OVERVIEW

[1] The Crown appeals the decision of Justice C. Parry of the Ontario Court of Justice acquitting Chantell Rowan of a single count of operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code.

[2] The Crown appeals the verdict on four grounds: 1) the trial judge erred in concluding that the demand for the approved screening device was not made forthwith; 2) the trial judge erred in concluding that there was a breach of the Charter because her right to privacy was breached; 3) the Crown was denied natural justice and the appearance of a fair trial; and 4) the trial judge erred in excluding the Intoxilyzer readings under s. 24(2) of the Charter.

[3] The Respondent, Ms. Rowan, was self-represented and did not advance any arguments on this appeal. She expressed remorse for her actions and outlined the hardship she would face if the acquittal were set aside. For reasons that follow, I will grant the Crown’s appeal and order a new trial.

BACKGROUND

[4] Ontario Provincial Police (OPP) Officers Nymeyer, Euler and Thornton interacted with Ms. Rowan. Officer Nymeyer was driving when she observed Ms. Rowan pull out of one residential driveway into another and bring her vehicle to a stop. Officer Nymeyer’s vehicle was followed closely by Officers Euler and Thornton in a second police vehicle. Officer Nymeyer drove up to Ms. Rowan’s vehicle. Ms. Rowan was seated in the driver’s side seat. There were two male passengers in her vehicle. Officer Nymeyer had some conversation with Ms. Rowan and was joined shortly thereafter by Officer Euler and Thornton.

[5] Officer Nymeyer formed a reasonable suspicion that Ms. Rowan had alcohol in her body. She decided to turn over the investigation to Officer Euler who also formed the suspicion that Ms. Rowan had alcohol in her body while operating a motor vehicle. Officer Euler made the roadside demand and administered the alcohol screening test on an approved screening device (ASD), which registered a ‘fail’ result. Officer Euler arrested Ms. Rowan for operating a motor vehicle with a blood alcohol concentration over 80 milligrams of alcohol in 100 millilitres of blood. Ms. Rowan was given her rights to counsel and she requested to speak with counsel.

[6] Ms. Rowan was then transported to the police station. Officer Euler told Ms. Rowan that her cell was under video surveillance and informed her that she could use a privacy sheet, should she need to use the washroom. Ms. Rowan used the washroom on two occasions without the privacy sheet and was videotaped on both occasions.

[7] Officer Euler testified that she formed her reasonable suspicion between 2:12 and 2:15 a.m., some 5 minutes after their first contact with Ms. Rowan. Officer Thornton and Euler testified that Ms. Rowan registered a fail at 2:17 a.m.

[8] Ms. Rowan suggested that the police questioned her for about 20-25 minutes before making the ASD demand. The trial testimony of her passengers, Travis Martin and Shawnie Hough, corroborated Ms. Rowan on the time of the first interaction with the police. The trial judge found the times they provided to be vague and imprecise.

Did the trial judge err in concluding that the ASD demand was not made forthwith?

[9] The trial judge’s finding that the ASD demand was not made forthwith was a finding open for him to make on the evidence.

[10] At the time of the trial, s. 254(2) of the Criminal Code authorized a peace officer to require a person to, forthwith, provide a breath sample into an ASD, where that officer had “reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the proceeding three hours, operated or…had the care or control of a motor vehicle.”

[11] “Forthwith” is not interpreted in accordance with its literal meaning. Instead, a contextual approach is adopted within certain parameters described by the Court of Appeal for Ontario in R. v. Quansah, 2012 ONCA 123, at para. 41. The analytical framework for interpreting “forthwith” has five components:

A contextual approach must be adopted;
The demand must be made immediately after the peace officer forms a reasonable suspicion;
The period from when the officer forms a reasonable suspicion, makes the demand, and the detainee responds to the demand must be no more than is “reasonably necessary to enable the officer to discharge his duty as contemplated by s. 254(2)”;
The “immediacy requirement” must be assessed and – taking into account all the circumstances and any delay – must be reasonable and necessary. Examples of “reasonable and necessary delay” are where an ASD is not immediately available to conduct the test; where there is a short delay due to legitimate safety and security concerns; or where the short delay is necessary to ensure an accurate ASD reading; and
Though not a precondition to satisfy the “forthwith” requirement, and while not determinative, if the circumstances reveal that the peace officer could realistically fulfill the police’s obligation to implement the detainee’s s. 10(b) rights before requiring the sample, then the “forthwith” requirement would not have been satisfied.

