R. v. Fleming, 2018 ONCJ 843

ONTARIO COURT OF JUSTICE CITATION: R. v. Fleming , 2018 ONCJ 843 DATE: November 9, 2018 BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID FLEMING Before Justice P.

Harris Reasons for Judgment released November 9, 2018 Erin Winocur........................................................................................ counsel for the Crown Stephen Price ................................................ counsel for the defendant David Fleming HARRIS J.: REASONS FOR JUDGMENT [ 1 ] David Fleming is charged with operating a motor vehicle in Toronto on March 10, 2015 when his ability to operate a motor vehicle was impaired by alcohol, and his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood. [ 2 ] Mr.

Fleming alleges breaches under sections 8 and 9 and applies to exclude the breath tests pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms . [ 3 ] There is no issue that Mr. Fleming was operating his motor vehicle on March 10, 2015, or that the two Intoxilyzer tests both showed results in excess of 80 mgs of alcohol in 100 millilitres of his blood. THE EVIDENCE [ 4 ] On March 10, 2015, David Fleming made a prohibited right turn (11:32 pm) at Bloor and Keele Streets in Toronto, and proceeded northbound on Keele Street one block. P.C.

Simpson thought he was travelling at a fast speed on Keele Street but did not know for sure if he was over the 50 Km speed limit. Mr. Fleming turned right on Glenlake Avenue and travelled east one block to Indian Grove. When the police vehicle approached his car with emergency equipment activated, he was stopped at a stop sign at Indian Grove. The officer driving the police vehicle expected the car to stop or pull over in some manner. She agreed in cross-examination that some drivers don’t pull over right away. When it started to move forward and turn, P.C.

Cruden said: We hit the horn to get it to stop.” [ 5 ] The video recording of the scene shows Mr. Fleming hesitating momentarily at the stop sign then slowly turning right onto Indian Grove and pulling over at a snow bank. At 11:33 pm, P.C. Simpson and her partner P.C. Cruden approached the Fleming vehicle and P.C. Simpson spoke to the driver. According to P.C. Simpson, Mr. Fleming had difficulty removing his insurance and ownership from a small plastic folder that was in the glove compartment, but no difficulty retrieving his license from his wallet. He said he had a “couple beer” at a local restaurant.

[ 6 ] P.C. Simpson noted the defendant’s clothing was “sloppy” and there was a stain on his clothes as well. In her opinion, his “fine motor skills seemed to be impaired” because of his difficulty producing his ownership and insurance from the plastic folder. She detected an odour of alcohol on his breath. Also noted was the fact Mr. Fleming’s rear lights were not on. She observed that his speech was slurred and testified it remained slurred throughout her dealings with the accused.

On the basis of the foregoing as well as “the place where he had been and what he was doing before” and the “manner in which the vehicle actually pulled over,” she formed the opinion “the accused was impaired by alcohol,” made an arrest for impaired operation and an ASD demand. While this was not one of her enumerated grounds to arrest the defendant for ‘impaired operation’, she noted that he stumbled upon exiting his vehicle. [ 7 ] P.C. Cruden’s only observations were that:

(1) His rear lights were not on;

(2) When the police vehicle, with emergency equipment activated, approached the Fleming vehicle, which “was stopped at a stop sign, he waited and turned southbound onto Indian Road (sic) from Glenlake even though the emergency lights and siren were on.” She was asked: “In a drinking, driving case you would want to make notes of everything you saw, heard or smell that you perceive to be an indicium of impairment?” She replied, “Yes.” She later amended that answer by stating: “If I was the initial officer dealing with the male I would make those observations.” She also commented: “Well I didn’t have much dealings with him, so my observations were mostly the vehicle and how long it took to pull over.” She agreed that she “saw the accused exit the vehicle” but it was clear from her testimony she didn’t see him stumble. “And you were standing facing the door of the car when the accused exited?” She replied, “Yes.” Did you make any note of anything unusual about the manner in which he does that?” Answer: “No I don’t.” She also mentioned that at times his voice was loud in the police vehicle and she thought, “It seems like a slow pace to speak.” “But I don’t know if that’s normal for him or..” [ 8 ] Upon arrest outside his car, Mr.

Fleming was heard to say: “The cuffs are painful.” He was handcuffed behind his back from 11:45 pm until he was presented to the Booking office at 22 Division at about 12:15 am. He was transported to 22 Division in the rear seat of the police vehicle, while handcuffed behind his back and on a number of occasions he complained loudly about the cuffs being too tight causing pain and discomfort. When the police vehicle reached the 22 Division sally port, after considerable discussion in the vehicle about the pain he was experiencing, Mr. Fleming explained that he had recently had surgery on his wrist.

At 22 Division the officers told the Officer in Charge that Mr. Fleming was cooperating but complaining about his hands (that the cuffs were too tight). [ 9 ] The defendant provided two breath samples directly into an approved instrument at 22 Division and was told by at least one of the arresting officers and the breath technician that he would be going home after the breath test and paperwork was completed. Mr. Fleming’s wife, Lisa Fleming testified she was called by P.C. Simpson and told that she could come to the station to “get him.” She stated she was prepared to drive to the police division to receive Mr.

Fleming and drive him home. She called the station five times to ascertain when he would be released and was finally advised he would be held at 11 Division until the next day. Mr. Fleming was in a position to be released from 22 Division at 2:09 am but was not released until 9:30 am from 11 Division, a total of 6 hours, 21 minutes later. [ 10 ] Sgt. Woodhouse testified he was the Officer in Charge of 22 Division. He gave evidence that he did not have any notes about impairment in regards to Mr. Fleming.

He testified he vaguely recalled speaking to the 11 division officers (P.C.s Simpson and Cruden) and asking about the breath readings (187 and 182 mgs. percent) and he stated: “I asked them to take him back to 11 Division so his body could get rid of some of the alcohol.” Sgt. Woodhouse had no contact with Mr. Fleming after the Booking interview.

