R. v. Tan, 2011 ONCJ 570

Information No. 11 02826 Citation: R. v. Tan , 2011 ONCJ 570 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JERRY SZE-JIE TAN R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE P. WEST on August 23, 2011, at NEWMARKET, Ontario APPEARANCES: S. Kumaresan Counsel for the Crown M. Herman Counsel for Jerry Sze-Jie Tan TUESDAY, AUGUST 23, 2011 R E A S O N S F O R J U D G M E N T WEST, J. (Orally): On March 27th, 2011 Jerry Tan was charged with over 80 and impaired driving. He pleaded not guilty to both charges and a trial was commenced on today’s date. The Crown called two witnesses, P.C. Matthews, the arresting officer and P.C. Ng, the qualified breathalyzer technician.

The defence has brought a Charter application alleging that Mr. Tan’s rights pursuant to sections 7, 8 and 9 were infringed as Mr. Tan was arbitrarily detained and the arresting officer did not have reasonable and probable grounds to arrest him for impaired driving. Factual Background Constable Chris Matthews is a York Regional Police officer since August of 2004. He was on duty on March the 27th, 2011 on general patrol, driving a marked police cruiser and working in uniform. The area that he was working in, he has worked in for the last three years.

Constable Matthews testified that one of the nightclubs within the area that he was patrolling called Babyface Nightclub, at 490 Alden Road in Markham, is a location where there is a lot of drug activity within the parking lot and there are a lot of issues that have arisen from this club involving impaired drivers, particularly in the time period around the closing of the club at 2:00 a.m. Officer Matthews was situated outside Babyface Nightclub at 1:56 a.m., approximately.

He was observing a blue Mercedes, licence number BHRM 586, which had a number of occupants within it, saw that vehicle exit the parking lot onto Alden Road. He testified that the vehicle made a left hand turn, it was a wide turn, described the highway as being a four lane highway, although in cross-examination he indicated that just in front of Babyface Nightclub, Alden Road, going eastbound, may in fact have been three lanes because there was a left hand turn lane, in addition to the two normal lanes.

Officer Matthews testified that the vehicle, instead of turning into the left hand turn lane, went to the middle lane and then came back into the left hand turn lane. He then observed a slight hesitation when the light at Warden Avenue and Alden Road turned green. It was a brief moment, he testified, before the vehicle proceeded into its turn. Officer Matthews testified that the vehicle traveled below the speed limit when it made the left turn. He believed the speed limit was 60 kilometres per hour in that area.

In fact, he testified that it was well below the speed limit of 60 kilometres that the vehicle traveled. The vehicle was registered to Dione Lang Gho, 7523 Yonge Street, Inisfil, Ontario. After the vehicle made its turn, Officer Matthews almost immediately initiated a traffic stop on Warden Avenue, just north of the intersection. There were four occupants in the vehicle when he approached it, all of the windows were down, he testified, in the car. He did not have any notation in his notes as to the road conditions.

There was very little traffic on the road, maybe one or two cars drove by after he had initiated the traffic stop, but he testified that his stop of this vehicle at 1:56 a.m. was prior to the bar closing. Officer Matthews could detect an odour of an alcoholic beverage coming from the vehicle when he got close to the vehicle. He asked the driver for his ownership, insurance and driver’s licence. He testified there was a slight delay in the driver’s response. He grabbed his wallet and taking the driver’s licence out of the wallet it dropped onto his lap and then subsequently dropped onto the floor of the vehicle.

He testified that Mr. Tan reached down, got the licence and provided it to him. The licence identified the driver as Jerry Sze-Jie Tan, with a birth date of the 6th of April, 1988 and an address of 47 Meadowcliffe Avenue in Richmond Hill, Ontario. Constable Matthews identified the defendant as the driver. P.C. Matthews asked Mr. Tan where he was coming from, he did not recall whether he asked him at this point if he had been drinking. He said that Mr.

Tan appeared to be avoiding eye contact initially, but when he did turn to look at the officer, I’m assuming when he handed him the driver’s licence, he observed that his eyes were glossed over and slightly red. He asked him at that point if he had been drinking and Mr. Tan said no. At that point P.C. Matthews testified he could smell alcohol coming from Mr. Tan’s mouth. Officer Matthews was asked by the Crown what he did next and it was his testimony that as a result of observing the vehicle coming from the Babyface Nightclub parking lot, because of observations he made of Mr.

