Jason Tiller Appellant And: Her Majesty the Queen Respondent, 2022 NLSC 10

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Tiller , 2022 NLSC 10 Date : January 21, 2022 Docket : 202103G0089 Between: Jason Tiller Appellant And: Her Majesty the Queen Respondent Before: Justice Trudy L. Button Reasons for Judgment Given Orally On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 1017A00377001 dated the 20th day of April, 2021. Place of Hearing: Grand Falls-Windsor, Newfoundland and Labrador Date of Hearing: December 7, 2021 Date of Oral Judgment: January 21, 2022

Summary: The Appellant appealed two convictions under the Criminal Code : operating a motor vehicle with a blood alcohol level concentration exceeding 80 milligrams of alcohol per 100 milliliters of blood; and operating a motor vehicle while impaired. The Appellant claims that his

section 8, 9 and 10(

b) rights under the Charter were violated, that the breath sample should be excluded from the evidence pursuant to section 24(2) of the Charter , and that his conviction for operating a motor vehicle while impaired should be set aside as the trial

judges reasons were deficient. Held: The Court determined that there was sufficient evidence before the trial judge from which he could conclude that the demand for abreath sample and the implementation of the demand occurred “as soon as practicable” and the trial judge was correct in holding thatthere was no violation of the Appellant’s

section 8 and 9 Charter rights. The Court determined that breath samples were not “obtained ina manner” that violated the Appellant’s

section 10(

b) Charter rights and the trial judge reached the correct conclusion in not excludingthe breath sample under section 24(2) of the Charter. The Crown conceded that the trial judge’s decision in relation to the impaireddriving charge was deficient. The conviction for the impaired operation of a motor vehicle was set aside and the charge was stayed. Appearances: Iain R.W. Hollett Appearing on behalf of the Appellant Tina M. Walsh, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489, 208 O.A.C. 379; R. v.

Myrick(1995), (NL CA), 130 Nfld. & P.E.I.R. 144, 405 A.P.R. 144 (Nfld. C.A.); R. v. Hafermehl, 1993 ABCA 394; R. v.Otto, 2000 CarswellOnt 1864, 46 W.C.B. (2d) 329 (Supt. Ct.); R. v. Pino, 2016 ONCA 389; R. v. Goldhart, (SCC),[1996] 2 S.C.R. 463; R. v. Hamouth, 2021 ONCJ 444; R. v. Kienapple, (SCC), [1975] 1 S.C.R. 729 STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982 being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT Button, J.: INTRODUCTION [1] On April 10, 2021, the Appellant, Jason Tiller, was convicted by a Provincial Court Judge of operating a motor vehicle with ablood-alcohol level concentration exceeding 80 milligrams of alcohol in 100 milliliters of blood contrary to section 253(1)(

b) of theCriminal Code, R.S.C. 1985, c. C-46. A second conviction, impaired operation of a motor vehicle under section 253(1)(

a) of theCriminal Code, was judicially stayed. The Appellant was sentenced to a 12-month driving prohibition and fined $1500. GROUNDS OF APPEAL [2] The grounds of appeal as detailed in the Notice of Appeal include: 1. That the trial judge erred in law when he found that the Appellant’s s. 8 and 9 Charter rights were not breached. 2. That the trial judge erred in law when he did not impose a meaningful remedy under 24(2) of the Charter after finding there was abreach of the Appellant’s 10(

b) rights. BACKGROUND [3] On August 27, 2017, S/Sgt. Kelly Bryan and Cst. Camille Bryan of the Royal Canadian Mounted Police (“RCMP”), whileparked on the side of the Trans-Canada Highway (“highway”) East of Grand Falls-Windsor attending to an unrelated matter, observedthe Appellant’s vehicle proceeding down the wrong ramp to the highway at the Scott Road Overpass. The vehicle traveled in the wronglane on the highway in an Eastbound direction for approximately 250 meters before it moved into the correct lane where the dividedhighway ended.

