R. v. Bajwa, 2011 ONCJ 217

Citation: R. v. Bajwa , 2011 ONCJ 217 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KAMALDEEP BAJWA Before Justice M.H. Bloomenfeld Heard on December 13, 2010 Reasons for Judgment released orally February 25, 2011; Written Judgment released April 26, 2011 [1] M. Mandel ................................................................................................................. for the Crown M.

DeRubeis ................................................................................ for the accused Kamladeep Bajwa Bloomenfeld J.: OVERVIEW [ 1 ] Kamaldeep Bajwa is charged with impaired care and control of a motor vehicle and having care and control of a motor vehicle while his blood alcohol level was over 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253 of the Criminal Code . Both charges stemmed from his care and control of a motor vehicle on August 23, 2009. Through his defence counsel, Mr. DeRubeis, Mr. Bajwa essentially admitted the Crown’s case.

His sole argument against conviction was that his s. 7 and s. 8 Charter rights were violated because the arresting officer did not have reasonable and probable grounds to believe that he was impaired by alcohol. In particular, defence counsel submitted that the arresting officer had insufficient indicia of alcohol consumption and accordingly any evidence obtained from Mr. Bajwa as a result of the arrest should be excluded pursuant to s. 24(2) of the Charter.

Although evidence obtained subsequent and pursuant to the arrest demonstrated indicia of alcohol intoxication, s. 24(2) of the Charter mandated exclusion of that evidence because it had been secured pursuant to a breach of Mr. Bajwa’s s. 8 right to be free from unreasonable search and seizure. FACTUAL

SUMMARY [ 2 ] I have not included every detail in my factual

summary of the evidence because I have focused on those facts most pertinent to the sole contested issue in this case, namely whether the arresting officer had reasonable and probable grounds to arrest Mr. Bajwa for impaired care and control and make an approved instrument breath demand. Counsel are in agreement that, should I find that such grounds did not exist and exclude any evidence obtained pursuant to that arrest and demand, then Mr. Bajwa must be acquitted on both charges. Similarly, if I find there was no Charter breach or do not exclude the evidence, Mr.

Bajwa must be found guilty. [ 3 ] The evidence for the Crown consisted of the testimony of civilian witness Margaret Ing Popovski, who witnessed Mr. Bajwa driving, arresting officer P.C. Patricia Vango and her partner P.C. Eric Skrepnek. Much of that evidence is uncontested and uncontroversial, including the testimony of Ms. Popovski. Mr. Bajwa was first observed driving that night by Ms. Popovski. She and her two daughters were passengers in a vehicle driven by her husband when she saw a black vehicle ahead, driven by Mr. Bajwa, drifting to the right in the road and then repositioning itself.

The drifting almost caused the vehicle to hit a guard rail. Ms. Popovski called 911 and spoke to the police while her husband followed Mr. Bajwa’s vehicle. As they drove uphill towards a stop sign, Mr. Bajwa was driving very quickly at approximately 80 to 100 km/h in a 50 km/h zone. [ 4 ] Ms. Popovski’s husband tried to speed up to get Mr. Bajwa’s licence plate number while she spoke on the phone with 911 dispatch. Ms. Popovski provided the plate number to the dispatcher. The 911 tape was played in court, documenting Ms. Popovski’s narrative of her observations as they followed Mr. Bajwa’s car. Ms.

Popovski also noted other examples of Mr. Bajwa’s erratic driving, such as trying to weave in and out of bumper-to-bumper traffic and at one point almost going up on to the curb just to get by. Mr. Bajwa also went through two red lights. After her first conversation with 911, Ms. Popovski called the police again because she was concerned that there was going to be an accident. That 911 tape was also played and the court heard Ms. Popovski’s voice giving the police directions to find Mr. Bajwa. Mr. Bajwa almost rear-ended a vehicle that had to honk and drift to the side to avoid getting struck. [ 5 ] Ms.

