R. v. Edwards, 2010 ONCJ 279

Citation: R. v. Edwards , 2010 ONCJ 279 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — STEPHEN WARD EDWARDS Before Justice Finnestad Heard on February 19 and 20, May 1, June 3, and November 30, 2009and January 8 and 18, 2010 Reasons for Judgment released on April 22, 2010 S. MacDonald ............................................................................................................. for the Crown A.

Little................................................................................................... for Stephen Ward Edwards FINNESTAD J.: [ 1 ] On Wednesday, October 3, 2007 at about 6:16 p.m., officers involved in investigating an accident scene and directing traffic away from the area had involvement with a vehicle with the personalized licence plate “BURTE”. They described that vehicle driving over the curb around a police barricade, through an accident scene and driving straight toward a police officer on foot. That officer was required to take evasive action.

The vehicle did not remain but left the scene. Police pursued the vehicle only briefly out of safety concerns. At 6:18 p.m. other officers nearby, Levert and Trenouth, received a radio call that a balding white male driving that vehicle in the area of the accident scene at St. Clair and Warden was arrestable for the offence of dangerous driving. [ 2 ] These two officers went immediately to the address of the registered owner of the vehicle with that licence plate.

That house was a four- or five- minute drive from the scene where the vehicle had last been seen and the officers arrived there in a matter of minutes themselves. There was no vehicle present matching that described. Shortly after their arrival they observed a balding white male (Mr. Edwards) walk down the street towards them, approach the house and walk up to the front steps. Officer Levert called out to the man that they needed to speak to him about a dangerous driving allegation. He ignored them and went up the stairs to the porch of the house. The officers got out of their car.

Again they called out to the man who did not acknowledge them. As the male was about to put his key into the lock, P.C. Levert caught up to him and grabbed him by the wrist, immediately informing him that he was being placed under an investigative detention. He led Mr. Edwards back down the stairs towards the cruiser and there he asked him a brief series of questions which were as follows: Q: Do you live here? A: Yes Q: What vehicle do you drive? A: A truck Q: What is the licence plate? A: BURTE Q: Was anyone else with you? A: No. What’s this about? [ 3 ] Following this exchange P.C. Levert placed Mr.

Edwards under arrest for dangerous driving at 6:26 p.m. [ 4 ] To this point it is agreed that Mr. Edwards’ detention for investigative purposes went beyond the psychological to the physical, in that Mr. Edwards had been physically stopped and taken to another spot, although only a few metres away, to answer questions. He was not given his rights to counsel after being placed under detention. [ 5 ] Counsel for Mr. Edwards argues: (

A) that

section 9 was breached in that his client was arbitrarily detained; (

B) that the questioning of him after he was detained constituted a search contrary to

section 8; and (

C) that

section 10(

b) was breached in that no rights to

counsel were given him. Counsel for the Crown concedes the latter but argues that the statements made under investigative detention should be admitted nonetheless under a Grant analysis: R. v. Grant , (2009) 2009 SCC 32 (CanLII) , S.C.J. No. 32 (S.C.C.). [ 6 ] In addition counsel for Mr. Edwards argues: (

D) that there were no reasonable and probable grounds for his arrest on the charge of dangerous driving, resulting in a further

section 9 breach. [ 7 ] After Mr. Edwards’ arrest for dangerous driving he was handcuffed and searched. Again, he was not given his rights to counsel. Found on his person were two cell phones, one pager, a wallet and identification in the name of Stephen Edwards. Counsel seeks exclusion of those items as occurring after an unlawful search: (E). [ 8 ] P.C. Levert continued to ask Mr. Edwards questions as follows: Q: where is your vehicle? A: Down the road Q: Why don’t you park it in the driveway? A: I didn’t feel like it. [ 9 ] Mr. Edwards was then placed in the police car.

Counsel seeks exclusion of these utterances occurring after arrest and before any rights to counsel had been given: (F). [ 10 ] Sergeant Dawson arrived on scene and spoke to Mr. Edwards and obtained the location of his vehicle. She then drove to the street indicated and found it parked at a commercial premises. It was visible from the street and the plate could be seen as one drove by.. Counsel seeks the exclusion from evidence of the finding of this vehicle, on the basis that it arose from statements obtained in breach of s. 10(b): (G). [ 11 ] At 6:28 p.m.

