Court File and Parties
Court File No.: SCA 36/23 Date: 2025-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
Between:
His Majesty The King - and - Barbara Stipo
Counsel: Darren J. Hogan, for the Crown, appellant Mark Halfyard, for the accused, respondent
Heard: June 25, 2025
Reasons for Judgment
[Summary Conviction Appeal]
I. Introduction and Overview
1The accused, respondent, Barbara Stipo, was charged with the offence of operating a motor vehicle while impaired by a drug, contrary to what was s. 253(1)(a) of the Criminal Code, R.S.C. 1985, chap. C-46 [now s. 320.14(1)(a)]. The offence is alleged to have taken place on November 25, 2015, on the Highway 401 West "off-ramp" leading to Avenue Road in Toronto.
2According to the Crown's theory of the case, the accused, driving her silver Porsche during clear and dry, daytime road conditions, but as a result of her drug impairment, excessive speed and inattention, caused a serious accident with another vehicle, a Toyota Prius, that was already stopped on the same off-ramp. The accident resulted in major damage to her own vehicle, complete "write-off" damage to the Prius vehicle, and relatively minor physical injuries to the driver of the Prius.
3Subsequent testing of the accused's urine ultimately established that she had numerous drugs in her system at the time of the accident, including codeine, diazepam, oxazepam, temazepam, nordiazepam, diphenhydramine and trazodone – all central nervous system depressants.
4The investigating police officer, Constable Costa, with the Ontario Provincial Police (O.P.P.) force, arrived on the scene shortly after the accident. He had earlier been advised that a vehicle, matching the description of the accused's Porsche, and sharing a partial license plate match of her vehicle, was being operated by a potentially impaired driver. Further, when Constable Costa arrived on the scene of the accident, he observed a number of indicia of impairment in the accused. When the officer smelled what he believed to be alcohol on the accused, he demanded that the accused provide a breath sample into an Approved Screening Device (A.S.D.). When the accused complied with this demand, the A.S.D. showed that the accused had "zero" alcohol in her bloodstream. Constable Costa then believed, accordingly, that the obvious impairment of the accused must be from her consumption of drugs. He then arrested the accused for operating a motor vehicle while impaired by a drug and demanded that she submit to an examination by a Drug Recognition Expert (D.R.E.).
5Thereafter, Staff Sergeant Steve Heinz, a qualified D.R.E., conducted an evaluation of the accused, and formed the opinion that the accused's ability to operate a motor vehicle was impaired by a central nervous system depressant drug, and he sought a urine sample from the accused in order to determine what drugs were actually in her system. The accused complied with this request and provided a urine sample.
6The analysis of this urine sample was completed at the Centre of Forensic Science (C.F.S.), and Dr. Daryl Mayers presented the findings in this case, explaining the specific drugs found in the accused's system, as noted above, and offering the opinion that these drugs were capable to impairing the accused's ability to operate a motor vehicle.
7Unfortunately, this case has already endured a long and tortured history of litigation – at trial and on appeal.
8First, the matter was tried in the Ontario Court of Justice before His Honour Mr. Justice S.R. Clark. The defence brought an application to exclude the results of the urine sample under s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that there were insufficient grounds to justify the demand for the urine sample, resulting in a violation of s. 8 of the Charter of Rights. This application was effectively allowed by Mr. Justice Clark, but on non-Charter of Rights grounds. The trial judge concluded, more specifically, that Staff Sergeant Heinz had to have "reasonable and probable grounds" to believe that the ability of the accused to operate a motor vehicle was impaired by drugs in order to make the demand for her urine sample, but he did not have such grounds and, accordingly, the forensic results from her urine sample had to be suppressed. On November 29, 2019, Mr. Justice Clark concluded that, in the absence of this evidence, the Crown could not prove its case beyond a reasonable doubt and he entered a verdict of not guilty.
9The Crown launched a summary conviction appeal against this acquittal. The accused launched a "cross-appeal" against the coincident decision of Mr. Justice Clark that Constable Costa had reasonable and probable grounds to arrest the accused and demand a D.R.E. evaluation.
10These appeals were heard by Mr. Justice S.A.Q. Akhtar of this court. In the result, on July 23, 2020, Akhtar J. allowed the Crown appeal and dismissed the "cross-appeal" by the accused. See: R. v. Stipo, 2020 ONSC 4471.
11In his detailed Reasons for Judgment, Akhtar J. concluded that: (1) the trial judge erred in failing to consider the issue of whether Staff Sergeant Heinz had the necessary reasonable and probable grounds through the "Charter lens" which led the trial judge to an erroneous "intermingling of evidentiary issues and standards;" (2) the trial judge "failed to distinguish the requirements for a lawful demand for a urine sample from the ultimate issue of guilt"; (3) the police had the necessary reasonable and probable grounds to arrest the accused for the offence of operating a motor vehicle while impaired by drugs, and possessed the reasonable and probable grounds necessary to demand that she provide a urine sample for analysis; and (4) the trial judge erred in excluding the statement made by the accused (in which she admitted that she had taken medication which carried with it a warning not to drive a motor vehicle) in considering whether there were reasonable and probable grounds for the arrest and demand. See: R. v. Stipo, 2020 ONSC 4471, at paras. 1-84.
12Perhaps most importantly, Akhtar J. concluded that the trial judge erred in failing to conduct any analysis under s. 24(2) of the Charter regarding the admissibility of the results of the urine sample. In conducting the required analysis himself, on the assumed basis that there had been a violation of s. 8 of the Charter, Akhtar J. concluded that the results of the urine sample were nevertheless admissible in evidence given that: (a) the police conduct in this case, on the judge's own findings, was "on the very low end of the seriousness spectrum;" (b) the taking of a urine sample was "not an invasive procedure" analogous to the taking of a breath sample, so its impact on the accused was slight; and (c) the results of the urine sample were "critical" to the Crown's case as "key evidence" that the accused "was impaired through drugs" at the time of the accident. In the result, Akhtar J. concluded that the results of the urine sample were "admissible" under s. 24(2) of the Charter of Rights even if, contrary to his earlier conclusions, this evidence was obtained in violation of the rights of the accused. See: R. v. Stipo, 2020 ONSC 4471, at paras. 85-98.