Popovski’s husband followed Mr. Bajwa all the way to a driveway where he parked his car. Then they made a U- turn and drove off to see if they could find a police cruiser. Not far off they saw a police car and Ms. Popovski’s husband used his high beams and honked to get the attention of the police. Officers came over and Ms. Popovski asked if they were the ones responding to the

911 call. Her husband told the police which street Mr. Bajwa was on and that he was at a house. [ 6 ] P.C. Vango is an officer with 11 years of experience. She testified using a photocopy of her notes which were originally, for the most part, made after the incident. She heard the dispatcher broadcast the call for a possible impaired driver and because she was in the area she headed to the address of the registered owner of the licence plate number that Ms. Popovski had called in.

She did not make a specific note of the content of the radio call but remembered that there was a concern that the driver had almost hit another vehicle. On her way there, P.C. Vango was flagged down by Ms. Popovski and her husband. She spoke to them for 15 to 20 seconds and then proceeded to the address, 31 Wharnsby, arriving within 10 to 20 seconds after leaving Ms. Popovski. [ 7 ] The vehicle that Mr. Bajwa had been driving was in the driveway. Mr. Bajwa was alone in the car, sitting in the driver’s seat. The keys ere in the ignition but the car was not running.

P.C.Vango felt the engine and although it was not very warm it was warm to the touch. Her partner, P.C. Skrepnek, spoke to Mr. Bajwa and asked him to get out of the vehicle. P.C. Vango observed that Mr. Bajwa was unsteady on his feet, had red, glossy eyes and slurred his speech as he spoke to P.C. Skrepnek. P.C. Skrepnek asked Mr. Bajwa about alcohol consumption and Mr. Bajwa indicated that he had not drunk any alcohol. P.C. Vango saw some empty cups and a couple of two-litre bottles of Canada Dry soda in the rear of the vehicle. She formed the opinion that Mr.

Bajwa had care and control of the vehicle while he was impaired by alcohol and arrested him for that offence. [ 8 ] P.C. Vango was cross-examined about the indicia underlying her opinion that Mr. Bajwa was impaired by alcohol and her reasonable and probable grounds to arrest him and make a breath demand. She cited the physical symptoms of unsteadiness, red, glossy eyes, doziness, slurred speech, the driving reported in the radio call and her observation of two bottles of pop and cups in the car. [ 9 ] Pursuant to the arrest, P.C. Vango handcuffed Mr.

Bajwa and did a pat down search before placing him in the rear of her scout car at 12:48 a.m. She gave him his rights to counsel, cautioned him and made a breath demand to which he did not respond. P.C. Vango then returned to Mr. Bajwa’s vehicle to secure it and noticed several empty, non-disposable glasses inside. She smelled the liquid in one of the glasses and noted an odour of alcoholic beverage mixed with some kind of carbonated drink. Behind the front passenger seat, P.C. Vango found a 750 millilitre bottle of Crown Royal liquor with about an inch of alcohol remaining. [ 10 ] P.C.

Vango then advised the dispatcher that she had someone in custody and needed a breathalyzer technician. She also spoke to Mr. Bajwa’s sister and then investigated another car for speeding on the road. After pulling over the other car, P.C. Vango transported Mr. Bajwa to 41 Division for a breath test. Mr. Bajwa cried the whole way in the scout car, saying things like “I want my mummy. I’m sorry. Please give me one chance.” He also told the police that he drove a truck for a living and needed to drive, that he was sorry and it was his first time and his mom was sick.

When they arrived at 41 Division at 1:29 a.m., P.C. Vango smelled a very, very strong odour of alcohol even over the pungent cologne that Mr. Bajwa was wearing. The odour came from Mr. Bajwa’s mouth and increased when he talked. After being paraded and speaking to duty counsel, Mr. Bajwa provided breath samples into the approved instrument, yielding blood alcohol concentration results of 191 and 210 milligrams of alcohol in 100 millilitres of blood. [ 11 ] The booking and breath test videos were played in court. In the videos, Mr.

