R. v. Jagoe, 2012 NBCA 72

New Brunswick Court of Appeal Citation: R. v. Jagoe, 2012 NBCA 72 Date: 2012-08-23 Richard, Bell, Green JJ.A. Counsel: Cameron H. Gunn , for Appellant. James J. Matheson , for Respondent. I. Background and Facts [ 1 ] BELL J.A.: The facts are as complicated as they are unfortunate. Douglas Jagoe consumes one drink at a friend's house, goes to a local bar where he consumes a few more drinks and, after closing-time, is approached by four well-known acquaintances (two female and two male) who ask for a ride home. The two female acquaintances also ask if their male companions can come along as well. Mr.

Jagoe does not know the companions, but is happy to accommodate. Shortly after 2 a.m. on August 6, 2008, Mr. Jagoe sets out with 6 passengers; 4 known to him and the 2 unknown men. En route to the appointed destination, one of the unknown men, Mr. Chris Doucet, complains about Mr. Jagoe's choice of music and his truck. Mr. Jagoe stops the vehicle and informs Mr. Doucet that if he does not like the music, he can walk. It should be noted here that the destination is a short distance away and no one would be put in harm's way by walking the remainder of the journey. Mr.

Doucet, exits the vehicle, but only after punching Mr. Jagoe in the side of the face and spitting on him. Mr. Jagoe does not retaliate. Mr. Doucet's friend, Matthew Corrigan, and one of the other men also leave the vehicle at this time. Mr. Jagoe continues toward the destination with the two women and one of his male friends. Upon nearing their destination, Mr. Jagoe observes Messrs. Doucet and Corrigan, both large men, walking toward the truck in an aggressive manner. They are shouting: "bring it on". Mr. Corrigan is wielding a baseball bat.

He jumps on the hood of the moving truck and, according to at least one witness, strikes the windshield with the bat. Mr. Jagoe initially attempts to avoid Mr. Corrigan. However, once Mr. Corrigan is on the hood and swinging the bat, Mr. Jagoe applies the brakes in an effort "to get him off" the hood. The bat-wielding Mr. Corrigan falls off the truck, hits his head on the pavement and dies as a result of head injuries. The trial judge concluded Mr. Jagoe was "scared for his life". [ 2 ] Mr.

Jagoe, the good Samaritan in this real-life tragedy, who is the victim of at least 3 assaults that evening (the punch in the face, the spitting incident and the attack upon his vehicle with a baseball bat), finds himself charged with dangerous driving causing death ( s. 249(4) of the Criminal Code ), failure to stop after an accident ( s. 252(1.3) (b)), impaired driving causing death ( s. 255(3) ), and causing an accident resulting in death while driving with a blood alcohol level in excess of 80 mg of alcohol per 100ml of blood ( s. 255(3.1) ).

He was acquitted of all charges but convicted of the lesser and included offence of operating a motor vehicle while having a blood alcohol reading in excess of that prescribed by law contrary to s. 253(1)(b). [ 3 ] Set out below are the evidentiary findings made by the trial judge: Firstly, with respect to the offence of dangerous driving I make the following findings. After carefully examining the evidence, I conclude that the accident, which resulted in Matthew Corrigan's death occurred in much the same manner as related by Douglas Jagoe and the witnesses Jade Coombs, Mackenzie Coombs and Corey Ronalds.

I find that Douglas Jagoe attended the Right Spot and that shortly after 2:00, he left the Right Spot accompanied by Jade Coombs, Kelsey Hennessy, Chris Doucet, Matthew Corrigan, Mackenzie Coombs and Corey Ronalds. The evidence clearly indicates that all occupants, including Mr. Jagoe, had been drinking varying quantities of alcohol. I am satisfied that Mr. Jagoe did not consume more than three beers during his short stay at the Right Spot. In fact, the evidence indicates he drank two and a half beers.

Despite the significant consumption of alcohol by some of the witnesses, I must say that their accounts of the events that occurred in the early hours of August 6, 2008 were detailed with few variances. There were no major discrepancies in their evidence. I find the evidence of Jade Coombs, Mackenzie Coombs and Corey Ronalds to be quite credible and persuasive. I can find no reason not to accept the evidence of Jade Coombs, Mackenzie Coombs and Corey Ronalds. As to the evidence of Douglas Jagoe, I find that on the whole, his evidence was credible with certain parts of his evidence being quite convincing.