Tan’s eyes, being glossed over and slightly red, the fact that Mr. Tan had dropped his driver’s licence into his lap and then subsequently fell to the floor, and the fact that he smelled an odour of an alcoholic beverage on Mr. Tan’s breath, as a result of those four things he formed grounds to believe that Mr. Tan was impaired by the consumption of alcohol. He immediately advised Mr. Tan he was under arrest for impaired driving. Mr. Tan was still sitting in his car.

Officer Matthews then asked Mr. Tan to exit the vehicle and said he was kind of unsteady on his feet. He said he helped Mr. Tan up and he didn’t know if he was unsteady standing because he had been sitting or because of alcohol, was his evidence. He said he had a slight sway when he walked to the police cruiser, but he had no difficulty walking on his own. He then handcuffed Mr. Tan’s hands behind his back and then placed him in the rear of his police cruiser. He read Mr. Tan his right to counsel and caution. There was some conversation between Mr.

Tan and the police officer about whether this would ruin his opportunity to have a career as a police officer. Mr. Tan said that he was currently a student, that he was going to apply. The officer told him it may very well affect his career, but told him that he didn’t do the hiring for York Regional Police. He made a breath demand, there were no delays. Mr. Tan understood his right to counsel, his caution and his breath demand. Left the scene at 2:09 a.m. and went directly to the police station, arriving there at 2:15 a.m., was paraded and booked by the acting staff sergeant. Officer Matthews testified that Mr.

Tan’s speech was fine, no difficulties, no slurred speech at all. He said that Mr. Tan was more alert at the station when he was being paraded. Mr. Tan requested to speak to duty counsel at the station and was given the opportunity to speak to a lawyer. He was turned over to Constable Ng, who was the breathalyzer technician, at 2:45 a.m., provided his grounds for his arrest to Constable Ng and then Officer Matthews left. P.C. Ng returned Mr. Tan to Constable Matthews at 3:16 a.m. He then served documents on Mr. Tan.

In cross-examination Constable Matthews indicated that he appreciates how important his police notes are and that he should be putting in his notes all matters that are of relevance to his investigation. He also agreed that his notes are his best recollection because they are made at the time the events are unfolding, or shortly thereafter. He indicated that his notes reflected that Mr. Tan had made a wide left turn onto 14th Avenue, which was in error because the street was actually called Alden Road.

He agreed that there were various other stores in the strip malls that the Babyface Nightclub was located in, however, it was his belief that they were closed, those stores, and the only thing open was Babyface Nightclub. He indicated that the police had been targeting Babyface Nightclub for the past two years since it had first opened. As I indicated before, Officer Matthews originally said there were four lanes on Alden Road at this location.

He agreed with defence counsel there very well may have been three lanes proceeding eastbound, having regard to the left hand turn lane and in fact his evidence in-chief, as I have recounted it, indicated that the left turn that Mr. Tan made onto Alden Road eastbound was into the middle lane, crossing the left turn lane and then moving back into the left turn lane as he came towards the stop light at Warden Avenue. Constable Matthews testified he felt that it was a wide left turn onto Alden Road. He testified that after he made that turn he went back into the left turn lane.

He agreed that it was a very short distance from the exit onto Alden Road to the intersection of Alden Road and Warden Avenue, less than two tenths of a kilometre. It would have taken Mr. Tan an extremely short period of time to get to Warden Avenue. He agreed that he only observed Mr. Tan’s driving for a short period of time. He saw no squealing of his tires, he saw that Mr. Tan stopped in the appropriate place at the intersection of Warden and he stopped in an appropriate way. At no time did he cross over into the westbound lanes of Alden Road. P.C.

Matthews indicated for the first time in cross-examination that he in fact pulled up right behind Mr. Tan’s vehicle as it was stopped waiting for the light to turn green at Warden Avenue. He testified that Mr. Tan took his time making the left hand turn. He agreed ultimately, while initially he resisted agreeing, that someone may very well proceed slowly making a turn when there is a marked police cruiser right behind their motor vehicle. He finally looked in his notes and agreed that he had an approved screening device in his police cruiser that night because he tested it at the beginning of his shift.

