R. v. Gautam, 2017 ONCJ 577

ONTARIO COURT OF JUSTICE CITATION: R. v. Gautam , 2017 ONCJ 577 DATE: 2017 08 24 COURT FILE No.: 16 03723 BETWEEN: HER MAJESTY THE QUEEN — AND — KUNAL GAUTAM Before Justice David S. Rose Heard on July 5, 6, August 14, 2017 Reasons for Judgment released on August 24, 2017 A. Linds........................................................................................................ counsel for the Crown K. Anders................................................................... counsel for the defendant Kunal Gautam Rose J.: [ 1 ] Mr. Gautam is charged with Over 80 Operation on May 6, 2016. He alleges infringe​ments of his rights under ss. 8, and 10(

b) under the Charter of Rights and Freedoms (“the Charter ”) and seeks exclusion of evidence under s. 24(2) of the Charter . The constitutional argument in this case turns on the implications of the media video-taping the breath testing procedure. In argument Mr. Anders conceded that there are no other issues raised, and this case rises or falls on the Charter argument. Facts [ 2 ] On May 6, 2016 PC Flood along with other uniformed members of the York Regional Police (“YRP”), set up a Ride stop on East Beaver Creek at Mural Street in Richmond Hill.

The RIDE stop had set up in two locations in close proximity to each other. One was a mobile breath testing truck, and another with PC Flood and two other officers PCs McLelland and Singh. The idea was that any motorists seeing the RIDE truck and not wanting to stop at its location with officers outside would be caught at PC Flood’s location. [ 3 ] When PC Flood started his shift his team was briefed by Sgt. Sidenberg that the plan was to set up the RIDE truck at that location. Flood was briefed that members of the media would be with him as a ride along. The RIDE stop was set up at 9 pm that night.

At 10:43 pm a white Mazda with Mr. Gautam approached PC Flood’s location. At that time PC McLelland was up the road a few feet from Flood, and was the first to see the Mazda. According to PC Flood the Mazda didn’t stop for PC McLelland and Flood stepped into the roadway to physically stop the car. It did. In his evidence Flood testified that the driver had a cell phone in his hand against his chest. When the Mazda stopped PC Flood spoke with Mr. Gautam through the open driver’s window. Mr. Gautam was alone in the car. Mr.

Gautam admitted to having one beer and PC Flood could smell an odour of an alcoholic beverage in the car. He didn’t notice anything about Mr. Gautam’s speech but his eyes seemed glossy. Based on the smell of alcohol and Mr. Gautam’s admission of drinking PC Flood had a reasonable suspicion that Mr. Gautam had been driving with alcohol in his system. At 10:45 PC Flood read him an Alcohol Screening Device Demand (“ASD”). Mr.

Gautam said he had his last drink about 10 minutes previously, and with that PC Flood told him that they would wait 5 minutes for the ASD test. [ 4 ] At that point the police cars for PCs Flood, McLelland and Singh were about 20 meters from their location on the roadway. They had their police lights activated as a safety beacon, but not their dash cams. As a result the stop of Mr. Gautam and his initial roadside investigation was not video recorded.

[ 5 ] At 10:50pm Cst. Flood administered an ASD test on Mr. Gautam and he failed. He was then arrested for Over 80 at 10:52. Rights to Counsel were read, as well as police cautions. He testified that he read a Breathalyzer Demand at 10:57. Mr. Gautam initially said that he didn’t need a lawyer, but PC Flood said that it would be a good idea if he spoke with Duty Counsel. [ 6 ] PC Flood and Mr. Gautam left that location at 11:01 pm and arrived at the RIDE truck nearby within a minute or two. Flood escorted Mr. Gautam into the RIDE truck, and at 11:06 pm called the Duty Counsel hotline.

