2018 QCCQ 4644, 2018 QCCQ 4644

R. c. Lindsay 2018 QCCQ 4644 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS TOWN OF VALLEYFIELD « Criminal and Penal Division » No: 760-01-080381-160 DATE: July 4, 2018 ______________________________________________________________________ BY THE HONOURABLE RICHARD MARLEAU, J.C.Q., PRESIDING ______________________________________________________________________ HER MAJESTY THE QUEEN Respondent-plaintiff v. PATTI LINDSAY 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 Charter motion alleging numerous breaches and violations to her Charter protected rights. This should lead to exclude the evidence that resulted. Other arguments are in regard of the procedure preceding the breath samples that should have been followed by the officers once intercepted. This should lead to Crown’s loss of presumption under s. 258 of the Code . [ 3 ] A voir-dire took place.

The two officers involved testified and so did the applicant. [ 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] . [ 5 ] Therefore, only the relevant evidence useful for the resolution of the issues will be discussed.

The parties have to assume that for every other evidence or argument not present in the judgment, they were nevertheless considered. [ 6 ] 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. NOTE TAKING OF THE OFFICERS INVOLVED [ 7 ] We can deal immediately with this argument who, for applicant, should be a factor in the analysis on a number of issues presented.

Namely, that important details that the officers are trained to note in writing do not appear in their personal notes, or in the written report, or differs from one another or differs from their testimony at the hearing.

For applicant, this should put in question the reliability of their evidence. [ 8 ] The Court is aware that in certain circumstances, the disparity between the notes taken, the written report and the testimony at the audience can lead to conclude to a lack of reliability of the evidence proposed [2] . [ 9 ] On this topic, the Court adopts the reasoning expressed at par. 34 in Letendre , more precisely what is underlinined by the undersigned : [34] On peut s'interroger sur leur méthode de travail, notamment la prise des notes.

Le policier qui a procédé à l'arrestation n'est pas celui qui, le 21 décembre 2012, prend les notes. Cela se comprend aisément. La méthode de travail choisie par les policiers pour la prise des notes ne regarde pas le Tribunal. Cela n'a aucune incidence sur les motifs au soutien de l'arrestation, à moins qu'il y ait cafouillage, distorsion importante ou invraisemblance entre la mémoire, les notes personnelles ou le rapport, au point d'affecter la fiabilité du témoignage . [ 10 ] The Court concludes that it is not the case here.

THE FACTS [ 11 ] Applicant is an Ontario resident. She meets a friend for supper in the West-Island of Montréal. On her way back, at the junction of Highway 20 and 30, she takes a wrong exit and ends up crossing over to Valleyfield via the toll bridge of Highway 30. [ 12 ] Once over, she tries to cross again the bridge to rejoin Highway 20 and eventually the 401 to get back home. [ 13 ] Unfamiliar to where she is, she circulates a little slower than normally expected and almost misses the ramp that leads back to the bridge.

She has to change direction at the last minute and her car passes on painted line preceding the junction where it is forbidden to circulate. [ 14 ] All of this is seen by the officers who were nearby in a patrol car. They decide to intercept the vehicle for verification purposes, including sobriety of the driver.

It is then 21 h 20. [ 15 ] By that time, the applicant is already engaged in the ramp leading to the bridge and all agree that neither that location or on the bridge would have been a safe place to stop [3] . [ 16 ] Applicant will therefore cross the bridge followed by the officers who will activate their revolving lights. She will park at the end of the bridge in the last lane on her right leading to a toll booth. The officers will park behind. It is then 21 h 24. [ 17 ] The usual interaction between the officer and motorist will follow.

At this point, the legality of the actions of the officers are not in dispute. An odor of alcohol, also not in dispute, will be detected by the leading officer. This will lead to reasonable suspicion of alcohol in the body of applicant and an order to submit to an Approved Screening Device (ASD) that applicant will fail. She will then be ordered to submit to breath samples. [ 18 ] At first glance, nothing complicated took place as expressed by Watt J.A. in Jackson [4] : [1] A police officer asked David Jackson to do something. Twice. Nothing complicated. Just blow into a device. So David Jackson did.

The first time he failed. Then he talked to a lawyer. The second time, he provided evidence against himself. [ 19 ] But this is not how applicant sees it.