While some aspects of his evidence raise questions and concerns, for the most part, I accept his evidence. Returning to my assessment of the evidence, I find that Douglas Jagoe drove from the Right Spot to Evangeline Dr. without incident. None of the witnesses expressed any concern for Mr. Jagoe's driving. At the intersection of Evangeline Dr. and St-Ann St., Chris Doucet complained about Mr. Jagoe's music and his truck. Douglas Jagoe understandably asked him to leave. Before leaving, Chris Doucet, for some unknown reason, spit on Mr. Jagoe and then punched him on the side of the face.

I am satisfied that the punch was quite forceful and resulted in a noticeable bruise . Three of the occupants left Mr. Jagoe's truck, namely Mackenzie Coombs, Matthew Corrigan and Chris Doucet. Mr. Jagoe continued in a southerly direction on Evangeline Dr., intending to drive as planned, the two girls’ home. He missed the entrance to Varrily St. and continued a little further. After a short circuitous route, he returned on Evangeline Dr. Meanwhile, the three young occupants had made their way to Varrily St.

Matthew Corrigan went into Kelsey Hennessy's house and came out with a baseball bat, more precisely described as the type that can be bought in sports shops with players' signatures on them. It is clear from the evidence that both Matthew Corrigan and Chris Doucet were very upset. They were yelling very loudly, to the point of waking some of the neighbours . At this time, it was approximately 2:15. When Douglas Jagoe went up Varrily St., he saw the two individuals. It was quite obvious to everyone, including Douglas Jagoe, that the two for some reason, were very upset.

He also noticed that one of them had a bat in his hand. In Mr. Jagoe's terms, both men were huge men. There is a general agreement in the evidence that Matthew Corrigan and especially Chris Doucet were very big men . I also note that Mackenzie Coombs observed the bat in Matthew Corrigan's hand and to him, it seemed like a normal sized bat. After a short pause, Mr. Jagoe decided to back his vehicle down Varrily St. He saw Matthew Corrigan start to run down Varrily St . Once he reached Evangeline Dr., he started going forward heading in a northerly direction on Evangeline Dr.

Although there is evidence of squealing tires, Mr. Jagoe doesn't believe his tires squealed. Although not much turns on whether or not the tires squealed, I am satisfied that there was a squealing of Mr. Jagoe's tires. Mr. Jagoe states he wasn't going very fast.

I find on the evidence, that speed was not significant. To continue, just as he was starting to move his truck forward, Matthew Corrigan jumped on the hood of the truck. He had a bat in his hand and holding onto one of the windshield wipers. I accept that Douglas Jagoe slammed the brakes and swerved his truck to the left in order to avoid hitting Mr. Corrigan. As he slammed the brakes, Matthew Corrigan slid off the truck . Mr. Jagoe states that he didn't want to hurt Matthew Corrigan, he just wanted him off his truck. I accept Mr. Jagoe's evidence on this point.

On the evidence there is no doubt in my view, that Douglas Jagoe was scared at that point, given the two episodes of violence which occurred in a very short period of time. There is also the additional fact that he didn't know what, if anything, Chris Doucet was going to do . It is undisputed that Douglas Jagoe didn't stop once Mr. Corrigan was off the truck, only at the lights where he let out the two girls. Mr. Jagoe testified that he didn't know that Matthew Corrigan was injured. To him, "a guy like that wouldn't get hurt." He didn't stay around to verify if or how badly Matthew Corrigan was injured.

I accept that he was panicked and scared for his life. After all, he had just been the victim of two serious incidences of violent behavior by two big men. I accept that it is in a panicked and scared condition that he left the scene of the accident taking various streets and roads which eventually led him nearly two hours later at the home Douglas and Margot Smith.

I would add that I have no reason to disbelieve Douglas Jagoe when he spontaneously answered that he wasn't worried in the least about a possible breathalyzer offence or that he left the scene because he had been drinking. [paras. 32-34] [Emphasis is mine.] II. Issues [ 4 ] The Crown initially appealed all 4 acquittals. However, it abandoned those related to dangerous driving, impaired driving and failing to stop after an accident.

It proceeded with the appeal from the acquittal on the charge of causing an accident resulting in death while having a blood-alcohol level of over 80 mg of alcohol per 100 ml of blood (s. 255 (3.1)). In the course of acquitting Mr. Jagoe, the trial judge said: However, the Crown must also establish that the excess quantity of alcohol in Mr. Jagoe's blood (over 80 mg) [97 mg] was a contributing factor or a real factor in Matthew Corrigan's death.

