the police station. When the breathalyzer technician testified about his observations in the “breath room” at the station, he confirmed that Walsh “spoke with a slurred speech” and “his eyes were bloodshot”. Although P.C. Egan observed “slurred speech” and “glossy eyes” at some point, I do not believe he made these observations at the roadside, prior to the ASD demand. It seems clear from his testimony that those further observations were made later, in particular, at the police station when there would have been a better opportunity to converse with Walsh and to observe his speech and his eyes. The breath technician also noted “a strong odour of an alcoholic beverage on his breath” at this later point, once they were inside the breath room. In my view, this fourth factor is limited to “slow speech” at the roadside, prior to the ASD demand.

[12] Ms. Motyl, on behalf of the Crown, submitted that the trial judge made a number of errors in her analysis of the “reasonable suspicion” requirement. I only required submissions from the defence in relation to two of these alleged errors. First, the trial judge stated that P.C. Egan “clearly testified that his suspicion was based on three observations : Mr. Walsh’s motor vehicle lights were out; three to five minutes elapsed before he pulled over; and Mr. Walsh exhibited a ‘slow reaction time’ in obtaining his documents” [emphasis added]. The trial judge repeated, at the end of her analysis: “In my view, the three factors listed by the officer did not provide an objective basis for the officer’s suspicion that Mr. Walsh had alcohol in his body” [emphasis added]. In my view, this was a clear factual error, or misapprehension of the evidence. P.C. Egan repeatedly testified that there were four factor he relied on at the roadside, in forming his “reasonable suspicion”. The trial judge simply omitted the fourth factor, namely, “slow speech”, even though there was considerable evidence about this factor, as summarized above. See: R. v. Morrissey (1995) , 97 C.C.C. (3d) 193 (Ont. C.A.); R. v. Lohrer (2004), 193 C.C.C. (3d) 25 (S.C.C.).

[13] The second alleged error in the trial judge’s analysis of “reasonable suspicion” concerns the “slow reaction time” factor. The trial judge summarized P.C. Egan’s testimony concerning this factor, including the officer’s acknowledgement in cross-examination that Walsh’s status as a “senior citizen” had to be taken into consideration when assessing his “slow reaction time”. In my view, the trial judge accurately summed up P.C. Egan’s evidence in this regard as follows: the officer “acknowledge[d] that Mr. Walsh’s slowness in accessing his documents… might be age-related ” [emphasis added]. In spite of this finding, to the effect that age was only a possible explanation for Walsh’s “slow reaction time”, the trial judge proceeded to reason as follows:

The officer was aware of Mr. Walsh’s advanced age, both by his physical appearance and, I infer, from his having viewed Mr. Walsh’s driver’s licence, which would have displayed his date of birth. The officer agreed with defence counsel’s suggestion that Mr. Walsh was older than the average driver. Critically, he also agreed that it “wouldn’t be really fair to be making a judgement on him against the average because he’s at least a senior citizen if not well into his seniorhood”, thereby negating the reasoning he followed in arriving at his reasonable suspicion . [Emphasis added].

[14] In my view, the trial judge erred in concluding that Walsh’s “advanced age” had the effect of “negating” P.C. Egan’s reliance on the “slow reaction time” factor. As a matter of both fact and law, it had no such effect. The Court of Appeal recently addressed this point in R. v. Schouten (2016), 135 O.R. (3d) 200 at paras. 26-31 (C.A.). In that case, the accused showed no signs of impairment and he explained the odour of alcohol on his breath as being due to drinking some ten hours prior to the ASD demand. Simmons J.A., speaking for the Court, held that the possible innocent explanation for the odour of alcohol did not “negate” the officer’s “reasonable suspicion”:

It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime. All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body: s. 254(2) of the Criminal Code; Lindsay.

Moreover, the standard of “reasonable grounds to suspect” involves possibilities, not probabilities: R. v. Williams , 2013 ONCA 772 at para. 22, citing R. v. MacKenzie , 2013 SCC 50 , [2013] 3 S.C.R. 250, at para. 38; R. v. Chehil , at para. 27; R. v. Kang-Brown , 2008 SCC 18 , [2008] 1 S.C.R. 456, at para. 75.

