2015 QCCQ 6977, 2015 QCCQ 6977

Unofficial English Translation R. c. Doyon 2015 QCCQ 6977 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MINGAN LOCALITY OF SEPT-ÎLES “Criminal Division” No.: 650-01-018749-127 DATE: June 5, 2015 THE HONOURABLE MICHEL PARENT, J.C.Q., PRESIDING The Queen Prosecutrix v. Auguste Doyon Defendant JUDGMENT [ 1 ] On April 28, 2015, the defendant Auguste Doyon was tried on the following two charges: [ translation ] 1. On or about January 20, 2012, at Sept-Îles, District of Mingan, did operate a motor vehicle while his ability to operate such vehicle was impaired by alcohol or a drug, thereby committing the offence punishable on

summary conviction provided in paragraph 253(1) (

a) and subsection 255(1) of the Criminal Code . 2. On or about January 20, 2012, at Sept-Îles, District of Mingan, did operate a motor vehicle after having consumed alcohol in such a quantity that his blood alcohol concentration exceeded 80 milligrams per 100 millilitres of blood, thereby committing the offence punishable on

summary conviction provided in paragraph 253(1) (

b) and subsection 255(1) of the Criminal Code . [ 2 ] The Court has before it a motion under sections 7, 8 and 9, paragraph 10( b ), and subsections 24(1) and 24(2) of the Charter of Rights and Freedoms . [ 3 ] In his written application, the defendant states his claims in the following manner: [ translation ] 2. The applicant alleges that the presumption of identity no longer exists because of prescriptions that did not comply with subsections 254(2) and 254(3) and paragraph 258(1) (

c) of the Criminal Code ; 3. The police officers stopped the applicant at 2:09 a.m. and the applicant did not breathe into the breathalyzer until 3:27 a.m.; 4. During this time, the applicant was detained and it was not until 3:07 a.m. that it was physically possible for the applicant to contact counsel; 5. We respectfully submit to the court that because of the delay involved, the prescriptions of paragraph 258(1) (

c) were not respected; 6. We respectfully submit to the court that the right to counsel was not respected in the circumstances; ( sic) . [ 4 ] The defendant asks the Court to make the following orders: [ translation ] ORDER that the applicant’s constitutional rights have been violated; ENTER a stay of proceedings; ORDER the certificates of the qualified technician and the certificate of analysis to be inadmissible as evidence; ORDER exclusion of the evidence under subsection 24(2) of the Canadian Charter of Rights and Freedoms as a remedy; ORDER any other remedy as the Court may deem useful; ( sic) .

Summary of the evidence [ 5 ] A single witness was heard for the purposes of the motion, namely Officer Dany Roberge. [ 6 ] On January 20, 2012, at 2:09 a.m., Officer Roberge saw a Mitsubishi Lancer leave the parking lot of the Bank of Montreal and do a [ translation ] “fishtail”; in other words, the vehicle pulled out of the parking lot, its back end skidded to the right, and then it straightened out again. [ 7 ] Officer Roberge decided to stop the vehicle to verify the driver’s ability to drive and to tell him that fishtailing is dangerous. [ 8 ] It was minus 22º Celsius and the roadway was snowy. [ 9 ] The defendant was the driver of the intercepted vehicle. [ 10 ] Two other people were in the vehicle and the passenger compartment smelled of alcohol. [ 11 ] Officer Roberge informed the defendant that he had been stopped because of the skidding and asked him for the usual documents. [ 12 ] The defendant properly handed over the required documents. [ 13 ] In reply to a question from Officer Roberge, the defendant said that he had consumed three small beers in three hours at the bar Le Clandestin. [ 14 ] Officer Roberge detected the smell of alcohol on the defendant’s breath when the defendant spoke to him. [ 15 ] At Officer Roberge’s request, the defendant got out of his vehicle and went to the rear of it. [ 16 ] The defendant had glassy eyes, was standing straight, and spoke normally. [ 17 ] Officer Roberge told the defendant that he had reason to suspect that the defendant had alcohol in his body and asked him to accompany him into the patrol vehicle to provide a breath sample into an approved screening device (ASD). [ 18 ] The defendant agreed, cooperated, and was very polite and not at all aggressive. [ 19 ] The defendant sat in the back of the patrol vehicle. [ 20 ] Since he did not have an ASD in his vehicle, at 2:17 a.m., Officer Roberge asked a colleague to bring him one. [ 21 ] At 2:18 a.m., Officer Roberge received the ASD. [ 22 ] One minute later, Officer Roberge made a demand to the defendant to provide a breath sample into the ASD. [ 23 ] Officer Roberge said that he [ translation ] “verbally informed the defendant of his rights” outside the vehicle and that, after making a demand to provide a breath sample into the ASD, he read to him from a plasticized card. [ 24 ] The defence admits that [ translation ] “the demand was read properly”. [ 25 ] However, whether given verbally or by reading, the demand did not mention the right to consult an attorney. [ 26 ] In the patrol vehicle, but before the demand to provide a breath sample into the ASD, the defendant bargained by asking to have the vehicle left where it was and to forget about the test because he would take a taxi. [ 27 ] After the demand to provide a breath sample into the ASD, the defendant blew hard, stopped and blew again.

The “No go” result meant that an analysis could not be done. [ 28 ] The procedure was explained again to the defendant. However, because of the way the defendant breathed, the second breath sample could not be analyzed either. [ 29 ] The legal consequences of the defendant’s behaviour were explained to him. [ 30 ] On the third try, after apologizing, the defendant provided a long, continuous breath, and the analysis of this breath sample gave a result of “Fail”. [ 31 ] Following the “Fail” result, Officer Roberge informed the defendant that he was under arrest for impaired driving.