He didn’t recall having a conversation as to whether there was a responsible person who could “pick him up.” He was asked: “Would you have released him to a responsible adult?” He replied: “…As long as I am satisfied that they – they would understand and that they were safe walking out the front door. Then yeah, I – I see it, a strong possibility that I would release somebody on a Form 9 for that.” [ 11 ] David Fleming testified that he was at the Mugshots Restaurant for lunch and dinner.

He did not count the number of drinks he had. (The receipt found on him indicated he paid his bill at 9:43 pm about an hour and 50 minutes before he was seen driving on Keele Street). He stated that when he entered his vehicle, his walking and balance were normal and he did not have any concerns about his ability to drive. Mr.

Fleming gave evidence that when the police pulled up behind him at Indian Grove, he was not sure whether “they targeted me or wanted to get around me.” He says he inched forward and when it became clear they had targeted him, he pulled over to a “place of safety” at a snow bank. [ 12 ] He was asked about his tail lights and he testified that his turn signals were malfunctioning. He said his indicator lever was coming out and he thought the “whole headlight system was effected.” He did not notice his tail lights were not on.

The defendant testified he produced his driver’s license and an expired insurance slip from his wallet in his back pocket without any problem. He stated his ownership and insurance were in a plastic pocket he retrieved from the “glove box” and he had some difficulty removing his insurance card from the “frozen pocket of the portfolio.” He stated he did not stumble getting out of his car. He described having some difficulty getting into the back of the police car.

At 6’1” and 205 lbs, he said there was “no room.” He said he couldn’t use his hands to get in the car, “because they were pinned behind my back with cuffs.” He stated, “They sat me down on top of my hands which were sore.” He testified he had carpel tunnel surgery on his wrists “three months before.” He gave evidence he told the officers his hands “were sore, he had surgery”, but “they did nothing.” [ 13 ] Mr. Fleming testified that the breath technician told him that he would be released after the paperwork was done.

He said he called his wife and he told her where to attend to “pick me up after the paperwork was complete.” He gave evidence that he was not interviewed by any officer-in-charge about whether he could be released. He stated P.C. Simpson said the Staff Sergeant at 22 Division “would ask me some questions and release me.” P.C.

Cruden was asked: “So the accused indicated (on video) he thought he was being released, is that correct?” She agreed that her partner said “sure but we have to wait for the sergeant to give approval.” He stated he never saw a Staff Sergeant and was transferred to 11 division and found out he was not going to be released from Sgt. Meech at that Division. Under cross-examination, Mr. Fleming agreed he called the arresting officer (after stepping out of his car) “Sir” (his actual words were “Sir..

M’am”), he had a pasta stain on his tie and his voice was loud and he was discourteous at times when speaking to the arresting officers in the police vehicle because his hands were getting “very sore by the minute” because the “cuffs were too tight but they refused to do anything.” THE ISSUES [ 14 ] The issues before me are:

(1) Whether there were reasonable and probable grounds to make a demand for breath samples from the defendant pursuant to s.254(3), viewed objectively, and additionally, was there a breach of his right to be secure against unreasonable search and seizure asguaranteed by

section 8 of the Charter, and his right not to be arbitrarily detained as guaranteed by

section 9 and if so, should the breathtest results be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms;

(2) Whether the detention of the defendant following the breath tests was arbitrary and a breach of s. 9 of the Charter and if so,should that breach, alone or in combination with other Charter breaches, result in the exclusion of the breath test results pursuant to s.24(2);

(3) Whether the Crown has proven beyond a reasonable doubt that Mr. Fleming’s ability to operate a motor vehicle was impaired byalcohol. REASONABLE AND PROBABLE GROUNDS [15] Sections 8 and 9 of the Canadian Charter of Rights and Freedoms provide that: 8. Everyone has the right to be secure against unreasonable search or seizure. 9.

Everyone has the right not to be arbitrarily detained or imprisoned. [16] On the s. 8 application the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search orseizure was reasonable given that the search and seizure of breath samples was a warrantless one. Of course, as with most Charterapplications, the defendant bears the burden of persuading the court on a balance of probabilities that his s. 9 Charter rights have beenbreached by reason of an arbitrary detention. [17] Section 254(3) of the Criminal Code provides that:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, 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, ifany, of alcohol in the person's blood, ... [18] Accordingly, the Crown bears the onus of proving the police officer making the breath demand had the necessary reasonableand probable grounds to do so. [19] I have read and considered all of the authorities submitted by counsel even if I do not refer to each judgment in this decision.Any analysis of reasonable grounds must begin with an approach to the issues articulated in R. v. Bush 2010 ONCA 554 ,[2010] O.J. No. 3453 (Ont.

C.A.) at paras. 37, 38, 47 and 48: [37] Between suspicion and proof beyond a reasonable doubt lie reasonable and probable grounds. Section 254(3) of the Criminal Codeauthorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable grounds to believe that a person iscommitting or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80'"(emphasis added). Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: seeCensoni, at para. 31; and R. v.

Shepherd, [2009] 2 S.C.R. 527, [2009] S.C.J. No. 35, 2009 SCC 35 , at para. 23. [38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires theofficer to have an honest belief the suspect committed the offence: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, [1994]S.C.J. No. 87, at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, (ON CA), [2001]O.J. No. 377, 9 M.V.R. (4th) 67 (C.A.), at para. 3.

The objective component is satisfied when a reasonable person placed in the positionof the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, (SCC), [1990] 1 S.C.R. 241, [1990] S.C.J. No. 12, at p. 250 S.C.R. CREDIBILITY FINDINGS [20] Constable Simpson testified that she relied upon the following factors in forming her opinion that the defendant’s ability todrive a motor vehicle was impaired: 1. She noted Mr. Fleming’s speech was slurred while conversing with her following the vehicle stop.