Bajwa was visibly emotional and at times had some difficulty understanding what was said to him. The arresting officer and booking sergeant were not particularly kind to him. One yelled at him to “shut up” and the other called him a “silly bugger.” [ 12 ] P.C. Vango’s partner that evening was P.C. Eric Skrepnek. He testified that he had the initial contact with Mr. Bajwa when he knocked on the glass of his window and asked him to get out of the vehicle. As soon as the door of the vehicle opened, P.C. Skrepnek noticed a strong smell of an alcoholic beverage coming from within the vehicle.

He had a very brief conversation with Mr. Bajwa during which he asked whether he had had anything to drink and Mr. Bajwa said “nothing.” P.C. Skrepnek observed that Mr. Bajwa’s eyes were glossy, his speech was slurred and it appeared that he was intoxicated by alcohol. At that point, P.C. Vango placed Mr. Bajwa under arrest. He believed that, before the arrest, P.C. Vango mentioned that she had found a bottle or some evidence of an alcoholic beverage in Mr. Bajwa’s vehicle. In cross-examination, P.C. Skrepnek could not recall whether P.C.

Vango told him that what she saw in the car was soda and cups but not alcohol. In re-examination, P.C. Skrepnek was asked why he said that P.C. Vango mentioned evidence of an alcoholic beverage in the vehicle and he responded that this is what she had said but he did not remember personally seeing it. ISSUE [ 13 ] Through his admissions on behalf of Mr. Bajwa, Mr. DeRubeis pared this case down to one issue, namely whether P.C. Vango had reasonable and probable grounds to arrest Mr. Bajwa for impaired care and control and demand a sample of his breath. He did not contest that P.C.

Vango subjectively believed that Mr. Bajwa was impaired by alcohol, but submitted that this belief was not objectively reasonable. The most significant deficiency relied upon by Mr. DeRubeis was the absence of any evidence expressly linking P.C. Vango’s opinion that Mr. Bajwa was impaired with alcohol consumption. The Charter application alleged breaches of Mr. Bajwa’s s. 7 and s. 8 Charter rights, all flowing from what Mr. DeRubeis argued was an unlawful arrest and demand. The essence of Mr.

DeRubeis’s submission was that the discovery of the Crown Royal bottle, the glasses, the taking of the breathalyser samples and all evidence subsequent to arrest all flowed from breaches of sections 7 and 8. He and Crown counsel agreed that if that evidence is excluded pursuant to s. 24(2), the Crown’s case must fail. Alternatively, if the evidence is not excluded, Mr. Bajwa must be found guilty. ANALYSIS Alleged Breaches and Onus of Proof [ 14 ] Mr. DeRubeis asserted that he was alleging s. 7 and s. 8 Charter breaches. Neither he nor Crown Counsel distinguished between s. 7 and s. 8 in their submissions.

Further, neither counsel invoked s. 9 of the Charter or challenged grounds or evidence

obtained from an allegedly illegal detention flowing from an unlawful arrest. Rather, they focused exclusively on the question ofwhether P.C. Vango’s grounds were objectively reasonable despite the fact that there was no specific evidence of alcohol consumptionsuch as a smell, an admission or an observation of an alcoholic beverage. Although the burden of demonstrating a s. 7 (or for that mattera s. 9) breach lies with Mr. Bajwa, the most logical approach in this case is to simply determine whether the Crown has met its onusunder s. 8. Because the seizure of the liquor and glasses from Mr.

Bajwa’s car and the breath samples was warrantless, the onus is on theCrown to prove on a balance of probabilities that they were reasonable. As stated by the Supreme Court of Canada in R. v. Bernshaw,“The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as aprecondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.” [2] Further, as summarized byChief Justice McLachlin and Justice Charron on behalf of the Supreme Court of Canada in R. v.

