Court File and Parties
COURT FILE NO.: 20-56
DATE: 2022/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Robert McIntyre
Counsel:
Lorne Goldstein, for the Crown Respondent
Tobias Okada-Phillips, Counsel for the Appellant
HEARD: November 29, 2022
summary conviction appeal
leroy, j.
Issue
[1] This is a summary conviction appeal brought by defence. Mr. McIntyre was convicted of one count of impaired operation of a motor vehicle while his ability to do so was impaired by a drug. The issues are with the Charter ruling by Her Honour Justice D. Kinsella on February 10, 2020. As the issues are of law the standard of review is correctness.
Background
[2] There is no issue that Mr. McIntyre was impaired by drug at the relevant time.
[3] The parties agree on the facts.
[4] Sgt. Budzinski responded to the report of a single vehicle accident and entered the scene at 06:37. EMT was on site when he arrived. Mr. McIntyre’s vehicle was upside down in the ditch. Mr. McIntyre remained strapped in the seat belt. He was quite groggy, and his speech was slurred. The Sargent knew from prior interaction that Mr. McIntyre misused cough syrup and asked Mr. McIntyre if he had been consuming cough syrup. Mr. McIntyre confirmed at the scene that he had been consuming cough syrup. The accident scene suggested that the vehicle had drifted off the road into the ditch. There were no indicators of reflexive actions.
[5] Constable McKenna was designated as the investigating officer. Both officers denied having formed the grounds to arrest for impaired driving at the scene.
[6] EMT removed Mr. McIntyre to the nearby Winchester Hospital. Sgt. Budzinski followed shortly after. Constable McKenna remained behind to document the scene.
[7] Constable McKenna arrived at the hospital at 08:18. The evidence was that by then the constable believed he had the evidentiary grounds to arrest Mr. McIntyre for impaired driving. By the time of Constable McKenna’s arrival at the hospital it was known that Mr. McIntyre’s injuries from the accident were minor, and he would not be admitted. Sgt. Budzinski was satisfied that Mr. McIntyre was ambulatory by then so he called for the Drug Recognition Evaluation (DRE) Officer’s attendance.
[8] Coincident with arrival Constable McKenna was informed of the plan by medical staff to draw a blood sample from Mr. McIntyre for treatment purposes. He advised the nurse of his intention to observe, seal and to seek a warrant to seize, all of which he did.
[9] Justice Kinsella concluded that Mr. McIntyre was detained at 08:18. That ruling is not contested.
[10] Mr. McIntyre was denied information about whether he was even under investigation, right to counsel and implementation at all material times.
[11] The blood was drawn at 08:43 by medical personnel for medical purposes. Constable McKenna was in the room through the procedure. He sealed the vial for continuity purposes at 08:50. Constable McKenna informed Mr. McIntyre of arrest, the reasons therefor, the RTC and offered to facilitate at 08:59. Mr. McIntyre spoke with counsel at 12:57.
[12] Constable McKenna subsequently applied for and obtained a warrant to seize this blood sample.
[13] At trial the defence brought applications asserting violations of the Appellant’s rights under sections 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms (Charter). The remedy sought was exclusion of evidence under subsection 24(2). Justice Kinsella found violations of Mr. McIntyre’s rights under all four sections and excluded any tests done by the DRE, any statements made by Mr. McIntyre to any person in authority after his arrest and any bodily samples seized as a result of that demand – ruling page 5.
[14] The application to exclude the blood sample taken by hospital staff at 08:43 was denied and the evidence was admitted. The learned trial judge concluded that the police did not violate Mr. McIntyre’s Charter rights against unreasonable search and seizure under s. 8 as it related to the search warrant obtained to seize this blood sample. The blood analysis results formed part of the reasons for conviction.
[15] Sections 8, 9, 10(a) and 10(b) are as follows:
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right not to be arbitrarily detained or imprisoned.
Everyone has the right on arrest or detention:
a. to be informed promptly of the reasons therefor; and
b. to retain and instruct counsel without delay and to be informed of that right.