THE ASD DEMAND [ 20 ] The argument is basically threefold : 1. that the order was not made " forthwith " or immediately when the officer had reasonable suspicion to suspect alcohol in applicant’s body; 2. that the delay between the order and the arrival on the scene of the ASD was such that it provided a reasonable opportunity for applicant to consult with a lawyer and that she was denied that right upon asking; 3. no evidence is on record as to the working order or reliability of the ASD at the time of the sample. [ 21 ] Officer Ranger was the one interacting with applicant from the start. [ 22 ] Once the reasonable suspicion obtained, she told the applicant so and that she would have to exit her car, and follow her in order to investigate the suspicion that she had alcohol in her body.

The device was not with them and they had to call dispatch in order to obtain one. The officers cannot tell exactly when the call was made, but at 21 h 35, the ASD had arrived. [ 23 ] In the meantime, applicant had been placed in the police cruiser, the reading of the card including the order to submit to the ASD was made and the usual instructions as to how to proceed with the ASD given in advance so that the sample could be taken immediately upon the arrival of the ASD. [ 24 ] Applicant asked then if she could talk to her ex-husband [5] who is an officer in the RCMP.

She was told that she could only contact a lawyer. She then said that her niece is a lawyer and asked to speak to her. [ 25 ] Her request was denied. ANALYSIS OF THE ASD DEMAND – FORTHWITH REQUIREMENT [ 26 ] The applicant was detained from the start. This initial stop, by virtue of the Highway Security Code, did not however trigger her right to counsel, or other Charter protection. [ 27 ] Her status changed when she was asked to leave her vehicle for the ASD sample. [ 28 ] The general law applicable is well presented by Justice LaBrie of our Court in R. c.

Lauzier , 2014 QCCQ 11937 at par. 88 to 98 and should be considered quoted at lenght here.

[ 29 ] However, some adjustments are now necessary, as we will see, in light of a recent Court of appeal decision rendered on June 8th 2018 while the present matter was under advisement : R. c.

Piazza , 2018 QCCA 948 . [ 30 ] We also have to factor that officers have no obligation to patrol with an ASD in their possession. [ 31 ] The relevant facts reveals that : − applicant, by her own testimony recognizes that she is asked to leave her vehicle for the purpose of investigating alcohol in her body; − the officers did not have the ASD with them; − we can conclude that even if applicant was aware of what would follow when she left her vehicle, the proper ASD demand with the reading of the card only took place once she was installed in the police cruiser. [ 32 ] The fact that we don’t know exactly at what moment the ASD was asked to be brought and if the officers asked or were told how long it would take it to arrive on the scene is not relevant. [ 33 ] As argued by applicant, a delay between 21 h 25 (when the officer starts interacting with applicant) and 21 h 34 (the ASD was ready by 21 h 35) is at play. [ 34 ] Even though certain decisions state that the mere presence of alcohol detected or an admission of consumption is sufficient for an immediate ASD order [6] , nothing prohibits that the officer pursue its investigation [7] or take time to obtain the usual documents enabling the identification to the driver.

Nevertheless, the delay starts to compute as of the moment that the officer has reasonable suspicion of alcohol in the body of the driving motorist [8] . But it does not mean that the order must be given at the exact same time [9] . [ 35 ] Both Houle and Petit [10] from the Québec Court of appeal state that detention must be evaluated in regard of all the circumstances. [ 36 ] Recently, Justice Pennou of the Superior Court discussed this issue in regard of the " forthwith " obligation [11] : [21] The Court of appeal considered that Petit’s detention only began when he was asked to provide breath samples.

Only four minutes separated the breath sample demand and the execution of the first test. But it is worth noting that the Court of appeal also concluded that even if his detention had started earlier, when the officer had requested an ASD to be brought on scene, Petit’s detention would have lasted less than ten minutes, and that such a delay would not result in a violation of his constitutional rights, « as the Supreme Court has ruled that a short and inevitable delay of 15 minutes is justifiable ». [16] [12] [22] The Court is bound by Petit . What exactly does Petit stands for?

What principles does this decision lay down? [23] In Cling v. R. , Justice Brunton reads Petit as follows: «In the province of Quebec, it is accepted as reasonable that all patrol cars will not be equipped with a testing device. As long as the device arrives in the 15 minute range after the accused has been ordered to supply a breath sample, it will be considered that the test was applied forthwith». [17] [13] [ 37 ] More specifically, Petit reads as follows at par. 19 : (…) La détention serait donc de moins de 10 minutes puisque l’appareil est arrivé à 2h54.

