R. v. Harper, 2011 NSPC 9

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Harper, 2011 NSPC 9 Date: 20110302 Docket: 2107269, 2107270 Registry: Kentville Between: Her Majesty the Queen v. Paul Graham Harper Judge: The Honourable Judge Alan T. Tufts Heard: January 19, 2011, in Kentville, Nova Scotia Charge: s. 253(1)(

b) CC s. 253(1)(

a) CC ` Charter Voir Dire - Decision s. 8, 9, 10(a) & (

b) s. 24 Counsel: William Watts, for the Crown Curtis Palmer, for the defence By the Court : INTRODUCTION [ 1 ] The defendant is charged under s. 253(1) (

a) and (

b) of the Criminal Code . The defendant argues that during the initial stop by the police of his ATV and the subsequent demand for samples of his breath for the approved screening device and Datamaster, his ss.

8, 9, 10(

a) and (

b) Charter rights were violated. [ 2 ] Particularly, he alleges that the initial stop was arbitrary because it was unrelated to any motor vehicle-related reason nor was the stop related to the investigation which the police were undertaking at the time. He alleges he was never advised of the reason for the stop nor given his s. 10(

b) Charter rights. Further, the defendant argues that when he was detained to provide breath samples for the approved screening device the police were obliged to give him his s. 10(

b) rights. He argues that the rationale for the decisions in R. v. Thomson [1] and R. v. Grant [2] do not apply where the vehicle stop is an off-highway vehicle situation. [ 3 ] Finally, the defendant says that the police had no reasonable and probable grounds to give the breath demand because the approved screening device was not described properly as an approved screening device pursuant to s. 254 of the Criminal Code and consequently, the defendant argues, the fail result on the screening device cannot constitute reasonable and probable grounds that his blood alcohol level was above the legal limit.

Therefore, the defendant argues, there was no reasonable and probable grounds to give the breath demand and the resultant breath test was a violation of the defendant’s s. 8 Charter rights against unreasonable search and seizure. [ 4 ] For all of the above reasons the defendant argues that the breath test results should be excluded from the evidence in this proceeding pursuant to s. 24(2) of the Charter . [ 5 ] I have concluded, for the reasons which follow, that the defendant’s application should be denied.

BACKGROUND FACTS [ 6 ] The police were called to investigate stolen or missing items by a homeowner in the Port Williams area. When the police arrived they met the complainant in his driveway. It was around midnight. It was a rural area. [ 7 ] This gentleman’s property included an adjacent apple orchard. While talking to the complainant the police officer noticed the light from an all-terrain vehicle (ATV) coming down the path between the rows of the apple trees in the orchard. [ 8 ] The officer called out to the ATV driver (the defendant) to stop. He called, “Police. Police” and said “hello” to the driver.

He admitted in cross-examination that he had no reason to suspect this person to be connected in any way to the complaint he was investigating. He did explain that he felt he was authorized to stop the vehicle because the driver was “trespassing at night”. He also acknowledged that he did not stop the driver for any reasons related to ATV safety; that is, a Ladouceur [3] or Orbanski [4] stop. [ 9 ] When the officer engaged the driver he noted an odour of alcohol. He formed the opinion that the driver had alcohol in his body and consequently gave him an ASD demand. He described the device as an “Alcotest 7410".

He said it was an approved device. He did not use the suffix “PA3" or “GLC” which are two of the approved screening devices designated in s. 254(1) of the Criminal Code . I will return to this in more detail below. [ 10 ] The defendant registered a fail on the screening device. A breath demand followed. The defendant subsequently provided two breath samples for the Datamaster. It is those test sample results the defendant applies to have excluded from evidence in this proceeding.

WAS THE INITIAL STOP AN ARBITRARY DETENTION AND DID IT VIOLATE THE DEFENDANT’S S. 9 RIGHTS? [ 11 ] There are two issues which arise here. First, was the stop a detention? If it was a detention, was it arbitrary? I will deal with the s. 10 issue later.

Was there a detention? [ 12 ] It is not necessary for me to review in detail the past jurisprudence regarding this issue. In 2009 the Supreme Court of Canada in R. v. Grant [5] and R. v. Suberu [6] reviewed and clarified the law in this area. The court took a purposive approach in defining “detention” for s. 9 and s. 10 purposes. [ 13 ] The court confirms, as it did in R. v.

