2023 QCCQ 2955, 2023 QCCQ 2955

R. c. Velosa 2023 QCCQ 2955 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL « Criminal and Penal Division » No: 505-01-177392-228 DATE: MAY 11, 2023 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HIS MAJESTY THE KING Respondent-plaintiff v. KASSANDRA VELOSA Applicant-accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________

PREAMBLE [ 1 ] The applicant stands trial on accusation of operating a motor vehicle while impaired by alcohol and over the legal limit. [ 2 ] She presents a motion based on sections 8 and 9 of the Canadian Charter of Rights and Freedoms ( Charter ) alleging a breach and violation to her Charter protected rights. Namely, that the officer who proceeded to her arrest had no valid ground to do so. This violation should lead to exclude the evidence that resulted as the appropriate remedy under 24(2) of the Charter . [ 3 ] A voir-dire took place. Two witnesses were presented by the respondent.

One was a civilian, the other the officer that made the arrest. The applicant did not testify or presented evidence. [ 4 ] The Court does not have to address in detail each and everyone of the pieces of evidence presented. Neither does it have to systematically position itself in regard of each argument proposed. [1] Therefore, only the relevant evidence useful for the resolution of the issues will be discussed. [ 5 ] As to the jurisprudence, the judgment does not pretend to present an exhaustive review of the law on each issues discussed, nor a review of each case argued by the parties.

THE CIVILIAN [ 6 ] His testimony, while relevant to the merit of the case, has limited relevance in the context of the motion [2] . Therefore, it is not useful to relate in detail his testimony save for what follows: • He is taking a walk with a friend around 3am on Curé Poirier street near the intersection of Chemin Chambly in Longueuil. • He sees a car starting up in the distance, hears the motor revolving 2-3 times and sees the car accelerate rapidly in his direction. • A woman was driving. One passenger was also in the car. • The car lost control while still accelerating and hit a streetlight.

It backs up, stops and tries to go forward but is stopped by a low wall. • It gets back on the road and proceed to the intersection and stops. • The civilian then approaches the car to see if the occupants needed help. Prompted to lower her window, the driver simply answers by showing her two thumbs up with her eyes half closed. • The light then turns green and the driver proceeds to leave the intersection. • The perception of the civilian is that the damages to the car did not allow the car to go very far since it rapidly stalled and stopped

behind a gas station at the intersection. • The civilian then decided to call 9-1-1. He related the accident, the possibility of injuries to the occupants of the car since the impact with the streetlight was not benign and the possible intoxication of the driver. • One minute later, the first responders (firemen) arrived, followed by the police and ambulance. • He stayed on the scene and eventually wrote a statement along with his friend in a patrol car relating what he had seen.

THE OFFICER [ 7 ] Which brings us to the testimony of the officer who was the first police officer to arrive on scene. [ 8 ] The call came through dispatch on radio to all on patrol between 3h40 and 3h42. It was only mentioning an accident, a location and that the car was trying to leave the scene. He was nearby and arrived one minute after the call, saw that first responders were already on the scene behind the gas station and parked his patrol car behind the car of interest. [ 9 ] He approached the car and heard a fireman asking the driver [3] to provide documents.

He saw other first responders on the passenger side of the car looking at the car’s damages. He joined them and saw damages to the passenger’s side front wheel and damages on the same side to the windshield. He returned to the driver’s side, saw the driver looking at her documents and heard her mumbling something with a pasty mouth (bouche pâteuse). He asked her to repeat. She answered slowly with again a pasty mouth that she was looking for her documents. He asked her to give him the car keys and arrested her immediately when she remitted him the documents. It was around 3h46.

She was then asked to leave the car and proceed to the officer’s patrol car. She was seated in the back seat, with probably the door left open in order for him to keep an eye on her. Within a minute, two other police officers arrived. He transferred them his grounds of arrest and they took over the custody of the applicant. His report states that these grounds of arrest were the accident and her difficulty with speech( élocution ).

The officer did not see again or interacted with the applicant from that moment. [ 10 ] We can summarize the other relevant parts of his testimony as follows: • He arrested the applicant for the infraction of care and control of the vehicle while impaired.

He explained his decision by the fact that he had not seen the applicant drive the car before his arrival and there was no evidence provided to him on the scene at that time that indeed she was the driver when the accident occurred. • There was no mention in the dispatch call that the possible intoxication of the driver or alcohol were or could be a factor at play. • He never smelled alcohol on the scene or detected an odor of alcohol emanating from the applicant and neither was he informed from other responders that such an odor had been detected. • He never asked her if she had consumed alcohol either before or after her arrest. • She spoke a maximum of three sentences in his presence: the first one was what he did not understand when coming back from seeing the damages and that he asked to be repeated.

