COURT FILE NO.: 18-1819 DATE: 2021-01-04

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

– and –

Shane Kranz Appellant

Counsel: Carl Lem, for the Crown Mark Ertel and Brendan Coffey for the Appellant

HEARD: September 30, 2020

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Somji J.

Overview

[1] The Appellant seeks to overturn his conviction rendered on June 24, 2019 for operating a motor vehicle while having more than 80 milligrams of alcohol in 100 milliliters of blood (“over 80”) contrary to s. 253 (1)(b) of the Criminal Code. The Appellant challenges the Trial Judge’s rulings on the admissibility of the breath samples under ss. 8 and 24(2) of the Charter.

[2] At trial, the Appellant argued that the arresting officer did not have reasonable and probable grounds to make the breath demand. The Trial Judge disagreed. The Trial Judge found the officer had subjective grounds to make the breath demand and that these grounds were objectively reasonable. The Trial Judge found the officer’s mistaken arrest for the offence of “over 80” rather than the offence of “impaired” did not undermine the lawfulness of the breath demand because s. 254(3)(a)(i) of the Criminal Code permitted the officer to issue the breath demand for either offence. Consequently, the Trial Judge found there was no s. 8 Charter breach.

[3] The Trial Judge found the Appellant’s arrest for the incorrect offence of over 80 rather than impaired violated his s. 9 Charter rights. However, she found this breach was minimal and did not warrant exclusion of the breath samples under s. 24(2) of the Charter.

[4] The Appellant argues that the Trial Judge made several errors: first, that she improperly applied the subjective and objective components of the test in determining whether the officer has reasonable grounds to issue a breath demand; second, that she erred by examining the evidence of the arresting officer in a piecemeal fashion, and had she taken a holistic view of the evidence, she would have found that the arresting officer’s grounds were not objectively reasonable or sufficient to warrant a breath demand; and third, that she erred in finding the s. 9 Charter breach resulting from the arrest for the incorrect offence did not warrant an exclusion of the breath samples under s. 24(2) of the Charter.

[5] This appeal concerns whether the arresting officer had reasonable and probable grounds to make a breath demand, and in particular, what impact, if any, did the officer’s arrest of the Appellant for the incorrect offence of over 80 have on her subjective belief that there were grounds to issue a breath demand against the Appellant.

Background Facts

[6] At approximately 3:45 am on May 26, 2018, the Appellant was involved in a single motor vehicle collision where he struck a light post. The light post fell over and the driver’s truck was straddled part way across it. The front of the truck was severely damaged. Civilian James Smith and his sister heard the crash and drove up to the scene. Upon arrival, Mr. Smith observed the driver removing things from the vehicle. The driver assured Mr. Smith that he was okay and advised him that his brother was coming to get him. Mr. Smith found it highly unusual that the Appellant’s first concern, having just been in a major accident which took down a light standard, was to neither contact the police nor get a tow truck to help him move the vehicle.

[7] Mr. Smith testified that while he did not observe signs of impairment, he found the Appellant’s behavior erratic. He called 911. When asked by the dispatcher whether the driver was impaired, Mr. Smith said possibly.

[8] Constable Howe was at the tail end of his shift when he received a dispatch from 911 indicating a possible impaired driver. Upon arrival, Cst. Howe spoke to the driver and noted an odour of alcohol coming from him, but could not localize it. About 15 minutes later, Cst. Koivula arrived at the scene and took over the investigation.

[9] Cst. Koivula first spoke to the civilian witness. She then spoke to the driver, subsequently identified as the Appellant. Cst. Koivula observed that the Appellant had an odour of alcohol on his breath and had reasonable grounds to suspect that the Appellant had alcohol on his body pursuant to s. 254(2) of the Code. However, neither Cst. Koivula nor Cst. Howe had an Approved Screening Device (“ASD”) on-hand. To avoid delay, Cst. Koivula proceeded to administer the Standardized Field Sobriety Tests (‘SFST”) on the Appellant. Cst. Koivula concluded that the Appellant performed poorly on the SFST tests, and on this basis and her other observations, she found she had reasonable and probable grounds to make a breath demand pursuant to s. 254(3)(a)(i) of the Code.

[10] Prior to issuing the breath demand, Cst. Koivula arrested the Appellant for “over 80.” She discovered later, when preparing for trial, that this was an error, and that she should have arrested the Appellant for impaired driving. At the time of the arrest, Cst. Koivula provided the Appellant with his rights and caution. The Appellant was taken to the detachment where he spoke to counsel twice. The Appellant provided breath samples of 100 and 110 milligrams of alcohol in 100 milliliters of blood.

[11] The Crown called four witnesses at trial: James Smith, Cst. Howe, Cst. Koivula, and the Qualified Breath Technician, Stephane Poirier. The particulars of their evidence as it relates to the legal issues raised on this appeal is addressed further below.

[12] At the time of the offence, the relevant Criminal Code provision for the issuance of a breath demand was s. 254(3). On December 18, 2018, Bill C-46 repealed sections 249 to 261 of the Criminal Code, which address Canada’s criminal driving provisions, and replaced them with Part VIII.1 of the Criminal Code, sections 320.11 to 320.4. This appeal refers to the Criminal Code provisions applicable at the time of the offence

Issues

[13] It is settled law that the existence of reasonable and probable grounds to issue a breath demand pursuant to s. 254(3) of the Code has both an objective and a subjective component. The police officer must subjectively believe that the suspect committed an offence under s. 253, and there must exist objectively reasonable grounds for this belief: R v Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254 at para 48.

[14] This appeal addresses whether the arresting officer Cst. Koivula (“Officer”) had the appropriate subjective reasonable and probable grounds to make a breath demand under s. 254(3), and whether those grounds were objectively reasonable in the circumstances. In particular, the appeal raises the following issues:

1. Did the Trial Judge err in finding that the officer had an honest subjective belief that the driver had committed an offence under s. 253, so as to warrant a breath demand under s. 254? In particular, what impact, if any, did the Officer’s arrest of Mr. Kranz for the incorrect offence of over 80 have on the honesty of her belief with respect to the grounds for a breath demand?

2. Did the Trial Judge err in finding that the Officer’s subjective grounds were objectively reasonable?

3. Did the Trial Judge properly analyze the totality of the evidence in coming to the conclusion that Cst. Koivula had reasonable and probable grounds to make a s. 254(3) breath demand?

4. Upon finding a s. 9 Charter breach, did the Trial Judge correctly assess the admissibility of the breath demand under s. 24(2) of the Charter?

Analysis

The law on reasonable and probable grounds for a breath demand

[15] A peace officer may issue a breath demand under s. 254(3) of the Code if they have reasonable grounds to believe that the suspect has, within the preceding three hours, committed an offence under s. 253 Code as a result of the consumption of alcohol. Section 254 reads as follows:

254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) 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, … and

(b) if necessary, to accompany the peace officer for that purpose.