Mann [7] , that not all interactions by police with the public amount to a detention, even where a person is physically delayed or questioned. [ 14 ] Detention for s. 9 and s. 10 purposes refers to a suspension of a person’s liberty interest by a significant physical or psychological restraint. The focus is on whether there is a legal obligation to comply with police direction or whether a reasonable person in the circumstances concludes that he or she had no choice but to comply. The test is an objective one. The claimant has the burden to establish this on a balance of probabilities.

The claimant is not required to testify, however support for this contention must be supported by the evidence. The individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perception that “no choice” existed–see Grant , para. 32. [ 15 ] In this case the defendant did not testify on the Charter voir dire . There is no evidence as to his own perceptions as to whether he was restrained. The police did not have any presence, it appears, other than the one officer who was on foot. There were no police lights or barriers.

The officer indicated at one point he said “Hello”. However, the officer did call out “Police, police” and directed or asked the defendant to stop and turn off his ATV. [ 16 ] I recognize that this is a close case. However, on balance, in my opinion, objectively, a reasonable person in the circumstances of the defendant would conclude when hearing a police officer call out “Police, police” that there was “no choice” but to stop. I agree with the defendant that he was detained.

Was the detention arbitrary? [ 17 ] This is partly answered by addressing whether the police had the legal authority to stop the defendant in these circumstances. Much of counsel’s submissions were directed to this issue. The defendant relied on R. v. Chaisson [8] , R. v. Cordeiro [9] , R. v. Sergalis [10] and R. v. Smith [11] . All of these cases refer to either R. v. Mann [12] , or R. v. Clayton [13] , which forms the jurisprudential basis for this issue. Both of these cases recognize that there is a common law authority for the police to detain individuals if they have reasonable grounds.

The authority must be exercised necessarily in furtherance of police duties to preserve the peace, to prevent crime and protect life and property– see R. v. Clayton [14] . In Mann the Supreme Court of Canada said that detention is authorized if there are reasonable grounds in the circumstances to suspect the individual is connected to a particular crime and his detention is necessary on an objective view of the circumstances.

In Ladouceur [15] and Orbanski [16] , the Supreme Court of Canada found that the police are entitled to make random motor vehicle stops to check for possible motor vehicle violations, motor vehicle safety, and detect for impaired drivers. No individualized suspicion was necessary provided the police intentions were in those directions. [ 18 ]

Section 17 of the Off-highway Vehicle Act, R.S., c. 323, s. 1 provides as follows: A person shall stop an off-highway vehicle on the direction of a police officer. [ 19 ] This appears to be a generalized stop provision similar to those referred to in R. v. Ladouceur [17] and R. v. Orbanski [18] and which, by implication, applies in Nova Scotia–as explained in R. v. Upshaw [19] . [ 20 ] The police officer here never referred to this authority and while it is not necessary he do so specifically, it is clear he was not

relying on this, if he was aware of this provision. The Crown never argued this provision and given my conclusions on the s. 24(2) issue, it is not necessary to address this further. [ 21 ] Here, however, the police acted in my view for no reason. The officer was not stopping the defendant for any motor vehicle or ATV safety-related reason or to detect regulatory violations or for the detection of impaired driving. [ 22 ] This was not an investigate stop related to any crime. His suggestion that he suspected the driver was, “trespassing at night” was without merit.

First of all, all the circumstances he described do not form any basis, at all, for concluding the defendant may have been prowling or loitering near a dwelling house, which is the offending conduct addressed in s. 177 of the Criminal Code , the so-called trespassing at night provision. [ 23 ] It was clear from his testimony that this was simply a rationale he later concluded which may allow him to stop a vehicle in these circumstances–at night, in the orchard of the complainant. The detention was without legal authority. The officer had no reason to stop the ATV. The detention was arbitrary.

In my opinion it constitutes a violation of the defendant’s s. 9 Charter right.