As soon as Mr. Tan made the left hand turn to proceed northbound on Warden Avenue he immediately put his roof lights on and pulled Mr. Tan’s vehicle over. Mr. Tan stopped immediately, pulled to the right appropriately, there was no delay in his stopping. Officer Matthews agreed that there was nothing in his notes about red eyes. The only thing in his notes was glossed over eyes. In his evidence in-chief, I didn’t hear this, but it was put to the witness that he had testified that there was a strong smell of alcohol on Mr. Tan’s breath. I have it only noted as a smell of alcohol.

It turns out that in Constable Matthews notes he also noted only a smell of alcohol on Mr. Tan’s breath, nothing else. There is no mention of slurred speech and in fact he testified that Mr. Tan’s speech was fine. There is no mention of any difficulty walking off balance because Mr. Tan never walked, never stood prior to his arrest. He agreed that if one came from a bar he wouldn't be surprised to smell alcohol on that person’s breath. He also agreed it wouldn't mean necessarily that the person was impaired; it would only provide a suspicion that the person had alcohol in their body.

The total time that Constable Matthews was with Mr. Tan was probably around three minutes. He first saw him at about one fifty five, he effected the stop at one fifty six, he then had the walk from the cruiser to the car and he then began his interaction with Mr. Tan. The arrest was at 2:00 a.m. P.C. Ng testified for the Crown and his evidence, in my view, is not particularly relevant to the Charter application that is before the Court because his observations occurred after the arrest of Mr. Tan. P.C. Ng is an eight year veteran of the York Regional Police, then five years as a qualified breath technician.

He received Mr. Tan to provide two samples into an intoxilyzer 5000C approved instrument.

He noted that Mr. Tan’s face was flushed, his eyes were bloodshot, there was a strong odour of alcohol on Mr. Tan’s breath coming fromhis mouth and Mr. Tan was nervous and crying. He testified that his balance was sure and his conclusion was that there was a slightaffect on him by consumption of alcohol. It was Constable Ng’s testimony that he checked off slight affect of alcohol because Mr. Tan’s face was flushed and his eyes werebloodshot. He ultimately indicated that he put slight affects of alcohol because he was unable to say whether or not Mr.

Tan’s ability tooperate a motor vehicle was impaired by the consumption of alcohol, based on his observations of him. Was Mr. Tan Arbitrarily Detained? The first question on the Charter application is whether Mr. Tan was arbitrarily detained.

Section 9 of the Charter states that “Everyonehas the right not to be arbitrarily detained or imprisoned”. There are two separate elements necessary to support a finding of “arbitrarydetention”, namely, (

i) the person must be “detained” and (ii) the detention must be “arbitrary”. Generally a lawful detention is notarbitrary, within the scope of

section 9, when it is authorized by statue or common law. Police conduct that interferes with the liberty orfreedom of the individual is not rendered lawful merely because it assists in the performance of police duties and will be lawful onlywhen authorized by statute or by common law. See Regina v. Mann (2004), 2004 SCC 52 , 185 C.C.C. (3d) 308 (S.C.C.) atparas. 15-20; Regina v. Simpson, (1993) (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.) at paras. 31-34.

The Supreme Court in Mann held: “...the evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to bepremised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of thecircumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoingcriminal offence.

Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion thatthe particular individual is implicated in the criminal activity under investigation.” (para. 34) In Regina v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 (S.C.C.) (para. 54) the Supreme Court held that: “The

section 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in

section 7, that a person’sliberty is not to be curtailed except in accordance with the principles of “fundamental justice.” Further the majority held that: “Mann, in confirming that a brief investigative detention based on “reasonable suspicion” was lawful, implicitly held that a detentionin the absence of at least reasonable suspicion is unlawful and therefore arbitrary within

section 9 (para. 55).” P.C. Matthews testified that police officers from his station, himself included, often observed the patrons leaving the Babyface Club about an hour before closing, as it was a bar wherethere is often a lot of drug activity occurring in the parking lot as well as impaired drivers leaving the parking lot around closing time. On March 27, 2011 P.C. Matthews observed Mr. Tan’s vehicle leaving the parking lot.

He indicated that he stopped the vehicle becausethe driver made a wide left turn onto Alden Road eastbound, moving into the middle lane before coming back to the left turning lanebefore stopping at a red light at Warden Avenue, which is a very short distance from the exit, and then when the light turned green thevehicle made its left turn well below the speed limit, which he believed was 60 kilometres per hour. In my view, a reasonable inference can be drawn from this evidence that P.C. Matthews was stopping the vehicle in the execution of hislawful duties to determine whether the driver might be impaired.

