R. v. Reid
Her Majesty the Queen, and
 O.J. No. 2222
2010 ONCJ 189
Ontario Court of Justice
M. Green J.
Heard: April 15-16, 2010.
Judgment: May 13, 2010.
Criminal law Criminal Code offences Offences against person and reputation Motor vehicles Impaired driving or driving over the legal limit Roadside screening test As soon as practicable or forthwith Accused found not guilty of driving while over the legal limit The ASD demand was not first made until some six minutes after the arresting officer formed the reasonable suspicion contained in s. 254(2) of the Criminal Code and determined she intended to make the demand The situation did not afford an objective basis for a claim of officer safety There was nothing exigent or menacing about the stop or the behaviour of any of the occupants of the car The long-term interests of the administration of justice were better served by exclusion of the evidence Canadian Charter of Rights and Freedoms, s. 8, s. 9, s. 10(b), s. 24(2) Criminal Code, s. 254(2).
Criminal law Constitutional issues Canadian Charter of Rights and Freedoms Legal rights Protection against arbitrary detention or imprisonment Protection against unreasonable search and seizure Right to retain and instruct counsel without delay Remedies for denial of rights Specific remedies Exclusion of evidence Accused found not guilty of driving while over the legal limit The ASD demand was not first made until some six minutes after the arresting officer formed the reasonable suspicion contained in s. 254(2) of the Criminal Code and determined she intended to make the demand The situation did not afford an objective basis for a claim of officer safety There was nothing exigent or menacing about the stop or the behaviour of any of the occupants of the car The long-term interests of the administration of justice were better served by exclusion of the evidence Canadian Charter of Rights and Freedoms, s. 8, s. 9, s. 10(b), s. 24(2) Criminal Code, s. 254(2).
Accused charged with driving while over the legal limit. On the day of the incident, the accused was pulled over for speeding, and the officer approached her at 2:11 a.m. At 2:12, when asked if she had had any drinks, the accused replied: “a few”. The officer, Phelps, requested an ASD device and was advised one was on its way. Meanwhile, the officer’s partner had asked the three passengers in the vehicle to exit the SUV while Phelps spoke with the accused. Phelps stated that for reasons of officer safety, she did not make the ASD demand until she was satisfied her partner was safe. She made the ASD demand at 2:18 a.m. At 2:22, the accused was advised she had failed the test, and she was arrested for driving while over the legal limit. The accused was read her Charter rights at 2:27 a.m. At 3:12 a.m., when reminded of her right to counsel by the breath technician, the accused indicated for the first time she wished to avail herself of the opportunity. After speaking with counsel, she was back in the breath room at 3:24 a.m. and completed her first and second tests at 3:24 and 3:48 a.m. The defence presently sought to exclude the breathalyzer evidence from trial, arguing the accused’s Charter rights were breached in that the police failed to comply with the implicit immediacy imperative of s. 254(2) of the Code by not demanding that the defendant provide a sample of her breath for purposes of a roadside screening analysis until approximately six minutes after the predicate reasonable suspicion crystallized. Alternatively, the defence claims the Crown had failed to satisfy the conditions precedent to its reliance on the statutory presumption of identity and, as a result, there was no admissible evidence that the defendant’s blood alcohol concentration exceeded the legal limit at the time of her driving.