The second one was in answer to his request, which was: “ je cherche mes documents ” [4] . The third one was “ je me suis endormie”.

For the latter, the officer cannot specify if that statement came spontaneously from the applicant or if it was prompted by a question from a first responder or by himself. • He might have been in the immediate surroundings of the applicant and her car on the scene for a maximum of 10 minutes but estimates between 30 seconds to one minute the time when he interacted with the applicant. • He lists the following as grounds leading to the arrest: the accident, the attempt of leaving the scene of the accident, the pasty mouth (mumbling her words), the slow speech and his experience.

ARGUMENTS OF THE PARTIES [ 11 ] They can be summarized as follows: respondent argues that the grounds provided by the officer meet the “reasonable grounds of arrest” required to arrest someone while the applicant argues that they were at best suspicions insufficient to arrest her. It will not be necessary to list in detail their respective arguments, since most are to be found in the analysis that follows. THE LAW [ 12 ] The Québec Court of Appeal in R. c.

Lafrance , 2017 QCCA 768 , said as follows: [12] Il est maintenant bien établi que les motifs raisonnables de croire à la commission d'une infraction comportent une dimension objective et une dimension subjective [8] : l’agent qui procède à l’arrestation doit constater des faits précis générateurs de motifs raisonnables de croire que la personne observée a probablement commis une infraction.

Ces motifs subjectifs de l’agent doivent être objectivement justifiables en ce qu’une personne raisonnable de notre société, se trouvant à la place de l’agent de police, pourrait, au vu de ces faits et des circonstances de l’affaire, conclure qu’il y a effectivement des motifs raisonnables et probables de procéder à l’arrestation. [13] La Cour est d’avis qu’une personne sensée, raisonnable et bien renseignée, qui observerait la situation de façon réaliste et pratique [9] , ne pourrait conclure autrement que l’ensemble des symptômes notés établissent des motifs raisonnables de croire que l’intimé était en train de conduire un véhicule automobile avec les facultés affaiblies. […] [15] Les symptômes constatés par l’agent Corriveau, considérés dans leur ensemble, et de façon objective tout autant que subjective, étaient de nature à établir des motifs permettant raisonnablement de penser que l’intimé conduisait son véhicule alors qu'il avait les facultés affaiblies par l’alcool.

L’agent était donc justifié de procéder à l’arrestation de l’intimé, de lui ordonner de se soumettre

au test requis, et la poursuite était bien fondée à produire en preuve les résultats de son test d’alcoolémie. (reference omitted) [13] The officers in Lafrance were operating a roadblock and the symptoms were the followings: […] il a freiné brusquement, il aappuyé à nouveau sur l’accélérateur après avoir immobilisé son véhicule, il y avait présence d’une forte odeur d’alcool dans l’habitacledu véhicule, l’intimé a les yeux très rouges et vitreux, démarche lente de l’intimé pour sortir du véhicule, l’intimé zigzague de gauche àdroite lorsqu’il marche, la fermeture éclair de son pantalon est ouverte, l’intimé dégage une forte odeur d’alcool à l’extérieur du véhiculeet l’intimé chambranle.

L’agent Corriveau ajoute même que « c’était très, très évident, là, c’était sûr à cent pour cent (100%) quemonsieur était en état d’ébriété ». Il qualifie, d’ailleurs, l’état d’ébriété de l’intimé comme étant « très avancé ».(par. 3) [14] Lafrance also stated that the trial judge had erred by breaking up (morceler) the symptoms considered by the police officer andeliminating them one by one (par. 14). [15] The Court also referred to the principles established by the Supreme Court in R. c. Storrey, (1990) (SCC), 1R.C.S. 241 and R. c. Bernshaw, (SCC), 1995 1 R.C.S. 254 as still the law applicable.

In short, the officer does not havethe burden to prove the culpability of the accused or to demonstrate without reasonable doubt the commission of the infraction. He doeshave, however, a certain burden before concluding that he has more than mere suspicions. The officer therefore must articulate groundsthat would allow a reasonable person to believe the commission of the infraction. In other words, that the accused “more likely than not”did operate a motor vehicle while impaired by alcohol. ANALYSIS [16] It is hard, if not impossible, to retain the accident and the attempt to leave the scene as grounds of arrest.