PC Flood said that he had talked Mr. Gautam into getting legal advice. PC Nethercott was the Qualified Breath Technician in the RIDE truck that night and at 11:08 PC Flood explained to him the reasons he had arrested Mr. Gautam and made a Breath Demand. Duty Counsel returned the call at 11:24. Mr. Gautam spoke with Duty Counsel in a private booth at the rear of the truck. That call lasted until 11:34 when Mr. Gautam was turned over to PC Nethercott for breath testing. [ 7 ] According to PC Flood the others on the truck included Sgt. Sidenberg, McLelland and members of the media. Cst.

Flood testified that he served the Certificate of a Qualified Technician on Mr. Gautam. [ 8 ] In Cross-Examination PC Flood testified that the RIDE truck is not equipped with an interior video camera. He was asked about the presence of media on scene that night, and testified that he wasn’t sure which media outlet was present but agreed that it was unusual to have the media at the scene. He said that the media was videotaping cars as they stopped.

He said that he wasn’t sure who authorized the media to be there, but opined that it would have been someone in the corporate communications department of the York Regional Police. [ 9 ] PC Flood could not remember if there was a TV crew in the area of the truck, but did say that, from his perspective, people were tripping over each other inside the truck. He could not recall where the TV camera was when the breath testing of Mr. Gautam was taking place. He testified that the media were in the truck to spread the news about the RIDE program. He wasn’t sure who approved it. [ 10 ] PC Nethercott testified.

He has 19 years of experience as a YRP officer and has spent most of that with traffic services. He is a qualified technician for the Intoxilyzer 8000C, which was used to test Mr. Gautam’s breath that night. [ 11 ] Nethercott was in charge of the RIDE truck and testified that he started his shift that night by examining it inside and out for anything unusual. There wasn’t. The RIDE truck had an operational Intoxilyzer 8000C. At the briefing with Sgt. Sidenberg he was told that he would be doing a static RIDE check and that the media would be present.

He described the layout of the RIDE truck as having a phone booth at the rear for telephone calls to counsel. He said that the phone booth was about the size of a traditional British phone booth. It has a door which shuts. There is a window in the door from which the police in the body of the truck can monitor when the call to counsel has finished. He said that he can’t hear what is being said inside the booth. His practise is to look for when the phone is put on the cradle as a cue that the phone call had finished. [ 12 ] Nethercott testified that Sgt.

Sidenberg asked him to wear an audio pack because of the news media. He clipped the microphone to his uniform. He let the TV cameraman, Mr. Ford, operate the microphone. He was told that there would be a cameraman filming inside the RIDE truck. He had never experienced this. After Mr. Gautam completed his breath tests, another subject was filmed while providing breath samples. He said that the breath room portion of the truck was in the middle, which is where the cameraman was. That middle area is separated from the front part area of the truck by a door. [ 13 ] PC Nethercott explained to Mr.

Gautam that there would be another person present during the breath testing, a cameraman Mr. Ford. He did that because, in his evidence, Mr. Gautam deserved an explanation. He pointed out that Mr. Ford wasn’t a police officer. He testified that having the TV Cameraman was not his idea but he was asked to do this by a Sargent. Tellingly, Nethercott said that he knew at the time it would come up in Court. Nethercott testified that Mr. Ford did not ask questions or interfere with the Breath testing of Mr Gautam. [ 14 ] PC Nethercott testified that he received grounds for the Breathalyzer from PC Flood before Mr.

Gautam was turned over to him at 11:35. He then read a Breath Demand to Mr. Gautam. Mr. Gautam provided two samples of breath into the Intoxilyzer which generated the results of 152 and 146 mg of alcohol in 100 ml of blood at 11:42 pm and 12:05 am respectively. [ 15 ] The breath testing went smoothly according to Nethercott. He described Mr. Gautam as a courteous, polite subject – “super nice”. He said that as a breath testing subject he was “ideal”. He was candid that the breath testing was awkward because of the presence of a TV Camera recording the procedure. He said that the camera made Mr.