Given the vehicle was coming from the parking lot and exiting in frontof the Babyface Club and the officer’s experience relating to other drivers who were investigated coming out of that location possiblybeing impaired, in my view the officer, in stopping Mr. Tan’s vehicle to investigate whether there might be grounds to suspect the driverhad alcohol in his body and then demand an ASD or whether there were reasonable and probable grounds to believe the driver wasimpaired.

As the Supreme Court of Canada has indicated recently in Regina v. Suberu 2009 SCC 33 , [2009] S.C.J. No. 33 at para. 3: “However, as this Court held in Mann, not every interaction between the police and members of the public, even for investigativepurposes, constitutes a detention within the meaning of the Charter.

Section 9 of the Charter does not dictate that police abstain frominteracting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under

section 10(b). As Iacobucci,J. aptly observed, “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But theconstitutional rights recognized by sections 9 and 10 of the Charter are not engaged by delays that involve no significant physical orpsychological restraint”.” Consequently, in my view, the defence has not demonstrated on a balance of probabilities that Mr. Tan’s

section 9 Charter right wasinfringed. Did P.C. Matthews have Reasonable and Probable Grounds to Arrest Mr. Tan for Impaired Driving? P.C. Matthews testified that as a result of Mr. Tan coming from the Babyface Club parking lot, his glossed eyes, the smell of alcoholemanating from Mr. Tan’s mouth and the fact that Mr. Tan first dropped his licence into his lap and from there it fell to the floor, heformed the grounds to arrest Mr. Tan for impaired driving and he did so. P.C. Matthews described the wide left turn onto Alden Road, made by Mr.

Tan as he exited the parking lot, in this way: “Instead ofturning into the left hand turn lane the vehicle went to the middle lane and then came back into the left hand turn lane”. He thenindicated that when the light turned green at Alden and Warden Avenue there was a slight hesitation before the vehicle proceeded tomake its turn onto Warden Avenue northbound. The vehicle, according to P.C. Matthews, was traveling below the speed limit when hemade the turn. He believed it was a 60 kilometer per hour zone. The vehicle turned well below the speed limit, according to P.C.Matthews. In Regina v. Censoni, [2001] O.J.

No. 5189, Justice Hill stated at paragraph 35 and I will also be reading from paragraph 43: 35 - “In reviewing the objective component of reasonable grounds, the question is whether the officer’s opinion was supported byobjective facts: Regina v. Berlinski, (ON CA), [2001] O.J. No. 377 (Ont. C.A.) at para. 3 per curiam. The existenceof a “constellation of objectively discernible facts”, spoken of by Doherty, J.A. in Regina v. Simpson (1993), (ONCA), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing “articulable cause”, is also a necessary feature of reasonable grounds: Reginav. Hall, (ON CA), [1995] O.J.

No. 544 supra at 74-75. In Storrey v. The Queen, (SCC), [1990] 1S.C.R. 241 supra at 324, Cory, J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable andprobable grounds existed. This was the approach followed in Regina v. Hall, supra at 77 and to this end in Regina v. Oduneye, (1995),1995 ABCA 295 , 15 M.V.R. (3d) 161 (Alta.

C.A.) at 168-169, the Court accepted the existence of objective reasonablegrounds must be based on facts known by or available to the peace officer at the time he or she formed the belief. 43 - Reasonable grounds in the context of a section 254(3) breath demand is not an onerous threshold. It must not be inflated to thecontext of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, thedefendant invites the trial court to engage in minute decisions of the officer’s opinion – an opinion developed on the spot without theluxury of judicial reflection.

This undoubtedly led McFadyen, J.A. in Regina v. McClelland, 1995 ABCA 199 , [1995] A.J. No.539 supra at 517 to observe: “It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer’sbelief was reasonable”.” In Regina v. Wang, 2010 ONCA 435 , [2010] O.J. No. 2490 at paras. 17, 20 and 21, the Ontario Court of Appeal, relying onRegina v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527, made the following observations concerning the forming of reasonableand probable grounds by a police officer:

“[w}here a Court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief wasreasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, whenimpaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support theofficer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see Regina v.

