2014 QCCQ 3365, 2014 QCCQ 3365

Charles c. R. 2014 QCCQ 3365 COUR DU QUÉBEC CRIMINAL AND PENAL DIVISION CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL CITY OF LONGUEUIL N° : 505-01-089428-102 DATE : MARCH 26, 2014 ______________________________________________________________________ BEFORE THE HONOURABLE MARCO LaBRIE, C.Q.J. ______________________________________________________________________ DAVID CHARLES Applicant v. HER MAJESTY THE QUEEN Respondant ______________________________________________________________________ DECISION ON MOTION TO EXCLUDE EVIDENCE ______________________________________________________________________ 1.

INTRODUCTION [ 1 ] The applicant is seeking an order to exclude the evidence allegedly obtained in violation of sections 8 and 9 of the Canadian Charter of Rights and Freedoms . Essentially, he argues that his constitutionnal rights protecting him against arbitrary detention and unreasonable search and seizure were infringed. He is asking the Court to order the exclusion of the evidence obtained based on section 24(2) of the Charter . A. CONTEXT [ 2 ] The accused is facing two charges of having driven a motor vehicle while his ability was impaired by alcohol (s. 253(1)

a) and 255(1) Cr. C .) and while having more than 80 milligrams of alcohol per 100 milliliters of blood (s. 253(1)

b) and 255(1) Cr. C .). A Voir- Dire is held at the beginning of the trial to decide on the motion. [ 3 ] The Evidence reveals that Constable Trevor Zachary intervened on the scene of an accident that had just occured at night. A truck was in a ditch at the roadside of a curb with a broken Hydro utility pole on the roof of the car. The defendant was standing outside the car. The officer walked towards the car and the defendant and asked him if he was injured. The defendant answered that he was "o.k." and that he "hitted black ice and went off the road".

The officer noticed that his eyes were red and that there was a smell of alcohol emanating from his breath, but nothing else unusual was reported, even in the contex of the accident. The officer decided immediately to arrest the defendant for impaired driving by alcohol. B. POSITIONS OF THE PARTIES [ 4 ] The defense is pleading that Mr. Charles was arbitrarily detained since he was arrested without the existence of reasonable and probable grounds to do so, which is contrary to

section 495 of the Criminal Code [1] , and that during this arbitrary detention, he had to obey to an illegal demand for breath samples, since it did not respect section 254(3) of the Criminal Code , which resulted in having the accused being forced to give self-conscripted evidence of his breath, which is considered to be an illegal search and seizure.

The defense pretends that sections 8 and 9 of the Canadian Charter of Rights and Freedoms were infringed and is asking this Court, as a remedy under section 24(2) of the Charter , an order to exclude the evidence obtained in violation of those rights. [ 5 ] The prosecution is pleading that there is no violation of any right since the officer had reasonable grounds to arrest the accused, because he was subjectively of the opinion that the accused had driven while his ability was impaired by alcohol, and that opinion is objectively confirmed by the circumstances of the accident itself, the admission of the accused that he was the driver, and the smell of

alcohol emanating from the accused's breath and his red eyes. Subsidiarily, the prosecution is pleading the evidence should not be excluded when applying the criterias of s. 24(2) of the Charter . 2.

QUESTIONS [ 6 ] The questions we need to answer are the following: 1- Were there objectively reasonable grounds for the officer to arrest the accused ? 2- Were there objectively reasonable grounds for the officer to demand a breath sample from the accused ? 3- Was there a violation of the accused's rights protecting him against arbitrary detention? 4- Was there a violation of the accused's rights protecting him against abusive search and seizure ? 5- If there was a violation, is it a case were the evidence should be excluded according to section 24(2) of the Charter ? 3.

THE FACTS [ 7 ] Only one witness was heard on the Voir-Dire. Constable Trevor Zachary was on duty on the evening of the 18th of September 2009, travelling on a highway, when he observed a flash in the sky and the power that went out. He noticed the lights of a vehicle that he tought was implicated in an accident. He activated his emergency equipment and drove towards the scene. [ 8 ] He arrived on the scene and saw a black truck in the ditch on the roadside and thought it was the vehicle implicated in the accident. He got out of his patrol car and approached the scene.

He saw that a Hydro utility pole with wires was broken and was on the roof of the truck. The front of the truck was against a building and the truck had damages on the roof and at the front. [ 9 ] The officer did a drawing of the accident scene (P-1). It shows the accident took place in a curve. The officer explained that there was a stop sign approximately 40 meters before the curve. It is not contested that the truck is the property of the accused. [ 10 ] The officer approached and saw the accused standing outside the truck. He approached him and asked if he was all right.

The accused answered that he "hitted black ice and went off the road". The accused had red eyes and a smell of alcohol emanated from his breath. The officer testified that he believed the accused was impaired and arrested him right away for impaired driving by alcohol. [ 11 ] Even in the context of this accident, the officer did not report to the court anything unusual concerning the way the accused was talking, standing, moving or understanding. There are no glassy eyes reported, nor any arrogance or agressiveness.

The only elements were the accident itself, and the red eyes and the alcohol odor coming from his breath. [ 12 ] Finally, the officer did not recall the exact temperature but said it was a cold night, and the temperature was below freezing. The officer did not verifiy before proceeding with the arrest if there was black ice in that curve. 4.

ANALYSIS [ 13 ] The first two questions we need to answer are the following: 1- Were there reasonable grounds for the officer to arrest the accused ? 2- Were there reasonable grounds for the officer to demand a breath sample from the accused ? [ 14 ] The first two questions can be analyzed simultaneously since they both refer to same criterias of evaluation [2] , "reasonable grounds to believe that the accused had commited an infraction to

section 253 of the Criminal Code ". [3] In the case under study, if the officer had reasonable grounds to arrest the accused, it would also mean he had the reasonable grounds to demand a breath sample. The opposite is also true. If the officer did not have reasonable grounds to arrest the accused, it would mean he did not have reasonable grounds to demand a breath sample. [ 15 ] Section 254(3) of the Criminal Code states:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

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

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, if any, of alcohol in the person’s blood Section 495 (1) of the Criminal Code prescribes: 495.

(1) A peace officer may arrest without warrant

(

a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commitan indictable offence; [16] Sections 254(3) and 495 of the Criminal Code are both requiring that the police officer have reasonable grounds to believe anoffence of having driven a motor vehicle while impaired by alcohol has been commited, to, firstly, proceed to an arrest (section 495), and, secondly, demand breath samples from the accused (section 254(3)). [17] The first question we then need to answer is whether or not the officer had reasonable grounds to believe that Mister Charleshad commited an offence under

section 253 of the Criminal Code and consequently if he was authorized by law to arrest him anddemand breath samples. If the answer is positive, there is no violation of sections 8 or 9 of the Charter, and it will not be necessary to gofurther since there is no breach of any right. If the answer to the question is negative, the Court will then need to determine if it resultedin a violation of the Charter, and if it is the case, we will then need to apply section 24(2) of the Charter to determine what will be theconsequence, if any.

