R. v. MacDonnell, 2015 NSPC 69

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. MacDonnell , 2015 NSPC 69 Date: 2015-07-27 Docket: 2730116, 2730117 Registry: Halifax Between: Her Majesty the Queen v. Victor Felix MacDonnell Judge: The Honourable Judge Timothy Gabriel, J.P.C. Heard: May 21, 2015 and July 27, 2015, in Shubenacadie, Nova Scotia Oral Decision July 27, 2015 Charge: Sections 253(1) (

a) and 253(1)(

b) of the Criminal Code Counsel: Jillian Fage, for the Crown Robert Cragg, for the Defence I. Introduction [ 1 ] On May 4 th , 2014, shortly before 3:00AM, Constable Carrie McCabe, an RCMP officer of 11 years’ experience, was on routine patrol in the Enfield region, working general duty shift. She was positioned on the shoulder of the Horne Settlement Road, with her lights off, observing passing vehicles for Motor Vehicle Act infractions. [ 2 ] Constable McCabe observed a black pickup truck leaving the parking lot of the Enfield Legion. She had turned when she noted the sound of tires squealing.

When she looked, she saw the black pickup at a standstill. No other moving vehicle was on the roadway, or in the area. The vehicle left the parking lot and turned onto the roadway. As it proceeded, Constable McCabe observed that it was weaving, albeit within its own lane. [ 3 ] McCabe followed the vehicle, initially, with only the normal running lights activated. When she observed the vehicle weaving as described, she quickly activated her emergency lights. The black pickup came to an abrupt stop.

All told, the officer had followed it for between 0.3 to 0.5 kilometres over a time interval of less than a minute. [ 4 ] The black pickup was being driven by the accused, Victor MacDonnell. He was pulled over, which lead to him being presented with the breath demand, and (at the police station), to his providing two samples of his breath, at 3:46AM and 4:08Am respectively. These readings were 140 and 130 milligrams of alcohol on 100 millilitres of blood.

He was released later that morning. [ 5 ] The accused is, accordingly, charged with having operated his motor vehicle at a time when his ability to do was impaired by alcohol, and with having care and control of a motor vehicle when his blood alcohol level exceeded 0.08, contrary to Sections 253(1) (

a) and 253(1)(

b) of the Criminal Code . [ 6 ] Mr. MacDonnell has raised three Charter issues. 1. First, he argues that Constable McCabe lacked reasonable and probable grounds for his arrest, alleging, in effect, a

Section 8 violation. 2. Second, he contends that he was not permitted access to his counsel of choice, a

Section 10(

b) breach. 3. Finally, he argues that he was arbitrarily detained in lock up following his arrest, which is a

Section 9 breach. [ 7 ] In the event that I accept either or both of his arguments in relation to issues 1 and 2, he asks that the breath sample results be excluded pursuant to Section 24(2) of the Charter . If I accept his argument with respect to the third issue, he asks that the charges against him be stayed, also pursuant to Section 24(2). [ 8 ] Accordingly, the matter proceeded by way of voir dire in order to permit these issues to be considered. I will deal with each sequentially. II. Analysis (

A) Section 8 Charter Violation [9] As to this issue, Defence counsel indicates at page 3 of his written submission:

Constable McCabe’s grounds for placing Mr. MacDonnell under arrest appear to be as follows: (

a) His swerving on one occasion within his own designated driver lane. (

b) His red droopy eyes. (

c) His single stumble as he climbed down out of his truck. (

d) An odour of alcohol on his breath. [10] The accused, through his counsel, argues that only one of these grounds has even possible validity.

He points out that the roadupon which he was travelling was littered with potholes, which explains the swerving, that his red droopy eyes could easily have been theresult of the lateness of the hour, and the stumble out of the truck is explained by the combination of the height of the truck’s cab, andthe design of the cab, which makes it necessary for him to “lean out and around the rear part upon exiting, as is commonplace of allpersons exiting such trucks.” [11] I have two main concerns with the accused’s contentions noted above.