This would normally beassociated with the fact that the applicant was driving the vehicle when it happened. But at the time of the arrest, no one had comeforward with any evidence in that direction. More significant, the officer testified that he arrested the applicant for care and control forexactly that reason, namely that he had not seen the car being driven or by whom at the time of the accident with the streetlight andneither who was driving it before it stopped behind the gas station.

The only way to interpret this testimony is that the officer could notplace her as driver for what had taken place before it stopped behind the gas station and did not contemplate that circumstantial evidenceallowed him to make any inference in that direction. [17] These two grounds have therefore to be excluded as grounds of arrest in the circumstances. Not because the Court is breaking upthe evidence.

Simply because the testimony of the arresting officer demonstrates that they were not reasonable as grounds at the time ofarrest. [18] Which leaves us with the slow speech and the pasty mouth. [19] The Court can easily concede that these symptoms are often alleged as sign of impairment or as ground of suspicion to order anASD[5] in cases such as ours. Often, they will be associated however with other signs or symptoms of impairment by alcohol as seen inLafrance as an example. But nothing prohibits that they be considered on their own. [20] What do we have in that respect?

The answer is the experience of the officer. Freely translated, that his experience is such that itflows that these symptoms can only be associated with proof of impairment by alcohol. The proof that alcohol was present in theapplicant relies on the two above symptoms added to the accident and her statement that she fell asleep. His experience tells him that shehad drank. As already seen, the accident cannot be a factor here. Which leaves the rest. [21] He will come back on the subject shortly after by stating that he does not need more than the two symptoms combined with theaccident: it becomes a ground.

That explains why he did not have to even ask her if she had consumed alcohol prior to her arrest. Onceagain, the accident is not at play for the reasons already explained. [22] The applicant will then suggest that it could be very well possible that these two symptoms (slow speech and pasty mouth) bepresent with no alcohol at play. The officer agreed, but added that if that was the case, it would be known afterwards with the breathsamples results while adding that for our specific case, we didn’t know (on le sait pas). [23] This answer raises more questions than it answers.

It is tantamount to admitting that the two symptoms could originate from anynumber of reasons, that he was in the dark as to which one was at play, but that this difficulty would be resolved by the breath samplesresults that would follow.

There is no need to elaborate that such a reasoning is not the proper path to follow and that the eventualdiscovery of incriminating evidence against an individual cannot bonify or legitimate after the fact the reality that there was no legalground to start with that could lead to this discovery. [24] However, could these two symptoms, combined with the experience of the officer, suffice? [25] The answer is no. [26] It was difficult to establish exactly what was that experience.

Being a police officer for 16 years, he started by establishing onaverage once a year his number of arrests in cases related to alcohol involving motor vehicle, with an average higher in his first years onpatrol. Nothing more specific was added. [27] More importantly, he only offered his experience with no further explanations as to how or why it could relate to the symptoms

and the arrest. [28] Respondent argued on the topic of experience R. v. Biccum, 2012 ABCA 80. The relevant passage reads as follows: [20] The law requires that the constable have an honest subjective belief that he has grounds to make the demand for a breathsample. Further, that honest subjective belief must be objectively reasonable: Shepherd at para. 17.

The results given by the approvedscreening device can be used to show the reasonableness of the belief: R. v Bernshaw, (SCC), [1995] 1 SCR 254 atpara. 49. [21] The fact that an experienced constable has an honest subjective belief, while not conclusive, is itself some evidence that thebelief is objectively reasonable. “A judge is entitled to consider a police officer's training and experience in determining objectivereasonableness”: R. v Rajaratnam, 2006 ABCA 333 at para. 25, 214 CCC (3rd) 547; R. v Juan, 2007 BCCA 351 at paras. 18-21, 222CCC (3d) 289.

The point was summarized in R. v MacKenzie, 2011 SKCA 64, 371 Sask R 291: 27 A number of cases in Canada, including R. v. Nolet, 2009 SKCA 8, 245 CCC (3d) 419 [affirmed 2010 SCC 24, [2010] 1 SCR851], and Yeh [2009 SKCA 112, 248 CCC (3d) 125] from this Court, and in the United States indicate it is important that a trial judgetake into consideration the experience and training of peace officers when determining the objective existence of a standard ofprobability like reasonable suspicion or reasonable and probable grounds.