13Akhtar J. also concluded that there were reasonable and probable grounds justifying the arrest of the accused by Constable Costa, and his roadside demand to the accused that she submit to a D.R.E. examination. In so doing, Akhtar J. dismissed the "cross-appeal" by the accused. See: R. v. Stipo, 2020 ONSC 4471, at paras. 99-104.
14I understand that the accused sought leave to appeal against this decision, by Akhtar J. to order a new trial, but that application was dismissed by the Court of Appeal for Ontario.
15The proceedings subsequently began anew in the Ontario Court of Justice, this time before Her Honour Madam Justice L. Favret. Apparently feeling legally unconstrained by the recently released Reasons for Judgment of Akhtar J., defence counsel for the accused, yet again, brought an application to exclude the results of the urine sample from the accused (as well as all of the observations of the accused by Constable Costa and Staff Sergeant Heinz) under s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that there were insufficient grounds to justify the arrest of the accused and the police demand to her for a urine sample, as a result of alleged violations of her rights under ss. 8 and 9 of the Charter of Rights.
16The trial before Madam Justice Favret was conducted as a blended proceeding, both as a Charter voir dire and as the trial proper. On August 29, 2024, at the conclusion of this evidentiary proceeding, the trial judge delivered a Ruling in which she concluded that Constable Costa lacked both the subjective and objective "reasonable and probable grounds" to believe that the accused's ability to operate a motor vehicle was impaired by a drug, and the trial judge excluded from evidence: (1) the D.R.E. evaluation; (2) the analysis of the accused's urine sample; and (3) the observations of the two police officers subsequent to the arrest of the accused. The trial judge concluded, however, that the observations of Constable Costa prior to his arrest of the accused should not be excluded as they were not obtained as a result of the violation of the rights of the accused.
17In reaching this conclusion, Madam Justice Favret, did not follow the conclusions to the contrary of Mr. Justice Akhtar of this court. Further, the trial judge reached this conclusion notwithstanding the fact that the Crown had expressly argued that the findings of Mr. Justice Akhtar, on summary conviction appeal, were binding on the trial judge. It appears that the trial judge accepted the position advanced by defence counsel for the accused, that there were sufficient differences in the evidence between the first and second trials, that she was not bound by the decision of Akhtar J., as that decision was arrived at per incuriam.
18At the conclusion of this Ruling, Madam Justice Favret simply stated that the charge against the accused was "dismissed" and that she (i.e. the accused) was "free to go." By this point in time, however, the trial judge had not invited either party to make any submissions on the trial proper. When the Crown drew this failure to the attention of the trial judge, the parties engaged in a discussion about potentially scheduling such further submissions. Subsequently, however, the Crown ultimately took the position that Madam Justice Favret was functus officio and could no longer proceed with the case. In the result, on October 28, 2024, Madam Justice Favret concluded that she was, indeed, functus officio, and the matter was concluded, without the Crown (or the defence) ever having an opportunity to finally address the case in submissions.
19The Crown has appealed against this decision by Madam Justice Favret, pursuant to s. 813(b) of the Criminal Code. The Crown contends that: (1) the trial judge erred in finding that Constable Costa lacked the reasonable and probable grounds to believe that the accused operated a motor vehicle while she was impaired by drugs, and for excluding all of the evidence discovered by the police following her arrest; and (2) the trial judge erred in acquitting the accused of the alleged offence without providing the Crown with an opportunity to make submissions on the issue (thereby violating a rule of natural justice) and for failing to provide any cognizable reasons explaining this decision.
20For the following reasons, I agree with both of these submissions. Accordingly, the Crown's appeal must be allowed and a new trial ordered in this matter (before an Ontario Court of Justice judge other than Mr. Justice Clark or Madam Justice Favret).
21For the sake of clarity, and in an attempt to finally put an end to all of the seemingly endless litigation in this case, I will say, at the outset of this judgment (and again at its end) that, unless and until the Court of Appeal for Ontario (or the Supreme Court of Canada) say otherwise, the parties in this case and the new trial judge are bound by the legal conclusion, reached by both Mr. Justice Akhtar and myself, that the results of the urine sample provided by the accused in this case are admissible in evidence. In other words, in the absence of a contrary conclusion by a higher court, at the new trial defence counsel for the accused should not seek to exclude, and the new trial judge should not exclude, the evidence of the results of this urine sample from the accused. This evidence is admissible.
II. The Important Evidence At Trial
22The motor vehicle accident caused by the accused took place on the Highway 401 west "off-ramp" to Avenue Road on the afternoon of November 25, 2015, shortly after 12:00 p.m. noon. The accident took place at a time when the weather was clear and sunny, and the roads were dry and clear, and without any signs of obstruction. The accused was travelling at an excessive speed and entered the lane already occupied by the driver (Devin Dubeau) of the other vehicle. The accused struck the other vehicle on the rear left, driver's side of the vehicle, causing this other vehicle to spin 180 degrees.
23Constable Costa of the O.P.P. was the first police officer to attend the scene of the accident and was the main investigating police officer. Of course, upon his arrival, he observed where the two vehicles came to rest after the collision. Constable Costa noticed that the accused's Porsche had its passenger side tires up on the curb, and he noticed the severe damage to both vehicles.
24According to Constable Costa, the accused identified herself as the driver of the Porsche and Constable Costa requested her driving documentation. The accused was able to provide her driver's license and her ownership of the vehicle, but she had difficulties identifying her current insurance document out of the five insurance documents she presented in this regard. Eventually, the accused spread them out on the hood of her vehicle before Constable Costa intervened to identify the most current (although still expired) insurance document. Constable Costa noted her difficulties in this regard, and observed that her ability to conduct this task seemed slow. The officer had no difficulty personally identifying the most recent insurance document.
25In order to try to ensure the safety of everyone, Constable Costa directed both drivers to sit in two of the tow trucks that had attended the scene.
26Shortly thereafter, Constable Costa was advised by a member of the Toronto Police Service (T.P.S.), who attended the scene of the accident, that the T.P.S. had received a 911 call regarding a possible impaired driver, in a silver Porsche (like the one driven by the accused), and with a license plate that was a partial match for the license plate on the accused's Porsche.