The absence of the indicia of impairment even when combined with the fact that the respondent claimed to have consumed his last drink 10 hours earlier did not negate the possibility that the respondent had alcohol in his system, which was raised by the presence of an odour of alcohol on his breath and his admission of consumption .

The respondent could not tell the officer how much of what he had had to drink. Even if the officer believed the respondent’s statement about when he had his last drink, the fact that his last drink was 10 hours earlier – even when combined with the absence of indicia of impairment – did not negative the possibility that he still had alcohol in his body. Accordingly, the fact that, on the respondent’s version of the timing of his alcohol consumption, the alcohol may have been eliminated from his body did not negate the reasonableness of the officer’s grounds for suspecting the presence of alcohol – the odour of alcohol and the admission of consumption.

The summary conviction appeal court judge’s second reason for upholding the s. 8 ruling was that the officer's evidence about elimination rates provided an alternate explanation for the presence of an odour of alcohol on the respondent's breath. However, in reaching this conclusion, the summary conviction appeal court judge misstated the officer's evidence in that regard. The summary conviction appeal court judge said that the officer agreed, based on the respondent's admission that his last drink was 10 hours earlier, that the alcohol would have been eliminated. However, the officer did not agree that alcohol would have been eliminated; rather, he agreed that alcohol may have been eliminated. The officer's evidence did not therefore exclude the possibility that the respondent had alcohol in his body .

As I have already explained, the fact that, on the respondent’s version of the timing of his alcohol consumption, the alcohol may have been eliminated from his body did not negate the reasonableness of the officer’s grounds for suspecting the presence of alcohol in the respondent’s body [italics of Simmons J.A., under-lining added].

[15] Applying the above reasoning in Schouten, P.C. Egan fairly acknowledged that Walsh’s age was a relevant factor that may explain his “slow reaction time”. However, this possibility did not “negate” the other possibility, namely, that his “slow reaction time” was due to alcohol consumption.

[16] In light of the above two errors, and in any event, this Court must re-assess the four factors relied on by P.C. Egan and determine whether they rise to the requisite level of “reasonable suspicion” under s.254. As Modaver J. explained in his majority judgement in R. v. Mackenzie (2013), 2013 SCC 50 , 303 C.C.C. (3d) 281 at para. 54 (S.C.C.), this is a de novo assessment on appeal:

Whether the facts as found by the trial judge amount to reasonable suspicion is a question of law (R. v. Shepherd , 2009 SCC 35 , [2009] 2 S.C.R. 527 (S.C.C.), at para. 20; Nolet , at para. 47). As McLachlin C.J. and Charron J. explained in Shepherd, the logic of which is equally applicable to reasonable suspicion:

While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law . As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381, at para. 23. ... Although the trial judge’s factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness . [italics in original; under lining added by Modaver J.].

Accordingly, in a case such as this one, an appellate court must always engage in a de novo analysis and thereby substitute its own view of the correct answer for a trial judge’s legal conclusion. Deference would apply only if one of the parties sought to attack a finding of fact on appeal. That is not the case here.

[17] I am satisfied that the four factors relied on by P.C. Egan provided an objective basis for his “reasonable suspicion” that Walsh had alcohol in his body. This was one reasonable possibility that could be inferred from the totality of circumstances. Another reasonable possibility was that Walsh was old, tired and confused and had not been drinking. However, these competing reasonable possibilities are the very essence of the “reasonable suspicion” standard. The case is not being tried at this very early roadside stage of the investigation and no ultimate conclusions or inferences of fact need be drawn. As Karakatsanis J. put it on behalf of the unanimous Court in R. v. Chehil (2013), 2013 SCC 49 , 301 C.C.C. (3d) 157 at para. 32 (S.C.C.):

Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so. [italics of Karakatsanis J.].

Moldaver J. elaborated on this point in R. v. MacKenzie , supra at paras. 72 and 74:

Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.

Parenthetically, I note that there are several ways of describing what amounts to the same thing. Reasonable suspicion means “reasonable grounds to suspect” as distinguished from “reasonable grounds to believe” (Kang - Brown , at paras. 21 and 25, per Binnie J., and at para. 164, per Deschamps J.). To the extent one speaks of a “reasonable belief” in the context of reasonable suspicion, it is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence. As Karakatsanis J. observes in Chehil, the bottom line is that while both concepts must be grounded in objective facts that stand up to independent scrutiny, “reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime” (para. 27). [italics of Moldaver J.].