She was asked: “You had notrouble understanding what he was saying, correct? Answer: “Correct.” Q: “And if I understand your answer, all the words that came outwere slurred?” Answer: “Yes.” Question: “And I think you told my friend, that his speech remained slurred throughout your dealingswith him?” Answer: “Yes.” 2. She observed that his clothing was “sloppy” and there were stains on his clothes; 3. She noticed his fine motor skills seemed to be impaired. She said “he was struggling to remove his ownership and insurance

documents from a small plastic folder when I was – when I made demand – the demand for those documents and also for removing the driver’s license from his wallet.” Later, under cross-examination, the officer agreed he had no problem producing his driver’s license from his wallet but had difficulty removing his insurance and ownership from a plastic folder: (transcript April 3, 2018, pages 68 to 72). Mr. Fleming testified the insurance and ownership were kept in a plastic case in the glove compartment and were “frozen” and hard to open. P.C.

Simpson was asked: “You notice that people that have nothing to drink sometime have difficulty or fumble with their documents?” Answer: “Yes.” 4. She noticed his tail lights were not on. Mr. Fleming gave evidence the core of the signal lever was coming out and he thought it had affected the lighting system. Additionally, he stated he “did not know anything was wrong with the (rear) lights that day.” 5. She referred to his answers about where he had been and what he had been doing. He said he had lunch and dinner at restaurant call “Mugshots.’ Asked what he had to drink he said: “a couple beer.” 6.

She referred to the fact that the Fleming vehicle did not stop after the police vehicle pulled up behind it. The Fleming vehicle had made a prohibited right turn at 11:31 pm while travelling westbound on Bloor Street at Keele Street. (A right turn is prohibited at all hours of the day). It did come to a full stop at Keele Street and proceeded northbound on Keele Street to Glenlake Avenue. The vehicle then turned right on Glenlake Ave. and came to a stop at Indian Grove at a stop sign. P.C. Simpson pulled up behind the Fleming vehicle at the stop sign with lights and siren on.

The officer testified the vehicle hesitated and then made a right turn and pulled over. She said: “So he gets out of the intersection, makes the right turn, pulls over to the side of the road. Question: “In that 100 metres you didn’t see anything unusual about the driving, other than it didn’t stop for you, would you agree?” Answer: “Yes.” Question: “Does everybody pull over immediately when you put your lights on?” Answer: “Not every single person, no.” I note that P.C. Cruden, the other officer in the police vehicle, gave evidence they sounded the horn at Mr.

Fleming just after he started to move from a stationary position at the stop sign. Mr. Fleming explained why he did not pull over immediately on seeing the police vehicle. “I was not sure they had targeted me or wanted to get around (my car) so I inched forward.” “When I realized they had targeted me I pulled over to a snow bank.” [ 21 ] I am not satisfied that the Crown has established on a balance of probabilities that Constable Simpson had (objectively) reasonable and probable grounds to believe that David Fleming was operating his motor vehicle when his ability to do so was impaired by alcohol.

The six factors enumerated in paragraph 9 above, when considered collectively, melt away into suspicion and conjecture under any degree of scrutiny. [ 22 ] At the time of the arrest, P.C. Simpson had been a member of Toronto Police services for about a year. [ 23 ] The demand she made to the defendant was the ASD demand, the requirement for which was “reasonable suspicion.” While an ASD test is not a required first step, in this case, based on the “indicia” articulated by P.C. Simpson, it would have been the better choice. [ 24 ] P.C. Simpson stated she had no discussion with P.C.

Cruden, her partner that night, about arresting the defendant or about “what to arrest him for.” P.C. Cruden had been a member of Toronto Police Services for twelve years. One might expect that in the natural scheme of police hierarchies, the twelve-year veteran would have been acting in a supervisory capacity and consulting with the rookie officer to determine if there were reasonable grounds or whether there should be a demand for a roadside breath test. That is not what happened. P.C.

Simpson was driving the police vehicle, she went to the driver’s side of the stopped vehicle to investigate and within a period of 4 minutes, she formed her opinion as to the grounds, made an arrest for ‘impaired operation’ and made an ASD demand entirely on her own. [ 25 ] Further, when P.C. Simpson asked for Mr. Fleming’s license and insurance at the driver’s side window. P.C. Cruden was watching from the front passenger window. P.C. Cruden was asked: “did you notice anything unusual about the way he did – provided that to her?

Answer: “No, I did not.” “And in a drinking and driving case, you would want to make notes of anything you saw, heard or smell, that you perceive to be an indicium of impairment.” Answer: “Yes.” She was asked: “I take you’ve had experience where people don’t react properly to being pulled – like being pulled over, they don’t know if they’re being targeted?” Answer: “Some people – sometimes people think we’re just trying to go around them or pass them to go to a call, so they are unsure what to do, that does happen.” [ 26 ] Additionally, P.C.

Cruden was asked: “Do you have any note of anything unusual about the way he was walking?” Answer: “I do not.” She was asked: “I take it you were in a position to hear him speaking?” “Did you make a note of anything unusual about his speech?” Answer: “No.” A further question was posed: “Did you make note of – or do you have any recollection about his facial colour?” Answer: “I don’t have any note.” She was asked if she had any note or recollection of anything unusual about his clothing and she replied that she had no note and no recollection of anything. [ 27 ] P.C. Cruden was asked about how Mr.

Fleming performed in terms of walking into the station at 22 Division and standing before the desk sergeant. She indicated she had no note or memory of anything unusual. To summarize, it was clear from P.C. Cruden’s evidence that she never formed grounds to arrest for ‘impaired operation’ and make an approved instrument demand at the roadside and never made any note or observations that could confirm P.C.