Officers Moorcroft and Wilson came by from the scene of the original driving and opened the door of the police car to look in at Mr. Edwards. They identified him as the driver from their incident. The defence seeks the exclusion of this evidence of identification: (H). [ 12 ] After this P.C. Levert spoke to Mr. Edwards in the rear of the cruiser. He testified that now that Mr. Edwards had been “stewing” in the car for a few minutes he was able to notice the odour of an alcoholic beverage that had not been present in his vehicle before Mr. Edwards was placed there.

He described noticing for the first time bloodshot eyes, a dazed appearance and the odour of an alcoholic beverage coming from his breath. He testified that at 6:28 p.m. he formed the opinion that Mr. Edwards’ ability to operate a motor vehicle was impaired by the consumption of alcohol and arrested him for that offence. [ 13 ] Nine minutes later, or eleven minutes after his first arrest, at 6:37 P.C. Levert read Mr. Edwards his rights to counsel for the first time. Mr. Edwards said that he wished to speak to Duty Counsel.

The demand for breath samples was then read to him and they left the scene to attend 41 Division. Counsel for Mr. Edwards argues that at the time Mr. Edwards was placed under arrest for impaired driving, the arresting officer lacked the requisite grounds, subjectively and objectively, to make a breath demand pursuant to section 254(3): (I). The samples were therefore obtained in breach of his

section 8 rights and ought to be excluded: (J) . Ground (A): Arbitrary Detention under

Section 9 [ 14 ] There is no question but that Mr. Edwards was detained by police at the start of their investigation of him. In fact the officer advised him immediately that he was being “detained for investigative purposes”. Counsel for Mr. Edwards argued that this detention was arbitrary. [ 15 ] A detention for investigative purposes is, like any other detention, subject to Charter scrutiny. The Supreme Court of Canada confirmed in R. v. Mann, 2004 SCC 52 (CanLII) , [2004] S.C.J. No. 49, that a brief investigative detention based on “reasonable suspicion” is lawful. Justice Doherty in R. v.

Simpson, 1993 CanLII 3379 (ON CA) , [1993] O.J. No. 308 (C.A.), noted at para. 53 that until there was legislation in the area “the common law and specifically the criteria formulated in R. v. Waterfield, [1964] 1 Q.B. 164 , must provide the means whereby the courts regulate the police power to detain for investigative purposes”. [ 16 ] For the detention in Mr. Edwards’ case to be lawful the Crown would have to demonstrate that the officers were acting within the ambit of the common law ancillary powers doctrine. The test set out in R. v.

Waterfield refers to a two-point enquiry into police conduct that interferes with individual liberties. It must first be demonstrated that the officers were acting in the exercise of a lawful duty. Secondly, their conduct must amount to a justifiable use of police powers associated with that duty. This requires a consideration of whether the invasion of individual rights is necessary for carrying out the police duty, and whether it is reasonable having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference: see R. v.

Dedman , 1985 CanLII 41 (SCC) , [1985] 2 S.C.R.2 at para. 69 . [ 17 ] It is clear that in this case the officers were acting in the exercise of a lawful duty. They were investigating a specific criminal offence. The power to briefly detain for investigative purposes requires that there be “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation” ( Simpson , supra, at paragraph 58 ) or simply “reasonable grounds to detain” ( R. v. Mann , supra ).

Such a detention must be seen as reasonably necessary on an objective view of the circumstances. The overall reasonableness of the decision to detain, however, must be further assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test. [ Mann , supra, at para. 34] .

[ 18 ] In Mr. Edwards’ situation the officers had reasonable grounds to briefly detain him for investigative purposes. They were given information by other officers that a vehicle with the licence plate BURTE had recently been involved in a series of criminal offences carried out by the driver of that vehicle, and that the driver was a balding white male. The officers immediately attended at the address of the registered owner of that vehicle, which was minutes away from the scene of the driving allegations.

They soon observed the approach and entry onto the property of a briskly walking balding white male who refused to acknowledge or respond to them, and who seemed to be trying to get away from them and into the house to which he produced a key. There were reasonable grounds to suspect that he was criminally implicated in the activity under investigation. The admittedly brief description of the driver was sufficient, in the circumstances as they developed, to ground the officer’s suspicions. The brief detention would have been conducted on Mr.