Also see: R. v. Yates (2014), 2014 SKCA 52 , 311 C.C.C. (3d) 437 at paras. 28 , 38 and 45-8 (Sask. C.A.).

[18] In the present case, Walsh’s unusual driving was a significant factor on its own. McLachlin C.J.C. and Charron J., speaking for the unanimous Court in R. v. Shepherd (2009), 2009 SCC 35 , 245 C.C.C. (3d) 137 at paras. 5-6 and 23 (S.C.C.), referred to the accused’s similar failure to pull over in that case during a three kilometer police pursuit. Somewhat like Walsh, the accused in Shepherd explained that he did not pull over because he did not realize it was the police attempting to stop him. The Court stated that, “this confusion itself can be a sign of impairment” and held that “the accused’s erratic driving pattern” formed part of the officer’s “reasonable and probable grounds” to demand a breathalyzer sample for impaired driving. In addition, the arresting officer in that case noted the accused’s “movements and speech were slow”, as in the present case. Cohen J. placed great emphasis on the “absence of any observation suggesting the presence of alcohol… There was no evidence of any odour of alcohol”. She described the absence of this factor as “particularly striking”. I agree that this factor had to be considered. As Karakatsanis J. explained in R. v. Chehil , supra at para. 33, “Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors”. However, it must be remembered that an odour of alcohol is a sufficient but not an essential basis for a valid ASD demand. See: R. v. Lindsay (1999) , 134 C.C.C. (3d) 159 (Ont. C.A.); R. v. Zoravkocic (1998) , 37 M.V.R. (3d) 93 (Ont. C.A.); R. v. Singh (2006), 44 M.V.R. (5th) 285 at paras. 12-16 (Ont. S.C.J.).

[19] For all the above reasons, the four factors observed by P.C. Egan provided “reasonable suspicion” that Walsh had alcohol in his body. It was one reasonably possible inference from all the circumstances. The trial judge erred in reaching the opposite conclusion.

C. THE “FORTHWITH” GROUND OF APPEAL

[20] The second violation of s.8 of the Charter found by the trial judge concerns the “forthwith” requirement in s. 254(2)b of the Criminal Code. That requirement has two aspects, as follows: first, it is implicit in the statutory and constitutional scheme surrounding roadside testing that the officer must make the ASD demand “promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body”; and second, it is explicit that the driver must provide the mandatory sample “forthwith”, which means “immediately” or “without delay”, although there is some flexibility where a “short delay” is “reasonably necessary”. See: R. v. Quansah (2012), 2012 ONCA 123 , 286 C.C.C. (3d) 307 (Ont. C.A.) where all the leading authorities on this point are reviewed.

[21] On the facts of the present case, there was no dispute that the first aspect of the “forthwith” requirement was satisfied. After stopping the motor vehicle at 1:19 am, P.C. Egan made the ASD demand to Walsh at 1:23 am, once he had made the four observations that led him to form the requisite “reasonable suspicion”. The dispute between the Crown and the defence in relation to the “forthwith” requirement turned on its second aspect.

[22] P.C. Egan did not have an ASD device with him and so he made a call over the police radio and asked for an ASD to be brought to his location. He explained in his testimony that there are typically two ASDs in his police division and that the “RIDE spot check” officers will take them. The requested ASD arrived at 1:34 am. P.C. Egan determined that this ASD had not been calibrated. He testified that “it doesn’t turn on when it’s not calibrated”. Accordingly, he called for a second ASD. It arrived at 1:41 am. P.C. Egan “turned it on to make sure it was calibrated”. He then “tested the device” by blowing into it himself, in order “to make sure it was in proper working order”. Walsh then provided a sample at 1:44 am but “had some difficulty” and took “awhile to get the hang of it”, as defence counsel put it and as P.C. Egan agreed. It was not until 1:47 am that Walsh provided a suitable sample and failed the ASD test.