[ 4 ] At 0124 hrs., the police initiated a traffic stop and the Appellant partially pulled over, leaving a portion of his vehicle still on the highway. [ 5 ] Cst. Bryan approached the vehicle and in speaking with the Appellant through an open window, noted that his eyes were very red and bloodshot. Because she could smell beer on his breath, she asked him if he had been drinking. The Appellant told Cst. Bryan that he had a few drinks, and knew he shouldn’t be driving, but his girlfriend was having a panic attack and he was bringing her to Gander. Cst.

Bryan further noted that the Appellant’s speech was slurred and very slow and deliberate like he was being careful not to slur his words. The Appellant repeated several times that he had to get his girlfriend back to Gander. [ 6 ] Based on the driving evidence, driving in the wrong direction on the highway, and the other indicia of impairment, at 0128 hrs., Cst. Bryan determined that she had reasonable and probable grounds to believe that the Appellant was operating a motor vehicle while impaired by alcohol. Cst.

Bryan told the Appellant that he was being detained for an impaired driving investigation. [ 7 ] The Appellant’s Factum summarizes the timeline following the traffic stop being initiated as follows: 0124 hrs.: traffic stop initiated; 0140 hrs.: Appellant was searched by S/Sgt. Bryan and placed in the back of the police car. After getting into the police car, Cst. Bryan read the Appellant his Charter rights and Police caution; the Appellant indicated he wanted to speak to counsel; Cst.

Bryan made the breath demand for samples into the AI [Approved Instrument]; 0154 hrs.: the Appellant got out of the police vehicle to urinate while waiting for tow truck to arrive; 0157.: depart scene enroute to RCMP detachment after tow truck arrived; 0201 hrs.: arrived at the detachment; 0206-0217 hrs.: Appellant spoke to duty counsel; 0217 hrs.: the Appellant is turned over to the Qualified Technician. [ 8 ] The Appellant provided two breath samples resulting in readings of 170 and 180 milligrams of alcohol in 100 milliliters of blood.

He was charged and released. [ 9 ] The Appellant filed a pre-trial application under the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“ Charter ”) seeking the exclusion of the results of the breath samples. The Appellant alleged that his rights under sections 8 , 9 and 10(

b) of the Charter were violated by the delay in making the breath demand, the delay in his providing the breath sample caused by the police waiting for the tow truck to arrive before proceeding to the RCMP detachment, and the police questioning him after he had asserted his right to counsel. [ 10 ] In addressing the Charter application, the Crown conceded that the Appellant’s right to counsel was violated when the police continued questioning him after he had asserted his right to counsel, but disagreed with the remedy sought by the Appellant. [ 11 ] The trial judge dismissed the Appellant’s

section 8 and

section 9 Charter arguments with respect to the delayed breath demand and delay in implementing the breath samples. After determining that the Appellant’s

section 10(

b) Charter rights were violated, the trial judge excluded the statements made by the Appellant to Cst. Bryan after he had asserted his right to counsel, but refused to exclude the results of the breath samples. ISSUES [ 12 ] The following are the issues for determination: 1. Did the trial judge err in determining that the Appellant’s rights under sections 8 and 9 of the Charter were not violated? 2. Did the trial judge err in law in his section 24(2) Charter analysis? 3. Did the trial judge err in law in convicting the Appellant of impaired driving under section 253(1) (

a) of the Criminal Code ? THE LAW AND ANALYSIS Did the trial judge err in determining that the Appellant’s rights under sections 8 and 9 of the Charter were not violated? [ 13 ] The relevant statutory provision that was in effect at the time the offences occurred was section 254(3) (a)(

i) of the Criminal

Code which provides: If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a (proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood, or … [14] The Appellant acknowledges that the sufficiency of the grounds to make a demand for a breath sample is not an issue. Atissue, is whether the demand for a breath sample was made “as soon as practicable”, and whether the Appellant was afforded theopportunity to provide breath samples “as soon as practicable”, as required under section 254(3) of the Criminal Code. [15] The Ontario Court of Appeal in R. v.

Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489, 208 O.A.C.379 considered the meaning of “as soon as practicable”: 12 That leaves the question that is at the heart of this appeal — the meaning of as soon as practicable. Decisions of this and othercourts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under thecircumstances. See R. v. Phillips (1988), (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.), at 156; R. v. Ashby (1980), (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.), at 351; and R. v. Mudry (1979), 1979 ABCA 286 , 50 C.C.C. (2d) 518(Alta. C.A.), at 522.

There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the testswere taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), (ON CA), 56C.C.C. (3d) 548 (Ont. C.A.), at 552; R. v. Carter (1981), (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.), at 453; R. v. Vander Veen (1988), 1988 ABCA 277 , 44 C.C.C. (3d) 38 (Alta. C.A.), at 47; R. v. Clarke, [1991] O.J. No. 3065 (Ont. C.A.); andR. v. Seed, (ON CA), [1998] O.J. No. 4362 (Ont.

C.A.). 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soonas practicable" requirement must be applied with reason.

In particular, while the Crown is obligated to demonstrate that — in all thecircumstances — the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C. C.A.), at 61-3, and R. v.

Seed at para. 7. 16 To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, shouldnot be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days whenthe breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and valueand about the science underlying the presumption of identity.

These provisions must be interpreted reasonably in a manner that isconsistent with Parliament's purpose in facilitating the use of this reliable evidence [16] In R. v. Myrick (1995), (NL CA), 130 Nfld. & P.E.I.R. 144, 405 A.P.R. 144 (Nfld. C.A.), the Court ofAppeal determined that whether samples were taken “as soon as practicable” is a question of law. [17] The Appellant submits that neither the demand for a breath sample nor the implementation of the demand occurred as soon aspracticable, resulting in a violation of his rights under

section 8 of the Charter, the right to be secure against unreasonable search andseizure, and

section 9 of the Charter, the right to not be arbitrarily detained or imprisoned. [18] The Appellant submits that there are two time periods which must be examined to determine whether the “as soon aspracticable” requirement under section 254(3) of the Criminal Code is met. The first time period is the time from forming the grounds tomake the demand for a breath sample to the time the demand is made. The second time period is the time from forming the grounds tomake the demand for a breath sample to the time of the first sample. The Demand for a Breath Sample [19] Cst.

Bryan testified that she formulated her grounds at 0128 hrs. at which time she asked the Appellant to get out of his vehicleand escorted him to the police car. The Appellant was searched by S/Sgt. Bryan at 0140 hrs. and then placed in the back of the policecar. Cst. Bryan read the Appellant his Charter rights, police caution and breath demand after he got into the police car. [20] It is the Appellant’s position that there is at least a 12-minute unexplained gap in the timeline from the time Cst. Bryanformulated her grounds until the time she read him the breath demand.

This 12-minute unexplained gap, the Appellant submits takes thereading of the demand outside of what is as soon as practicable and is not reasonable. [21] In the context of the 12-minute unexplained gap, the Appellant submits that the reasonableness of conduct of the police isproblematic from two perspectives. First, that S/Sgt. Bryan arranging for a tow truck and attending to the Appellant’s passenger were

not so important as to take him away from the more pressing need to have a male officer search the Appellant before placing him in the back of the police car. Second, that Cst. Bryan could have provided the Appellant his rights, caution and read him the breath demand prior to him exiting his vehicle or prior to the search. [ 22 ] With respect to the breath demand, section 254(3) of the Criminal Code provides authority for a police officer to make a demand “as soon as practicable”.

While the court in Vanderbruggen considered the meaning of “as soon as practicable” in the context of whether the breath samples were taken as soon as practicable, the principles articulated are equally applicable to making the demand. In the context of making the demand, there is no requirement that the demand be made as soon as possible. The “touchstone” for determining whether the demand was made as soon as practicable is whether the police acted reasonably.

