Court File and Parties

COURT FILE NO.: CR-20-1279 DATE: 20230726 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Craig Willoughby

BEFORE: C. Verner J.

COUNSEL: S. Humphrey, for the Crown T. MacDonald, for the Defendant

HEARD: July 11 and 13, 2023

Application Regarding ss. 8, 9, 10

[1] Craig Willoughby stands charged with impaired and dangerous driving causing bodily harm. Initially this application before me blended the issues of voluntariness and Charter. However, midway through the proceeding, Crown counsel withdrew its application to introduce Willoughby’s statement, and accordingly, it is strictly a Charter application, in which Willoughby is seeking to exclude a blood sample.

[2] The Crown called the investigating officer, Detective Constable Jillian Shimada, and a second officer who was on scene, Detective Constable Melynda Moran. The Defence called no witnesses, but introduced the Ambulance Call Report as a record created in the ordinary course of business.

[3] I find that Willoughby’s ss. 8 and 9 Charter rights were violated and accordingly, the blood sample evidence should be excluded under s. 24(2) of the Charter.

The Facts

[4] Shimada testified that she was dispatched to the scene of an accident on January 31, 2020 and arrived on scene at 10:47 p.m. Although there was no snow accumulating on the ground, it was snowing lightly at the time. Shimada noted two vehicles; a Chevrolet Tahoe and a Ford. It was apparent that there had been a head on collision as both vehicles had damage to their front ends and there was debris scattered on the road. However, from the evidence presented at the hearing, it was unclear which vehicle had caused the accident.

[5] The Ford suffered more significant damage than did the Chevrolet, and when Shimada arrived, two paramedics were tending to the occupants of the Ford and getting them out of the vehicle. The paramedics told Shimada that they had offered assistance to the driver of the Chevrolet, but that he refused their aid. Shimada noted Willoughby standing beside the Chevrolet.

[6] Shimada approached Willoughby. She asked if he was okay and whether he wanted medical assistance. He indicated he had pain to his arm and shoulder and that he did, in fact, want to be seen by a medical professional. Although she is not completely clear, Shimada believes she may have radioed for a second ambulance at that point.

[7] Shimada asked Willoughby what had happened. Since this question was posed as part of her Highway Traffic Act (HTA) investigation, she understood that Willoughby was required to answer her questions. She testified that as of that moment, Willoughby was in the constant company of a police officer partly to ensure he was physically okay, but also partly because he was required to stay and answer her questions for the HTA investigation.

[8] Willoughby told her that he was on his way to his girlfriend’s place, travelling southbound from Lakefield to Peterborough, when the Ford, which was travelling northbound, swerved into his lane and hit him head-on.

[9] Shimada also asked him “if he had used drugs or alcohol”. When asked why she asked this question, she responded:

Because it was a serious collision. I made observations about his body language and behaviour when I was interacting with him that made me want to ask that question next, to be able to rule that out.

[10] In particular, she had observed by that point that in addition to the fact there had been a serious collision, Willoughby’s eyes were droopy, slightly glossy and his pupils were constricted. She had been trained that constricted pupils was a possible indicia of drug consumption. She also noted that he could not stand still and that he was unsteady on his feet, but not to the point she feared he may fall over. Finally, she noted that he responded slowly to her questions and “dragged” out his responses.

[11] In response to being asked about substances, Willoughby indicated that he had not consumed any drugs, prescription or otherwise, and had not consumed alcohol since the day before. Moran was on scene by this point and heard Willoughby’s response.

[12] Similar to Shimada, Moran noted that he appeared to be unsteady on his feet and that his pupils were constricted. In addition, she noted that his lips were dry and that he blinked slowly. However, according to Moran his speech was normal and she did not mention glossy or droopy eyes.

[13] Moran noticed an injury to Willoughby’s cheek, which was swelling up. Moran thought the swelling was significant enough that it may be a sign of a fracture. She was unsure if it was an open injury. Shimada also noted an injury to Willoughby’s cheek, but thought that she may not have seen it until she was in the back of the ambulance with him under the bright light.