[12] The Crown submits that the trial judge erred by making findings of fact not supported by the evidence and speculating about the duration of the delay: Reasons for Decision at para. 36. In effect, the Crown submits that the trial judge committed a palpable and overriding error by failing to accept the testimony of the officers. I disagree.

[13] In his thorough reasons, the trial judge gave careful consideration to the strength and weaknesses of both the prosecution and defence evidence on the forthwith issue. He carefully considered and articulated discrepancies in time notations recorded by the police officers: Reasons for Decision at paras. 18-20. The trial judge carefully considered and articulated deficiencies in the defence evidence, characterising it as vague and imprecise: Reasons for Decision at paras. 21-27.

[14] It was open to the trial judge to accept the sequence of events and times of the officers and conclude that the “the forthwith” window enunciated in Quansah had been satisfied. It was also open to him to reject that evidence: Reasons for Decision at paras. 10-38. The trial judge gave very detailed and thoughtful reasons for rejecting the officer’s account of events. The crux of which he described as follows:

What remains unclear is the duration of time that elapsed between Nymeyer’s initial interaction with the accused [which resulted in the formation of her suspicion and communication of it to Thornton] and the arrival [of] Thornton and Euler at Ms. Rowan’s car door.

Ultimately, because this was a warrantless search, the Crown bears the burden of proving that the ASD demand was made forthwith. For the reasons just indicated, I cannot be satisfied, on balance of probabilities, that the Euler Demand followed as quickly after the formation of Nymeyer’s suspicions as Nymeyer would suggest. The delay between the formation of Nymeyer’s suspicion and the ultimate ASD demand could have been brief but it also could have been up to about ten minutes in duration. The Crown has failed to meet its burden to establish where the truth lies on this spectrum. Whatever the duration of the delay, I am satisfied to an absolute certainty that it was caused by Nymeyer’s conscious decision to refrain from making a demand, despite having the grounds to make one, so Euler could gain experience.

Reasons for Decision at paras. 32 and 36.

[15] While alternate factual findings were available on the evidence, it was open for the trial judge to make the findings that he made. Any speculation regarding the time that may have elapsed was immaterial to his findings of fact on the “forthwith” issue. The crux of the trial judge’s finding is that, due to imprecise times and the confused picture of what occurred prior to the administration of the ASD test, he could not conclude that the “forthwith” requirement had been satisfied. This finding was open to him on the evidence. Therefore, there is no palpable and overriding error in this factual determination.

[16] The Crown takes issue with the trial judge’s conclusion that Officer Nymeyer “deliberately chose not to make her ASD demand promptly after forming her suspicion. Instead, she chose to embark on a training exercise”: Reasons for Decision at para. 44. The trial judge simply stated what is indisputable on the evidence. Officer Nymeyer made an intentional decision to turn over the investigation to Constable Euler after forming her own reasonable suspicion. A review of the trial judge’s decision reveals that his comments were made in the context of the “forthwith” analysis and not for the purpose of ascribing some nefarious motive to Officer Nymeyer’s decision to hand over the investigation. Rather, the comment was made to emphasize that Officer Nymeyer’s decision caused a delay which contributed to a delay outside the “forthwith” window: Reasons for Decision at paras. 44-45.

[17] It is apparent that the trial judge did not approve of Officer Nymeyer’s decision, however, such disapproval was in the context of a finding that the officer’s decision contributed to a delay which was unreasonable. This finding was not determinative of Parry J.’s finding on the “forthwith” issue. There is no general prohibition for a delay to enable officer training: R. v. Dhaliwal, 2006 ONCJ 346, at para. 78; R. v. David, 2017 ONCJ 621, at para. 31. Such an inquiry is fact-driven. The question is whether the “forthwith” requirement is satisfied, after considering the period and reasons of the delay (for officer training or other reasons) in the context of the Quansah criteria.

