R. v. Rogers, 2011 ONCJ 786

Citation: R. v. Rogers , 2011 ONCJ 786 ONTARIO COURT OF JUSTICE (EAST REGION) BETWEEN: HER MAJESTY THE QUEEN And ROBERT ROGERS Written Reasons for Decision Rendered by The Honourable Mr. Justice Rommel G. Masse Rendered on the 21 st day of November 2011 At Kingston Ontario Appearances: Ms. Kim Vanderlee for the Crown Assistant Crown Attorney Mr.

David Anber for Robert Rogers Barrister and Solicitor MASSE, J. [ 1 ] The accused, Robert Rogers, stands charged that: On or about the 10 th day of May, 2010 at the City of Kingston in the East Region, did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg of alcohol in 100 ml of blood, have the care and control of a motor vehicle and thereby committing an offence contrary to s. 253(1) (

b) of the Criminal Code of Canada . [ 2 ] The evidence in this case is quite straightforward. Cst. Stefan Walker is a police officer with the City of Kingston. He testified that on May 10 2010, he was on foot patrol in the downtown core. At 18:30 hrs, he was walking eastbound on the North side of Brock St. close to the Wellington Street intersection. He and the accused passed each other on the sidewalk at a distance of about 3 to 4 feet. Even at this distance, the officer could smell the odour of an alcoholic beverage coming from the accused as he passed him.

He noted that the accused was heading towards a vehicle so the officer stopped and observed the accused get into his vehicle, a pick-up truck, and sit in the driver’s seat. The officer then felt that he should talk to the accused to determine if he might be impaired. The officer testified that when he got to the truck, he saw the keys in the ignition. The accused admitted to the officer that he had consumed some alcohol. The officer asked for identification and then told the accused that he would be requiring him to provide breath samples for a roadside test to see if he was able to drive.

The officer does not know the exact time that he would have made this informal demand but it is clear that it would have been within a minute or so of initially seeing the accused at 18:30 hours. He then called for a roadside screening device to be brought to his location and another officer brought one to the scene. Officer Walker testified that at 18:49, he read the accused a demand to provide breath samples for a screening device. The officer demonstrated how to use the instrument and then he had the accused provide a sample; the instrument registered a fail.

At his request, the accused provided another sample at 18:57. The device registered an error message. He then provided a third sample at 18:59 which registered another fail. The officer testified that to him this meant that the accused had a blood alcohol concentration exceeding 80 mg/100 ml blood. The instrument was a Draëger screening device that is used to sample a person’s breath at the roadside. The officer then placed the accused under arrest for care or control over 80, read him his rights and the standard police caution. The accused stated that this was “crap” and he did not wish to call a lawyer.

The officer also made a demand of the accused to provide samples of his breath for analysis by an Intoxilyzer. The officer then arranged to have the accused transported to the station.

[ 3 ] They left the scene at 19:03 and arrived at the station at 19:12. A request was made to duty counsel at 19:18 at the request of the accused. The accused spoke to duty counsel in private from 19:45 to 19:53. The accused was then given into the custody of officer Nesanayagam, a qualified Intoxilyzer technician. Constable Clement Nesanayagam took samples of breath from the accused and analyzed them in an Intoxilyzer 5000 C.

The results of these analyses were 120 mg of alcohol in 100 ml of blood at 19:58 hrs. and also at 20:18 hrs. [ 4 ] In cross-examination, Officer Walker stated that when the accused walked by him on the sidewalk, he noticed that the accused had keys in his hand. However, that is not indicated anywhere in his notes. That is certainly a very significant fact and one would think that the officer should have recorded this observation in his duty book. He cannot really say what kind of keys they were or whether or not they were in fact car keys but it is clear that he is assuming that they were.

He cannot say these keys are the same keys that he saw a moment later in the ignition. He never did see Mr. Rogers put the keys into the ignition. [ 5 ] This officer does not know the last time the roadside device was calibrated, nor can he say who calibrated the device. He is relying on the information provided to him by Officer Carter, who brought him the device, that it was in fact calibrated. Officer Walker agrees that the device can provide several different error messages that may mean different things. He did not make a note of what the error message was the second time that Mr. Rogers provided a sample.

He remembers however, that it was because the sample did not go through properly. Even though the accused responded to having his rights and caution read to him, the officer did not record his responses in his notes. Mr. Rogers did not turn on the car, he did not turn on the radio, or otherwise use the car in any particular way. However, the officer remembers Mr. Rogers having his hands on the steering wheel; this very important factor was also not recorded in his duty book. The officer remembers Mr.

Rogers saying there were some items in his vehicle that he was concerned about and he wanted to make sure that they were in safekeeping. He does not remember what those times were nor does he remember if there were any books in the car. [ 6 ] The accused has brought an application to stay proceedings as well as an application to exclude evidence pursuant to s. 24(1) and (2) of the Charter respectively, alleging breaches of s. 7, 8, 9 and 10 of the Charter. However, he elected to call no evidence at all on the Charter application. [ 7 ] Mr. Rogers is 69 years of age and he lives in Kingston in the midtown area.