[14] At some point, Shimada asked Willoughby if he had anything in his pockets that may be of concern to her and Moran. She is not sure how she worded the question, but was hoping he would produce any guns, sharp objects or drugs such as fentanyl, if he had them. She suggested that her question was a less intrusive alternative to a pat down search.

[15] Once the ambulance arrived, Shimada got in the back of it with Willoughby. She wanted to caution him to ensure that any statement he made would be admissible. At that point, she had some time to collect her thoughts. Upon doing so, she realized that she had grounds to charge him with impaired driving. Since she could not smell alcohol, she suspected that he may be impaired by drug. She decided to arrest him and do a Drug Recognition Expert (DRE) Evaluation. She accordingly cautioned him that he did not need to answer any questions and then provided him with his rights to counsel. He indicated that he understood his rights to counsel and when asked if he wanted to exercise his rights, he responded, “Not right now, maybe after I see a doctor at the hospital.” She then made the DRE demand and again he responded that he understood.

[16] In her mind, she intended to bring Willoughby to the hospital, where he would first see a doctor, since both her and Willoughby’s priority appeared to be getting medical attention. He would then be given an opportunity to speak with a lawyer. Thereafter, the DRE would be conducted. She was unsure whether that intended sequence of events was ever conveyed to Willoughby.

[17] After arriving at the hospital, however, she was informed that Willoughby would not be getting any priority and instead, he would be in the queue of patients waiting to see an emergency room doctor. The waiting room was full. Shimada knew from experience that they may be waiting for hours. She was not prepared to wait with Willoughby, so she decided to do a blood demand, with the intention of leaving Willoughby alone after seizing his blood, to get medical treatment.

[18] It occurred to her at that point that the DRE test involved some physical elements that Willoughby may not be able to do as a result of his injuries. After consulting with a few other officers, she decided that the safer approach was to do a blood test. She gave Willoughby the blood demand, and in response to being asked whether he understood, he said, “Yes. You can take my blood.”

[19] Willoughby was escorted to a room in the hospital. The only window to the room was the window on the door. Two officers remained in the room with him, as a blood technician took a sample of his blood. After the sample was taken, Willoughby was left alone at the hospital to wait to see a doctor. He was not charged with any offences pending the outcome of the blood test.

The Issues

[20] Willoughby asserts that his blood was seized in violation of his rights under ss. 8, 9 and 10(b) of the Charter, and must be excluded under s. 24(2).

Section 8 of the Charter

[21] Section 8 of the Charter provides that “everyone has the right to be secure against unreasonable search or seizure”. Although it is the accused who has the burden of proving Charter violations generally, where a search or seizure is not supported by a warrant, it is presumptively unreasonable and the onus is on the Crown to prove no s. 8 rights were breached. To establish that the search was reasonable, the Crown must prove on a balance of probabilities: (1) that the search was authorized by law, (2) that the authorizing law was itself reasonable, and (3) that the authority to conduct the search was exercised in a reasonable manner (R. v. Cole, 2012 SCC 53 at para. 37).

[22] For a search or seizure to be legal, there is not only an objective component in that there must be objectively reasonable and probable grounds, there is also a subjective component. The officer must subjectively believe that the accused has committed the offence (R. v. Lai, 2019 ONCA 420, at para. 26, and R. v. Feeney, [1997] 2 S.C.R. 13 at para. 29). Willoughby submits that the officer did not have the requisite subjective belief, nor were the grounds objectively reasonable and probable.

[23] Starting with the issue of whether Shimada subjectively believed Willoughby had committed the offence, the Defence highlights the fact that Shimada never said prior to the Charter application before me that she “believed” he was impaired. In her notes, she wrote that she ‘suspected that he was possibly impaired’. According to Moran, Shimada told her multiple times, including after the arrest, that there was a “possibility” Willoughby had consumed drugs. At the preliminary hearing, Shimada never indicated that she believed he was impaired and confirmed that her notes on this issue were accurate and fulsome.