On this essential element of the offence, I conclude that the evidence is insufficient to establish beyond a reasonable doubt that the excess in blood alcohol level (over 80 mg) was a contributing factor to the death of Matthew Corrigan. [para. 53] [ 5 ] The Crown contends the trial judge erred when he applied a causation standard which required the Crown demonstrate the "over 80" reading was a contributing factor to Mr. Corrigan's death.

While admitting that the impaired operation of a motor vehicle must cause the death of another person for purposes of obtaining a conviction under s. 255(3), the Crown asserts that all that is necessary for a conviction under s. 255(3.1) is proof that death ensued while the accused was driving with over 80 mg. of alcohol per 100 ml. of blood. The Crown contends there is no need to establish the over 80 reading caused the death. [ 6 ] Mr. Jagoe cross-appeals against the conviction. He contends the trial judge erred by admitting the certificate of analysis of the breathalyzer technician into evidence.

The trial judge concluded the police officer did not have reasonable and probable grounds to believe Mr. Jagoe was guilty of impaired driving when he gave the breathalyzer demand. The police officer thereby violated Mr. Jagoe's s. 8 Charter right to be free from unreasonable search and seizure. However, following a s. 24(2) analysis, the trial judge admitted the breathalyzer certificate into evidence. Mr. Jagoe says the trial judge erred in that analysis. He says the trial judge improperly applied the 3-part test set out in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) and R. v.

Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494 (S.C.C.). He invites this Court to conduct the appropriate analysis, and, after having done so, to arrive at the conclusion that the administration of justice would be brought into disrepute by the admission into evidence of the breathalyzer results. III. Analysis A. Crown Appeal: Causation as it relates to the application of s. 255(3.1) [ 7 ] Section 255(3.1) of the Criminal Code provides as follows: Blood alcohol level over legal limit — death

(3.1) Everyone who, while committing an offence under paragraph 253(1)( b ), causes an accident resulting in the death of another person is guilty of an indictable offence and liable to imprisonment for life. Alcoolémie supérieure à la limite permise: mort

(3.1) Quiconque, tandis qu'il commet une infraction prévue à l'alinéa 253(1) b ), cause un accident occasionnant la mort d'une autre personne est coupable d'un acte criminel passible de l'emprisonnement à perpétuité. [ 8 ] The excerpt from paragraph 53 of the trial judge's decision with which the Crown takes issue, which I have set out in paragraph 5 of these reasons, must be read in context.

I would begin that contextual reading with the observations of the trial judge on the issue of impaired operation of a motor vehicle causing death: Firstly, I wish to comment on the issue of causality, that is that Douglas Jagoe's impaired ability to operate a motor vehicle caused the death of Matthew Corrigan. Crown counsel must prove that the impairment of Douglas Jagoe's ability to operate a motor vehicle was at least a contributing cause of Matthew Corrigan's death. It must be more than an insignificant or trivial cause, in other words, it must be a real factor in causing Matthew Corrigan's death.

On this issue, I conclude that there is no evidence of causality between the death of Matthew Corrigan and any impairment of Douglas Jagoe. I am not satisfied beyond a reasonable doubt on the evidence that Douglas

Jagoe's impairment if any, was a real factor in Matthew Corrigan's death. In other words, I have a reasonable doubt on the issue of causality. As to the issue of whether or not Douglas Jagoe's ability to operate a vehicle was impaired by alcohol, from my assessment of the evidence as a whole, I am also not satisfied that the Crown has established this essential element beyond a reasonable doubt. The only evidence is the evidence that Mr. Jagoe had consumed one beer at a party earlier in the evening and three beers, more than likely less in the short time that he was at the Right Spot.

There is also the evidence of the expert Lori Campbell as to the effects of alcohol on the ability to drive. There is no evidence by any of the witnesses that his ability to operate a motor vehicle was even slightly impaired. In fact, it seems that the evidence indicates the contrary. In my view, the evidence falls short of establishing that Douglas Jagoe's ability to operate a motor vehicle was impaired by alcohol at any time on August 6th, 2008. For those reasons, I acquit Douglas Jagoe of the offence of operating a motor vehicle while impaired causing death (section 255(3)).