HELD: Accused found not guilty. The accused’s Charter rights were violated and the evidence of her breath test readings was excluded from trial, with the result that there was no admissible evidence that her blood alcohol concentration exceeded the legal limit at the time of her driving. At 2:12 a.m., the officer formed a reasonable suspicion the accused had alcohol in her body. Her primary investigative focus shifted from speeding to drinking and driving. The ASD demand was not made forthwith. It was not first made until some six minutes after Phelps formed the reasonable suspicion contained in s. 254(2) and determined she intended to make the demand. Although there might well be situations where immediacy might have to yield to legitimate concerns for public or officer safety, such a claim could not be indiscriminately or universally invoked so as to pre-empt constitutional compliance. The instant situation did not afford an objective basis for a claim of officer safety. There was nothing exigent or menacing about the stop or the behaviour of any of the occupants of the car. All were co-operative and compliant. Phelps’s partner did not seek her assistance or signal any kind of distress. No cognizable justification emerged for the officer’s failure to immediately make the ASD demand. In the absence of the demand under s. 254(2) of the Criminal Code, the accused was independently and arbitrarily detained once Phelps formed the reasonable suspicion predicate to making an ASD demand and the concurrent intention to do just that. She was entitled to be immediately informed of the informational component of her s. 10(b) right to counsel. The failure to comport with the implicit requirements of s. 254(2) rendered the seizure of her roadside breath samples unreasonable. The conduct of the police favoured exclusion. The failure to comply with s. 254(2) engendered multiple Charter breaches. The failure to immediately make the ASD demand was inconsistent with well-settled law and provoked unnecessary constitutional trespass. There was a relatively modest impact from the Charter breaches. The evidence was reliable and important to the Crown’s case. However, in the final analysis, the long-term interests of the administration of justice were better served by exclusion of the evidence.
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, R.S.C. 1985, App. II, No. 44, Schedule B, s. 8, s. 9, s. 10, s. 24(2)
Criminal Code, R.S.C. 1985, c. C-46, s. 254(2), s. 254(3)
XXXX, for the Crown.
T. Pain, for the Defendant.
REASONS for JUDGEMENT
M. GREEN J.:–
1 The defendant, Tara Reid, was pulled over for a speeding investigation in Toronto just after 2am on April 28, 2009. She was subsequently charged with operating a motor vehicle while her blood alcohol concentration (BAC) was in excess of the legal limit.
2 The defense contends that the police failed to comply with the implicit immediacy imperative of s. 254(2) of the Code by not demanding that the defendant provide a sample of her breath for purposes of a roadside screening analysis until approximately six minutes after the predicate reasonable suspicion crystallized. The constitutional consequences of such non-compliance, says the defense, include infringements of the defendant’s s. 9 right not to be arbitrarily detained, her s. 10 rights to be informed of the reasons for her detention and her rights to counsel, and her s. 8 rights to be secure against unreasonable search or seizure. The appropriate and just remedy for any or all of these constitutional infringements is said to be an order, pursuant to s. 24(2) of the Charter, excluding the defendant’s BAC readings from the trial record. Alternatively, the defence claims the Crown has failed to satisfy the conditions precedent to its reliance on the statutory presumption of identity and, as a result, there is no admissible evidence that the defendant’s BAC exceeded the legal limit at the time of her driving.
3 The evidence was effectively led by way of blended Charter and trial proceedings. The Crown called the two officers involved in pulling over the SUV driven by the defendant, and a third officer who attended the scene with an approved screening device. The defence did not call any witnesses. Apart from the s. 8 issue (which rests on a claim of a warrantless search and seizure), the burden of persuasion, on a balance of probabilities, rests on the defence with respect to the alleged Charter breaches. The ultimate burden – that of satisfying each of the essential elements of the offence charged on a standard of proof beyond reasonable doubt – remains, as always, with the Crown.
4 PCs Phelps and Harpoon were on general patrol in their marked scout in the early hours of April 22, 2009. They observed a 2008 Acura SUV driving west on King Street West in the lower Roncesvalles area of Toronto. The SUV was estimated to be travelling at 75 kph in a 50 kph zone. The police immediately activated their emergency lights and tried pulling alongside the speeding car. It did not pull over until about forty seconds after the lights were first activated, soon after the scout’s siren was turned on full-blast. It was then about 2:10am. After running the plate, Phelps, at about 2:11am, approached the driver while Harpoon walked to the passenger side of the vehicle.