[24] Although Shimada testified before me that she “believed” Willoughby was impaired, her evidence on this issue was still quite equivocal. Prior to testifying at this proceeding, Crown counsel informed Shimada that one of the two areas the Defence was interested in hearing about was whether she had “grounds”. Yet, she did initially say that she “believed” Willoughby was impaired. She testified in chief that she asked Willoughby about drugs and alcohol because she had made some observations and wanted “to be able to rule ..out” the possibility he was impaired. This language does not support a finding that she believed he had consumed substances, and she notably did not make any further observations after that point to support the theory he was impaired, nor did he suggest he had consumed anything.

[25] Shimada further testified in chief that once she got into the ambulance and took the time to consider all of her observations, she “suspected him to be impaired”. Crown counsel attempted to clarify what she meant by that and asked her explicitly “before you arrested him, what if any belief did you form?” She then said that the “scales were weighing more” towards a finding he was impaired. Crown counsel asked her yet again, “what did you believe ?”. It was at this point that she said she “believed he was impaired” and specified “potentially by alcohol, but more suspecting of drugs”.

[26] In cross-examination, she was asked to explain why she (i) suggested in her notes, (ii) told Moran, and (iii) testified at the preliminary hearing to the effect that she suspected Willoughby was possibly impaired, and now says she believes he was impaired. She responded that she was an inexperienced officer at the time of both the accident and the preliminary hearing, implying that her training had not been sufficient. She furthermore implied that there was no inconsistency between “suspecting he was possibly impaired” and “believing” him to be impaired.

[27] When I consider her evidence as a whole, it seems to me that she blurted out that she “believed” Willoughby “was impaired” when she realized that those were the words the Crown was seeking to hear, as if it was a magic legal phrase. It is unclear to me that she considered what those words mean in everyday language before blurting them out, as she seemed to not recognize the difference between suspecting he may have been impaired and believing him to be impaired. When she used her own words to convey her confidence in his impairment, she never said she believed he was impaired or the equivalent. Instead, she repeatedly said she suspected he may have been impaired. It is particularly telling, that after making her observations of Willoughby’s state, she asked him if he had consumed substances in order to rule out the possibility of impairment. I find that Shimada did not subjectively believe Willoughby was impaired. Instead, she suspected he may have been impaired and seized his blood to test that theory.

[28] Since she did not subjectively have reasonable and probable grounds, the seizure was illegal and violated Willoughby’s s. 8 rights.

[29] Although I need not go further, I will consider whether there were, objectively speaking, reasonable and probable grounds to believe Willoughby was impaired, since that issue is relevant to s. 24(2). The Crown relies on the fact there was a serious collision, as well as Shimada’s observations regarding Willoughby’s eyes, stability and speech to support a finding there were objective grounds to arrest. With respect to his eyes, Shimada noted that his pupils were constricted, and she had been trained that constricted pupils was a possible indicia of drug consumption. Shimada acknowledged that she had no training on the normal size of pupils and further acknowledged that she had never met Willoughby before and therefore was unfamiliar with the size of his pupils. It is interesting that Moran also noticed the constricted pupils, and generally speaking I found Moran to come across as reliable in her evidence, especially considering that she made different observations of Willoughby than did Shimada, and in fact contradicted Shimada with respect to Willoughby’s speech. However, there are issues with the evidence that Willoughby’s eyes were constricted, since the paramedics noted the size of Willoughby’s pupils on the Ambulance Call Report and noted that both of his eyes reacted to light, without suggesting anything was abnormal. Given the notation of the paramedics, the lack of training of both police officers in regards to pupil size, the limited lighting at the time of the police officers’ observations, and the fact that the officers’ memories may have been innocently tainted from talking to each other about what was going on that evening, I find little weight can be placed on their evidence regarding Willoughby’s pupil size.