He does not have a criminal record nor has he had any involvement whatsoever in the past with the criminal justice system. He is a retired welder who used to work in the construction industry. He testified that in the afternoon of May 10 2010, he went to the Kingston Public Library and took out three books. He provided a receipt for library books confirming this fact. He spent about a half-hour at the library before checking out the books.

He then left the library, put his books on the passenger side of the bench seat of his truck, and then he drove to Brock Street, parking his truck in a handicapped parking spot near Wellington Street. He does have a handicap parking permit. He then got out of the truck and went to the Toucan, a local pub. This is only about a half block walk from where he parked his truck. He testified that he had a few beers there but he doesn't know how much, perhaps three pints. When he left the pub, it was his intention to go to his truck, gather up his books and his keys, secure the truck, and take a taxi cab home. Mr.

Rogers has a terrible habit of leaving his keys in the ignition of his truck when he is out and about town. This is indeed a very foolish habit but he is quite pragmatic about it; his truck is old and it is insured so he is not very concerned that it might be stolen. Thankfully, since this incident, Mr. Rogers has changed this habit and he has been locking it whenever he goes downtown. That day, when he parked the truck and was about to go to the pub, he left the keys in the ignition as he very often does. He disagrees with Officer Walker that he had his car keys in his hand while he was walking down the street.

He testified that at no point did he try to start the vehicle or in any other way adjust or make use of any of its fittings or equipment. He testified that it was strictly his intention to leave his truck where it was and take a cab home since he knew he likely had too much to drink. [ 8 ] In cross-examination, he testified that even at home he usually leaves the truck unlocked but he brings the keys into the house since his house keys are on the key ring and he needs them to get into the house.

He testified that it was quite often his routine on a Friday to go to the library, possibly the bank, then go to the pub and have a few beers. If he felt he had too much to drink, then he would not drive home but would instead take a cab and then retrieve his truck the next day. This would usually happen on a Friday. He practically always goes to the Toucan, his favourite pub. He would then make arrangements for a friend, Arthur Amey, his next door neighbour, to pick up the vehicle and deliver it to him. Arthur works at the Toucan.

Sometimes he goes down on his bicycle the following day in order to retrieve his truck. That was his routine and he has been observing this routine for many years now. That day, it was only after his third beer that he decided that he should take a cab home; however, he had not yet made arrangements for a cab. On that day, he was in the truck for about 3 seconds before he heard a tap on the window and the officer was there. While he was in the truck, he was looking for his books as well as anything else that he needed to take home.

He was going to get his keys and make sure that the windows of the truck were rolled up, and the truck locked before leaving. This last statement strains credibility in view of his terrible habit of leaving the keys in the ignition while he goes to the pub. [ 9 ] Shirley Anne Reid also testified. She is almost 73 years of age and she resides in the midtown area of Kingston. She also is retired having enjoyed a career within the Ministry of Transportation. She has no criminal record. It is her evidence that she and Mr. Rogers have been in a relationship for probably 30 years. However, they do not live together.

She is quite familiar with Mr. Rogers habits when it comes to transportation. It is her evidence that he has a bad habit of leaving his keys in his truck. She does not like this habit for obvious reasons however, Mr. Rogers is very stubborn and when she suggests that he take the keys with him, he tends to ignore her. She has in the past observed him leave his keys in the ignition of his truck when he goes out for a few drinks at the pub. [ 10 ] In cross-examination, she testified that she met Mr. Rogers In the Toucan. They go to the Toucan pretty well every Friday. It is her evidence that Mr.

Rogers bad habit of leaving his keys in the ignition of his truck happens nearly always. She does not think that she saw Mr. Rogers on May 10, 2010 and so she cannot say if he in fact left his keys in the ignition of his truck on that day. She also testified that usually when Mr. Rogers has been drinking and she has been with him, he leaves the vehicle where it is and he finds other transportation home and would get the vehicle himself the next day. She is not aware of any other way that he retrieves his vehicle other than she herself driving him downtown. [ 11 ] The accused has brought an application pursuant to

section 24 of the Canadian Charter of Rights and Freedoms . He is seeking a stay of proceedings alleging a breach of his right not to be deprived of life liberty and security of the person except in accordance with the principles of fundamental justice, which right is guaranteed by

section 7 of the Charter, on the grounds that the authorities failed to

disclose a video recording of the accused while in booking, and that by the time the defence became aware of the existence of this videorecording, the recording was no longer available. [12] The accused also alleges a violation of the following constitutional rights; a. the right to be secure against unreasonable search and seizure, which right is guaranteed by

section 8 of the charter; b. the right not to be arbitrarily detained or imprisoned, which right is guaranteed by

section 9 of the charter; c. the right on arrest or detention to be informed promptly of the reasons therefore which right is guaranteed by

section 10 A of thecharter; and, d. the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right, which right isguaranteed by

section 10 B of the charter. [13] With respect to these alleged Charter violations, the accused seeks the exclusion of all evidence obtained against himfollowing these breaches including the results of the analyses of his breath samples by the Intoxilyzer 5000 C. The missing video recording [14] It is alleged that the systematic destruction of the video recording of accused persons during the booking process violated theaccused’s right to be tried pursuant to the principles of fundamental justice.