Edwards’ driveway when police called out had he stopped in response to the officer’s call. Mr. Edwards was taken by the wrist in order for police to speak to him. [ 19 ] Further, in Simpson , the Ontario Court of Appeal, in providing examples of what might justify an investigative detention, referred to two extremes.

While a reasonably based suspicion that someone had committed a property offence at “a distant point in the past” wouldn’t justify detaining that person on a public street to question them about it, a reasonable suspicion that he had “just committed a violent crime and was in flight from the scene of that crime could well justify some detention of that individual in an effort to quickly confirm or refute the suspicion” (para. 67). [ 20 ] Counsel for the Crown argued that the latter situation (with the obvious exception of the qualifier “violent”) was descriptive of Mr. Edwards’ situation.

Although defence counsel disputed it vigorously. I find that there are some elements of flight present here. Officers had a reasonable suspicion, which Mr. Edwards’ own actions increased, that he had left the scene of a crime and a detention of the nature which occurred here was necessary to quickly confirm or refute that suspicion.

While the officers did not specifically articulate that they felt he was “in flight”, the information they had was that the driver had left the scene where an offence had allegedly been committed; it appeared that he may have left the vehicle elsewhere if this were the driver; and their suspicions that he may well be the driver were supplemented by their observations that he was trying to get away from them. There is an inference that this fact situation was consistent with flight.

If he were not the driver, then the possibility existed that the driver was still “out there” operating the vehicle. [ 21 ] In conclusion I am satisfied that there was a basis for a brief investigative detention in all the circumstances. There were reasonable grounds to suspect that Mr. Edwards was connected to a particular crime under investigation, and the detention was reasonably necessary on an objective view of the circumstances.

The liberty interfered with was that to walk freely where one chooses; the interference was necessary to the performance of police duties and it was a minimal interference of very brief duration prior to an arrest being made. Mr. Edwards was told even prior to the detention of the reason for police wanting to speak to him, and immediately afterwards advised that he was under investigative detention for that reason. Ground (B): Unreasonable Search or Seizure Under s. 8 of the Charter [ 22 ] Counsel for Mr. Edwards argued that even if a brief detention of Mr.

Edwards on a public street were acceptable, the fact that it occurred on the front porch of his home, which he was trying to enter, made the situation somewhat different and engaged the provisions of

section 8 of the Canadian Charter of Rights and Freedoms . [ 23 ] It is only where a person’s reasonable expectation of privacy is diminished by an investigatory technique that

section 8 comes into play. The purpose of

section 8 is to protect a reasonable expectation of privacy. In this case the issue is whether the actions of P.C. Levert and P.C. Trenouth infringed Mr. Edwards’ reasonable expectation of privacy and so constituted a search. If so, it is a warrantless search within s. 8 . [ 24 ] A consideration of Mr. Edwards’ expectation of privacy requires a consideration of the common law doctrine of “implied licence”. There is an implied licence for all members of the public to approach a private residence and knock on the door.

The implied invitation “effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling”: see R. v Evans, 1996 CanLII 248 (SCC) , [1996] S.C.J. No. 1 at para. 13 . That licence ends at the door of the home. [ 25 ] The purpose of the implied invitation is to permit “convenient communication” with the occupant.

The waiver of privacy rights extends no further than is required for this purpose. “Only those activities that are reasonably associated with the purpose of communicating with the occupant are authorized...” by that licence: see Evans , supra, at para. 15 . In the Evans case police approached the door of the house to some extent to communicate with the occupants, but also with the intention of catching a smell of marijuana.

The Supreme Court of Canada held where police “approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock”. [ 26 ] In the cases of R. v. Tricker , 1995 CanLII 1268 (ON CA) , [1995] O.J. No. 12 (C.A.), and R. v. Lotozky , 2006 CanLII 21041 (ON CA) , [2006] O.J. No. 2516 (C.A.) the Court of Appeal for Ontario dealt with cases involving police officers investigating motor vehicle offences who came onto the driveways of the defendants’ properties.

Rosenberg J.A. held that merely walking on to a driveway, even with the intention to investigate the owner, did not constitute a sufficient intrusion to be considered a search. He noted that there must be something more such as peering into windows or trying to detect odours from within the house in order for the actions of police to constitute a search. The perimeter search cases refer to this sort of action as being what is meant by “approaching with the intention of gathering evidence against the occupant”.