We shall keep in mind that the requirement that reasonable and probable grounds exist is not only a statutory but aconstitutional requirement as a precondition to a lawful search and seizure.[4] It is also a minimal constitutional requirement before anofficer can proceed with an arrest without a warrant.[5] [18] The Supreme Court of Canada, in Shepherd [6], stated that in cases like the one under study [7], the central issue is todetermine whether the officer had reasonable and probable grounds to believe the accused commited an offence of driving a vehiclewhile his ability was impaired.[8] The Supreme Court added that the onus is on the Crown to convince the Court that the officer hadreasonable grounds.[9] The Supreme Court of Canada stated : " 15 As this Court explained in Collins, where evidence is obtained as a result of a warrantless search or seizure, the onus is on theCrown to show that the search or seizure was reasonable. (…) the only question is whether the arresting officer complied with thestatutory preconditions for a valid breath demand. 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 onbreath samples obtained as a result of a warrantless search.

It would also be impractical to place the burden on the accused becauseevidence of the presence or absence of reasonable and probable grounds is within the "peculiar knowledge" of the Crown(…)."[10] [19] The Supreme Court in Shepherd [11] is specifically refering to Bernshaw [12] where the Court stated : "48 The Criminal Code provides that where a police officer believes on reasonable and probable grounds that a person has committedan offence pursuant to s. 253 of the Code, the police officer may demand a breathalyzer.

The existence of reasonable and probablegrounds entails both an objective and a subjective component. That is, s. 254(3) of the Code requires that the police officer subjectivelyhave an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: (...)R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241, regarding the requirements for reasonable and probable grounds in thecontext of an arrest."[13] [20] In Bernshaw [14], the Court cited Storrey [15], where it was decided what was required by the Criminal Code before a policeofficer could proceed with an arrest without a warrant by stating the following: "14 (…) the police were required to have reasonable and probable grounds that the appellant had committed the offence (…) beforethey could arrest him.

Without such an important protection, even the most democratic society could all too easily fall prey to theabuses and excesses of a police state. In order to safeguard the liberty of citizens, the Criminal Code requires the police, whenattempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believethat the person to be arrested has committed the offence.

In the case of an arrest made without a warrant, it is even more importantfor the police to demonstrate that they have those same reasonable and probable grounds upon which they base the arrest. (…) 16 (…) It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make anarrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonableperson, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make thearrest. (…) 17 In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds onwhich to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonableperson placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds forthe arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically theyare not required to establish a prima facie case for conviction before making the arrest."[16] [21] As we can see, the criterias are the same, "reasonable grounds".

To determine if the arrest was legal and if the demand forbreath samples was valid, the Court needs to verify that the officer believed subjectively that reasonable and probable grounds existedbefore proceeding with the arrest and the demand for breath samples, and also, that those grounds are justifiable from an objective pointof view.[17] The objective part of the evaluation means that the court must be convinced that a reasonable person, placed in the positionof the officer, would have concluded that there were indeed reasonable and probable grounds for the arrest. [18]

[ 22 ] The onus of persuasion on that matter rests on the Crown. [19] The Supreme Court of Canada, in Shepherd [20] , only reaffirmed what it said in Hunter [21] and repeated in Collins [22] , that "this shifts the burden of persuasion from the appellant to the Crown." [23] In Shepherd [24] , the Court explained that "It would also be impractical to place the burden on the accused because evidence of the presence or absence of reasonable and probable grounds is within the "peculiar knowledge" of the Crown." [25] [ 23 ] The standard under consideration is not proof beyond reasonable doubt or even prima facie proof. [26] There is no legal distinction between the terms "reasonable grounds" and "reasonable and probable grounds", since those are, according to the Supreme Court of Canada, equivalent expressions. [27] Moreover, "Reasonableness" comprehends a requirement of probability . [28] The appropriate standard is one of "reasonable probability". [29] [ 24 ] The criteria for the objective part of the test is the following: all the circumstances known by the police officer, at the time of the arrest, must have sufficient objective persuasiveness as would lead a reasonable person similarly situated to conclude that, more likely than not , the accused had commited an offence under

section 253 of the Criminal Code . [30] This finding must be made keeping in mind the time of the arrest. [31] The facts known after the arrest are not relevant. [32] The court must evaluate the totality of the circumstances available to the officer at the time of the arrest. [33] The Court must not isolate each element but evaluate the whole of the circumstances. [34] [ 25 ] The Québec Court of Appeal, in Bouchard [35] , and C.L. [36] refered with approval to the decision of the Prince Edouard Island Court of Appeal, in R. v. Gavin [37] .

In this decision, the Court insisted on the investigation that must be minimally done before a police officer can objectively have reasonable grounds: "7 (…) A police officer must have reasonable and probable grounds for his belief before s-s. 254(3) authorizes him to make a demand for breath samples. This condition precedent guards against arbitrary and precipitous demands. That is why, prior to making a demand, the officer must do such investigation or receive such information as the circumstances require to enable him to properly form a belief that will justify a s-s. 254(3) demand .

To satisfy the test of having done so, the data the officer relies on at the time he makes his demand, when taken as a whole, must have sufficient objective persuasiveness as would lead a reasonable person similarly situated to conclude that, more likely than not, the accused had (…) committed an offence under s. 253 .

This standard would not be met if the officer, before making the demand, did not at least make such efforts as are practicable to investigate whether the symptomatology on which he relies might just as well have resulted from factors other than alcohol consumption when the circumstances present some reasonable possibility of that being the case. It is my opinion that in the case at Bar the trial judge applied the correct test.

He found that the Officer did not have the requisite reasonable and probable grounds because he formed his belief in a cursory manner without the benefit of the investigation the circumstances warranted. (…) 8 Some may ask what the officer should have done given the situation.

I would respond by suggesting that he might eventually have acquired grounds of the necessary quality if he had followed up on his original observations by doing some or all of the following: (1) speaking with the appellant; (2) taking more time and care to assess the appellant's mental and physical state; (3) (…); (4) inquiring (…) as to the conditions at the accident scene (…) (5) (…)" [38] [ 26 ] The Québec Court of Appeal in R. v.

Bouchard [39] referred explicitely to Gavin [40] and stated that : "Police officers who are proceeding with an arrest do not have to be convinced beyond any reasonable doubt that a driver is impaired by alcohol. But their grounds must be sufficient to convince a reasonable person that the driver, more likely than not , has driven while his ability was impaired by alcohol.