However, it is clear from the record that is before the courtthat counsel for the accused did not make a specific request for a copy of the booking video. I note that Mr. Anber, counsel for theaccused, does not usually practice here in the city of Kingston. However, as an experienced trial lawyer, it should come as no surprise tohim that, in a modern city the size of Kingston, having a modern police force and a modern police station, it is not unusual for police totake a video recording of persons in detention during the booking process, while in the Intoxilyzer room, and while in the holding cells. [15] In R. v.

Bark Maslanka ,[2011] O.J. No. 2716, a decision of Justice Hill of the SCJ, the court had an opportunity to discussthe obligation of the crown to preserve relevant evidence. Justice Hill distilled all of the relevant jurisprudence on this issue and hepointed out at paragraph 55 of his reasons for decision that where the thing that was destroyed or lost plays a central role in the crown'scase against the accused, the duty to preserve attaches. As the relevancy of the evidence increases, so does the degree of care for itspreservation that is expected of the police.

Justice Hill stated at paragraph 58 as follows ... when the prosecution has lost evidence that should have been disclosed [preserved], the crown has a duty to explain what happened toit and where the crown's explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptablenegligence, the duty to disclose has not been breached.

Put differently, the accused’s disclosure rights will be breached where theevidence has been destroyed on account of unacceptable negligence or the crown cannot satisfactorily explain why the evidence was notpreserved. [16] The video recordings cannot be kept for an indefinite period of time. The material that has been filed indicates that the digitalstorage space for these videos allows for approximately 7 months of storage; this is not an insignificant period of time.

The Crownconcedes that the video is likely relevant although the relevance of the video to a charge of over 80 is not anywhere near as great as itwould be to a charge of impaired operation. In any event, the evidence that has been lost can be supplemented by that of the bookingsergeant, that of Cst. Walker as well as that of Officer Nesenayagam, all of whom could have been produced for cross-examination if sorequired.

Given that the video is indeed relevant and ought to have been preserved and disclosed to the defence, I must determine if theCrown has provided a satisfactory explanation for why the evidence was not disclosed and whether the destruction of the evidence wason account of unacceptable negligence. In the case at bar, there is an explanation offered by the Crown; in the absence of a request fordisclosure from the defence, the videos are no longer available after 7 months.

The destruction of the video occurs due to the fact that itis not possible, given the current technology available to Kingston police, to preserve the videos any longer than 7 months after theincident that has been recorded. In the case at bar, I cannot conclude that the destruction of the video evidence was the result of anyunacceptable negligence; the video evidence was preserved for 7 months, a period of time long enough to allow for the production anddisclosure of it in the event that it was determined that it might be likely relevant. I do have an acceptable explanation as to why theevidence was destroyed.

Considering all of the circumstances in the instant case, I am not satisfied on a balance of probabilities that theaccused ‘s s. 7 Charter rights have been violated. Approved Screening Device [17] It is argued that the Crown has not proven that the device used by Officer Walker was in fact an Approved Screening Device(ASD). It is pointed out that nowhere in his testimony did this officer specifically say that he used an ASD; he referred only to ascreening device which he described as a Draëger screening device. [18] The case of R. v. Gundy 2008 ONCA 284 , [2008] O.J.

No. 1410 (O.C.A.), provides a common sense answer to thisargument. In that case, an officer was stationed at a RIDE stop. She stopped a truck and the driver admitted that she had consumed somealcohol. Accordingly, the officer asked the driver to provide samples of her breath for analysis by an ASD. She described this device asan Alcotest. It was argued that the arresting officer did not have grounds to make an Intoxilyzer demand because it had not been proventhat the roadside device that was used was an approved screening device. Justice Rosenberg of the Ontario Court of Appeal made short

shrift of this argument in paragraph 44 through to paragraph 47 of his reasons for decision; 44. In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device.

As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand. 45. The officer is not required to refer to the device by its particular brand and number such as "Alcotest 7410 GLC". Further, references to a part only of the identification such as "Alcotest" or "Alcotest GLC" do not rebut the reasonable inference from the officer's reference to the device as approved that it is indeed an approved screening device.

The addition of the manufacturers name, for example "Drager Alcotest 7410 GLC", is likewise not fatal ... Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely [emphasis added] 46.

Where, as here, the officer states that she made a demand that the motorist provide a sample for analysis by the approved screening device, surely the trier of fact can reasonably infer that the officer used an approved device. That was the holding of the trial judge in this case and I agree with that decision. As Langdon J. said in R. v. James, [1995] O.J. No. 190 (Gen. Div.) At para. 5 , "what is the likelihood that the OPP would supply its constables with an unapproved device with which to enforce the RIDE program?" 47.