27The witness who had made the 911 call, namely Ms. Barni, testified that, at approximately 12:05-12:10 p.m. that day, she observed a silver Porsche two-door car go through a stop sign and then continue through the next stop sign and then make a wide right turn. Ms. Barni testified that the driver of the Porsche did not have much control over the vehicle, as it ran up onto the left-hand curb as it made the right turn, and then it veered hard to the right and ran up on the right-hand curb as it continued down the road. Ms. Barni noticed that the Porsche then veered back and forth more than once. Ms. Barni explained that this manner of driving was not safe and that when she and the other car were stopped due to a construction vehicle, she approached the Porsche and interacted with its driver. Ms. Barni testified that the driver of the Porsche seemed a bit "out of it" when she spoke to her, and that her speech seemed a bit slurred, and she was not acting like a normal person. After interacting with the driver of the Porsche, Ms. Barni returned to her vehicle, but saw the Porsche drive off, on the wrong side of the road. Ms. Barni testified that the Porsche still seemed to be out of control and it made her nervous, so she placed the 911 call. Ms. Barni identified the accused as the driver of the Porsche that day.
28Constable Costa testified that, when he returned to the tow truck in which the accused was sitting, he believed that he smelled alcohol on her. However, Constable Costa was unclear whether the smell of alcohol was coming from the accused's mouth or elsewhere. He conceded that alcohol could be ingested non-orally. When the officer asked the accused about any potential alcohol consumption, and she said that she had an "icy cool" or "icy cold" rub on her and that may be what he was smelling.
29Constable Costa testified that he noted a delay in responsiveness from the accused between his questions and her answers, and that some of her answers were difficult to make out or understand. The officer believed that her speech was slightly slurred, and this contributed to his difficulty in understanding her answers to his questions.
30Constable Costa believed that, at this point in time, he had a reasonable suspicion that the accused had alcohol in her body and had been operating a motor vehicle and, accordingly, he made a demand that she provide a sample of her breath into an A.S.D., and he demanded that she attend with him to his vehicle to do so.
31Constable Costa testified that, while they were walking to the police car, he noticed that the accused seemed unsteady, appeared to be off balance, and that she was unable to walk a straight line. The officer testified that the accused was closing the distance between them as they walked to the police car, such that when they reached the police car, some ten car lengths away, the accused was uncomfortably close to him and in his personal space, and he had to ask her to "step back." Constable Costa also noticed that, when standing and waiting outside the police vehicle, the accused was unsteady on her feet, swaying from left to right, and that she had to place her left hand against the car window of the police vehicle to maintain her balance.
32Constable Costa testified that, when the accused provided her breath sample into the A.S.D., the device registered a "zero" establishing that the accused had no alcohol in her body. In the result, according to Constable Costa, he then formed the opinion that, alcohol having been ruled out, the accused was impaired by a drug and had been operating a motor vehicle. Constable Costa then arrested the accused for this offence and made a D.R.E. evaluation demand, pursuant to s. 254(3.1) of the Criminal Code.
33Constable Costa conceded that he had mistakenly written in his notes that he formulated the "suspicion" that the accused was impaired by a drug but identified this as an error in his testimony and explained, on numerous occasions in his evidence, that this was his opinion or honest belief, and not a mere suspicion. Indeed, when it was suggested to him in cross-examination that this was not an error, and that all he possessed was a mere suspicion, Constable Costa explained: "No. I wouldn't have gone through the entire arrest if it was suspicion, sir."
34Constable Costa then transported the accused to the closest police station and put her in contact with duty counsel. After the accused had an opportunity to consult privately with duty counsel, the D.R.E. examination was conducted by Staff Sergeant Heinz. This D.R.E. testified that, during this examination, the accused displayed a staggered walk or gait, thick, sluggish and slurred speech, bloodshot eyes and droopy eyelids. Staff Sergeant Heinz testified that he also noted a smell coming from the accused that he did not identify as alcohol, but something like Rub A535, a topical cream for sore muscles.
35According to Staff Sergeant Heinz, during the D.R.E. examination, the accused admitted to having used an old prescription cough syrup to help her sleep the night before, but that she had slept for only a few hours. The accused also told the officer that she assumed the cough syrup contained codeine, and she mentioned that it had a warning label on the bottle indicating not to drive while taking it.
36Staff Sergeant Heinz testified that, as a result of his observations and his D.R.E. examination of the accused, he formed the opinion that the accused was impaired by a central nervous system depressant and was unable to operate a motor vehicle safely. In the result, Staff Sergeant Heinz made a demand to the accused that she provide a urine sample. The accused complied with this demand.
37The urine sample provided by the accused was subsequently analyzed at the Centre of Forensic Sciences, and the results of that analysis were presented by Dr. Daryl Mayers. Dr. Mayers testified to the discovery of several central nervous system depressant drugs in the accused's urine sample, including codeine, diazepam, oxazepam, temazepam, nordiazepam, diphenhydramine, and trazodone. Dr. Mayers also testified that these central nervous system depressants could impair the ability of an individual to operate a motor vehicle and were consistent with the indicia of impairment that were observed.
III. The Admissibility of the Evidence
1. Introduction
38As I have mentioned, the Crown contends, on this appeal, that the trial judge erred in finding that Constable Costa lacked the necessary reasonable and probable grounds to believe that the accused had been operating her motor vehicle while she was impaired by drugs, and for wrongly excluding all of the evidence obtained by the police following the arrest of the accused. I agree.
2. Reasonable and Probable Grounds – The General Principles
39According to s. 495(1)(a) of the Criminal Code, R.S.C. 1985, chap. C-46, a peace officer may arrest without warrant a person who, on "reasonable grounds" the peace officer believes has committed or is about to commit an indictable offence.
40Similarly, the combination of ss. 320.28(1) and (2) of the Criminal Code effectively provide that, if a peace officer has "reasonable grounds" to believe that a person has operated a conveyance while that person's ability to do so was impaired to any degree by alcohol and/or by a drug, the officer may, by a demand, require the person to provide breath samples for analysis, or submit to an evaluation by a D.R.E.