[18] For the reasons described, there is no basis to interfere with the trial judge’s decision that the ASD demand was not made forthwith. Thus, the breath seizure was unauthorized by law and Ms. Rowan’s right against unreasonable search and seizure was violated.

Did the trial judge err in concluding Ms. Rowan’s right to privacy had been breached?

[19] The trial judge did not err in considering that Ms. Rowan’s right to privacy had been breached.

[20] Officer Euler testified that, at 2.31 a.m., she informed Ms. Rowan that her cell was under video surveillance and that a privacy sheet was available for her use. Ms. Rowan was desperate and went to urinate almost immediately. The first breath test was taken at 2:51 a.m. The second breath test was conducted at 3:14 a.m. and the second urination took place at 4:27 a.m.

[21] The trial judge found that Officer Euler told Ms. Rowan about video surveillance at the booking area and her cell. Ms. Rowan provided contradictory evidence on her awareness of the video surveillance and was confused on the subject. The trial judge concluded that Ms. Rowan was aware that her cell was under video surveillance. He found that Officer Euler advised Ms. Rowan about the privacy sheet. Officer Euler did not say that Ms. Rowan declined the offer of the privacy sheet. She did not note a response from Ms. Rowan. Officer Euler did not present Ms. Rowan with a privacy sheet: Reasons for Decision at paras. 59-61.

[22] From the evidence, it was open to the trial judge to accept or reject Ms. Rowan’s evidence about her degree of knowledge concerning the privacy sheet.

[23] I agree with the Crown that the trial judge engaged in speculation when he concluded: “I would not be surprised if Ms. Rowan had no idea what Euler meant by a privacy sheet and failed to register what Euler was telling her [because of her] very high alcohol readings”: Reasons for Decision at para. 59. This comment was not central to his finding that Ms. Rowan did not know of the existence of the privacy sheet. That finding was based on the following:

Indeed, Constable Euler did not make a note of any response to the information provided about the privacy sheet and did not present a sheet to her. Also, Euler certainly also does not purport that Ms. Rowan decline the offer of a privacy sheet. I therefore accept Ms. Rowan’s evidence that she did not know of the existence of a privacy sheet. I also accept that she did not knowingly and explicitly waive whatever token protection that the privacy sheet may have offered: Reasons for Decision at para. 36.

[24] Detainees retain some measure of privacy while in police custody: R. v. Mok, 2014 ONSC 64, paras. 53-83, aff’d 2015 ONCA 608. Therefore, the police have an obligation to inform a detainee that her cell is under surveillance and must provide her with a means to protect her privacy (in this case, the privacy sheet). It is reasonable for this obligation to have an informational component and an implementational component. Under the informational component, the police must inform the detainee of the surveillance and the means available to protect their privacy in a manner that ensures that the detainee understands the information provided. The implementation component requires the police to provide the detainee with a reasonable opportunity to access the privacy protection, should they choose to do so.

[25] A contextual approach should be adopted in assessing whether the police have discharged this obligation. What is “reasonable” is dependent on the circumstances. For example, to discharge the police obligation under the informational component, the simple recitation of a privacy statement to a person whose ability to comprehend may be compromised by the consumption of alcohol or drug will not be enough, and actual presentation of the privacy device to the detainee (without a compulsion to use it) would be a prudent cause of action.

[26] The trial judge adopted this approach and concluded that, although Constable Euler advised Ms. Rowan of the existence of a privacy sheet, the Officer did not offer Ms. Rowan the privacy sheet. This finding was available on the evidence.