The defendant was then verbally informed of his right to remain silent and his right to a lawyer. The defendant did not respond. [ 32 ] The defendant said, laughing, [ translation ] “it’s not my fault if I blew a Fail” and asked once again to have the vehicle left where it was and call a taxi. [ 33 ] The verbal arrest took place at 2:19 a.m. Officer Roberge informed the defendant of his rights, including the right to retain counsel.

To the question [ translation ] “Do you understand?”, the defendant answered [ translation ] “Yes”. [ 34 ] At 2:28 a.m., using a plasticized card, Officer Roberge read the defendant the demand to accompany him to the police station to provide a breath sample to a qualified technician.

[ 35 ] The defence admits that [ translation ] “the demand was read properly”. [ 36 ] However, according to Officer Roberge, there was no question of contacting a lawyer at 2:28 a.m. [ 37 ] From 2:19 to 2:36 a.m., the defendant asked questions about his licence, the passengers were looked after, the vehicle was briefly searched.

The defendant was given a cellular telephone. [ 38 ] At 2:36 a.m., a tow truck was called. [ 39 ] The tow truck arrived at 2:52 a.m. [ 40 ] At the time of these events, the police had to wait until the tow truck arrived. [ 41 ] At present, and for five or six months now, another police officer looks after the towing. [ 42 ] Between 2:36 and 2:49 a.m., the defendant sat in the back of the patrol vehicle with his eyes closed. [ 43 ] The accused’s vehicle was stopped opposite 405 Brochu Street, which is a main artery in Sept-Îles.

Officer Roberge did not know whether the vehicle could be parked there. [ 44 ] The tow truck finished its work at 3:00 a.m. and the police left the site at 3:03 or 3:05 a.m. [ 45 ] They arrived at the police station around 3:07 a.m. [ 46 ] During the ride, the defendant did not speak and was calm, but there was a smell of alcohol in the patrol vehicle. [ 47 ] At the police station, the defendant walked straight. [ 48 ] At 3:07 a.m., using a P-1 form, the defendant was informed of the reasons for his arrest, his right to remain silent, and his right to counsel. [ 49 ] The defendant said he wanted to call Mtre Desmarais and spoke with him for about a minute. [ 50 ] The defendant had been informed of his right to counsel at 2:19 a.m. but did not ask for one until 3:07 a.m. [ 51 ] Concerning the consumption scenario, the defendant remained silent. [ 52 ] At 3:20 a.m., the qualified technician introduced himself to the defendant. [ 53 ] At 3:26 a.m., the technician was ready. [ 54 ] It appears from the qualified technician’s certificate that the first breath sample from the defendant was taken at 3:27 a.m. and the second at 3:42 a.m.

The blood alcohol concentrations on the certificate were 125 mg and 120 mg, respectively, per 100 mL of blood. [ 55 ] Between the two breath samples, the defendant sat straight, spoke normally, had glassy eyes, and his breath smelled of alcohol. [ 56 ] In cross-examination, Officer Roberge said that the defendant could not have spoken privately to a lawyer before arriving at the police station. [ 57 ] As a result of various court decisions, Officer Roberge no longer waits for the tow truck to arrive and has one of his colleagues look after the towing phase. [ 58 ] The defendant was stopped on January 20, 2012, because of skidding since it could be considered reckless driving under the Highway Safety Code . [ 59 ] Other than the smell of alcohol on the defendant’s breath and his glassy eyes, Officer Roberge had no reason to fault the defendant. [ 60 ] From 2:19 to 2:28 a.m., the defendant asked many questions about his licence, and other topics were discussed with him. [ 61 ] At 2:28 p.m., Officer St-Pierre, a colleague of Officer Roberge, called a taxi for the passengers.

The dispatcher and the qualified technician were informed of the police operation. [ 62 ] At 2:36 a.m., Officer St-Pierre called the towing service. [ 63 ] In re-examination, Officer Roberge cited reasons related to preparations by the qualified technician to justify the delay from 3:08 a.m. to 3:26 a.m. [ 64 ] Finally, the defence admitted that if Officer Benoit St-Pierre testified, his testimony would be similar to that given by Officer Roberge. The law Right to be informed of the right to retain and instruct counsel ( paragraph 10(

b) of the Charter )

[ 65 ] Detention based on suspicion of impaired driving of a motor vehicle meets the test set out by the Supreme Court in Therens [1] and Thomsen. [2] [ 66 ] As a result, it appears from Grant [3] and from Orbanski and Elias [4] that a driver thus detained has the right, under paragraph 10(

b) of the Charter , to be informed by the peace officer of his right to retain and instruct counsel. [ 67 ] However, while it is true that the driver thus detained must be informed of his right to retain and instruct counsel, this right may nevertheless be momentarily suspended or limited while the police officers determine whether or not the driver has to undergo physical coordination tests and/or whether a demand may be made to provide a breath sample into an approved alcohol screening device (ASD). [ 68 ] This limitation of the right to a reasonable opportunity to exercise the right to counsel follows from Orbanski and Elias. [5] [ 69 ] This limitation of the right set out in paragraph 10(

b) of the Charter is permitted, however, only as long as the police officers’ use of the ASD takes place within a reasonably short period of time . “Forthwith” within the meaning of subsections 254(2) and 254(3) of the Criminal Code [ 70 ] Paragraph 254(2) (

b) of the Criminal Code , concerning the ASD, reads as follows: Testing for presence of alcohol or a drug – 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 vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs (

a) and ( b ), in the case of alcohol: (

b) 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 for that purpose. [ 71 ] Subparagraph 254(3) ( a )(

i) of the Criminal Code , regarding the ASD, reads as follows: Samples of breath or blood – If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under

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

a) to provide, as soon as practicable , (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood. (Emphasis added.) [ 72 ] Subparagraph 258(1) ( c )(ii) of the Criminal Code , regarding presumption of identity, reads as follows: Proceedings under

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

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

c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3) , if (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed; (Emphasis added.) [ 73 ] The courts have on numerous occasions ruled on the application and

interpretation of these provisions. [ 74 ] Daoust J. explained the state of the law in the following manner: [6] [ translation ] 38 In Orbanski , [7] the Supreme Court of Canada established that even though the right to retain and instruct counsel guaranteed under paragraph 10(

b) of the Charter may be infringed when screening measures are taken to determine an accused’s sobriety, this was

reasonable and necessary.