In my view, cases holding that the officer did not have reasonable and probable grounds because, although the officer referred to the device as an approved screening device, he or she used a shorthand reference to the device or transposed some of the numbers or letters are wrongly decided. In the absence of some credible evidence to the contrary, it is not reasonable to infer that an officer who says that he or she used an approved screening device actually used an unapproved device. [ 19 ] In the case at bar, the officer did not say that he used an ASD.

However, he did describe it as a screening device, as a Draëger, a roadside device that is used to sample a person’s breath at the roadside. He was asked repeatedly by Crown counsel about his use of, testing and procedures that he engaged in while testing the accused with the “approved screening device”. The officer certainly did not disagree with the suggestion that he was using an ASD. it is clear from all of the circumstances of the case that he was in fact referring to and in fact using an ASD.

There is no credible evidence that he actually used an unapproved device and all of the circumstances permits the Court to conclude that he was in fact using an ASD. This argument therefore fails. [ 20 ] It is also argued that the officer could not rely on the results of the ASD to form his grounds to believe that the accused had a blood alcohol concentration of over 80 since the officer did not know when the ASD was calibrated nor did he even have anything more than a speculative basis to believe that it was even calibrated. In R. v. MacDonnell [2004] O.J.

No 927 (ONCA) justice Hill indicates that a peace officer, when dealing with a roadside screening device, need only have a reasonable belief that the device is properly calibrated and in working order before relying on a result of “fail”. In other words, there need not be proof that the operator of the device knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact in proper working order, so long as he reasonably believed that it was.

In the case at bar, I am of the view that the officer was entitled to rely on the word of his colleague, Officer Carter, who brought him the approved screening device to the effect that it was in fact calibrated. He may not know the exact date it was calibrated or by whom the instrument was calibrated but what is important is that he reasonably believed that it was calibrated and in proper working order. This argument also fails. [ 21 ] It is further argued that the officer did not know anything about the possible error codes displayed by the ASD and what they meant.

It is argued that the officer’s lack of knowledge of the error codes means that he could not have reasonably believed that the ASD was working properly and therefore, the officer could not rely on the “fail” indication as constituting reasonable and probable grounds upon which to believe that the accused had a blood alcohol concentration exceeding 80. [ 22 ] Mr. Amber is relying on two decisions of the Ontario Court of Justice in support of this contention. In R. V. Jeremias , [2010] O.J. No. 6052 , a decision of my colleague Justice Kowalyshyn, the officer administered a roadside screening device to the accused.

The device registered four separate error messages on the first four attempts. On the fifth try, the device registered a fail. The officer had a very limited idea as to how the device worked or how to use it. He did not know why the error messages appeared and could not remember which numbers followed the error messages. Accordingly, it could not be said that he knew how to use the device properly. As a consequence, the officer could not reasonably rely on the fail result to form grounds under section 254 (3).

This resulted in a breach of the accused charter rights and the evidence of the analyses of the subsequently obtained breath samples were excluded pursuant to section 24(2) of the charter. in the case of R. v. Michael Hemmingsen , (Feb. 17, 2011), a decision of my colleague Justice Maisonneuve, it was held that

section 8 of the charter had been violated because the arresting officer did not understand the meaning of error codes that registered on the ASD when the accused provided his initial breath samples. The officer could therefore not rely on the subsequent fail result to form reasonable grounds under section 254(3) of the code. Evidence of subsequently taken breathalyser results were therefore excluded under section 24 (2) of the charter. [ 23 ] In the case at bar, the accused gave three samples of his breath for analysis and the second one resulted in an error code.

However, it is also clear that Officer Walker prepared the instrument for use and sampled his own breath to make sure the device was calibrated and operating properly. He reset the device and administered a test to the accused and he coached the accused as to how to provide a suitable sample and the device registered a fail on the first try. It was at the request of the accused that the officer administered a second test and the device registered an error code. The officer was asked about the meaning of this and he responded that the error message or code meant that the sample did not go through properly.

That is obviously why the third sample was taken. The officer was satisfied that the device was operating properly and that the accused had provided suitable samples. I conclude that the case at bar is distinguishable from the situations that were presented to the Court in Jeremias and Hemmingsen . In Jeremias , there was every indication to believe that the instrument was malfunctioning; four error messages in a row with no explanation as to what they meant

would certainly raise serious concerns as to the proper functioning of the instrument. In Hemmingsen, the officer did not understandwhat the error code meant so he could not reasonably believe that the device was functioning properly. In the case at bar, Officer Walkertestified that he believed that the error code meant that the breath sample was not going through the instrument properly; in other words,it was not a suitable sample. The officer was satisfied that the device was operating properly when the “fail” results were obtained.Consequently, this argument also fails.