Gautam nervous. [ 16 ] In cross-examination PC Nethercott said that Mr. Gautam’s facial expressions “100%” told him that he was not impressed with being filmed during the breath testing. He testified that “it was awkward for him and me”. He was quite clear in his evidence that he was following orders, and trying to be as courteous and polite to Mr. Gautam as he is with everybody. Nethercott said he found out about the video footage being aired by Global TV when his parents called him to say that they saw him on the news. He said that the news piece that aired was clearly edited.

He confirmed that there is a window in the phone booth but he has never tested the booth to determine whether someone inside can hear anyone on the outside. [ 17 ] A video was played in Court of a Global TV news piece on the RIDE program that night. It commences with a news anchor introducing the piece, and proceeds to air an in-car interview with Sgt. Sidenberg and, notably, the actual breath testing of Mr. Gautam in the RIDE truck. The story ends with the reporter speaking to Mr. Gautam as he exits the RIDE truck after release from custody. [ 18 ] Mr. Gautam testified on the Charter Motion.

He said that once he pulled over at Cst. Flood’s location a Global News vehicle - a van he thought - drove up and started filming. He said that when he was taken back to the RIDE truck the Global News cameraman came in too. He asked PC Flood to have the cameraman leave, but was told that the police gave the news media permission to be there. He said he found it intimidating. [ 19 ] Mr. Gautam testified that he was told that the phone booth in the truck was not completely soundproof. He described it as a small room with a window.

He went in it to speak with Duty Counsel and when he was explaining what was happening the cameraman lifted a curtain on the outside of the booth and pointed his camera right into the window of the booth. He said he told Duty Counsel that,

who was surprised. Mr. Gautam said that the TV camera was so close that it wouldn’t matter if he turned around inside the booth. Hesaid it was right at the window, about an inch away, while he was talking to Duty Counsel. He testified that he wanted to ask questionsto duty counsel but couldn’t because he was being recorded. [20] Mr. Gautam said that the Global News TV crew filmed him during the whole time that he was in the breath room. After thenews piece aired he was asked about it by various people at work, which he found humiliating. [21] In cross-examination Mr.

Gautam explained that the TV crew arrived at PC Flood’s location and filmed him there too. As hewas being walked to PC Flood’s car he was being filmed by a cameraman from perhaps 10 meters away. When he got to the RIDE truckonly one cameraman was in the Breath Room area. The Reporter, he said, was outside. He said he asked the cameraman to turn off thecamera because it was uncomfortable. He was told they had permission to be there. He asked this of both PC Flood and Nethercott. Hewas told that they wouldn’t show his face or name on TV. Issues and Findings [22] This case raises two constitutional issues.

They overlap. The first is whether Mr. Gautam’s rights under s. 10(

b) of theCharter were violated by the presence and actions of Global News, and the second is whether the Global News recording and broadcastof Mr. Gautam’s roadside investigation and breath testing violated his rights under s. 8 of the Charter. The legal analysis in this casetwists together different lines of jurisprudence – ones that are not usually seen in the same thread. [23] I make the following findings of fact before turning to the legal dimensions of these issues.

The evidence is uncontrovertedthat Global News was on scene recording news footage with YRP at the static RIDE check on East Beaver Creek the night of Mr.Gautam’s arrest at that location. There is also uncontradicted evidence that they were present with the approval of YRP. That approvalextended beyond the roadway, and into the interior of Sgt. Sidenberg’s car and the breath room of the RIDE truck. There is no evidenceabout who precisely gave that permission. No police witnesses could answer that question, but their conjecture that it was someone wellabove the rank of Police Constable is entirely reasonable.

The video recorded by Global TV was aired as a news item soon after Mr.Gautam’s release from custody. All witnesses testified that they were surprised the next day to learn from others that they had made thenews. With that I have no difficulty in finding that Global News attended at the scene with the formal permission of YRP. The nature ofRIDE programs requires that they must be a surprise to approaching motorists. It would defeat the purpose of a RIDE program todisclose its location to the public in advance.