[16] Section 253 of the Code refers to four drinking and driving offences: care and control of a motor vehicle while impaired, care and control of a motor vehicle while over 80, operating a motor vehicle while impaired, and operating a motor vehicle while over 80. Section 253 of the Code reads as follows:

253 (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

(2) For greater certainty, the reference to impairment by alcohol or a drug in

paragraph (1)(a) includes impairment by a combination of alcohol and a drug.

[17] Unlawfully taking a breath sample from a person constitutes a violation of a person’s right to be free from unreasonable search and seizure under s. 8 of the Charter. Therefore, the requirement for an officer to have reasonable and probable grounds to make a breath demand is both a statutory and constitutional requirement: R v Bernshaw at para 51.

[18] Assessing reasonable and probable grounds to make a breath demand involves a two-part test, which includes both a subjective and an objective component. The subjective component requires that the officer have an honest belief that an offence under s. 253 of the Code has been committed. The inquiry at this stage is into the honesty of the arresting officer’s belief: R v Notaro, 2018 ONCA 449 at para 37.

[19] The objective component of the test involves the reviewing judge ensuring that the officer’s subjective belief is objectively reasonable. In other words, the officer’s grounds must be supported by objective facts: Bernshaw at para 48; R v Shepherd, 2009 SCC 35, [2009] 2 SCR 527 at para 17; Notaro at para 25.

[20] The jurisprudence regarding the subjective and objective components of the reasonable grounds test is discussed in further detail in the subsequent sections.

[21] Evidence of the consumption alcohol alone is not enough to give rise to reasonable grounds for a breath demand. Something more is required. However, minor signs of impairment can be sufficient. The courts have found that any degree of impairment, from slight to great, is sufficient to establish impaired operation: R v Stellato, 1993 CanLII 3375 (ON CA), 12 OR (3d) 90.

[22] The determination of whether reasonable and probable grounds exist is a fact-based exercise depending upon all the circumstances of the case. The totality of the circumstances must be considered. That an accident occurred is but one factor that must be taken into account, along with all the other factors considered by the officer in forming their reasonable and probable grounds: R v Bush at para 54; R v Rajagopal, 2008 ONCJ 106, [2008] OJ No 989 at para 35.

[23] In reviewing reasonable and probable grounds, judges must also consider the context within which the officers operate, and in particular, their need to make quick decisions. In this context, the test for reasonable and probable grounds is not onerous.: R v Censoni, [2001] O.J. No. 5189 (S.C.J.) at para 43. Officers are not required to make a prima facie case for conviction before a breath demand can be given. Shephard at para 23; R v Bush, 2010 ONCA 555 at para 37.R v Anand, 2015 ONCJ 375 at para 14.

[24] An officer is required to assess each situation and competently conduct the investigation they feel is appropriate to determine if reasonable and probable grounds exist for a breath demand. In some cases, this may require interviewing witnesses or the suspect. In other situations, the officer’s observations at the time may be sufficient to establish requisite grounds: Bush at para 67.

[25] The law requires that the officer consider the indicia of impairment collectively, and not individually: Rajagopal at para 31.

[26] Furthermore, the fact that there are other possible explanations for particular indicia of impairment does not necessarily take away from the existence of reasonable grounds: Rajagopal at para 34; Littler 2008 CanLII 44710 (ON SC) at para18; Shepherd at para 23.

[27] Finally, as explained in R v Chehil, a trial judge is owed considerable deference in relation to their factual findings. However, the determination of whether reasonable and probable grounds exist is a matter of law and as such is reviewable on a correctness standard: Chehil at para 60; Shepherd at para 20; R v Bajich, 2019 ONCA 586 at para 10. These statements reflect the standards of review applicable to issues 1, 2 and 3.

Issue 1: Did the Trial Judge err in finding that Cst. Koivula had an honest subjective belief that Mr. Kranz had committed an offence under s. 253?

[28] The Appellant argues that the Trial Judge erred in her analysis of Cst. Koivula’s subjective belief that there were reasonable and probable grounds to issue a breath demand.

[29] Before examining the Trial Judge’s treatment of the issue, I will first set out the facts that led to Cst. Koivula’s attendance at the scene and her grounds for the breath demand.

[30] Cst. Koivula received a dispatch at 3:45 am about a single motor vehicle collision with a possible impaired driver. She inferred this information came from the 911 caller. Cst. Koivula arrived at the scene at 4:00 am and observed that the Appellant’s pick-up truck had collided with the light post. Cst. Howe was already at the scene.

[31] Cst. Koivula spoke first with Mr. Smith, who made the 911 call. She then proceeded to speak with the driver of the pickup truck who was subsequently identified as the Appellant. At the time of her arrival, Cst. Koivula observed the Appellant standing outside the driver’s side door of the truck, holding a set of keys, and speaking on the phone. Cst. Koivula testified that it was apparent to her that the Appellant was talking to his brother and was looking to be picked up and leave the scene. Cst. Koivula spoke to the Appellant and proceeded to obtain his driver’s licence, ownership, and insurance documents.

[32] Cst. Koivula testified that the Appellant was physically okay and not injured. In cross-examination, she was asked about whether some of her later observations could be consistent with someone being injured from an accident. She testified that the Appellant told her he was fine and not physically injured. She observed the Appellant walking, standing at the side of the car, and having a conversation with his brother regarding being picked up. It was her assessment that the Appellant was not injured. She also testified that had he been injured, she would not necessarily have performed some of the SFST tests which can be challenging for a person who is injured or suffers from a visible disability.

[33] In her reply evidence, Cst. Koivula acknowledged that sometimes people are injured and think that they are okay when they are not. She also agreed that sometimes injuries surface later, but she did not think, based on her observations, that the Appellant fell into that category.

[34] With respect to whether the Appellant was injured, Cst. Koivula’s observations were consistent with Mr. Smith and Cst. Howe’s observations. Mr. Smith testified that he had also observed the Appellant walking around and gathering his things as though he wanted to leave. When Counsel asked Mr. Smith if it crossed his mind that the Appellant could have been injured or banged his head or something, Mr. Smith stated “yes” and that his sister was trying to get the Appellant to sit down. Mr. Smith explained that his mother was a nurse and so he understood about trauma and the need to stabilize someone until a paramedic arrives.

[35] Cst. Howe testified that he also did not observe any signs of injury and therefore did not call an ambulance. Cst. Howe testified that the Appellant said he was absolutely fine; he was just in shock and agitated. Cst. Koivula testified she did not recall speaking to Cst. Howe or hearing that the Appellant could possibly be in shock.

[36] Cst. Koivula observed that the Appellant had bloodshot eyes and that he was speaking very quickly with a slur. She acknowledged that it almost sounded like a lisp. She also noted that there was a strong odour of an alcoholic beverage coming from his breath. Cst. Koivula was standing just a few feet away from the Appellant. She testified that the smell was almost immediate.