As examples, see: R. v Feeney, (SCC),[1997] 2 SCR 13, per L’Heureux-Dubé J. at para. 124; R. v Schrenk, 2010 MBCA 38, 254 CCC (3d) 277, at para. 77; United States vArvizu,[2002] SCT-QL 15, per Rehnquist C.J. at paras. 19 and 23. All of these cases support what Richards J.A., in Yeh at para. 53,called the “established notion” that a trial judge is to consider and give some weight to the training and experience of the peace officer indetermining whether the officer’s subjectively held reasonable suspicion is objectively verifiable.

Richards J.A. further noted in Yeh thatthe reason for this practice is that “a fact or consideration which might have no significance to a lay person can sometimes be quiteconsequential in the hands of the police.” 28 Nevertheless, the case law does not stand for the proposition that a peace officer's testimony should not be carefully assessed. . . . Obviously, as recognized in MacKenzie, the individual police officer cannot by his conduct dictate what is reasonable and what isnot: R. v Payette, 2010 BCCA 392 at para. 29, 259 CCC (3d) 178.

But experienced police officers have a level of expertise that isrelevant to the analysis.(…) [29] The case of MacKenzie quoted above was subsequently brought to the Supreme Court[6] . The Supreme Court recognizedagain that the experience of an officer is a factor to consider (paragr. 60 to 63). These paragraphs from the Supreme Court judgment weresubsequently quoted with approval by the Québec Court of Appeal in R. v.

Fadel, 2015 QCCA 1233 . [30] In Fadel, the arrest came with an individual in possession of a small metallic box with a numbered lock exiting a bank branchand exhibiting a nervous behavior while seeming to elude the officers. Asked what he was doing, he did not provide an answer. He wasarrested for fraud. The officers testified at trial about their experience, namely that this type of very specific box is used by fraudsters tocarry falsified credit cards when hitting ATM machines.

This knowledge coming from experience was accepted.[7] [31] In short, and without further review of case law, we can say that police experience is a factor to be considered if indeed aground can be validated with this experience. Said otherwise, and in reference to Fadel, a reasonable person would not understand asground of arrest the simple statement that my experience and that metallic box justified arrest if no explanation is given in regard of thebox. The same applies here.

However common pasty mouth and slow speech might be present in cases like ours, the officer cannot ruleout that they might have nothing to do with alcohol present in the applicant. He said so himself. Therefore, some foundation becomesnecessary to tie these symptoms with presence of alcohol.

Section 320.14 of the Code is titled Operation while impaired, with theimpairment to any degree caused by alcohol or drugs. Respondent’s theory and the evidence presented is by alcohol. It could very wellbe that the foundation to tie the symptoms to alcohol is or will be experience. But it cannot be simply offered at face value with nothingmore to back it up. [32] Obviously, the question asked by defense could be interpreted as isolating the two symptoms and trying to either offer innocentor alternative explanation for them or inviting the Court to break them out from the whole of the evidence.

But the reality is that they arethe sole remaining symptoms, and we have no explanation at all as to how these two symptoms could be considered as grounds thatwould have a reasonable person believe that the applicant more likely than not did commit the infraction. [33] Sometime, the sums of symptoms speak by themselves. Common sense will dictate that the signs of impairment are sometimeso obvious to all that they don’t need to be explained by experience or otherwise. Any reasonable person sees it. But here, to factor inthe experience as presented would be

an act of blind faith. Furthermore, the Court cannot compensate the lack of evidence on thatexperience by importing des éléments de preuve présentés devant d’autres juges lors d’autres procès[8] if indeed these two symptomsalone were ever ruled sufficient with experience at play. [34] Courts cannot be satisfied with simple suspicions or intuition when the law requires reasonable grounds, even if thesesuspicions turn up right afterwards.

The reasonable grounds must exist at the time of the arrest, otherwise they are and will remain ahunch.[9] [35] The conclusion is that the grounds of arrest lacked the prerequisite conditions outlined above to be considered legal in ourcircumstances and therefore constituted a breach of the applicant’s Charter protected rights. SHOULD THE REMEDY BE THE EXCLUSION OF EVIDENCE? [36] On March 23, 2023, the Supreme Court rendered R. v. McColman[10]. In this affair, the police had the intent to intercept theaccused for a random sobriety test pursuant to the Ontario Highway Traffic Act.