There is therefore a strong suggestion that Global TV was given the specific location ofthe RIDE program, and must have agreed not to broadcast the location before the RIDE program wrapped up. There is no evidencedirectly on this point, but it is an available inference. [24] Global TV went into the RIDE truck with a video camera and recorded the goings on with its microphone attached to PCNethercott. Global TV controlled the manner of video and audio recordings, and there is no evidence that YRP restricted anything doneby Global inside the RIDE truck while Mr. Gautam was under arrest.

There is no evidence that any restrictions were placed on theGlobal News team, but again I find that Global News must have agreed not to broadcast the location while the RIDE program was at thatlocation. I further find that Mr. Gautam’s request that Global TV stop the cameras fell on deaf ears. I accept PC Nethercott’s evidencethat he was wearing a Global News microphone inside the RIDE truck and that he was not at liberty as a Police Constable to refuse it.Again, the direction to give Global News access to the RIDE truck was from those in YRP senior to Nethercott. [25] Mr.

Gautam testified without inconsistency that the Global cameraman Mr. Ford put the TV camera right into the window ofthe Duty Counsel door and recorded Mr. Gautam while he was on the phone with Duty Counsel. He also testified without inconsistencythat the presence of the camera at that moment prevented him from asking questions of Duty Counsel. Cross-examination failed to shakehim on those issues, and he was careful while testifying about those issues which he could not remember. That said, he was quite preciseabout what happened. I accept his evidence as truthful.

I have no difficulty whatsoever finding that, when Mr. Gautam was in the DutyCounsel booth of the RIDE truck, a Global TV Cameraman actively moved his camera into the window in the door so that Mr. Gautam’sconversation would be recorded, and that had the practical effect of preventing Mr. Gautam from asking questions of Duty Counsel. Therefore his contact with Duty Counsel was impeded. Is the conduct of Global TV subject to Charter Scrutiny? [26] In argument, the Crown conceded that the actions of Global TV inside the RIDE truck on the night of Mr.

Gautam’s arrestattract Charter scrutiny as the agents of the police. This is a fair concession given the degree of control exercised by YRP over thesituation inside the RIDE truck on the night of Mr. Gautam’s arrest. I have no difficulty whatsoever in finding that it was the police thathad complete control, and were responsible for conduct, inside the truck at that time. While there is no evidence that YRP placed anyrestrictions on Global TV it was a YRP operation inside their facilities. It fell to YRP to agree to the attendance of Global and set theterms.

This extended to the manner in which Global News recorded the events and what they did with that video footage. The legalconsequences fall at the feet of the police. Applying the ‘but for’ test (see R. v. Broyles [1992] 3 S.C.R. 595 at par. 31), were it not forthe police action in inviting Global News into the RIDE truck the TV camera would not have been there. The s. 10(

b) Issue [27] Exercising the right to counsel in private is a fundamental component of s. 10(

b) under the Charter, see R. v. Playford (1987), (ON CA), 24 O.A.C. 161 (C.A.). While an actual lack of privacy is usually sufficient to make out a Charter violation,if the accused believed that he or she could not speak with counsel in private and that belief was reasonably held, a Charter violation willfollow, see R. v. Burley (2004), (ON CA), 182 O.A.C. 395, R. v. Banks 2009 ONCJ 604. A totality of thecircumstances is required to make the assessment see R. v. Cairns (2004), (ON CA), 182 O.A.C. 181 (C.A.). [28] In this case I accept Mr.

Gautam’s evidence that the Global News cameraman had the TV camera pointed into the DutyCounsel booth from close in while he was on the phone with Duty Counsel. I further accept his evidence that he could not move withinthe booth to avoid the gaze of the camera. I also accept his evidence that because of the TV camera filming the inside of the Duty