[30] Aside from the constricted pupils, Shimada noted droopy and slightly glossy eyes. It was the middle of winter and thus, the glossy eyes may have been attributed to the cold weather. More significantly, Moran did not make note of these factors. If Willoughby’s eyes were in fact droopy and slightly glossy, it could only have been to a very minor degree.

[31] Shimada noted Willoughby had dragged speech, but that was directly contradicted by the credible and seemingly thorough evidence of Moran. Moreover, Shimada was not familiar with Willoughby’s normal speech and therefore, unlike slurred speech, it is difficult to find that dragged speech is a sign of impairment.

[32] Both Moran and Shimada observed that Willoughby was unstable on his feet. Moran clarified that Willoughby’s swaying with not “substantial” or “significant”. His unsteadiness could be a sign of impairment or, according to the officers, it may have been attributed to the fact that Willoughby was just in an accident.

[33] Finally, there was no suggestion that Shimada had reason to believe that Willoughby’s vehicle caused the accident, rather than the Ford. In fact, according to the evidence before me, the only information Shimada had on that issue was Willoughby’s statement that the Ford caused the accident.

[34] The combination of a serious accident, glossy and droopy eyes with constricted pupils, dragged speech and unsteadiness on the feet, could easily provide reasonable and probable grounds in some circumstances. However, in this case, Willoughby’s eyes were at most slightly glossy and droopy; his unsteadiness was not “substantial” or “significant”; and little weight can be placed on the size of his pupils or his dragged speech. Importantly, all of these factors can be explained by the fact he was just in an accident and, if anything, the evidence weighed against a finding that Willoughby caused the accident. Given my finding that Shimada herself did not believe that he was impaired is strong evidence that the indicia were consistent with just having been in a serious accident. Although this is a close call, I do not find that there were objectively reasonable and probable grounds.

Section 9

[35] Pursuant to s. 9 of the Charter, “everyone has the right not to be arbitrarily detained or imprisoned”. Given my finding that Shimada arrested Willoughby without subjectively believing she had sufficient grounds, and where there were not in fact, reasonable and probable grounds, the arrest was arbitrary (R. v. Grant, 2009 SCC 32, at paras. 54-55). Willoughby’s s. 9 rights were violated.

Section 10(b)

[36] Section 10(b) provides that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”. As summarized by McLachlin C.J.C. and Charron J. in R. v. Sinclair, 2010 SCC 35, at para. 27, s. 10(b) has informational and implementational components:

Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee's rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55.

[37] There is no suggestion that Shimada did not properly inform Willoughby of his rights upon detention. Nor is there any suggestion that he did not understand those rights. Indeed, the unchallenged evidence is that he told Shimada that he understood his rights to counsel.

[38] However, that does not end the question of whether Shimada fulfilled the informational component of s. 10(b). The Defence submits that she had to provide Willoughby his rights a second time before taking his blood, since he was initially asked if he wanted to speak to a lawyer “now” while in an ambulance en route to hospital with no privacy, and since he indicated a possible interest in speaking to a lawyer at some point. As emphasized by the Defence, both Willoughby and Shimada’s primary concern was seeing a doctor and thus, in expressing an interest in possibly talking to a lawyer after seeing the doctor, Willoughby may reasonably have been assuming that he would be offered an opportunity to speak with a lawyer before any further investigative steps were done. Indeed, that was Shimada’s thinking exactly. She intended to offer him the opportunity to speak with a lawyer after seeing the doctor and before the DRE test was administered.

[39] Defence specifically relies on R. v. Lafrance, 2022 SCC 32, at para. 72, for the proposition that Shimada had a duty to reiterate the rights to counsel before taking Willoughby’s blood. In particular, the Defence relies on the following passage of Lafrance:

And, as just noted, Sinclair also recognized that the implementational component of s. 10(b) imposes upon police a further obligation: to provide a detainee with a reasonable opportunity to consult counsel again if a change in circumstances or a new development makes this necessary to fulfill s. 10(b)’s purpose (para. 53). Three non‑exhaustive categories of exceptional circumstances triggering this duty were identified (at paras. 49-52): (1) the police invite the accused to take part in non‑routine procedures that counsel would not consider at the time of the initial consultation; (2) there is a change in jeopardy that could affect the adequacy of the advice received during the initial consultation; and (3) there is reason to question the detainee’s understanding of his rights. [Emphasis in the original.]