The Court then ruled that since the objective was to reduce the carnage caused by impaired driving, the use of reasonable screening measures was rationally connected to that objective. 39 It is therefore recognized and lawful for an accused required to provide a breath sample into an approved screening device to have his or her right to counsel suspended in spite of being detained. 40 In Woods , [8] the Supreme Court of Canada recalled that the “forthwith” requirement of subsection 254(2) of the Criminal Code is the corollary of the fact that there is no opportunity to contact counsel prior to providing a breath sample into the device. 41 The limitation of the right to counsel is justified by the fact that the sample must be provided forthwith and is often taken at the roadside, when and where the motorist has been stopped.

When the peace officer is unable to administer the screening test because he does not have the device, we may then ask whether the circumstances would allow for accommodating the accused so that he may have the right to retain and instruct counsel. 42 Of course, police officers do not have to have an approved screening device in their possession under all circumstances, as Dalphond J.A. clearly points out in Petit . [9] 43 Concerning immediacy, in Woods , supra , Fish J. states: This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample “forthwith”. 44 What the wording of the statute stipulates is that the driver must provide the breath sample forthwith after the demand, and the Supreme Court implicitly equates this immediacy with the demand that must be made by the police officer.

In other words, the demand must be made forthwith – when it is reasonable to do so – when the police officer suspects the presence of alcohol in the body of the accused, whom he also suspects of having operated a motor vehicle. Thus, the accused must provide this breath sample forthwith. 45 In Woods , after determining that the expression “forthwith” means “immediately” or “without delay”, the Honourable Mr. Justice Fish points out: It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code , may in unusual circumstances be given a more flexible

interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment: see Bernshaw . 46 That being said, I do not think that Fish J. has established a general rule to the effect that the first fifteen minutes constitute a standard. 47 In Bernshaw , [10] the Supreme Court had to consider immediacy because of the fifteen-minute delay required following consumption of alcohol for the screening device to be validly used. This is not at issue in the present case.

In Grant , [11] Lamer C.J. established that nothing in the context of subsection 238(2) [12] indicated a basis for departing from the ordinary dictionary meaning of the word “forthwith” suggesting that the breath sample is to be provided immediately. 48 In this case, the thirty-minute period required was deemed too long to meet the criterion of immediacy in the statutory provision. 49 Indeed, Lamer C.J. explained at page 149 that a person who receives a demand that is unlawful – because it was not made forthwith – is not required to comply with it. 50 In other words, if the time period is too long, a person who refuses to comply with a demand to provide a breath sample is not committing an offence. 51 In George , [13] the Court of Appeal for Ontario states that when a police officer is not able to meet the requirements of subsection 254(2) , he must do everything necessary to facilitate the detainee’s consultation of counsel if he or she has a reasonable opportunity to contact counsel.. 52 The author Karl-Emmanuel Harrison [14] has the following to say: [ translation ] The term “immediately” must be given a broad and flexible

interpretation without excessive rigidity that must be adjusted to the relevant circumstances of each case. The higher courts have acknowledged that a delay of less than twenty minutes between the time the police arrive on the scene without an approved screening device and the administration of the test is generally in accordance with the prescriptions of immediacy in paragraph 254(2) (

b) of the Criminal Code , while delays of more than twenty minutes between being stopped and undergoing an approved screening are unreasonable. The explanation that the delay is due to the lack of an approved screening device in the vehicle during day shifts cannot justify a delay that is otherwise unreasonable. … Insofar as there is a delay between the demand and the taking of a breath sample, particularly when the peace officers do not have an approved screening device in their possession, reasonable measures must be taken to facilitate the detainee’s right to counsel.

First, they must advise the detainee of his or her right to counsel. Next, they must verify whether there is a real possibility of exercising the right to counsel. … If there is a real possibility of exercising the right to counsel between the time the demand is given to undergo a screening test and the taking of the breath sample, the demand is invalid and the violation of the right to exercise no longer constitutes a reasonable limit.

53 In George, supra, the Court of Appeal for Ontario stated that sixteen minutes was an unreasonable delay to have an approvedscreening device delivered when the detainee had a cellular telephone and could have contacted counsel if the police officers hadinformed him of his right. 54 A number of trial judgments have dealt with this issue, including those submitted at the hearing.[15] In Husulak,[16] the Court ofQueen’s Bench for Saskatchewan summarized the case law on this subject matter as follows: (

a) A peace officer who reasonably suspects that a driver has alcohol in his or her body may forthwith demand a driver provide abreath sample for analysis under s. 254(2). (

b) Once an ASD Demand is made, the driver is detained and his or her s. 10 rights to counsel are triggered. If an ASD test thenis conducted “forthwith”, the detaining officer is not required to advise the detainee of his or her rights to counsel or to facilitate thedetainee contacting legal counsel. (c) “Forthwith” means “immediately” or “without delay”, subject to exigencies associated with the use of an ASD. Delaysrelated to the availability of an ASD are not exigencies related to the use of an ASD.