The test to be applied is the balance of probabilities." [41] [ 27 ] The Québec Court of Appeal, in Beaupré [42] , stated that the reasonable person refered to is the one described in Collins [43] : "a reasonable person is an average person dispassionate and fully apprised of the circumstances of the case, in the community, but only when the community's current mood is reasonable." [44] [ 28 ] In Perreault [45] the Québec Court of Appeal, applying Storrey [46] , insisted on the rigour which the officer must demonstrate before proceeding with an arrest without a warrant. [47] Consequently, when the Court has to evaluate if objectively, there were reasonable and probable grounds , it may consider wether or not the officer has shown rigour before proceeding with an arrest without a warrant. [48] The officer must, of course, have more than suspicions [49] Moreover, the factual picture on which the officer is basing his opinion must be serious and substantial before he proceeds with an arrest. [50] ANALYSIS OF THE TOTALITY OF THE CIRCUMSTANCES [ 29 ] The prosecution relies on Rhyason [51] to support the position that the officer was rightfull when he arrested the accused.

In Rhyason [52] the Supreme Court of Canada clearly stated that evidence of consumption of alcohol alone is not a basis for making a demand for breath samples. [53] But the circumstances of an accident can be taken into account, along with other evidence, in determining whether an officer had reasonable and probable grounds to (arrest an individual for impaired driving). [54] The Supreme Court added: " 19 This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or, conversely, that it never does.

What is important is that determining whether there are reasonable and probable grounds is a fact-based exercise dependent upon the circumstances of the case. In this case, the presence of an unexplained accident was one factor that the trial

judge appropriately took into consideration when determining that those grounds existed." [55] [ 30 ] The Supreme Court clearly stated that "this is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or, conversely, that it never does." [56] [ 31 ] We first have to keep in mind that the conclusion of the trial judge in Rhyason , which was confirmed by the Supreme Court of Canada, was, according to the trial judge himself, a borderline case [57] . [ 32 ] The facts in Rhyason [58] are as follows [59] .

Rhyason drove his vehicle at night into a pedestrian crossing the street in a marked, lit crosswark at a controlled intersection where flashing yellow lights facing Rhyason were in function. Road conditions were good. The road was straight, level, dry, smooth and the intersection visible from some distance. There was no fog or other impediment to nighttime visibility. After striking the pedestrian, Rhyason did not immediately stop. He continued driving and parked his car farther, before walking back to the collision scene only after the police was already there.

When he came back on the scene, Rhyason spoke with the police officer investigating and told that he was the driver. He had bloodshot eyes, an unusually blank stare, and he blinked unusually slowly, was shaking and had alcohol on his breath. The police officer decided to arrest him. [ 33 ] In Rhyason there was an unexplained accident. Are we in the presence of an unexplained accident in this case? The facts are completely different than the ones in Rhyason . The first major difference in this case is that there is an explanation given by the accused to the officer right away on the scene.

He said he "hitted black ice" and lost control of his truck. This is a major difference with Rhyason. This explanation was not verified by the officer on the scene, even if he had the opportunity to do it. It could be the cause of the accident, or not, depending if there was black ice before or in the curve where the accident occured. But the offficer chose to arrest the accused without doing any inquiry whatsoever. Moreover, the officer could not inform the Court about the weather conditions on that night because he did not recall, except that it was "a cold night, with temperature below zero".

The officer never informed the court about the road conditions except to specify the accident occured in a curve, and most of all, he never indicated anything unusual with the accused way of walking, talking, or his understanding. The officer never made any verfication nor inquiries about the circumstances of the accident even in the context of this accident. [ 34 ] Moreover, the circumstances of the accident are completely different. The symptoms of the driver in Rhyason are numerous as opposed to the case under study. In our case there was an explanation of the accident given to the officer.

He never showed rigour and never did an investigation before proceeding with an arrest very quickly after his arrival on the scene. He never asked questions to the accused about his consumption or not of alcohol [60] . He did not ask him to provide his driving license, certificate of registration or proof of insurance which he was authorized by law to demand [61] .

He never asked the accused to perform any physical coordination tests [62] , or demand a breath sample for an Approved Screening Device (ASD) [63] which he was also authorized by law to require from the accused since mere reasonable suspicions may allow it. He had also the obligation to fill out a police accident report and was entitled to ask questions to the accused.

Such preliminary questioning is a legitimate exercise of police powers. [64] General inquiries by a patrolling officer present no threat to freedom of choice. [65] The officer could simply have waited to observe the accused to verify if there was any sign of impairment that he missed initially. The officer had to call a tow truck anyway, he could have taken his time to transform what i see objectively as mere suspicions to reasonable and probable grounds.

How come he was in such a hurry to completely disregard all those tools available to him while he only had arrived on the scene and didn't take the time to investigate rigorously. [ 35 ] All those tools in the hand of the police officer which he chose not to use. He could have been more patient and take few minutes to inquire, talk to and observe the accused. Instead, he proceeded within few minutes of his arrival, to the arrest of the accused. [ 36 ] The officer was not in a situation of emergency since nobody was injured. The accused was calm, cooperative, was not injured, and was alone.

The officer knew the accused who admitted he was the driver and owner of the truck. The only symptoms noticed were some red eyes and a smell of alcohol emanating from his breath. Nothing unusual was noticed about the way the accused was standing, walking, moving, talking, understanding. The accused, as opposed to Rhyason, never left the scene of the accident. The officer, as opposed to the one in Rhyason , never described weather conditions that would not be be compatible with an accident caused by a loss of control due to the weather or road conditions.

The officer admitted that the accident occured in a curve contrary to the Rhyason case. The officer never described if the area was well lit at night, contrary to the Rhyason case. He never described the road as a straight, level, dry, and smooth one like the Rhyason case. The only thing we know is that it occured in a curve, which begins approximately 40 meters after a stop sign. We know nothing about the visibility on that night, nor if the stop sign itself was visible.

Finally, the accused, as opposed to Rhyason, gave immediately an explanation for the accident that was plausible and not even verified. [ 37 ] It is hard to understand why the officer in this case was in such a hurry to arrest the accused with what the Court sees as mere suspicions, when there were numerous ways to inquire further in a short time. [ 38 ] There are numerous cases reported where an accident had occured but where few symptoms of impairment were noticed before an arrest which led the Courts to conclude that objectively, there were no reasonable and probable grounds. [66] [ 39 ] Considering all the circumstances, the Court concludes that the offficer may have subjectively believed the accused had driven his truck while his ability was impaired, but objectively, i find that a reasonable person, placed in the same situation, would conclude that he had nothing more than suspicions.