[40] The Defence submits that the taking of blood was a “non-routine procedure that counsel would not consider at the time of the initial consultation”. There are two problems with this argument; taking blood is something counsel would have considered (see R. v. Tahmasebi, 2020 ONCA 47); and Brown J. in LaFrance is explicitly talking about when the police are required to reiterate the rights to counsel after an accused has exercised those rights and spoken to counsel. Detainees may reasonably believe that after they have had their “one phone call”, they do not have the right to call a lawyer again. Accordingly, this passage from Lafrance relates to quite a different situation, than the one in the case at bar.

[41] In R. v. Devries, 2009 ONCA 477, Doherty J.A. considered when the police need to reiterate the rights to counsel at the station, if the accused waived the rights at the roadside. He said at para. 42:

42 I would add one further comment with respect to Constable Large's failure to re-advise the respondent of her right to counsel when he and the respondent arrived at the detachment. I agree with the holding in Leedahl in this regard. Where a detainee has been properly cautioned at the roadside and has indicated that he or she does not wish to speak with a lawyer, failure to re-advise the detainee of his or her right to counsel at the police station does not necessarily constitute a breach of s. 10(b). That said, however, I think that in cases such as this, it would be a much better practice for the police, upon arrival at the detachment, to reiterate the right to counsel. A simple repetition of the right to counsel and an invitation to a detainee to speak with counsel "now", if he or she wishes to do so, would serve two purposes. First, it would reinforce the fundamental importance of the right to counsel and the need for all participants in the justice system to recognize that fundamental importance. Second, it would effectively short-circuit any claim at trial by a detainee that he or she was misled at the roadside by the use of the universal s. 10(b) caution into believing that the right to counsel could only be exercised then and there. Given the right circumstances, and absent a reiteration of the right to counsel at the police station, that argument could succeed. [Underscore added.]

[42] It is apparent from Lafrance and from Devries that the question for the court, in relation to the informational component of s.10(b), is whether the accused would have, or did understand at the relevant time that he had a right to consult with counsel.

[43] I have to say this is a close call in this case, as to whether Shimada had to restate the rights to counsel before taking his blood in order to fulfill the informational component. However, Willoughby indicated in the ambulance that he did not want to exercise his rights then, but maybe later, after he saw a doctor. On its face, Willoughby’s answer reveals that he understood that he could exercise his rights later. More importantly, it suggests he understood that he could exercise his rights to counsel when he wanted to. There was no evidence to suggest he did not understand that fact. I therefore find that Shimada fulfilled the informational component of s. 10(b).

[44] The Defence submits that the implementational component was similarly not fulfilled, since Willoughby invoked his right to consult with counsel and was reasonably diligent in exercising it, and Shimada did not “hold off” in taking his blood until after it was exercised. When Willoughby was asked if he wanted to exercise his right to counsel, he said, “Not right now, maybe after I see a doctor at the hospital.” This is an equivocal response. The accused in R. v. Owens, 2015 ONCA 652 had a similar response when he was asked if he wanted to invoke his rights. He said, “No, not right now.” The Court of Appeal upheld the trial judge’s finding in that case, that Mr. Owens did not invoke his rights to counsel with this response.

[45] I similarly find that Willoughby did not invoke his rights. As mentioned, his answer, “maybe after I see a doctor”, suggests that Willoughby understood that he could talk to a lawyer when he wanted to. There is no evidence to suggest otherwise. He was therefore not reasonably diligent in exercising his rights to counsel. Having said that, I agree with the Defence and in fact the Crown in this case that it would have been better had Shimada advised him of his rights again before taking his blood. The failure to do so, however, did not amount to a violation of Willoughby’s constitutional right to consult with counsel without delay and to be informed of that right. His s. 10(b) rights were not violated.