The Impugned Ruling
[16] Her Honour concluded that the officers breached Mr. McIntyre’s Charter-protected interests under subsections 10 (a)(b). The delay in compliance was unreasonable. That ruling is not contested. They knew at 08:18 that Mr. McIntyre was ambulatory, and his injuries were minor in nature. Her Honour made reference to paragraph 33 from R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 – “Constitutional rights cannot be displaced by assumptions of impracticality.”
[17] Her Honour concluded that the delay in s. 10(a) compliance did not “impact” on any medical decisions Mr. McIntyre made that morning. Her Honour wrote at page 20:
“On the issue of 10(a), the right to be informed, this is linked to the issue raised on behalf of Mr. McIntyre that, because of the delay to let him know that he was being investigated, that the police were making a demand, and that they were going to be arresting him, that that somehow impacted on his decision to consent to medical treatment, and particularly to having the blood drawn. In my view, the evidence is simply too speculative for me to make that conclusion. It is also, I note, factually very different from the Supreme Court of Canada in Taylor.”
[18] This was iterated at page 25:
“If part of the argument is that had Mr. McIntyre known at 08:18 that he was being investigated then he would have refused any medical treatment and the blood would never have been drawn, for reasons I have already stated that simply is too speculative of a conclusion for me to draw.”
[19] That ruling enabled the trial judge to disregard the s. 10 breaches, silo the search and seizure process and conclude that the police did not violate Mr. McIntyre’s s. 8 rights in relation to the warrant obtained to seize the blood sample taken ostensibly for medical treatment purposes.
[20] Justice Kinsella concluded that after culling the information contained in the ITO that she ruled had been obtained in a manner that breached Mr. McIntyre’s Charter rights, the warrant could stand.
[21] Succinctly, Her Honour’s reasons included:
• the search was judicially authorized
• there is no evidence to suggest that the warrant was obtained to cure or correct mistakes the police believed they had made;
• the taking of the blood was for medical purpose and not at the request of the state – R. v. Lachappelle, 2007 ONCA 655, [2007]O.J. No. 3613.
[22] Her Honour rejected the Taylor instruction citing factual differences as follows:
• In Taylor, the police arrested Taylor at the scene when he asked to speak to counsel which was denied with no explanation;
• after learning that they had botched an earlier blood demand, police asked medical staff to act as state agents to take additional blood;
• the Court found in Taylor that the only reason the police sought a judicial warrant to seize the additional blood was because they had botched the initial demand.
Her Honour correctly did not accept the defence premise to the point that police presence in Mr. McIntyre’s room might have compromised his interest in appropriate medical care.
Defence Submission
[23] The defence submits that Justice Kinsella erred in three related but distinct ways.
[24] Firstly, the trial judge erred by reversing the burden of persuasion by requiring the appellant to prove he would not have consented to the blood sample had his rights been respected. Once breach of the right to counsel is established, it becomes the Crown onus to prove that the evidence in question would have been provided in any event – R. v. Bartle, [2004] 3SCR 173 at p 212 and Taylor at para 41. Concern for speculation resolves in favour of the accused unless the Crown proves otherwise.
[25] Implicit therein is the omission by the trial judge to assess the seriousness of the s. 10 breach under subsection 24(2).
[26] Thirdly, defence argue that the trial judge imposed a direct causal link to her analysis of warrant sufficiency. It is well understood that “obtained in a manner” does not require a causal connection; rather the court is to examine whether there is sufficient connection given temporal, contextual and/or causal factors for it to be said that the breach and discovery are part of the same transaction or course of conduct – R. v. Pino, 2016 ONCA 389.
[27] The trial judge erred by not applying this test in a broad and purposive approach. The test is similar to the threshold subsection 24(2) issue of whether the evidence was “obtained in a manner” that violated a Charter right.
[28] If Her Honour properly applied the test in relation to the blood warrant and the s. 10 Charter deficiencies, there would have been a s. 24(2) Grant assessment and reference to the blood in the ITO would have been excised.
[29] In R. v. Wu, 2015 ONCA 667 our court of appeal confirmed that if it is found that an ITO has information obtained in contravention of the Charter, the remedy is to excise the information. A Grant enquiry is neither necessary nor appropriate. Defence submits that by checking down discoverability to conclude the blood sample was discoverable in any event amounted to a Grant enquiry. Had the court recognized the Bartle/Taylor principles she would have resolved the speculative aspect in favour of concluding there would have never been a blood sample to refer to in the ITO.