d) Though the courts have consistently declined to quantify what delays are acceptable, the key element in deciding whether anASD Demand complies with “forthwith” is whether the detainee could have exercised his or her right to counsel if advised of such right. (

e) The courts have noted “unusual circumstances” justifying a relaxation of the general immediacy requirement in the term“forthwith”. They include: (

i) In every situation, there will be inherent delay to ready equipment and observe the motorist. (ii) When a police officer knows that the motorist has recently consumed alcohol, he or she may wait 15 minutes prior tomaking the s. 254(2) demand … (iii) A “difficult detainee” whose conduct delays the process. (iv) Other imaginable situations, such as where a motorist is physically ill … (

v) The unavailability of ASDs does not, by itself, constitute an “unusual circumstance”. If the unavailability of ASDsresults in delay, the detaining officer must comply with s. 10(b). (vi) An ASD Demand must be made while the detainee still has care and control of the vehicle he or she was operating. 55 To summarize, if a peace officer is not able to demand that a breath sample be provided and taken forthwith, the Court must considerthe matter by determining whether the accused had a reasonable opportunity to contact counsel, the availability of a telephone being arelevant factor. [75] Concerning paragraph 254(2)(

b) of the Criminal Code, Charpentier J. wrote the following:[17] [translation] 30 The importance of the principle of immediacy is due to the fact that a driver in the same circumstances as the applicant is considereddetained. Such driver should therefore be able to assert his subsection10(

b) Charter rights, namely the right to consult counsel and to beinformed of this right. 31 In Bernshaw, (SCC), [1995] 1 S.C.R. 254, the Supreme Court states that: Since R. v. Thomsen, this Court has repeatedly held that if a driver is stopped by a police officer, that driver is detained for the purposesof s. 10(

b) of the Charter. The driver, accordingly, has the right to retain and instruct counsel. In R. v. Thomsen it was recognized thatalthough the absence of the opportunity to retain counsel violated s. 10(

b) of the Charter, it was justified under s. 1 because it was urgentthat the breath sample be obtained quickly in order to be effective. … The section's use of the word "forthwith" in the context of aroadside screening test clearly indicated that there was to be no opportunity granted to a driver to call a lawyer. 32 In short, once a driver is detained to check whether he or she has consumed alcohol, the driver has the right to contact counsel and tobe informed of this right. To counter the social problem caused by impaired drivers, rights guaranteed under paragraph 10(

b) may besuspended under

section 1 of the Charter so that police officers may collect a breath sample in the ASD. This suspension of rights,however, can be justified only if the detention to collect the breath sample is very short in duration. A police officer who has reasonablegrounds to suspect that a driver has alcohol in his or her body must therefore demand the taking of a breath sample forthwith, and thesample must be taken immediately after the demand is made.

This suspension of rights, which must remain short in duration, takes effectonly when the demand to provide a breath sample is made. 33 In Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205, the Supreme Court acknowledges that in the context of subsection 254(2) ofthe Criminal Code, the word “forthwith” may in unusual circumstances be given a more flexible

interpretation than its ordinary meaningstrictly suggests. 34 In the present case, all counsel acknowledge that eight minutes elapsed between the time the officers informed the applicant that theysuspected he had consumed alcohol and that they wanted to test him with the ASD, and the arrival of the device and the formal demandmade to the applicant. 35 The Court of Appeal of Quebec, in Petit, 500-10-002619-037, established that a delay of less than ten minutes may be considered tobe a demand made “forthwith”.

36 Moreover, it would be unreasonable to require every patrol car to be equipped with an ASD. 37 In this case, the demand by the officers to the applicant was therefore made “forthwith” within the meaning of subsection 254(2) Cr. C . [ 76 ] Finding that the calculation of the delay began from when the suspicion was formed and not once the vehicle was stopped, and citing Quansah , [18] Leduc J.A. wrote as follows: [19] [ translation ] [34] For a demand to be valid and the results to be admissible, Parliament requires that the test be administered immediately.

The Court of Appeal for Ontario considered this concept in R . v . Quansah . [35] To summarize: The immediacy requirement in subsection 254(2) necessitates the courts to consider five things :

(1) The analysis of the forthwith or immediacy requirement must always be done contextually .

(2) 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 . (3) “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 under subsection 254(2).

(4) The immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where 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. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement .

(5) One of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee’s s. 10(

b) rights before requiring the sample. If so, the “forthwith” criterion is not met . While in many if not in most cases it will be possible to proceed without delay, some circumstances will require a flexible approach. A short delay if reasonably necessary for the proper administration of the roadside test must be accommodated if the purpose of the legislative provision is to be realized. [Emphasis added.] [36] It must be remembered that the legislative requirement of immediacy is based on the suspension of the right to counsel of the person thus detained. This infringement is furthermore constitutional because it is justified under

section 1 of the Charter , given the important role of the screening device and the fact that the accused may exercise this right during the breathalyzer stage. This is the teaching of the Supreme Court in Thomsen . The Supreme Court has also acknowledged the necessity for police officers to wait fifteen minutes before administering a screening test if they have grounds to believe that the person recently consumed alcohol, to prevent the device from giving false results.

In spite of this delay, the immediacy requirement is met. [37] As specified in Quansah , the “immediacy” analysis includes this consideration of the constitutional right to be informed of the right to retain counsel. When a certain amount of time elapses between the forming of suspicions and the test, the police officer must, realistically, fulfill this obligation.