By the time they caught up with the driver, he had leftthe public road and was on a private driveway serving his parent’s home. Obvious signs of impairment were observed and lead to hisarrest. The dispute was to determine if the powers of the provincial legislation allowed the police to proceed on a private property. The

answer was no: [51] While s. 48(1) of the HTA furnished the police officers with the legal authority to conduct random sobriety stops of drivers of motor vehicles, they did not have the authority to stop Mr. McColman because he was not a “driver” within the meaning of the HTA at the time of the stop. Since the stop was unlawful, the police officers breached Mr. McColman’s rights under s. 9 of the Charter , which proclaims that “[e]veryone has the right not to be arbitrarily detained or imprisoned”.

This Court has affirmed that “a detention not authorized by law is arbitrary and violates s. 9 ”: Grant , at para. 54 . Given the above finding that the police officers did not have the legal authority to randomly stop Mr.

McColman, it follows that they arbitrarily detained him. [52] The next question is whether the evidence the police officers obtained on the driveway and later at the police station should be excluded under s. 24(2) of the Charter . [ 37 ] While not exactly within the same factual framework than our case, it still remains that we are faced with similar legal issues: same infractions, unlawful arrest argued, same Charter violation, same demand of exclusion of evidence as remedy, same evidence targeted, namely the breath results.

Therefore, the analysis is basically the same, save for the adaptation to our facts. [ 38 ] However tedious can be lengthy quotations of jurisprudence for the reader in a judgment, McColman will be quoted extensively. It is the latest and updated position of the Supreme Court on 24(2) to start with. And it also discusses the same type of evidence to be included or excluded as already said.

What follows are the relevant excerpts: [53] Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial 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”.

The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68 . [54] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70 .

In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140. [55] Trial courts must evaluate each of the three lines of inquiry thoroughly.

A cursory review of the Grant test prevents appropriate appellate review and transforms s. 24(2) from a contextual inquiry into a bright-line rule. [56] In the current case, the trial judge did not conduct a Grant analysis, since he found that s. 48(1) of the HTA authorized the random sobriety stop and there was no s. 9 violation. Accordingly, this Court must conduct the Grant analysis afresh.

(1) The Seriousness of the Charter -Infringing Conduct [57] The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. As this Court stated in Grant, at para. 72 , this line of inquiry “requires a 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”.

Or as this Court phrased it in R. v. Harrison, 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 22 : “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?” [58] In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15 , [2017] 1 S.C.R. 202, at para. 43 . As Justice Doherty observed in R. v.

Blake, 2010 ONCA 1 , 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75 . Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith?

Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability. [59] It should be noted at the outset that the first and second lines of inquiry are distinct. The first line of inquiry evaluates the state conduct itself, while the second line of inquiry goes further and assesses the impact of the state conduct on the accused’s Charter-protected interests.

This Court has noted that “[w]hile the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion”: R. v. Le, 2019 SCC 34 , [2019] 2 S.C.R. 692, at para. 141 . As noted in R. v. Lafrance, 2022 SCC 32 , at para. 90 , “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded” (emphasis in original).

In certain situations, only one of the first two lines of inquiry will pull towards exclusion of the evidence. State conduct that is not particularly serious may nonetheless heavily impact the accused’s Charter-protected interests. Conversely, state conduct that is egregious may minimally impact the accused’s Charter-protected interests. Courts must be careful not to collapse the first two lines of inquiry into one, unstructured analysis. [60] In the case at bar, the first line of inquiry pulls slightly in favour of exclusion.

Although there was relevant case law to support the police officers’ sobriety stop, given the legal uncertainty that existed at the time, the police officers should have acted with more prudence. When faced with legal uncertainty, “the police would do well to err on the side of caution”: R. v. TELUS Communications Co., 2013 SCC 16 , [2013] 2 S.C.R. 3, at para. 80 .

[61] At the time of the random sobriety stop, the applicable case law was in a state of uncertainty: see R. v. Vu, 2013SCC 60, [2013] 3 S.C.R. 657, at para. 71. The dissenting judge below pointed to several Ontario cases in support of his proposition that“there was jurisprudence that supported the officers’ authority to make the stop on the shared driveway”: para. 178, per Hourigan J.A.See especially R. v. Alrayyes, 2013 ONSC 7256; R. v. Calder (2002), 29 M.V.R. (4th) 292 (Ont. S.C.), aff’d (2004), (ON CA), 47 M.V.R. (4th) 20 (Ont. C.A.); R. v. McGregor, 2015 ONCJ 692, 92 M.V.R. (6th) 333; and Warha.

For example,in Alrayyes, the Ontario Superior Court of Justice held that under s. 48(1) of the HTA, a police officer’s authority to stop a vehicledriving on a highway did not evaporate merely because the vehicle had entered onto private property: para. 31 (QL, WL). [62] However, not all of the applicable case law supported Cst. Lobsinger’s decision to conduct a random sobriety stop.In R. v.