[37] Cst. Koivula testified that the Appellant had explained to her that he was driving 50 kms an hour and swerved and hit the light post to avoid a rodent or racoon. She testified that the Appellant said words to the effect “[h]honestly I thought the post was a racoon.”

[38] Cst. Koivula asked the Appellant if he had taken any alcohol or drugs and he replied no. She testified that she did not believe him. An officer is not required to accept every explanation the suspect provides: Bush at para 66.

[39] On the basis of all this information, at 4:07 am Cst. Koivula formed a reasonable suspicion that the Appellant had alcohol in his body. The Appellant does not dispute that, at this juncture, the officer had the requisite grounds to make both an approved screening device (ASD) demand and SFST tests pursuant to s. 254(2). Neither Cst. Koivula nor Cst. Howe had an ASD available. Based on the timing of the 911 call, Cst. Koivula understood the collision had occurred around 3:40 am. To avoid further delay, she opted to proceed with the SFST tests, even though this would be her first time conducting such tests in the field.

[40] The Appellant was taken to a nearby parking lot where he undertook the following SFST tests: the horizontal gaze nystagmus test; the walk and turn test; and the one-leg stand test. Cst. Koivula testified that she administered the tests while Cst. Howe remained to monitor for safety. Cst. Koivula recorded the results on an SFST working sheet which was filed as an exhibit at trial.

[41] The horizontal gaze nystagmus test involves the officer observing how the suspect’s eyes respond to a moving object such as a pen. If the suspect is unable to move their eyes smoothly and follow the stimuli and their eyes tend to skip or jerk, it can suggest the person may be under the influence of alcohol or drugs. SFST-trained officers look for what they term “clues” when conducting this test. If two or more clues are present out of six, the suspect is deemed to have performed poorly. Cst. Koivula testified and noted on the work sheet that all six clues were present when she conducted this test on the Appellant.

[42] During the walk and turn test, the subject is required to walk heel-to-toe along a straight line marked on the ground. The subject takes nine steps, then turns and walks back in the same fashion. The officer looks for a maximum of eight clues and if two or more clues are present, it constitutes a poor performance. In this case, Cst. Koivula testified the Appellant demonstrated two clues: first, she observed the Appellant lift his arm on two occasions from the side of his body about six inches or more when he was supposed to keep his arms by his side; and second, she observed that the Appellant had a half-inch gap between the heel of one foot and the toe of other foot during one of the Appellant’s turns.

[43] Defence counsel vigorously challenged the reliability of the results of the walk and turn test given that it was done on a wet surface, under poor lighting, and that other than a half-inch gap, the Appellant had been able to take 17 out of 18 steps correctly and not fall out of line while doing so. As discussed further, the Trial Judge found this test result was not reliable.

[44] The final test taken by the Appellant was the one leg stand. This test requires the subject to stand on one leg, keep the leg about six inches above the ground, and count to thirty. As Cst. Koivula explained, the officer is to look for four clues, and two or more clues constitute a poor performance. In this case, Cst. Koivula found the Appellant demonstrated two clues: first, that he was swaying at some point during the 30 second period; and the second that he put his foot down after the count of 20.

[45] Cst. Koivula acknowledged that this test is to be done on a dry, hard, level, and non-slippery surface. In this case, the test was done on a possibly wet surface. Cst. Koivula explained finding a more ideal location would have caused a delay. The Trial Judge also found the results of the one leg stand test were not reliable.

[46] The three SFST tests were completed at 4:13 am. Cst. Koivula found that the Appellant had performed poorly on all three SFST tests, and on this basis, she arrested the Appellant for care or control “over 80.” Following the arrest, Cst. Koivula made a breath demand pursuant to s. 254(3) of the Code.

[47] When asked about her grounds for arrest Cst. Koivula testified in-chief that she had relied on the fact that the Appellant was the driver and that an accident had happened. In cross-examination, she explained that the totality of circumstances on which she relied were:

• the odour of alcohol on the Appellant’s breath • the Appellant’s poor performance on the SFST • the Appellant’s bloodshot eyes • her belief that the Appellant was slurring

[48] Cst. Koivula’s testified in cross-examination as follows:

Q. And I guess in combination with the odour of alcohol on his breath, the - the ultimate grounds to make an arrest under Section 253 and a - and a demand under Section 254 of the Criminal Code, came from the Standard Field Sobriety Testing.

A. Correct.

THE COURT: Anything else, or just that?

A. So what - the totality of the circumstances. He had bloodshot eyes, I believed him to be slurring, the odour of alcohol on his breath, and performing poorly on the Standard Field Sobriety Testing.

MR. ERTEL: Q. So, bloodshot eyes, slurring, and the Standard Field Sobriety Testing, and I guess the odour of alcohol?

A. Correct.

[49] Cst. Koivula could not recall if she had spoken to Cst. Howe even though he was the first officer at the scene. Even if Cst. Howe had shared with her his own observations of an odour of alcohol, there was no evidence to suggest that she relied on it or that it formed part of her grounds. There was also no evidence to suggest that she relied on the observation of the civilian, Mr. Smith, who testified that the Appellant’s behaviour was erratic. Cst. Koivula testified she did not notice any issues with the Appellant’s coordination, balance, or difficulties with walking.

[50] Cst. Koivula acknowledged in her testimony that, without the SFST test results, she would likely have had insufficient grounds to make a breath demand.

[51] Cst. Koivula acknowledged that the collision was a serious accident and not what one might describe as a fender bender. She reviewed a photo which shows apparent damage to the front end of the truck and agreed it was “severe damage”. Cst. Koivula did not know if the truck was still operable. She testified that it was not running when she arrived. She testified that she would not drive away with it in that state, but she could not say for sure whether you could. She testified she did not really turn her mind to it.

[52] While preparing one or two weeks before the trial, Cst. Koivula realized she had made an error in arresting the Appellant for over 80. Cst. Koivula testified that based on the same factors, she should have instead arrested the Appellant for impaired driving or impaired care or control. She explained that, at the time she made the breath demand, she was thinking back to a 1989 San Diego field study correlating arrest decisions and blood alcohol concentrations, and this confused her. The Crown pressed Cst. Koivula to clarify more precisely what she was thinking at the time of and she testified as follows:

Q. And - so going back to that night, and you started to answer this yesterday as well, but as best as you can recall, when you did arrest Mr. Kranz for over 80, what - what were you thinking, why did you do that?