The ASD Demand and the Requirement of “forthwith” [24] The accused argues that the ASD demand was not a lawful demand since it was not made forthwith upon the officer forminghis grounds to make the demand. It is argued that the detention of the accused was continued for 19 minutes before the accused couldcomply with the demand. it is further argued that by not making the demand forthwith, the officer lacked the authority to continue todetain the accused and therefore the continued detention was arbitrary and a violation of

section 9 of his charter rights. In addition, it isargued that the seizure of the breath samples was done pursuant to an unlawful demand and this in violation of s. 8 of the Charter.

I findthat this argument has merit. [25] Section 254 (2) (b), paraphrased, provides: if a peace officer has reasonable grounds to suspect that a person has alcohol in their body and that the person has, within the precedingthree hours, operated or had the care or control of a motor vehicle, the peace officer may, by demand, require the person to provideforthwith a sample of breath that, in a peace officer's opinion, will enable a proper analysis to be made by means of an approvedscreening device and, if necessary, to accompany the peace officer for that purpose. [26] It has been held that this

section contemplates an immediate testing, and therefore it cannot accommodate the exercise of theconstitutional right to counsel. The breath sample must be taken forthwith after the demand is made, and therefore there is noopportunity to contact a lawyer. It is implicit that the demand must be made by the police officer as soon as he or she forms thereasonable suspicion that the driver has alcohol in his or her body. This was made amply clear by our Court of Appeal in the case of R. v.Pierman; R. v. Dewald, (1994), (ON CA), 92 C.C.C. (3d) 160 (Ont.C.A.) at para. 5 where the Court observed: This

section contemplates an immediate testing, and therefore it cannot accommodate the exercise of the constitutional right to counsel.As the Supreme Court of Canada held in R. v. Thomsen, and in R. v. Grant, and as this court held in R. v. Côté, (ONCA), [1992] O.J. No. 7, the breath sample must be taken "forthwith" after the demand is made, and therefore there is no opportunity tocontact a lawyer. This infringement, however, was held to be a reasonable legislative limit on the right to counsel, and the

section wasdeclared valid under s. 1 of the Canadian Charter of Rights and Freedoms. In light of that jurisprudence, it seems clear to me thatalthough this

section merely requires that the sample be provided "forthwith" after the demand is made, and does not require the demanditself to be made "forthwith" after the person is stopped, it is implicit that the demand must be made by the police officer as soon ashe or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is the only

interpretation which isconsistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(

b) of the Charter. If the police haddiscretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer. [Citationsomitted; emphasis added] [27] In the case of R. v. Au Yeung, [2010] No. 1579, justice DuCharme indicated that the constitutional validity of section 254(2)is the requirement that the police officer make the ASD demand promptly as soon as he or she forms the reasonable suspicion that thedriver has alcohol in his or her body.

The only constitutionally permissible reason for delaying the making of the demand is the need totake such steps as are necessary for ensuring that an accurate ASD result is obtained. [28] In the case at bar, Officer Walker had sufficient grounds to make an ASD demand almost immediately after firstencountering the accused. It is clear that the officers smelled the odour of an alcoholic beverage coming from the accused when hepassed him on the street. An instant later, he found the accused in the driver’s seat of his pickup truck. It was at this point in time that theofficer had grounds to make an ASD demand.

After identifying the accused, the officer made an informal demand of the accused toprovide samples of his breath. However, the device was not readily available and was not brought to the scene for approximately 19minutes after the officer had reasonable grounds to make the demand. [29] The jurisprudence is replete with examples of time periods similar to that in the case at bar, which have rendered the ASDdemand unlawful and thus a violation of constitutionally protected rights. One example comes from our own Court of Appeal.

In R. v.George (2004), (ON CA), 187 C.C.C. (3d) 289 (Ont.C.A.), police was aware that there would likely be a delay of 15to 20 minutes before the ASD arrived. The Court of Appeal held that in the face of that information, it was incumbent upon the officer totake reasonable steps to facilitate the respondent detainee’s right to consult counsel. It was held that this was a violation of

section 8, 9and 10(

b) of the Charter. [30] I am of the view therefore, that the delay between the forming of the reasonable suspicion in the mind of the officer and theactual time that the officer was in a position to administer the test, amounting to some 19 minutes or so, does constitute a breach of theaccused’s right to be free from unreasonable search and seizure as well as a breach of the accused’s right to be free from arbitrarydetention as guaranteed by sections 8 and 9 of the charter respectively. He should have been advised of his right to retain and instructcounsel as soon as it became obvious that the ASD demand could not be complied with “forthwith” upon grounds existing to make thedemand.

The s. 24(2) analysis re admissibility of Intoxilyser results [31] The Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32, set out a three-prongedtest that the courts must apply in order to decide if evidence will be excluded pursuant to section 24(2) of the charter.

These factors are: a. the seriousness of the Charter infringing state conduct (admission of evidence may send the message that the justice systemcondones serious state misconduct); b. the impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rightscount for little), and c. society's interest in the adjudication of the case on its merits. In all cases, it is the long-term repute of the administration of justice that must be assessed. [32] Firstly, with respect to the seriousness of the breach, the accused argues that the breaches here are serious.