[30] Defence submits that the insertion of the direct causal connection coupled with reversal of the evidentiary burden wrongly vitiated the merit of a 24(2) analysis.
[31] Lastly defence submits that if the Grant factors are properly applied to the present case the admission of the blood would bring the long-term administration of justice into disrepute.
Crown submission
[32] The sole issue for this court in appeal is whether the trial judge should have excised evidence of the blood sample from the ITO.
[33] The issue of a causal connection between the breach and the impugned evidence is only relevant at the s. 24(2) stage. The trial judge granted the s. 24(2) remedy on all applications other than the section 8 application for the search warrant. On the search warrant application the trial judge did not engage in a s. 24(2) analysis because the ITO once excised of improper information did not offend s. 8.
[34] Discoverability is typically considered in the s. 24(2) analysis. Notwithstanding Her Honour’s comments at page 25:
“The police would still have known that Mr. McIntyre was at the hospital, still could have learned that tests were being done and still could have taken steps to secure the blood. None of that information or those steps arose because of the breaches.”
The Crown asserts that the trial judge did not do a s. 24(2) analysis because as the Appellant agrees, the Wu paradigm does not provide for it. The proper question is the one the trial judge asked herself: could the warrant issue based on the information once the improper evidence is excised.
[35] The Crown denies that the trial judge required a strict causal relationship between the breach of Mr. McIntyre’s section 10 rights and the discovery of the evidence – blood. The references to the blood and blood being drawn were not part of the police investigation or police conduct. The hospital personnel took the blood per their own protocols and not to circumvent any Charter violations. The trial judge’s analysis involved the accident, the known history of cough syrup consumption, the injuries and the existence of blood being drawn. This was more than sufficient for the warrant to issue. There is simply no connection whatsoever between the various other violations the trial judge found, or the evidence excluded as result of those violations.
[36] On the issue of whether the Appellant may have declined medical treatment – drawing of blood had he received the ss. 10(a) and 10(b) rights in timely fashion the Crown submits this was a proposition offered by defence counsel. The trial judge in finding this was speculative was not reversing the evidentiary burden, but rather affirming that the Appellant’s submission was unsupported by the evidence.
[37] In terms of the required connection between the breach and the impugned evidence the Crown cited an excerpt from R. v. Mack, 2014 SCC 58 as follows:
“Whether evidence was “obtained in a manner” that infringed an accused’s rights under the Charter depends on the nature of the connection between the Charter violation and the evidence that was ultimately obtained. The courts have adopted a purposive approach to this inquiry. Establishing a strict causal relationship between the breach and the subsequent discovery of evidence is unnecessary. Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct. The required connection between the breach and the subsequent statement may be temporal, contextual, causal, or a combination of the three. A “remote” or “tenuous” connection between the breach and the impugned evidence will not suffice (Wittwer, at para. 21).
The strength of the connection between a piece of evidence and a Charter breach is a question of fact (see R. v. Goldhart, 1996 214 (SCC), [1996] 2 S.C.R 463, at para. 40). A trial judge’s decision under s. 24(2) of the Charter is entitled to considerable deference on appeal. Such a decision will only be interfered with where the trial judge has failed to consider the proper factors or has made an unreasonable finding (R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44, and R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86).
[38] The trial judge took steps to address this issue. The blood sample was drawn by medical personnel for non-police investigative purposes and then seized by operation of a judicially authorized warrant.
[39] All evidence derived from the Charter violations identified by the trial judge was excised from the ITO as required. The trial judge then reviewed the ITO and found what remained sufficient.
[40] The blood sample was seized in a reasonable manner. The analysis of the blood supported the conviction. The trial judge did not make any error of law or fact and the conviction should be upheld.
Discussion
[41] In my respectful view, I don’t think that evidence obtained in a manner that infringes or denies any right or freedom under one section of the Charter, in this case s. 10 can be included in the case against the accused in respect to a process under another section of the Charter, in this case s. 8 without a Grant analysis. The police should not be able to circumvent the duty to implement a detained individual’s s. 10 rights by attempting to cure any tainted evidence with a warrant authorizing the seizure – para 36 Taylor. Implicit is the inference that if the blood sample would be otherwise excluded under the s. 24(2) Grant analysis in respect to the s. 10 breaches it can’t be rehabilitated as a cornerstone of the warrant.