[23] In cross-examination, P.C. Egan agreed that a qualified technician at the police station was responsible for calibrating the ASDs and that “some officer didn’t do his or her job” in this case by sending out an ASD that was not calibrated and that did not work. One final point to note in relation to this issue is that P.C. Egan gave Walsh a s.10(b) Charter caution concerning his right to counsel at 1:30 am, as he was not sure how long it would take to bring the first ASD to the roadside. Walsh replied that he was “unsure if he wanted to call a lawyer” and P.C. Egan told him that “if he wishes to call a lawyer he can use his personal phone to do so, to have a private conversation”. After the subsequent breathalyzer demand, P.C. Egan again advised Walsh of his s.10(b) rights. Later at the police station, Walsh stated that he “did not want to speak to a lawyer of his choosing and/or Legal Aid”.

[24] On this record, the trial judge found that the relevant “forthwith” period was 21 minutes, from 1:23 am when P.C. Egan formed “reasonable suspicion” and made the ASD demand, until 1:44 am when P.C. Egan was “in a position to administer the roadside test” and when Walsh made his first attempt to provide a sample. The trial judge concluded that the Crown had “failed to establish that the delay of 21 minutes was reasonably necessary”. Accordingly, the demand was not in compliance with the requirements of s. 254(2)b and Walsh’s “rights under s. 8 of the Charter were infringed”. I should note, in this regard, that experienced counsel for Walsh at trial did not argue that there was any s.10(b) Charter violation, perhaps because P.C. Egan had given Walsh a s.10(b) caution at the roadside, while waiting for the first ASD, and Walsh had not asked for an opportunity to exercise his s.10(b) rights.

[25] The Crown submits that the trial judge erred in analysing the relevant period of delay as 21 minutes. The Crown’s position is that the relevant delay is 18 minutes, from the ASD demand at 1:23 am until the arrival of the second or properly functioning ASD at 1:41 am. There is some support for this position. In R. v. Torsney (2007), 2007 ONCA 67 , 217 C.C.C. (3d) 571 at para. 12 (Ont. C.A.), the Court described the end of the relevant period as the point when “the machine was at the scene and ready for use”, although the Court also referred to the relevant period extending until the “first attempt to provide a breath sample”. In R. v. Gill (2011), 2011 ONSC 4728 , 276 C.C.C. (3d) 556 at para. 35 (Ont. S.C.J.), Durno J. held that the relevant period ends once “the ASD is with the demanding officer and the detainee” and that the further time required “to prepare the equipment, to explain and perhaps illustrate its use” will generally be similar in all cases and “should not be part of the calculation”. More recently, in R. v. Quansah , supra at paras. 28-48, the Court held that “reasonably necessary” delays are justified, “such as those involving the ‘exigencies of the use of the equipment’.” In other words, the necessary time to test and prepare the ASD after it has arrived at the roadside is either not included in the “calculation” or it is justified because it is “reasonably necessary”.

[26] Assuming that the trial judge erred in treating the relevant period of delay as 21 minutes, rather than 18 minutes, I would nevertheless conclude that she did not err in finding a failure to comply with the “forthwith” requirement on the facts of this case. The law is clear that P.C. Egan was entitled to call for an ASD to be promptly brought to his location. Every officer is not required to carry their own ASD in their cruiser. Accordingly, I would not find any s. 8 violation due to the initial 11 minute delay, from 1:23 am to 1:34 am when the first ASD arrived at the roadside. See: R. v. Quansah , supra . at para. 48; R. v. Torsney , supra at para. 11; R. v. Gill , supra at paras 36 and 46; R. v. Singh (2004), 4 M.V.R. (5th) 252 at paras. 28-42 (Ont. S.C.J.).

[27] The trial judge appeared to be critical of P.C. Egan for his failure to carry an ASD in his cruiser, referring with apparent approval to a line of cross-examination by defence counsel to the effect that this police conduct put “any alcohol-related stop at risk” and involved “taking a chance”. Although I do not agree with this reasoning, and it is contrary to the above binding authorities, the trial judge’s main focus appeared to be on the further delay caused when the first ASD would not operate. The trial judge correctly found that some officer at the station “had failed to ensure the device was properly calibrated for use when next required”. She described this further delay as due to that unknown officer’s “carelessness or negligence”. I agree with this part of the trial judge’s analysis. The further delay of seven minutes in order to bring a second ASD to the roadside was not “reasonably necessary”, as that requirement is explained in R. v. Quansah , supra. It was necessary delay but it was not reasonable delay.