It is also arguedthat Officer Walker cannot rely on good faith since these Charter rights and the law regarding them are well known. However, it mustbe pointed out that the time it took for the ASD to be delivered was beyond Walker’s control; had it been delivered quickly, which I amsure Officer Walker was hoping for, then there would have been no violation of rights . Once Officer Walker had reason to believe thatMr. Rogers had alcohol in his system and that he might drive off, Officer Walker simply could not take the risk of letting Mr. Rogersdrive away without satisfying himself that it was safe to do so.

Officer Walker would have been remiss in his duty to the public to havedone otherwise. Even though I have found a violation of Mr. Rogers’ constitutional rights, I am of the view that Officer Walker was notabusive or egregious in his continued detention of Mr. Rogers. [33] Secondly with respect to the impact the breaches had a Mr. Rogers’ Charter protected interests, the accused acknowledgesthat the impact was not of the highest order but nonetheless it was present and profound.

It is submitted that the impact of the breach onhis rights cannot be considered to be trifling or trivial and should weigh in favour of exclusion. However, Mr. Rogers’ was kept waitingfor at most 19 minutes and all that was required of him was some samples of his breath. Once it became obvious that the samples couldnot be taken forthwith after Officer Walker formed his reasonable suspicion sufficient to make an ASD demand, Mr. Roger’ should havebeen advised of his rights to counsel pursuant to s. 10(b). It should be noted that once Mr. Rogers was in fact advised of his

section 10(b)rights to retain and instruct counsel without delay, he clearly indicated he was not interested in talking to a lawyer right away, this at atime when he was in detention and facing much more prejudice than he was while being detained waiting for the ASD to arrive. He onlychose to exercise his rights to counsel after he had been once again advised of his s. 10(

b) rights at the station. Consequently, it isdoubtful that even had Mr. Rogers been advised of his rights to retain and instruct counsel without delay at the scene prior to the arrivalof the ASD, he would have likely refused to do so. The violation of his s. 8 and 9 rights had very little impact upon Mr. Rogers bodilyintegrity, his privacy or his dignity.

It must be remembered that the breaches resulted in the taking of breath samples and that is all. [34] Thirdly, regarding society’s interest in adjudicating this case on the merits given the problem posed by drinking and drivingrelated offences, counsel for the accused argues that there is no automatic inclusionary rule under the authority of Grant; in this respecthe is quite correct. However, there is also no automatic exclusionary rule. [35] Mr. Anber urges me to take heed of the dicta of Justice DuCharme in R. v.

Au Yeung, cited earlier. justice DuCharme statedat paragraph 67 through to 69: Given the comments about breath sample evidence in para. 111 of Grant, one might conclude that the breath sample evidence in thiscase should be admitted. But this conclusion would be incorrect, because it would ignore the first two lines of inquiry described in Grantand give the third factor an unjustified analytical pre-eminence. Moreover, these comments in Grant were directed solely at the s. 8issues involved in the taking of breath samples and did not consider the broader issues mentioned above.

While the courts have longrecognized the need to effectively address the serious problem posed by drinking and driving, it is important to remember that personsaccused of drinking and driving offences are entitled to full protection of the Charter. The protections of the Charter apply to all personsaccused of criminal offences, no matter how minor or serious.

In considering this question Grant requires that I bear in mind the long-term and prospective effect upon the fair administration ofjustice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of theconstitutionally protected rights of the accused. In doing so, I note the comments of Fish J. For the majority at paras. 110 to 113 of R. v.Morelli, 2010 SCC 8 , [2010] S.C.J. No. 8 (S.C.C.): Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigant.

But justice receives a blackeye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices. The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admitthe evidence in this case in similar cases in the future would undermine that confidence in the long-term. I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring the administration of justiceinto disrepute. ...

In my view the public should expect that when they are stopped by the police their Charter rights will be respected. Certainly, thepublic must have confidence in the competence of the police and in the fact that they will not detain or arrest drivers without the requisitegrounds. Even more importantly, the public must have confidence that these officers when charged with exercising important powersunder s. 254 of the Criminal Code have the necessary skills and training to do so in a manner that complies with both the Criminal Codeand the Charter.

Thus, while the facts in Morelli are more serious than those in this case, the foregoing comments of Fish J. arenonetheless applicable to this case. In conclusion, I am persuaded for all of these reasons that admitting the breath sample evidence in

this case would bring the ministration of justice into disrepute. [ 36 ] These are wise words pronounced by a well respected Ontario jurist. However, to apply Justice DuCharme’s dicta would result in automatic exclusion of evidence in practically every drinking and driving case where the Charter breaches were minor and the impact of the breaches on the accused were trifling. That was not the intention of the SCC as expressed in Grant . Each case must be looked at on its own merits; all of the circumstances must be considered and the application of the three pronged test set out in Grant must be a balanced one.