Should the Evidence Be Excluded Pursuant to s. 24(2)?

[46] Pursuant to s. 24(2), evidence that is obtained in a manner that infringes the Charter must be excluded if its admission would bring the administration of justice into disrepute. I have already found that Willoughby’s rights under ss. 8 and 9 of the Charter were violated and as a result, police seized a blood sample from him. Based on these findings, the proposed evidence was clearly “obtained in a manner that infringes the Charter”.

[47] The issue for exclusion in this case turns on whether the admission of the evidence would bring the administration of justice into disrepute. In assessing the impact of the violations on the integrity of the justice system, I must consider three factors, known as the Grant factors: (i) the seriousness of the police conduct; (ii) the seriousness of the impact of the violation on Willoughby’s rights; and (iii) society’s interest in seeing the matter tried on its merits (R. v. Grant, 2009 SCC 32). The analysis under each of these factors must be focused on the long-term public confidence in the administration of justice, and not focused on punishing the police misconduct or compensating the accused in this particular case.

[48] The first factor, the seriousness of the state conduct, focuses on whether and to what extent the court needs to dissociate itself with police actions. As stated by Doherty J.A. in R. v. Blake, 2010 ONCA 1, at para. 23, “the graver the state’s misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct”.

[49] An uninformed observer may find that it is not a serious infraction for an officer who has come across an accident and suspects that alcohol was possibly involved, to order that both drivers provide blood samples in order to rule out that possibility. However, as emphasized in R. v. Kokesch, [1990] 3 S.C.R. 3, such an approach would result in an erosion of our constitution itself. Sopinka J. noted:

Where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally. Where they take this latter course, the Charter violation is plainly more serious than it would be otherwise, not less. Any other conclusion leads to an indirect but substantial erosion of the Hunter standards: the Crown would happily concede s. 8 violations if they could routinely achieve admission under s. 24(2) with the claim that the police did not obtain a warrant because they did not have reasonable and probable grounds. The irony of this result is self-evident. It should not be forgotten that ex post facto justification of searches by their results is precisely what the Hunter standards were designed to prevent: see Hunter, per Dickson J. (as he then was), at p. 160; and Greffe, supra, per Lamer J., at pp. 790 and 798.

[50] Since there were no objective reasonable and probable grounds, there was no legal or constitutional way to seize Willoughby’s blood. It was not otherwise discoverable. This factor alone rendered the police conduct more serious: R. v. McColman, 2023 SCC 8, at paras. 58 and 64, R. v. Tim, 2022 SCC 12, at para. 94.

[51] The Crown in this case submits that Shimada acted in good faith. I agree that Shimada did not act in bad faith, but I cannot agree that she acted in good faith. I find that Shimada did not know that she had to subjectively believe Willoughby was impaired before she could arrest him and make a blood demand, based on the following:

(i) Shimada stated in her notes that she suspected Willoughby was possibly impaired. (ii) Shimada believed her notes were accurate and fulsome. (iii) Shimada told officer Moran multiple times that there was a possibility that Willoughby was impaired, and it was for that reason that she made the blood demand. (iv) Shimada was informed prior to the hearing before me that the Defence was interested in hearing about her “grounds” to arrest and yet she did not offer that she “believed” Willoughby was impaired, until the Crown asked her multiple times what she in fact “believed” at the time.

The fact that an officer must subjectively believe there are reasonable and probable grounds before arresting an individual for a criminal offence, and making a blood demand, is not only a well-established rule, but is one of the basic principles a police officer should know in order to carry out his or her daily duties without entrenching on constitutional rights. Accordingly, it cannot be said that Shimada acted in good faith: R. v. Paterson, 2017 SCC 15, at para. 44.