Shepherd,[3] a search will be reasonableif it is authorized by law, the law itself is reasonable and the manner in which the search is carried out is reasonable. In this case, theonly issue is whether P.C. Vango complied with the statutory precondition of objectively reasonable grounds for an arrest and a breathdemand. Since the underlying factual constellation and issue are the same, that higher s. 8 threshold must be satisfied in any event toestablish whether the alleged breaches occurred.

Legal Test for Reasonable and Probable Grounds [15] The content and context of reasonable and probable grounds in drinking and driving cases was comprehensively reviewedby the Ontario Court of Appeal in the recent case of R. v. Bush.[4] As a starting point, the Court noted that: Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his orher body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code.

At the otherend of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motorvehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit. Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.

Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believe thata person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving ‘over80.’” Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case: see Censoni,[2001] O.J. No. 5189 (S.C.) at para. 31 and R. v. Shepherd, supra, at para. 23. Reasonable and probable grounds have both a subjective and an objective component.

The subjective component requires the officer tohave an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254 at para. 51. Theofficer’s belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001] O.J. No. 377 (C.A.) at para.3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude thatthere were indeed reasonable and probable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241 at p. 250.(R. v.

Bush, supra, at paras. 36-38) [16] As I have indicated, the point of dispute in this case is whether P.C. Vango’s honest belief that Mr. Bajwa committed theoffence of impaired care and control was supported by objective facts, such that a reasonable person in her position would be able toconclude that there were reasonable and probable grounds for the arrest. In determining that point, the test, in accordance with thedefinition of impairment set out by the Supreme Court of Canada in R. v. Stellato, is whether there were, objectively, reasonable andprobable grounds to believe that Mr.

Bajwa’s ability to have care and control of the vehicle was even slightly impaired by theconsumption of alcohol. There is no necessity that a suspect be in a “state of extreme intoxication before the officer has reasonable andprobable grounds to arrest.”[5] The reasonable and probable grounds standard in the context of a breath demand is not an “onerous” oneand must not be equated with testing trial evidence.

On the other hand, it must also not be so diluted as to threaten individualfreedom.[6] [17] The assessment of whether the officer’s grounds met this standard is a fact-based exercise mandating comprehensiveconsideration of the totality of circumstances. It is not a checklist on which a minimum number of stock indicia must be ticked off. Asstated in R. v.

Bush,[7] “[t]he absence of some indicia that are often found in impaired drivers does not necessarily undermine a findingof reasonable and probable grounds based on the observed indicia and available information.” It is also essential to keep in mind thatpolice in a drinking and driving investigation often need to make quick decisions in circumstances that may be volatile and rapidlychanging.[8] [18] Defence counsel did not disagree with these general propositions of law.

He submitted, however, that some specificindication of alcohol consumption is an indispensible component of reasonable and probable grounds, since the offence in s. 253 of theCriminal Code incorporates impairment by alcohol as a constituent element. He also argued that, from a policy perspective, it isessential to maintain a minimum requisite standard before entitling police to detain individuals for breath samples.

He raised the interrorem spectre of police assuming licence to arrest any erratic driver for impaired driving without accountability if the courts do notinsist upon unambiguous evidence of alcohol consumption as an essential component of objective grounds. As observed in R. v.Censoni,[9] “no one would suggest that compliance with the constitution could be honoured if the police were afforded an absolute andunlimited discretion to demand a breath sample or to arrest for impaired driving.” [19] While the defence position has some logical appeal, it is contradicted by precedent. In R. v.

Heideman,[10] JusticeNordheimer rejected this argument in dismissing a

summary conviction appeal which raised precisely this contention. Relying on R. v.Stellato, supra, and R. v. Costello,[11]Justice Nordheimer reasoned as follows:

The defendant argues that the police officer did not have reasonable and probable grounds to arrest him because there was no evidence that could lead the police officer to believe that any impairment from which the defendant was suffering was as a result of alcohol. The defendant says that there was no evidence of an odour of alcohol nor any evidence of consumption of alcohol. I do not accept that submission. As the trial judge found, the officer observed the classic physical symptoms of impairment which followed on abnormal driving of the automobile.