Examples abound of cases where it was held that the administration of justice would not be held in disrepute by the admission of the breath samples in factual situations similar to the case at bar. In R. v. Fildan , [2009] O.J. No. 3604 , Mr. justice Casey Hill, a colleague of Justice DuCharme, held that an accused person’s

section 8 and

section 10(

b) Charter rights were violated by the officer’s delay in making a breath sample demand. However, the admission of the Intoxilyzer evidence would not bring administration of justice into disrepute as the officer's conduct was not abusive or egregious, the Charter breaches were not flagrant or abusive and the evidence was reliable and essential to the prosecution's case. In that case the overall delay in administering the ASD test was in the neighborhood of 15 min. after the officer formed a reasonable suspicion that the accused had alcohol in her system.

An ASD was readily available at the scene and could have been administered at any time after forming his reasonable suspicions. At paragraph 39 of his reasons for decision, justice Casey clearly indicated that the constitutional expectation is that the ASD demand will, in the ordinary course, be made immediately of the detained driver once the investigating officer has determined that he or she has the requisite reasonable suspicion and also has determined that it is appropriate to administer an ASD.

Justice Hill does set out certain circumstances where some delay can be tolerated but none of those circumstances obtain in the case at bar. A similar result was arrived at in R. v. Bryce , [2009] O.J. No. 3640 , another decision of Mr. Justice Casey Hill. In that case, a vehicle was stopped as the result of a bylaw parking infraction. The detention was therefore totally arbitrary. The officer detected an odour of alcohol on the accused's breath.

The accused registered a fail on the roadside screening device, was arrested, and subsequently provided samples of his breath which, when analyzed, yielded results exceeded the legal limit. Justice Hill, in upholding the conviction at trial, none the less determined that the accused's s.8 and 9 Charter rights had been violated.

Despite the breaches, the admission of the breath sample results would not bring the administration of justice into disrepute as the officer was not acting in bad faith, the effect of violation was not significantly intrusive and the breath sample results were reliable and essential to the prosecution's case. [ 37 ] In the case of R. v. Yamka , [2011] O.J. No 283 , a decision of Mr. Justice Durno, also of the SCJ sitting as a

summary conviction appeal court, the accused appealed his conviction for driving a motor vehicle with a blood alcohol concentration over 80. Police attended an accident scene involving the accused and formed the suspicion that she had consumed alcohol. She was placed in a cruiser for 10 min. prior to the arrival of the roadside screening device. The demand to provide a sample was only made once the device had arrived on the scene. The delay between the formation of the roadside suspicion that the accused had consumed alcohol and the roadside demand meant that the sample was not taken forthwith thereby constituting a breach of the accused's

section 8 Charter right. The accused was also arbitrarily detained and she was not told the reason for her detention. Justice Durno held that the accused's constitutional rights guaranteed by sections 8, 9 , and 10(

a) of the Charter had been violated. However, evidence of the breath sample results were still admissible since the breaches of the accused's constitutional rights were not serious and had a minimal impact on the accused. [ 38 ] In the case at bar and in the words of justice Hill in Fildan at paragraph 47, there is no case to be made that the relatively inexperienced Constable acted with deliberate intent to give short shrift to Mr. Rogers constitutional rights.

While no good or bad faith findings are warranted on the record here, Constable Walker's conduct cannot fairly be described as egregious or the deliberate abuse of power. He is a young inexperienced officer who has much to learn but he unquestionably had reasonable suspicion to make an approved screening device demand. The problem was that he was not in possession of an ASD and had to have one delivered to him. This took time resulting in the breach of Mr. Rogers constitutional rights.

The Charter breaches, while not trivial, were far from flagrant or abusive. [ 39 ] In addition, providing breath samples really is minimally intrusive. As indicated by justice Hill in paragraph 51 of his decision in Fildan , "despite the self incriminatory origin of the evidence, there is nothing demeaning or objectionable in participating in ASD testing". The Supreme Court of Canada in R. v. Grant , {2009} S.C.J. No. 32, at paragraph 79 recognizes that society generally expects that criminal allegations will be adjudicated on its merits.

The court is obliged to determine what would better serve the truth seeking functions of the criminal trial process – admission or exclusion of the unconstitutionally obtained evidence? At paragraphs 110 and 111 of Grant the Supreme Court of Canada observed as follows: The third line of inquiry – the effect of admitting the evidence on the public interest in having a case adjudicated on the merits – will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively nonintrusive. [ 40 ] In the case at bar, the Charter breaches were not deliberate and did not fall into the more serious end of the spectrum. It is evident that there was no markedly intrusive impact upon Mr. Rogers.

The adjudication of the case on its merits would fail without the evidence of the Intoxilyzer readings. There was little impact on Mr. Rogers’ privacy, integrity and dignity. The evidence is reliable and essential to the fair determination of the merits of the case. For all of these reasons, and having regard to all those circumstances, including the long-term reputation of the administration of justice, I am not satisfied that Mr. Rogers has demonstrated on a balance of probabilities that the admission of the Intoxilyzer readings would bring the administration of justice into disrepute.