5 The defendant was the driver. The first question Phelps asked her was, “Do you realize how fast you were going?” “Yes”, replied the defendant, who remained cooperative throughout. She then identified herself with a proper driver’s license on request. No odour of alcohol emanated from the defendant, nor did Phelps detect any other sign of alcohol consumption. Asked where she was coming from, the defendant identified a bar. Asked if she had had any drinks, the defendant replied “a few”. At this point – approximately 2:12 am – Phelps formed a reasonable suspicion that the defendant had alcohol in her body. Her primary investigative focus shifted from speeding to drinking and driving. She requested that an officer with an approved screening device (ASD) attend and was advised that PC Freddy (then about five or six minutes distance) was on his way.
6 Phelps knew she was going to make a s. 254(2) ASD demand from the moment the defendant admitted consuming alcohol and nothing prevented her from immediately doing so. She agreed that the demand only took about 15 seconds to recite. However, Phelps delayed the roadside demand until satisfied that her partner, Harpoon, was safe. As she explained, Harpoon had asked the three other passengers (two men and a woman) in the SUV to exit the vehicle while she spoke with the defendant in the driver’s seat. Although compliant, all three appeared to have been drinking. For reasons of “officer safety”, Phelps went to the rear of the SUV to eyeball her partner’s situation as he questioned the three others on the sidewalk. Harpoon did not appear to be having any difficulties. Once satisfied of this, Phelps returned to the passenger side of the SUV.
7 Phelps finally made the ASD demand of the defendant at 2:18am, by which time Freddy was already on-scene with an ASD – a concurrence Phelps attributes to coincidence. As a “cautious” officer, she explained that her primary consideration is always officer safety. Phelps’s understanding was that she was obliged to make the demand as soon as “practicable” and, given her priorities, she believed the delay was “not unreasonable” in the circumstances. Despite her concerns for her partner’s situation, Phelps says she would have promptly made the s. 254(2) demand had the defendant tried to leave at any point prior to 2:18am.
8 Although Harpoon says he observed Phelps administer the ASD to the defendant, Freddy testified (and Phelps confirmed) that he, Freddy, administered the roadside device. At 2:22am, Freddy advised Phelps, who was present throughout that the defendant had registered a “Fail”. Phelps then arrested the defendant for operating her motor vehicle with an excessive BAC. Harpoon, in contrast, testified that he was the officer who conducted the arrest. And, contrary to Phelps’s evidence, Freddy claimed he could smell a strong odour of alcohol on the defendant’s breath.
9 The defendant was taken out of her SUV, pat-down searched at the back of the scout and then seated in its rear compartment. Phelps, at the defendant’s request, collected her purse from the SUV and then read the defendant her s. 10(b) rights to counsel at 2:27am. (It never occurred to Phelps to inform the defendant of her s. 10(b) rights until after her arrest for “over 80”. Nor did she inquire as to whether the defendant had a cell phone.) The defendant was unsure whether she should speak to a lawyer. Phelps followed with a s. 254(3) breath test demand and, at 2:30am, a reading of the formal caution.
10 Phelps, with the defendant in tow, arrived at Traffic Services at 2:35am. The defendant was paraded at 2:42am and again advised of her rights to counsel. Again the defendant expressed uncertainty about whether she should speak with duty counsel. About 2:53, after some equivocation, she announced that she would “just take the test”. She was escorted to an interview room at 2:55am. Approximately 15 minutes later, at 3:10am, when the qualified breath technician indicated he was ready, she was taken to the breath test room. Phelps could only speculate as to what, if anything, occupied the breath technician’s attention during that quarter hour.
11 Once inside the breath room, the defendant, at 3:12am, was reminded of her right to counsel by the breath technician. She then, for the first time, indicated that she wished to avail herself of this opportunity. She was immediately returned to an interview room as Phelps called the duty counsel office. The defendant spoke privately with duty counsel for three minutes when he returned the call at 3:21am. She was back into the breath room at 3:24am and completed her first test at 3:28am. Her second test was completed at 3:48am. The defendant’s BAC readings on the two tests, as adduced through a Certificate of a Qualified Technician, were 180 and 170, respectively. The legal limit is less than half these BAC readings. Harpoon served the defendant with a true copy of the Certificate at the station. He did not note the time.