The question relating to the obligation to inform and apply the right to counsel remains to be determined, given that the accused could have used his cellular telephone. [ 77 ] Concerning the delay related to the towing of the defendant’s vehicle, the Court refers to the decision of Lapointe J. in R. v. Lance : [20] [ translation ] [36] And, specifically regarding the peace officers’ concerns with respect to the risks caused by automobiles parked by drivers who have to be brought to the station, the Alberta Court of Appeal is fairly explicit on the issue. In R. v.

Hafermehl [1993), A.J. no 981, also cited as (1993), 50 M.V.R. (2d) 78 ; we can read: [1] … The appellant, relying on R. v. Sheopp (1978) (Alta. Distr. Ct.), unreported and R. v. Malbeur (1978) (Alta. Dist. Ct.) unreported, argues that the police have no duty to secure a motor vehicle and that the breath tests in this case were not taken as soon as practicable.

We do not agree. [2] Where a police officer reasonably believes that a vehicle poses a danger to the travelling public or reasonably believes that there is a risk to the security of the vehicle or its contents, a reasonable delay in transporting an accused to a location where a breath test might be administered in order to avoid these risk[s] is, in our view, justified.

Exercise of the right to retain and instruct counsel [ 78 ] In Taylor , [21] the Supreme Court recalls the obligations incumbent upon police officers who detain a person. [ 79 ] Police officers must inform the detainee of his or her right to retain and instruct counsel without delay .

[80] Police officers must provide a reasonable opportunity to speak to an attorney, however, only if the detainee states that he or shewishes to do so. [81] In Taylor, Abella J. wrote the following: [23] He also confirmed the three corresponding duties set out in Manninen which are imposed on police who arrest or detain anindividual: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aidand duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). (Bartle, at p. 192, citing Manninen, at pp. 1241-1242; R. v.

Evans, (SCC), [1991] 1 S.C.R. 869, at p. 890; R. v. Brydges, (SCC), [1990] 1 S.C.R. 190, at pp. 203-204.) [24] The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras.41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. Thearresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonablyavailable opportunity.

The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000),2000 ABCA 301 , 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factualinquiry. [25] This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(

b) rights and facilitate access tothose rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for thatpurpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercisehis right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v.

The Queen, (SCC),[1972] S.C.R. 926, at pp. 952-53). [26] Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from takingfurther investigative steps to elicit evidence (R. v. Ross, (SCC), [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, (SCC), [1994] 3 S.C.R. 236, at p. 269). (Emphasis added.) [82] In Chrétien,[22] the Court of Appeal describes the consequences of a detainee’s failure to invoke his or her right to retain andinstruct counsel: [translation] [18] In accordance with the principles stated by the Supreme Court in R. v.

Sinclair, 2010 SCC 35, at paras. [27] and [28], the appellantdid not invoke his right and was not reasonably diligent in exercising it. Consequently, according to that judgment, the correspondingobligation on the police to give him a reasonable opportunity to exercise his right did not arise. We agree with the respondent, who statesthat it did not have to demonstrate a waiver of the right to counsel because the appellant did not impress upon the police officers hisdesire to consult counsel (R. v.

Manninen, (SCC), [1987] 1 S.C.R. 1233 at 1244.) Conditions for the application of the presumption of identity (subsection 254(3) and subparagraph 258(1)(c)(ii) of the Criminal Code) [83] Regarding the presumption of identity stated in subparagraph 258(1)(c)(ii) of the Criminal Code, Morin J. drew the followingconclusions:[23] [translation] 34 For the presumption of identity to apply, not only must the breath sample have been taken no later than two hours after the time whenthe offence was alleged to have been committed, but also as soon as possible in the circumstances. 35 In R. v.

Vanderbruggen,[24] the Court of Appeal for Ontario expounded on the meaning to attribute to the expression “as soon aspracticable”, the English version of the French expression “dès qu'il a été matériellement possible de le faire”: [12] Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within areasonably prompt time under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone fordetermining whether the tests were taken as soon as practicable is whether the police acted reasonably. 36 In R. v.

Tremblay,[25] Landry J. reviewed the case law relating to the expression “as soon as practicable” used insubparagraph 258(1)(c)(ii) of the Criminal Code: [translation] [58] In

summary, it is not how long they waited that is important, but rather the reasons they did so. A delay unjustified by the policeofficers or by the circumstances may be considered unreasonable. Each case turns on its own facts and must be analyzed according to thecircumstances.

37 In R. v.

Valcourt,[26] Bédard J. recently stated that: [translation] [43] In other words, the time elapsed may be long without being unreasonable if the Court’s assessment of the circumstances shows thatthe police officers acted judiciously and that the time period could not reasonably have been shorter. [84] Furthermore, in Vanderbruggen, supra, the Rosenberg J.A. added as follows: 13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing inmind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.

The "as soonas practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that — in all thecircumstances — the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), (BC CA), 1 C.C.C.(3d) 59 (B.C.C.A.) at 61-3, and R. v.

Seed at para. 7. 14 Whether the samples were taken as soon as practicable in this case was an issue of fact for the trial judge. See R. v. Lightfoot (1980),4 M.V.R. 238 (Ont. C.A.) and R. v. Renda, [2005] O.J. No. 1453 (C.A.). In my view, the Crown adduced sufficient evidence before thetrial judge from which he could conclude that the police acted reasonably and that the breath samples were taken as soon as practicablein all the circumstances. In this case, there was an approximate delay of one hour and fifteen minutes from the time of the offence to thetaking of the first sample.

The following evidence was offered as explanation for this delay: time was taken in arresting the appellant,reading him his rights, transporting him to the station, waiting for the technician to arrive, searching the appellant, conveying theinformation as to the grounds for the breath demand and waiting for the technician to prepare the breathalyzer (Foley was "playingaround" with the machine). There was no evidence that either the arresting officer or the technician acted unreasonably.