In my view, the totality of those observations were sufficient to provide a proper foundation for reasonable and probable grounds to make the arrest for the purpose of having a breathalyzer test administered. There is no requirement that there be direct evidence of alcohol consumption either through the individual or by statement from him or her, as opposed to a reasonable inference, in order to satisfy the requirement of reasonable and probable grounds. [ 20 ] Justice Nordheimer’s analysis in Heideman, supra, has been invoked in several subsequent cases, including R. v. Thanabalasingam [12] and R. v.

Reilly. [13] Most recently, Justice Barnes of our court referred to Heideman in R. v. Mohmedi , [14] and noted that: The absence of some factors that are sometimes found in persons who commit s. 253 offences does not, on its own, without more, undermine an officer’s conclusion that he or she had reasonable and probable grounds to make the demand. The trial judge must still assess the other factors relied upon by the officer to determine whether the requisite reasonable and probable grounds for the demand are present: R. v.

Costello, supra, para. 93 I do not accept the defence submission that the fact that the officer did not detect an odour of alcohol vitiates his opinion that he had reasonable and probable grounds. In fact, the detection of an odour of alcohol in a s. 253 offence, although logical and commonplace, is not a prerequisite to a conclusion that the grounds formed by an officer is reasonable and probable: R. v. Heideman, supra.

In the result in Mohmedi, Justice Barnes found no s. 8 breach where the s. 254(3) Criminal Code demand was based on information that the accused was almost in a collision with another vehicle, drove at fluctuating speeds, travelled on the curb at one point, staggered back and forth as he walked to his trunk, walked into his vehicle and had slurred speech and glossy eyes. [ 21 ] The conclusions reached in Heideman and Mohmedi are, in my view, reinforced by the analysis and approach set out by the Ontario Court of Appeal in R. v. Bush .

Citing prior authorities including Costello and Shepherd , the court in Bush emphasized that “the absence of some indicators that are commonly found in an impaired driver” do not necessarily undermine a finding of reasonable and probable grounds. Further, “in making his or her determination, the officer is not required to accept every explanation or statement made by the suspect… the important fact is not whether the officer’s belief was accurate.

It is whether it was reasonable at the time of the arrest.” The court in Bush also expressly addressed the issue of whether the arresting officer has asked a suspect if he has consumed alcohol.

In Bush , the question was not asked, but the court observed that if the suspect “said he had one beer or nothing to drink, the officer was not required to accept what he was told and terminate the investigation.” [15] [ 22 ] Thus, there may be factual circumstances in which the totality of indicia support a reasonable inference by a police officer that a driver is impaired by alcohol even without explicit evidence of alcohol consumption such as a smell or an admission. [16] This approach does not equate with the “absolute and unlimited discretion to demand a breath sample” threatened by defence counsel.

Rather, it requires a principled, detailed, case-by-case analysis to determine whether the absence of express indicators of alcohol consumption are compensated for by the cumulative impact of all of the indicia and factual circumstances such that the inference of alcohol impairment is objectively reasonable. Because impairment by alcohol in particular is a critical component of an offence under s. 253 of the Criminal Code , the situations in which there are sufficient indicia that do not include overt evidence of alcohol consumption are likely to be rare. The question here is whether this is such a case.

Application of the Legal Test for Reasonable and Probable Grounds to This Case [ 23 ] Aside from one contested point, the factual foundation for the Charter application is essentially undisputed. Crown counsel suggested that P.C. Vango may have alluded to a smell of alcohol prior to making the arrest and demand. My scrutiny of the evidence reveals no such reference. Accordingly, the basic facts are uncontroversial. Summarized, the details most pertinent to the question of whether P.C. Vango’s grounds were objectively reasonable are as follows: • P.C.