Counsel booth, Mr. Gautam did not ask questions of Duty Counsel, although he wanted to. I also accept that he told PCs Nethercott andFlood to have the TV cameraman turn the camera off but Nethercott denied him that request. [29] I find that Mr. Gautam’s right to counsel was violated because the actions of the Global TV cameraman who pointed his TVcamera into the Duty Counsel booth window. This caused Mr. Gautam to reasonably believe that the call was no longer private. As aresult he did not have a private conversation with Duty Counsel. There is a s. 10(

b) breach. The s. 8 Issue – Was the broadcast of the Breath Testing an unreasonable search or seizure? Legal basis for video surveillance of custodial facilities. [30] A search will be lawful if it is authorized by law, if the law itself is reasonable, and the search was conducted in a reasonablemanner, see R. v. Collins (SCC), [1987] 1 S.C.R. 265 at p. 278; R. v. Fearon 2014 SCC 77. Taking these issues in turn,the videotaping of Mr. Gautam while in custody of the RIDE truck was a seizure. Non – consensual video surveillance is a form of seizure see R. v. Wong (1990), (SCC), 1 C.R. (4th) 1 (S.C.C.), R. v.

Duarte (SCC), [1990] 1 S.C.R. 30.The question is whether the accused had a reasonable expectation of privacy when he was being recorded. [31] In submissions I asked the Crown what the lawful authority was for the police to generally videotape detainees within theircustodial facilities. Mr. Linds replied that the common law provided that authority. I agree. Application of the ancillary powersdoctrine involves a two-part test, see R. v. Peterkin, 2015 ONCA 8; Figueras v. Toronto Police Services Board, 2015 ONCA 208:

(1) Does the police conduct in question fall within the general scope of any duty imposed on the officer by statute or common law?

(2) If so, in the circumstances of this case, did the execution of the police conduct in question involve a justifiable use of the powersassociated with the engaged statutory or common law duty? [32] The first part of the test is answered affirmatively insofar as the police have a duty to investigate crime and document theirinvestigations. That duty is spelled out in various parts of the Criminal Code as well as, in Ontario, the Police Services Act RSO 1990 c.P15 s. 42. In R. v.

Gladwin (1997), (ON CA), 101 O.A.C. 116 the Court of Appeal found that there is noconstitutional violation when the police themselves video tape the execution of a search warrant. In Gladwin at par. 15, Finlayson JAsaid, In our opinion the audio/videotape was nothing more than a record of the search and seizure that would be admissible if required to showhow and where the search was conducted. [33] Video tape surveillance of custodial facilities where breath testing occurs is similarly within that scope, particularly where thearrestee is subject to a demand under s. 254(3) of the Criminal Code.

This is implicit in Boswell J.’s judgement in R. v. Mok 2014ONSC 64 (leave to appeal denied 2015 ONCA 608). This case, as with others like Mok where the scope of the video surveillance is indispute, rises or falls on the second part of the ancillary powers test. [34] There are cases which hold that video recording in a private space by a civilian with the permission of the police while thepolice execute a search warrant constitutes an unreasonable search or seizure for Charter purposes see R. v. Derkson 2000 SKQB 355,R. v. West 100 B.C.A.C. 36 (C.A.), R. v. Fan 2017 BCCA 99.

The rational for the Charter violation in these cases is that the videorecording exceeded the authority of the lawful search. [35] In determining whether the video-taping was reasonable an assessment must be made of Mr. Gautam’s reasonable expectationof privacy. The assessment of that privacy interest must be made after considering the totality of the circumstances see R. v. Edwards (SCC), [1996] 1 S.C.R. 128 (S.C.C.), at para. 45; R. v. Tessling, 2005 SCC 67 at par. 19.

Privacy is a “protean”concept, according to Binnie J. see Tessling (supra) at par. 25, which is to say, variable. [36] Therefore, there is some merit to the argument that there is no Charter violation when the police merely capture theirinvestigation electronically. In this case the evidence was that the RIDE truck did not at that time have its own video surveillancesystem. By comparison, it is commonplace and quite helpful to the Court to play videos in criminal cases here in Newmarket whichcapture the goings on in a police station. This extends to the breath testing room.