41The statutory requirement of "reasonable grounds" in such provisions means that: (1) the police officer must subjectively believe that he or she has reasonable and probable grounds to arrest the accused or make the appropriate demand; and (2) this belief must be objectively reasonable, in the sense that a reasonable person in the position of the officer must be able to conclude that there were, indeed, reasonable and probable grounds for the arrest and/or the investigative step of making the demand. See, for example: R. v. Storrey, [1990] 1 S.C.R. 241, at pp. 249-251; R. v. Hall, 22 O.R. (3d) 289, at pp. 298-299; R. v. Golub, 34 O.R. (3d) 743, at para. 20; R. v. Muller, 2014 ONCA 780, 122 O.R. (3d) 721, at para. 36; R. v. Amare, 2014 ONSC 4119, affirmed, 2015 ONCA 673, at paras. 6-13; R. v. Notaro, 2018 ONCA 449, 27 M.V.R. (7th) 1, at paras. 34-36, 39-40; R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, at para. 28.
42As I have noted on earlier occasions, much has been written about the objective standard of "reasonable grounds" or "reasonable and probable grounds" in an effort to provide this important legal threshold standard with a greater degree of precision. See, for example, Can v. Calgary (Police Service), 2014 ABCA 322, 315 C.C.C. (3d) 337, at paras. 107-173; R. v. Shinkewski, 2012 SKCA 63, 289 C.C.C. (3d) 145, at para. 13; R. v. Canary, 2018 ONCA 304, 361 C.C.C. (3d) 63, at paras. 21-23; R. v. Grant and Campbell, 2015 ONSC 1646, at para. 92; R. v. Aguas, 2015 ONSC 3462, 335 C.R.R. (2d) 312, at paras. 55-56; R. v. Gordon, 2018 ONSC 1297, at para. 43; R. v. Williams, 2018 ONSC 3654, at paras. 104-105, 108-111.
43In my view, the governing appellate court jurisprudence articulates the following important principles surrounding the practical application of this legal standard:
Proof of reasonable and probable grounds does not require proof of the commission of the alleged offence beyond a reasonable doubt, or even the establishment of a prima facie case against the accused. See: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1168; R. v. Storrey, at pp. 249-251; Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), at p. 329; Illinois v. Gates, 462 U.S. 213 (1983), at p. 235.
Proof of reasonable and probable grounds does not even require proof of the commission of the offence on the civil standard of the balance of probabilities, or on the basis of a 51% probability. See R. v. Hall, at p. 298; Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; R. v. Jacobson, 207 C.C.C. (3d) 270, at para. 22; R. v. Loewen, 2010 ABCA 255, affirmed, 2011 SCC 21; R. v. Spence, 2011 BCCA 280, 87 C.R. (6th) 242, at para. 31; United States v. Garcia, 179 F.3d 265 (C.A., 5th Cir., 1999), at p. 269.
In considering whether the arresting officer was objectively possessed of the necessary reasonable and probable grounds, the court must take into account all of the circumstances known by the arresting officer and appreciate that a trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. See: R. v. Rajaratnam, 2006 ABCA 333, 214 C.C.C. (3d) 547, at para. 25; R. v. Juan, 2007 BCCA 351, 222 C.C.C. (3d) 289, at paras. 17-20, 27-28; R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127, at para. 61; R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at para. 48; R. v. Muller, at para. 37; R. v. Biccum, 2012 ABCA 80, 286 C.C.C. (3d) 536, at para. 21.
The threshold of reasonable and probable grounds demands more than establishing merely a reasonable suspicion of the commission of the offence. See: R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 85.
The standard of reasonable and probable grounds is used to define the point at which the state's interest in detecting and preventing crime begins to prevail over the individual's liberty interest in being left alone, namely, at the point where credibly-based probability replaces suspicion. In short, the threshold requires that there must be a "reasonable probability." See: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 167-168; R. v. Debot, at p. 1166; Baron v. Canada, [1993] 1 S.C.R. 416, at pp. 446-447.
Beyond these principles, it may not be possible to more precisely define the nature of the standard of reasonable and probable grounds, or affix specific mathematical percentages, as it is a commonsense threshold designed to provide a practical and non-technical standard based on probabilities, and which permits consideration of the totality of circumstances in each individual case. See: R. v. Campbell, 2010 ONCA 588, affirmed, 2011 SCC 32; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 29, 62, 69; R. v. MacKenzie, at para. 71; R. v. Canary, at para. 22; Illinois v. Gates, at pp. 238, 244; Ornelas v. United States, 517 U.S. 690 (1996), at pp. 695-696; Maryland v. Pringle, 540 U.S. 366 (2003), at p. 371; Safford Unified School District v. Redding, 129 S.Ct. 2633 (2009); Florida v. Harris, 133 S.Ct. 1050 (2013), at p. 1055.
44In determining the objective reasonableness of a police officer's subjective belief that he or she has the necessary grounds for an arrest, or for making a demand for the suspect/arrestee to participate in some investigative step, it is worthwhile recalling that such decisions are often "made quickly [by officers] in volatile and rapidly changing situations" where detached "[j]udicial reflection is not a luxury the officer can afford." See R. v. Golub, at para. 18; R. v. Lawes, 2007 ONCA 50, at para. 4; R. v. Carelse-Brown, 2016 ONCA 943, 343 C.C.C. (3d) 365, at paras. 47-48.
3. The Reasonable Grounds in the Present Case – Possessed by Constable Costa
45In my view, the trial judge was wrong in concluding that there was any absence of "reasonable grounds" in this case on the part of Constable Costa – either for the arrest of the accused, or for the demand that was made for her to submit to a D.R.E. evaluation. In this regard I rely upon the following considerations:
The Motor Vehicle Collision Itself: The motor vehicle accident was caused by the accused driving her vehicle into the rear of an already stopped vehicle, which happened in broad daylight, in near perfect road conditions, in clear and sunny weather. In short, there is no obvious reason for this serious motor vehicle accident, that caused great damage to both vehicles, and some personal injuries to the innocent driver of the other vehicle. The very fact of the motor vehicle accident, taking place in these circumstances, would cause anyone to wonder about the reasons for such an accident, and at least suspect the driver of the Porsche of potential impairment.