The Crown must demonstrate that, in the circumstances, the breath demand was made within a reasonably prompt time, there is no requirement on the Crown to provide a detailed explanation of what occurred every minute leading up to the demand. [ 23 ] In concluding its decision, the court in Vanderbruggen stated that the provisions must be interpreted reasonably, in a manner consistent with Parliament’s purpose in facilitating use of reliable evidence.

In referencing the underlying purpose of the provisions, the court stated that they are designed to expedite trials and aid in the proof of the suspect’s blood level and should not be interpreted so as to require an exact accounting of every moment in the chronology. [ 24 ] The timeline regarding Cst. Bryan forming the grounds to make the demand for a breath sample and making the demand, while raised in the Appellant’s Charter application, was not specifically argued by the Appellant in his submissions before the trial judge.

However, the decision of the trial judge demonstrates that he turned his mind to the timeline and the events that unfolded from the time Cst. Bryan formulated grounds to make the demand, to the time she provided the Appellant with the breath demand: The totality of the evidence reveals that the police were working on a busy night due to the local concert. The interactions between the police once Constable Bryan had formed her grounds to arrest to having the applicant in the police care to read her rights are acceptable.

The police were dealing with two individuals, the applicant and his wife, also—who also appeared to be intoxicated and was dealing with a panic attack. The male officer, Staff Sergeant Brien, completed the search of the applicant before placing him into the police cruiser so that his Charter rights, police caution and breath demand could all be read to him. [ 25 ] It is my view that the Crown adduced sufficient evidence for the trial judge to conclude that Cst. Bryan made the breath demand as soon as practicable in all the circumstances.

In the circumstances of this case, the evidence adduced demonstrates that in addition to dealing with the Appellant, the police had to contend with other issues flowing from the traffic stop, including: dealing with the Appellant’s passenger who appeared to be intoxicated, emotionally upset and was described by the Appellant to Cst. Bryan as having a panic attack; and having to call a tow truck because the Appellant’s vehicle was partially on the highway, impeding traffic which raised public safety concerns.

In the context of the police dealing with these issues, the time period from when the police formed grounds to when the Appellant was read the breath demand was reasonably prompt in all the circumstances. The Breath Sample [ 26 ] With regard to the second time period of concern raised by the Appellant, the time from the formulation of grounds to the time of the first breath sample, the Appellant acknowledges that matters proceeded reasonably promptly after he arrived at the RCMP detachment. At issue for the Appellant is the delay in getting him to the detachment.

The Appellant submits that this delay was excessive, resulting in an overall time that was not reasonably prompt in all the circumstances. [ 27 ] The trial judge accepted the police officers’ decision to remain at the scene and wait for a tow truck for safety reasons. [ 28 ] At issue for the Appellant, is the fact that the police did not take steps to establish that no other officer was available to attend at the scene to either maintain the scene or transport the Appellant to the detachment to facilitate an earlier breath sample.

The Appellant raises a number of issues with regard to the availability of other officers to assist at the scene. [ 29 ] The Appellant submits that trial judge misapprehended the evidence of S/Sgt. Bryan by stating in his decision that “there were no other officers to assist at the scene on the night.” The Appellant submits that S/Sgt. Bryan did not testify that there were no other officers available to assist. To the contrary, the Appellant submits that S/Sgt. Bryan testified that he did not even check. [ 30 ] The evidence of S/Sgt. Bryan on direct examination relevant to this issue provides: Q.

And could you have left the scene before the tow truck arrived? A. No, I couldn’t have left the scene. We – we both arrived in the police car at the same time, the other officers were engaged down, like I say, that was the night of the Blake Shelton concert; there was lots of stuff on the go, so I – we couldn’t call another vehicle to take over our scene, so we held it, and it was for the – at the time, really, it was for the safety the public; the vehicle was on the roadway, it was a dark-coloured vehicle.