[42] With respect to the Crown submission, in my view it is premised on a narrow approach to Charter analysis and disregards the mandated broad purposive one. It assumes evidence obtained in a manner that is in breach of a Charter right under one section – here s. 10, vulnerable to exclusion under a s. 24(2) Grant assessment is available for utility as the basic foundation of an ITO for the search and seizure without an assessment.
[43] For clarity, if I am wrong in my analysis on the threshold issue at bar and the blood sample is admissible for ITO purposes, I see no error in the trial judge’s approach to the Wu cleansing of the ITO and appraisal of what remained in the ITO to merit a warrant.
[44] For context I found the analysis by Justice of Appeal Paciocco and Professor Stuesser in The Law of Evidence, 7th ed. page 420 helpful:
“…Bodily samples, unlike statements, are not communicative. They are not therefore, self-incriminatory in the way that statements are. The accused whose bodily samples are taken is not being used as a witness against himself. Statements create new information, but bodily samples exist. When we take offence at unconstitutionally obtained bodily samples we are not so much reacting to the compelled participation of the accused in the investigation as we are in the violation of the privacy and dignity of the person that obtaining the evidence involves. Significantly, the nature and degree of the violation of dignity and privacy will fluctuate with the wide variation between different kinds of bodily evidence…As a result, under the Grant regime there is no presumption favouring the exclusion of bodily evidence as there is with statements. The importance of the nature and degree of intrusion is “better addressed on [a case by case basis] by reference to the interests in privacy, bodily integrity and human dignity” and by the nature of the technique used to secure those samples. For example, in R. v. Ramage the intrusion was modest because the bodily sample was discarded urine. By contrast, in R. v. Taylor, 2014 SCC 50 the breach was extremely serious because the failure to facilitate Taylor’s access to counsel at the hospital left him in the “unnecessarily vulnerable position of having to choose between his medical interests [in agreeing to furnish a medical blood sample] and his constitutional ones” without the benefit of legal advice.”
[45] Things being equal, when hospital personnel take blood exclusively for medical purposes without evidence of joint participation as agent of the state, the sample is real existing evidence involving minimal violation of the accused’s interests in privacy, bodily integrity and dignity. I do note that in R. v. Lachappelle, 2007 ONCA 655 the Court ruled that the accused was not detained when the blood samples were obtained by hospital staff for medical purposes – paragraph 43.
[46] In the case at bar, as in Bartle, 1994 64 (SCC), [1994] 3 S.C.R.173 and Taylor, the accused was detained when the blood was drawn. Detention triggers compliance with the accused’s s. 10 (a)(b) immediate rights to information and implementation. The violation of s. 10 denies the individual of the right to choose whether or not to cooperate.
[47] I accept the defence argument that the trial judge erred by rejecting his submission regarding the shifted burden once a section 10 violation is established.
[48] Respectfully, I disagree with how the trial judge imposed the burden of establishing he would have chosen differently having had RTC. The legal burden (the burden of persuasion) of establishing that a s. 24(2) applicant after showing the breach would not have acted any differently rests on the Crown.
[49] Where there has been a complete denial of the information under 10(a)(b), the common sense inference that the accused may have chosen to decline medical treatment will suffice. The burden is not on the accused to prove that he would have conducted himself differently had the officers complied with their duties. Her Honour reversed the burden of proof. This issue should have been resolved in the accused’s favour, absent strong evidence to the contrary - R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R.173 at paragraph 212 as follows:
“Although the applicant bears the ultimate burden of persuasion under s. 24(2), the onus on certain issues will shift to the Crown. Under the second branch of s. 24(2), an issue that arises is whether the accused would have acted any differently had there been no s. 10(b) violation. The legal burden (the burden of persuasion) of establishing that a s. 24(2) applicant would not have acted any differently rests on the Crown. Where conscripted evidence is involved, the conclusion must be drawn that trial fairness has been adversely affected because the evidence might not have been obtained if there had been no breach. Two reasons underlie this conclusion. First, breaches of s. 10(b) tend to impact directly on adjudicative fairness. Where self‑incriminatory (as opposed to real) evidence has been obtained as a result of a s. 10(b) violation, its admission will generally have a negative affect on the fairness of the trial. Second, given this Court's warnings about the dangers of speculating as to the advice a lawyer has given a detainee, absent the s. 10(b) breach, any uncertainty about what an accused would have done should be resolved in the accused's favour. For the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation.