George, 2004 ONCJ 316, the trial judge held that the police officer did not have the authority under s. 48(1) of the HTA toconduct a random sobriety stop of a person who had pulled off the highway onto his private driveway: paras. 15-16 . Similarly,in R. v. Nield, 2015 ONSC 5730, 88 M.V.R. (6th) 274, the Ontario Superior Court of Justice held that s. 48(1) of the HTA did not applyto a person who was driving a vehicle, but who was not situated on a highway: paras. 26 and 29. See also R. v. Hajivasilis, 2013 ONCA27, 114 O.R. (3d) 337, at para. 13; R. v.

Larocque, 2014 ONCJ 601, at para. 11 ; and Vander Griendt, at paras. 19-21. [63] Ultimately, however, the police officers in this case acted without legal justification. As outlined above, the HTA didnot furnish them with authority to conduct a random sobriety stop on private property. Nor did they have reasonable and probablegrounds. Given the legal uncertainty at play, the police officers had a duty to act cautiously and to question the limits of their authority.As Dickson C.J. noted in dissent in Dedman v.

The Queen, (SCC), [1985] 2 S.C.R. 2, at p. 10, “[i]t has always been afundamental tenet of the rule of law in this country that the police, in carrying out their general duties as law enforcement officers of thestate, have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law”.Although Dickson C.J. was speaking in the context of the police common law power, his remarks apply equally to the police exercise ofstatutory power. Police officers can only exercise the powers granted to them by the law.

In situations marked by legal uncertainty, policeofficers should not rely on that uncertainty but instead should err on the side of caution. [64] Under the first line of inquiry, courts must also ask whether there are other extenuating circumstances that affecttheir view of the gravity of the state conduct. In the current case, the police could have conducted the random sobriety stop on thehighway by activating the cruiser’s lights or sirens as soon as Mr. McColman had departed from the convenience store on his ATV.Thus, the “evidence could have been obtained without a Charter violation”: R. v.

Jacoy, (SCC), [1988] 2 S.C.R. 548, atp. 559. In short, the police officers could have conducted the random sobriety stop before Mr. McColman pulled onto private property. [65] In our view, on the whole, the first line of inquiry pulls slightly in favour of exclusion. The police acted withoutstatutory authority in effecting the stop, and a body of case law confirmed their lack of authority to stop Mr. McColman. On the otherhand, another body of case law supported their conduct.

Given the legal uncertainty that existed at the time of the random sobriety stop,the breach was accordingly not so serious as to require this Court to disassociate itself from the police actions. In light of that same legaluncertainty, however, the police officers should have acted with more prudence. In our view, on balance, these two effects of the legaluncertainty pull in favour of exclusion, but only slightly. APPLICATION [39] Contrary to McColman, we are not confronted with uncertain law or conflicting jurisprudence.

As seen in jurisprudence, thecase laws concerning grounds of arrest constantly refer to Storrey and Bernshaw rendered respectively in 1990 and 1995. We can alsoadd that the infractions are not some obscure infractions rarely seen. It is safe to say that impaired driving is a regular occurrence on ourCanadian roads. A lot of issues have been debated over the years for this type of infraction: ASD procedure and delay, right to counselon the roadside, etc. to name a few. Grounds of arrest were also debated over the years. But not because the law was uncertain.

Becausefactually on a case-by-case basis, as our case demonstrate, it is argued that officers did not understand or know the law, not that it wasopen to

interpretation.

Consequently, concept such as reasonable suspicions or reasonable grounds should be known by officers for thesimple reason that they are settled since the nineties and are the foundations of every arrest made regardless of the nature of theinfraction, be it a rare or recurrent one in a police career. [40] Coming back to our facts, we have an officer who in less than one minute of real contact with the applicant literally jumped toconclusion by factoring in as grounds facts that he could not use by his own admission( the accident and the attempt to leave the scene)and then used slow speech and pasty mouth as grounds, both justified by his experience, who apart from the fact that it was said as astatement, was nowhere explained or found in the evidence presented as too why or how exactly the experience could lead to suchconclusion.

He also agreed to the proposition that they could be present without alcohol at play. In some cases, 30 seconds are morethan necessary to arrest someone due to the obvious signs of impairment reflected by numerous factors present. It was not our situation. [41] There is also a strong feeling of disinterestedness in his conduct. He never asked the first responders already dealing with theapplicant upon his arrival any questions concerning their assessment of the situation or of the applicant. He neither made inquiries withthe applicant.