12 The defendant was not free to go from the time she was pulled over for the speeding infraction to the time she was ultimately released from the station on a Promise to Appear. Even if there was no reason to suspect the consumption of alcohol, Phelps would have required the defendant to remain in her vehicle until she completed various HTA-related inquiries in her scout. The defendant was never charged with speeding or with impaired operation of a motor vehicle. Indeed, Phelps testified that she only intended to caution the defendant respecting her speeding and that the brief pursuit would not have afforded a sufficient evidentiary basis for a successful speeding prosecution. According to Phelps, the defendant walked well in stiletto heels and appeared coherent, sober and lucid throughout.
13 The evidence upon which I rely includes that contained in a DVD of the defendant’s attendances before the booking officer at Traffic Services and with the breath technician in the breath room.
Determining “The Facts”
14 There is very little dispute about the events surrounding the investigation of the defendant. The few inconsistencies in the accounts of the officers can be readily resolved. I have much greater confidence in the reliability of Phelps’s recall than that of Harpoon, and accordingly find, first, that Phelps (and not Harpoon) effected the defendant’s arrest and, second (and as confirmed by Freddy), that Freddy and not Phelps administered the ASD to the defendant. I also accept Phelps’s evidence that the defendant exhibited no physical or behavioural signs of intoxication or even alcohol consumption other than her admission of having had a few drinks. Phelps spent considerable time in the defendant’s company – at the window of the SUV, in the police vehicle on the way to Traffic Services and in the station – and had ample opportunity to observe the defendant. Freddy had very little exposure to the defendant. His contrary account as to the strong smell of alcohol on the defendant’s breath reflects, I find, his somewhat overzealous recall of the events. It also inconsistent with the defendant’s sober, responsive and cognitively engaged presentation in the booking room video-recording.
(b) The Timing of the Section 254(2) Demand
15 Section 254(2) of the Criminal Code reads, in its relevant parts, as follows:
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person …
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
16 The predecessor provision to this enactment has been subject to voluminous jurisprudential consideration. As I see it, and for purposes of the issues engaged by this case, there is no substantive difference between the two provisions. Accordingly, the law construing that precursor to s. 254(2) is of equal assistance – indeed, of binding force in some respects – in determining the application of the provision to the issues raised on the evidence before me.
17 The fundamental issues here are ones of statutory construction in the context of constitutional rights and obligations. While s. 254(2) expressly requires that a breath sample be provided “forthwith” once the demand is articulated, must the demand itself be made with equal alacrity once the demanding officer “has reasonable grounds to suspect” that the driver has alcohol in his or her body? If so, what meaning is to be ascribed to “forthwith” and has that standard been honoured on the facts in this case? If not honoured, what, if any, are the constitutional implications – both in terms of Charter infringements and, if so established, appropriate remedies?
18 This jurisprudential ground has long been tilled by other courts. I have no intention of replicating their labours. While Crown counsel has made a valiant effort to reconstruct a contrary line of authority based on a fine parsing of earlier decisions, I am of the view that the debate, at least in Ontario, is well settled – and in a manner that generally favours the defendant. What remains, of course, is the application of this law to the instant case, a matter to which I shall return in due course.
19 The doctrinal issues were recently addressed in the not dissimilar case of R. v. Vinoharan,  O.J. No. 4037 (Sup. Ct.), a summary conviction appeal. The Crown, at trial, admitted breaches of ss. 8, 9, 10(a) and 10(b) of the Charter resulting from a seven-minute delay between the formation of the requisite reasonable suspicion and the making of the ASD demand. The trial judge declined,  O.J. No. 4879, at least in part, the Crown’s concession, finding only breaches of ss. 8 and 10(a). Justice Backhouse held that the trial judge erred in not acknowledging the correctness of all of the breaches conceded. In so doing she succinctly summarized the governing law as follows, at paras. 6-8 (emphasis added):
Section 254(2) of the Criminal Code is a reasonable limitation on the protections provided by Sections 8, 9, 10(a) and 10(b) of the Charter. However, both the demand and the sample must be forthwith. As Justice Fish explained in R. v. Woods,  2 S.C.R. 205 at paras. 14-15 and 29:
* Section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample “forthwith”.
Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster.
The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter. In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice of language, but also Parliament’s intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
The limits on the protections are no longer justified where the police officer does not proceed in conformity with the requirements of Section 254(2) of the Criminal Code. One of these requirements, as I have said, is to make the demand forthwith. The Crown conceded and the trial judge found that the police officer failed in this respect. Once the police officer was operating outside of the Section 254(2) framework, the protections in [Charter] Sections 8, 9, 10(a) and 10(b) were available to the appellant. [Citations omitted.]
The appellant was not advised of his right to counsel when he was detained. This is a breach of Section 10(b). As for Section 9, implicit in the Crown’s concession at trial that this section was breached is the fact that the appellant was arbitrarily detained on the “over 80” charge once the demand was not made forthwith.
20 (See also: The Queen v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.), at 211 and 213; R. v. Pierman; R. v. Dewald (1994), 92 C.C.C. (3d) 106 (Ont. C.A.), esp. at 166; affd. 103 C.C.C. (3d) 382 (S.C.C.); R. v. Singh,  O.J. No. 4992 (Sup. Ct.); R. v. Grant,  3 S.C.R. 139; R. v. George (2004), 187 C.C.C. (3d) 289; R. v. Wackernagel (2004), 16 M.V.R. (5th) 297 (Ont. Sup. Ct.); R. v. Fildan,  O.J. No. 3604 (Sup. Ct.); R. v. Beattie, 69 C.R. (6th) 92; and R. v. Au-Yeung,  O.J. No. 1579.)
21 I have no difficulty finding that the demand here was not made forthwith. Rather than immediately, it was not first made until some six minutes after PC Phelps both formed the reasonable suspicion contained in s. 254(2) and determined that she intended to make the demand. There were no circumstances – at least none either expressed or otherwise evident – giving rise to a concern that a deferral of the roadside testing was essential to the integrity of the sampling process. Nor did accidents or emergencies legitimately detract the officer’s attention. The only proffered reason for the delay was Phelps’s personal practice of prioritizing a generalized concern for “officer safety” over the requirements of a statutory provision which has been construed in terms of immediacy so as to maintain constitutional grace.
22 Although rare, there may well be situations where immediacy may have to yield to legitimate concerns for public or officer safety. Such claim, however, cannot be indiscriminately or universally invoked so as to pre-empt constitutional compliance. Nor does the application of such exception fall to the subjective sensibility of each officer. There must be some objectively ascertainable foundation for such departure from a statutory imperative to avoid constitutional protections being held hostage to the unreviewable whim of law enforcement officers.
23 Put simply, I do not find that the instant situation affords an objective basis for a claim of officer safety. There was nothing exigent or menacing about the stop or the behaviour of any of the occupants of the car. All were co-operative and compliant. Other than a possible seatbelt infraction (which the officers noted but did not pursue), there was no suspicion of criminal or regulatory misconduct other than that involving the driver. None of the passengers showed any indicia of disorderly or threatening behaviour. Phelps’s partner, Harpoon, did not seek her assistance or signal any sign of distress. Indeed, even if Phelps’s retreat to the rear of the vehicle to ensure herself that nothing was amiss can be constitutionally condoned, this procedure, on my read of the evidence, could not have taken her more than 30 seconds to complete. In short, no cognizable justification emerges for the officer’s failure to immediately make the ASD demand.
(c) Implications for the Defendant’s Charter Rights
24 “Once the police officer was operating outside of the Section 254(2) framework”, to borrow the language of Vinoharan, the rationale for the suspension of the defendant’s Charter-guaranteed rights no longer obtained. Put otherwise, at that point the authority for a roadside detention and breath testing is, as it is sometimes framed, spent.