The record onlyshows that they were attentive to their duties and to the need to administer the tests to the appellant as soon as practicable.

There was noevidence that the officers gave unreasonable priority to any other task. 15 Given that there was sufficient evidence upon which the trial judge could conclude that the samples were taken as soon as practicable,the appellant has not shown that this court should disturb his finding. [85] A few years later, the Court of Appeal for Ontario reiterated the principles set out in Vanderbruggen.[27] Analysis [86] As for the use of the ASD, the evidence shows that one to two minutes elapsed between the time that Officer Roberge formedhis suspicions, the ASD was obtained, and he made the demand to the defendant. [87] In this case, the demand made by Officer Roberge was “forthwith” within the meaning of subsection 254(2) of the CriminalCode. [88] In addition, according to the evidence, Officer Roberge only informed the defendant of his right to consult counsel during the“verbal arrest”, namely at 2:19 a.m.

The defendant was therefore certainly detained within the meaning of the Charter when a demandwas made to him under paragraph 254(2)(

b) of the Criminal Code. [89] In other words, Officer Roberge was wrong to wait for the results of the ASD analysis before informing the defendant of hisrights. [90] In so doing, Officer Roberge failed in his duty to inform the defendant of his right to retain and instruct counsel. [91] Officer Roberge’s failure to respect the defendant’s rights from the moment a demand was made to the defendant undersubsection 254(2) of the Criminal Code is however without consequence. [92] In fact, not only did Officer Roberge’s omission last for just a minute or two (from 2:17 a.m. to 2:19 a.m.), but also no evidencewas obtained during that period. [93] In short, no evidence was adduced under conditions infringing the Charter right under paragraph 10(b). [94] As for the period between 2:19 a.m. to 3:07 a.m., the Court has uncontradicted evidence that the defendant, although informedof his right to contact counsel and having access to a cellular telephone, did not make any request to contact counsel. [95] Any speculation as to what could have happened if the defendant had wished to contact counsel using his cellular telephonedoes not constitute evidence. [96] According to the principles exposed earlier, however, it appears that the obligation of a peace officer to facilitate access tocounsel arises when the detainee asks to speak to a lawyer. [97] As a result, the evidence does not show that the defendant’s Charter right under paragraph 10(

b) was infringed on January 20,2012. [98] But what is to be made of the application to exclude the two breath sample results on the certificate of analysis from theevidence, under

section 8 of the Charter? [99] Bodily evidence is evidence taken from the body of the accused, such as DNA evidence and breath samples.

Section 8 of theCharter protects against unreasonable search and seizure, and thus precludes the state from obtaining such evidence in a manner that is

unreasonable. [28] [ 100 ] Any search, seizure or procedure to be used as evidence against the accused must be carried out in accordance with the procedural and substantive requirements the law provides. [29] [ 101 ] In this case, a question is raised more specifically about the time elapsed between the time of arrest at 2:19 a.m. and the breath samples provided at 3:27 a.m. and 3:42 a.m. [ 102 ] The time periods are reasonably explained, except for that between 2:19 a.m. to 3:05 a.m., which was spent waiting for the tow truck. [ 103 ] Therefore, regarding the time elapsed between the verbal arrest (at 2:19 a.m.), the reading of the demand for a breathalyzer test (at 2:28 a.m.), and the call for a tow truck (at 2:36 a.m.), the explanations whereby the defendant asked questions are not very convincing. [ 104 ] The time period due to the towing service (call placed at 2:36 a.m. / departure at 3:00 a.m.) is also highly debatable. [ 105 ] Moreover, it appears from Officer Roberge’s testimony that the [ translation] “ policy ” in effect at the time of the events was reviewed so as to reduce any delay prior to the taking of breath samples. [ 106 ] In addition, the evidence does not establish that the vehicle could not be parked safely at the scene where it was stopped. [ 107 ] The Court concludes from the evidence that the time period could have been and should have been shorter and that the priority given to waiting for a tow truck at the time of the events was not reasonable. [ 108 ] Accordingly, the Court finds that the breath samples were not obtained from the applicant “as soon as practicable” within the meaning of subparagraph 254(3) ( a )(

i) of the Criminal Code and that they were not taken “as soon as practicable” within the meaning of subparagraph 258(1) ( c )(ii) of the Criminal Code . [ 109 ] As a result, both the breath samples provided by the defendant at the police station and the results of these breath samples on the certificate of analysis were obtained in violation of

section 8 of the Charter . [ 110 ] The exclusion of evidence is not automatic, and the factors outlined in by the Supreme Court in Grant [30] must be analyzed. [ 111 ] Furthermore, in Anderson , [31] the Court of Appeal writes as follows: [ translation ] [16] The Supreme Court thus put an end to the all-but-automatic exclusionary rule for conscriptive evidence that is not otherwise discoverable.

It also reiterated one of its earlier observations whereby a fair trial is “one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused .” [17] After noting that the purpose of subsection 24(2) of the Charter is to maintain the good repute of the administration of justice at all stages (investigation, charge, judgment) and to uphold Charter rights and the rule of law, the Supreme Court reiterated that the long-term maintenance of the integrity of and public confidence in the justice system must be the focus. [ 112 ] First, it must be determined whether the seriousness of the Charter -infringing state conduct might send the message that the justice system condones serious state misconduct.

Again in Anderson , the Court of Appeal states the following on the subject: [ translation ] [19] The first question requires an evaluation of the seriousness of the state conduct, not to punish the police or deter other breaches, but to preserve public confidence in the principle of the rule of law.

Since conduct resulting in violations varies in seriousness, it therefore follows that “‘[g]ood faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct”. [ 113 ] In this case, Officer Roberge did not act in bad faith by waiting at the scene of where he stopped the car for the defendant’s vehicle to be towed away.

