R. v. Jeyabalasingam, 2015 ONCJ 416

Citation: R. v. Jeyabalasingam , 2015 ONCJ 416 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — NIVEKANTH JEYABALASINGAM Before Justice F. Crewe Heard on June 1 & 2, 2015 Reasons for Judgment released on July 6, 2015 P. Cowle .................................................................................................................... for the Crown C.

Assie ........................................................................... for the accused Nivekanth Jeyabalasingam CREWE J.: OVERVIEW [ 1 ] The applicant/accused, Nivekanth Jeyabalasingam, was arraigned on a single count, “care and control over 80”, from August 10, 2014. [ 2 ] This prosecution depends upon the outcome of an Application for Charter relief brought by counsel on behalf of the Applicant/Accused, submitting breaches of sections 8, 9 and 10(b).

Summary of the Evidence [ 3 ] Officers Blakely and Gillespie were dispatched to the scene of an alleged assault at a soccer field at 9:10 PM on August 10, 2014. The complainant teenagers alleged that they were assaulted with cricket bats, and that the suspects were still on scene. [ 4 ] Officers Blakely and Gillespie arrived on scene at 9:18 PM. They spoke with a group of teenagers who came running up to them, complaining of having been assaulted and having beer bottles thrown. They pointed to two individuals in a silver Chrysler automobile as the perpetrators of the assault. [ 5 ] Mr.

Jeyabalasingam was seated in the driver’s seat, the engine running and the lights on. Officer Blakely approached the passenger side of the vehicle, Gillespie the driver side. The driver proved to be uncooperative, refusing to identify himself and behaving in an argumentative fashion toward officer Gillespie. He became irate, refusing officer Gillespie’s direction to keep his hands visible. Officer Blakely attended at the driver side for safety reasons.

Having observed an open bottle of liquor in the backseat of the vehicle, and having regard for the fact beer bottles had been broken at the scene, he removed it and placed it on the car roof so that it could not be used as a weapon. [ 6 ] Mr. Jeyabalasingam was directed out of the car, and continued to behave in a confrontational manner. He repeatedly refused to identify himself, and when Blakely requested the passenger’s identification, Mr. Jeyabalasingam directed the passenger not to speak to him. In addition, Blakely testified, Mr. Jeyabalasingam changed his stance.

At first he faced the officer with his chest, then moved so that he faced him with his shoulder, a stance which the officer referred to as “blading” and, he testified, was a stance which to him signalled aggression. [ 7 ] As a result of his aggressive behaviour, officer Blakely arrested Mr. Jeyabalasingam as a suspect on a charge of assault, took control of him and placed him in handcuffs, escorting him back to the police vehicle.

At this point, in close quarters, he detected the odour of an alcoholic beverage emanating from the Applicant, then noted that his eyes were glossy in appearance, and as a result read an Approved Screening Device (ASD) demand at 9:25 PM. [ 8 ] Officer Gillespie at this point interviewed the complainants regarding the alleged assault. [ 9 ] The officers did not have an ASD in their cruiser, so Blakely requested one be delivered. [ 10 ] Mr.

Jeyabalasingam spoke in clear English, and Officer Blakely was of the view he understood the ASD demand, but felt he was playing a game, pretending not to understand in order not to answer his questions.

[11] When Mr. Jeyabalasingam was placed in the rear of the police cruiser, officer Blakely activated the in car camera system(ICCS), and advised him he had done so. The video of their interaction, entered as Exhibit 5, shows officer Blakely reading the ASDdemand to the accused, at the conclusion of which he asks “Do you understand?” Mr. Jeyabalasingam replies: “No I don’t understand.”Officer Blakely then re-explains the demand and his reasons for making it in considerable detail to Mr.

Jeyabalasingam, who becomesopenly argumentative with the officer for a period of several minutes, at various points claiming not to understand, at others complainingof a headache, at others claiming he was unable to breathe and yelling out for help. [12] As their discussion continued, at 9:30 PM officer Blakely informed Mr. Jeyabalasingam of his right to retain and instructcounsel without delay, as it was his view that the ASD would not be arriving for some time. It was coming from 41 division and theywere situate in the area of 43 division. The ASD arrived at 9:52 PM.