Moreover, that same reasonable person, knowing the law, the Charter and all the circumstances, and knowing the list of all the options the officer had at his disposal to do a minimal inquiry, and the total absence of rigour showed by the officer, those elements would convince that reasonable person that the grounds to justify the arrest fell short of what was required by law. 3- Was there a violation of the accused's rights protecting him against arbitrary detention? [ 40 ] The purpose of

section 9 of the Charter is to protect individual liberty against unlawful state interference. [67] This guarantee expresses one of the most fundamental norms of the rule of law. [68] A person's liberty is not to be curtailed except in accordance with the principles of fundamental justice. [69] As the Supreme Court already stated in Storrey [70] "Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state." [71]

[ 41 ] Since the state may not detain arbitrarily, but only in accordance with the law, [72] it is quite clear that a detention not authorized by law is arbitrary and violates

section 9 of the Charter . [73] [ 42 ] The Court has already concluded that the arrest of the accused was made without a warrrant and without reasonable and probable grounds contrary to

section 495 of the Criminal Code . Obviously, it was not authorized by law. [ 43 ] Consequently, the Court must concludes that the detention was arbitrary and there was a violation of the applicant's right protecting him against arbitrary detention. 4- Was there a violation of the accused's rights protecting him against unreasonable search and seizure ? [ 44 ] Breath samples are bodily evidence taken from the body of the accused. [74]

Section 8 of the Charter protects against unreasonable search and seizure, and precludes the state from obtaining such evidence in a manner that is unreasonable. [75] [ 45 ] This Court has already concluded that the demand made to obtain the breath samples of the accused was not valid since there were no reasonable and probable grounds as required by section 254(3) of the Criminal Code . In Bernshaw [76] the Supreme court stated: "The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms .

Section 8 requires that reasonable and probable grounds exist in fact and not that their presence can be deemed to exist notwithstanding the evidence." [77] [ 46 ] It follows that in the absence of a warrant and in the absence of reasonable and probable grounds, a breath sample obtained following an invalid demand is an unlawful search and seizure and constitutes a violation of the accused's right to be protected against abusive search and seizure. [78] 5- Is it a case were the evidence should be excluded according to section 24(2) of the Charter ? [ 47 ] Section 24(2) of the Charter states: When evidence is obtained in violation of an accused's Charter rights, section 24(2) of the Charter states: "Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." [ 48 ] The Supreme Court of Canada in Grant [79] , revisited the framework for determining whether evidence obtained in breach of the Canadian Charter of Rights and Freedoms must be excluded under s. 24(2) .

The Court stated : "When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute." [80] [ 49 ] The three avenues of inquiry which should guide courts in the delicate balancing exercise mandated by that

section are: "(1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; (3) society's interest in the adjudication of the case on its merits." [81] [ 50 ] While the criterias were revisited In Grant [82] , the Supreme Court made it clear that "all the Collins factors remain relevant throughout this delicate and nuanced inquiry " [83] In Côté [84] , the Supreme Court restated it : "46 In setting out this new framework, this Court made it clear that while these lines of inquiry did not precisely track the categories of considerations set out in the earlier jurisprudence, they did capture the factors relevant to the s. 24(2) determination that had been set out in the earlier cases.

In Beaulieu , Charron J., writing for the Court, emphasized this point, noting that Grant did not change the relevant factors in the s. 24(2) analysis." [ 51 ] In Collins [85] the Supreme Court stated that the relevant question is: "Would the admission of the evidence bring the administration of justice into disrepute in the eyes of the reasonable man, dispassionate and fully apprised of the circumstances of the case?

"The reasonable person is usually the average person in the community, but only when that community's current mood is reasonable." [86] FIRST LINE OF INQUIRY The seriousness of the Charter -infringing state conduct [ 52 ] The first line of inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the Courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. [87] The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate

themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. [88] [ 53 ] When evaluating the seriousness of the state conduct that led to the breach, the main concern is to preserve public confidence in the rule of law and its processes. [89] The Court must consider the seriousness of the violation, and the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . [90] Admission of evidence obtained through minor violations of the Charter may minimally undermine public confidence in the rule of law.

But admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [91] [ 54 ] "Good faith" on the part of the police can reduce the need for the Court to disassociate itself from the police conduct. [92] However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. [93] Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the Court dissociate itself from such conduct. [94] Deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. [95] It should be kept in mind that for every Charter breach that comes before the Courts, many others may go unidentified because they did not turn up relevant evidence leading to a criminal charge. [96] [ 55 ] The Supreme Court of Canada stated that Grant [97] did not change the relevant factors in the s. 24(2) analysis. [98] .

Even if the criterias were revisited and reformated in Grant [99] , the Supreme Court clearly stated that "All the Collins factors remain relevant throughout this delicate and nuanced inquiry" [100] . Consequently, all the previous jurisprudence from the Supreme Court is still relevant, keeping in mind there is no "automatic exclusion" rule related to self conscripted evidence, and the factors must be evaluated considering the totality of the circumstances and following the revisited steps enunciated in Grant [101] .

Evaluation of the first line of inquiry with the totality of the circumstances Nature of the violation [ 56 ] The court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. [102] The Court must be concerned to dissociate itself from the police conduct when the departure from the Charter standards is major in degree or where the police knew (or should have known) that their conduct was not Charter -compliant. [103] [ 57 ] Even when the Charter violations were not "deliberate" in the sense of setting out to breach the Charter , they might be considered serious violations when those actions were reckless and showed an insufficient regard for Charter rights. [104] [ 58 ] It is not necessary for the applicant to demonstrate that there is a systematic problem to prove the seriousness of the violation.

While evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion, the absence of such a problem is hardly a mitigating factor. [105] [ 59 ] The present case reveals two breaches of the Charter . The breach of

section 9 (arbitrary detention) and the violation of

section 8 ( unreasonable search and seizure). [ 60 ] This Court will look at each violation and determine the effects of those cumulative violations in the analysis required under section 24(2). First violation: the breach of

section 9 (arbitrary detention) [ 61 ] Many Courts, even after Grant , have concluded, that in cases like the one under study [106] , when an officer proceeds with an arrest, without a warrant, and without reasonable and probable grounds, while objectively there is nothing more than suspicions, it is a very serious violation of

section 9 of the Charter . [107] [ 62 ] The standard of reasonable and probable grounds before proceeding to an arrest is not only a well-known standard for police officers, but also, it is probably, the most often applied rule of law by all police officers in Canada. [ 63 ] As the Supreme Court of Canada stated a long time ago in Storrey [108] , concerning the necessity for an officer to have reasonable and probable grounds before proceeding with an arrest : "Without such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state." [109] It follows that a person's liberty is not to be curtailed except in accordance with the law and the principles of fundamental justice. [110] This guarantee in the Charter protecting individual liberty expresses one of the most fundamental norms of the rule of law. [111] [ 64 ] Consequently, a clear violation of one of the most fundamental norms of the rule of law is an obvious serious violation of the Charter .

Second violation : the breach of

section 8 ( unreasonable search and seizure) [ 65 ] This Court has already concluded that there was a violation of

section 8 of the Charter . What is the nature of this violation ? Is this violation serious ? [ 66 ] Section 254(3) of the Criminal Code , which requires that reasonable and probable grounds exist to demand breath samples is not only a statutory but also a constitutional requirement as a precondition to a lawful search and seizure. [112] [ 67 ] In R. v. Perry [113] , an accident occured and the police officer decided to arrest the accused promptly on the scene under

section 253 Cr.c. , because of the accident and few physical symptoms like in the case of the applicant. The Court concluded there was a serious violation of

section 8 of the Charter and stated [114] :

" 47 The same may be said about reasonable and probable grounds for a demand for breath samples pursuant to s.254(3). It is not justa statutory standard, but also a constitutional requirement that the officer have reasonable and probable grounds which are supported byobjectively discernible facts.