[27] The Crown takes issue with the trial judge’s comment that: “[Constable Euler] also could have added clarity to the situation by insisting upon a clear and unequivocal response to the offer [of the privacy sheet]”: Reasons for Decision at para. 71. The Crown submits that this is an invitation by the trial judge to Constable Euler to breach Ms. Rowan’s right to silence. I do not believe that this was the intent of the trial judge and this did not form a basis for his finding on Ms. Rowan’s knowledge concerning the existence of the privacy sheet. Without breaching a detainee’s right to silence, it is reasonable to expect an officer to make a notation of a detainee’s response to a question or other information provided, even if such a notation states that the detainee was unresponsive.

[28] In his Reasons for Decision, at paras. 76 & 78, the trial judge concludes his analysis as follows:

I now consider the Crown's contention that Ms. Rowan knowingly and willingly urinated in full view of the cameras and thus waived her right to privacy. While I agree that there can and will be occasions where the evidence will establish that the subject of the video had no concern about the existence of an audience, this occasion is not one of them. Indeed, Ms. Rowan's hesitation prior to her second urination suggests a level of unease; as does her response to Thornton opening the cell door. Does the fact that Ms. Rowan had to have known she was being taped vitiate her reasonable expectation of privacy? No, it does not. We do not always have the luxury of choosing when to urinate. We cannot always "hold it", as the saying goes. The video footage in this case shows Ms. Rowan being quite fidgety upon her entry to the station. It is clear that she was in some discomfort and could not hold it. The officer hastily uncuffed her and brought her to the cell so Ms. Rowan could urinate. It is around this time that Officer Euler informed Ms. Rowan of the privacy sheet. However, I have accepted that Ms. Rowan was unaware of the offer and never declined it. On the first occasion, Ms. Rowan used the toilet at a time of apparent need. In my view, her urgent use of the toilet in view of the cameras while locked in her cell cannot be said in any way to amount to a voluntary waiver of a privacy interest. Her second use of the toilet discloses a similar situation. She went to the door before using the toilet. She even appears to have considered knocking on it. She also seemed to be attempting to see if anyone was nearby. She showed hesitation before ultimately giving in and using the toilet for a second time. And she had no choice but to urinate in her cell – she was locked in. In these circumstances, I do not conclude that the use of the toilet in front of the camera was a voluntary waiver of her privacy interest but was instead a capitulation to a call of nature while in captivity. She acquiesced to a situation out of her control. She did not waive her Charter right.

Consequently, I conclude that the Crown has failed to establish that Ms. Rowan made a valid unequivocal waiver of her right to privacy.

Having concluded that Ms. Rowan has established an intrusion upon her reasonable expectation of privacy, having concluding that the Crown has failed to establish a lawful basis for this intrusion, and having concluded that the Crown has failed to establish that Ms. Rowan waived her expectation of privacy, I conclude that the Crown has failed to establish on a balance of probabilities that the search was a reasonable one. Ms. Rowan has therefore established a breach of section 8 of the Charter.

[29] From the reasons described, there is an evidentiary foundation for the factual findings in support of the conclusion at trial that Ms. Rowan’s reasonable expectation of privacy was breached in violation of her s. 8 Charter rights. This ground of appeal is dismissed.

Was there a denial of natural justice?

[30] The Crown submits that there is an appearance that the prosecution did not receive a fair trial because the trial judge raised issues that both parties unequivocally stated they did not wish to pursue. Those issues are: 1) the possibility that evidence of incomplete paperwork resulted in Ms. Rowan making an unwarranted court appearance and whether this raised a potential Charter issue; and 2) suggesting that the privacy sheet was insufficient and constituted unreasonable search and seizure contrary to s. 8 of the Charter: Mok.

[31] Upon reviewing the entire record, I conclude that these two issues were not raised by either Crown or defence. Defence counsel declined to pursue either issue. The trial judge did not pursue the incomplete documentation issue but unilaterally opined about the sufficiency of a privacy sheet: Reasons for Decision at paras. 72-75. The propriety of proceeding in this manner, particularly in a circumstance when both parties are represented by counsel, is captured in R. v. Youngpine:

Judges must be cautious in usurping counsel's role especially where the judge has raised the issue squarely, and both defence counsel and client have nevertheless declined to pursue it. There are reasons for this caution. It is precisely because judges play a key role in deciding whether the state has breached an individual's constitutional rights that judges must not descend improperly into the arena: Therrien, supra, at para. 111. When judges are highly interventionist in pursuing an issue, they run the risk that a reasonable and informed member of the public will view their approach as one of "have opinion; need case."