The Difficulty Producing the Current Insurance Document: The accused had considerable difficulty providing Constable Costa with her current insurance document – a very simple task that the accused was not able to perform without the intervening assistance of the officer. This evidence provides some evidence that the accused may have been impaired at the time of the collision.
The 911 Call About the Possible Impaired Driver: Shortly before this motor vehicle accident, the accused was observed, by a concerned citizen, driving her vehicle recklessly and dangerously. The accused was observed by this independent witness driving her Porsche through stop signs, making wide turns quickly, that caused her vehicle to jump up on the curb, seemingly having little control over her vehicle, as it veered back and forth across the road, and driving on the wrong side of the road. This dangerous driving by the accused caused the concerned citizen to: (1) approach the accused in the Porsche to speak to her about this unsafe driving, during which time, the accused seemed "out of it" abnormal, and evidenced slurred speech; and (2) subsequently the independent witness placed a call to the 911 emergency operator about a "possible impaired driver" on the road. This evidence strongly supported the conclusion that the accused was an impaired driver shortly before the motor vehicle collision. This information was, of course, passed on to Constable Costa by a TPS officer.
The Other Indicia of Impairment: While they were walking to the police car for the purposes of the A.S.D. breath test, Constable Costa noticed that the accused was unsteady on her feet, appeared to be off balance, and was not able to walk a straight line. Further, the accused closed the distance between them as they walked to the police car, such that when they reached the police vehicle, the accused was uncomfortably close to the officer, and was in his personal space, such that he had to ask her to "step back." Constable Costa also noticed that, when the accused was standing outside the police vehicle, she was unsteady on her feet, swaying from left to right, and had to steady herself by placing her hand against the police car window to maintain her balance. Earlier, the officer had observed that the accused was delayed (by 4-5 seconds) in her responses to his questions. By this point in time, Constable Costa clearly had reasonable and probable grounds to believe that the accused was an impaired driver.
The Absence of Alcohol: When the accused provided her breath sample into the A.S.D., the device registered a "zero" proving that the accused had no alcohol in her body. In the result, according to Constable Costa, he then formed the opinion that, alcohol having been ruled out, the accused was impaired by a drug and had been operating a motor vehicle. Constable Costa then arrested the accused for this offence and made a D.R.E. evaluation demand, pursuant to s. 254(3.1) of the Criminal Code. In my view, there can be no doubt that once the A.S.D. test showed that the accused was not impaired by alcohol, Constable Costa had at least reasonable and probable grounds to believe that the accused was impaired by drugs. She was obviously impaired by something – and if it was not alcohol, then there were clearly reasonable and probable grounds to believe she was impaired by drugs. There were simply no other potential reasons for the impairment of the accused.
The Testimony of Constable Costa: Constable Costa had clearly written in his notes that he formulated the "suspicion" that the accused was impaired by a drug, but during his trial testimony he clearly identified this mistake as an error on his part and, consistently explained that this was his opinion or honest belief – not a mere suspicion. He explained, to the extent that any explanation was necessary, that he would not have "gone through" the "entire arrest" process, if all he had was a "suspicion." In short, Constable Costa candidly admitted the obvious mistake in his notebook, and he offered a sensible explanation. With respect, it was wrong for the trial judge to focus on this mistake, and to essentially treat his notebook entry as if it was his sworn testimony (when it was not), and to treat his notebook entry as if it carved his trial testimony in stone (which it did not). Indeed, the law is clear that the existence of reasonable and probable grounds does not depend on any police officer describing his or her belief in those precise terms (as if it were a magical incantation) – but rather simply depends on the factual existence of those grounds. See: R. v. Grant, 2014 ONSC 1479, at paras. 26-46; R. v. Wilson, 2015 ONSC 6687, at paras. 37-51; R. v. Parkes, [2005] O.J. No. 937, at paras. 24, 47; R. v. Zimney, [2007] O.J. No. 4198, at paras. 38-39. The trial judge, unfortunately, erred in reaching the contrary decision.
46While the trial judge is owed an appropriate degree of deference in relation to purely factual determinations, the conclusion of a trial judge on the topic of the existence of reasonable and probable grounds is reviewable, on appeal, on a standard of legal correctness. See: R. v. Shepherd, 2009 SCC 39, [2009] 2 S.C.R. 527, at paras. 18-20; R. v. MacKenzie, 2013 SCC 50, [2013] S.C.R. 250, at paras. 53-54; R. v. Wu, 2015 ONCA 667, 127 O.R. (3d) 494, at paras. 45-48; R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at paras. 26-28. I am satisfied that the trial judge reached the wrong conclusion on this important point.
47Moreover, to the extent that my own conclusion in this regard may potentially tread upon any factual conclusion reached by the trial judge in this case, I am also satisfied that the trial judge's conclusion in this regard is based upon "palpable and overriding error" by the trial judge. See: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-37; R. v. Tiffin, 2008 ONCA 306, 232 C.C.C. (3d) 303, at paras. 22, 36, 41-43; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72; R. v. Carrano, 2011 ONSC 7718, at para. 4; R. v. O'Meara, 2012 ONCA 420, 284 C.C.C. (3d) 567, at paras. 36-38; R. v. David, 2014 ONSC 5049, at paras. 13-18. As I have already indicated, in my view the trial judge erred in focusing her attention upon the acknowledged mistake by Constable Costa in his notebook entry, and in effectively treating his mistaken notebook entry as if it was his unalterable sworn testimony (when it was not).
48In reaching my own conclusion that Constable Costa possessed the necessary reasonable and probable grounds justifying the arrest of the accused and his roadside demand to the accused that she submit to a D.R.E. examination, I take some comfort in noting that Akhtar J. reached the same conclusion in dismissing the earlier "cross-appeal" by the accused. See: R. v. Stipo, 2020 ONSC 4471, at paras. 99-104. In my view, the trial judge erred in refusing to follow this summary conviction appeal decision by a judge of this court, on this very same point.
4. The Reasonable Grounds in the Present Case – By Staff Sergeant Heinz
49The trial judge correctly concluded, however, that Staff Sergeant Heinz had the "requisite reasonable grounds" to believe that the accused "was impaired by a drug" after he completed the D.R.E. evaluation, thereby "giving him the grounds to make the urine demand" to the accused. In short, as the trial judge put it, his "subjective belief was objectively grounded."