Simply approaching the driver to speak to him, even while investigating a motor vehicle offence, did not fall within that description of police conduct. In R. v Lotozky , supra, while the court referred to the even lesser expectation of privacy to be found on a driveway, I do not find that the comments of Justice Rosenberg with respect to implied licence are specifically confined to driveways but include all areas of the property, including the front porch, to which the public has implied invitation to attend for purpose of communicating with the occupants. In the case of Mr.

Edwards, police approached the house for the sole purpose of communicating with him, in order to determine if he had knowledge of the activities of his vehicle and who its driver had been in the time period shortly before.

[ 27 ] I am of the view that the conduct of the police in approaching Mr. Edwards on the front porch of his house (particularly where they had been trying to catch his attention long before he got that far) does not interfere with his reasonable expectation of privacy; falls within the doctrine of implied licence, and does not constitute a search for purposes of

section 8 . [ 28 ] The decision in R. v. Van Wyk , [1999] O.J. No. 3515 supports this proposition in stating that “the police intent of facilitating communication, even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory or in breach of

section 8 of the Charter : see para. 33 [ 29 ] I am satisfied that police were acting in the course of their duty in briefly detaining Mr. Edwards and that their conduct did not involve an unjustifiable use of their powers in these circumstances. Mr. Edwards’

section 8 rights were not breached by police actions to this point. Ground (C):

Section 10(

b) Breach upon Investigative Detention [ 30 ] It was conceded by the Crown that Mr. Edwards should have been given his rights to counsel when he was first detained. The recent decisions of the Supreme Court of Canada in Grant and Suberu make this clear. Mr. Little argues that a clear breach of

section 10(

b) rights call for an exclusion of evidence obtained as a result of it, specifically the question-and-answer exchange that was held in the course of that brief detention. Ms. McDonald for the Crown argues that under a Grant analysis the statements should be admitted into evidence. [ 31 ] The questions and answers in issue were those which established that Mr.

Edwards lived at that address, that his vehicle was a truck with the licence plate BURTE and that no one else was with him. [ 32 ] The Supreme Court of Canada in Grant noted the principle against self-incrimination as “one of the cornerstones of our criminal law”: para. 89. Common law and Charter rules arise from this, including the confessions rule and the right to silence. The principle informs the right to counsel in s 10(b), as well as other Charter rights.

The breach of the right to counsel is a serious one. [ 33 ] Courts have tended to exclude statements obtained in breach of the Charte r on the grounds that on balance their admission would bring the administration of justice into disrepute: see para. 91. The Court in Grant noted that “the three lines of inquiry ... support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter : see para. 92. [ 34 ] The first area of inquiry relates to the seriousness of the Charter -infringing conduct, or an evaluation of the seriousness of police conduct leading to the breach.

The main concern is to preserve public confidence in the administration of justice. The Crown argues that “good faith” on the part of the police in the initial detention reduces the need for the court to disassociate itself from the police conduct. However, ignorance of Charter requirements or wilful blindness cannot be the equivalent of good faith. [ 35 ] In this case P.C. Levert approached Mr. Edwards with a view to determining if he was the registered owner of the vehicle approaching his own home, or someone unrelated. He first called out to ask Mr.

Edwards to speak to them, informing him that they were investigating a dangerous driving allegation. When Mr. Edwards ignored him twice P.C. Levert grabbed him by the wrist and immediately informed him that he was under investigative detention. He brought him down the steps of his house to his own front yard. The evidence of P.C. Levert is that he believed that there was no requirement to give the right to counsel in the circumstances of a brief investigative detention. [ 36 ] The Crown submits that there was some uncertainty in the law prior to the Supreme Court of Canada’s recent rulings, and at the time of Mr.

Edward’s detention. The Ontario Court of Appeal decision in Suberu acknowledged that there can be a brief time between the initial detention for investigative purposes and the administration of the

section 10(

b) rights. Further, the Supreme Court of Canada in R. v. Mann , 2004 SCC 52 (CanLII) , [2004] S.C.J. No. 49, had held that the rights recognized by sections 9 and 10 of the Charter are not breached by brief delays that involve no significant physical or psychological restraint. If such a detention was brief in duration, “compliance with s. 10(

b) would not excuse prolonging, unduly and artificially, any such detention.” This detention, which occurred outside Mr. Edwards’ house, lasted three or four minutes prior to the arrest. While removing Mr. Edwards from his front porch to stand in his yard was a physical restraint, I do not view it as “significant” in all the circumstances. The officers were frank with Mr. Edwards from the outset about the reason for their being there.