We have concluded that the sentencing judge's actions in this case demonstrate a reasonable apprehension of bias. He had previously raised the same SOIRA constitutional issue on his own motion in Aberdeen, supra. His conclusion in that case that the retroactive application of the legislation breached s. 11(i) of the Charter had been reversed on appeal to this Court on the basis that no notice of a constitutional challenge had been provided to the Federal and Provincial Attorneys-General as required by the Judicature Act, R.S.A. 2000, c. J-2, s. 24: R. v. Aberdeen, 2006 ABCA 164, 384 A.R. 395. Here again, in this case, the sentencing judge raised this issue on his own motion and when defence counsel and his client made it clear that they did not want to pursue it, the sentencing judge insisted on appointing an amicus curiae and required that the Crown address the issue.

2009 ABCA 89, at paras. 13-14.

[32] Both parties, Crown and defence, are entitled to a fair trial and the judge must remain neutral throughout: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 96 & R. v. Griffin, 2016 ONSC 2448, at para. 118.

[33] Overall, the trial judge’s conduct – including his comments during the submissions of counsel – was balanced and impartial. He challenged both counsel on aspects of their case that caused him concern. The trial judge did not pursue the improper documentation issue when it was apparent that neither Crown nor defence intended to pursue it.

[34] The trial judge’s pursuit of the sufficiency of the privacy sheet issue did, however, cross the line described in Youngpine. Neither party wished to pursue that issue, and it was unfair to the prosecution to do so because the Crown was unable to proffer evidence on the sufficiency of the privacy sheet. This resulted in impermissible speculation by the trial judge concerning the sufficiency of the privacy sheet. Ultimately, the trial judge disapproved of the privacy sheet policy and described it as insufficient to protect an individual’s privacy, in accordance with the standard contemplated in Mok: Reasons for Decision at paras. 74-75.

[35] For reasons previously articulated, this was unfair to the Crown. Overall, when the entire proceedings and reasons for decision are viewed objectively, the trial judge did not demonstrate actual or an appearance of unfairness to the Crown. For example, the trial judge was careful to note that his comments on the sufficiency of the privacy sheet formed no basis for his decisions on trial issues: Reasons for Decision at para. 75. The trial judge’s comments on the sufficiency of the privacy sheet are obiter and thus, do not constitute grounds to interfere with the trial judge’s resolution of the privacy breach issue.

Did the trial judge err in excluding the breath samples under s. 24(2) of the Charter?

[36] The trial judge erred in excluding the breath samples under s. 24(2) of the Charter. A trial judge commits an error in law where evidence is excluded on the basis of an error in principle; a misapprehension of the evidence; or an unreasonable assessment of the evidence: R. v. Menard, 2018 ONSC 5293, at para. 4 & R. v. Ferose, 2019 ONSC 1052, at para. 28. The trial judge committed an error in principle and, in a few instances, conducted an unreasonable assessment of the evidence. This warrants appellate interference with his s. section 24(2) analysis.

[37] The analytical frame work for an analysis of whether evidence should be excluded under section 24(2), requires an assessment and balancing of three factors, to determine whether the exclusion or admission of the evidence will bring the administration of justice into disrepute: 1) the seriousness of the Charter-infringing state conduct (i.e. should courts condone the state’s deviation from the rule of law?); 2) the impact of the breach on the defendant’s Charter-protected interests; and 3) a consideration of society’s interest in an adjudication of the case on its merits (i.e. whether the truth seeking function of a criminal trial favours the admission or exclusion of the evidence): R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[38] Relying on the Court of Appeal decision in R. v. Pino, 2016 ONCA 389, at para. 88, the trial judge concluded at para. 85 of his Reasons for Decision:

In its application to exclude evidence, the defence bears the burden of proving that the breath samples were obtained in a manner that infringed a Charter protected right. In my view the evidence establishes a strong temporal and contextual connection between the breaches and the collection of the breath samples. There is also a direct causal connection between the ASD procedure and the compulsion of the subsequent breath samples. I am therefore satisfied that the evidence was obtained in a manner that infringed a Charter protected right.