50Of course, on the earlier summary conviction appeal, Mr. Justice Akhtar reached the same conclusion, namely, that Staff Sergeant Heinz had reasonable and probable grounds to believe that the accused had been operating a motor vehicle while she was impaired by drugs. See: R. v. Stipo, 2020 ONSC 4471, at paras. 17-20, 37-41, 42-55, 56-63, 78-84.
51Further, the trial judge concluded that Staff Sergeant Heinz could not be faulted for failing to appreciate that Constable Costa had arrested the accused in the absence of the necessary reasonable and probable grounds and had similarly lacked the necessary grounds to justify the D.R.E. demand. Rather, the trial judge concluded that Staff Sergeant Heinz honestly believed that the D.R.E. demand made by Constable Costa was "lawful/constitutional." Needless to say – it was.
5. The Admissibility of the Evidence of the Urine Sample Results Under Section 24(2) of the Charter of Rights
a. Introduction
52The trial Judge ultimately concluded that all observations of the accused, after her arrest, in the absence of reasonable and probable grounds, were causally and temporally connected to the breach of the accused's constitutional rights under the Charter of Rights, and the trial judge concluded that the subsequent observations of the accused, the D.R.E. examination by Staff Sergeant Heinz, the opinion of Staff Sergeant Heinz, and the forensic analysis of the accused's urine sample, should all be excluded from evidence under s. 24(2) of the Charter of Rights. In my view, Madam Justice Favret seriously erred in reaching this conclusion. In my view, all of this evidence was admissible. Indeed, in my opinion, there is simply no basis, in fact or law, which might justify the exclusion of any of this evidence.
53I note that Mr. Justice Akhtar found that there had been no violation of any of the constitutional rights of the accused under the Charter of Rights. I agree with his sound conclusion in this regard. Further, and perhaps even more importantly, Justice Akhtar concluded that, even if he was wrong in this regard, he would nevertheless have concluded that the evidence of the results of the urine sample from the accused, proving that the accused had, in fact, been operating her motor vehicle while impaired by a drug, was admissible under s. 24(2) of the Charter of Rights. See: R. v. Stipo, 2020 ONSC 4171, at paras. 85-98. Similarly, I entirely agree with his sound conclusion in this regard. Indeed, as I have already indicated, in my view the contrary conclusion, reached by the trial judge in this case, is entirely mistaken.
54It is the exclusion of this critical and reliable evidence – not its admission – that would bring the administration of justice into disrepute.
55Moreover, it is difficult to understand how the trial judge could reach the conclusion that she reached in this regard, given the opposite decision that had just been reached by Mr. Justice Akhtar, of this court, on summary conviction appeal. In my view, Madam Justice Favret was, essentially, bound to similarly conclude that this evidence was admissible under s. 24(2) of the Charter of Rights. In any event, in my view she certainly erred in reaching the opposite result, and in concluding that the evidence was not admissible.
b. Deference to the Trial Judge
56The Supreme Court of Canada has made it clear that a trial judge's determination concerning the admissibility of evidence under s. 24(2) of the Charter is owed "considerable deference" by an appellate court where the trial judge has considered the proper factors and has not made any unreasonable findings. See: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 86; R. v. Beaulieu, 2010 SCC 7, [2010] 1 S.C.R. 248, at para. 5; R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at para. 44; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689, at para. 77.
57In the present case, however, this deference cannot save the erroneous analysis and conclusions of the trial judge, given her failure to properly consider the relevant factors, and her apparent misunderstanding of the governing legal principles under s. 24(2) of the Charter. As Fish J. stated in delivering the judgment of the majority of the Supreme Court of Canada in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 82"where the relevant factors have been overlooked or disregarded, a fresh Grant analysis is both necessary and appropriate."
c. The Relevant Principles Governing the Analysis Under Section 24(2) of the Charter
58According to the Supreme Court of Canada decisions in R. v. Grant, and R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, there is a three-pronged test that must be applied when considering the admissibility of evidence under s. 24(2) of the Charter. More particularly, the court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits. The court must, of course, consider all of the circumstances of the case in conducting this balancing assessment. See also: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-113; R. v. Beaulieu, at paras. 5-8; R. v. Côté, at paras. 45-48; R. v. Cole, at paras. 80-98; R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at paras. 45-52; R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at paras. 75-81; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 37-42; R. v. Mian, at paras. 78-89; R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at paras. 64-71; R. v. Rehill, 2015 ONSC 6025, 89 M.V.R. (6th) 215, at paras. 26-48; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at paras. 71-100; R. v. Lafrance, 2022 SCC 32, [2022] 2 S.C.R. 393, at paras. 89-102; R. v. Zacharias, at paras. 51-60, 65-76; R. v. Thompson, 2025 ONCA 500, at paras. 87-124.
59As I will explain, in my view, a proper application of these governing legal principles, in all of the circumstances of the present case, clearly leads to the conclusion that all of the evidence excluded by the trial judge should properly have been admitted, especially the results of the forensic examination of the urine sample provided by the accused. I simply see no basis upon which this evidence could properly be excluded under s. 24(2) of the Charter of Rights.
1. The Seriousness of the State Conduct
60Under the first prong of the test, the court must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while willful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence, nor willful blindness, by the police can properly be characterized as good faith. Deliberate, willful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75; R. v. Taylor, at para. 39.
61Madam Justice Favret concluded that the breach of the Charter rights of the accused was "serious" misconduct by Constable Costa, who was simply acting on a "hunch" in arresting her. In my view this conclusion is simply not supported by the evidence in this case. To describe the reasonable and probable grounds possessed by Constable Costa as nothing more than a "hunch" is wholly inaccurate.
62Rather, in my view, any potential violation of the accused's constitutional rights in the present case could only fairly be characterized as relatively minor. In my opinion, Constable Costa clearly had reasonable and probable grounds to arrest the accused for the offence of the unlawful operation of a motor vehicle while impaired by drugs, and to demand that she submit to a D.R.E. evaluation. However, even if the officer somehow fell short of having the necessary reasonable and probable grounds, contrary to my conclusion in this regard, in my view this did not amount to serious state misconduct. At worst, as the trial judge concluded, Constable Costa had but a "suspicion" that the accused was operating her motor vehicle while impaired by drugs. Clearly, Constable Costa was not acting negligently or recklessly, and thereby deprived the accused of her liberty for no good reason. Indeed, I have concluded that Constable Costa acted lawfully, as he was perfectly entitled to act. As Mr. Justice Akhtar observed, this first aspect of the test under s. 24(2) of the Charter militates in favour of the admission of the evidence. See: R. v. Stipo, 2020 ONSC 4471, at paras. 90-93.