That portion of the highway is not lit and I didn’t want to see anyone hit it. [ 31 ] The evidence of S/Sgt. Bryan on cross examination relevant to this issue provides: Q. Did you make any attempts to contact any of the other officers working that night, I believe there was 14 officers total working that night, to see if someone else could come to the scene to assist you? A. No.

Q. So you just assumed that no one would help you? A. That’s correct. [32] To accept the Appellant’s submissions would essentially require consideration of S/Sgt. Bryan’s evidence on cross examinationin isolation of the contextual backdrop provided by S/Sgt. Bryan on direct examination. In my view, the Crown adduced sufficientevidence before the trial judge from which he could conclude that no other officers were available to assist at the scene. The evidence ofS/Sgt.

Bryan on direct examination was that the other officers were engaged, as there was a Blake Shelton concert, there was a lothappening so they couldn’t call another vehicle to take over the scene. Accordingly, I do not find that the trial judge misapprehended theevidence of S/Sgt. Bryan. [33] The Appellant relies on the evidence of Cst. Bryan as support for his position regarding the availability of other officers fromtwo perspectives. First, the Appellant submits that based on the evidence of Cst.

Bryan on cross examination, it was possible for anotherofficer to have come to the scene to transport the Appellant to the RCMP detachment or take over the scene. The exchange with Cst.Bryan on cross examination is as follows: Q. Was it possible for somebody else to come and wait for the tow truck while you took Mr. Tiller to the police station? A. I don’t know. I don’t know what the call volume was at that time. I don’t recall what else was happening. Q. And again, could you have gotten another officer to come give his, I guess, wife a ride to the police station? A.

Again, I don’t know what was happening at that moment with the other officers. I don’t recall what calls were happening at that time,if there would have been anybody available. It’s possible, I don’t know. [34] Second, the Appellant submits that Cst. Bryan’s evidence demonstrates that had police bothered to check, officers wereavailable to attend to duties at the scene or transport the Appellant to the detachment. The Appellant’s submission is based on theevidence of Cst. Bryan that after the Appellant finished his conversation with counsel, she turned him over to Cst.

Milley who was theQualified Technician that night, who took him to the washroom. Cst. Bryan then passed the Appellant over to Cst. Learning, who waspartnered with Cst. Milley, so Cst. Learning could conduct the observation period. From this, the Appellant extrapolates that Cst.Learning would have been available to come to the scene to either transport Cst. Bryan and the Appellant back to the detachment or towait at the scene with S/Sgt.

Bryan. [35] The Appellant submits that based on this evidence, the trial judge erred in law in concluding that the samples were taken assoon as practicable. [36] The Crown submits that the issue in this case is not whether the police failed to take a different course of action that may ormay not have had a faster result, but whether the actions they took were reasonable, having regard to all the circumstances. I agree. [37] The Crown relies on the Alberta Court of Appeal decision in R. v.

Hafermehl, 1993 ABCA 394 as support for thereasonableness of the police officers’ decision in this case to remain at the scene and wait for a tow truck for safety reasons. InHafermehl, there was a delay in transporting the Appellant to the location where a breath test would be administered. The Appellantargued that the police have no duty to secure a motor vehicle and that the breath tests were not taken as soon as practicable.

Indismissing the appeal, the court stated: 2 Where a police officer reasonably believes that a vehicle poses a danger to the travelling public or reasonably believes that there isa risk to the security of the vehicle or its contents, a reasonable delay in transporting an accused to a location where a breath test might bead ministered in order to avoid these risk is, in our view, justified. To the extent that Shoepp and other like cases are inconsistent withthis principle, they are overruled. This approach is entirely consistent with the test laid down by this court in R. v.