Consequently, the Charter application is dismissed.

The Presumption of Care or Control [41] An essential part of the Crown’s case is proving that the accused was in care or control of his pick-up truck. To this end, theCrown is relying on the presumption of care or control set out in s. 258 which provides: 258.

(1) In any proceedings under subsection 255(1) in respect of an offence committed under

section 253 or subsection 254(5) or in anyproceedings under any of subsections 255(2) to (3.2), (

a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle … theaccused shall be deemed to have had the care or control of the vehicle … unless the accused establishes that the accused did not occupythat seat or position for the purpose of setting the vehicle … in motion … [42] In the case at bar, it is undisputed that Mr. Rogers occupied the seat ordinarily occupied by a person who operates a motorvehicle. Therefore, unless he is able to rebut the presumption of care or control set out in s. 258(1)(a), he must be found guilty.

It is up tohim to establish that he did not occupy the driver’s seat for the purpose of setting the vehicle in motion. Care or control is presumedunless the accused establishes on a balance of probabilities the purpose of occupying the driver’s seat was not to set the vehicle inmotion. This does not violate the Charter: see R. v. Whyte (1988), (SCC), 42 C.C.C. (3d) 97 (S.C.C.) [43] The evidence given by the accused is that he returned to his truck after having some drinks at the pub in order to retrieve hislibrary books, rollup the windows, secure the vehicle and then take a cab home.

He was going to do this because he believed that after 3pints of beer, he should not be operating a motor vehicle. It is his evidence that he often does this; that is, leave his truck downtown afterhe has been drinking and make other arrangements to retrieve it the next day. This is very often his routine on a Friday. He iscorroborated somewhat by his companion of 30 years, Shirley Anne Reid. Although her evidence does not dove-tail exactly with his, itis still to the effect that, routinely, on a Friday, the accused will go have a few pints of beer and will leave his truck downtown andretrieve it the next day.

However, there is a problem with this evidence. It is that the keys to his truck were in the ignition when OfficerWalker accosted the accused at the truck. Officer Walker also testified that he saw some keys in the accused’s hand when he passed himon the street. The accused denies that he had any keys in his hand while walking to his truck but he freely admits that the keys were infact in the ignition when the Officer came up to the truck. This is strong evidence of actual care and control and strengthens thepresumption of care or control in s. 258(1)(a).

The accused explains that he has a very bad and long-standing habit of leaving his keys inthe ignition of his truck when he is out and about downtown, unconcerned that someone might steal his truck, which is admittedly an oldone. At first blush, this assertion would strain credulity. However, his companion, Shirley Anne Reid again supports his evidence in thisregard, stating that he always does this in spite of her many entreaties for him to stop this foolish habit; something he has done as a resultof this incident.

Frankly, I found the accused and his companion to be quite believable. [44] However, counsel agree that my finding of fact as to whether or not Mr.

Rogers had his keys in his hands when he passedOfficer Walker on the sidewalk is crucial, since if he did, then I cannot conclude that the accused left his keys in the ignition as a matterof a bad habit but rather put the keys in the ignition with the likely intent of assuming the care or control of the vehicle and very likelywith the intent of starting his vehicle and putting it in motion. [45] I found Officer Walker to be honest and straightforward in his evidence; however, he is lacking in experience and his note-taking does leave a lot to be desired.

In deciding this crucial issue, I consider the following points: a. This young officer made notes of every important piece of evidence that he observed, such as the fact that the keys to the truckwere in the ignition, but he failed to record in his notes the fact that he saw the accused walking past him with keys in his hand on hisway to his truck; b. This young officer testified that the accused had his hands on the steering wheel of his truck, but again, this important point was notnoted in his duty book; c.

This young officer agreed that there were items in the truck that the accused wanted to be kept in safekeeping but did not rememberwhat these items were; it is evident, having heard all of the evidence that these items were the library books that the accused hadborrowed; d.

I found Shirley Anne Reid to be a very believable witness and she supported the accused’s evidence that he often left his truckdowntown and would make other arrangements to go home if he had drank too much and also she corroborates the accused’s evidencethat he had the very nasty and foolish habit of leaving his keys in the ignition of his truck; e. I also found the accused to be credible; he strikes me as being a rather eccentric elderly gentleman who stubbornly hangs on to oldhabits even if they are foolish and even when repeatedly told of the foolishness of such habits.

His story that for years he has had this badhabit of leaving his keys in his truck might very well be true. [46] In conclusion, I cannot find that the accused had his vehicle keys in his hands while he was walking down the street. I holdthat he has demonstrated on a balance of probabilities that when he entered his vehicle, he did not intend to put it in motion and thereforehe has rebutted the presumption of care or control set out in s. 258(1)(

a) of the Code. Having concluded that the presumption of care orcontrol has been rebutted, can it be said that the Crown has proven actual care or control beyond a reasonable doubt? I find not. [47] Consequently, the accused will be found not guilty.

DATED AT KINGTON this 21 st day of November 2011.