SECTION 10(

a) AND (

b) RIGHTS [ 24 ] For the same reason the defendant’s s. 10(

a) and (

b) rights were also violated by the initial stop. This detention was not a justified limit on the defendant’s s. 10 rights. The defendant was not told why he was stopped and detained nor given his s. 10(

b) rights immediately, which the police were obliged to do– see R. v. Suberu [20] . DO THE PRINCIPLES OF R. v. THOMSON AND GRANT APPLY? [ 25 ] The defendant argues that because this was not a motor vehicle stop on a highway that s. 254(2) of the Criminal Code , the law authorizing the police to demand forthwith a breath sample for ASD testing upon suspicion of alcohol in the body of the person who had care or control of a motor vehicle, is not a justified limit on a person’s s. 10(

a) or (

b) rights. [ 26 ] The defendant argues that the rationale for this justification set out in Thomson and Grant does not apply here because the circumstances do not include a highway motor vehicle. [ 27 ] With respect, I cannot accept this argument. In R. v. Thomson [21] , the Supreme Court of Canada accepted that a demand under s. 254(2) of the Criminal Code resulted in the suspect being detained within s. 10 (b). The police would then be obliged to provide the detainee his or her s. 10 (

b) rights to counsel. However, the court held that, by necessary implication from its wording, s. 254 was a prescribed limit–by law–of the s. 10(

b) rights. This was because of the use of the words, “forthwith” and at that time the word, “roadside”. This necessarily meant that the right to counsel under s. 10(

b) was limited because the test was required to be performed forthwith and at the roadside. The court also found that the limit was justified pursuant to s. 1 of the Charter , see para. 21 of Thomson , where the court relied on ten specific reasons, all related to the perils of motor vehicle accidents and alcohol consumption and the importance of deterring this conduct through the strong possibility of detection. Roadside breath testing is an important part of this detection process. [ 28 ] In 1991 in R. v. Grant [22] , the Supreme Court of Canada again considered s. 254 of the Criminal Code .

This time the focus was on whether the demand was forthwith and whether the time frames fell within the ambit of what is now s. 254(2) of the Criminal Code . However, in this judgment Justice Lamer does indicate that just because the word “roadside” was removed from the

section the key word is still “forthwith”. While it was not necessary to deal specifically with that issue, in my opinion, the Supreme Court of Canada appears to endorse the previous decision it made in R. v. Thomson [23] . [ 29 ] Does the Thomson rationale apply to an off-highway vehicle situation? In my opinion it does. The same concerns over safety

and harm associated with impaired operation of motor vehicles on highways apply, in my view, to off-highway motor vehicle operation. While the extent of the harm may not be as great, in my opinion, the justification is sufficient. Of course, s. 254(2) applies equally to off- highway vehicles as it does to highway vehicle operation or care and control.

ATVs are subject to regulatory control–see Off-highway Vehicle Act , which requires licensing, insurance in some instances, and addresses safety issues–all evidence of the concerns associated with this type of motor vehicle use–not unlike highway motor vehicle operation. [ 30 ] R. v. Thomson [24] applies to ASD demands for drivers of ATVs. Accordingly, no s. 10(

b) rights were required simply because of the ASD demand. APPROVED SCREENING DEVICE – NOT PROPERLY DESCRIBED [ 31 ] In a charge under s. 253(1) (

b) of the Criminal Code the Crown is not obliged to prove that the investigating officer had reasonable and probable grounds to give the breath demand– R. v. Rilling [25] still applies, see R. v.

Gundy [26] . [ 32 ] However where, as here, the defendant gives notice of a Charter violation and in particular alleges his s. 8 rights were violated and seeks exclusion, pursuant to s. 24(2), of the breath sample results because the police had no legal authority to demand and receive samples of his breath, the issue of whether the police had reasonable and probable grounds is a proper consideration. [ 33 ] Where the defendant objects to the admission of the breath test results pursuant to s. 8 and s. 24 of the Charter alleging the police did not have reasonable and probable grounds to make the demand, the burden is on the Crown to establish the requisite grounds– see R. v.

Gundy [27] , para. 50 , no. 5. [ 34 ] Here the police relied entirely on the fail result from the approved screening device test. This can provide sufficient grounds– see R. v. Bernshaw [28] , although the entire circumstances need to be examined and other factors may determine otherwise. These do not apply here. [ 35 ] The defendant argues that the evidence does not establish with any degree of satisfaction that the device was indeed an approved screening device–approved as noted in the Criminal Code regulations, see s. 254(1) of the Criminal Code .