Simpson’s opinion regarding ‘slurred speech’, ‘sloppy clothing’ or ‘fumbling with documents.’ Both officers agreed that not every driver pulls over when a police vehicle, with emergency equipment activated, pulls up behind them. Both officers were aware the defendant had consumed alcohol. (The fact of drinking says nothing about the effect of the alcohol consumption).

And both were aware he was driving a vehicle in which the tail lights were not working. [ 28 ] As has often been discussed in these cases, it is the totality of the circumstances known to the arresting officer – those which undermine the belief as well as those which support it – which must be assessed to determine if the requirement of reasonable grounds has been met: R. v. Cooper [1993] O.J. No. 501 (S.C.) . The only ‘indicia’ common to the two officers who had an equal opportunity to observe, were (

a) the (not uncommon) failure to pull over immediately and (

b) faulty tail lights. These facts severely undermine the credibility and reliability of P.C. Simpson’s evidence. [ 29 ] What serves to reinforce my view that P.C. Simpson did not, objectively speaking, have reasonable grounds - is that not one officer who had contact with Mr. Fleming at 22 Division, observed slurred speech or anything unusual about his clothing, nor could anything unusual about him be observed on video recordings of his interactions at the police divisions. In fact, the breath technician, P.C. Taylor testified that he could not form an opinion about impairment. He said Mr. Fleming’s clothing was neat, there were no issues

with communications or fine motor skills and no slurring of speech. I conclude therefore that the only credible and reliable evidence thatP.C. Simpson observed was that which was confirmed by P.C. Cruden — the smell of alcohol, the hesitation in pulling over and thefaulty tail lights — and considered in its totality, that evidence could not reasonably be said to support more than a suspicion that thedefendant’s ability to operate a motor vehicle was impaired by alcohol. [30] Even though P.C.

Cruden did not observe any difficulty in removing the insurance card and ownership from a plastic folder, Iaccept that that occurred. But in the context of his easy extraction of his license and an expired insurance card from his wallet, and thefact the plastic folder came out of the glove box (at a colder time of the year) in early March, I do not consider this ‘difficulty’ a reliableindicia of impairment. I have concluded the arresting officer did not have reasonable grounds for the intoxilyzer demand or the seizureof the defendant’s breath.

Consequently, the s. 8 Charter rights of the defendant to be secure against unreasonable search and seizurehave been breached. [31] Even the claim that the defendant was slow to respond to the emergency equipment on the police vehicle directing him to pullover, is not persuasive. He was stopped at a stop sign when police pulled up behind him with lights flashing. The only sensible way topull over in this context is to turn right and stop, which is what he did. If he seemed indecisive and slow, it was likely because he did notknow whether the police were interested in him or were just trying to get around him.

Further, he would hardly want to drive around thecorner quickly and cause the police to think he was going to try to flee. In all the circumstances, as described, and as can be observed onthe video recording, I am not satisfied Mr. Fleming made an error in judgment in pulling around the corner slowly when the policearrived. IMPAIRED OPERATION [32] According to R. v. Stellato (SCC), [1994] SCJ No 51 (SCC) if the Crown proves beyond a reasonable doubtthat the accused’s ability to operate a motor vehicle is impaired by alcohol, even slightly impaired, he will be found guilty. As noted inR. v. Doyon

(2015) O.J. No. 1100 (OCJ), “Slight evidence of impairment… is different from… evidence of slight impairment.” In thecase at bar, the evidence to be considered on this issue extends beyond the enumerated grounds for a breath sample demand and includesthe following:

(1) Mr. Fleming was said to have stumbled on exiting his vehicle;

(2) The slurring of speech was said to have beencontinuous throughout P.C. Simpson’s dealings with him;

(3) Mr. Fleming was said to have raised his voice and was discourteous whilein the back of the police vehicle;

(4) Mr. Fleming did not turn his mind to the number of drinks he had at the restaurant;

(5) The breathtechnician observed he had bloodshot eyes. [33] First, as noted above, I find the observation about continuous slurred speech incredible and a figment of P.C. Fleming’simagination since no other officer including her partner noted any such indicia and here was no slurred speech evident on any videorecordings. This finding impacts P.C. Simpson’s reliability as an investigating officer. Second, the senior investigating officer, P.C.Cruden could only confirm two of P.C.

Simpson’s ‘indicia’ - the failure to pull over immediately and the faulty tail lights, two very weakindicators of impaired ability to drive. Third, any casual review of the video of Mr. Fleming’s trip to the Division in the back of thepolice car makes it abundantly clear why he raised his voice at times and was ‘discourteous’ on one occasion. The officers would notrespond to his complaints about the wrist pain he was experiencing (P.C. Cruden did loosen the cuffs one notch at the Division). [34] Fourth, P.C. Cruden was positioned right in front of Mr.

Fleming as he exited his car and noted nothing unusual about thatmovement. In other words, she saw no stumbling. Fifth, the fact Mr. Fleming did not know the number of drinks he had at therestaurant, seems to me to be more a mark of honesty rather than an issue of poor judgment. He did testify he thought his balance andability to walk to his car was “normal.” Sixth, P.C. Taylor, the breath technician may have observed bloodshot eyes, but it was 1:10 amwhen he started his investigation (which could explain the condition of his eyes) and it is more telling that he could not form an opinionabout impairment.

He stated that Mr. Fleming’s clothing was neat, there were no issues with communications or fine motor skills and noslurring of speech. As well, I found no observable indicia of impairment on the video recordings, no unsteadiness, on his feet, noslurring of speech, no confusion, no coordination issues and no failure to recognize where he was and what was taking place.