The officer’s belief in the state of the law and his actions in accordance with that were not unreasonable. [ 37 ] The second area of inquiry relates to the impact on the Charter -protected interests of the defendant. The breach of the right to counsel undermines a person’s right to make an informed choice about the right to silence and the protection against self- incrimination. Violation of these fundamental rights tends to weigh in favour of excluding any statement. [ 38 ] The third area of inquiry relates to society’s interest in an adjudication on the merits.

This requires a consideration of whether the truth-seeking function of the trial process would be better served by admission or exclusion of the evidence. The reliability of the evidence is but one factor to consider. However if the breach undermines the reliability of the evidence this leans towards exclusion as it does not advance the defendant’s fair trial interests or the public interest in uncovering the truth. Conversely exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and bring the administration of justice into disrepute.

The reliability of the evidence contained in Mr. Edwards’ utterances while under investigative detention is demonstrated in that it is confirmed in its particulars by Exhibit 4, a Ministry of Transportation document certifying that Mr. Edwards, of that address, is the registered owner of the vehicle in question. [ 39 ] The Supreme Court of Canada in Grant concluded at para. 98 : In

summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter , while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law’s historic tendency to treat

statements of the accused differently from other evidence, explains why such statements tend to be excluded under s 24(2). [ 40 ] In Mr. Edwards’ case, the police conduct was above-board; it occurred during a time of some uncertainty in the law which led to a good faith belief by P.C. Levert that he was complying with the law; and it was during a detention of brief duration during which reliable information was communicated to the officers. In all of the circumstances I am not persuaded that to admit this evidence would bring the administration of justice into disrepute and those utterances are admitted.

Ground (D): Reasonable and Probable Grounds for Arrest for Dangerous Driving [ 41 ] Counsel for Mr. Edwards submits that P.C. Levert did not have reasonable and probable grounds for arresting him for dangerous driving and that his

section 9 rights were thereby violated. In his questioning of Mr. Edwards P.C. Levert never asked whether Mr. Edwards was driving his vehicle at the time in question. [ 42 ] It is necessary to consider all of the information that P.C. Levert had at the time of arrest in order to determine whether there were, subjectively and objectively, reasonable grounds for the arrest. [ 43 ] P.C. Levert had information that a balding white male was driving a vehicle with the licence plate BURTE in a manner which, as described by the officer who witnessed it, could be considered dangerous.

Within a matter of a few minutes, he located a balding white male a few minutes’ drive away from the location of the allegedly dangerous driving, walking briskly up the street toward the home of the registered owner. The arrival of Mr. Edwards was described as proximate in time and location to where the driver of that vehicle might have been at the time. Mr. Edwards confirmed that he was the registered owner of that vehicle. There was in this situation more than the simple identification of the defendant as the registered owner of the vehicle, unlike the situation in R. v. Van Wyk, supra.

His proximity to the driving described, the timing, his identification as the registered owner of the vehicle and his fitting a general description of the driver seen in that area and around that time was sufficient for P.C. Levert to reasonably conclude that he had reasonable and probable grounds to believe that Mr. Edwards had moments earlier been operating his vehicle in a manner dangerous to the public and to effect an arrest. [ 44 ] I am satisfied that both subjectively and objectively there were grounds to arrest Mr. Edwards for the offence of dangerous driving. Ground (E):

Section 8 Breach in Search After Arrest [ 45 ] Mr. Edwards was subject to a lawful arrest for the offence of dangerous driving. The search which followed was a lawful search incident to that arrest and the observation of items found as a consequence, specifically his cell phones, pager, wallet and identification, is admissible as evidence in this trial. Ground (F):