Un tel délai ne constituerait pas en l’instance une atteinte inacceptable aux droits de l’appelant considérant que la Cour suprême a statué qu’un délai court et inévitable de 15 minutes peut se justifier. [ 38 ] In Piazza , Justice Vauclair of the Appeal Court came to the conclusion that Petit was still authority in the province and had to be followed, even though authorities elsewhere might differ [14] . [ 39 ] Applied here, factoring the circumstances that some interaction took place initially, that the applicant at one point was clearly advised that alcohol would be investigated, her transfer to the police cruiser, the formal reading then of the order, the ASD already arrived and ready by 21 h 35 all clearly put the delay under the total 10 minutes window between the interception and the first sample.

More specifically, the delay is much shorter and would be between the moment that applicant is ordered to leave her car for alcohol investigation and the order property read once in the patrol car. [ 40 ] The conclusion is that this sequence respect the " forthwith " requirement of s. 254(2) of the Code .

ANALYSIS OF THE ASD DEMAND-REALISTIC OPPORTUNITY TO CONSULT [ 41 ] Which bring us of the second set of circumstances to be analysed, namely the realistic opportunity to consult counsel awaiting the arrival of the ASD. [ 42 ] Justice Pennou in White stated this issue as follows : [25] During ASD testing, a detainee’s right to counsel is suspended. Such a violation of s. 10b) rights is justified, provided that the

immediacy requirement of s. 254(2) is respected. [18] [15] In such a context, the Court shares the view expressed by Justice Blanchard in Piazza : it is the Crown’s burden to establish, by balance of probability, there exists a set of circumstances that justifies delaying the performance of the roadside screening tests, and abstaining from informing a detainee of his right to instruct counsel, and from implementing this right [19] [16] .

The Crown must also demonstrate that this delay is no more than is reasonably necessary to enable an officer to properly discharge his duty . [20 ] [17] [26] When examining compliance with the «forthwith» requirement, one of the circumstances to be considered is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(

b) rights before requiring breath samples. [21] [18] If such a realistic opportunity exists, the detaining officer has a constitutional duty to act proactively and insure an effective exercise o f the right to instruct counsel. [22] [19] [ 43 ] Applied here, the relevant factors coming from the evidence are as follows : − once the order given, the applicant wished to contact a family member; − the demand was denied since only lawyers could be reached; − she offered the information that her niece was a lawyer; − that right was denied for security and confidentiality reasons. [ 44 ] Applicant went a long way to try to elicit admission or inference that the location where the car applicant’s stopped was safe or at least not dangerous. [ 45 ] The Court disagree.

It was obvious that both the ramp and the bridge were more dangerous than the place where the car finally stopped. It was nevertheless in a lane leading to a toll booth. The Court accepts the officer’s testimony that it would have been unsafe for either the applicant or the officers to have been outside the patrol car at that location and that the patrol car was the best option in the circumstances [20] . [ 46 ] The option of leaving her alone in her car with a phone and them in the patrol car was not realistic either.

She was not under arrest, had not been searched and could have access to a double of her keys and drive away. She also had to be observed, which would have required the officers to be outside anyway, be it that the applicant was in her car or the patrol car when placing her call. [ 47 ] Bottom line : all three had to stay together pending the arrival of the ASD.

Furthermore any call to a lawyer would not have respected confidentiality, which is also a legitimate reason for the officers to deny the call. [ 48 ] It was simply not realistic in the circumstances than an opportunity to consult counsel was present. [ 49 ] Notwithstanding what precedes, we can also add that both officers (even though officer Ranger was more convincing on the issue that her partner) were aware that it could be feasible to do so and that they would allow the opportunity if the circumstances would allow it.

Put differently, the officers were not blind or ignorant of the applicant’s right to counsel or stubbornly denying her right in disregard of the law. [ 50 ] Finally, these conclusions having been reached, it becomes irrelevant that the applicant might have been in possession of a cellular phone or had the number of a lawyer that could be easily reached [21] . [ 51 ] In Piazza , Justice Vauclair speaking for his colleagues, commented on the realistic opportunity to consult if a delay is present while waiting for the ASD [22] .