There is one last offence that I need to determine the guilt or innocence of Douglas Jagoe and that is the offence of unlawfully operating a motor vehicle causing an accident which resulted in the death of Matthew Corrigan while having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, contrary to section 255(3.1) of the Criminal Code of Canada. As previously mentioned, the Crown has established that Douglas Jagoe operated a motor vehicle and intended to operate a motor vehicle after he had consumed alcohol.

Those elements are not in dispute and are proven beyond a reasonable doubt. The Crown needs to establish beyond a reasonable doubt that Douglas Jagoe operated a motor vehicle while having consumed alcohol in such a quantity that the concentration thereof exceeded 80 mg of alcohol per 100 ml of blood and that the operation of the vehicle caused the death of Matthew Corrigan. Regarding this particular offence, the evidence establishes that the concentration of alcohol in Douglas Jagoe's blood exceeded the limit prescribed by law.

The certificate of analysis was allowed in evidence and Lori Campbell testified that at the time of the offence, Mr. Jagoe's blood alcohol level exceeded the prescribed limit of 80 mg of alcohol per 100 ml of blood. The evidence clearly indicates that Douglas Jagoe didn't consume any alcoholic beverages from the time of the accident until the time the breath tests were administered to him at 6:43 and 7:01. I find that Douglas Jagoe likely consumed less than three beers while at the Right Spot, probably no more than two and a half as well as one beer at his friend's place earlier in the evening. Mrs.

Campbell testified that in the least, Mr. Jagoe had a blood alcohol level of 97% mg at the time of driving at approximately 2:15 or 2:30, the time at which the accident occurred. I find that the evidence is clearly sufficient to establish beyond a reasonable doubt that Douglas Jagoe's blood alcohol level exceeded 80 mg of alcohol per 100 ml of blood. However, the Crown must also establish that the excess quantity of alcohol in Mr. Jagoe's blood (over 80 mg) was a contributing factor or a real factor in Matthew Corrigan's death.

On this essential element of the offence, I conclude that the evidence is insufficient to establish beyond a reasonable doubt that the excess in blood alcohol level (over 80 mg) was a contributing factor to the death of Matthew Corrigan. As a result, in the instant circumstances, I must acquit Douglas Jagoe of the offence as charged but on the evidence, I find Douglas Jagoe guilty of the included offence of operating a motor vehicle after having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 mg of alcohol per 100 ml of blood, contrary to

section 253 (

b) of the Criminal Code of Canada. [paras. 49-53] [Emphasis is mine.] [ 9 ] In paragraph 50 of his reasons, the trial judge properly described the offence as one of unlawfully operating a motor vehicle "causing an accident" which "resulted in the death" of Matthew Corrigan. Although Crown counsel urged us to focus uniquely on paragraph 53, and the trial judge's perceived misunderstanding of the law, I would decline to do so. The trial judge's comments must be considered in relation to the facts before him, the theory of the Crown and the whole of his judgment.

The Crown's theory was very simple: Matthew Corrigan's untimely death resulted from an "accident" caused by Mr. Jagoe while he [Jagoe] had readings of over 80 mg of alcohol per 100 ml of blood. [ 10 ] When the trial judge concluded that the unlawful driving had to be a contributing or real factor in Matthew Corrigan's death, he was, in my view, stating the obvious. There is no doubt the purported "accident" caused Mr. Corrigan's death.

The trial judge's observations set out in paragraph 53 are, in the circumstances, compatible with an assertion that the unlawful driving had to be a real factor in "causing" the accident. In the event it was a real factor in causing the accident, it follows that it was a real factor in the resulting death of Matthew Corrigan, even though that connection may not be necessary for a conviction.

Put another way, the over 80 driving could not be a real factor in Matthew Corrigan's death unless it was a real factor in "causing the accident". [ 11 ] While it would have been preferable for the trial judge to ask whether the unlawful driving was a real factor in causing the accident, rather than whether it was a real factor in causing death, I do not believe, on the facts of this case, anything turns on that distinction. Suffice it to say, I agree with the Crown contention that one need not prove the "over 80 driving" caused the death.

However, the "over 80 driving" must, in order to convict, be a real factor in the cause of the accident.

(1) Was there an "accident"? [ 12 ] In order to convict on the charge as laid, the Crown must prove the driving (which admittedly was over 80) caused the "accident". [ 13 ] The literalist approach to statutory

interpretation would render my analysis quite simple. It would unfold as follows. Mr. Jagoe was driving a vehicle while the alcohol in his blood exceeded 80 mg. per 100 ml. of blood. The fact he was driving when he should not have been was a real or contributing factor to the accident. Because he was on the road and involved in an accident from which death resulted, he should be convicted of this offence, which calls for a maximum penalty of life imprisonment. Surely, such an

interpretation would render s. 255(3.1) of the Code akin to an absolute liability offence. [ 14 ] As Ruth Sullivan observes in Sullivan on the Construction of Statutes , courts must apply a contextual and purposive analysis in their search for legislative intent.