Indeed, inreference to comments about his style of speaking – the manner in which he spoke in court could be said to be both resonant andponderous, exactly what the officers described. [35] I have concluded that considered cumulatively, the evidence of impairment is weak and slight at best and the reported indiciathat were not confirmed by the more senior officer on scene, unreliable. I am not satisfied beyond a reasonable doubt that the Crown hasadduced evidence of even ‘impairment to a slight degree’ and Mr. Fleming will be found not guilty on that charge.

ARBITRARY DETENTION (POST-TEST DETENTION) [36] The expression “post-test detention” is preferable to “over-holding”, the latter expression importing unhelpful connotationsfrom landlord and tenant law. In the instant case, Mr. Fleming was taken for the Intoxilyzer test and provided with the usual paperworkissuing from that process. By 2:09 am on March 11, 2015 he was in a position to be released but that did not happen. He was transferredto a different police division and detained in custody until 9:30 am. This represents a post-test detention of 6 hours 21 minutes. [37] By all accounts, Sgt.

Stephen Woodhouse was the officer-in-charge of 22 Division where Mr. Fleming was taken for breathtests. His only contact with Mr. Fleming was when the defendant was ‘booked’ into the station and that event was unremarkable. Mr.Fleming stood before him and there were no indications of impairment in the notes taken by Sgt. Woodhouse. This officer had no notesof what happened after the booking process and only a vague recollection of telling the officers to take Mr. Fleming to 11 Division ratherthan releasing him. He vaguely recalled speaking to the 11 Division officers, (P.C. Simpson and P.C.

Cruden) and asking about breathreadings and saying, “Take him back to 11 Division so his body could get rid of some of the alcohol.” [38] Since Sgt. Woodhouse did not have any contact with Mr. Fleming after the booking process and only recalled asking thearresting officers about breath readings, I can only conclude that the decision to detain Mr. Fleming after the breath tests was basedsolely on Mr. Fleming’s breath readings of 187 and 182 mgs. per cent. It is evident there was no assessment made by him of thedefendant’s condition after the breath tests and no attempt to comply with

section 498 of the code.

Section 498 provides that: 498.

(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a

person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of apeace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence describedin paragraph 496(a), (

b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been takenbefore a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, assoon as practicable, (

a) release the person with the intention of compelling their appearance by way of summons; (

b) release the person on their giving a promise to appear; (

c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties inan amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or (

d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before theofficer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer sodirects, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officerdirects. Exception

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officerbelieves, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealtwith under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. [39] In other words, there was no effort made to determine whether, on reasonable grounds in the public interest, it was necessary todetain Mr. Fleming overnight to (

a) prevent the continuation of the offence or the commission of another offence, or (

b) ensure that hewould attend court if released. It is noteworthy that the sole reason offered for the overnight detention was the accused’s safety. [40] First, the safety of the accused is not a factor for consideration in deciding whether to detain under

section 498. Secondly, Sgt.Woodhouse testified that if he was told there was a “responsible person who could take him home”, and he was “satisfied they are safe”,“there was “a strong possibility I would release on that basis.” In fact, Lisa Fleming, the defendant’s wife, was, by all accounts, thatresponsible person.

She testified she had been called by the arresting officer and told her husband would be released and she indicatedshe was ready to drive to the station to pick him up. (She stated she called the station five times only to be told he had been taken to 11Division for the night and would be released in the morning). The fact is Sgt. Woodhouse never asked about whether he could bereleased to a responsible person. It was apparent he did not understand his statutory obligations under

section 498 of the Code orrecognize that Mr. Fleming’s constitutional rights under s. 9 of the Charter were engaged in respect to any decision to detain himovernight. [41] I find Justice Durno’s approach to post-test detention persuasive. In R. v. Price 2010 ONSC 1898 , [2010] O.J. No.1587 (S.C.J.) he found that there had to be an actual assessment of the detained person’s circumstances in order to comply with theconstitutional obligations under

section 9 of the Charter. He held that “permitting the blood alcohol level to be the sole determinantresults in too narrow a focus.” A list of the appropriate considerations would include: “the accused’s blood alcohol level”, “the accused’slevel of comprehension”, “whether there was a responsible person available to pick him up”, etc. [42] However after careful consideration, I have concluded that R. v. Price is not the law in Ontario. In R. v.

Sapusak [1998] O.J.No. 4148 (C.A.) the Ontario Court of Appeal held (in the context of a 7 hour post-test detention): We are not persuaded that the police, in light of the 130 mg reading, were not justified in detaining the appellant for his own protection. [43] And in R. v. Iseler (ON CA), [2004] O.J.

No. 4332 (C.A.) the Court of Appeal referred to Sapusak withapproval implying that a decision to detain for 7 hours to lower the blood alcohol levels was least an assessment and therefore notarbitrary and that detention was distinguishable from Iseler where no assessment was made of that accused for 11 hours, resulting in a s.9 Charter violation. [44] It seems the law is now abundantly clear that when there is no assessment of the detainee, and no reason given for the detention(such as a decision to reduce an accused’s blood alcohol levels), that detention is arbitrary.

However a decision to hold a person incustody for seven hours while their blood alcohol level falls below 50 mgs. was held not to be arbitrary (Sapusak). That is precisely whatoccurred in the instant case and on the basis of these binding appellate authorities there can be no finding of a

section 9 Charter breach. [45] Further if I’m incorrect about this determination, what still remains in terms of an application under s. 24(2) is aninsurmountable obstacle in the form of R. v. Pino 2016 ONCA 389. The evidence sought to be excluded must have been “obtained in a

manner that infringed or denied any rights or freedoms.” Pino holds that “the evidence and the Charter breach must be part of the sametransaction or course of conduct.” I agree with Heeney J. in R. v. Kavenaugh [2017] O.J. No. 430 (SCJ) that the taking of the breathsample is one transaction. The decision to hold a person in custody until they are sober is a separate transaction.