That was not the core of the appeal per se. [ 52 ] Be it that it is an obiter or not, he nevertheless states that as long as the " fortwith " aspect of the order is respected, the right of counsel is suspended " jusqu’à la fin de l’enquête prevue au paragraphe 254(2) C. cr ". [23] [ 53 ] Therefore, be it that the analysis on that issue factor in Piazza or not, the end results are the same [24] . [ 54 ] For these reasons, all applicant’s arguments presented for the period between the interception and the ASD result fails regarding right to counsel.

ASD RELIABILITY [ 55 ] As for the reliability of the ASD, the Court disagree with applicant as to the level of verification that has to be put in evidence at trial. [ 56 ] Officer Ranger testified that the ASD was whitin the accepted parameters when prompted and ready to proceed with the sample. [ 57 ] We have no evidence that the ASD was malfunctioning or had warning signs of anomaly or defect that could raise an alarm as to the reliability of the ASD used. [ 58 ] On this issue, the Court adopts the reasoning expressed in R. c.

Tremblay , 2016 QCCS 770 : [28] L’ADA est un appareil de dépistage . [29] Il a pour fonction limitée de justifier, compte tenu de la présence d’autres symptômes d’ivresse, une analyse plus poussée au

moyen d’un alcootest dont les résultats sont présumés fiables et qui peuvent fonder une accusation de conduite avec une alcoolémie supérieure à la limite légale. [30] Puisque l’ADA est « approuvé », la poursuite n’a pas le fardeau de prouver que l’appareil est fiable et en bonne condition de fonctionnement, dans la mesure où le policier croît raisonnablement qu’il fonctionne de manière adéquate. [19] [31] Le policier peut donc, en principe, se fier aux résultats de l’ADA, à moins d’une preuve crédible de non-fiabilité apportée par la défense. [20] [32] Les ADA peuvent en effet présenter des enjeux de fiabilité. [33] Comme le souligne la Cour suprême dans Goodwin c.

Colombie-Britannique (Superintendent of Motor Vehicles) , il peut y avoir de sérieux doutes dans certains cas quant à l’exactitude des mesures d’alcoolémie affichées par un ADA et les résultats d’un ADA sont « potentiellement non fiables ». [21] [34] Puisque l’ADA est un appareil « approuvé », la preuve requise pour démontrer sa non-fiabilité est qualifiée. [22] Il ne peut s’agir d’une preuve abstraite, spéculative, conjecturale ou soulignant une possible inexactitude des résultats de l’appareil. [23] [35] Dans le cas où les résultats de l’ADA sont déterminants, la preuve scientifique établissant de manière prépondérante que l’ADA présente un degré important de non-fiabilité dans les circonstances particulières de son utilisation annihile le caractère raisonnable des motifs du policier. [24] [36] Une telle preuve peut également vicier les motifs subjectifs du policier s’il connaissait ou aurait dû connaître les limitations quant à la fiabilité d’un ADA dans certaines circonstances. [25] [37] La Cour suprême souligne en effet dans R. c.

Bernshaw qu’« un test [de dépistage d’alcool] non fiable ne peut constituer le fondement juridique nécessaire d’un ordre de se soumettre à un alcootest ». [26] (references omitted) [ 59 ] This reasoning is the same in D'Amour c. R. , 2016 QCCS 2665 where Justice Dionne reviewed the principles and the jurisprudence related with ASD reliability [25] . [ 60 ] The same reasoning applies in other provinces : − R. v. Black , 2011 ABCA 349 , par. 44; − R. v. Jacob , 2013 MBCA 29 , par.37 et ss; − R. v. Biccum , 2012 ABCA 80 ; − R. v. Beharriell , 2014 ONSC 1100 ; − R. v.

Jennings , 2018 ONCA 260 . [ 61 ] This being said, it flows that the ASD result was reliable and could form the basis of reasonable grounds to proceed with the arrest of applicant at 21 h 38. AFTER THE ARREST – RELEVANT FACTS [ 62 ] The Court accepts the testimony of the officers that the arrest, the order of breath samples and the rights of the accused were properly given and read. There is no issue there. [ 63 ] However, they had to wait on the scene since the car of the applicant had to be towed.

A call to dispatch was made both for a towing and for relief in order for them to leave rapidly. [ 64 ] They did not enquire as to the exact or estimated time it would take for both, but the Court accepts that nothing was indicative that either one would take abnormally long. As a matter of fact, they were able to leave at 21 h 57 for the police station.