First, they purport to treat the observations of ConstableMcCabe on a piecemeal basis, rather than holistically. Second, they do not deal with all of the indicia to which Constable McCabereferred in her evidence. [12] The relevant portion of Section 254(3) of the Criminal Code, reads as follows: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person to (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, … [13] Much like the case when the Court is dealing with circumstantial evidence, it is not uncommon for an accused to offerexplanations for most, if not all of the individual facts upon which an officer has formulated the “reasonable grounds” contemplated bysection 254(3), while ignoring the totality of such circumstances and how they impacted cumulatively upon the officer’s judgment. [14] Defence counsel points to the testimony of the accused and that of David Evans (another Defence witness), which was to theeffect that the road that Mr.

MacDonnell’s vehicle traversed that evening contained “a lot of potholes” , and says that this accounted forthe swerving to which Constable McCabe testified. These witnesses also testified that the accused’s vehicle did not “squeal” its tires.

Moreover, the accused argues that he and he and his witnesses have offered the Court an explanation as to why the accused vehiclepulled out of view (around the back of the Legion) for about seven minutes before exiting the parking lot, as well as with respect to hisstumble or “rolling motions” upon exiting the truck. [15] The law in this area is clear, and the Supreme Court of Canada is always a good place to begin. As such, I refer to the decisionin R. v.

Shepherd, 2009 SCC 35 , [2009] 2 SCR 527, where at paragraphs 16-17, the Court reiterated the essential principles thatare in play: [16] As noted above, s. 254(3) of the Criminal Code requires that the officer have reasonable grounds to believe that within thepreceding three hours, the accused has committed, or is committing, an offence under s. 253 of the Criminal Code. The onus is on theCrown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breathsamples obtained as a result of a warrantless search.

It would also be impractical to place the burden on the accused because evidence ofthe presence or absence of reasonable and probable grounds is within the “peculiar knowledge” of the Crown (R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 210). [17] As this Court noted in Bernshaw, there is both a subjective and an objective component to establishing reasonable and probablegrounds; that is, the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, andthere must be reasonable grounds for this belief (Bernshaw, at para. 48).

Here, it is not disputed that the officer had a subjective beliefthat Mr. Shepherd was intoxicated.

The courts below disagreed, however, on whether the officer’s subjective belief was reasonable inthe circumstances. [16] Then in paragraphs 21 and 23 of Shepherd, the Supreme Court went on to say: [21] In his ruling, the trial judge rightly stated that the totality of the circumstances should be considered in determining whether theofficer had reasonable and probable grounds to make the breath demand. … [23] … the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offenceof impaired driving or driving “over 80” before making the demand.

He need not demonstrate a prima facie case for conviction beforepursuing his investigation. … [17] So, too, in the recent decision of the Nova Scotia Court of Appeal in R. v. Schofield, [2015], NSCA 5, the Court cautions against

the very type of analysis that the accused, in his submissions, appears to invite. In Schofield , after a thorough review of a number of authorities, Justice Fichaud had this to say in paragraphs 33 to 35: [33] The question is - did the “totality of the circumstances” known to the officer at the time of the breath demand rationally support the officer’s belief? The officer may infer or deduce, draw on experience, and ascribe weights to factors.

Parliament expects the officer to do this on the roadside according to a statutory timeline, while informed by the available circumstances, but without either the benefit of trial processes to test the accuracy of his or her belief or “the luxury of judicial reflection”. The officer must identify the supporting circumstances at the voir dire . But the officer was not expected to apply the rules of evidence at the roadside. So the support may be based on hearsay.

The supporting connection must be reasonable at the time, but need not be proven correct at the later voir dire that considers s. 254(3) . [34] The judge should not segregate the officer’s criteria for piecemeal analysis, then banish each factor that might have a stand- alone explanation. From the officer’s roadside perspective, the factors may have had corroborative weights that together formed a sounder platform for an inference of impairment . The reductive approach denies that corroborative potential. As this Court recently said, of reasonable and probable grounds for a search warrant, ( R. v.

Liberatore , 2014 NSCA 109 , para. 27 ): The body of evidence isn’t anatomized for a segregated analysis of each fragment. Viewed as a whole, its bits may be cross- confirmatory. [35] There is no minimum period of investigation, mandatory line of questioning or legally essential technique, such as a roadside screening. The judge should not focus on missing evidence.

Rather, the judge should consider whether the adduced evidence of circumstances known to the officer reasonably supported the officer’s view. [Emphasis Added] [18] I find that the totality of the circumstances known to Constable McCabe at the relevant time, included the following: 1. She had observed the accused’s truck move from the parking lot in front of the legion to a spot behind the legion where it could not be directly observed and where it remained for approximately for 7 to 10 minutes. 2. She heard (rather than saw) the squealing of tires.