A. So when I made my arrest, I believed he had committed an offence under Section 253 at the time. I believed that he was the driver of the car, I believed that an accident had just happened, immediately before the 9-1-1 call, and at the time, because of my confusion with remembering these studies, I believed that he was over 80, when I had the grounds for impaired, and that’s why I made my arrest. (emphasis mine)

[53] The Appellant argues that the Trial Judge incorrectly assessed Cst. Koivula’s subjective grounds based on what her grounds ought to have been, rather than assessing what her grounds actually were. The Appellant argues that once the officer testified that she believed the Appellant was over 80 at the roadside, that should have been the end of the inquiry. I respectfully disagree.

[54] Before an officer can make a breath demand pursuant to s. 254(3) of the Code, they must have reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol. Section 253 of the Code includes four offences: driving while impaired, being in care or control while impaired, driving while over 80 or being in care or control while over 80.

[55] Officer Koivula honestly believed, and the Trial Judge accepted her belief, that the following grounds existed at the time to establish an offence under s. 253 occurred:

• the Appellant had been the driver of a vehicle • an accident had occurred • the Appellant had an odour of alcohol on his breath • the Appellant performed poorly on the SFST tests • the Appellant had bloodshot eyes • the Appellant was slurring

[56] Cst. Koivula reiterated some of these grounds to the Qualified Breath Technician, which also lends to the honesty of her belief. The technician testified that he was informed by Cst. Koivula that:

• there was a single motor vehicle collision involving a pickup truck hitting a light post and the truck had a large dent • a civilian witness identified the Appellant exiting the driver’s side of the vehicle • the Appellant was holding the car keys and cell phone • the Appellant had a strong odour of alcohol on his breath • the Appellant performed poorly on the SFST tests.

[57] The Trial Judge held that at the time of the arrest and breath demand, Cst. Koivula subjectively believed she had sufficient grounds to both arrest the Appellant for over 80 and to make a breath demand. While the Officer was mistaken about the sufficiency of the grounds for an arrest of over 80, she was not mistaken with respect to the sufficiency of the grounds for the breath demand. The effect of Cst. Koivula’s mistake, as the Trial Judge rightly pointed out, was an arrest for the wrong offence.

[58] Constable Koivula’s belief in the existence of these grounds as a basis for issuing a breath demand did not wane. She always held an honest belief that there had been an accident, the Appellant had an odour of alcohol on his breath, and that he performed poorly on the SFST tests. Rather, what the officer came to realize later, is that these same grounds do not necessarily amount to an offence of over 80. Hence, her honest belief that she could arrest the Appellant for an offence of over 80 was mistaken. However, the error did not undermine her belief that those grounds existed. The Trial Judge concluded that this mistaken belief resulted in an unlawful arrest and a breach of the Appellant’s s. 9 Charter rights. In reaching that conclusion, the Trial Judge stated, at pp. 14-15 as follows:

In most cases, the officers testify as to their subjective grounds. In this case, the officer said that at the time she arrested for over 80, but she acknowledged she did not have the grounds to do so, but as she said, it was an error. It was late at night, her first time doing the test, and thinking of what she had learned, she was confused between the grounds and the test, but that she would have arrested for impaired, because that is what she believed she had grounds for. Therefore, the question, despite what the accused was arrested for, is whether the Court is satisfied that the officer subjectively had grounds to believe that a Section 253 offence had been committed. (emphasis mine)

[59] The Trial Judge went on to accept Cst. Koivula’s subjective belief that she had grounds to make the demand. The Trial Judge stated, at pg. 15, as follows:

In this case, specifically at this point whether or not she had grounds to believe that he was impaired by alcohol, and of course, whether the grounds were objectively reasonable. Given the officer’s evidence, I am satisfied she did subjectively believe she had grounds to make the demand, specifically that within the preceding three hours the accused had operated or been in care and control of a motor vehicle while his ability to do so was impaired by alcohol. The fact she arrested him for another offence is irrelevant, in my view. (emphasis mine)

[60] Counsel for the Appellant also argued at para 44 of the Appellant’s factum and in oral submission that Officer Koivula “could not have honestly believed the Appellant was impaired by alcohol” if her mind was directed on the belief that the Appellant was over 80. I find this argument mischaracterizes Cst. Koivula’s evidence. The only time that Cst. Koivula was directing her mind to the arrestable offence in this case was upon completion of the SFST tests. It is clear that Cst. Koivula was assessing the presence of indicia impairment—i.e. whether the Appellant was indeed impaired by alcohol—from the moment she started to deal with the Appellant. It is the reason she proceeded to administer the SFST tests after she observed the odour of alcohol on the Appellant’s breath in the first place. The Appellant’s argument incorrectly focuses on the Officer’s conclusion regarding which driving offence had been made out, as opposed to the Officer’s subjective belief that a driving offence under s. 253 offence had occurred as a result of the consumption of alcohol.

[61] During the trial, there was some discussion between the Crown and Defence about how far the Crown would be able to question Cst. Koivula’s as to why, at the time of the arrest, she was confused between the offences of impaired and over 80. In particular, there was discussion as to whether Cst. Koivula was entitled to testify about the various studies that she had been thinking of at the time. In support of its position to permit a wider scope of questioning, the Crown argued there is a lot of overlap between impaired and over 80. It is clear that the Trial Judge was alive to the overlap between the driving offences and the confusion that can arise from it when she stated: “she’s not the first officer who gets them confused”: Trial Transcript, March 17, p. 116.

[62] In coming to her conclusion that Cst. Koivula’s arrest for the wrong offence (over 80) was irrelevant, the Trial Judge relied on the decision in R v Subramaniam, [2004] O.J. No. 226. In that case the officer had formed reasonable and probable grounds to believe the accused was committing the offence of care and control of a motor vehicle while impaired. The grounds were found to be sufficient to issue a breath demand under s. 254 of the Code. However, the officer proceeded to arrest the accused for the offence of driving while impaired rather than the offence of care and control while impaired. This was found to be an error since the arresting officer had not presented any direct evidence that he observed the accused actually driving the vehicle within the last three hours. Nonetheless, the trial judge found that the officer’s arrest for the incorrect offence did not affect the validity of the breath demand.

[63] The Appellant argues that Subramaniam is distinguishable because it was dealing only with the distinction between whether the accused had been driving or in care and control of the vehicle. However, I fail to see how the rationale would not apply to all driving offences enumerated under s. 253 of the Code. As explained by Molloy J., an officer can make a breath demand even without advising the accused what charge might be laid against him: Subramaniam at para 30. What is determinative for a breath demand is not necessarily the offence with which a person is arrested or charged, but whether the officer had the reasonable and probable grounds to believe a driving offence had been committed as a result of the consumption of alcohol.