25 The defendant was detained from the moment she admitted having had a few drinks – the very moment, not coincidentally, both the s. 254(2) reasonable suspicion and the intention to make the related demand crystallized in PC Phelps’s mind. Admittedly the defendant was, at the time, lawfully detained pursuant to an HTA investigation for speeding. However, the refocusing of the police inquiry from a provincial regulatory offence to a criminal investigation significantly altered the quality of the detention. Not only did the defendant now face enhanced criminal jeopardy but, commensurate with that risk, she was entitled to the provision of various Charter rights and the right to be informed of them. Further, it is of some moment that Phelps intended only to caution the defendant respecting her speeding. It is also of some significance that despite her attention to “officer safety” Phelps would have immediately made the ASD demand in order to ground the defendant had she attempted to leave. In short, in the absence of the s. 254(2) demand the defendant was independently and arbitrarily detained once Phelps formed the reasonable suspicion predicate to making an ASD demand and the concurrent intention to do just that. Any other construction would permit a POA stop to interminably subvert the careful balance of constitutional rights with the enforcement of drinking and driving legislation worked out in the jurisprudence that governs the application of s. 254(2).
26 Again adopting the language of Vinoharan, the defendant “was arbitrarily detained [in breach of her s. 9 Charter protection] … once the demand was not made forthwith”. Arbitrary or not, the defendant’s right to be immediately informed of the reasons for her detention were not respected, in violation of her s. 10(a) rights: R. v. Mann (2004), 185 C.C.C. (3d) 308 (S.C.C.), at para. 21; R. v. Kelly (1985), 17 C.C.C. (3d) 419 (Ont. C.A.), at 424; R. v. Nguyen (2008), 231 C.C.C. (3d) 541 (Ont. C.A.), at para. 20. Further, absent compliance with the prompt demand provision in s. 254(2), the defendant’s investigative detention entitled her to be immediately informed of the informational component of her Charter s. 10(b) right to counsel (see R. v. Suberu,  2 S.C.R. 460, at paras. 2, 37-42), a right which was also not honoured in this case. In addition, the failure to comport with the implicit requirements of s. 254(2) rendered the seizure of the defendant’s roadside breath samples unreasonable as well as warrantless and, thus, in breach of the defendant’s s. 8 rights to be secure against unreasonable search or seizure. It need hardly be said that it is the analysis of these samples that, in turn, provide the “reasonable and probable grounds” for the subsequent s. 254(3) breathalyzer demand which generate the excessive BAC readings that bottom the single charge faced by the defendant.
The Question of Remedy
27 Section 24(2) of the Charter commands that evidence shall be excluded where a court concludes that it
… was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter … if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
28 There is adequate nexus between the Charter infringements I have just detailed and the crucial evidence upon which the Crown relies to readily satisfy the “obtained in a manner” branch of the exclusionary test. The real issue in this case is whether the admission of such evidence – ultimately, the defendant’s BAC readings as provisionally introduced through the Certificate of a Qualified Technician – would, in all the circumstances, “bring the administration of justice into disrepute”.
29 The conventional approach to the application of this remedial test was substantially “revised” by the Supreme Court in R. v. Grant,  2 S.C.R. 353. The fresh methodology rests on the following three public interest considerations, as set out at paras. 68-70:
The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. … [S]. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.
Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.
Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. [Emphasis added.]
30 The application of s. 24(2) now comprehends three lines of inquiry: (1) the seriousness of the Charter-infringing conduct; (2) the impact of the infringement on the Charter protected interests of the defendant; and (3) society’s interest in the adjudication of the case on its merits. In those cases where, as here, the evidence at issue is “bodily evidence”, the Supreme Court offered the following assistance, at paras. 108-110:
The first inquiry informing the s. 24(2) analysis – the seriousness of the Charter-infringing conduct – is fact-specific. Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed in good faith, admission of the evidence may have little adverse effect on the repute of the court process.
The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused’s protected interests. … The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions. … At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology. The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.
The third line of inquiry – the effect of admitting the evidence on the public interest in having a case adjudicated on its merits – will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused’s body 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.
31 While stressing that “each case must be considered on its own facts”, the Court, at para. 111, “ventured in general” that,
… where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.
I here address all three inquiries.