This is fundamental to the application of legislation which requires the accused to provide potentially self-incriminating evidence. 48 Therefore, both reasonable suspicion of alcohol in the body and reasonable and probable grounds for belief of impairment or beingover .08 are fundamental to the operation of the legislative scheme. The proof of either, or both, is also fundamental to justifying theinterference with an individual's rights.

The failure to meet the requisites for either of these demands is a serious breach, which goes tothe root of the right of police authorities to interfere with an individual's liberty. Parliament has specified when and with what evidentialbase such demand may be made, and failure to meet those standards, which are both statutory and constitutional, are serious breaches."[115] [68] The breach of

section 8 of the Charter appears to be a serious one. Without attenuating circumstances the Court must concludethat it is also a second serious violation. The effect of cumulative violations [69] We are not in presence of a single violation of the Charter. As the Court has already concluded there are two distinct violationsof two different Charter rights.

Consequently, we must evaluate the cumulative effect of those violations. [70] It is well established that the Court may consider the cumulative effect of several breaches of the accused's Charter rights toevaluate the seriousness of the violation.[116] When there are more than one violation, the cumulative effect of those breaches must beconsidered when apllying the criterias provided by section 24(2) of the Charter, because the judge has to take into account the totality ofthe circumstances.

The impact of multiple Charter breaches on the long-term administration of justice has survived the recent SupremeCourt of Canada decisions.[117] [71] Consequently, it is proper to consider the cumulative effect of the breaches as relevant to a determination of the seriousness ofthe breaches.[118] [72] When evaluating the cumulative effect of the violations it seems obvious that they are both serious.

If the Court would notconsider those violations as serious ones, it could be interpreted by the public as being the equivalent of rewriting sections 495 andsection 254(3) of the Criminal Code.[119] It could also give the public the impression that the most fundamentals protected rights of theCharter can easily be breached without consequences.

Good faith [73] Good faith is but one factor in the analysis and must be considered alongside other factors which speak to the seriousness of thebreach.[120] [74] "Good faith" on the part of the police can reduce the need for the court to disassociate itself from the police conduct.[121]However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated withgood faith.[122] Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in questionmay require that the court dissociate itself from such conduct.[123] It follows that deliberate police conduct in violation of establishedCharter standards tends to support exclusion of the evidence.[124] [75] The Supreme Court of Canada stated many times that good faith cannot be claimed if a Charter violation is committed on thebasis of a police officer's unreasonable error or ignorance as to the scope of his or her authority.[125] [76] It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified andunredressed because they did not turn up relevant evidence leading to a criminal charge.[126] [77] While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know whatthe law is.[127] Once the law in a particular area has been settled the police are expected to exercise their powers in conformity withwhat the courts have said.[128] The public also expects those engaged in law enforcement to respect the rights and freedoms we allenjoy by acting within the limits of their lawful authority.[129] [78] In this case, the Court finds that the police officer was negligent, showed a reckless disregard of the accused Charter rights andalso made unreasonable errors about the scope of his authority and the application of clear sections of the Criminal Code and the Charterand a well established and applied rule of law.

Either the police officer knew he was wrongdoing, or he ought to have known.[130]Whichever is the case, he cannot be said to have proceeded in "good faith", as that term is understood in s. 24(2) jurisprudence.[131] [79] This Court would quote the Court in R. v. Haut[132] concerning the reckless disregard of an officer who lacked the requiredreasonable and probable grounds: "52 (…) his actions constituted a reckless disregard for the applicant's rights. His failure to properly understand Charter standardscannot be excused by ignorance. The officer should have been aware of that standard.

Since 1969 the law has required a standard ofreasonableness as a basis for a demand for breath samples. In addition, the need for an objective basis for a s. 254(3) was clearly speltout by the Supreme Court in R. v. Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 (S.C.C.). The unfamiliarity of theofficer as to that standard is not acceptable and shows a reckless disregard for Charter rights.

The actions of this officer represents amajor departure from the Charter standards. 53 I find that the first line of inquiry from Grant leads to a conclusion that the officer's Charter infringing behaviour was serious andsupports the exclusion of the breath sample results."[133]

Other investigative techniques available ? [80] The officer, objectively, only had suspicions when he proceeded with the arrest.

The use of mere suspicions in the legislativescheme of the Criminal Code offers a way to get evidence from the driver by authorizing the production of evidence through a roadsidebreath sample by meeting a much lower evidential threshold.[134] The officer could have also proceeded with physical coordinationtests to be performed by the accused.[135] The officer could also have asked questions to the accused about his consumption ofalcohol.[136] He could have asked the accused to provide his driver's licence, the truck registration, and the insurance documents.[137]He could have seen his dexterity.

The officer could have asked questions to the accused to complete an accident report under theprovincial law. Such preliminary questioning is a legitimate exercise of police powers.[138] The officer could only have waited toobserve the accused to verify if there was any sign of impairment that he missed initially.

The officer had to call a tow truck anyway, hecould have taken his time to transform what the Court sees objectively as mere suspicions to reasonable and probable grounds. [81] According to the Supreme Court of Canada decisions, the failure of the police officer to explore the other investigativetechniques that were available to him shows the absence of sincere effort to comply with the Charter.[139] The availability of otherinvestigatory techniques and even the fact that the evidence could have been obtained without the violation of the Charter tend to renderthe Charter violation more serious.[140] When other techniques were available, but were not used or even considered, it may even bedemonstrative of bad faith and it is particularly serious that the police chose to violate the accused's rights.[141] [82] The mere fact that no ASD was used is not sufficient in itself to conclude to the negligence or bad faith of the officer.

Even if anapproved screening device could have been very usefull, there is no obligation for an officer to proceed with it.[142] The officer can useit or not, depending on the circumstances. We have to understand that this device is not always available, not every officer possesses onein the police patrol car, and not every single officer knows how to use it. Moreover, it may not be usefull when the circumstancesobjectively are giving the officer reasonable and probable grounds.

Sometimes it may not practical to use it either. [83] The Québec Court of Appeal recently stated that the fact that an officer did not use an ASD (approved screening device) wouldnot necessary reveal a serious and flagrant violation of an accused Charter rights.[143] But on the other hand, the words "not necessary"are meaning that in certain circumstances, it may be the case. In short, it depends of the circumstances of each case.

There is nopresumption of bad faith of the officer for the sole reason that an ASD was not used.[144] On the other hand, the Court of Appeal did notstate that it would never be an element to be considered in the analysis of section 24(2) of the Charter. [84] In our case, it is not the single fact that an ASD was not used, but rather that the officer, who had many legal options availableto him, including the use of an ASD, or sobriety tests, or talking or questionning the accused, or completing an accident report, orverifying the road conditions, decided to proceed without using any of those tools available to him.