2. The Impact of the Charter Violation on the Accused
63As to the impact of any Charter violation, the second prong of the governing legal test under s. 24(2) of the Charter, the court must assess the extent to which a breach undermines the Charter-protected interests of the accused. The impact of the Charter violation may range from "fleeting and technical to profoundly intrusive." Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See: R. v. Grant, at paras. 76-78.
64The observation of the accused by Staff Sergeant Heinz during his D.R.E. evaluation, and his subsequent demand and collection of her urine sample was a relatively non-intrusive procedure and had but a slight impact upon the Charter-protected interests of the accused.
65The taking of a urine sample is, in my view, a procedure that is analogous to the taking of a breath sample – something long recognized as a "minimally intrusive" or a "relatively non-intrusive" investigative procedure. See: R. v. Stillman, [1997] 1 S.C.R. 607, at para. 90; R. v. Richfield, 175 O.A.C. 54, at paras. 16-18; R. v. Grant, at para. 111. Accordingly, in my view, consideration of the impact upon the accused will usually favour the admission of urine samples from an accused, just like breath samples from an accused. See: R. v. Taylor, 2010 ONSC 4850, 1 M.V.R. (6th) 103, at para. 44; R. v. McDowell, 2012 ONSC 7028, 40 M.V.R. (6th) 317, at paras. 50-54; R. v. Monney, [1999] 1 S.C.R. 652, at para. 48.
66Further, as even the trial judge recognized in the present case, Staff Sergeant Heinz had the necessary reasonable and probable grounds to demand that the accused provide her urine sample. Indeed, the trial judge described the alleged Charter violation in this case as a "low-end intrusion" on the Charter rights of the accused.
67In any event, I have concluded that the observation of the accused by Staff Sergeant Heinz and the subsequent collection of the accused's urine sample was a relatively non-intrusive procedure in the present case, which had a truly minimal impact on the accused's Charter-protected interests. Accordingly, as Mr. Justice Akhtar concluded, this second prong of the s. 24(2) analysis also favours the admission of all of the evidence excluded by the trial judge. See: R. v. Stipo, 2020 ONSC 4471, at paras. 94-96.
3. The Importance and Reliability of the Evidence to a Trial on the Merits
68Under the third avenue of inquiry under s. 24(2) of the Charter of Rights, the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown's case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84.
69As the Supreme Court of Canada observed in R. v. Grant, at para. 110, this third area of inquiry under the governing s. 24(2) analysis "will usually favour admission in cases involving bodily samples" as such evidence is generally reliable and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission of the evidence. This observation applies as equally to urine samples from the accused as it does to breath samples from the accused.
70In my opinion, that approach is equally applicable in the circumstances of the present case. The forensic results of the analysis of the urine sample from the accused provide entirely reliable evidence that is vital to an accurate determination of the merits of this case. If this evidence is excluded, the Crown's case is severely crippled. On the other hand, if the evidence is admitted, the Crown seems to be able to establish that the accused was, in fact, operating her motor vehicle while she was impaired by drugs at the time of this serious motor vehicle accident. The societal interest in a criminal trial on its merits would be seriously undermined if such highly reliable and critical evidence were excluded. Of course, the public has long had a very strong interest in dealing properly with "impaired driving" cases on their merits.
71The trial judge, with respect, paid scant attention to this factor in her analysis under s. 24(2) of the Charter, but she did note that the evidence of the drugs in the system of the accused was "reliable" evidence and that the "public interest" in these kinds of cases was to have them determined on their "merits." Ultimately, Justice Favret (like Mr. Justice Akhtar) concluded that this third analytical factor favoured the "inclusion" of the evidence. See: R. v. Stipo, 2020 ONSC 4471, at paras. 97-98.
72In any event, in my opinion, this third aspect of the governing analysis under s. 24(2) of the Charter strongly favours the admission of the evidence. See: R. v. Taylor, at para. 45; R. v. Grant, at para. 106.
4. Conclusion
73There is no overarching rule that governs how to balance these three critical factors in ultimately determining the admissibility of the evidence under s. 24(2) of the Charter. The three factors are designed, however, to encapsulate consideration of all the circumstances of the case. Mathematical precision is obviously not possible, but consideration of these factors provides a helpful and flexible type of "decision tree." See: R. v. Grant, at paras. 85-86.
74The balancing of these three factors against the background of all of the circumstances of this case leads me to conclude that the evidence of the accused's impaired condition by drugs was clearly admissible under s. 24(2) of the Charter, and that the trial judge seriously erred in reaching the contrary conclusion.
75In this case, all three prongs of the governing s. 24(2) Charter analysis support the admission of the evidence. While there is no recognized mathematical calculus that can be employed to simply resolve admissibility issues where the individual prongs of the three-part analysis point in different directions, where all prongs of the analysis point in the same direction, the final balancing assessment is much more one-sided, and the ultimate results more predictable. This is especially so where, as in the present case, all three prongs of the analysis support the admissibility of the evidence. After all, the burden of proof in Charter applications is upon the accused to establish, on the balance of probabilities, that the evidence obtained by the police in violation of his or her rights ought to be excluded under s. 24(2) of the Charter. See: R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 211-213; R. v. Sandhu, 2011 ONCA 124, 103 O.R. (3d) 561, at paras. 41-47. In my view, it is extremely difficult to imagine circumstances in which this burden of proof might be met, and evidence properly excluded, in any case where all three prongs of the governing s. 24(2) analysis favour the admission of the evidence, such as in the present case.
76In any event, in all of the circumstances of the present case, I am well-satisfied that the final balancing process must result in the admission of all of the wrongly excluded evidence. My colleague, Mr. Justice Akhtar reached the same conclusion on the earlier summary conviction appeal: R. v. Stipo, 2020 ONSC 4471, at para. 98.