Section 10(

b) Breach With Respect To Utterances After First Arrest [ 46 ] After his arrest for dangerous driving Mr. Edwards was placed in the police car and questioned further without having been given his

section 10(

b) rights. His responses to questions revealed that his vehicle was parked “down the road” because he “didn’t feel like” parking it in his driveway. He subsequently told Sgt. Dawson where the vehicle could be found. [ 47 ] These statements were clearly obtained in breach of his

section 10(

b) rights which ought to have been given promptly upon his arrest. A determination of whether they ought to be excluded pursuant to section 24(2) requires a consideration of the factors set out in Grant . [ 48 ] On a consideration of the three lines of inquiry set out in Grant I am persuaded that these utterances obtained in breach of Mr. Edwards’

section 10(

b) rights ought not to be admitted. The consideration of these factors set out in paragraphs 91 through 98 apply directly to the case at bar. [ 49 ] The requirement to provide the right to counsel upon arrest is as old as the Charter itself and there is no excuse for the officers’ failure to provide it in this situation. There were neither officer safety issues nor urgent matters that might justify a delay in giving the right. The breach of the right to counsel fundamentally undermined the interests protected by that right.

I do not find his situation to be one of those where the impact on him of the breach would be lessened. Finally, the truth-seeking function of the trial process would be better served by the exclusion than the admission of the evidence. [ 50 ] I am satisfied that the breach of Mr. Edwards’

section 10(

b) rights with respect to the utterances made post-arrest to P.C. Levert and Sgt. Dawson are such that to admit them would bring the administration of justice into disrepute and they are inadmissible as evidence in this trial. Ground (G):

Section 10(

b) Breach and the Finding of the Vehicle

[ 51 ] Counsel for Mr. Edwards argues that the physical evidence, the vehicle located near Mr. Edwards’ home, was discovered as a result of the unlawfully obtained statements and as derivative evidence is inadmissible. [ 52 ] The combination of police computer checks of the registered owner and identification found during the search incident to Mr. Edwards’ initial arrest confirmed that Mr. Edwards was in fact the registered owner of the vehicle which police were seeking. It was also clear that since Mr.

Edwards was located a few minutes’ drive away from the scene of the driving allegations and was on foot, his vehicle was likely somewhere in the immediate vicinity. I accept police evidence that they would have conducted a search of the area in any event. The vehicle was easily located parked less than three blocks away in such a manner that it was not hidden, and the distinctive licence plate was clearly visible to the officers who saw the car.

It is my view that the vehicle was not only likely, but inevitably, otherwise discoverable. [ 53 ] The first inquiry under Grant concerns the police conduct in obtaining the statement. It can’t be argued that the officers were acting pursuant to what they thought were legitimate policing policies. This is particularly so in light of P.C. Levert’s comments about the right to counsel. He said “when in doubt, read it out”. A police concern about locating the vehicle, which was a non-urgent issue at that time, overcame the requirement to provide Mr. Edwards with his right to counsel upon arrest.

I find that the seriousness of the breach is at the higher end. [ 54 ] The second inquiry concerns the impact of the breach on the protected interests of the defendant. In this case the discoverability of the evidence lessens the impact of the breach on Mr. Edwards’ underlying interest against self-incrimination. [ 55 ] The third inquiry relates to society’s interest in having the case adjudicated on its merits.

As “real” evidence there is no concern as to the reliability of the evidence. [ 56 ] A balancing of these factors – a relatively serious breach of the right to counsel, a minimal impact of the breach on the defendant’s protected interests due to the inevitable discoverability of the evidence and the reliability of the evidence – militate in favour of its admission into evidence. I am not satisfied that the administration of justice would be brought into disrepute by the exclusion of this evidence and it is admissible. Ground (H): Identification Evidence of Two Officers [ 57 ] Counsel for Mr.

Edwards submitted that he was subject to Charter breaches so many and so varied that the only appropriate remedy was the exclusion of all evidence and observations made after his initial detention. For reasons already given, and yet to come, I disagree. This includes the observations of the two officers from the original scene of the driving alleged, which is admissible evidence. Ground (I): Grounds for the Breath Demand [ 58 ] Prior to encountering Mr. Edwards, P.C.

Levert received information over the radio that the driver of the vehicle with the plate BURTE had almost hit other officers, had mounted a curb and driven through an accident scene. He was to be considered arrestable for dangerous driving. [ 59 ] By the time that an arrest was made for impaired driving, P.C. Levert was also in possession of other information. Mr. Edwards was the registered owner of a vehicle with the plate BURTE, and he had been identified by two officers from the scene of the allegations as the person doing the driving they had described as dangerous.