It shows a total lack of considerationof the accused Charter rights. [85] Even in cases where there is no evidence that the respondent's rights were knowingly breached, but where there was no urgencyand other investigative techniques were available, the Supreme Court has stated that "such lax police procedures cannot becondoned".[145] [86] As the Supreme Court of Canada stated, in R. v. Buhay[146]: "63 The failure of the police officers to explore the other investigative techniques that were available to them shows the absence ofsincere effort to comply with the Charter (…).

As Lamer J. wrote in Collins, supra, at p. 285, "the availability of other investigatorytechniques and the fact that the evidence could have been obtained without the violation of the Charter tend to render the Charterviolation more serious". This principle was reiterated in R. v. Feeney, (SCC), [1997] 2 S.C.R. 13, at para. 76, whereSopinka J. held that "[i]f other [page661] techniques were indeed available, it is demonstrative of bad faith and is particularly serious thatthe police chose to violate the appellant's rights".

Similarly, in Dyment, supra, where there was no evidence that the respondent's rightswere knowingly breached, but where there was no urgency and other investigative techniques were available, this Court made it clear, atp. 440, that "such lax police procedures cannot be condoned"." [147] [87] The British Columbia Court of Appeal in Lauriente[148], cited with approval the decision of the Court of Appeal for Ontario inGolub[149] where Justice Doherty wrote: "60 In addressing the effect of the exclusion of the evidence on the repute of the administration of justice, I bear in mind the commentsof Iacobucci J. in R. v.

Burlingham (1995), (SCC), 97 C.C.C. (3d) 385 at 408: ... we should never lose sight of the fact that even a person accused of the most heinous crimes, and no matter the likelihood that heactually committed those crimes, is entitled to the full protection of the Charter. Short-cutting or short-circuiting those rights affects notonly the accused, but also the entire reputation of the criminal justice system.

It must be emphasized that the goals of preserving theintegrity of the criminal justice system as well as promoting the decency of investigatory techniques, are of fundamental importance inapplying s. 24(2). 61 Iacobucci J. reveals the heart of the third part of the s. 24(2) inquiry in this passage. The moral authority to apprehend and punishthose who commit crimes rests on the community's commitment to the rule of law. Convictions procured by state violations of our mostfundamental law lack that moral authority.

Respect for the rule of law and the long term viability of the justice system suffers wherethe police engage in "short cuts" or fail to respect the constitutional rights of those they encounter in the course of the exercise oftheir duties. The long term harm to the justice system is not worth the short term gain made by the admission of evidence whichwas obtained in a manner that ignores the rule of law."[150] [88] In R. v.

Appleby [151], where the officer proceeded with an arrest within three minutes of his arrival on the scene, and wherethe Court observed that the officer only had suspicions and no reasonable and probable grounds, and the officer failed to use any of thetools available to him, the Court concluded:

"17 (…) I am satisfied on the evidence before the court that the officer decided he had these grounds when he had spent less than three minutes with the applicant . While the time spent with the suspect is not determinative, it is a short period of time to make such a decision.(…) The Crown has not met their onus of satisfying me that the seizure was carried out in a reasonable manner and as such I find that Mr.

Appelby's s. 8 Charter rights have been infringed. ( …) 20 In assessing the first stage of the inquiry, namely the nature of the police conduct, I am satisfied that while Constable Johnson's actions were not egregious, they were severe and deliberate Charter violations. Constable Johnson's decision to proceed with the drinking and driving investigation notwithstanding the absence of grounds entailed serious consequences to Mr. Appleby. The accused was subjected to detention and forced to provide evidence that, if accepted, would prove to be incriminating.

Both legislation and jurisprudence have provided the state and hence police with abundant tools to be used against impaired drivers . I am satisfied Constable Johnson, a seven year veteran, who acknowledged he did not have an approved screening device in his cruiser, opted not to rely on these tools in arriving at a

summary assessment of impairment. There was no urgency , no behaviour on the part of Mr. Appleby that compelled Constable Johnson to effect an arrest . At this point where there was no unequivocal indica of impairment , Constable Johnson could have continued his investigation in order to insure that his subjective assessment of reasonable and probable grounds for the arrest and breathalyzer demand would be grounded in an objective point of view.

This could have been easily achieved by either seeking clarification of the civilian witness's observations from police dispatch, or by securing an approved screening device for a road-side demand. The officer's actions in the circumstances were not committed in good faith but rather a careless disregard for the accused's protected Charter rights . I conclude that the impact of the breach was severe having regard to the evidence that was seized from Mr. Appleby." [152] [ 89 ] On the same subject, in R. v.

Waters [153] the Court stated: "52 (…) It is a serious matter to take breath samples in breach of the Charter when Parliament has provided an alternate course in the form of screening tools. The Constable knew the breath sample demand would have a significant impact on the Appellant, and should have taken the steps necessary to ensure he was not in breach of the Appellant's Charter rights. The Court should dissociate itself from such conduct." [154] [ 90 ] The availability of many other investigative tools that were not used by the police officer contributes to the seriousness of the violations.

The failure of the police officer to explore the other investigative techniques that were available to him shows the absence of sincere effort to comply with the Charter . [155] The availability of other investigatory techniques tends to render the Charter violation more serious. [156] When other techniques were available, but were not used or even considered, it is particularly serious that the police chose to violate the accused's rights. [157] Urgency [ 91 ] It is not a case where the violation can be justified by the urgency of the situation.

The fact that there was no urgency for the officer to proceed as he did is another element that shows that the violations are serious. [158] Discoverability [ 92 ] Discoverability remains a relevant factor [159] but is not determinative. [160] A finding of discoverability should not be seen as necessarily leading to admission of evidence. [161] The Courts should not engage in speculation. [162] Where it cannot be determined with any confidence whether evidence would have been discovered in absence of any violation of any right of the Charter , discoverability will have no impact on the s. 24(2) inquiry. [163] In the present case, the Crown did not try to demonstrate or convince the Court that the evidence obtained would have been discovered.

It would be pure speculation to try to guess if it would have been discovered or not. The evidence emanated from the accused while he was illegally detained. CONCLUSION ON THE FIRST LINE OF INQUIRY [ 93 ] For all the above-mentionned reasons, this Court concludes that the cumulative violations of the Charter rights of the accused were very serious, that there was no urgency, that the officer had many investigative tools available which he chose not to use, that he showed lack of rigour, he was negligent, he showed a reckless disregard of the Charter rights of the accused, and he commited unreasonable errors.

After evaluating the totality of the circumstances relevant to the first line of inquiry, this Court concludes that this line of inquiry militates for the exclusion of the evidence. This Court finds it necessary to dissociate itself from that conduct and from those serious violations. Consequently, the Court finds that the first line of inquiry leads to a conclusion that the officer's Charter infringing behaviour was serious and supports the exclusion of the breath sample analysis results.