During the 22 minute interval between informing the Applicant ofhis right to counsel and the arrival of the ASD, officer Blakely did not afford Mr. Jeyabalasingam the opportunity to contact counsel. Hegave two reasons for this denial of access: (

i) The Applicant was behaving in an aggressive fashion, and he would not take him out ofhandcuffs, thereby putting him or his partner in danger, and: (ii) owing to the operation of the ICCS, he could not afford the privacyrequired during consultation with counsel. He would provide an opportunity to contact counsel “as soon as possible”. [13] The ASD which arrived was a new device with which officer Blakely was unfamiliar, so he asked officer Gillespie toadminister the test.

Gillespie did so, with Blakely observing, and after several unsuccessful attempts, during which Gillespie advised Mr.Jeyabalasingam that he was not complying with his instructions, at one point pushing the device away, the accused provided a suitablesample at 9:58 PM which resulted in a Fail. Having observed the Fail reading, Blakely formed the opinion that he had grounds to arrestthe accused for the offence of “care and control”, and did so, at 9:59 PM. He read the approved instrument demand upon arrival at 41division at 10:18 PM.

He forgot to do so earlier. [14] While en route to 41 division, officer Gillespie detected the odour of urine. He asked the accused if he had urinated, andhe replied that he had. [15] Upon arrival at 41 division at 10:18 PM, Mr. Jeyabalasingam was subsequently paraded and placed in a report room. [16] At 11:44 PM, the accused was turned over to the qualified breath technician, officer Shawn McConnell.

After severalattempts to provide a sample, and repeated admonishments from officer McConnell that he was not following his instructions, theaccused eventually provided a suitable sample at 11:59 PM, with a reading of 117 mg of alcohol in 100 mL of blood. [17] A second sample was taken after Mr. Jeyabalasingam’s re-entry into the breath room at 12:17 AM.

Following severalmore unsuccessful attempts, a suitable sample was obtained at 12:29 AM, registering a reading of 118 mg of alcohol in 100 mL of blood. [18] During both visits to the breath room, the Approved Instrument was “timed out” as a result of repeated failures by theaccused to provide a suitable sample within the five-minute window allotted by the instrument. [19] The Crown called a toxicologist, Inger Bugyra, whose qualifications were conceded, and who opined that, projectingbackward from the time of both samples provided by the accused, his blood alcohol level at the time of care and control of the vehiclewould have been between 115 and 165 mg per 100 mL of blood.

THE ISSUES [20] The applicant submits that his s. 8, 9, and 10(

b) Charter rights were violated and that as a result the breath readingsshould be excluded pursuant to section 24(2). It is submitted that the ASD test was not carried out “forthwith”, and was therefore invalid.No issue is taken as to the timing of the demand itself. It is further submitted that the applicant’s detention was therefore arbitrary,contrary to

section 9 of the Charter. Further, the subsequent seizure of breath samples contravene

section 8 of the Charter. [21] It is submitted that since there was a significant delay between the officer reading the ASD demand and the arrival of theapproved screening device, the officer had an obligation to not only advise the applicant of his right to retain and instruct counsel, but toprovide meaningful access to counsel pursuant to that right. Because he was not provided an opportunity to contact counsel, it issubmitted that the verbal provision of the right was rendered meaningless and that his

section 10(

b) Charter right was therefore violated.It is submitted, finally, that the test results should be excluded pursuant to section 24 (2) since the admission of such evidence wouldbring the administration of justice into disrepute The “forthwith”requirement in s. 254(2) of the Criminal Code [22] Section 254(2) of the Criminal Code provides: if a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has,within the preceding three hours, operated a motor vehicle … or had the care or control of a motor vehicle,… whether it was in motion ornot, the peace officer may, by demand, require the person to… provide forthwith a sample of breath that, in the peace officer’s opinion,will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer forthat purpose. [23] Counsel for the applicant, in his submissions on this issue, conducted a detailed review of the authorities including, interalia, R. v.

Woods, 2005 SCC 42 , [2005] SCJ No. 42 (SCC); R. v. Kerr [2010] O.J. No. 2222 (OCJ), per Green, J.; R. v. Mehta[2012] O.J. No. 5587 (OCJ) per Lipson, J.; R. v. Beattie [2009] O.J. No. 4121 (OCJ) per Duncan, J. and R. v. Biernaskie [2014] O.J.