I will come in a moment to what is the appropriate test. [ 36 ] There are dozens of cases which deal with this subject. I will address these cases shortly but first let me address the evidence here. [ 37 ] The police officer testified he used an “approved” screening device. He was extensively cross-examined on this issue. Many of the authorities deal simply with cases where the device is only partly described and the analysis focuses, almost entirely, on whether the description offered establishes the device was indeed an approved one. With respect, I believe the focus in these cases is misplaced.

I will come back to this in a moment. [ 38 ] Here the police officer described the device as an “Alcotest 7410". He said it was an approved device. No further description was offered. The list of approved screening devices includes an Alcotest 7410 GLC and an Alcotest 7410 PA3. In fact the officer took a photocopy of the front of the device and had disclosed this to the defence. It was not tendered as evidence. The defendant cross- examined the officer on this copy.

The device, it appears, only displays the name Alcotest 7410–at least on the front, and does not apparently display whether it is a GLC or PA3 or some other model. [ 39 ] The officer conceded that he does not know with certainty whether the device was either one of the approved ones listed. He did testify he had been given this device to use by his superiors and I infer was told it was an approved one. He did say that it was his understanding it was an approved device. He had no personal knowledge as to whether it was approved.

[ 40 ] Let me return to the legal framework. The Crown must establish that the officer had reasonable and probable grounds to believe the defendant had, in the previous three hours, committed an offence under s. 253 of the Criminal Code . In these circumstances it would mean that the Crown would have to establish that the officer had reasonable and probable grounds to believe the defendant’s blood alcohol concentration was above 80 mg. alcohol in 100 ml. of blood. [ 41 ] In R. v. Censoni [29] , Justice Hill gives a complete review of what the law requires and does not require in this regard.

Rather than summarizing his findings, I refer to the following paragraphs–see paras. 29 - 43. In short, there must be a credibly-based probability that replaces suspicion–a probability that the blood alcohol level of the defendant was above 80. There must be a subjective and objective basis for this belief. [ 42 ] What is clear in my opinion is that the officer can base his grounds on hearsay or credibly-based reliable sources. The officer does not need to establish, in my opinion, that those sources or hearsay are in fact true.

It is whether viewed objectively the officer could reasonably conclude that the defendant’s blood alcohol level was probably above the legal limit. [ 43 ] How then does this relate to whether the approved screening device was properly described? In an over .80 charge the Crown does not need to prove the device was approved.

It is not an element of the charge as opposed to some other situations where a refusal charge may require this. [ 44 ] In my opinion, it is not necessary in an application such as this–where the Crown is obliged to establish the requisite reasonable and probable grounds–that the Crown prove the device is in fact an approved one. [ 45 ] The focus here is whether based on the information the officer did have, could he conclude that reasonable and probable grounds existed to give the demand. Clearly, if there was no question the device was approved those grounds existed.

The question then is did the officer reasonably believe he was using an approved screening device? This is the question to be asked. Justice Rosenberg came to this conclusion in R. v. Gundy [30] , see para. 43 and 50 where the same issue was analyzed in detail, although the facts there were somewhat different. In that case the device was simply referred to as an Alcotest, although the officer testified it was approved.

It is not clear, in that case, whether any cross-examination or any attempt was made to explore the basis of that belief that it was an approved device. [ 46 ] In Gundy [31] the Ontario Court of Appeal concluded that a reasonable inference could be drawn from the evidence that the device was an approved one. The officer need not refer to the specific model number provided he or she refers to it as an approved device. Is the result different here because the officer in cross-examination could not state whether the device was in fact an approved one or not?

Let me examine this. [ 47 ] Here the subjective belief has been established. Clearly the officer subjectively believed the device was an approved one and that the fail result gave him the required grounds. Could a reasonable person with the same information as the officer come to the conclusion that the device was an approved one. It is not whether the device was in fact approved, it was whether objectively, the officer, based on the information he had, could come to that conclusion. Could the officer “reasonably believe that the device he [or she] was using was an approved one”?

Many of the cases seem to focus on the former question when, in my view, the proper focus, with respect, is the latter question, see R. v. Gundy [32] , para. 43 . [ 48 ] Turning to this case, what information did the officer have? First, he was given this screening device by his superiors. Secondly, he was told, I conclude, that it was an approved one. Thirdly, he had been trained and had experience with such devices. Finally, the device was described on its face as an Alotest 7410 and no other model suffixes were described. [ 49 ] Was it reasonable for the officer to conclude it was either a GLC or a PA3?