Stellato (1993), (ON CA), 12 O.R. (3d) 90 (C.A.), affirmed (SCC), [1994] 2 S.C.R.478.

The facts supporting a finding that the officer’s subjective believe was reasonable in the circumstances were as follows: (1) the appellant was driving at widely varying speeds below the speed limit as slow as 60 kilometres and as fast as 80 kilometresin a 90 kilometre an hour zone; (2) the appellant wad driving in the middle lane of the three northbound lanes of the Don Valley Parkway and cars were passingher on both sides; (3) the appellant was repeatedly swerving within and between the lanes; (4) the appellant continued to drive for a significant distance while being signaled to pull over by the police in a marked cruiser,first by flashing lights, then use of an electric air horn, and eventually by use of the car’s siren; (5) when she was eventually stopped, the appellant stopped in a live lane of traffic rather than on an available, albeit narrow,shoulder; (6) there was an obvious odour of an alcoholic beverage coming from the appellant’s breath; (7) the appellant’s face was flushed; and (8) when initially questioned by the officer, the appellant admitted to having consumed one alcoholic beverage.

When the officerexpressed disbelief she changed her answer, acknowledging that she may have had two. In my view, these facts are sufficient, at law, to objectively support the officer’s subjective believe that the appellant was drivingwhile impaired by alcohol. The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes,were not present does not render the officer’s subjective believe, based on the signs he did observe, objectively unreasonable.

As aresult, I would find that the officer had reasonable and probable grounds to make the arrest and make the breath demand and that theappellant’s Charter claim must therefore fail.” In Regina v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 (Ont. C.A.) at paras. 37, 46 and 47, the Court, in reiterating that apolice officer is only required to have a belief that a driver’s ability is impaired by alcohol even to a slight degree, made these furtherobservations: “Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the Criminal Codeauthorizes peace officers to demand intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believe thata person is committing or at anytime within the preceding three hours has committed” the offence of impaired operation or driving ‘over80’. Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case: see Censoni atparagraph. 31 and Regina v. Shepherd 2009 SCC 35 , 2009 S.C.C. 35 at para. 23.1.

In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see Regina v. Wang, 2010(Ont. C.A.) 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threatenindividual freedom: see Censoni at para. 43. There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds toarrest: Regina v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1.

Impairment may be established where the prosecution proves anydegree of impairment from slight to great: Regina v. Stellato (1993), (ON CA), 12 O.R. (3d) 90 (Ont. C.A.) affirmed (SCC), [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform acomplex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rulesof the road: see Censoni at para. 47.” I do not think it was argued by Mr. Herman that P.C. Matthews did not have the requisite subjective belief.

The sole issue is whether hissubjective belief was objectively reasonable in the circumstances. In Wang, there is no doubt that the facts were sufficient to objectively

support the officer’s subjective belief that the driver was driving while impaired. There was a great deal of evidence concerning thedriver’s manner of driving and how the vehicle did not immediately stop when signaled to do so and then stopped inappropriately. In my view, the driving in this case, when viewed objectively, does not support the officer’s subjective belief of impairment. The leftturn is not, in my view, out of the ordinary or indicative of someone operating a vehicle under the influence of alcohol.

Further, making a left turn at an intersection controlled by traffic lightsbelow the posted speed of 60 kilometres per hour, when a marked police cruiser is directly behind the car making the turn, is, in myview, appropriate driving conduct. When the vehicle left the parking lot it did not squeal its tires or fish tail or drive at an excessive rateof speed, it did not go into the westbound lanes. Mr. Tan stopped his vehicle appropriately at the red light in the appropriate place. Assoon as he completed his turn onto Warden Avenue northbound the police officer activated his roof lights and Mr.

Tan pulled overimmediately onto the shoulder. In my view, none of the driving supports the officer’s subjective belief. Further, when P.C. Matthews testified as to his reasonable grounds he did not refer to any of the driving. The grounds identified by P.C.Matthews, in my view, would have provided him with a reasonable suspicion to suspect that Mr. Tan had consumed alcohol and hadalcohol in his body. In those circumstances this would have allowed P.C. Matthews to make an ASD demand of Mr. Tan. In myopinion, the observations of P.C.