No.2236 (OCJ) per Horkins, J. [24] Section 254(2) depends, for its constitutional integrity, on the “forthwith” requirement. (Woods, supra at para 29). [25] In Kerr, supra, Justice Green found that the ASD demand had not been made “forthwith” in circumstances where theofficer delayed making the demand for approximately six minutes after forming the requisite reasonable suspicion, while she awaited the

arrival of the ASD. [ 26 ] In Mehta, Justice Lipson ruled that, having formed a reasonable suspicion that the accused had alcohol in his body, the attending officer should have made the ASD demand at that time. Instead, he waited seven minutes before reading the ASD demand and informing the accused that an officer was on the way with the ASD device. That device arrived after the passage of an additional seven minutes. In those circumstances, justice Lipson found that, Mr.

Mehta not being a security risk, he ought to have been afforded the right to counsel. [ 27 ] Other cases have yielded similar results. [ 28 ] In the instant case, the ASD demand was made “forthwith”. The issue raised herein is the accommodation of the Right to counsel. Where this case differs substantively from the above authorities, in my view, is as regards the issue of officer safety. [ 29 ] In Kerr, Justice Green dismissed the officer’s stated concerns for officer safety as unfounded on the evidence before him.

He stated, at paragraph 22: although rare, there may well be situations where immediacy may have to yield to legitimate concerns for public or officer safety. Such claim, however, cannot be indiscriminately or universally invoked so as to pre-empt constitutional compliance. Nor does the application of such exception fall to the subjective sensibility of each officer. There must be some objectively ascertainable foundation for such departure from a statutory imperative to avoid constitutional protections being held hostage to the unreviewable whim of law enforcement officers.

At paragraph 23, he continues: put simply, I do not find that the instant situation affords an objective basis for a claim of officer safety. There was nothing exigent or menacing about the stop or the behaviour of any of the occupants of the car. All were cooperative and compliant. Other than a possible seat belt infraction (which the officers noted but did not pursue), there was no suspicion of criminal or regulatory misconduct other than that involving the driver.

None of the passengers showed any indicia of disorderly or threatening behaviour. …. [ 30 ] Similarly, as noted above, in Mehta, at paragraph 12 , Justice Lipson notes, in holding that Mr. Mehta’s right to counsel was violated, that he was not a security risk. Indeed, the attending officer was content to have him wait at the scene in his own vehicle until the second officer arrived with the ASD. The officer noted that Mr.

Mehta was pleasant and cooperative throughout the investigation. [ 31 ] In Biernaskie, Justice Horkins notes, at paragraph 27, that while waiting for the ASD to arrive, the accused was allowed to stand outside his vehicle, on his own, for a significant period of time, for a part of which he was eating a take-out meal. [ 32 ] In R. v. Egeli [2015] O.J. No. 2702, (OCJ) , Justice Cleghorn notes, at paragraph 67: Mr. Egeli was at the scene for 45 minutes after he was arrested. The delay at the scene provided more than ample time to allow Mr. Egeli a real opportunity to consult with counsel.

He had a cell phone on him at the time of the arrest. He was placed in the back of the police cruiser while the officers secured the scene. Constable Mauceri acknowledged that the audio and video equipment in his police cruiser could have been turned off. This would have afforded Mr. Egeli the privacy needed for him to consult counsel. Neither Constable Mauceri nor Sgt. Strangways gave any evidence that there were specific concerns regarding their safety related to Mr. Egeli. There was no suggestion that he was behaving in an erratic or aggressive manner.

Although objectively grounded concerns about officer safety can justify a delay in either administering or implementing the right to counsel, such delays must be objectively justified in the circumstances. Unsubstantiated concerns about officer safety will simply not suffice. [ 33 ] In this case, in my opinion, there are legitimate concerns with respect to the issue of officer safety, viewed both subjectively and objectively. To begin with, officers Blakely and Gillespie were dispatched to the scene as a result of a radio call regarding assaultive behaviour.

Upon arrival they were approached by several teenagers who pointed out the accused and his friend as having assaulted them and thrown beer bottles. Broken beer bottles were found on site. Upon speaking to Mr. Jeyabalasingam, both officers were met with a confrontational and argumentative individual. His behaviour from the outset was sufficient to cause officer Blakely to move from the passenger side of the automobile to the driver side out of safety concerns. Further, having seen an open liquor bottle in the back of the car, he felt the need to remove it to avoid it being used as a weapon.