Vango was responding to the dispatched radio call for a possible impaired driver; • She did not make a specific note of the text of the radio call in her memo book but recalled that there was a concern that the driver had almost hit another vehicle; • On her way to the address where the driver was reported to be, P.C. Vango was flagged down and spoke briefly with the witnesses who had originally called 911; • P.C. Vango observed Mr. Bajwa to be seated in the driver’s seat of the vehicle with the keys in the ignition; • P.C. Vango noted that the engine of the car was still warm; • P.C. Skrepnek, P.C.

Vango’s escort, spoke to Mr. Bajwa and asked him to get out of the vehicle; • P.C. Vango personally noted that Mr. Bajwa was unsteady on his feet, was dozy, slurred his speech as he spoke with P.C. Skrepnek and had glossy, red eyes; • When P.C. Skrepnek asked Mr. Bajwa if he had consumed any alcohol, Mr. Bajwa indicated that he had not;

• P.C. Vango observed pop bottles and cups inside the car; • P.C. Vango did not smell or see any alcohol prior to forming her opinion that Mr. Bajwa had care and control of the motor vehicle while impaired by alcohol; • P.C. Skrepnek, who actually spoke with Mr. Bajwa initially, noticed a strong smell of an alcoholic beverage coming from inside the vehicle as soon as Mr. Bajwa opened the door; • After the arrest and demand, P.C. Vango noticed a nearly empty bottle of Crown Royal and glasses inside the car. The liquid in one of the glasses smelled strongly of an alcoholic beverage mixed with soda; • Mr.

Bajwa cried in the scout car during the whole trip to 41 Division, saying things like “I want my Mummy. I’m sorry. Please give me one chance.” • Once they arrived at 41 Division, P.C. Vango smelled a very, very strong odour of alcohol coming from Mr. Bajwa’s mouth that even penetrated the extremely strong cologne he was wearing; and • Mr. Bajwa continued to be emotional at the police station, as demonstrated in the booking and breath test videos. [ 24 ] In my view, the indicia observed by P.C.

Vango prior to the arrest and demand, even assessed cumulatively and within all the circumstances, did not amount to objectively reasonable grounds for concluding that Mr. Bajwa was impaired by alcohol. The information that P.C. Vango received about the nature of the driving was brief and general. The physical indicia that she observed were consistent with alcohol consumption but relatively minor and somewhat generic. Mr. Bajwa explicitly denied consuming alcohol and, while not determinative, that denial certainly could not add to the reasonableness of P.C. Vango’s grounds. Further, the soda and glasses that P.C.

Vango observed did not suggest to her, nor would they necessarily suggest to a reasonable person, that Mr. Bajwa had been drinking alcohol in his vehicle. That said, I also note that P.C. Vango’s opinion that Mr. Bajwa was impaired by alcohol was genuinely held and not surprising, given her eleven years’ experience as a police officer and the classic indicia that she did observe. Had the indicia been more pronounced, (for example, “extremely” slurred speech, notable motor control difficulties or more detailed information about erratic driving), then P.C.

Vango may have had a foundation for the reasonable inference that Mr. Bajwa’s conduct was attributable to impairment by alcohol consumption. If so, P.C. Vango’s belief could potentially have met the reasonable and probable grounds standard. On the facts of this case, however, her grounds fell short. [ 25 ] Accordingly, P.C. Vango was not entitled to arrest Mr. Bajwa or to make a breath demand.

Her search of his car, subsequent observations of alcohol consumption and obtaining his breath samples represented breaches of his Charter s. 8 rights. (I also note that, while it was not argued, there could be an implicit breach of Mr. Bajwa’s s. 9 rights relating to the evidence obtained pursuant to his unlawful arrest and detention.) Should the evidence be excluded pursuant to s. 24(2) of the Charter ? [ 26 ] Having found that P.C. Vango did indeed violate Mr.