SECOND LINE OF INQUIRY The impact of the breach on the Charter -protected interests of the accused [ 94 ] The second line of inquiry focuses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. [164] The Court must evaluate the extent to which the breach actually undermined the interests protected by the right infringed. [165] The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [166] [ 95 ] To determine the seriousness of the infringement from this perspective, the Court must look to the interests engaged by the infringed rights and examine the degree to which the violations impacted on those interests. [167] The more serious the incursions on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. [168] Evaluation of the second line of inquiry with the totality of the circumstances

[ 96 ] This line of inquiry looks at the seriousness of the infringements from the perspective of the accused. [169] Did the breaches seriously compromise the interests underlying the rights infringed? Or were the breaches merely transient or trivial in their impacts? These are among the questions that fall for consideration in this inquiry. [170] [ 97 ] We are not in presence of technical violations.

The accused was arbitrarily arrested and detained and there was an illegal and unreasonable search. [ 98 ] An unreasonable search contrary to s. 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. [171] An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [172] [ 99 ] As the Supreme Court stated in Harrison [173] , the detention and the search had an impact on the accused's liberty and privacy interests, but the question is how that impact should be characterized. [174] Even if it is true that a person driving a motor vehicle has a lower expectation of privacy [175] , and even in a case where there is a detention for a short period a time [176] and nothing in the encounter with the police was demeaning to the dignity of the accused [177] , being subjected to a search by the police without justification impacts on the person's rightful expectation of liberty and privacy in a way that is more than trivial. [178] The Supreme Court stated many times that even the relatively non-intrusive nature of the detention and search must be weighed against the absence of any reasonable basis for justification. [179] A person in the accused's position has every expectation of being left alone excepted when there is a valid detention and a valid demand in application of the the law. [180] [ 100 ] Like in Harrison [181] , the Court is of the opinion that in this case, the deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion on the appellant's Charter -protected interests. [182] [ 101 ] In many post- Grant cases, where the facts are similar to the case under study, the Courts have concluded that even if the evidence to be excluded were breath samples, where the officer proceeded with an arrest and a demand for breath samples without reasonable and probable grounds, while objectively, there were only suspicions, the impacts and seriousness of the infringements from the perspective of the accused were significant, serious, and not trivial, and concluded that the second line of inquiry militated for the exclusion of the evidence. [183] [ 102 ] The impacts of those infrigements are more than minimal on the accused since he was arrested without the valid grounds to do it, and he was brought to the police station and was ordered without the required grounds to furnish breath samples for some analysis. [184] [ 103 ] As in R. v.

Appleby [185] , where the Court agreed with the Crown's submissions that the taking of breath samples may be relatively non-intrusive, but found that where the breath samples were seized in breach of the accused Charter rights, as here, and where the officer ignored the vast arsenal of legitimate investigative tools at his disposal, it left the Court with great concern as to the negative impact on the repute of the system of justice [186] , and it was militating for the exclusion of the evidence. [ 104 ] To the same effect, in R. v.

Haut [187] , as in this case, the Crown submitted that since the taking of the breath samples was relatively non-intrusive, the impact of the infringement was not serious. [188] The Court stated that from a logical standpoint it would be extremely artificial to confine the impact on the accused only to the taking of the breath samples. [189] The circumstances surrounding the breach as well as the circumstances surrounding the seizure of the impugned evidence should be considered. [190] The Court observed that a baseless detention would likely have a serious impact on dignity and privacy. [191] The Court also stated that since the unreasonable search or seizure was based upon an unconstitutional detention, the extent to which the privacy and dignity are affected was serious. [192] Even if the collection of breath samples is a relatively non-intrusive procedure, [193] the examination of the rights is not limited only to a reflection on the relative unintrusive nature of that collection. [194] All of the circumstances must be examined, including the circumstances leading to the breach, and any detention necessary to obtain the breath samples. [195] The impact was serious on the accused since he was arrested without a proper basis and detained for the purpose of providing samples without the proper basis. [196] He had a right to be left alone and this was not honoured by the officer.

The applicant's dignity and right to privacy were affected by the officer's actions. [197] The Court concluded that the actions of the officer had a serious impact on the applicant and was favoring the exclusion of the breath samples. [198] This Court approves this convincing reasoning. [ 105 ] Moreover, the Court in Grant did not state that the fact evidence is conscriptive or non-conscriptive is not relevant.

It opened the door to a consideration of conscriptive evidence by rejecting its automatic exclusion. [199] It remains relevant to consider that self- conscripted evidence was obtained while the accused was being illegally detained and contrary to the well known requisite grounds for a valid demand. Many Courts have decided to consider this element, with the totality of the circumstances, under this second line of inquiry [200] [ 106 ] The Court finds that the impacts on the accused's protected interests are very serious.

The police officer acted illegally, on a matter well known, while he showed no rigour, he was negligent, he showed a reckless disregard of the Charter rights of the accused, and he commited unreasonable errors, and there was no urgency, and had many investigative tools available which he chose not to use.

Consequently, there is a risk that admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [201] After evaluating the totality of the circumstances relevant to this second line of inquiry, this Court concludes it militates for the exclusion of the evidence.

Third line of inquiry : Society's interest in the adjudication of the case on its merits [ 107 ] Since society generally expects that a criminal allegation will be adjudicated on its merits [202] , accordingly, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. [203] The Court should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence. [204]

[ 108 ] The reliability of the evidence is an important factor in this line of inquiry. [205] The exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. [206] This third line of inquiry will usually favour admission in cases involving bodily samples [207] , like breath sample evidence, whose method of collection is relatively non-intrusive. [208] Evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. [209] [ 109 ] But the concern for truth-seeking is only one of the considerations under a s. 24(2) application. [210] The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter . [211] [ 110 ] The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. [212] The Court may also consider the seriousness of the offence at issue. [213] [ 111 ] Not unlike the considerations under the first and second inquiries, the considerations under this third inquiry must not be permitted to overwhelm the s. 24(2) analysis [214] Application of this third line of inquiry to the facts of this case [ 112 ] The third stage of inquiry for the court is to ask whether the truth seeking function of the trial process would be better served by the exclusion or admission of the evidence.

Clearly the application of the third line of inquiry to the case at bar would suggest that the evidence obtained should be admissible. Breath sample evidence is reliable, and it is crucial to the prosecution in this case. Balancing the factors [ 113 ] This Court has already considered all the circumstances of each of the three lines of inquiry.

Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the court must then determine whether, on balance, the admission of the evidence obtained by Charter breaches would bring the administration of justice into disrepute. [215] [ 114 ] There is no "overarching rule" that governs how a court must strike this balance [216] .