Mudry (1979), 1979ABCA 286 , 50 C.C.C. (2d) 518 (Alta. C.A.) and reaffirmed again in R. v. Van Der Veen (1988), 1988 ABCA 277 , 44C.C.C. (3d) 38. That test is whether the breath tests were administered "within a reasonably prompt time under the circumstances"keeping in mind both subjective and objective factors. We agree with the

summary conviction appeal judge that in this case, the breathtest was administered within a reasonably prompt time under all the circumstances. We dismiss the appeal. [38] The reasoning of the Court of Appeal in Hafermehl was accepted by the Ontario Superior Court of Justice in R. v. Otto, 2000CarswellOnt 1864, 46 W.C.B. (2d) 329 (Supt. Ct.). [39] The position of the Crown regarding the evidence adduced before the trial judge is twofold. First, there is no evidence that thepolice taking steps to have another officer attend at the scene would have been faster than waiting for a tow truck.

Second, there is noevidence as to where Cst. Learning was or what he was doing prior to the arrival of Cst. Bryan and S/Sgt. Bryan at the detachment. TheCrown submits that the Appellant made an assumption that because Cst. Milley and Cst. Learning were at the detachment when theofficers arrived with the Appellant, Cst. Learning would have been available to come to the scene. [40] The jurisdiction of an appeal judge is to determine whether the evidence adduced at trial supports the decision of the trial

judge. In this case, there was an approximate delay of one hour and 30 minutes from the time the police formulated grounds to the timethe first breath sample was taken. The evidence provides that police formulated grounds to make the demand at 0128 hrs., but did notdepart from the scene until 0157 hrs. The police were delayed in leaving the scene because they determined that the Appellant’s vehicleimpeded highway traffic and posed public safety concerns. Therefore, they decided to wait until a tow truck arrived to move the vehiclebefore transporting the Appellant to the RCMP detachment. The evidence of S/Sgt.

Bryan was that the other officers were engaged,there was a Blake Shelton concert and there was a lot happening so they couldn’t call another vehicle to take over the scene. The policearrived at the detachment with the Appellant at 0201 hrs., and the Appellant spoke with duty counsel from 0206-0217 hrs., at which timehe was turned over to a Qualified Technician.

The Appellant’s first breath sample was taken at 0247 hrs. [41] Having regard to the foregoing, and in accordance with the principles articulated by the court in Vanderbruggen, I find thatthere was sufficient evidence before the trial judge, from which he could conclude that the police acted reasonably and that the breathsample was taken as soon as practicable in all the circumstances. [42] Having determined that the demand for a breath sample and the implementation of the demand occurred as soon as practicable,I find that the trial judge was correct in holding that there was no violation of the Appellant’s

section 8 and

section 9 Charter rights. Did the trial judge err in law in his section 24(2) Charter analysis? [43] The trial judge, having determined that the Appellant’s

section 10(

b) Charter rights were breached when Cst. Bryan questionedhim while waiting for the tow truck, excluded the statements the Appellant made to Cst. Bryan in response to her questions, but did notexclude the breath samples. [44]

Section 10(

b) of the Charter provides everyone with the right on arrest or detention to retain and instruct counsel without delayand to be informed of that right. [45] At issue in this case is the remedy.

Section 24(2) of the Charter sets out the remedy when evidence obtained in violation of aperson’s Charter rights must be excluded: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute. [46] To obtain an order excluding evidence, an accused must satisfy the two requirements of section 24(2) of the Charter: that theevidence sought to be excluded was obtained in a manner that infringed a Charter right; and the admission of the evidence would bringthe administration of justice into disrepute: R. v.