He concluded: (at para.47) “there is simply no connection – causal, temporal or contextual – between obtaining the Intoxilizer results and the decision, madesubsequently, to keep the appellant in custody for his own protection.” In other words where the detention has nothing to do with thegathering of evidence there can be no exclusion of evidence under section 24(2). As well this could hardly be said to be the clearest ofcases for a judicial stay under section 24(1): R. v. O’connor (1995) (SCC), 103 CCC (3d) 1 (SCC). [46] While I have concluded that there was no

section 9 breach or

section 24 remedy available for the post-test detention in the caseat bar, I am mindful of the fact that the highest-ranking officer at 22 Division on the night in question did not turn his mind to the test forrelease under

section 498 of the Code or make any inquiries about the detainee’s condition or whether he could safely be released to aresponsible person. By all accounts, after the tests were complete, Mr. Fleming was cooperative, there were no signs of impairment, andhis wife was diligently attempting to find a way to bring her husband home. I find as a fact that both P.C. Simpson and P.C. Taylor gaveMr. Fleming the impression that he would be released after meeting with the sergeant in charge of the Division and that this meeting wasjust a formality. It is clear they expected he would be released. While Sgt.

Woodhouse may have been minimally compliant withconstitutional values in this case, I find that he acted in a manner that was remarkably cavalier towards Mr. Fleming’s freedom andwelfare once the tests were completed. That is a theme to which I will return. ARBITRARY DETENTION (PRE-TEST DETENTION) [47] There is no doubt the defendant in the instant case was unlawfully arrested, there being noncompliance with the statutoryrequirement in s. 254(3) of the Code that the arresting officer have reasonable grounds. According to R. v.

Grant 2009 SCC 32 ,[2009] 2 S.C.R. 353: [54] The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person’s liberty isnot to be curtailed except in accordance with the principles of fundamental justice. As this Court has stated: “This guarantee expressesone of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law”(Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 , [2007] 1 S.C.R. 350, at para. 88).

Section 9 serves toprotect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, atpara. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary andviolates s. 9. [48] It follows that since the detention in the instant case was not authorized by law, the detention was arbitrary and a breach ofsection 9 of the Charter.

If s. 9 of the Charter serves to protect individual liberty against unlawful state interference, the question arisesas to the nature of that interference in the course of being detained in advance of a search and seizure of breath sample evidence. In otherwords, in advance of a section 24(2) determination, it is important to set out the evidence in detail that would permit a meaningfuldetermination of the seriousness and impact of the s. 9 Charter breach on the defendant’s Charter-protected interests. [49] Accordingly, I have reviewed the video recording of Mr.

Fleming’s complaint about the handcuffs as he is transported from thescene to 22 Division. The following is a generally accurate but not verbatim rendition of that ordeal: [50] (Following his arrest at 23:37) Fleming: My wrists hurt. They hurt. I can barely…Ow. This is very painful Sir…Ma’am. Ican’t… Hurting me…My whole…. [51] (After 23:42) Officer: would you like me to help you sit up? Fleming: Yes. Officer: I’ll help you sit up. Fleming: (Wrists arecuffed behind him) Ah,..Ah,..Hurts my wrists. This is very painful.

Officer: They’re (the cuffs are) not built for comfort, Sir. [52] (After 23:44) Fleming: Is there anywhere I can get these cuffs off? They’re very… Hurting me…Officer: They’re not forcomfort, okay? [53] (After 23:47) Fleming: You know I am compliant. Why do you guys need me in these? (The handcuffs). Officer: This is just(police) procedure for your safety and our safety. Fleming: I’m compliant. I’m not trying to hurt you in any way. This is hurting. My leftwrist is… Officer: It won’t be long…. Fleming: I’ve got tingling. I can’t feel my arm. Can you please hurry? Officer: Sir.

Beinganxious is not going to help it, so just relax. Fleming: It really hurts. My left wrist is hurting very badly. I don’t understand why thehandcuffs. I’m very compliant. [54] Officer: I don’t understand why you’re yelling. Everybody who gets arrested has handcuffs put on, okay? Fleming: But I’mvery compliant. My arm is hurting. [55] (After 23:51) Fleming: Is there any way you guys can help me with..? My wrists are really sore. It’s very tight. Where’s thepolice station? Officers: (No response). [56] (After 23:59) (On arrival at 22 Division) Fleming: I can’t feel my hands.

Officer: They’ll be coming off any minute as soon aswe are inside. Fleming: My hand’s asleep. I can’t feel it. Can you take the cuffs off or no? Officer: We’ve already been over this…Ihave told you. We do not take the cuffs off as per our procedure. We keep them on for everyone we arrest. Fleming: I can’t feel myfingers. I can’t feel them. Officer: Sir. Those handcuffs are not built for comfort. Fleming: It’s just that I have had surgery on my rightwrist. My right hand is injured. And my left hand is the one - which is bothering me. My right hand not so much. Officer: All right I’mgoing to check your circulation.

Fleming: My left hand please. My left hand is bad. I can’t feel my left hand. Officer: Looks okay to me.Fleming: My right hand’s fine. My left hand’s terrible. Officer: All right. I’m going to loosen it by one click. Fleming: Thank you. I canbarely feel my left hand. [57] (After 12:05 am) Fleming: I’m just moving my hand so that I can feel it. It’s very numb. I can barely feel it. Especially myindex finger and my… What do you call that finger…? My fuck off finger. Officer: That’s not very respectful sir. Fleming: I’m sorry.But I can barely feel my left hand. My index finger is gone. I can’t feel it at all.

The blood flow to my hands is constricted and so… my

left hand, I can barely feel anything. My right hand is fine. My right hand is fine but my left hand is completely gone and I can’t feel it. The cuffs are too tight. [ 58 ] During the parade before the Booking Sergeant, P.C. Cruden tells the officer in charge that Mr. Fleming is cooperative but he’s complaining about his hands. [ 59 ] I must therefore determine whether the breath sample evidence should be excluded pursuant to section 24(2) of the Charter . SECTION 24(2) ANALYSIS [ 60 ] In regard to the above-noted

section 8 and 9 Charter breaches, R. v.