The only vehicle in view when she turn was the accused’s truck. 3. The truck, while being operated slowly by the accused, was observed to be swerving within its lane. 4. A smell of alcohol emanated from the vehicle after it was stopped. 5. The accused was possessed of droopy and red eyes. 6. The accused “rolled” (which is Constable McCabe’s word) out of the vehicle, and this was coupled with his apparent unsteadiness after doing so. 7. The smell of alcohol on the accused’s breath after he was outside of the vehicle. 8. The fact that the accused was observed to be speaking slowly and deliberately.

Each of the factors as noted above was, to borrow the words of Justice Fichaud at paragraph 50 of R. v. Schofield , “... reasonably inferential of slight impairment” at the very least. [19] Cumulatively, these factors more than provide the objective framework, or the reasonable grounds, to sustain the officer’s subjective belief that an offence under

Section 253 of the Criminal Code , “as a result of the consumption of alcohol” had been committed. The first Charter argument advanced by the accused accordingly fails. (

B) Section 10(

b) Charter Violation [20] When Constable McCabe advised the accused that he was under arrest, she gave him his Rights and Caution. No issue has been taken with the manner in which this information was imparted to Mr. MacDonnell. When she asked him if he wanted to speak to a lawyer he said “Yes, Bob Cragg.” This occurred in the police vehicle. They departed the scene for the Enfield RCMP detachment. It took them about 10 minutes to get there. [21] Upon arrival, Constable McCabe took the accused into a room with a phone. Again she asked him if he wanted to contact a lawyer and again he answered, “Yes, Bob Cragg”.

However, the accused did not have a phone number for Mr. Cragg. The phonebook in the room contained Hants County listings only. Mr. Cragg is a lawyer practicing in Halifax Regional Municipality. His contact information was not in the Hants County telephone directory. Constable Morrison, at Constable McCabe’s request, accessed the Halifax Regional Municipality directory by “googling” it on his cell phone, and obtained Mr. Cragg’s office number, which is 422-1776. No other phone number was provided for Mr.

Cragg in the Yellow Pages directory thus accessed by the officer. [22] Constable McCabe made two or three attempts to contact Mr. Cragg between 3:11AM and 3:13AM using the officer number thus obtained. Not surprisingly, Mr. Cragg was not at his office at this hour of the morning. There was no recorded message at his office providing any additional means by which to contact Mr. Cragg, such as an after-hours phone number. Mr. MacDonnell testified

that he was unsure of what to do at this point. He said “I didn’t understand why I couldn’t have my lawyer.” Mr. MacDonnell testifiedthat Mr. Cragg’s office and after-hours telephone numbers were programed into his cell phone, but he did not have his cell phone withhim, and he did not mention this fact to the officers in any event. He said to Constable McCabe, “I don’t know what to do.” Sheexplained again about the availability of duty counsel, and said that if he was unsure of what to do, he should speak to duty counsel.

Theaccused agreed to do so. [23] At 3:15 AM, Laura McCarthy, who was duty counsel on call at that time, was contacted. At 3:16 AM, Constable McCabe leftthe room so that Mr. MacDonnell could speak with her privately. At 3:19 AM Mr. MacDonnell exited the phone room. He did notmention Mr. Cragg’s name again. He did not express dissatisfaction with the advice he received. He thereupon agreed to providesamples of his breath for analysis. [24] Upon cross-examination, Constable McCabe was shown a page from the White Pages telephone directory, which carries alisting for one “Robert G.

Cragg”, on Armview Terrace in Halifax and a home number for this individual. The White Pages directorylisting does not identify him as a lawyer. Both Constable Morrison and Constable McCabe testified that, even if they had known thatthere was a listing in the Halifax Regional Municipality White Pages for a “Robert G. Cragg”, in the absence of an indication that he wasa lawyer or some other indication that this was the “lawyer Bob Cragg”, they considered it irresponsible to be telephoning people athome after 3:00 AM in the morning. [25] The Crown, in its brief, cites the case of R. v.