[64] The court came to a similar decision in R v Ehrmantraut, 2013 SKPC 175 at para 41. In Ehrmantraut, the officer had arrested the accused for impaired driving instead of over 80 after the driver failed the ASD test. The officer then proceeded to issue a breath demand. The court found that since the officer had reasonable and probable grounds to believe a driving offence had occurred as a result of the consumption of alcohol, the officer’s arrest for impaired rather than over 80 did not undermine the validity of the breath demand. Furthermore, the court found that the arrest for the incorrect offence did not constitute arbitrary arrest or detention under s. 9 of the Charter. Based on the foregoing considerations and bearing in mind the correctness standard of review applied to questions of reasonable and probable grounds, I conclude that the Trial Judge was correct in finding that Cst. Koivula had subjective reasonable grounds to believe the Appellant had committed an offence under s. 253.

[65] This ground of appeal is accordingly dismissed.

Issue 2: Did the Trial Judge err in finding that the officer’s subjective grounds were objectively reasonable?

[66] Upon finding that the officer subjectively believed she had grounds to make the demand, the Trial Judge was required to consider whether those grounds were supported by objective facts: R v Berlinski, 2001 CanLII 24171 (ON CA), 48 WCB (2d) 506 at para 3.

[67] The objective component of the test is satisfied when a reasonable person, standing in the officer’s shoes would be able to come to the same conclusion that there were indeed reasonable and probable grounds to issue the demand: R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR. 241 at p 250. While this articulation of the objective component of the test is drawn from the context of assessing reasonable and probable grounds for an arrest, it has been held to apply in the context of assessing grounds for a breath demand: Notaro at para 39; Bush at para 38; Shepherd at para 17.

[68] Having accepted the officer’s subjective belief, the Trial Judge proceeded to examine each of the grounds relied upon by the officer to determine if they were objectively supported by the facts before her.

[69] The Trial Judge closely examined the three SFST tests and the Officer’s conclusions that the Appellant had done poorly on all three tests. The Trial Judge found that the heel to toe test and the stand on one-leg test were not reliable given the conditions under which they were performed, and that the Appellant’s allegedly poor performance involved such minor errors as to be almost negligible. As a result, the Trial Judge found the Officer’s reliance on these two tests was not objectively reasonable and no weight should be placed on those two test results. The Trial Judge stated at p 16 of her decision, the “she” being the Officer, as follows:

In regard to the walk and turn and the one-leg stand, she testified he also performed poorly; however, she acknowledged that she could not testify if the tests were conducted as per her training on a dry, flat surface. It was wet, and at least one was done on a painted line. Given this fact and the minor issues the accused had with these tests, I am not satisfied that objectively, any weight should be placed on the results or the performance on these two tests.

[70] The Appellant now argues that the SFST tests are inherently arbitrary, subject to human error, and are not conclusive evidence of impairment.

[71] Whatever skepticism one may have about the SFST tests as reliable indicators of impairment, the legitimacy and legislative framework around the SFST tests as a tool for assessing impairment was not challenged by the defence. As the Trial Judge right pointed at page 17 of her decision:

It is important, at this point, to remember that Parliament has found these tests, if administered properly, to be sufficiently reliable to determine whether there are reasonable grounds for a demand under Section 254(b) and/or an arrest. It was not for this Court to go behind that.

[72] SFST test results can be relied upon as part of the totality of circumstances establishing reasonable and probable grounds for a breath demand. For example, in R v Wilson, 2020 ONSC 1956, the court held that the officer’s reliance on the nystagmus test, the fact that an accident occurred, the observation of the driver leaving the scene, the driver’s glassy and bloodshot eyes, and the driver’s inability to remember where he had fallen asleep only moments before, was sufficient to constitute reasonable and probable grounds for a breath demand. Similarly, in R v Russo, 2016 ONCJ 762 at paras 64 to 66, the court held that the officer’s reliance on a poor performance on two of the sobriety coordination tests, along with strong odour of alcohol, slurred speech, and observations of the driver swerving and speeding, constituted reasonable and probable grounds for a breath demand.

[73] The Trial Judge also placed no weight on Cst. Koivula’s observation that the Appellant was slurring given that she was not certain it was slurring and acknowledged in cross-examination that it could have been a lisp. The Trial Judge also considered the evidence of the civilian witness Mr. Smith and that of Cst. Howe, neither of whom had testified that they noticed a slur. The Trial Judge also pointed out that the Cst. Koivula had not referred to the slur when identifying the grounds to the breath technician. The Trial Judge therefore put no weight on this factor. Based on the evidence presented, the Trial Judge was entitled to come this conclusion.

[74] The Trial Judge noted in her decision that Cst. Koivula had relied on the fact that there had been a single motor vehicle accident, but acknowledged that the Officer had not elaborated on how this played directly into her grounds. Nonetheless, the Trial Judge was entitled to rely on the Officer’s consideration that there had been an accident as one of the several factors she considered when determining the totality of circumstances and grounds for a breath demand. As stated in R v Bush, whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The fact that an accident occurred can be a relevant consideration: Bush at paras 54, 57, and 58.

[75] Here, the accident was one of Cst. Koivula’s considerations and it was objectively supported. The severity of the accident was readily apparent to all who attended the scene. The collision was loud enough that it attracted the attention of Mr. Smith and his sister who were some distance away and drove over to see what had happened. Mr. Smith testified he heard a loud bang, that sounded like a “firework or bomb or something had gone off”. Upon arrival, Mr. Smith saw the pickup truck “halfway up the post” or “mounted almost halfway up the light standard.” When asked to elaborate what that meant, Mr. Smith explained that the light post was laying on the ground and the truck was straddled over the top of it. Mr. Smith drew a sketch illustrating what he saw. Cst. Howe also testified that it was a serious accident, and the front of the vehicle was heavily damaged.

[76] The fact that the Appellant provided an alternate explanation for the accident – avoiding a rodent – does not necessarily render the accident an unreliable ground: Bush at para 58; Rhyason at para 19.

[77] The Trial Judge conducted a sound analysis of the officer’s subjective grounds and found some, but not all were objectively reasonable. In the end, the judge was left with the following objectively reasonable grounds for the breath demand:

• the Appellant had been driving • the Appellant was in an accident • the Appellant had bloodshot eyes • the Appellant had performed poorly on the first of the three SFST tests

[78] The Appellant argues that the Trial Judge “honed in” on the nystagmus test as a determinative factor to support the officer’s reasonable and probable grounds. This argument does not accord with the trial’s judge’s assessment of the objective component of the grounds.

[79] The Trial Judge commenced her analysis of whether the officer’s grounds were objectively reasonable at page 15 of her decision by first recognizing that the officer had said her grounds were based on the totality of the circumstances. The Trial Judge then proceeded to analyze the various factors relied on by the officer to determine if they were objectively reasonable. The fact that the Trial Judge found only the nystagmus test was reliable of the three SFST tests administered did not mean she failed to consider the remaining factors—the accident, the Appellant’s bloodshot eyes, and the odor of alcohol—as part of the totality of circumstances that established reasonable and probable grounds.