If the state claims that there was no causal link between a Charter breach and the obtaining of evidence, it is the state that should bear the burden of proving this assertion.”
[50] After referencing the serious impact of the breach of Mr. Taylors’s Charter protected rights in paragraph 40 Justice Abella explained the rational for the shift in the burden of persuasion as follows in paragraph 41:
“There is no need to speculate about the advice Mr. Taylor might have received had he been given access to counsel as he requested, such as whether he would have refused to consent to the taking of any blood samples for medical purposes. It is clear that the denial of the access had the effect of depriving him of the opportunity to make an informed decision about whether to consent to the routine medical treatment that had the potential to create — and in fact ultimately did create — incriminating evidence that would be used against him at trial. The impact of the breach on Mr. Taylor’s s. 10(b) rights was exacerbated when Mr. Taylor was placed in the unnecessarily vulnerable position of having to choose between his medical interests and his constitutional ones, without the benefit of the opportunity for advice from counsel. Mr. Taylor’s blood samples, taken in direct violation of his rights under s. 9 and 10(a)(b), significantly compromised his autonomy, dignity, and bodily integrity. This supports the exclusion of this evidence. As this Court said in Grant, “it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s . . . bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability” (para. 111).
[51] Had the learned trial judge resolved this aspect of her ruling in favour of Mr. McIntyre in light of the complete denial of section 10 compliance for an unreasonable amount of time in the hospital, in the absence of any evidence by the Crown to the point that Mr. McIntyre would have consented to the blood taking regardless, the whole causal connection argument would have been moot. The prejudice is that the denial of timely right to counsel to a person ready for discharge had the effect of depriving Mr. McIntyre of the opportunity to make an informed decision about whether to consent to the routine medical treatment that had the potential to create — and in fact ultimately did create — incriminating evidence that would be used against him at trial.
The trial judge’s rejection of the applicability of the Taylor instruction
[52] I respectfully disagree with the learned trial judge’s determination to distinguish Taylor. If anything, the facts in the case at bar are more compelling for a s. 24(2) Grant assessment into the merit of admitting the blood sample evidence into the trial.
[53] In Taylor, the officers advised Mr. Taylor of the nature of the investigation provided 10(a)(b) information, arrested him at the scene of the accident; Mr. Taylor asked to consult counsel, and police made no effort to implement during the time in hospital prior to taking the first set of samples. They agreed there was opportunity.
[54] Here, the officers denied having reasonable ground to arrest at the scene. They could see the evidence of drift into the ditch, were familiar with Mr. McIntyre’s history with cough syrup misuse, observed him to be intoxicated and heard directly from him that he was into the syrup again.
[55] The duty of police is on detention or arrest to provide right to counsel and to facilitate without delay.
[56] On Constable McKenna’s arrival at the hospital at 08:18, he delayed compliance with section 10(a)(b). The excuse for the delay were properly rejected by the learned trial judge. Mr. McIntyre was ambulatory approaching discharge from the hospital. Police knew the injuries were minor. Her Honour cited an excerpt from Taylor – Barriers to access must be proved, not assumed and proactive steps are required to turn the right to counsel into access to counsel. The Crown failed on the facts to show the delay was reasonable in the circumstances.
[57] In both cases, the issue is not so much delay in Charter compliance; rather it is about complete denial. Justice Kinsella determined that the police breached Mr. McIntyre’s Charter right under s. 10(a)(b). That is not contested.
[58] In both Taylor and the case at bar it is the first blood sample taken for medical treatment purposes that was in issue. In Taylor, the Crown agreed that the second sample taken after police request was inadmissible. That was self-evident.