Matthews only describes symptoms which indicate consumption of alcohol, but do not, in my opinion,indicate any reduction in motor skills or balance. It concerns me the speed with which P.C. Matthews came to his conclusion in this matter, and the significant lack of objective groundsfor the arrest and the demand. The officer formed his opinion while the defendant was still sitting in his car. The officer stated hissubjective certainty that the defendant was impaired, but had, in my opinion, very little objective information to go on. After weighing the totality of the information known to P.C.

Matthews, I do not think that he had “reasonable and probable grounds”upon which to arrest Mr. Tan for the offence of impaired driving. Consequently, I find that Mr. Tan’s Charter rights pursuant to sections7 and 8 were infringed. What is the Appropriate Remedy Under Section 24(2)? In Regina v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 (S.C.C.) (para. 71) the Supreme Court adopted a new framework forthe exclusion of evidence pursuant to section 24(2) of the Charter.

It was held that section 24(2) requires a trial judge to assess andbalance the effect of the admission of evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. In my view, the fact that P.C. Matthews did not have reasonable and probable grounds to arrest Mr. Tan was a very serious breach of Mr.Tan’s Charter rights.

The requirement that a police officer must have reasonable and probable grounds before effecting an arrest of acitizen is fundamental to his being able to deprive someone, as in Mr. Tan’s situation, of his liberty and freedom. In my view, this factorfavours exclusion. Further, the impact of the breach on the Charter-protected interests of Mr. Tan, in my view, was significant; being handcuffed, placed inthe rear of a police cruiser, driven to the police station and then being placed in a cell for a period of time. Certainly, such aninterference with Mr.

Tan’s personal liberty cannot be dismissed as minor: see Regina v. Au-Yeung, 2010 ONSC 2292 , [2010]O.J. No. 1579 (Ont. Sup. Ct., Ducharme, J.). While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed toextend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds.

Tocondone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 7 and 8of the Charter, the police can ignore these rights and then can arrest any driver, even if they do not have reasonable and probablegrounds. Consequently, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant alsoweighs in favour of exclusion of the evidence.

The final factor relates to society’s interest in the adjudication of the case on its merits. Certainly, evidence obtained by analysis of breath samples is reliable and would not mislead a trier of fact. Moreover, as the general public accepts the use of breath sample evidence, admitting the evidence would not create an impression that the appellant’s trial was unfair or otherwise bring the administration of justice into disrepute. Thus, the third branch of the Grant analysis favours the admission of the breath sample evidence. Conclusion The fact that P.C.

Matthews did not have reasonable and probable grounds to arrest Mr. Tan for the offence of impaired driving led to a serious breach of his Charter rights. Balancing all of the considerations under the three factors set out in Grant , I am persuaded for all of these reasons that admitting the breath sample evidence in this case would bring the administration of justice into disrepute. The Crown has conceded that without this evidence it is impossible to obtain a conviction. Therefore, the charge of over 80 is dismissed. With respect to the offence of impaired driving, I have already found that P.C.

Matthews did not have reasonable and probably grounds to arrest Mr. Tan on this charge. P.C. Ng, a qualified breath technician for five years, indicated that based on his observations he was unable to say whether Mr. Tan was impaired or not. I am aware that the degree of impairment necessary to prove this charge needs only be slight, Stellato, supra . The Criminal Code does not prescribe any specific test for determining impairment. Impairment is an issue of fact which a trial judge must decide on the evidence.

The standard of proof is neither more nor less than that required for any other element of a criminal offence. If the evidence establishes beyond a reasonable doubt any degree of impairment, the offence has been made out. I find that the evidence in this case fails to satisfy me beyond a reasonable doubt that Mr. Tan’s ability to operate a motor vehicle was impaired by alcohol. Consequently, that charge is dismissed as well. FORM 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, Carol P. Smith, certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v.

Jerry Sze-Jie Tan, in the Ontario Court of Justice held at 50 Eagle Street West, Newmarket , Ontario, L3Y 6B1 taken from Recording Number 4911-

303-20110823-092154, which has been certified in Form 1. (Date) (Signature) Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Carol P. Smith, and accordingly are in direct violation of the Ontario Regulation 587/91 , Courts of Justice Act, January 1, l990. Transcript Order Received................. September 15, 2011 Transcript Completed...................... November 1, 2011 Ordering Party Notified................... November 2, 2011