If he did (the statement je me suis endormie could have been following a question), he has no memory. There doesn’t seemto be any note or observation made as to how the applicant behaved once asked to leave her vehicle or when she remitted her keys ordocuments. We have nothing concerning her demeanor between her car and the patrol car where she was briefly seated. The officer wasaware of civilians present on the scene but did not inquire if they could be helpful in the investigation. This is not mandatory, butexpected, at least for note taking concerning his intervention or observations[11].

It is also telling that he immediately transferred theapplicant to other officers when they arrived. Everything points in the direction that he acted hastily at all moments.

[42] This first line of inquiry strongly pulls in favour of exclusion. [43] Which brings us to the second line of inquiry:

(2) The Impact of the Breach on the Charter-Protected Interests of Mr. McColman [66] The second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter maysend a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which thebreach “actually undermined the interests protected by the right infringed”: Grant, at para. 76.

Like the first line of inquiry, the secondline envisions a sliding scale of conduct, with “fleeting and technical” breaches at one end of the scale and “profoundly intrusive”breaches at the other: para. 76. [67] For example, in R. v. Tim, 2022 SCC 12, the impact on the accused’s s. 9 interests was found to fall somewhere inthe middle of the spectrum. The impact of the accused’s arbitrary arrest was mitigated to some degree because although he was arrestedon the basis of a mistake of law about the legal status of a drug, he was lawfully detained for a traffic collision investigation: para. 92.

Bycontrast, in Harrison, this Court found that the impact was more significant because the accused was stopped and his vehicle wassubjected to a search without lawful justification: para. 31; see also R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 56. [68] In the current case, the second line of inquiry moderately favours exclusion of the evidence. The stop impactedMr. McColman’s liberty interests because the police questioned him in the course of an unlawful detention. Although the police had thepower to randomly stop Mr.

McColman to check his sobriety, they did not act within the legal limits of that power. In addition, the factthat the arbitrary detention occurred on private property is relevant because “[r]etreat to a private residence (even if not one’s ownresidence) will sometimes be the only practical way for individuals to exercise their right to be left alone”: Le, at para. 155. As a result ofthe unlawful stop, Mr. McColman was arrested and brought to the police station, where he was detained for several hours.

The policeobtained significant evidence against him, including the officer’s observations of signs of impairment, Mr. McColman’s statements abouthis alcohol consumption, and the results of two breathalyzer tests. Therefore, the unlawful police stop constituted a marked, although notegregious, intrusion on Mr. McColman’s Charter-protected interests. APPLICATION [44] Again, the impact is somehow mitigated by the uncertainty of the law and the fact that the police could have arrested him onthe road before he reached the private property. These factors are not at play here.

But the result of the unlawful arrest is, which allowedto obtain significant evidence against the applicant while being detained. It constituted a marked intrusion in the applicant’s Charterprotected interest. Also, it is hard to occult the casual attitude of the officer concerning his power of arrest that borders on ignorance ordisregard of the law.

Jumping to conclusion using evidence of the accident as grounds while arresting her for an infraction of care andcontrol dictated by the fact that he didn’t have anything to tie her to operating the conveyance at the time of the accident or since isserious if not egregious. [45] This can hardly be saved or mitigated by the argument that the evidence could have been obtained otherwise by coordinationtests or an ASD order that could have led to a legal arrest if the applicant had failed either.

It would be highly ironic that the officer’sconduct disregarding these powerful tools of investigation to validate legally what could only be described as suspicion or intuition at themoment of arrest would now come to his rescue. [46] The second line of inquiry strongly pulls in favour of exclusion. [47] Which brings us to the third line of inquiry:

(3) Society’s Interest in the Adjudication of the Case on Its Merits [69] The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better servedby admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of theevidence on the repute of the administration of justice and the impact of failing to admit the evidence: Grant, at para. 79.

In each case, “itis the long-term repute of the administration of justice that must be assessed”: Harrison, at para. 36. [70] Under this third line of inquiry, courts should consider factors such as the reliability of the evidence, the importanceof the evidence to the Crown’s case, and the seriousness of the alleged offence, although this Court has recognized that the final factorcan cut both ways: Grant, at paras. 81 and 83-84.