Bajwa’s Charter rights, I must decide whether, having regard to all the circumstances, the admission of evidence derived from the breach in these proceedings would bring the administration of justice into disrepute. That decision requires the application of the reconfigured s. 24(2) test set out by the Supreme Court of Canada in R. v. Grant . [17] The test requires evaluation along three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact on the Charter-protected interests of the accused; and (3) society’s interest in adjudication on the merits.

Having reviewed those three lines of inquiry, the court must determine, whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. [18] (

i) Seriousness of the Charter -Infringing State Conduct [ 27 ] The crucial question under this line of inquiry is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. [19] The more severe or deliberate the state conduct leading to the breach, the more likely that the courts must disassociate themselves from that conduct by excluding the evidence.

The spectrum of seriousness was defined as follows in Grant : At one end of the spectrum, admission of the evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. [20] Accordingly, the first step is to assess how serious the breach was in this case. [ 28 ] In my view, P.C.

Vango’s violation of Mr. Bajwa’s Charter rights falls towards the lower end of the spectrum. P.C. Vango subjectively believed that she had reasonable and probable grounds to arrest Mr. Bajwa for impaired care and control of a motor

vehicle. Her grounds fell short of the standard of objective reasonableness but not by an extreme margin. This was not a case where there was no evidence or information available at the scene to support P.C. Vango’s subjective belief. A brief conversation with P.C. Skrepnek, who actually spoke to Mr. Bajwa, or standing closer when the car door opened, would easily have revealed to P.C. Vango that there was a strong odour of alcohol coming from the car. Mr. Bajwa was the sole occupant of the car, sitting in the driver’s seat.

He was dozy, his speech was slurred, his eyes were red and glossy and he was unsteady on his feet when he got out of the car. Combined with the information that he had been driving erratically enough for a citizen to call 911, these indicia would have satisfied the objective component of reasonable and probable grounds according to the test as articulated by the Ontario Court of Appeal in Bush . [21] The arrest was not unfounded, it was premature. [ 29 ] Subjectively believing that she had sufficient grounds to arrest Mr. Bajwa for impaired driving, P.C.

Vango took the appropriate and necessary step of securing his car, since the keys were still in the ignition. At this point, she discovered the bottle of Crown Royal and the glasses smelling of alcohol. Although looking inside the car while securing it and discovering the alcohol flowed from the initial breach, these actions were also undertaken in good faith. At this stage, acknowledging that her observation of the open alcohol in the car was connected with the illegal arrest and demand, P.C. Vango had ample objective grounds to arrest Mr. Bajwa for impaired driving. Mr.

Bajwa’s conduct in the scout car on the way to the police station was also consistent with impairment by alcohol and once they arrived, P.C. Vango smelled a definite and very strong odour of alcohol coming from Mr. Bajwa’s mouth, even over the strong cologne he wore. [ 30 ] There was no indication that P.C. Vango wilfully or recklessly disregarded Mr. Bajwa’s Charter rights.

As established by the jurisprudence, [22] a smell of alcohol is not an absolute pre-requisite for reasonable and probable grounds to believe that an individual has committed the offence of impaired driving or impaired care and control of a motor vehicle. Although P.C. Vango breached Mr. Bajwa’s Charter rights, she did so in good faith.

In these circumstances, the need for the court to disassociate itself from the police conduct is reduced. [23] (ii) Impact on the Charter -Protected Interests of the Accused [ 31 ] As set out in Grant , “the impact of the Charter breach on the Charter-protected interests of the accused may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.” [24] In this case, the s. 8 breach has two parts: the search of Mr. Bajwa’s car leading to the discovery of the liquor and glasses and the seizure of his breath. [ 32 ] With respect to the search of his car, I note that Mr.