Jennings or Pino

[39] The Crown submits that the trial judge erred by relying on R. v. Pino, 2016 ONCA 389, at para. 88, to conclude that Charter breaches after the discovery of the challenged evidence can satisfy the “obtained in a manner” requirement in s. 24(2) of the Charter. The Crown submits that R. v. Jennings, 2018 ONCA 260, has overtaken Pino in restricting the casual or temporal connection in breath sample cases.

[40] In Pino, police had Ms. Pino under surveillance, followed her and eventually took her down, wearing masks and with guns drawn, while she was in the vehicle. On a search incident to arrest, the police found some marihuana plants in her trunk, resulting in a s. 8 Charter challenge based on an allegation of a dangerous and unnecessary take down. At the station, she was then misinformed of her right to consult counsel and was prevented from speaking to counsel for five and a half hours after arrest. This was the basis for a s. 10(b) Charter challenge at trial.

[41] The trial judge found a s. 8 breach but concluded that an analysis of the Grant factors under s. 24(2) did not warrant exclusion of the marihuana. The trial judge found that two police officers lied on the 10(b) issue. While he found a s. 10(b) breach, since these breaches occurred after the marihuana (the evidence at issue) had been seized, the evidence was not “obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter”: Pino at paras. 1-33.

[42] The Ontario Court of Appeal in Pino found the trial judge to be in error and concluded that, even though the 10(b) breaches occurred after the marihuana was found, these breaches were “obtained in a manner” as contemplated by s. 24(2). Pino sets out this analytical framework at paras. 45-50:

Based on the case law, the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):

The approach should be generous, consistent with the purpose of s. 24(2);
The court should consider the entire “chain of events” between the accused and the police;
The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;
But the connection cannot be either too tenuous or too remote.

[43] The Ontario Court of Appeal in Pino concluded that the s. 8 and s. 10(b) breaches occurred in the course of the “same transaction – in the course of Ms. Pino’s arrest” and thus satisfied the “obtained in a manner” requirement. Thus, a trial judge in a s. 24(2) analysis must consider not just the impact of the breach leading to the discovery of the impugned evidence, but also, the impacts of any breach that occurs during the entirety of the procedure faced by the accused after arrest. Any such breach is captured under s. 24(2), as long as the breach is neither too tenuous nor remote and there is both the temporal and contextual connection described.

[44] While R. v. Au-Yeung, 2010 ONSC 2292, predates Pino, it effectively adopts the same approach in a breath evidence case. According to Au-Yeung, as interpreted by the Court of Appeal in Jennings, an assessment of “the seriousness of the impact of a s.8 breach in a breath sample case should not focus only on the immediate impact of providing a breath sample, but the overall impact on the accused of the breach including such matters as detention in the back of a police cruiser, transportation to the police station for breath testing, and subsequent detention at the police station”: Jennings para. 4.

[45] Without reference to Pino, Jennings rejected the Au-Yeung approach and limited the s. 24(2) analysis in context of breath evidence to the impacts of “the intrusiveness of the breath sample procedure itself” – i.e. to “the immediate impact of providing the breath sample” and not to the “overall impact on the accused of the breach including such matters as detention in the back of a police curser, transportation to the police station for breath testing, and subsequent detention at the police station”: Jennings at paras. 4, 27-32.

[46] Justice Leroy in Menard, at para. 73, aptly summarises Pino as follows:

Although the Court in Pino brings such Charter breaches collateral to the trail of evidential discovery into the 24(2) analysis, barring a serious breach of rights from which the court feels the need to dissociate or serious impact on the accused’s Charter-protected rights the cogency of these breaches vis-à-vis this part of the Grant 24(2) analysis, falls by the wayside given the singular focus on the minimal intrusiveness in a breath sample and sound reliability of the Intoxilyzer results.