[52] I further find that Shimada was generally unsure about what amounted to a Charter violation, and it seemed to be that she was attributing her lack of understanding to her training. Her ignorance of Charter rights is troubling to say the least, and her evidence that her ignorance stems from her training reflects the fact that this is more of a systemic problem, and not just an indication of what happened in this case.

[53] Taking into consideration all of these findings, I conclude that the first Grant factor weighs heavily in favour of exclusion. Simply put, the court cannot be seen as condoning the police conduct in this case.

[54] With respect to the second Grant factor, the seriousness of the impact on the accused’s rights, it focuses on the concern that admitting the evidence would send a message to the public that “Charter rights are of little actual avail to the citizen” (R. v. McColman, 2023 SCC 8, at para. 66). The question for the court is where the violation falls on the scale that spans from “fleeting and technical” breaches to ones that are “profoundly intrusive” (R. v. Grant, 2009 SCC 32, at para. 76).

[55] I have found that both Willoughby’s ss. 8 and 9 rights were violated. However, the s. 9 violation had little impact on Willoughby in the sense that he was en route to hospital in an ambulance when he was arrested, and when he got to the hospital, the police allowed him to be wheeled around in a wheelchair by his girlfriend. He was also left alone after his blood was taken. I find that the impact of the s. 9 violation is at the less serious end of the spectrum.

[56] On the other hand, I find that the s. 8 breach in this case is closer to “profoundly intrusive” than it would be to “fleeting and technical”. One of the overarching principles entrenched in our Charter is the principle that citizens have the right to be left alone. This principle was seriously violated in this case. Without objective or subjective grounds to believe that Willoughby committed any offence, Shimada had a blood technician take Willoughby’s blood. This procedure was a serious invasion on Willoughby’s autonomy, dignity and bodily integrity: R. v. Taylor, 2014 SCC 50, at para. 41, and R. v. Grant, 2009 SCC 32, at para. 105.

[57] The cumulative effect of the first two Grant factors weighs heavily in favour of exclusion. The question becomes whether the third factor, society’s interest in seeing the case litigated on its merits, outweighs the cumulative weight of the first two (R. v. Lafrance, 2022 SCC 32, at para. 90).

[58] Key considerations on the third factor include the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the alleged offence. There is no question that these factors all weigh in favour of admission, and no question that impaired driving is a serious offence: R. v. McColman, 2023 SCC 8, at para. 72, R. v. Lacasse, 2015 SCC 64, at para. 8.

[59] However, it is unclear to me how heavily the other third-factor-considerations weigh in favour of admission. Although the Crown will not proceed on the impaired driving causing death count if the evidence is excluded, the Crown also concedes that the admission of the evidence does not guarantee a conviction. The quantity and quality of the substances detected in Willoughby’s blood sample are not necessarily sufficient to support a conviction of impaired driving, and furthermore, Crown counsel implied that the evidence of dangerous driving is weak, such that he may consider withdrawing the dangerous driving charge if the blood sample evidence is excluded, which puts into question whether Willoughby’s driving was in fact impaired.

[60] Furthermore, it is unclear to me how serious this accident was. There is no evidence before me regarding the seriousness of the injuries. It is apparent that the occupants of the Ford were more seriously injured than Willoughby. It is also apparent that the Ford was damaged more extensively, since the occupants of the Ford needed the assistance of the paramedics to get out of the vehicle. However, I know nothing further than that. It is therefore unclear to me how heavily the third Grant factor weighs in favour of admission.

[61] When I consider the “vital interest in maintaining a justice system that is above reproach” (R. v. McColman, 2023 SCC 8, at para. 70), the interest in seeing this case – to the extent I know about it - tried on its merits does not outweigh the cumulative weight of the first two factors. The Defence has met its onus in showing that the evidence must be excluded in order to maintain the public’s confidence in the administration of justice.

The Honourable Madam Justice C. Verner Date: July 26, 2023