[80] Furthermore, the Trial Judge was entitled to rely on just one of the three SFTS tests. Cst. Koivula explained in cross-examination that an officer is not required to find that a suspect performs poorly on all three portions of the SFST test to rely on the results as an indicator of impairment. While SFST officers are required by training to complete all three tests – horizontal gaze nystagmus, walk and turn, and one leg stand - they are entitled to rely on the subject’s poor performance on any one of the three tests as part of the grounds to make a demand. Cst. Koivula explained that even if the Appellant performed poorly on the first test and then went on to perform well on the remaining tests, she was entitled to rely on the performance of the first test – the nystagmus test - as an indicator of impairment. Cst. Koivula testified in cross-examination as follows:

MR. ERTEL: Q. Right, and when you continue with those other two tests, if the person performs well on the other two tests, then you might have some concern whether or not you actually do have the grounds, right?

A. Nope, in this case, because he had six out of six clues, I would have still arrested him.

[81] The Appellant also argues that the Trial Judge should have duplicated her analysis of the arrest when assessing the grounds for the breath demand. I disagree. Having found that the mistaken arrest had no bearing on the Officer’s subjective grounds for the breath demand, the Trial Judge correctly proceeded to analyze whether the officer’s subjective grounds were objectively supported. She did so by considering all evidence, including evidence that undermined the reliability of a particular indicator. For example, with respect to the officer’s belief that the Appellant was slurring, the Trial Judge considered the contrary evidence of the civilian and other police witness who clearly did not observe any slurring.

[82] The Appellant is correct that the Trial Judge did not remark on the fact that the officer had not considered whether there could have been alternative explanations for some of the indicia of impairment. For example, the Appellant argues that the officer’s bloodshot eyes and odour of alcohol grounds could have been explained by the fact that the Appellant told Cst. Howe he worked at a bar.

[83] However, I find that that just because the Appellant worked at a bar does not mean the Appellant had just come from the bar. A closer review of the trial transcript indicates that while the Appellant told Cst. Howe “he works at a bar nearby”, there is no evidence that he stated to Cst. Howe that this is where he was actually coming from. On the contrary, Cst. Howe testified that the Appellant told him “he was heading to the Barley Mow” to see if any staff were still there, because he knew it was closed, but that “staff sometimes stay late to clean, or you know, have a drink after – after shift.” Cst. Howe testified that he continued to speak with the Appellant who then explained that he had been at his brother’s home and was heading home. Cst. Howe testified as follows:

I just continued speaking with him. I gathered some information that he had been working. He does - he was doing some renovations at his brother’s house, he had been - he left there, is what he told me. He was heading home.

[84] A trial judge is only required to consider the possibility of other explanations for the presence of the indicia of impairment identified by the officer if they are reasonable: Censoni at para 26. In this case, while the officer understood the appellant worked at a bar nearby, there was no evidence that the Appellant was coming from a bar or had been working at a bar earlier that night. I find the trial judge did not err in failing to consider the appellant’s employment at the bar given that it was not apparent on the evidence that this constituted a reasonable explanation for the symptoms.

[85] In my view, the Trial Judge was entitled to conclude that the Officer’s objectively supported grounds – the accident, the odour of alcohol, the Appellant’s bloodshot eyes, and the poor result on the one SFST test (nystagmus test) - constituted reasonable and probable grounds. The Trial Judge was well aware of the threshold test for assessing reasonable and probable grounds. She cited and quoted from the decision of Regina v Ross where Pacciaco J., then of the Ontario Court of Justice, reviewed the standard as one where credibly based probability replaces suspicion: 2015 ONCJ 115, [2015] OJ No 1043 at paras 16 and 17.

[86] Based on the foregoing reasons, I find the Trial Judge correctly analyzed the objective grounds. This ground of appeal is therefore dismissed.

Issue 3: Did the Trial Judge properly analyze the totality of the evidence in coming to the conclusion that Cst. Koivula had reasonable and probable grounds to make a s. 254(3) breath demand?

[87] The Appellant argues that the Trial Judge failed to consider the grounds in a holistic fashion. As an example, the Appellant points to the fact that the Trial Judge focused on only one of the indicia of impairment, the nystagmus test. I respectfully disagree.

[88] The Trial Judge laid out the test for determining reasonable and probable grounds at the outset of her decision referencing both the subjective and objective components of the test. At page 3, the Trial Judge went on to state that “in determining whether reasonable and probable grounds exist, the investigating officer must consider the indicia pointing towards impairment as well as any indicia pointed away from impairment.” The Trial Judge also noted that “it is also well established that the Court must review the totality of the circumstances and not consider individual elements of impairment in isolation.” It is clear that the Trial Judge was alive to the proper approach to be taken in assessing reasonable and probable grounds.

[89] I find the Trial Judge correctly analyzed the existence of reasonable and probable grounds on the totality of the evidence presented. As stated earlier, the trial judge considered the poor result on one of the SFST tests along with the other objectively reliable indicia of impairment identified by the Officer: that the Appellant was the driver, the accident, the odour of alcohol on his breath, and the Appellant’s bloodshot eyes. In rejecting the presence of “slurred speech”, the Trial Judge properly took into account the evidence of Cst. Howe and Mr. Smith, neither of whom witnessed a slur. The Trial Judge was correct in not placing any weight on an alternative explanation for the indicia of impairment such as the Appellant’s employment at a bar given that the Appellant had not indicated to Cst. Howe he returned from the bar. The evidence presented by the civilian Mr. Smith and Cst. Howe tended to corroborate the observations of Cst. Koivula. Contrary to the Appellant’s assertion, I find the Trial Judge did not approach the analysis in a piecemeal fashion. This ground of appeal is accordingly dismissed.

Issue 4: Upon finding a s. 9 Charter breach, did the Trial Judge correctly assess the admissibility of the breath demand under s. 24(2) of the Charter?

[90] Section 24(2) of the Charter provides that evidence obtained in a manner that infringes the accused’s rights shall be excluded if its admission would bring the administration of justice into disrepute. In R v Grant, the Supreme Court of Canada identified three factors for assessing the admissibility of evidence under s. 24(2) Charter: the seriousness of the offence; the impact of the breach on the Appellant; and society’s interest in the adjudication of the case on its merits: 2009 SCC 32, [2009] 2 SCR 353Grant.

[91] Having found that the Officer’s arrest for a mistaken offence of over 80 constituted a s. 9 Charter breach, the Trial Judge examined whether the breach warranted an exclusion of the breath samples under s. 24(2) of the Charter. The Trial Judge found that the breath samples were properly admissible.