[47] Pino is distinguishable from Jennings. Pino involved a gun point take down including meaningful breaches before and after the discovery of the evidence, and at a time when the police were actively engaged in gathering evidence: R. v. Carreau, 2016 ONCJ 700, at para. 48 Jennings dealt with breath sample evidence.

[48] At the current time, Jennings appears to govern s. 24(2) analyses of breath sample evidence. The Jennings jurisprudence suggests that post-breath sample collection breaches cannot be utilised under the s. 24(2) analysis to exclude breath sample evidence or, at the least, that post-breath sample collection breaches are unlikely to have sufficient weight to tip the balance towards excluding reliable breath evidence in most cases like this.

[49] The practical effect of the Jennings approach is that a remedy for a breach occurring after the collection of the breath sample is properly considered under s. 24(1) of the Charter: R. v. Sapusak, [1998] O.J. No. 4148 (C.A.); R. v. Iseler, 2004 CanLII 34583 (Ont. C.A.). Although Sapusak and Isler predate Pino and Jennings, they stand for the same principle on this point. The trial judge decided that this was not one of the clearest of cases warranting a stay under s. 24(1) of the Charter. This is not a ground of appeal.

Threshold Question

[50] The first urination took place at approximately 2.31a.m. The first breath test was taken at 2.51 a.m. The second breath test was conducted at 3.14 a.m. The second urination occurred at 4:27 a.m. The Crown submits that there is no causal connection between either instance of urination and either breath sample. And no temporal connection with the second urination because it took place after the breath samples were completed.

[51] The first privacy breach took place some 20 minutes prior to the breath testing process. The purpose of the detention was to perform the breath test. I agree that the second privacy test took place after the breath test was concluded. Thus, connection of the second privacy breach is tenuous, however, I will not interfere with the trial judge’s finding of a temporal and contextual connection between the breaches and the collection of the breath samples.

Seriousness of the breach

[52] In considering the seriousness of the “forthwith breach” the trial judge concluded as follows: the “forthwith” breach was a momentary; the traffic stop leading to arrest was relatively brief; and the brevity of the delay was such that Ms. Rowan would not have had an opportunity to obtain meaningful legal advice. Within this context, the trial judge failed to consider that the mere fact that Officer Nymeyer decided to defer to Officer Euler in order to further a training exercise is not, on its own, determinative of the “forthwith” issue.

[53] A conceptual approach is adopted to determine whether Officer Nymeyer’s decision contributed to a delay that offended the “forthwith” requirement in the context of the Quansah criteria. Failure to analyse Officer Nymeyer’s conduct in this context is an error in principle. In effect, the “trial judge fell into the error identified by Leach J. in R. v. Molakandov, [2013] O.J. No. 2482, (S.C.J.) at para. 59, of finding any breach of [s. 254(2)] of the Criminal Code sufficient reason to favour exclusion of evidence under the first Grant factor”: Jennings, at para. 26

[54] A significant factor in the trial judge’s finding that the “forthwith” requirement was breached stems from confusion over precisely when certain events occurred. This made it difficult to accurately determine the period of delay. Therefore, within the context of the delay and its brevity, it is not a forgone conclusion that this is conduct so serious that courts should not condone it.

[55] In assessing the seriousness of the forthwith breach, the trial judge’s assessment of the evidence was unreasonable because it placed undue weight on the erroneous description of Officer Nymeyer’s conduct as a “very bad example.” This led the trial judge to characterise this as a factor that slightly favoured exclusion of the evidence: Reasons for Decision, para. 88. This characterisation is unreasonable when viewed in the context of the good faith findings on the part of the police coupled with the trial judge’s additional findings about the brevity of the delay.