Sterling Collicut, [2008] CarswellNS 816, a decision of Judge Anne Crawford asshe was then, of this Court. This was also a counsel of choice case, and the counsel in question in that case was also Robert Cragg. Judge Crawford noted at paragraphs 5, 7 and 10. [5] … After the defendant failed the approved screening device test, Cst. Collins read the defendant his right to counsel in his policevehicle at the scene. The defendant said that he wanted to speak to Mr. Cragg, the lawyer who represented him at trial. [6] … Cst. Collins testified that as the defendant did not know Mr.

Cragg’s number, they looked it up in the phone book. He said hehimself then dialled Mr. Cragg’s office number and, not surprisingly on a Sunday afternoon, no one answered nor was there ananswering machine on which to leave a message. Cst. Collins told the defendant there was no answer and asked if he would like to calllegal aid, meaning duty counsel. The defendant replied no; he would call his own lawyer later after he took the test. [7] On cross-examination the officer was shown the telephone book in effect at the time and testified that he called the bolded numberfrom the white pages.

He said he did not call the non-bolded number below the bolded entry, with a civic address on Armview Avenuein Halifax, as there was no indication it referred to the same person, nor did he offer to call it. [26] And then in paragraph 10 Judge Crawford states: [10] On this Charter issue, the burden is on the defendant to establish on a balance of probabilities that his right to counsel has beenbreached. [27] Stepping back from the facts in Collicut, supra for a moment, it is settled law that when analyzing a “Right to Counsel ofChoice Case”, essentially a three-step analysis is required: (

a) If the police fulfill their duty to diligently facilitate the right of an accused to consult his or her lawyer of choice, thenobviously the

Section 10(

b) right of the accused has been respected and there is no Charter breach to consider. (

b) By way of contrast, if the police did not fulfill their duty because they took no steps to facilitate the accused’s access tocounsel of choice, then the

Section 10(

b) breach is established. (

c) If I conclude that the police made some effort falling short of reasonable diligence, I must ask whether the accused fulfilledthe corresponding duty incumbent upon him to act diligently to exercise his right to counsel. If the latter question is answered yes, thebreach is made out. If answered no, then the breach is not made out. [28] As the Supreme Court of Canada noted in R. v. Willier, 2010 SCC 37 , [2010] S.C.J.

No. 37 at paragraph 33: [33] … What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particularcircumstances as a whole. [29] Returning to Collicut, Judge Crawford went on to say in paragraph 17 of her decision: [17] … (ii) Although the officer might have done more and testified that if he had been asked to do more he would have, as I have foundabove, the defendant has not satisfied me on a balance of probabilities that he acted diligently in pursuing his right to counsel. [30] In the case at bar, I accept that the officers did exercise reasonable diligence in attempting to implement or facilitate theaccused’s access to his counsel of choice.

They “googled” Mr. Cragg’s office number and called him two to three times. While theymight not reasonably have expected that he would be there after 3:00 a.m. in the morning, they might have reasonably expected (at leastbefore making the first attempt) that there would be a voice recorded message providing an alternate phone number or some other meansby which Mr. Cragg could be contacted after-hours. [31] The accused himself did not know even Mr.

Cragg’s office number, let alone his home number or any other means by which hemight be reached after hours. [32] The officers failed to discover the Halifax Regional Municipality White Pages listing for “Robert G. Cragg”, which does not

identify him as a lawyer in any event. It provides a home phone number that they could not be expected to call (had they located the listing) at 3:00 AM, in the absence of anything else suggesting that this person was “lawyer Bob Cragg”. I do not find that the officers’ effort or diligence was lacking under these circumstances. [33] Even if I had come to the conclusion (as Judge Crawford did in Collicut ) that the police officers might have done more and were therefore less than reasonably diligent in the circumstances, the accused agreed to speak with duty counsel after the efforts to contact Mr. Cragg failed.

Moreover, I accept Constable McCabe’s testimony that the accused did not mention Mr. Cragg’s name again after the efforts to contact him at his office phone number failed. [34] Under these circumstances, I would have concluded (had it been necessary to do so) that the accused did not fulfill his corresponding duty to act diligently to exercise his right to contact or consult with Mr. Cragg. [35] Therefore, the evidence does not satisfy me, on the balance of probabilities, that Mr. MacDonnell’s rights under

Section 10(

b) of the Charter were breached, and I accordingly dismiss his claim for relief upon this ground. III.