The applicant repeatedly refused directions to identify himself and to keep his hands visible to the officers, and instructed his passenger not to identify himself to the police when he was asked to do so. Officer Gillespie described the applicant as irate. Once outside the vehicle, the applicant continued his confrontational behaviour, adopting a stance with officer Blakely that he referred to as “blading”, wherein he turned his shoulder to face the officer.

Blakely “took that” as a sign of aggression. [ 34 ] When asked in cross-examination why he didn’t provide the applicant access to a telephone while in the backseat of the cruiser so that he could call counsel, officer Blakely replied that the applicant had been behaving aggressively, and he had no intention of removing the cuffs and placing himself or his partner in danger. As noted above, when Officer Blakely assumed control of the Applicant, he was, for some period of time alone with him, while his partner interviewed the young persons who called in the assault complaint. [ 35 ] In R. v.

Quansah [2012] ONCA 123, (Ont. C.A.), the Court of Appeal for Ontario held that, in considering the immediacy requirement in s. 254(2) , courts must consider five things: First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament’s intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body.

The immediacy requirement, therefore, commences at the stage of reasonable suspicion. Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s.254(2) . Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay were breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. Fifth,

one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement thedetainee’s s. 10(b)rights before requiring the sample. If so, the forthwith criterion is not met. (Emphasis added). [36] The 27 minutes between the reading of the ASD demand and the arrival of the device would be an unacceptably longperiod of time in most circumstances, in view of the above authorities, to allow for the suspension of Charter rights.

Had the applicantbeen behaving in a calm and cooperative fashion, it is my view that he would have been entitled to the use of a telephone, even whileseated in the back of a police cruiser, to allow him to contact counsel, if indeed that was his wish. (see Egeli, supra, at para. 67). [37] There are circumstances in this case, however, which tend to mitigate this delay. First of all, this investigationcommenced as an assault investigation, not a drinking-driving case, so it is understandable that the officers did not attend with an ASD intheir possession.

Secondly, once they recognized the need for such a device, it was clear that it would take some time to arrive, as theywere outside the confines of their jurisdiction. Finally, and most importantly in my view, is the behaviour of the applicant. In my view,the officer was objectively justified in leaving the applicant’s hands cuffed behind his back, such that it would be difficult if notimpossible for him to use a telephone to call counsel.

While it is true that the audio video system in the cruiser could have been turnedoff so as to allow the applicant privacy, turning off the ICCS clearly does not alleviate the security concerns. Indeed, those same securityconcerns may well require that the ICCS be left on. [38] Counsel submits that while the Applicant was aggressive, he did not assault the officers. Further, he was unhand-cuffed toperform the ASD test, and provided no threat to the safety of the officers. Finally, no charges were laid as a result of the initialcomplaint.

For all these reasons, he submits, the Applicant ought to have been allowed to use a cell phone to call a lawyer, while unhand-cuffed in the back of the cruiser, with the ICCS turned off. [39] In my view, the officer is not required to wait until he has been assaulted before he can legitimately lay claim to securityconcerns. There is unchallenged evidence that the Applicant behaved in an aggressive and argumentative manner with both attendingpolice officers. Secondly, while the Applicant was unrestrained while performing the ASD test, he was in the presence of at least twoofficers at that time, possibly more.

PC Ibbott had brought the ASD, however it is not clear whether he was still present while the testwas administered. When the Applicant was first placed in the cruiser, he was for some period of time in the presence of only Blakely, asGillespie was busy with the complainants.

As for the failure to lay assault charges, it appears this was done at the request of thecomplainants. [40] In terms of the length of the delay itself as a factor in determining whether to facilitate access to counsel, as noted byDuncan, J. in Beattie, at para. 9: “How can the officer possibly know whether it is a situation where there will be a realistic opportunityto consult counsel?