Bajwa did not endure the greater incursion on his reasonable expectation of privacy associated with the search of a dwelling house, or the compromise of personal dignity inherent in a strip search or a body cavity search. As confirmed in R. v. Buhay [25] and R. v. Grant , [26] the search of an automobile generally attracts a lesser expectation of privacy. While acknowledging that the car was parked in Mr. Bajwa’s driveway, I would not characterize the search and discovery of the liquor and glasses as having a serious impact on Mr.

Bajwa’s privacy. [ 33 ] Regarding the breath tests, I must examine the seriousness of the intrusion on the accused’s bodily integrity. Having exhaustively reviewed the jurisprudential evolution of s. 24(2) in the context of conscripted bodily evidence, the court in Grant concluded that the method of collection of breath sample evidence is relatively non-intrusive. [27] Mr. Bajwa did not experience the more extreme bodily intrusion of, for example, the forcible taking of blood or dental impressions. [28] As with the search of the car, I find that the seizure of breath was at the more moderate end of intrusion Mr.

Bajwa’s s. 8 rights. [ 34 ] Defence counsel submitted that, in considering the impact on Mr. Bajwa’s Charter-protected interests, I should take into account everything that Mr. Bajwa underwent including being arrested, placed in the police cruiser, photographed, fingerprinted and having his licence suspended when there was “no evidence” of consumption. Having found, however, that P.C. Vango did indeed have both subjective and objective grounds to make the arrest and demand once she was confronted with the liquor and alcohol-infused glasses in Mr.

Bajwa’s car, I do not find that the additional sequellae cited by defence counsel significantly compounded the degree of intrusion on Mr. Bajwa’s Charter rights. In reaching this conclusion, I recognize that P.C. Vango’s discovery of the alcohol resulted from her securing the car pursuant to the original breach. I will take this particular factual sequence into account in ultimately determining whether the evidence should be excluded under s. 24(2). Nevertheless, given the fact that, within moments of the arrest, P.C.

Vango did have sufficient grounds, the further consequences of the arrest as described by defence counsel do not substantially enhance the impact of the violation on Mr. Bajwa’s Charter-protected interests. (iii) Society’s Interest in Adjudication on the Merits [ 35 ] In Grant , the court explained that: Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

This inquiry reflects society’s ‘collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law … Thus the court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence. [29] In this respect, the reliability of the evidence and its importance to the prosecution’s case are highly relevant to the public interest in truth-finding. [30] In addressing specific types of evidence that courts typically consider for exclusion under s. 24(2), Grant offered

insight into non-bodily physical evidence and breath samples. Non-bodily physical evidence, like the bottle and glasses in Mr. Bajwa’s car, do not generally raise reliability issues related to the Charter breach. This consideration tends to weigh in favour of admission. [31] Grant also confirmed that breath samples are acknowledged to be generally reliable. [32] Further, in this case, the Crown correctly pointed out that excluding the evidence would essentially gut the prosecution.

Accordingly, my findings pursuant the third line of the Grant inquiry favour admission of the evidence. (iv) Effect of the Admission of the Evidence [ 36 ] Taking into account all of the circumstances, I must balance the three lines of assessment mandated in Grant and determine whether the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute. [33] The breaches themselves were minor. The impact on Mr.

Bajwa’s Charter-protected interests was relatively minimal and its admission would serve rather than detract from the public interest in the truth-seeking function of the criminal trial process, given the reliability and importance of the evidence to the prosecution case.

I am guided, as well, by the following comments of the court in Grant on the ultimate effect of admitting or excluding evidence flowing from a Charter breach: 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. [34] I find that this case falls into the latter category identified in Grant. The violation was not egregious. The intrusion on Mr. Bajwa’s privacy, and bodily integrity and dignity was not severe. The breath sample evidence was reliable and essential to the prosecution case.

Accordingly, the admission of the evidence would not bring the administration of justice into disrepute. Released: April 26, 2011 Signed: “Justice Bloomenfeld”