Pino, 2016 ONCA 389, at paras. 35-36. Accordingly, determining if the evidence wasobtained in a manner that violates a Charter right is a threshold issue that must be satisfied before the Court can consider whether theevidence should be excluded under section 24(2). [47] The Appellant submits that the trial judge erred by separating the

section 10(

b) Charter violation, the Appellant’s right tocounsel, from the breath sample. The essence of the Appellant’s argument is that the trial judge erred by over simplifying the meaningof the “obtained in a manner” requirement under section 24(2). The Appellant did not put the threshold issue, nor any case law withrespect to the threshold issue, of whether the breath sample was “obtained in a manner” that infringed the Appellant’s

section 10(b)Charter rights before the trial judge in his Charter application. [48] The Appellant further submits that the trial judge failed to apply the relevant principles articulated by Laskin, J.A., in Pino,regarding the considerations that should guide a court’s approach to the “obtained in a manner” requirement in section 24(2): • The approach should be generous, consistent with the purpose of s. 24(2) • The court should consider the entire “chain of events” between the accused and the police • The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct • The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these threeconnections • But the connection cannot be either too tenuous or too remote. [49] The essence of the Appellant’s position is that in accordance with the principles articulated by the Supreme Court of Canada inR. v.

Goldhart, (SCC), [1996] 2 S.C.R. 463 the temporal connection between the Charter breach and the breath sampleis so strong that the Charter breach is part of a single transaction rendering of little importance a weak or non-existent causal connection.The Appellant submits that the denial of the right to counsel is only possible because he was detained as a result of the demand for breathsamples. The Appellant argues that the violation of the right to counsel and the delays in making and implementing the breath demandand the resulting samples were all part of the same transaction, the same chain of events.

As a result, the Appellant submits the trialjudge erred in holding that the denial of the right to counsel was not relevant to the taking of the breath sample.

[50] The Crown submits that the trial judge essentially found that there was no causal connection between the breach of theAppellant’s Charter rights and obtaining the breath samples. I agree. However, the Crown did not make any submissions with regard tothe factual findings and analysis of the trial judge in the context of the temporal connection argued by the Appellant. Instead, the Crownrelied on R. v. Hamouth, 2021 ONCJ 444 as support for the decision of the trial judge, to exclude the breath sample.

The court inHamouth determined that while there was no casual connection, there was a temporal and contextual connection that was not too remotein the sense that the breaches and the discovery of the evidence were close in time and part of the same transaction to meet the “obtainedin a manner” requirement in section 24(2).

Notwithstanding the temporal and contextual connection, the court, excluded the evidence. [51] In my view, the analysis engaged by the trial judge in determining that section 24(2) could not justify preventing the breathsamples from being entered into evidence, demonstrates that he considered the entire chain of events and the relationship between theCharter breach and the breath sample, including: the events from the time Cst. Bryan formed grounds to make the breath demand to thetaking of the breath sample; that the delay in waiting for the tow truck and the questioning did not impact the fact that Cst.

Bryan hadalready formulated her grounds to make a breath demand; and the fact that the Appellant was able to speak with legal counsel prior toproviding a breath sample. While the trial judge did not reference the legal test regarding the “obtained in a manner”, requirement unders. 24(2), and indeed, no test was put to him by the Appellant, his analysis demonstrates that that he turned his mind to the guiding legalprinciples. Implicit in the trial judge’s analysis and his separation of the statements the Appellant made to Cst.

Bryan from the breathsamples, is that the breath sample was not sufficiently connected to the

section 10(

b) Charter breach to warrant exclusion under section24(2) because the Appellant had the benefit of speaking with legal counsel prior to giving the breath sample. [52] In considering the guidance provided by Laskin, J.A., in Pino, following his extrapolation of the principles articulated in thecase law, any assessment of the “obtained in a manner” requirement, must be generous and in keeping with the purpose of section 24(2).

It requires a case by case analysis of the facts, having regard the entire chain of events between the accused and police to determinewhether the evidence and the Charter breach are part of the same transaction or course of conduct.

The assessment must recognize thatany causal, temporal or contextual connection must not be too remote or tenuous. [53] With regard to the temporal connection argued by the Appellant, the decision of Sopinka, J., at para. 40, in Goldhart, providesguidance: Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationshipbetween the Charter breach and the impugned evidence, causation was not entirely discarded. Accordingly, while a temporal link willoften suffice, it is not always determinative.