He usually won’t know with any certainty when the machine will arrive, much less other circumstances unique to thedetainee that might bear on his ability to quickly contact and consult counsel….” [41] Notwithstanding those legitimate concerns, I would have, in the circumstances of this case (including the length of thedelay), adopted the reasons of Lipson, J. in Mehta and Horkins, J.in Biernaskie and held that he ought to have been provided anopportunity to contact counsel of choice, if indeed that is what he wished, but for the security concerns. [42] However, notwithstanding the lengthy delay between the ASD demand and the arrival of the device, and the failure toprovide meaningful access to counsel during that lengthy delay, the officers did not, in the particular circumstances of this case, fail tocomply with the forthwith requirement contained in section 254 (2) of the Criminal Code, and the suspension of the Applicant’s Charterright(

s) was justified. There was no resultant violation of his

section 8, 9 or 10 (

b) right. Reasonable grounds [43] Counsel for the applicant submits that officer Blakely lacked reasonable grounds to arrest the applicant, as the ASD testwas not carried out in the prescribed manner. Specifically, counsel submits, as per R. v. Cullum [2001] O.J. No. 2318 (OCJ) per Babe, J.,the officer who administers the test must make the demand.

In this case, Officer Gillespie administered the test and, in accordance withparagraph 10 of Justice Babe’s reasons in Cullum, it is he who must therefore make the demand. [44] Further, counsel submits, the conduct complained of here is worse than that in Cullum, as officer Blakely, who made thedemand, was not trained in the use of the ASD which was brought to the scene. [45] In R.v. Padavattan (ON SC), [2007] O.J. No. 2003, (Ont.

SCJ) Justice Ducharme concluded, atparagraph 18: “… that, both in this case and in Cullum, the trial judge misinterpreted these authorities….and further, at para. 20: “In myview, the clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed thereasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, the officer who makesthe demand may require the subject to accompany him for the purpose of the test.

However, where these requirements are satisfied,there is nothing in the language of s. 254(2) that expressly or by implication precludes the ASD test being administered by anotherofficer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test. [46] In my view there is no issue on this basis on the evidence before me. Officer Blakely, who made the ASD demand, wasnot familiar with the device when it was delivered to him, and asked officer Gillespie to administer the test.

He did so, with officerBlakely observing the entirety of the test, including observing his colleague repeatedly tell the applicant that he was not forming a properseal on the mouthpiece, thereby failing to provide a suitable sample. He ultimately observed as well the “Fail” result, which he (Blakely)opined provided him with grounds to effect an arrest of the applicant. This accords with Justice Ducharme’s analysis above. As soon as practicable [47] Counsel for the applicant submits that the police in this case failed to take the breath tests “as soon as practicable”, asrequired by the Criminal Code.

[48] Mr. Assie submits, first of all, that the demand for samples into an approved instrument were not made for 19 minutesafter the applicant failed the ASD test, as the officer forgot to do so. He concedes that there is no issue with respect to the statutorypresumption of identity in this case, as the Crown led evidence from a qualified toxicologist. However, he submits that since the samplewas not taken in compliance with the demands of the statute, a

section 8 violation is manifest. [49] Furthermore, upon arrival at the police division at 10:18 p.m., the applicant was not booked until 10:37 PM, a delay of 19minutes. The evidence is unclear, counsel submits, as to what happened during that 19 minutes. [50] A second period of delay, he submits, is the period between 10:37 PM and 11 PM, at which time duty counsel wascontacted by the police.

Counsel submits that no evidence was led as to how much time was used in the booking process, resulting in asecond unexplained gap of 23 minutes. [51] A third period of unexplained delay, says counsel, is the period between 11:17 PM, when the applicant speaks to counsel,and his entry into the breath room at 11:44 PM, a gap of 27 minutes. [52] In total, counsel submits, more than an hour of delay occurred, after the arrival at the police division, for which theCrown has adduced no evidence, contrary to their burden to demonstrate to the Court that the breath tests ultimately were conducted assoon as practicable. [53] Crown Counsel submits that while some of the time during the three gaps mentioned above is indeed unaccounted for, itis clear from the evidence that certain activities took place.

After the arrival at the police division, some time was consumed withsecuring the attendance of a French-speaking officer at the request of the applicant. Further time was spent in the booking process. Analysis [54] The burden is upon the Crown to demonstrate compliance with the statutory requirement that the samples be taken assoon as practicable. The Court of Appeal for Ontario, in R. v. Vanderbruggen, (2006) (ON CA), 206 C.C.C. (3d) 489held that this phrase does not require that the breath samples be taken as soon as possible. Rather, as noted by Stribopoulos J. in R. vMoiz, [2015] O.J.

No. 392, at para. 31, “… it simply requires that the tests be taken within a reasonably prompt time under thecircumstances. The Court has explained that the touchstone for determining whether the tests were taken as soon as practicable iswhether the police acted reasonably.” [55] I have considered all of the evidence adduced with respect to the three periods of delay complained of by the defence,together with the authorities cited above, and it is my view that the Crown has not satisfactorily explained this period of delay.