[92] A trial judge’s analysis and decision under s. 24(2) is entitled to considerable deference. As explained by the Ontario Court of Appeal in R v McGuffie, 2016 ONCA 365 at para 64:

[64] The three inquiries identified in Grant require both fact-finding and the weighing of various, often competing interests. Appellate review of either task on a correctness standard is neither practical, nor beneficial to the overall administration of justice. A trial judge's decision to admit or exclude evidence under s. 24(2) is entitled to deference on appeal, absent an error in principle, palpable and overriding factual error, or an unreasonable determination: see Grant, at paras. 86, 127; Côté, at para. 44; R. v. Cole, [2012] 3 S.C.R. 34, [2012] S.C.J. No. 53, 2012 SCC 53, at para. 82; Jones, at para. 79; R. v. Ansari, [2015] O.J. No. 4355, 2015 ONCA 575, 330 C.C.C. (3d) 105, at para. 72.

[93] I find here that the Trial Judge properly considered the appropriate Grant factors in arriving at her decision to admit the breath samples under s. 24(2) of the Charter. The Trial Judge did not make any factual errors or unreasonable determinations that warrant intervention by this Court with her decision.

(a) The seriousness of the Charter-infringing state conduct

[94] The first Grant factor requires the court to consider the seriousness of the officer’s conduct. The critical question in this part of the inquiry is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts “effectively condone state deviation form the rule of law by failing to disassociate themselves form the fruits of that unlawful conduct”: Grant at para 72.

[95] The more severe or deliberate the state conduct, the greater the need for the courts to disassociate themselves from that conduct in order to preserve public confidence in the rule of law and to ensure the state’s adherence to the rule of law: Grant at para 72. The provision is not intended to punish the police, but rather to preserve public confidence in the rule of law and its processes: Grant at para 73.

[96] Police or state conduct resulting in a Charter breach will vary along a spectrum of seriousness. On the low end of the spectrum is evidence that is obtained as a result of inadvertent or minor violations of the Charter. Such breaches may undermine public confidence minimally. On the other end of the spectrum is evidence that is obtained through a wilful or reckless disregard of Charter rights. This type of conduct can have a negative effect on the public’s confidence in the rule of law and consequently bring the administration of justice into disrepute: Grant at para 74. The Appellant cites the case of R v McGuffie, 2016 ONCA 365 as an illustration of a case that falls into the latter part of the spectrum.

[97] In this case, the Trial Judge found that the s. 9 Charter breach was minimal. She acknowledged that while it was not a technical breach, it was on the very low end of seriousness. The Trial Judge found it was not intentional misconduct, but rather an error made by a young officer. In light of those facts, the Trial Judge found this branch of the Grant analysis favoured inclusion.

[98] I find the Trial Judge treated this portion of the test appropriately. A review of the evidence confirms that Cst. Koivula had been a police officer for less than two years when the offence arose. This was also evident from the fact that this was her first time conducting the SFST tests in the field. She was indeed a young officer.

[99] I disagree with the Appellant’s characterization that Cst. Koivula’s confusion about which offence to charge was “careless” or should have been “obvious”. Cst. Koivula testified in examination in-chief that at the time she made the error, she was thinking about a particular 1998 San Diego study where it was found that using the SFST tests resulted in 91% correct arrest decisions for people who were over 80. In cross-examination, she was referred to the specific study and reiterated her explanation. I find Cst. Koivula provided a clear explanation for her confusion at the time of the arrest. Given that she was a relatively new officer, the explanation is reasonable. As already indicated, even the Trial Judge acknowledged that the two concepts – impaired and over 80 – are often confused by officers. I find that Cst. Koivula was not careless but was genuinely confused about the appropriate charge. Furthermore, the error did not undermine the validity of her grounds. I find, consistent with the Trial Judge’s ruling, that the officer’s conduct would be better characterized as a rookie mistake.

[100] An officer is required to assess each situation and competently conduct the investigation they feel is appropriate to determine if reasonable and probable grounds exist for a breath demand: Bush at para 66. In this case, Cst. Koivula did not have an ASD available to her. She assessed the delay that would result in obtaining an ASD and decided to proceed with the SFST tests instead. There were risks with proceeding in that manner given that the conditions were less than ideal, and it was also her first time conducting such tests in the field. Her decision to proceed was reasonable and made on a good faith basis.

[101] For all these reasons, I agree with the Trial Judge’s finding that this was a minor error made by a young officer. There was no deliberate or egregious conduct on the part of the officer. The breach falls on the lower end of the spectrum in terms of seriousness, and therefore, this factor favours the admission of the breath samples.

(b) The impact of the breach on the accused’s Charter protected interest

[102] The second branch of the Grant test focuses on the impact of the breach on the Appellant. This inquiry calls for an evaluation of the extent to which the breach actually undermined the rights of the accused: Grant at para 76. In assessing the impact, the court can consider whether the impact of the breach was fleeting and technical or whether it was profoundly intrusive. The more serious the incursion on the rights of the accused, the greater the risk that the admission of the evidence will bring the administration of justice into disrepute: Grant at para 77.

[103] While Grant did not involve the admissibility of breath samples, the Supreme Court of Canada provided some guidance on how various types of evidence might be assessed under the three-part test. With respect to breath samples, the Supreme Court of Canada acknowledged that breath samples constituted a form of bodily evidence, but cautioned against its exclusion on the mere fact that it was conscripted evidence: Grant at para 106. The Supreme Court held that in certain factual circumstances where a Charter violation is less egregious and the intrusion less severe in terms of privacy, bodily integrity and dignity, reliable bodily evidence may be admitted. The Supreme Court referred to breath sample evidence as an example noting that the method of collection for such samples is relatively non-intrusive: Grant at para 111.

[104] Following Grant, there was some debate as to whether the the seriousness of the impact of the breach in a breath sample case should focus only on the immediate impact of the act of providing a breath sample or on the overall impact on the accused, 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. In R v Jennings, 2018 ONCA 260, the Ontario Court of Appeal held that the Supreme Court of Canada was clear in Grant that as a general rule, breath samples ought to be admitted because they involve a less egregious and invasive intrusion on a person’s bodily integrity. The intrusiveness refers to the time of the collection of the breath sample: Jennings at para 30.

[105] In this case, the Trial Judge found that, while the Appellant was arrested for the wrong drinking and driving offence, the impact of the breach on the accused was minimal. In coming to this decision, the Trial Judge relied on the finding in Jennings that the collection of breath samples is relatively non-intrusive and has a minimal impact on the rights of the accused.

[106] The Appellant argues that the Trial Judge erred in not considering the overall impact on the Appellant’s liberty, privacy, mobility and dignity interests. The Appellant argues that the Trial Judge should have considered the illegal arrest in tandem with the illegal breath demand and the taking of the Appellant into police custody and compelling breath samples. Counsel for the Appellant also points out that the Appellant complied with every order that was provided, and but for his cooperation, there would have been no case against him. While Counsel does not cite any particular cases in the support of this position in the factum, the decision in R v Mann, 2018 ONSC 1703 is included in the Appellant’s materials.