He therefore had reasonable and probable grounds to believe that Mr. Edwards was involved in some sort of irregular or dangerous operation of his motor vehicle. [ 60 ] Within two minutes of the arrest for dangerous driving P.C. Levert in leaning into the car where Mr. Edwards was sitting, noticed an odour of an alcoholic beverage where none had been present before. He noticed it coming from Mr. Edwards’ breath. Further, he then noticed that Mr. Edwards’ eyes were bloodshot and that his gaze was like a stare as if he were in a daze.

He had not noted other traditional indicia of impairment such as slurring of speech or unsteadiness on his feet. P.C. Trenouth described seeing the same features, with the addition that Mr. Edwards’ face was flushed. P.C. Levert testified that he concluded that the discovery of Mr. Edwards followed so directly after the driving complained of that he would not have had time to stop for a drink. Implicit in that is that he believed that the condition Mr. Edwards was in upon their meeting was the condition he would have been in at the time of operating the motor vehicle moments before.

He testified that he formed the opinion that Mr. Edwards’ ability to operate a motor vehicle was impaired by the consumption of alcohol and made the arrest and breath sample demand. [ 61 ] Reasonable and probable grounds do not amount to proof beyond a reasonable doubt, nor is proof of a prima facie case required. Such grounds have both a subjective and an objective component. The subjective component requires an actual belief on the part of the arresting officer that the offence has been committed. The objective component requires the officer’s opinion to be supported by objective facts.

The existence of objective reasonable grounds must be based on facts known by or available to the police officer at the time he formed the belief: R. v. Censoni, [2001] O.J. No. 5189 at paras. 31-35 (S.C.) .

It is not an onerous threshold. [ 62 ] Justice Hill of the Ontario Superior Court of Justice commented in paragraph 46 of Censoni, supra, that “the existence of reasonable grounds does not devolve to a simple mathematical exercise of comparing a list of factors supporting impairment to drive with a second list of factors pointing in the opposite direction” and further at para. 47 that “depending on the totality of the factual circumstances, a detracting factor does not automatically deny the existence of reasonable grounds. ...

Furthermore, it must be remembered that slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like.” [ 63 ] To constitute grounds for the demand, in addition to the officer’s subjective belief, the prosecution need only demonstrate objectively reasonable grounds for the belief that Mr. Edwards’ ability to drive was at least slightly impaired by alcohol

consumption, per R. v Stellato (1993), 1993 CanLII 3375 (ON CA) , 78 C.C.C.(3d) 380 (Ont. C.A.). I am satisfied that in all the circumstances, considering the information P.C. Levert had about the nature of Mr. Edwards’ driving and the concerns that would raise about his control or judgment at the time, the obvious indications of consumption and his dazed stare, that there was an objective basis for the finding of reasonable and probable grounds for the arrest. [ 64 ] The difficulty for the prosecution in this case arises with the issue of the subjective belief of the police officer. While P.C.

Levert testified in examination-in-chief that he concluded that Mr. Edwards’ ability to operate a motor vehicle was impaired by the consumption of alcohol, his elaboration on this in cross-examination revealed simply the existence of a suspicion consistent with the demand for an approved screening device sample. His evidence on this point was as follows: Q: Based on what you just said to P.C. Thompson (the breath technician) would you agree with me since you indicated “may have alcohol in his blood system. With that, I placed him under arrest.”?

At that point in time you had a reasonable suspicion that this individual, Mr. Edwards, may have consumed alcohol. A: Yes Q: That’s what you told the officer, right? A: Yes Q: Okay. There is a very big difference, I would suggest to you, between someone consuming alcohol and you believing on reasonable and probable grounds that their ability to operate a motor vehicle is impaired by the consumption of alcohol A: Yes Q: Okay. But based on what you’ve told him, what you told P.C. Thompson is that you believe that he may have had alcohol in his blood system. That’s what you said. A: Yes Q: Okay.

And my client, at this point in time, when you are investigating him, and before you arrest him for the impaired, he doesn’t admit to you that he consumed any alcohol, right? A: No Q: And all you have at this point is, we talked about the smell of alcohol right? A: Yes Q: Okay and the fact that he was staring at you A: Yes Q: Okay. And based upon that, I would suggest to you that what you actually had, or what you believed you had was a suspicion that he had alcohol in his body. A: Yes (and later) A: An odour of an alcoholic beverage coming from Mr. Edwards’ mouth at that moment in time.