Whilethere is some explanation for activities which took place, there remains a total period in excess of one hour for which I have no clearexplanation. Indeed, from the arrival at 41 Division at 10:18 p.m. to the entry into the breath room at 11:44 p.m., a period of 86 minutes,there is in my view little evidence as to the reasons for such a lengthy delay. I do not know how I am to determine that the police actedreasonably when I have not been told what transpired to cause the delay. It seems to me that if a satisfactory explanation was available, itcould easily have been called.

Therefore I conclude that the Crown has failed to discharge its burden and I find that the breath sampleswere not taken as soon as practicable in all the circumstances of this case. [56] There is thus a failure to comply with the statutory requirement to take the samples as soon as practicable. Even thoughthe Crown is not relying, in this case, upon the statutory presumption of identity, it is still required to comply with the “as soon aspracticable” requirement of the Criminal Code.(R. v. Egeli, supra, at para. 51-63) The failure to do so constitutes a breach of

section 8 ofthe Charter. Section 24 (2) [57] Having found a violation of the right to be free from unreasonable search and seizure, I must now consider whether,having regard for section 24 (2) of the Charter, the evidence of Mr. Jeyabalasingam’s breath readings ought to be admitted intoevidence. [58] The Supreme Court of Canada, in R. v. Grant 2009 SCC 32 , [2009] 2 SCR 353 has established the test which Imust follow in considering this issue.

I must consider (1) the seriousness of the Charter-infringing state conduct (admission may sendthe message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter- protected interests of theaccused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the caseon its merits. [59] The first line of inquiry requires me to “…assess whether the admission of the evidence would bring the administration ofjustice 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.

Themore severe or deliberate the state conduct that led to the charter violation, the greater the need for the courts to dissociate themselvesfrom that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and insure state adherence tothe rule of law.” (Grant, supra at paragraph 72). [60] It is my view, having considered all the evidence in this case, that the violation of Mr. Jeyabalasingam’s

section 8 rightwas a serious one. For the entirety of the largely unexplained gap of in excess of an hour, the applicant was in custody. If any explanationwas available as to why it took nearly an hour and a half from the applicant’s arrival at the police station to the time he was admitted tothe breath room, it should have been provided. [61] The second line of inquiry mandated by Grant, supra, requires me to evaluate the extent to which the breach underminedthe interests protected by the right infringed.

The more intrusive the violation, the greater the risk that admission of the evidence wouldbring the administration of justice into disrepute. At paragraph 111 of Grant, supra, the court notes that the collection of breath samples

is “relatively non-intrusive”. [ 62 ] I note that the applicant himself caused delay in this case. I refer specifically to the six minutes it took him to complete the ASD test, as well as the 27 minutes it took him to successfully complete the two breath tests. Further, in the five minutes between the reading of the ASD demand and the reading of the right to counsel, the applicant engaged officer Blakely in a discussion which was at times argumentative and at others clearly designed to avoid the inevitable. Overall, I feel behooved to note that the officers in this case dealt with the applicant very fairly.

Where he expressed lack of understanding, they re-explained. Where he appeared to be deliberately playing games in providing samples, both into the ASD and the approved instrument, the officers exhibited patience. Where he exhibited aggressive behaviour, they exercised restraint. When he requested a French speaking officer, they supplied one.

In short, there was no blatant disregard for the rights or demands of the Applicant. [ 63 ] The third line of inquiry, society’s interest in an adjudication on the merits, “… asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion .” ( Grant , supra, at para 79 .) This line of inquiry generally favours admission of the evidence. [ 64 ] Having regard for the balancing function required with respect to the three lines of inquiry above, I am required not to just have regard for the impact upon the instant case, but also to the overall repute of the justice system, viewed in the long-term, and whether the long-term repute of the administration of justice will be adversely affected by the admission of the evidence.

This inquiry is an objective one, and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. ( Grant , supra , para. 68 .). [ 65 ] I am satisfied, having considered the above authorities and the evidence in this case, that on balance, the admission of the evidence of the breath samples would not bring the administration of justice into disrepute, and the evidence will therefore be admitted. Released: July 6, 2015 Signed: “Justice F. Crewe”