It will not be determinative if the connection between the securing of the evidence and thebreach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporalconnection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarily sufficient. Inobedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for thecourt to consider the strength of the causal relationship.

If both the temporal connection and the causal connection are tenuous, the courtmay very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the otherhand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causalconnection that is weak or even absent will be of no importance. Once the principles of law are defined, the strength of the connectionbetween the evidence obtained and the Charter breach is a question of fact.

Accordingly, the applicability of s. 24(2) will be decided on acase-by-case basis as suggested by Dickson C.J. in Strachan. [54] Significant in the Sopinka, J.’s analysis, is the need to examine the entire relationship between the Charter breach and theimpugned evidence. Sopinka, J. further recognized that the concept of remoteness applies not only to the temporal connection, but to thecasual connection as well.

As a result, the mere presence of a temporal link is not necessarily sufficient. [55] I do not agree with the submissions of the Appellant that the temporal connection in this case is so strong that the Charterbreach is an integral part of a single transaction, rendering a weak or absent casual connection of little importance. The Appellant’sargument would be sustainable had it not been for the fact that he had the benefit of speaking with legal counsel prior to providing abreath sample and the fact that Cst.

Bryan had provided a breath demand prior to the Charter breach. [56] In my view, the temporal link between the breach of the Appellant’s Charter rights and the breath sample was weakened whenthe Appellant had the opportunity to speak with legal counsel, such that the Charter breach could no longer be considered an integralpart of a single transaction. Further, in the context of the Appellant having had the opportunity to speak with legal counsel prior toproviding the breath sample, and the fact that Cst.

Bryan had made the breath demand prior to the Charter breach, I do not find that theabsence of any casual connection is of little importance. [57] In my view, when the entire chain of events with respect to the interaction between the police and the Appellant is considered,the breath sample was not obtained in a manner that breached the Appellant’s Charter rights and the trial judge reached the correctconclusion in not excluding the breath sample. [58] Having determined that the Appellant has not met the threshold test of proving that the breath sample was obtained in a mannerthat breached his Charter rights, it is not necessary for me to consider the second requirement under section 24(2), whether admitting thebreath sample would bring the administration of justice into disrepute.

Did the trial judge err in law in convicting the Appellant of impaired driving under section 253(1)(

a) of the Criminal Code? [59] The Appellant submits that the trial judge erred in convicting him by failing to provide any analysis with respect to the section253(1)(

a) charge. The Appellant further submits that pursuant to the principle annunciated by the Supreme Court of Canada in R. v.Kienapple, (SCC), [1975] 1 S.C.R. 729 convictions are generally only entered on one of the two charges. [60] The Crown concedes that the trial judges reasoning with respect to the finding of impaired operation of a motor vehiclepursuant to section 253(1)(

a) was deficient and cannot be upheld. [61] The trial judge in his reasons referenced his detailed decision on the Charter application, but in entering a conviction with

respect to section 253(1)(a), provided no analysis of the elements of the offence. I find that the reasoning of the trial judge with respect to section 253(1)(

a) is deficient and cannot stand. [ 62 ] Having dismissed the Appellant’s appeal with respect to the section 253(1) (

b) charge, it is my determination that the proper remedy with regard to the section 253(1) (

a) charge, is to allow the appeal, set aside the conviction and the stay issued by the trial judge, and stay the section 253(1) (

a) charge. Disposition For the foregoing reasons, I have determined: 1. The Appeal with respect to sections 8 , 9 and 24(2) of the Charter is dismissed and the conviction under section 253(1) (

b) of the Criminal Code stands; and 2. The Appeal with respect to section 253(1) (

a) of the Criminal Code is allowed. The conviction and stay issued by the trial judge is set aside and the charge under section 253(1) (

a) is stayed . _____________________________ Trudy L. Button Justice