Ironically, there are cases where the failure to videotape the breath testing is alleged to constitute a Charter violation. See R. v. Mansingani 2012 ONSC 6509; R. v. Piko (2000), 6 M.V.R. (4th) 117 (Ont. S.C.); R. v. Khan (2010), 2010 ONSC 3818 , 97 M.V.R. (5th) 35 (Ont. S.C.). [37] In R. v. Mok (supra), Boswell J. upheld a trial judgement which found that police video surveillance of the toilet areas of a cellin the lock up area is a violation of the arrestee’s rights under s. 8 of the Charter. The Court found that detainees retain an expectation ofprivacy while in custody, albeit a lower one.

On appeal, the trial judge’s imposition of a stay of proceedings was reversed. As BoswellJ. put it at para. 66, What is clear from the jurisprudence is that detainees must, objectively, have a lowered expectation of privacy while in police custody.Nevertheless, it remains reasonable for detainees to expect at least some minimal level of privacy, notwithstanding being taken intocustody, particularly when the presumption of innocence remains in place. [38] Mok has been followed by other

Summary Conviction Appeal Courts in Ontario, see R. v. Noel 2015 ONSC 2140 (GoldsteinJ.) at par. 45; R. v. Deveau 2015 ONSC 3756 (Howden J.) at par. 20; R. v. Griffin 2015 ONSC 927 (Dawson J.) at paras 43 – 44. Thisfollows the Supreme Court of Canada’s finding that an arrestee has a lower expectation of privacy while in custody, and an even lowerone if they are serving a sentence see Weatherall v. Canada (AG) (SCC), [1993] 2 S.C.R. 872 at par. 5, but there is stillan expectation of privacy, see R. v. Stillman (SCC), [1997] 1 S.C.R. 607. [39] In R. v.

Golden 2001 SCC 83 the Court found that one of the hallmarks of a valid strip search was that it was conducted in amore private space in a police station so that others present could not view the arrestee. In Golden the Court affirmed that a police

station has greater privacy than a public space, depending on where the strip search happens and who is present. [40] What can be seen from the Mok line of cases, Stillman and Golden is that in law there are different areas of privacy within apolice station. Arguably, appellate courts can be seen to assess the privacy interest of persons in custody on a situational basis. Thespace in which an arrestee speaks to a lawyer has the highest level of privacy. In that space the state may not intrude. In the toiletfacilities the police may not video tape.

Going on, the police may not seize the cast-off bodily substance samples of an arrestee, seeStillman (supra). Those areas are carved out of the other areas of a police station where the detainee has a lower expectation of privacy. Future cases may well see other areas being carved out of the broader right of the police to surveil the detainee electronically orphysically. [41] In light of the authorities, I have no difficulty in finding that Mr. Gautam had a privacy interest in the breath room area of theRIDE truck.

It may have been lower than other areas of the truck like the duty counsel booth, but it was still existent. Cast against that,what was the state interest in video-taping Mr. Gautam? As Dickson J. said in Hunter v. Southam (SCC), [1984] 2S.C.R. 145 at para 27 – 28, the state must demonstrate that its interest was superior to that of the individual. I find that there was no stateinterest on the facts before me. The video was not retained by the police for purposes of disclosure in this case or for any otheridentifiable reason. Mr.

Linds in submissions candidly admitted that the Global News footage was never provided to the Crown. Indeed, on the evidence before me YRP officers were surprised that the incident was broadcast. It is no answer to this to say thatpublicity around RIDE programs serves a deterrent public interest. That may be true, but it in no way explains video-taping inside theRIDE truck. I therefore have no difficulty in finding that Mr. Gautam’s right to be free from an unreasonable search or seizure wasviolated.

Answering the second part of the ancillary powers test from above, on the facts before me the video taping and broadcast ofMr. Gautam inside the RIDE truck was an unjustifiable use of police powers. Mr. Gautam has established a violation of his rights unders. 8 of the Charter. Admissibility – Section 24(2) [42] I would find that the s. 10(

b) breach, on its own, is very serious. The Crown concedes this. Arrestees have every right to aprivate conversation with a lawyer. This has been known for some time. The police are expected to know what the law is, see R. v.Grant 2009 SCC 32 at par. 133. In this case the Global News cameraman altered Mr. Gautam’s ability to receive legal advice to hisdetriment. It is a matter of the camera altering the event it was looking at. [43] I would also find that the Global News video recording and broadcasting was an equally serious violation of s. 8.