Section 9 Charter Violation [36] The final issue raised by the accused is with respect to an allegation of arbitrary detention contrary to

Section 9 of the Charter . [37] Mr. MacDonnell takes the position that the decision of Constable McCabe to detain him until later on that morning constituted an arbitrary detention and as such that his

Section 9 Charter rights were violated. [38] I must say that the evidence with respect to the whole issue of the accused’s eventual release is somewhat sparse. We know the following main points in relation to it: 1. Mr. MacDonnell was under arrest. 2. By the time that the collection of his breath samples had been concluded, it was past 4:00 AM. 3. Constable McCabe advised that she was present when the breath samples were obtained from the accused and that Mr. MacDonnell was advised of the readings. 4. Constable McCabe’s view was that Mr.

MacDonnell was clearly impaired, both on the basis of those readings and her interactions with the accused throughout the entire night. 5. Constable McCabe explained on cross-examination that her practice is not to release someone in Mr. MacDonnell’s condition until he’s in a sober, clear state of mind so as to understand his release documents. 6. The accused was quiet and well-behaved (at least for the period that Constable McCabe and Constable Morrison were present). 7. Neither Constable McCabe or Constable Morrison was the officer who released Mr. MacDonnell later that morning. Their shifts had ended.

The former left a note for her colleagues on the day shift that the accused was to be released in the morning after the release documents could be understood by the accused. 8. Constable McCabe accordingly made no attempts to contact family members or anyone else to come and pick him up. 9. Constable McCabe could not say when the accused was released that morning, although she did point out that the exact time would have been noted on the prisoner ledger. Mr. MacDonnell himself thought, without being certain, that it was “11-ish that morning” when he was released. [39] Mr.

Cragg argues at page 24 of his brief: Mr. MacDonnell was for some unknown and unexplained reason placed in lock-up cells at approximately 4:08 after he had been informed of his readings. He was then left there until sometime after 11:00 a.m. that morning, approximately seven hours after he was placed in lock-up cells despite having been given no reasons for his detainment. [40] This argument overlooks that fact that, as noted above, the accused could present but an estimate as to when he was released saying that it was “11ish that morning”.

Neither Constable McCabe nor Morrison were on duty the following morning at the time of the release and did not know when it occurred. [41] No evidence was called as to when it was (prior to his release) that the accused had actually looked at a watch or a clock, or of any other basis upon which to gauge whether his time estimate was even remotely approximate. Nor was there an attempt made by the accused to obtain and/or consult the prisoner ledger to obtain the precise time, much less to call one of the officers who released Mr.

MacDonnell later that morning, who might have spoken to the time of the release and/or its’ context. [42] The relevant portions of

Section 498 of the Criminal Code read as follows: 498 .

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, … the officer in charge or another peace officer shall, as soon as practicable, (

a) release the person with the intention of compelling their appearance by way of summons;

(

b) release the person on their giving a promise to appear. … [Emphasis added] [43] In this case, we know that Constable McCabe had concerns with respect to the accused’s impairment on the basis of both herprior interaction with him that evening, and the fact that he failed the breathalyzer. It is simply not practicable to release an accused untilhe is apparently able to comprehend his release documents under Section 498(1). Constable McCabe had reasonable concerns in thatregard.

Moreover, she left instruction for the day shift that he was to be released as soon as he was able to understand the releasedocuments. [44] Absent clearer evidence as to when exactly the accused was released or as to his condition previous to that (i.e., evidence tosuggest that he was able to comprehend the nature and effect of the release documents earlier than the time when he was actuallypresented with them), we are left with Constable McCabe’s stated reasons for detaining him.

We are also left with the correspondinglack of a basis to conclude that he was fit for release at any time prior to when the police presented him with the necessary paperworkthat morning. [45] Correspondingly, if the accused did become fit to understand the documents prior to his actual release, we lack the means uponwhich to meaningfully base an estimate as to how long beyond that point he was made to wait before being let out.

Indeed, on the basisof the evidence presented, I cannot even have the comfort of knowing when the release occurred. [46] Both the prisoner ledger and the names of the officers in charge were available to the accused and could have been called insupport of his application. There is no indication that the Crown was guilty of withholding this information.