Interpretations that would lead to absurd results are to be avoided (see generally

Chapter 9 of

Sullivan). Sullivan indicates that the modern understanding of the presumption against absurdity includes the following propositions:

(1) The legislature does not intend its legislation to have absurd consequences;

(2) Absurd consequences are not limited to incoherence and contradictions, but to violations of widely accepted standards of justice andreasonableness;

(3) Whenever possible, an

interpretation that leads to absurd consequences is rejected in favour of one that avoids absurdity; and

(4) The more compelling the absurdity, the greater the departure from ordinary meaning will be tolerated. [Sullivan, at pp. 300-301] [15] In order to be convicted, Mr. Jagoe must have "caused" an "accident". There is considerable jurisprudence which supports thenotion that, in prosecutions for leaving the scene of an accident, the word "accident" includes both intentional and unintentionalcollisions. For example, in R. v. Modeste, 2012 NWTSC 31, [2012] N.W.T.J. No. 39 (N.W.T. S.C.), the accused deliberately ran into thevictim with a snowmobile after an altercation.

When charged with leaving the scene of an accident with intent to escape civil or criminalliability, Mr. Modeste contended there was no accident. The coming together of the snowmobile and the pedestrian was quite deliberate.After a thorough analysis of the jurisprudence, Charbonneau J. concluded that an "accident", for purposes of s. 252, includes intentionalconduct on the part of the accused. In R. v. Hansen, (BC CA), [1988] B.C.J. No. 2600 (B.C. C.A.), the accused wasconvicted of attempted murder and leaving the scene of an "accident" after running down his lover's estranged husband.

He appealed theconviction of leaving the scene of an "accident" on the basis that the act was deliberate. Hutcheon J.A., for a unanimous Court,concluded that s. 236 (as it then was) must be construed to "include both intentional and unintentional striking by a motor vehicle of aperson". See also R. v. Chase, 2006 BCCA 275, [2006] B.C.J. No. 1252 (B.C. C.A.) and R. v. Chisholm, 1998 NSCA 155 ,[1998] N.S.J. No. 274 (N.S. C.A.). Needless to say, this line of authorities makes abundant good sense when dealing with leaving thescene of an accident to escape civil or criminal liability.

It would constitute an absurd result if one could deliberately strike an individualand leave the scene without penal consequences, while an accidental collision in which the driver left the scene would carry severeconsequences. [16] For purposes of applying s. 255(3.1) to the facts of this case, I am of the view an absurdity would result if this Court concludedthe facts as presented constitute an "accident". Unlike the line of cases relied upon by Charbonneau J. in Modeste, we are not faced witha deliberate and malicious act of the accused.

Here, the Court is presented with a collision between the purported victim and the vehiclewhich results from the deliberate conduct of the purported victim. I am of the view that Mr. Corrigan's conduct in jumping on the vehicleand wielding a baseball bat at the driver does not constitute an accident for the purposes of s. 255(3.1). In reaching this conclusion, Iwould not close the door to another Court interpreting "accident" more broadly in other circumstances where, for example, someoneintentionally jumps on the hood of a vehicle to affect an arrest of the driver or in

an act of self-defense. The distinguishing factor in thepresent case is that Mr. Corrigan's conduct was deliberate, criminal and totally unjustified. [17] I would go even further. Presuming the collision between Mr. Corrigan and Mr. Jagoe's vehicle meets the definition of an"accident", I am of the view the "accident" was not caused in any manner by Mr. Jagoe's driving. The purpose of s. 255(3.1) is to ensurethat persons who cause accidents while "over 80" suffer penal consequences. Section 253(1)(

b) is designed to deal with those who aresimply driving with over 80 mg of alcohol per 100 ml of blood. In this case, the collision between Mr. Corrigan and the vehicle occurredwhen Mr. Corrigan jumped onto the hood of the vehicle. That collision was caused solely by Mr. Corrigan's intentional act of jumpingon the hood. To those who would suggest that Mr. Jagoe's intentional braking and eviction of Mr. Corrigan from the hood caused an"accident" (the striking of Mr. Corrigan's head on the pavement) I would simply reply that the criminal law permits people to defendthemselves from assaults and imminent attacks.