It istherefore an aggravating factor that there are two Charter Breaches which, while connected by the Global News team, are distinct inlaw. What makes the Charter violations particularly serious in this case is that the order to insert Global News into the investigationcame from unknown police personnel higher in rank than Cst. Nethercott. Cst. Nethercott gave very helpful evidence about how nervoushe was when told he had to wear a microphone that evening.

He said that he likes to treat all breath testing subjects as if they are theperson who might be in a position to offer assistance in the future if he is broken down at the side of the road one night. I entirelycommend him for that. When he was told he had to wear a microphone and recognized Mr. Gautam’s dislike for the filming he knewthat his personal framing of professionalism on one hand, and his orders on the other, were coming into conflict. He was visiblyuncomfortable when he gave this portion of his evidence, and I believe it was because he was uncomfortable with what happened thenight of Mr.

Gautam’s arrest. His candour was helpful in determining this issue. [44] What aggravates the seriousness of the Charter violations in this case is that there appears to have been no input from theactual officers on scene about what might happen if a TV news crew were allowed inside the RIDE truck. The presence of Global Newsthat night appears to have been an order ‘from on high’. No witness personally took responsibility in the evidence to explain therationale for Global TV being in the RIDE truck. With this in mind, and notwithstanding Cst.

Nethercott’s evidence, this is not a goodfaith Charter Breach, see Fan (supra) at par. 80 – 81. The first factor in the test very strongly pulls towards exclusion of the evidence. [45] The impact of the violations on Mr. Gautam’s Charter protected interests was significant. Mr. Gautam was constitutionallyentitled to have a candid discussion with Duty Counsel. Because of the Global News camera he didn’t get that. The camera in the RIDEtruck made both Mr. Gautam and Cst. Nethercott nervous. While there is no evidence that the news camera made the breath testsunreliable, I would still find that Mr.

Gautam was entitled to have his investigation completed without the public scrutinizing theprocedure - which is in some measure what happened. If an accused, or his lawyer were to intentionally broadcast a witness statementobtained through the disclosure process, I can think of any number of potential sanctions which might follow. In this case Global Newsdid what an accused could not. The broadcast of the Global News piece caused Mr. Gautam embarrassment at work.

The second factorin the analysis pulls very strongly towards exclusion of the evidence. [46] When the first two factors in the admissibility analysis favour one result the third factor, namely the public interest, is muchless important, see R. v. McGuffie, 2016 ONCA 365. That said, I would make the following findings on the third factor. Society alwayshas an interest in the adjudication of a trial on its merits. The question is, by how much? Rule of law issues come into play here. It isnot open to the police to turn over their RIDE trucks to the media as happened in this case.

I must emphasize that there is no evidence inthe case before me about who issued that order or of any constraints being put on Global News. I believe that the public would assertthat Charter rights must be taken seriously. To admit the evidence in this case would be tantamount to a finding that Charter rightsmatter little, which is unacceptable see McGuffie (supra) at par. 72 – 74. The third factor pulls towards admission, but not by much. TheCrown argued that York Region has a drinking and driving problem. There is too much of it, and people are getting hurt or killed on theroadways because of it.

I completely agree. What is regrettable in this case is that otherwise reliable evidence of blood alcohol contentof a motorist is excluded because York Regional Police saw apparent wisdom in giving Global News access to the RIDE truck. Aneffort to publicize a fairly routine police alcohol driving interdiction program will result in an acquittal. The irony is not lost on me. [47] Balancing all the factors, the breath evidence is excluded. Mr. Gautam is acquitted. Released: August 24, 2017

Signed: Justice David Rose