[28] In conclusion on this second ground of appeal, I agree with the trial judge that there was a s. 8 Charter violation because of a failure to comply with the “forthwith” requirement in s. 254(2)b. However, the violation was somewhat less serious than the way the trial judge characterized it. The Crown established that the initial 11 minute delay was “reasonably necessary”. It was only the further seven minute period of delay that was not “reasonably necessary”.

D. EXCLUSION OF EVIDENCE

[29] Having found two s.8 Charter violations at the stage of the roadside ASD demand, the trial judge proceeded to exclude the subsequent Intoxilyzer samples provided by Walsh at the station pursuant to s.24(2) of the Charter. There was no question that the arrest and breathalyzer demand in this case depended on the roadside ASD test results. Accordingly, the subsequent breathalyzer samples were “obtained in a manner that infringed” s.8 of the Charter. See: R. v. Strachan (1988) , 46 C.C.C. (3d) 479 (S.C.C.); R. v. Pino (2016), 2016 ONCA 389 , 337 C.C.C. (3d) 402 (Ont. C.A.). The more difficult issue was whether admission of the breathalyzer samples would “bring the administration of justice into disrepute”.

[30] I have found that the trial judge erred in finding a s. 8 violation in relation to the “reasonable suspicion” issue. I have also found that the s.8 violation relating to the “forthwith” issue was different, and somewhat less serious, than the violation found by the trial judge. Accordingly, the s.24(2) issue has to be re-assessed on appeal. In any event, the Crown submits that the trial judge made further independent errors in her s. 24(2) analysis. I agree with the Crown. In particular, the trial judge’s assessment of the second set of Grant factors was significantly in error. See: R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.).

[31] In relation to the first set of Grant factors, the trial judge found that the two s.8 violations were serious. She particularly stressed P.C. Egan’s failure to meet the “reasonable suspicion” requirement, describing it as “essentially demanding a roadside breath sample from a driver without any evidence there is alcohol in his body” and holding that P.C. Egan’s conduct means that “ any driver can be stopped and be subjected to a demand for roadside testing” [emphasis added]. I have found that the trial judge erred in finding that P.C. Egan lacked “reasonable suspicion”. Even if the trial judge had been right in finding that his grounds were something less than “reasonable suspicion”, it was a dramatic over-statement to characterize this Charter violation as one made “without any evidence” and the equivalent of stopping “any driver”. The trial judge also erred in her characterization of the “forthwith” violation of s.8. She referred to P.C. Egan’s conduct in this regard as making “a routine roadside ASD stop without a device in his possession ” [emphasis added]. As explained above, there is no requirement or expectation that every officer will or should carry their own ASD device and the initial 11 minute delay in bringing an ASD to P.C. Egan’s location did not violate the “forthwith” requirement.

[32] For all these reasons, the trial judge significantly exaggerated the gravity of the s.8 violation in this case. I would characterize the only s.8 breach in this case – the seven minute further delay in bringing a second ASD to P.C. Egan’s location – as in the mid-range of gravity. It was not due to deliberate bad faith and it was not part of a broader pattern of Charter violations. It was an isolated failure to carry out a routine task properly, undoubtedly due to some degree of carelessness or negligence. For these reasons, the first set of Grant factors did not strongly favour either exclusion or admission of the evidence.

[33] Turning to the second set of Grant factors, the trial judge initially acknowledged that the taking of breath samples “is generally considered minimally intrusive”. However, she then proceeded to reason as follows:

I need not repeat my conclusions under the first line of inquiry, but I will note that the unreasonable search in this case does not involve a mere technical breach.

Mr. Walsh is of an advanced age and he is a vulnerable individual. As a result of the unlawful search, he was detained, arrested, handcuffed, searched, taken to a police station, required to provide additional breath samples, and held until 5:21 in the morning – basically overnight. The officer had to move the handcuffs from his back to the front of his body because of the pain that the handcuffs to the rear were causing him. These are significant circumstances with substantial personal impacts.