And the two other factors. Now looking at him in the scout car stewing, the red bloodshot eyes, and him staring at me, those three factors, that allowed me – that gave me a suspicion that he had consumed alcohol. Q: Okay A: I don’t know how much. And arresting him for that, and bring him to 41 Division, to a breath tech to determine how much alcohol is in his blood system, I couldn’t tell you. He never makes mention of him drinking. Outside, no. We are outside in the open air. I didn’t get close enough to actually smell anything off him. Q: Okay.

But what you’ve just said is that in that case you had a suspicion that he had been consuming alcohol. That’s what your opinion was at that point in time. A: Yes Q: Okay. But you don’t ask for him to provide a sample of his breath into an approved screening device, right? A: That is correct. Q: You arrest him for impaired operation because you had a suspicion that he had alcohol in his body. A: Yes Q: Okay. And that’s exactly what you told P.C. Thompson.

A: Yes (Transcript of proceedings, May 1, 2009 at pp. 61-63) [ 65 ] It is clear from the evidence that P.C. Levert’s self-described opinion that Mr Edwards’ ability to operate a motor vehicle was impaired by alcohol was in fact a suspicion that he had alcohol in his body and was more appropriate to a demand for a breath sample into an approved screening device at the roadside. As such, this subjective belief is not capable of constituting reasonable and probable grounds for the breath sample demand that was made. Ground (J): Exclusion of Breath Test Results [ 66 ] The obtaining of Mr.

Edwards’ breath samples without a warrant and not pursuant to the statutory requirements of the Criminal Code constitutes a breach of his

section 8 rights under the Charter . The defence seeks exclusion of the breath test results pursuant to section 24(2) of the Charter . [ 67 ] The first area of inquiry mandated by Grant relates to the seriousness of the Charter- infringing conduct. I find that the seriousness was not great, in that while the officer did not subjectively form the necessary belief to warrant his making of that breath demand, he turned his mind to a number of factors that would objectively have supported the demand that he ultimately made.

The fact that there were objectively reasonable and probable grounds for him to have made the demand that he did, militates against the seriousness of the police conduct. [ 68 ] The second area of inquiry relates to the impact on the Charter -protected interests of the defendant, and the extent to which the breach actually undermined the interests protected by that right.

An unreasonable search that intrudes on an area where one has a high expectation of privacy or that is demeaning is more serious than one that does not: see Grant para. 78 . [ 69 ] The Supreme Court of Canada noted that to simply determine admissibility of “bodily evidence” based on whether the evidence obtained was conscriptive was to ignore the broad contextual approach mandated by section 24(2). The section 24(2) inquiry “amounts to finding a proper balance between competing interests and values at stake in the criminal trial, between the search for truth and the integrity of the trial.”: see R. v.

Orbanski , 2005 SCC 37 (CanLII) , [2005] 2 S.C.R. 3 at para. 94 . The approach to admissibility that enquired simply whether the evidence was conscripted has been replaced by a flexible test based on “all the circumstances” and as with other types of evidence, admissibility should be determined by enquiring into the effect admission may have on the repute of the justice system. [ 70 ] In the context of the second area of inquiry with respect to bodily evidence obtained in violation of

section 8, a factor for consideration is the extent to which the search and seizure intruded upon the privacy, bodily integrity and dignity of the defendant. The Supreme Court of Canada in Grant specifically referred to breath sample evidence as being one form of bodily evidence whose method of collection is relatively non-intrusive: para. 111. In this context and with reference to the circumstances under which Mr. Edwards’ breath samples were taken I find that the impact on Mr.

Edwards’ Charter rights is at the lower end of the scale and tends toward admission of the evidence. [ 71 ] The third area of inquiry relates to the effect of admitting the evidence on the public interest in having cases heard on the merits. The Court said at para. 110 that this “will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused’s body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.” [ 72 ] A consideration of all of the circumstances leads to a conclusion that to admit the evidence would not bring the administration of justice into disrepute. The breath test readings are admissible evidence. Released: April 22, 2010 Signed: “Justice Finnestad”