There is no evidence thatthe accused ever questioned his continuing detention or protested it at any point prior to his release or gave any indication, to repeat, thathe was capable of understanding (or executing) his release documents before they were actually presented to him, whenever that was. [47] The British Columbia Court of Appeal’s indication in R. v. Scott, 1990 4 M.V.R. 2d 204, p. 210 indicates that a “detention mustbe capricious or despotic or unjustifiable in order to be arbitrary”.

In some circumstances, this will certainly have application to a sevenhour post-arrest detention in an impaired driving case (always assuming, of course, that the seven hour detention can be established). However, in the circumstances of the case at bar, the accused has not made out a breach of his

Section 9 Charter rights. Even if he had,as the Court noted in R. v. Tugnum, [2002] B.C.J. 2556, at paragraph 34: The difficulty with post-investigative arbitrary detention cases is that there is little, if any, connection between the breach , itself a pastevent, and the conduct of the prosecution or the fairness of the trial. [48] Even if I had found that a breach of the accused’s

Section 9 right had occurred, the question would then be as to whether anappropriate remedy could be fashioned. [49] Indeed, Courts are reluctant to order that proceedings be stayed, except in the “clearest of cases”. This is from R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, and this reluctance has also been applied to post-investigative arbitrary detention cases.This is not one of those “clearest of case” [50] Similarly, even if I had accepted either or both of the other arguments to the effect that the accused’s

Section 8 and/or 10(b)rights had been breached, I would not have excluded the results of the breath readings from evidence. I will explain. [51] The three-pronged test set forth in the Supreme Court of Canada in the decision of R. v.

Grant 2009 SCC 32 , 2009S.C.C. 32 requires that I consider: … (1) the seriousness of the Charter infringing state conduct, (2) the impact of the breach on the Charter protected interests of theaccused, and (3) society’s interest in the adjudication of the case on its merits. [52] With respect to the first factor, I considered it to be very evident that Constable McCabe acted in good faith throughout. Shealso had a number of grounds, on the basis of which she genuinely believed that she had an objective basis upon which to ground hersubjective belief that a

Section 253 violation had occurred. Her actions were not capricious or high-handed or arrogant, or in any wayaggravating or aggravated by bad faith or even carelessness. [53] I make the same comment with respect to the police efforts to implement Mr. MacDonnell’s assertions or requests for counselof choice, Robert Cragg. These efforts were not fruitful, not because of any fault that can be laid at the door of the police officersinvolved.

Under the circumstances, the officers offered an explanation as to why they felt they could not do more, they believed theywere proceeding reasonably under the circumstances, and again I considered it to be very evident that they acted in good faiththroughout. [54] So the first ground would favour inclusion of the evidence. The second ground of the R. v. Grant test requires that I considerthe impact of the breach on the Charter protected interests of the accused. In that respect the accused was required to submit to whathas been described as a “minimally intrusive test” (see for example Justice Hill in R. v.

Bryce, [2009] O.J. No. 3640), and also describedas a “relatively non-intrusive test” (see the majority decision in Grant, supra at para. 111) and by a host of similar phrases in otherdecisions of the lower Courts across the country. The second segment of the Grant test favours inclusion as well. [55] With respect to the third stage of the Grant analysis, I am just referring to my decision in R. v.

Turnbull, 2014 NSPC 70, atparagraph 43, where I noted at the time: [43] With respect to the third stage of the Grant analysis (that is, society’s interest in the adjudication of the case on its merits) I notethat para. 79 of Grant directs me to consider this issue from the vantage of whether the truth seeking function of the criminal trial

process would be better served by the admission of this evidence or by its exclusion. As the Crown points out in its brief, the results garnered by breathalyzer tests are highly reliable. No issues were raised concerning the functioning of the device itself. I therefore cannot disagree with the statement at para. 10 of the Crown’s brief: The evidence is clearly relevant and it is dispositive of the issue of guilt or innocence. It is submitted that the exclusion of these results would undercut the truth seeking function of the Court.

Such exclusion would fly in the face of society’s abhorrence of impaired driving. [56] I conclude that this third factor also favours inclusion. [57] Weighing all of the factors aforementioned from Grant, I would have concluded, had it been necessary to do, that the exclusion of the breath readings for any of the reasons raised by Mr. MacDonnell in this voir dire would bring the administration of Justice into disrepute. The results of the breath readings will therefore be admitted into evidence. Timothy Gabriel, J.P.C.