It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. [217] Mathematical precision is not possible. [218] [ 115 ] Rather, the evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [219] No one consideration should be permitted to consistently trump other considerations. [220] For instance, the reliability of the evidence should not be permitted to "overwhelm" the s. 24(2) analysis because this would ultimely, in effect, declare that in the administration of the criminal law 'the ends justify the means'". [221] In all cases, the court must assess the long-term repute of the administration of justice. [222] [ 116 ] The Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority. [223] The short-term public clamour for a conviction must not deafen the judge to the longer-term repute of the administration of justice. [224] While the public has a heightened interest in seeing a determination on the merits, it also has a vital interest in having a justice system that is above reproach. [225] Application to the facts of the case [ 117 ] The Supreme Court of Canada stated that it was an error to place undue emphasis on the third line of inquiry while neglecting the importance of the other inquiries, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. [226] It is an error in law to imply that where the evidence is reliable [227] , and the charge is serious, admission will always be the result. [228] [ 118 ] A finding related to the first line of inquiry is very important.

If the trial judge finds that the Charter infringing behaviour is not serious this will tend to support the admission of the impugned evidence.

Conversely, a finding that the Charter infringing is serious will tend to strongly support the exclusion of that evidence. [229] [ 119 ] As the Crown was pleading it, the reliability of the evidence is an important factor. [230] It is true that the third line of inquiry will usually favour admission in cases involving bodily samples [231] , like breath sample evidence, whose method of collection is relatively non-intrusive. [232] But the concern for truth-seeking is only one of the considerations under a s. 24(2) application. [233] The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter . [234] [ 120 ] There were two serious violations of two important Charter 's rights.

The cumulative effects of those violations on the accused were serious. The officer proceeded in a hurry without the required reasonable and probable grounds to an illegal arrest of the accused, and also to an illegal demand of breath samples from him, without doing an investigation, while there was no urgency, and while he had many investigative tools available he chose not to use. The officer was negligent, and showed a reckless disregard for established Charter standards. He commited unreasonable errors.

Either the police officer knew he was wrongdoing, or he ought to have known. [235] Whichever is the case, he cannot be said to have proceeded in "good faith", as that term is understood in s. 24(2) jurisprudence. [236] The failure of the police officer to explore the other investigative techniques that were available to him shows the absence of sincere effort to comply with the Charter . [237] The availability of other investigatory techniques tends to render the Charter violation more serious. [238] When other techniques were available, but were not used or even considered, it is particularly serious that the police chose to violate the accused's rights. [239] The public expects those engaged in law enforcement to respect the rights and freedoms we all enjoy by acting within the limits of their lawful authority. [240] The Court finds it necessary to dissociate itself from that conduct and from those serious violations. [ 121 ] We are not in presence of technical violations.

The accused was arbitrarily arrested and detained and there was an illegal and unreasonable search. As the Supreme Court stated in Harrison [241] , the detention and the search had an impact on the accused's liberty and privacy interests. [242] Being subjected to a search by the police without justification impacts on the person's rightful expectation of liberty and privacy in a way that is more than trivial. [243] The Supreme Court stated many times that even the relatively non-intrusive

nature of the detention and search must be weighed against the absence of any reasonable basis for justification [244] A person in the accused's position has every expectation of being left alone excepted when there is a valid detention and a valid demand in application of the the law. [245] The deprivation of liberty and privacy represented by the unconstitutional detention and search was a significant, although not egregious, intrusion on the appellant's Charter -protected interests. [246] [ 122 ] The impact of those infrigements are more than minimal on the accused since he was arrested without the valid grounds to do it, and he was brought to the police station and was ordered without the required grounds to furnish breath samples for some analysis. [247] The impacts on the accused's protected interests are very serious.

The police officer acted illegally, on a matter well known, while he showed no rigour, he was negligent, he showed a reckless disregard of the Charter rights of the accused, and he commited unreasonable errors, and there was no urgency, and had many investigative tools available which he chose not to use.

There is a risk that the admission of the evidence may signal to the public that Charter rights are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [248] [ 123 ] Even if the evidence is reliable and essential for the prosecution, when we look at the totality of the circumstances, and when we are balancing the factors in this case the Court concludes that the evidence must be excluded.

Keeping in mind the long term perspective, the repute of the administration of justice would suffer if the Court would not dissociate itself from the conduct of the police officer in that case, since the violations were serious and the impacts on the accused significant.

The admission of the evidence would disrepute the administration of justice by sending a wrong message that even when the most fundamentals rights are completely violated, without urgency or other attenuating circumstances, and where the police officer was negligent and showed a reckles disregard for Charter rights and the Criminal Code requirements, the Courts are accepting that situation as if it would mean that the end justifies the means. [ 124 ] It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. [249] [ 125 ] As the Alberta Court of Queen's bench stated it, in R. v.

Waters [250] , after balancing the factors in a case similar to this one: "55 (…) The significant impact on the Charter -protected interests of the Appellant is not, on its own, enough to lead me to exclude this reliable evidence. However, when viewed in conjunction with the carelessness regarding Charter values shown by the Constable, I find the court should exclude the evidence. From a long-term perspective, the repute of the administration of justice suffers when the court does not disassociate itself from such conduct.

It sends the message to the public that both Charter protections and the additional tools available in the Criminal Code to help the police officer establish reasonable grounds for a breath demand before impacting the citizen's liberty are of little practical significance. VII. Conclusion 56 I find that the Constable made the breath demand to the Appellant without reasonable grounds as required by s. 254(3) of the Criminal Code . Accordingly, the breath samples were taken in violation of s. 8 of the Charter . Further, I find that the Certificate of Analysis should be excluded under s. 24(2) of the Charter .

Given that the excluded evidence was key to the Crown's case under the charge of driving while having a blood alcohol level in excess of eighty milligrams of alcohol in one hundred millilitres of blood, I enter an acquittal on that charge." [ 126 ] In many post- Grant cases similar to this one where an officer proceeded to an arrest and a demand for breath samples without the requisite grounds, and where the officer only had, objectively, suspicions, the Courts, when balancing the factors, and even having in mind the reliability of the evidence and its importance for the Crown's case, decided that when balancing those factors, the exclusion of the evidence was the logic conclusion since the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute. [251] [ 127 ] In

summary, the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards. [252] [ 128 ] The Court in R. v. Perry [253] made the following comments that this Court approves and finds appropriate for the present case: "65 Drinking and driving offences are serious and the evidence of the breathalyzer is most probably reliable. Although those facts speak to admissibility of the evidence, the seriousness of the offence and the strength of the evidence cannot overwhelm the s.24(2) analysis: Harrison , para.40.

The end does not justify the means and society has little interest in such a short-sighted approach.

Society has a clear interest in adjudicating individual matters on their merits, but also has a clear interest in making sure that the desire to achieve a successful criminal prosecution in an individual case does not lead to the bit by bit undermining of the long term Charter rights that protect the citizen's overall rights and freedoms. 66 Although society generally expects a criminal allegation will be adjudicated on its merits, one should not interpret that to mean that by default, society expects all prosecutions to be adjudicated on their merits.

Fairness is a societal and constitutional standard and society generally does not demand or condone a prosecution they feel was not

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