While the public has a heightened interest in a determination on the merits where theoffence is serious, it also has a vital interest in maintaining a justice system that is above reproach: para. 84. [71] While there is an obvious impact upon the administration of justice in admitting evidence obtained in contraventionof s. 9 of the Charter, admitting the evidence in the case at bar would not damage the long-term repute of the administration of justice.First, the evidence collected by the police was reliable and crucial to the Crown’s case. Cst.

Lobsinger observed several signs ofimpairment at the scene, including a strong odour of alcohol and Mr. McColman’s inability to stand up straight. Mr. McColman admittedto the officers that he “might’ve had 10” beers that evening. Two breathalyzer tests, conducted some time after he vomited due to hisalcohol consumption, revealed that Mr. McColman’s blood alcohol concentration level was significantly above the legal limit. [72] Second, impaired driving is a serious offence. This Court has recognized that society has a vital interest incombatting drinking and driving. In R. v.

Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 16, Cory J. noted:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. (See also R. v.

Lacasse , 2015 SCC 64 , [2015] 3 S.C.R. 1089, at para. 8 .) [73] In light of the reliability and importance of the evidence as well as the seriousness of the alleged offence, the third line of inquiry pulls strongly in favour of inclusion. Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system.

(4) Balancing the Grant Factors [74] When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: Lafrance , at para. 90 ; R. v. Beaver , 2022 SCC 54 , at para. 134 . Here, the first line of inquiry slightly favours exclusion of the evidence and the second line of inquiry does so moderately.

However, the third line of inquiry pulls strongly in favour of inclusion and, in our view, outweighs the cumulative weight of the first two lines of inquiry because of the crucial and reliable nature of the evidence as well as the important public policy concerns about the scourge of impaired driving. On the whole, considering all of the circumstances, the evidence should not be excluded under s. 24(2). APPLICATION [ 48 ] Contrary to MacColman , we have the first two lines of inquiry strongly pulling in favor of exclusion, which will obviously influence the balancing of the three lines of inquiry.

Are they sufficient to outweigh the third one? [ 49 ] In Cormier [12] , the Court of Appeal recently said as follows: [24]

La société a toujours intérêt à ce que les affaires soient jugées sur le fond, notamment par un processus précis et fiable d’appréciation des faits en ce qui concerne la preuve pertinente. Les trois critères énoncés dans l'arrêt Grant affirment que cet intérêt doit parfois céder le pas à des valeurs dans l'administration de la justice qui lui sont extrinsèques.

Il est maintenant bien établi que lorsque les deux premiers critères militent fortement en faveur de l'exclusion, le troisième critère fera rarement pencher la balance en faveur de l’utilisation de la preuve obtenue en violation de la Charte [14] . [25] Il n'y a pas d'exception générale à ces principes si la preuve en question est une preuve matérielle.

La Cour supérieure suggère qu'une telle preuve pourrait militer en faveur de son utilisation en raison de sa forte fiabilité intrinsèque, mais la Cour suprême, dans l'arrêt Grant , n'a nullement suggéré que le troisième critère oblige à utiliser une preuve obtenue en violation de la Charte . Une telle suggestion contredirait effectivement la jurisprudence affirmant que, dans les cas où les deux premiers critères favorisent l'exclusion de la preuve, le troisième justifiera rarement son utilisation. En outre, elle marquerait un recul vers un état du droit qui a été abandonné lorsque la Charte est entrée en vigueur.

En common law, avant l'adoption de la Charte , les éléments de preuve obtenus illégalement étaient admissibles s'ils étaient manifestement pertinents et probants pour une détermination précise et fiable des faits [15] .

Comme la Cour suprême l'a noté dans ses propos sur le troisième critère dans l'arrêt Grant [16] , ce point de vue a été répudié par l'affirmation expresse que l'administration de la justice doit également privilégier d'autres valeurs. [references omitted, underlines by the undersigned] [ 50 ] Material evidence such as breath sample results are therefore excluded, notwithstanding the reliability of this material evidence and the seriousness of the offence, notably when the right to counsel is violated. [13] [ 51 ] The same applies when, as here, there is no reasonable and probable grounds of arrest present. [14] FOR ALL THESE REASONS, THE COURT: GRANTS the applicant’s motion.

ORDER the exclusion of the evidence obtained following the arrest of the applicant, notably the results of the breath samples and their analysis obtained during her detention. __________________________________ RICHARD MARLEAU, J.C.Q. Me Gabriela Baraniuc Counsel for criminal and penal prosecutions For the Respondant-plaintiff

Me Mathieu Bourgon For the Applicant-accused Date of hearing: April 14th 2023