Grant mandates an assessment and balancing of the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors: (1) the seriousness of the Charter -infringing state conduct, (2) its impact on the Charter -protected interests of the accused, and (3) society's interest in the adjudication of the case on its merits. [ 61 ] In this analysis, I am required to balance the assessments under each of the above lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

First Inquiry: Seriousness of Charter Infringing Conduct [ 62 ] The Grant decision sets the parameters for this analysis. There are several considerations to be applied. Here there is no basis for concluding that the police deliberately set out to violate Mr. Fleming’s

section 8 and 9 rights under the Charter . What occurred here is more in the nature of a cascading series of errors in judgment that resulted in a breach of his rights. While good faith will reduce the need for the Court to disassociate itself from the police conduct, ignorance of Charter standards must not be rewarded and negligence, (here, a lack of careful consideration) or willful blindness cannot be equated with good faith: R. v. Grant, supra, para. 75 . I find that all of the police officers in this case were dedicated, hard-working members of the force.

However I cannot equate the level of Charter deficiency in this case − in the arrest and detention of the defendant − with good faith. [ 63 ] The first Grant factor, the seriousness of the Charter -infringing state conduct, involves the following assessment: The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. [ 64 ] The main concern of this inquiry is to preserve public confidence in the rule of law and its processes. [ 65 ] While good faith on the part of the police will reduce the need for the court to disassociate itself from the police conduct, 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. [ 66 ] I am satisfied that the Charter breaches here were serious. [ 67 ] The absence of reasonable and probable grounds for the arrest could support an inference that no reasonable person could have genuinely believed that such grounds existed.

The breach of

section 8 flows into the breach of

section 9 of the Charter . Where the statutory requirements of reasonable grounds were not met, the ensuing search is unlawful and according to R. v. Grant, a person held in custody for an unlawful search is arbitrarily detained. In my view, in this case there was a significant departure from the standard of reasonable and probable grounds, which raises serious concerns as to the honesty of the belief in the existence of reasonable grounds on the part of the arresting officer. The fact there were two officers in a position to make observations and engaged in doing so, as P.C. Simpson and P.C.

Cruden were, tends to cast doubt on the reliability of the evidence that is unfavourable to the defendant on account of the evidentiary inconsistencies between them. [ 68 ] I have concluded in the instant case that no reasonable person could have genuinely believed that reasonable grounds existed, particularly with reference to slurred speech. Indeed the partner of the arresting officer observed no such indicia while dealing with the defendant over the course of more than 3 hours.

It cannot be considered to be an honest and good faith exercise of an officer’s powers of observation when the arresting officer maintains in spite of overwhelming evidence to the contrary, that Mr. Fleming’s speech remained slurred continuously throughout her contact with him. That position is patently at odds with the evidence of every other officer with whom Mr. Fleming came in contact, as well as the video evidence. [ 69 ] In my view this was not so much a deliberate falsification of evidence, but more the product of an initial mistake on the part of an inexperienced officer. P.C.

Simpson made an arrest rather than an ASD demand and follow-up roadside test. Having stumbled into an arrest for impaired operation, some indicia were cobbled together in haste such as “where he was and what he was doing” before the vehicle stop, resulting in grounds that were compiled without adequate care, and exaggerated in the pressure of the moment. The rush to judgment in the form of a premature arrest and detention, amounted to a serious state interference with an individual’s freedom of movement and right to privacy in relation to the search. P. C.

Cruden took the unusual position – that she was really just on scene for officer safety. Since there were no safety issues from the outset, her position seemed designed to avoid any acknowledgement of inconsistencies between herself and P.C. Simpson. The assessment of the ‘seriousness of the breach’ factor favours exclusion with a view to the Court’s need to disassociate itself from this conduct.

Second Inquiry: Impact of Charter Protected Interests of the Accused [70] This inquiry focuses on the extent to which the breach actually undermined the interests protected by the right infringed.According to R. v. Grant, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The moreserious the impact on the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the publicthat Charter rights “are of little avail to the citizen breeding public cynicism and bringing the administration of justice into disrepute:” R.v.

Grant, supra. para. 76. [71] In terms of the breach’s impact on protected interests – it must be said that the protected interests under

section 8 and 9 areprivacy, bodily integrity, security of the person and human dignity. [72] In terms of the s. 8 protected interests of the defendant, it is noteworthy that Charron J. in Grant, in a wide-ranging discussion,referred to breathalyzer tests as being relatively non-intrusive. More recently in R. v. Jennings, 2018 ONCA 260 , [2018] O.J.No. 1460 (CA) the Ontario Court of Appeal put an end to the debate as to whether the comment in Grant about the breath test being‘relatively non-intrusive’ was obiter.

At para. 29 the Court explained: 29 Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Courtidentifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as therespondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted thatthe statement was no mere throwaway line.

The Supreme Court chose the example of breath sample procedure as an apt and economicalmeans of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formaldemands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge. [73] Clearly then, the law is now settled that

section 8 breaches in breath sample cases involve a minimally intrusive search thatgenerally favours the inclusion of evidence under the second Grant factor. In other words, the impact of the minimally intrusive searchfavours the admission of the breath sample evidence. [74] However, this is one of the rare cases in which the arrest and transport of the detainee to the station was anything but routine oruneventful. This detention did not fall within the parameters of a minimally intrusive process.