In my opinion it was. Whether the device was in fact one of these models is not, with respect, the issue. It is whether the officer could, based on the information he did have, conclude it was. It may be that further or other evidence may have disclosed that the basis for his belief was not reasonable. Here, that is not the case. Just because he could not state with certainty that the device was in fact an approved one does not detract necessarily from his reasonable conclusion. The conclusion he did reach was a reasonable one, in my opinion.

The officer reasonably believed he was using an approved screening device. He had reasonable and probable grounds to make a breath demand based on the failed result from the device that he used, which he believed was an approved device. The Crown has established the requisite grounds and the legal authority for taking the breath samples. There is no s. 8 violation as a result.

SECTION 24(2) OF THE CHARTER [50] Having found that the defendant’s s. 9 and s. 10(

a) and (

b) rights were violated it is necessary for me to consider whether anyevidence as a result should be excluded from evidence in this proceeding. Section 24(2) -- the Principles of R. v. Grant [51] In R. v. Grant 2009 SCC 32 and R. v. Harrison 2009 SCC 34 the Supreme Court of Canada revisited the appropriate analysisfor s. 24(2) applications and revised the previous Collins/Stillman approach (R. v. Collins, (SCC), [1987] 1 S.C.R. 265;R. v. Stillman, (SCC), [1997] 1 S.C.R. 607).

It is important, I believe, to describe the overview of this revised approachbefore considering the lines of inquiry which Grant directs. [52] Chief Justice McLachlin and Justice Charron remind us that the purpose of s. 24 is to maintain the good repute of theadministration of justice. The administration of justice is more than investigating, charging and trying those accused of crimes. It isabout maintaining the rule of law and upholding Charter values.

It requires that the court examine the issue at hand from a long-termsocietal perspective in the sense of maintaining the integrity of and public confidence in the justice system. The inquiry is objective. Thefocus is societal. It is not about punishing the police or providing compensation to the accused. The remedy, if any, belongs to society,not the accused.

In my opinion it is in part a normative analysis-examining the issue in the context of the underlying values andprinciples of a free and democratic society. [53] It is also recognized that the violation of the Charter provisions has already done damage to the administration of justice.Section 24(2) endeavours to ensure that the admission of the evidence obtained does not further damage the repute of the justice system.In R. v. Grant, supra the Supreme Court of Canada endorses three lines of inquiry. At para. 71 the court says, ...

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests ofthe accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase on its merits. ... [54] This however, in my opinion, is not a checklist.

It is not a formula or an equation. Yet there is no overriding rule. It is not ananalysis with mathematical precision. The task is to consider the issue by examining these lines of inquiry to assess and balance theeffect of admitting the evidence on society's confidence in the administration of justice. [55] It is important to understand these inquiries and how different aspects will influence the effect on the administration of justice. Iwill view this in the context of the analysis of this case.

The seriousness of the Charter-infringing state conduct [56] In Grant the Supreme Court of Canada recognizes that police conduct sits on a continuum from minor or inadvertent violationswhich would only minimally undermine public confidence to more willful or reckless disregard for Charter rights which wouldinevitably negatively affect public confidence in the rule of law. Obviously, exigencies may lessen the seriousness of the police conductand good faith would reduce the need for the court to disassociate itself from the police conduct.

Clearly, ignorance of Charter standardsis not good faith. [57] Deliberate, willful and flagrant police conduct which is not respectful of individual rights will undoubtedly lean toward orfavour exclusion of evidence. On the other hand good faith efforts by the police to comply with Charter values or if the conduct is

inadvertent or if extenuating circumstances are present this would have an opposite influence. [58] Here, I accept the officer acted in good faith. He honestly felt he was authorized to stop the defendant’s ATV. In my opinion hewas likely entitled to do so under s. 17 of the Off-highway Vehicle Act provided he was acting in furtherance of that legislation–similar to a Ladouceur[33] or an Orbanski[34] stop.