(i) The Seriousness of the Breach
32 This first line of inquiry focuses on the gravity of the state’s infringements of the defendant’s rights. In my view, the police conduct in this case favours exclusion. The police failure to comply with s. 254(2) engendered multiple breaches of the defendant’s Charter-protected rights. Some – such as the sub.-ss. 10(a) and 10(b) violations – occurred irrespective of the arbitrariness of the detention. Most importantly, the failure to immediately make the ASD demand was inconsistent with well-settled law and thereby provoked unnecessary constitutional trespass. “Good faith”, of course, will mitigate a Charter infringement, but Phelps’s conduct falls short of such redemption. As explained in Grant, at para. 75,
“Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [Emphasis added.]
33 Phelps’s decision to defer the ASD demand reflects a woeful ignorance of her statutory obligations and their constitutional underpinnings. Indeed, her reference to practicability as determining the timing of the demand and her personal assessment of the delay as “not unreasonable” strongly suggests that she had no real appreciation of the appropriate legal standard, an aggravating factor that has led to exclusion in a number of cases: see, for example, R. v. Kokesch,  3 S.C.R. 3, at 32-33 and R. v. Genest,  1 S.C.R. 59, at 87. In R. v. Harrison,  2 S.C.R. 494, a companion case to Grant, the Supreme Court, at para. 22, said the following respecting the seriousness-of-the-breach inquiry:
At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself? This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter-compliant. [Emphasis added.]
(iii) Impact on the Defendant’s Charter-Protected
34 The impact of constitutional infringements on a defendant’s Charter guaranteed rights may run from trivial to egregious. No doubt the breath-testing conducted in this case was less intrusive than many state trespasses of personal privacy, dignity and integrity and, as a result, falls on the less serious end of the spectrum. Of course, the seizure of the defendant’s breath occurred both at roadside and at the station, and the defendant’s arbitrary detention clearly prejudiced her liberty and mobility interests. Further, the failure to provide s. 10(a) and s. 10(b) rights inevitably engages self-incrimination considerations, although the defendant’s initial deferral of the opportunity to consult counsel, when finally advised, reduces the impact as I infer that she would not have responded differently if informed of that right in a more timely fashion. In short, the relatively modest impact of the Charter breaches favours admission.
(iii) Society’s Interest in an Adjudication on the
35 As said in Grant, at para. 79, the final branch of the s. 24(2) inquiry “asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion”. The key factors in assessing the effect of exclusion on the truth-seeking function are, first, the reliability of the evidence and, second, its importance to the prosecution’s case. Here, both factors clearly favour admission of the contested evidence.
(iv) Assessing the Balance
36 The three avenues of remedial inquiry dictated by Grant are subject, finally, to a careful balancing. As there said, at para. 85,
Having made these [three] inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
37 Here the reliability and importance of the evidence to the prosecution of the Crown’s case favours its reception, as does an assessment of the impact of the breaches on the defendant’s Charter guaranteed rights. That said, there must still be a balancing of the search for truth and the integrity of the judicial system. This inquiry inevitably returns to the “long term”, “prospective” and “societal” interests that undergird and inform a proper s. 24(2) analysis. These considerations, in my view, tip the equilibrium in the direction of exclusion where, as here, the police conduct signals a disturbing misapprehension of constitutional norms. The repute of the justice system demands that courts not be seen to condone the ignorance or disregard of the law by those charged with its enforcement. In the end, the final reasoning of Justice B. Duncan in R. v. Beattie, supra, at para. 34, seems particularly apt:
Most of the circumstances clearly favour inclusion of the evidence. Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.
D. THE MERITS
38 In view of the dispositive effect of my determination of the Charter application, I decline to address the defendant’s alternative argument that the Crown has failed to satisfy a necessary pre-condition to its reliance on the statutory presumption of identity.
39 Pursuant to s. 24(2) of the Charter, I exclude the evidence of the defendant’s breath test readings. As a result, there is no admissible evidence that the defendant’s BAC exceeded the legal limit at the time of her driving. Accordingly, I find the defendant not guilty.
M. GREEN J.