Officer Roberge was merely complying with the policy then in effect at the Sûreté du Québec in Sept-Îles. [ 114 ] Consequently, this factor weighs in favour of the admission of the evidence. [ 115 ] As for the impact of the infringement of the accused’s Charter rights, it must be borne in mind that taking breath samples is not a very intrusive procedure.

In Grant , the Supreme Court added the following: [111] 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 non-intrusive . (Emphasis added.) [ 116 ] This second factor also favours admission of the evidence. [ 117 ] As for society’s interest in the adjudication of the case on its merits, the Court notes that the evidence obtained by violating the letter of the law is reliable, significant and relevant. In this particular case, it concerns the analysis of two breath samples provided by the

defendant and analyzed by an approved screening device. [118] The Supreme Court recalls that the failure to effectively prosecute a serious charge due to excluded evidence may have animmediate impact on how people view the justice system. Yet it is the long-term repute of the justice system that is important. The questfor truth is not the only element to be considered. [119] Although the offence charged is not the worst, society considers it to be serious.

It is well known that driving under the influenceof alcohol is a social evil. [120] Moreover, the reliability of the evidence to be excluded and its relevance and utility in the search for truth weigh againstexcluding the evidence. [121] The balancing the three factors analyzed above can be summarized as follows: there was no serious misconduct; the test is notvery intrusive, and the interests of society favour the admission of the evidence. [122] Under the circumstances, there is no need to exclude the evidence, as requested by the defendant.

In short, the admission of theevidence does not bring the administration of justice into disrepute. [123] Given the infringement of

section 8 of the Charter, should the Court grant the remedy under subsection 24(1) of the Charterseeking a stay of proceedings or that seeking the non-application of the presumption in paragraph 258(1)(c)(ii) of the Criminal Code? [124] In Babos,[32] the Supreme Court recalls the state of law regarding a stay of proceedings: [30] A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 CSC 12, [2002] 1 S.C.R. 297, atpara. 53). It permanently halts the prosecution of an accused.

In doing so, the truth-seeking function of the trial is frustrated and thepublic is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their dayin court. [31] Nonetheless, this Court has recognized that there are rare occasions — the “clearest of cases” — when a stay of proceedings for anabuse of process will be warranted (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68).

These cases generally fallinto two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where stateconduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor,at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category. [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interestsin favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits” (ibid., at para. 57). [125] In this case, the defendant does not argue that it is impossible for him to receive a fair trial because of the violation of

section 8of the Charter; nor does he contend that this is one of those clearest of cases in which a stay of proceedings is required to preserve andmaintain the integrity of the justice system. [126] In this particular case, the Charter-infringing state conduct is essentially minor and cannot be attributed in any way to ignorance,recklessness, negligence or wilful or flagrant disregard of the Charter on the part of Officer Roberge. [127] There is therefore no need to enter a stay of proceedings. [128] What should be made of the defendant’s motion to deny the Crown the benefit of the presumption in paragraph 258(1)(

c) of theCriminal Code? [129] In Anderson, supra, the Court of Appeal defines the purpose of paragraph 258(1)(

c) of the Criminal Code: [translation] 40 Paragraph 258(1)(

c) Cr. C. establishes a presumption of identity between the blood alcohol concentration at the time of the arrest forthe purpose of counteracting the variation that may exist because of the natural process of alcohol elimination. Absent this presumption,the prosecution is required to prove that the results represent the blood alcohol level at the time of the offence, in all likelihood throughexpert evidence. [130] In Anderson, the Court of Appeal had before it the question as to whether the presumption of identity continues to apply in asimilar context where a motion to exclude evidence has been dismissed.

The Court states as follows: 48 A final question remains: Does the presumption of identity continue to apply when the motion to exclude the evidence has beendismissed? 49 In my opinion, the trial judge was correct in saying that when a motion to exclude evidence is dismissed, [translation] “the accused isin the same situation as an accused who has not invoked the Charter, and Rilling applies. The certificate of analysis is admissible in

evidence, and the presumptions apply”. 50 The logical outcome of admitting the breathalyzer evidence is the application of the presumption of identity. 51 To find otherwise would indirectly undermine the still-applicable principles in Rilling and considerably reduce the effect of thejudgment rendered under subsection 24(2) of the Charter. 52 In this case, the appellant filed his motion to exclude the evidence, which was dismissed for the reasons outlined above.

Havingcomplied with the breathalyzer demand, and the evidence having been ruled admissible, he may not ask the Court during closingarguments of the trial on the merits to revisit the issue as to whether there were reasonable grounds to order the tests as a way ofchallenging the presumption of identity. 53 As for the appellate judge, he was of the opinion that this Court, in R. v. C.L., had already decided whether Rilling still applies.Strictly speaking, this is accurate.