77This conclusion means that this appeal by the Crown must be allowed and a new trial must be ordered. There is simply no other realistic alternative. However, given the other grounds of appeal that have been advanced by the Crown (and fairly conceded by defence counsel for the accused), I feel compelled to comment at least briefly on those other grounds of appeal, as they too would require this same result – namely a new trial in this case.
IV. The Precipitous Acquittal of the Accused Without Reasons and In Violation of Natural Justice
78Immediately after delivering her Ruling excluding much (but not all) of the evidence, establishing the alleged guilt of the accused for the charged offence of operating a motor vehicle while impaired by drugs, under s. 24(2) of the Charter of Rights, the trial judge erroneously simply dismissed the charge against the accused. Indeed, without calling upon either party to address the remaining evidence in the case, Madam Justice Favret simply acquitted the accused and told her that she was "free to go." Further, in addition to not inviting the Crown to even address the remaining evidence in this case, the trial judge did not herself explain, in any additional reasons, her view of the remaining evidence, apparently being of the view that her Charter Ruling fully disposed of the case entirely.
79In fact, the Charter Ruling of Madam Justice Favret itself expressly noted that at least five specific observations of the accused by Constable Costa were admissible, including: (1) the accused "fumbled with the insurance cards and had difficulty providing" the officer with the "most current card" despite the broad daylight and the clear weather; (2) the accused had some "delayed responses" to questions posed by the officer; (3) the officer had "some difficulty" understanding some of the words spoken by the accused; (4) while they were walking toward the police car, the officer noticed that the accused's "balance was off;" and (5) as the officer leaned into the police car to retrieve the A.S.D. device, the accused closed in on him, leaned forward, swayed and then leaned against the police car for balance.
80Of course, the results of the A.S.D. breath sample established that this evidence of impairment in the accused was not due to any consumption of alcohol by the accused.
81There was also other evidence that simply could not have been excluded by the trial judge, including the evidence of Ms. Barni, that, shortly before the motor vehicle collision in question, she personally observed the accused driving her silver Porsche through stop signs, making wide turns, driving her vehicle without much control, mounting curbs, and veering back and forth. Seeing this obviously unsafe driving by the accused, Ms. Barni bravely approached the accused, while she was momentarily stopped in her vehicle at a construction site, and the accused seemed a bit "out of it" her speech seemed a bit slurred, and she was not acting like a normal person. After speaking with the accused, Ms. Barni saw the accused drive off, on the wrong side of the road, seemingly out of control. This made Ms. Barni so nervous that she immediately placed the 911 emergency call about a "possible impaired driver."
82There was also the evidence of Mr. Dubeau, the driver of the other vehicle, the Prius, that was struck by the Porsche that was driven by the accused.
83There was clearly some inculpatory evidence remaining following the Charter Ruling by the trial judge. Accordingly, I have no hesitation concluding, as defence counsel has fairly conceded, that in acquitting the accused at the conclusion of her Charter Ruling, without inviting or permitting the Crown to make any submissions in relation to the remaining evidence in the case, the trial judge committed a fundamental breach of the rules of natural justice. The Crown was entitled, as a matter of fundamental justice and fairness, to be heard on the question of whether or not the remaining evidence satisfied the trial judge as to the alleged guilt of the accused. The trial judge could not fairly have drawn any final conclusion on that ultimate issue against the Crown (as she did) without even hearing any submissions from the Crown on that ultimate issue. See, for example: R. v. Jahn, 1982 ABCA 97, 35 A.R. 583, at para. 22-26; A.(L.L.) v. B.(A.), [1995] 4 S.C.R. 536, at para. 27; R. v. Graham, 2007 ABCA 153, 404 A.R. 300, at paras. 11-14; R. v. Al-Fartossy, 2007 ABCA 427, 53 C.R. (6th) 257, at paras. 22-25; R. v. Griffith, 2013 ONCA 510, 116 O.R. (3d) 561, at paras. 33-36. This failure to observe one of the foundational rules of natural justice is necessarily fatal to the trial proceedings in this case, and also requires that the Crown appeal be allowed, and that a new trial be ordered.
84The argument advanced on behalf of the accused, on this appeal, that the verdict would necessarily have been the same, and that the appeal should, accordingly, be dismissed, with respect, simply misses the point. The failure to abide by one of the foundational rules of natural justice is itself the "substantial wrong" that requires that the result of the flawed proceedings be set aside and a new trial ordered. The successful party at such a seriously flawed proceeding can hardly reasonably contend that the trial judge, who committed the egregious legal error and thereby irreparably tainted the entire proceedings, would likely have reached the same result had the proceedings not been fatally flawed. There simply must be a new trial – on this issue alone.
85In any event, I need not deal, to any significant degree, with the one additional issue raised by the Crown on this appeal, namely, that the trial judge failed to give any reasons at all explaining why the accused was being acquitted. It is obvious, at least to me, that the trial judge mistakenly thought that her Ruling in relation to the defence application under the Charter of Rights entirely disposed of the case. Clearly, it did not. Nevertheless, that is why the trial judge immediately found the accused not guilty and erroneously sent her on her way as soon as she was finished delivering her Charter Ruling.
V. Conclusion
86For these reasons, the summary conviction appeal by the Crown is allowed and a new trial is ordered (before an Ontario Court of Justice judge other than Mr. Justice Clark or Madam Justice Favret).
87For the sake of abundant clarity, and in an effort to put an end to the seemingly endless litigation in this case, I will now repeat my earlier direction – unless and until the Court of Appeal for Ontario (or the Supreme Court of Canada) say otherwise, the parties in this case and the new trial judge are bound by the legal conclusion, reached by both Mr. Justice Akhtar and myself, that the results of the urine sample provided by the accused in this case are admissible in evidence. In other words, in the absence of a contrary conclusion by a higher court, at the new trial defence counsel for the accused should not seek to exclude, and the new trial judge should not exclude, the evidence of the results of the urine sample from the accused. This evidence is admissible. Indeed, as I have indicated, in my view all of the evidence wrongly excluded by Madam Justice Favret is admissible in this case.
88An order shall issue accordingly.
Kenneth L. Campbell J.
Released: August 5, 2025