I find these factors favour exclusion of the evidence since admission may send the message that, in circumstances that have arisen in this case, individual rights count for little.

[34] It can be seen that the trial judge assessed the impact of the violations on s.8 Charter interests by reference to the fact that the roadside breath sample demand led to Walsh being “detained, arrested, handcuffed, searched, taken to a police station, required to provide additional breath samples, and held until 5:21 in the morning – basically overnight”. It was these “significant circumstances with substantial personal impacts” that favoured exclusion of the evidence. The Court of Appeal has recently held that this approach to the second set of Grant factors in roadside breath sample cases is erroneous. In R. v. Jennings , 2018 ONCA 260 at paras. 27-32, the Court stated the following:

The second Grant factor addresses the impact of the breach on the interests of the accused. The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung , the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent’s being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.

The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov ; R. v. Ramsammy , 2013 ONSC 7374; R. v. Marchi , 2016 ONCJ 757; R. v. Ho , 2014 ONSC 5034, rev'd on other grounds 2015 ONCA 559.

Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

This reading of Grant is consistent with other judgements of this court, such as R. v. Manchulenko (2013), 2013 ONCA 543 , 116 O.R. (3d) 721, where Watt J.A. refers to “the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness” (at para. 100) and, citing Grant at para. 111, says that “as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted”.

Similarly, in R. v. Guenter (2016), 2016 ONCA 572 , 350 O.A.C. 318, Brown J.A. notes, at para. 98, that “[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity: Grant , at para. 111.”

To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.

[35] Applying the above reasoning in Jennings, the impact of the seven minute further delay in carrying out the ASD testing, in relation to Walsh’s s.8 Charter interests, was minimal. As the Court of Appeal stated, the trial judge ought to have “found the impact of the breach to have been minimal, favouring admission”.

[36] Turning to the third set of Grant factors, the trial judge acknowledged that “the public interest in truth-finding is a relevant consideration”, that the offence “is serious and a matter of pressing social concern”, and that the breath samples are “relevant and reliable evidence”. She found that “the third line of inquiry favours admission, but only modestly ” (emphasis added). This latter conclusion, about the limited or modest effect of the third set of Grant factors, seems to have been driven by the trial judge’s view, set out in her immediately preceding paragraph, that the first two sets of Grant factors outweighed the third set of factors. She had stated the following:

The public is justifiably alarmed by the prevalence of drinking and driving offences. The public, in my view, would also likely be concerned by the intrusive police conduct in this case without objective cause for reasonable suspicion . [Emphasis added].

[37] In my view, the third set of Grant factors clearly favoured admission of the evidence and it should have been given this effect, before turning to the final balancing of the three sets of factors. In the result, the second and third sets of Grant factors favoured admission and the first set of Grant factors did not argue strongly for exclusion. It was, therefore, a clear case for admission of the breathalyzer samples. See: R. v. McGuffie (2016), 2016 ONCA 365 , 336 C.C.C. (3d) 486 at para. 63 (Ont. C.A.); R. v. Jennings , supra. I should note in this regard that Mr. Whitzman, counsel for the Respondent, conceded that he could not support the remedy of s.24(2) exclusion of the breath samples, if the only s.8 violation concerned the “forthwith” requirement, as I have found.

E. CONCLUSION

[38] For the reasons set out above, the Crown has made out reversible error in relation to the s.8 “reasonable suspicion” ground of appeal and in relation to the s.24(2) exclusion of evidence ground of appeal. Accordingly, the appeal is allowed. The only remedy sought by the Crown, according to its Factum, is that a new trial should be ordered. When I questioned the Crown about the appropriate remedy during oral argument, she did not resile from the request for a new trial as the only appropriate remedy. Mr. Whitzman submits that the Crown should be held to the remedy that it has requested. I agree.

[39] In the result, the acquittal is set aside and a new trial is ordered on the charge of “over 80”. The accused should appear in 202 Court at the Ontario Court of Justice, 2201 Finch Ave. West, Toronto on Thursday, May 9, 2019 at 9:00 am.

M.A. Code J. Released: April 12, 2019