RIGHT TO COUNSEL ONCE ARRESTED [ 65 ] The applicable law is explained by the Supreme Court in Taylor [26] . [ 66 ] The first conclusion is that the officers discharged themselves of two obligations formulated by the Supreme Court : inform applicant of her rights and abstain to elicit evidence between the arrest and the exercice of her right to counsel once at the police station.

Since the applicant had already mentioned before her arrest her desire to consult with her niece, who at that time, was known to be a lawyer, it remains to determine if the officers gave her a reasonable possibility to do so [27] while waiting for the tow and relief. [ 67 ] Needless to say, the same conditions concerning security and confidentiality preceding the arrival of the ASD are still present.

[68] Taylor mentioned twice that the possibility to consult implies also that this conversation be private or sufficiently private to thedetained person (par. 29 & 34). [69] The Court of Appeal of British-Columbia came to the same conclusion in Nguyen[28]. [70] Confidentiality was not feasible in the circumstances. There was no reasonable opportunity therefore. [71] The only other issue concerning right to counsel would be the implemental component of " counsel of choice " once at the policestation.

COUNSEL OF CHOICE AT THE POLICE STATION [72] When read again her rights and asked if she wanted to consult a lawyer at the station, the applicant answered yes but did notprovide any name for counsel of choice.

She explains that position by the fact that since she had been denied previously of contactingboth her cousin and her niece, she assumed that she could not contact them again. [73] First conclusion : by her own admission, she did not bring any name forward and she was not denied as such counsel of choice. [74] However, the argument is that since her niece had been mentioned before, the officers should have raised the issue and clarifywith her that she did not want anymore to contact her. [75] That being said, we also have to factor in the thought process of the officers on the issue. [76] Both testified to their impression that by bringing up (before the ASD) her wishes to contact her husband or ex-husband[29] whois a RCMP officer or her niece who is a lawyer, the applicant had tried to put forward that she was related do " law enforcement " simplyin the hope that it would influence the course of events in her favor.

It did not. One cannot conclude that their assumption wasunreasonable in the circumstances. And, as a matter of fact, her first choice at the time was not a lawyer anyway. The first answer whilewaiting for the ASD also was not a total refusal of counsel either according to applicant’s testimony. It also mirrors the officer’stestimony.

It was only " not at this time " and that it would have to wait until they were at the station. [77] Therefore, once at the police station, it was not abnormal, preoccupying or a live issue for them that by not mentioning her nieceagain, it was a clear warning sign that the applicant was not understanding her choices. [78] Her silence could not be interpreted otherwise : she did not have counsel of choice once at the station. She elected to speak to oneof the two options available as duty counsel. She was allowed to do so.

Her initial indecision as to whom she would choose between thetwo in not relevant to decide the issue. [79] In other words, there was no indicia that the officers were faced with special circumstances as described by the Ontario SuperiorCourt in R. v. MacCoubrey[30] : [37] […] Put differently, in the ordinary case, telling a detainee the necessary information required to understand and exercise the s.10(

b) right will generally satisfy the duty upon the police: Bartle, (SCC), [1994] 3 S.C.R. 173, at para. 39.

Althoughthere is no closed list of special circumstances, over time the jurisprudence has identified relevant situational examples – a very youngunsophisticated detainee, language difficulties, a known or obvious mental disability, an individual of apparent subnormal intelligence, aseriously physically injured arrestee, interference with the ability to hear, a verbal response evidencing uncertainty or misunderstandingof the right, etc. [80] The conclusion is that there is no Charter violation with this set of facts.

WERE THE BREATH SAMPLES TAKEN AS SOON ASPRACTICABLE [81] Section 258(1) ii) does indeed mandate that each sample be taken as soon as practicable. [82] The law is well settled on this issue. Two Ontario Court of Appeal judgments[31] are considered authorities on the subject. [83] They can be resumed as follows : − the

interpretation of " as soon as practicable " does not translate to immediately possible; − the officers have to act in a reasonable manner; − the Court has to examine the whole chain of events keeping in mind to two hours limit after the infraction for the firstsample; − there is no requirement that Crown provide a detailed explanation of what occurred during every minute that the accused isin custody. [84] Put otherwise, a delay can be present, as in here with the wait for the towing and relief. But the real issue is to determine if thisdelay is explained and reasonable in the circumstances.