[56] In assessing the seriousness of the “privacy breach,” the trial judge concluded that Constable Euler’s failure to obtain an unequivocal waiver or an acceptance of the privacy protection was due to the officer’s inexperience, not indifference or maliciousness. Officer Euler was doing her “best to get things right.” In effect, Constable Euler’s conduct, though not nefarious, resulted in the privacy breach and was a central factor slightly favouring exclusion: Reasons for Decision at para. 88. The trial judge’s assessment of the evidence was unreasonable in the following respects:

it failed to consider that Ms. Rowan used the facilities almost immediately upon being advised of the surveillance and the privacy sheet. In fact, interpreting the findings at trial, the sequence of the act of providing the information and the use of the facilities, were such that they could almost be described as a single transaction;
it failed to give proper weight to the fact that Officer Euler had advised Ms. Rowan of the fact that her cell was under surveillance and that the privacy sheet was available;
it failed to consider that, at the time, there was no evidence of a policy for police to do anymore than advise the detainee of the availability of the privacy sheet;
there were no concerns about bad faith on the part of the OPP in enacting the privacy policy or Constable Euler in informing Ms. Rowan about the privacy protection.

Impact of the breaches on Ms. Rowan

[57] The trial judge found the forthwith breach to have a minimal impact on Ms. Rowan’s Charter protected right favouring inclusion of the breath evidence. With respect to the impacts of the privacy breaches, the trial judge concluded that Ms. Rowan was humiliated and embarrassed as a result: Reasons for Decision, para. 90. The trial judge did not consider that the second privacy breach occurred after the breath sample collection process was complete: Jennings, para. 26 to 30. However, on these facts, such a consideration will have little impact in altering his reasonable conclusion. Parry J. concluded that the impact of the videotaping breach upon Ms. Rowan’s Charter protected rights favoured exclusion of the evidence. There is no basis to interfere with this conclusion.

Society’s interests in a trial on the merits

[58] Overall, the trial judge found the factors at this step weighed in favour of admission. He recognized that “[d]rinking and driving continue to cause significant danger, damage and death [,]” and he characterized society’s interest in a trial on the merits as “strong”: Reasons for Decision at para 91. Ms. Rowan’s breath readings were so high that “the Criminal Code mandates the readings to be considered an aggravating factor” and exclusion of the “highly reliable…evidence [would] be fatal to the Crown’s case”: Reasons for Decision at para 91.

[59] While society has a strong interest in the trial on its merits for this type of offence, this case fell at the lower end of that spectrum. The driving “was merely momentary [,] … [which involved] moving her car from one driveway to another nearby” and “she had done her best to take precautionary steps” in planning to sleep over at the nearby residence: Reasons for Decision at para 91. There is no basis to interfere with this conclusion.

Conclusion regarding the 24(2) analysis

[60] The trial Judge’s decision to exclude the evidence is based on two primary factors:

There was a deliberate decision to depart from the forthwith requirement for an objective that is not set out in that section (officer training); and
A relatively new officer did not go far enough to ask the right questions and do the right things to ensure a detainee knew that a privacy sheet could/would be made available on demand.

[61] For the reasons described, I find that the trial judge’s decision to exclude the evidence constitutes an error in law. Thus, the decision to exclude the evidence is set aside and a new trial is ordered before a different judge of the Ontario Court of Justice.

Justice Barnes

Released: December 6, 2019

COURT FILE NO.: CR-18-0569

DATE: 2019 12 06

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN

Appellant

and -

CHANTELL ROWAN

Respondent

REASONS FOR JUDGMENT

[On appeal from the judgment of The Honourable Mr. Justice C. Parry dated November 6, 2018]

Barnes J.

Released: December 6, 2019

R. v. Rowan, 2019 ONSC 7099

Case Summary

OVERVIEW

BACKGROUND

Did the trial judge err in concluding that the ASD demand was not made forthwith?

Did the trial judge err in concluding Ms. Rowan’s right to privacy had been breached?

Was there a denial of natural justice?

Did the trial judge err in excluding the breath samples under s. 24(2) of the Charter?

Jennings or Pino

Threshold Question

Seriousness of the breach

Impact of the breaches on Ms. Rowan

Society’s interests in a trial on the merits

Conclusion regarding the 24(2) analysis

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 4

Legal Tests 3

Legislation 3