[59] The issue in both is at its heart about the right to choose whether to cooperate with the state or not.
[60] The Court ruled in Taylor that Taylor’s s. 10(b) rights were violated, and this resulted in Mr. Taylor’s inability to exercise a meaningful and informed choice as to whether he should or should not consent to the taking of blood samples by the hospital.
[61] In Taylor, at paragraph 36, the Court noted that the police should not be able to circumvent their duties in s. 9, s. 10(a)(b) by attempting to cure tainted evidence with a warrant authorizing its seizure. For clarity, it is my understanding that Justice Abella was referring to the first blood sample and not the second involving the hospital team as state agent.
[62] As was emphasized by Pacciocco and Stuesser the breach in Taylor was extremely serious because the failure to facilitate Taylor’s access to counsel at the hospital left him in the “unnecessarily vulnerable position of having to choose between his medical interests [in agreeing to furnish a medical blood sample] and his constitutional ones” without the benefit of legal advice.”
[63] The context changes when the accused person is detained or under arrest. The concern for arbitrary detention and the right to choose whether to cooperate with police in the absence of advice regarding the reason for detention and RTC leaves the uninformed accused unnecessarily vulnerable and intensifies with every minute.
[64] Had the learned trial judge recognized the seriousness of the s. 10 breach in the case at bar and had she applied the correct burden regarding denial of right to choose, she would have conducted a s. 24(2) Grant assessment on the issue of the admissibility to the blood sample and test result in the trial in the context of the s. 10 breaches
24(2)
[65] An appeal court is in as good a position as the trial judge to undertake the s. 24(2) Grant review.
[66] What follows is a copy-paste from paragraph 37 – 42 of Justice Abella’s s. 24(2) review in Taylor modified to reflect the particulars of this case.
[67] Having concluded that there was a breach of Mr. McIntyre’s right to counsel under s. 10(a)(b) prior to the taking of the blood samples, the remaining issue is whether to exclude the evidence under s. 24(2) of the Charter. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on the public’s confidence in the justice system, having regard to “the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits”: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 85.
[68] It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 80, the public also has an interest “in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences”.
[69] This brings us to the seriousness of the Charter-infringing state conduct. Justice Kinsella determined that the Charter breaches were not the result of a wilful disregard for Mr. McIntyre’s rights. Nevertheless, Cst. McKenna’s failure to facilitate Mr. McIntyre’s s. 10(a)(b) rights constituted a significant departure from the standard of conduct expected of police officers and cannot be condoned. In short, at no point did the police do anything to apprise Mr. McIntyre of their interest or to advise or facilitate his access to counsel at the hospital, before the hospital sample was taken.
[70] Whether by intention or not, the effect of the decision to delay action on the state officer’s affirmative duty to comply with s. 10(a)(b) of the Charter effectively made the hospital a Charter-free zone beginning at 08:18. This branch of the Grant test therefore leans in favour of exclusion.
[71] Moreover, the impact of the breach on Mr. McIntyre’s Charter-protected interests was serious. Arrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson’s choice between a frank and open discussion with medical professionals about their medical circumstances and treatment and exercising their constitutional right to silence. The police placed Mr. McIntyre’s medical interests in direct tension with his constitutional rights. His legal vulnerability was significant and was entitled to know, and correspondingly, so was his need for assistance from counsel.
[72] After weighing all the relevant considerations, in my view the seriousness of the Charter breach and the impact of the police conduct on Mr. McIntyre’s interests are such that the admission of the evidence would so impair public confidence in the administration of justice as to warrant the exclusion of the evidence in this trial.
Conclusion
[73] Evidence in relation to the blood sample in this case is to be excluded from the trial. Reference to the blood sample in the ITO is to be deleted. I believe counsel agree that if the blood sample is excluded then the conviction should be overturned, and an acquittal entered.
[74] Accordingly, the appeal is allowed, and acquittal entered.
The Honourable Mr. Justice Rick Leroy
Released: December 19, 2022
COURT FILE NO.: 20-56
DATE: 2022/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
– and –
Robert McIntyre
SUMMARY CONVICTION APPEAL FROM CHARTER RULING
The Honourable Mr. Justice Rick Leroy
Released: December 19, 2022