Both officers testified that the police manpower that night was busy andstretched. They also explained why the first patrol car that came to bring the ASD could not stay on the scene. The explanations are also

reasonable concerning the wait for the tow truck and relief. Obviously, they could not depart and leave the applicant’s car on the scene unattended. [ 85 ] The fact that the officers did not investigate how long it would take for both the ASD and later the tow truck and relief to arrive could have been relevant if a long and unexplained delay was present. It wasn’t. [ 86 ] Matters also went promptly once at the police station. [ 87 ] Once the facts are established, one could always imagine other ways or possibilities that could maybe have reduced the delays.

However, the analysis has to target the actual chain of events, not the possible alternate scenarios. On this issue, the Court fully adopts the reasoning of the Manitoba Court of Appeal in Fenske : [47] This finding is in keeping with that of Taliano J in R v Samorodny (1993), 44 MVR (2d) 19 , being that it is an unnecessary and unrealistic burden on the Crown to require that it disprove the practicality of other options merely on the basis that those options might have produced results more quickly (see para 33 herein).

When considering whether a breathalyzer test has been administered within a reasonably prompt time, it is important to keep in mind the purpose of these provisions, being “to expedite trials and aid in proof of the suspect’s blood-alcohol level,” such that they “should not be interpreted so as to require an exact accounting of every moment in the chronology.” Further, “[t]hese provisions must be interpreted reasonably in a manner that is consistent with Parliament’s purpose in facilitating the use of this reliable evidence.” (See para 27 herein.) [ 88 ] There is no need to proceed further with an elaborate analysis on that subject here.

There is simply no air of reality to sustain this argument. THE USE OF THE BATHROOM ISSUE [ 89 ] The fact that the applicant used the toilet once at her request at the station is not in dispute. [ 90 ] Applicant testified that she was still handcuffed at the time and that the officers refused to remove the handcuff.

It was one officer who took down her pants and underwear and stayed in the bathroom while she urinated. [ 91 ] The Court can conclude immediately that such conduct would violate s. 9 of the Charter and could be considered as a violation of expectation to privacy, analogous to detainees who are videotaped while urinating in a cell. However, such conduct would not warrant a stay of proceeding [32] . [ 92 ] But the officers tell a different story. She had no handcuff at the time. She was escorted to the bathroom by officer Critea who stayed outside by the door slightly ajar for surveillance purpose.

Applicant threw her coat on the floor before proceeding to urinate. She was not looked upon by the officer when doing so. [ 93 ] Applicant’s testimony is not retained. Cross examined on the coat issue, she testified that it was the officer who took it from herself, not her throwing it on the floor. She has to rapidly change that scenario when confronted with the fact that it would be impossible to remove the coat if still handcuffed, be it by herself or by the officer. It becomes afterwards impossible to reconcile her versions on that subject. Her evidence is far from reliable.

As she will mention later on " a lot of things took place that night ". Clearly, the bathroom issue is not one on which she has a good recollection. [ 94 ] The officer testimony is retained. The way she acted is the normal and expected way to proceed in order to reconcile right of privacy and duty to surveil before the samples are taken. This does not generate any Charter violation. The only alternative would be to deny the accused’s request and for him or her to soil themselves. This creates more problem that it solves [33] .

Other complications arise if the officer looks directly at the accused when urinating [34] . [ 95 ] There is no violation on that issue. CONCLUSION [ 96 ] For all these reasons, the motion fails. FINAL CONSIDERATION [ 97 ] It is therefore unnecessary to address the exclusion of evidence under s. 24(2) of the Charter . However, an appeal is always possible. [ 98 ] In that regard, and in order to hopefully avoid an order of a new trial, the Court will add the following : 1. Should a violation leads to a loss for Crown of the presumptions of s. 258, the applicant should be acquitted of driving over the legal limit.

Crown conceded the issue since they will not tender an expert’s toxicology report concerning a projection of what the accused’s blood alcohol content would have been at the relevant time. 2. For all other violations, none would have been serious enough to warrant the exclusion of the breath samples. The evidence is reliable, at the lower end of the spectrum of intrusion. The seriousness of the offence is recognized and society has in interest that the matter be brought to trial [35] .

FOR ALL THE THESE REASONS, THE COURT : REJECT applicant’s motion. __________________________________ RICHARD MARLEAU, J.C.Q Me Kim Emond Counsel for criminal and penal prosecutions For the Respondant-plaintiff Me David Anber For the Applicant-accused Date of hearing : October 18, 2017 and April 6, 2018