The appellant has not demonstrated any reason to review this finding. [131] Under the rule of stare decisis, the Court considers itself bound by Anderson. [132] With respect for the contrary opinion, however, the Court finds that certain aspects of the decision in Anderson raise questionsconcerning the probative value of the certificate of analysis as a presumption. [133] Thus, paragraph 258(1)(

c) of the Criminal Code imposes certain prerequisites for its application, including that requiring that theaccused’s breath samples be taken “pursuant to a demand made under subsection 254(3)” of the Criminal Code. [134] The demand made under subsection 254(3) of the Criminal Code, however, should be legally valid only under certainconditions, including that of requiring the accused “by demand made as soon as practicable” to provide breath samples “as soon aspracticable”. [135] Can it not be claimed that unless all the conditions stated are met, the demand has not been “made under subsection 254(3)” ofthe Criminal Code”? [136] In this case, there was an unreasonable delay between the time that Officer Roberge obtained reasonable grounds and the timethat the defendant provided breath samples at the police station. [137] Since the breath samples were not provided “as soon as practicable”, the demand made by the peace officer fails to respect theletter of subsection 254(3) of the Criminal Code. [138] As a result, under such circumstances, is it not legitimate to distinguish between the admissibility of the certificate of analysis inevidence and the probative value of the certificate? [139] Regarding the probative value of the certificate of analysis, is it not legitimate to claim that the filing of the certificate alone asevidence is not sufficient for the presumption in paragraph 258(1)(

c) of the Criminal Code to apply? [140] Is it not legitimate to claim that the presumption in paragraph 258(1)(

c) of the Criminal Code has the expected probative valueonly if all the conditions or requirements of subsection 254(3) of the Criminal Code are met, including the “as soon as practicable”requirement? [141] Bearing in mind that it must be established that the first sample was taken not later than two hours after the time of the offence,with an interval of at least fifteen minutes between the times when the other samples were taken, is it not legitimate to claim that thepresumption in paragraph 258(1)(

c) of the Criminal Code can apply only if all the prerequisites are met, including that the samples betaken “as soon as practicable”? [142] Whatever the case may be, the Court reiterates that it is bound by Anderson. [143] However, as I understand it, in Anderson, the question of a motion for relief under section 24(1) of the Charter in relation to thepresumption in paragraph 258(1)(

c) of the Criminal Code was not at issue. [144] Furthermore, in the present case, unlike the situation in Anderson, the question of the application of the presumption inparagraph 258(1)(

c) of the Criminal Code was raised at the outset of the trial and not at the oral argument stage. [145] In the present case, the Crown was duly informed of the subject of the motions under both subsections 24(1) and 24(2) of theCharter, and the Court in fact has before it these motions, which are not incompatible. [146] Subsection 24(1) of the Charter reads as follows: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [147] The Court has already decided that the defendant suffered from a violation of his

section 8 Charter rights. [148] In Doucet-Boudreau v. Nova Scotia (Minister of Education),[33] Iacobucci and Arbour, JJ., wrote the following aboutsubsection 24(1) of the Charter: 24 The requirement of a generous and expansive interpretive approach holds equally true for Charter remedies as for Charter rights (R.v. Gamble, (SCC), [1988] 2 S.C.R. 595; R. v. Sarson, (SCC), [1996] 2 S.C.R. 223; R. v. 974649Ontario Inc., [2001] 3 S.C.R. 575, 2001 SCC 81 (“Dunedin”)). In Dunedin, McLachlin C.J., writing for the Court, explained why this is

so. She stated, at para. 18: [Section] 24(1), like all Charter provisions, commands a broad and purposive

interpretation. This

section forms a vital part of the Charter, and must be construed generously, in a manner that best ensures the attainment of its objects.... Moreover, it is remedial, and hence benefits from the general rule of statutory

interpretation that accords remedial statutes a “large and liberal”

interpretation.... Finally, and most importantly, the language of this provision appears to confer the widest possible discretion on a court to craft remedies for violations of Charter rights. In Mills , [ supra ,] McIntyre J. observed at p. 965 that “[i]t is difficult to imagine language which could give the court a wider and less fettered discretion”.

This broad remedial mandate for s. 24(1) should not be frustrated by a “(n)arrow and technical” reading of the provision.... [Reference omitted.] [ 149 ] Concerning the general factors that judges should consider in assessing the appropriateness and justice of a potential remedy, Iacobucci and Arbour, JJ., wrote as follows: 55 First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants. Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant.

A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied. An ineffective remedy, or one which was “smothered in procedural delays and difficulties”, is not a meaningful vindication of the right and therefore not appropriate and just (see Dunedin , supra , at para. 20 , McLachlin C.J. citing Mills , supra , at p. 882, per Lamer J. (as he then was)). 56 Second, an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy.

As discussed above, a court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary. This is not to say that there is a bright line separating these functions in all cases. A remedy may be appropriate and just notwithstanding that it might touch on functions that are principally assigned to the executive.

The essential point is that the courts must not, in making orders under s. 24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes. 57 Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court. It will not be appropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestly unsuited.

The capacities and competence of courts can be inferred, in part, from the tasks with which they are normally charged and for which they have developed procedures and precedent. 58 Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party against whom the order is made. The remedy should not impose substantial hardships that are unrelated to securing the right. 59 Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter .

As such, s. 24, because of its broad language and the myriad of roles it may play in cases, should be allowed to evolve to meet the challenges and circumstances of those cases. That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand.

In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case. [ 150 ] In this case, it is necessary to determine a remedy appropriate to the defendant, one which highlights the importance for the state to respect the

section 8 Charter protections yet which also remains fair to the Crown. [ 151 ] In the circumstances of this case, the dissociation of the justice system from the violation of

section 8 of the Charter is adequately and proportionately reflected by the remedy of denying the Crown the benefit of the presumption in paragraph 258(1) (

c) of the Criminal Code . [34] [ 152 ] FOR THESE REASONS, THE COURT : FINDS that the defendant’s

section 8 Charter rights were infringed; DISMISSES the defendant’s motion under subsection 24(2) of the Charter ; and ALLOWS the defendant’s motion under subsection 24(1) of the Charter ; By way of remedy, DENIES the Crown the benefit of the presumption in paragraph 258(1) (

c) of the Criminal Code . __________________________________ Michel Parent, J.C.Q. Mtre Thierry Pagé-Fortin Crown Prosecutor Mtre Jean-Luc Desmarais Counsel for the defendant Date of hearing: April 28, 2015