But notwithstanding this, it appears he was surprised to see the defendant’s vehicle in thecomplainant’s orchard late at night and while he may not have had the legal authority to simply stop him, he acted in good faithbelieving he could stop the defendant, presumably to see what he was doing late at night in the man’s orchard. The police conduct wasnot serious, given the surrounding circumstances. Impact on the Charter-protected Rights [59] This inquiry focuses on the accused's protected interests.

Here the right to liberty and the right to counsel were impacted.Impacts of rights can range from fleeting and technical to profoundly intrusive. Clearly the range of impact influences whether theadmission of the evidence would undermine public confidence in the administration of justice. It is a claimant-centred perspective whichis the focus of the analysis. It is a fact-specific determination. It is, though, impact on the protected rights, not just impact on the personwhich is important. [60] The initial stop had minimal impact on the defendant’s liberty and any breach of his s. 10(

a) or (

b) rights had little impact. Hewas detained for only a short period of time before the alcohol was detected. The subsequent legally authorized detention and searchesare not, in my opinion, to be considered “impact” of the initial Charter breach of the s. 9 or s. 10 violations. Detecting an alcohol odouron the defendant’s breath had virtually no impact on the defendant’s privacy, in my opinion. Society’s interest in judging the case on its merits [61] Obviously society has an interest in seeing cases tried on their merits.

This is particularly so where the evidence is reliable andwhere the alleged offence is serious, although this latter factor has the potential to cut both ways. Seriousness of the offence cannottrump or dominate the whole analysis. As was said in Harrison, we expect police to adhere to higher standards than those of allegedcriminals. While clearly the seriousness of the offence is important there are no Charter-free zones. Even those accused of the mostheinous crimes are entitled to the full protection of the Charter.

Breaching those rights not only affects the accused but also affects theentire reputation of the criminal justice system. See R. v. Burlingham, (SCC), [1995] 2 S.C.R. 206 para. 50. [62] Further, the public has an interest in a justice system that is beyond reproach. See R. v. Harrison, supra.

While I recognize thatthese particular circumstances may not present a strong or compelling case for adjudicating this case on its merits,–there are obviouslystronger cases–the evidence is reliable and the operation of any motor vehicle with a blood alcohol level above the legal limit is serious.This inquiry leans toward admission. BALANCING OF THE FACTORS [63] The balancing of the findings after analyzing each of the lines of inquiry is qualitative and is not capable of mathematicalprecision, see R. v. Harrison, supra. The findings must be weighed in the balance.

The seriousness of the police conduct is notdeterminative nor is the truth-seeking interest of the criminal justice system determinative. Finally, in balancing all its factors, in myopinion, the breath sample result should not be excluded. [64] The initial stop could have been justified if the police officer had simply directed his mind to that authority. This was at bestmarginally over the line as a detention in any event. The impact on the defendant’s liberty and his right to counsel was minimal.Operating an ATV is a regulated activity. He was on another person’s property at night.

I am not satisfied that inclusion of the evidenceinto the trial would bring the administration of justice into disrepute. Accordingly, the Certificate of Analysis is not excluded fromevidence for any of the reasons argued.

[65] In short, the defendant’s application is dismissed. A. Tufts, J.P.C. [1] (SCC), [1988] 1 S.C.R. 640 [2] (SCC), [1991] 3 S.C.R. 139 [3] (SCC), [1990] 1 S.C.R. 1257 [4] 2005 SCC 37 [5] 2009 SCC 32 [6] 2009 SCC 33 [7] 2004 SCC 52 , [2004] 3 S.C.R. 59 [8] 2006 SCC 11 [9] 2009 ONCJ 529 [10] [2005] O.J. No. 4823 (ONSCJ) [11] 2010 ONCJ 145 [12] supra, note 7 [13] 2007 SCC 32 [14] supra, note 13 [15] supra, note 3 [16] supra, note 4 [17] supra, note 3 [18] supra, note 4 [19] 2010 NSPC 39 [20] supra, note 6 [21] supra, note 1 [22] supra, note 2 [23] supra, note 1 [24] supra, note 1 [25] (SCC), [1976] 2 S.C.R. 183 [26] 2008 ONCA 284 [27] supra, note 26 [28] (SCC), [1995] 1 S.C.R. 254

[29] [2001] O.J. No. 5189 [30] supra , note 26 [31] supra , note 26 [32] supra , note 26 [33] supra , note 3 [34] supra , note 4