In my view, it would be absurd to conclude that a perfectly sober driver confronted withan attacker on the hood of his or her vehicle causes an "accident" when he or she brakes to evict the intruder. Mr. Jagoe behaved nodifferently than one would expect from any other driver in similar circumstances, over 80 or not. The removal of an assailant from thehood of a car by braking does not become an "accident" just because the driver happens to have over 80 mg of alcohol per 100 ml ofblood. [18] To summarize, I am of the view Mr.

Jagoe was not involved in an accident as contemplated by s. 255(3.1) of the Code; and, ifhe was, he did not cause the accident. While the trial judge could have used different words as it relates to the causation test applied byhim, when considered within the context of his complete judgment and the facts of this case, I am not satisfied he erred. I would notinterfere in the result. B.

Cross Appeal: Application of s. 24(2) of the Charter [19] The trial judge concluded the arresting officer did not have reasonable and probable grounds to make the breathalyzer demand.The breath samples were thereby collected in violation of Mr. Jagoe's s. 8 Charter rights. The trial judge then applied the three-part testset out in R. v. Grant and R. v. Harrison to determine whether to exclude the evidence pursuant to s. 24(2) of the Charter. That testrequires the trial judge consider: (

i) The seriousness of the Charter-infringing state conduct; (ii) The seriousness of the impact of the Charter violation on the accused's Charter protected rights and interests; and (iii) Society's interest in the adjudication of the case on its merits [20] After applying the Grant-Harrison test, the trial judge admitted the breathalyzer evidence. His justification for doing so is setout below: THE COURT: You - in the instant case, in dealing with the approach and I'm not sure if I have the case that I wanted to quote from —

just if you want to bear with me for a minute — okay, in the instant case it is in making this Grant analysis using the framework, analytical framework enunciated in — well paragraph 77 of the decision, the first issue is the seriousness of the Charter infringing state conduct. In this case we're dealing with breath samples and as stated in Grant and many other decisions since Grant, we're dealing with breath sample evidence which are relatively nonintrusive in nature. It is a relatively nonintrusive method of collecting evidence.

In the circumstances which we are concerned with in this case, the Charter infringement was, quite frankly, not deliberate or flagrant. The officer held the belief that he had sufficient and reasonable grounds to make a demand. In regards to the seriousness issue of the Charter infringing conduct in the instant case, in my view, it clearly favours the inclusion of the evidence - where in my view it was - cannot be qualified as serious in nature. The next matter is the nature of the impact on the Charter protected interests. I also find that it favours the inclusion of the breath samples. Mr.

Jagoe was true handcuffed but he was already under arrest for two other offences for which he was detained. And on the whole of the circumstances I can only conclude that the — this consideration and factor favours the inclusion of the breath sample. The — also the — I would refer the - Counsel to what is contained in paragraph 111 of Grant.

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case...

And I would add, not all, ...with breath sample evidence, whose method of collection is relatively non-intrusive. Finally the other factor to be considered in the balancing factors is society's interest in having the case heard on the merit, there is no doubt that the evidence obtained through the breathalyzer is and has been considered as highly reliable.

On the whole of the circumstances in the instant case, the comments made by the Supreme Court in Grant and Harrison and other cases since, and along with the importance of the evidence in the instant case, of the breath samples as well as society's interest in the adjudication of this case on it's merits, all of these point, in my view, in favour of the admission of the evidence.

Balancing the factors, I conclude the evidence — the results of the breath and the certificate, would not bring the administration of justice into disrepute in the instant circumstances. [ 21 ] Absent an unreasonable finding, an error in law or principle or an error in the application of relevant factors, this Court owes deference to the trial judge's decision under s. 24(2): R. c. Côté , 2011 SCC 46 , [2011] 3 S.C.R. 215 (S.C.C.) at para. 44 ; R. v. Grant , at paras. 86 and 127 ; R. v. Arsenault , 2005 NBCA 110 , 295 N.B.R. (2d) 123 (N.B. C.A.) at para. 39 .

While I disagree with the trial judge's observation that the Charter violation was less serious because Mr. Jagoe was under arrest for other matters, I am of the view that error was not determinative. I would defer to the trial judge's s. 24(2) determination. IV. Conclusion [ 22 ] The appeal and the cross-appeal are dismissed.