[107] I find the facts in Mann, however, are distinguishable from the present case. In Mann, the Trial Judge found that there were three errors on the part of the arresting officer resulting in several breaches: first, there was an error of mistaken vehicle identity on the part of the officer; second the officer did not have reasonable suspicious that the accused had consumed alcohol that evening and therefore, did not have sufficient grounds to order a roadside device breath sample; and third, the officer did not have subjective and objective reasonable grounds to issue a further breath demand. In determining whether the breath samples were admissible under s. 24(2), the court considered Jennings and found it to be distinguishable.

[108] In Jennings, the court was dealing with the impact of breaches of Charter protected rights arising from one mistake (arresting for the incorrect offences) whereas in Mann, there were several mistakes on the part of the officer during the entire course of the investigation leading up to the breath demand. The cumulative errors resulted in multiple intrusions into the liberty, privacy, dignity, and mobility interests of the accused and the focus was not solely on the impact on the accused at the time of the compelled breath samples. Justice Linhares de Sousa stated at para 50 as follows:

I now consider the impact of the s. 9 breach on Mr. Mann's Charter rights. Unlike the facts found in the R. v. Jennings, supra case, this is a case of multiple breaches. As was directed by the Supreme Court of Canada in the Grant case, the trial court is directed to consider in its second line of inquiry the interests engaged by the infringed rights and the impact of the breach on those engaged rights. Mr. Mann's stop, detention and arrest were illegal from the very beginning due to the officer's mistake. The interests engaged and deprivation caused by this illegal stop was the deprivation of liberty, privacy, dignity and mobility interests. It can be considered significant and highly intrusive (see R. v. Grant, 2009 SCC 32, [2009] 2 S. C. R. 353; R. v. Brown, [2002] O.J. 1569; R. v. Harrison, 2009 SCC 34, [2009] 2 S. C. R. 494).

[109] Appellant’s counsel also referred me to the decisions of R v Vaizi, [2019] O.J No. 6906 and R v Al-Qa’aod, [2019] O.J. No. 4809. I find these decisions, like Mann, are distinguishable on their facts to this case. In Vaizi and Al-Qa’aod, the courts were dealing again with multiple errors resulting in multiple breaches.

[110] The facts in this case are akin to the situation in Jennings and also R v Barr, 2018 ONSC 2417. In Barr, the arresting officer failed to consider the possibility of residual mouth alcohol on the integrity of the ASD. The Trial Judge found that, as a result, there were insufficient grounds for the accused’s arrest and breath demand. On appeal, Ratushny J. reversed the Trial Judge’s rulings. She also rejected the defence argument that there were multiple breaches arising out of the officer’s single mistake and as a result, the impact on the liberty interests of the accused could be considered as more intrusive and serious. Ratushny J. affirmed the decision in Jennings that the taking of breath samples involved minimal intrusiveness on privacy, bodily integrity, and human dignity.

[111] While the Trial Judge did not provide elaborate reasons on the second factor, I found she arrived at the correct conclusion. In this case, like in Jennings and Barr, there was only one mistake on the part of the officer that the Trial Judge found constituted a breach, that is the arrest for the incorrect driving offence. This was not a factual situation as in Mann where there was a series of errors and consequent breaches that repeatedly intruded upon the Appellant’s liberty, dignity, and bodily integrity.

[112] In this case, it was not disputed that Cst. Koivula had grounds to issue the roadside demand for an ASD or SFST tests. The evidence established that the Appellant was properly arrestable for impaired. Cst. Koivula had reasonable and probable grounds to make a demand. Following the arrest, the Appellant was provided his rights to counsel and spoke to counsel twice. As per the Certificate of a Qualified Technician filed as an exhibit at trial, the breath samples were taken at 6:34 am and 6:57 am respectively, and hence, the duration of the Appellant’s detention was less than three hours from the time of arrest, which is likely consistent in duration with most routine drinking and driving offences. I find that in these circumstances, the impact on the Appellant’s Charter protected rights was limited to the relatively non-obtrusive taking of breath samples. Therefore, this factor favours inclusion.

(c) Society’s interest in the adjudication of the case on its merits

[113] The final inquiry under Grant asks whether truth-seeking function of the criminal trial process would be better served by the admission of the evidence rather than its exclusion. This inquiry stems from society’s interest in ensuring those who transgress the law are brought to trial and dealt with according to the law: Grant at para 79

[114] This inquiry requires consideration of the reliability of the evidence. The admission of unreliable evidence undermines the public’s interesting in uncovering the truth while also undermining the accused’s right to a fair trial: Grant at para 81.

[115] The importance of the evidence to the prosecution’s cases must also be considered. The admission of unreliable evidence is more likely to bring the administration of justice into disrepute. Conversely, the exclusion of highly reliable evidence could also bring the administration of justice into disrepute if its effect is to undermine the entire Crown case: Grant at para 83. This is because society has an interest in seeing the determination of the case on its merits, particularly where the offence charged is serious: Grant at para 84.

[116] As stated in McGuffie, where the first and second inquiries favour inclusion, the third inquiry will usually confirm the admissibility of the evidence: McGuffie at para 63.

[117] Having found the first two factors favoured inclusion, I find the trial judge was correct in finding this factor favors inclusion. As the trial judge noted, it has been held that society has a strong interest in seeing drinking and driving offences effectively adjudicated.

[118] The trial judge was correct in finding the breath samples in this case properly admissible under s. 24(2) of the Charter after a balancing of the three Grant factors.

[119] This ground of appeal is dismissed.

Other

Was the Appellant’s arrest for “over 80” arbitrary and therefore a breach of s. 9 of the Charter?

[120] The Trial Judge found that the officer’s arrest for the incorrect offence of over 80 resulted in a breach of s. 9 of the Charter. The Appellant takes the position that this finding should stand.

[121] The Crown argues, however, that the Trial Judge erred in finding a s. 9 Charter breach. Given the substantial overlap between the driving offences, the Crown argues that an arrest for the incorrect driving offence does not amount to an arbitrary arrest or detention in every circumstance. The Crown argues that the Trial Judge did not address their argument pursuant to R v Lutchmedial, 2011 ONCA 585.

[122] The Crown seeks to renew their position on this appeal that Cst. Koivula’s arrest for over 80 did not a constitute a breach of the Appellant’s s. 9 Charter right. A cross-appeal was not filed.

[123] Given I have found that the trial judge correctly admitted the breath samples under s. 24(2) of the Charter, there is no need to address the trial judge’s assessment of the s. 9 Charter breach. The Ontario Court of Appeal has already addressed the law in relation to this issue in Lutchmedial.

Order

[124] The appeal is dismissed.

Somji J.

Released: January 4, 2021

COURT FILE NO.: 18-1819 DATE: 2021-01-04

ONTARIO SUPERIOR COURT OF JUSTICE

Her Majesty the Queen

– and –

Shane Kranz Appellant

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Somji J.

Released: January 4, 2021