By all accounts, the defendant was made tosit on his hands that were handcuffed too tightly at the rear, in the cramped back seat of a police cruiser. For a part of the trip to theDivision, the only way he could relieve the pressure on his hands was to lie on his side. He complained continually and loudly about thepain he was experiencing. The officer’s response is: “They’re (the cuffs are) not built for comfort, Sir.” Mr. Fleming asks: Is thereanywhere I can get these cuffs off? They’re very… Hurting me…The Officer replies: They’re not for comfort, okay? Mr. Fleming asks:You know I am compliant.

Why do you guys need me in these? (The handcuffs). The officer replies: This is just (police) procedure foryour safety and our safety. Mr. Fleming then says: “I’m compliant. I’m not trying to hurt you in any way. This is hurting. My left wristis… I’ve got tingling. I can’t feel my arm. Can you please hurry? …It really hurts. My left wrist is hurting very badly. I don’t understandwhy the handcuffs. I’m very compliant.” [75] Later the officer comments: “I don’t understand why you’re yelling. Everybody who gets arrested has handcuffs put on, okay?”Mr. Fleming explains: “But I’m very compliant.

My arm is hurting.” At 22 Division Mr. Fleming says: “I can’t feel my hands.” Officer:“They’ll be coming off any minute as soon as we are inside.” Mr. Fleming continues: “My hand’s asleep. I can’t feel it. Can you take thecuffs off or no?” The Officer replies: “We’ve already been over this…I have told you. We do not take the cuffs off as per our procedure.We keep them on for everyone we arrest.” Then Mr. Fleming points out: “I can’t feel my fingers. I can’t feel them.” The Officer says:“Sir. Those handcuffs are not built for comfort.“ After waiting in the police vehicle at the Division, for some time, Mr.

Flemingcomplains: “I can barely feel my left hand. My index finger is gone. I can’t feel it at all. The blood flow to my hands is constricted andso… my left hand, I can barely feel anything. My right hand is fine. My right hand is fine but my left hand is completely gone and I can’tfeel it. The cuffs are too tight.” [76] After all the discussion in the car about the pain he was experiencing, P.C. Cruden advised the booking sergeant (Sgt.Woodhouse) that the defendant was cooperative but was complaining about his hands.

No questions were asked about that complaint bythe booking sergeant as if it were a regular occurrence of no real consequence. [77] Essentially, Mr. Fleming had undergone wrist surgery and was made to endure extreme pain from 11:37, the time of the arrestand the placing of him in handcuffs and about 12:10 am when he was taken before the booking sergeant. The back seat of a cruiser is asealed compartment and there was no (security) reason to insist on handcuffing a ‘compliant’ prisoner’ other than police policy:”Everybody who gets arrested has handcuffs put on, okay?” That treatment impacted his dignity.

When his complaint about his treatmentin the cruiser was presented to the Booking Sergeant at the Division, that complaint was all but ignored. [78] First, I note that in R. v. Jennings, supra, there were only 2 issues on appeal, a

section 8 breach in respect to the taking of a breathsample at the police station and the question of whether that evidence should be excluded under s. 24(2). In the instant case, there is a s.9 breach of the Charter as well.

Still, an arrest and routine trip to the nearest police division involving a brief detention until the breathsample can be taken, would in most cases fall within the concept of a minimally intrusive search. [79] In my view, the finding in Jennings, supra, did not create a categorical rule that breath sample cases automatically favoured theinclusion of the evidence under the second Grant factor.

What I must do, to give effect to the considerations mandated in Grant, is tocarry out a second factor analysis on the s. 9 breach and consider the combined impact of both the s. 8 and s. 9 breaches on Mr.Fleming’s rights as accorded to him under those two sections of the Charter. To apply a categorical rule approach, “would not only beinconsistent with the “in all the circumstances” requirement of section 24(2) but it would also impede a material “inquiry [that] focuseson the seriousness of the impact of the Charter breach on the protected interests of the accused”: R. v. Grant, supra at para. 76.

Thatimpact varies with different kinds of breaches and from case to case,” according to Paciocco J. (as he then was) in R. v. Steele 2014ONCJ 583 [80] As the Court explained in R. v. Mann

(2018) ONSC 1703, it is necessary to consider both the

section 8 and 9 breaches wherethey appear in a drinking and driving case:

I now consider the impact of the s. 9 breach on Mr. Mann’s Charter rights. Unlike the facts found in the R. v. Jennings, supra case, thisis a case of multiple breaches. As was directed by the Supreme Court of Canada in the Grant case, the trial court is directed to considerin its second line of inquiry the interests engaged by the infringed rights and the impact of the breach on those engaged rights. Mr.Mann’s stop, detention and arrest were illegal from the very beginning due to the officer’s mistake.

The interests engaged anddeprivation caused by this illegal stop was the deprivation of liberty, privacy, dignity and mobility interests. It can be consideredsignificant and highly intrusive (see R. v. Grant, 2009 SCC 32 , [2009] 2 S. C. R. 353; R. v. Brown, [2002] O.J. 1569; R. v.Harrison, 2009 SCC 34 , [2009] 2 S. C. R. 494). [81] Similarly, in the case at bar, Mr. Fleming’s stop, detention and arrest were not lawful from the very beginning due to thearresting officer’s mistake. The interests engaged and deprivations caused by this event were the deprivations of liberty, privacy, dignityand mobility interests.

Most importantly, the hardship inflicted on him unnecessarily, in the form of handcuffs tightened to the point ofcausing pain for close to 33 minutes, shifts the impact of the combined s. 8 and s. 9 Charter breaches out of the range of ‘fleeting andtechnical’ to profoundly intrusive. For these reasons, when considered as a whole, I conclude that the combined impact of both the s. 8and 9 breaches on Mr. Fleming’s Charter rights are significant and favour exclusion.

Third inquiry: Society’s Interest in an Adjudication on the Merits [82] The Court in Grant emphasizes that the public generally expects that a criminal allegation will be adjudicated on the merits.Consequently, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by theadmission of the evidence or by its exclusion. The exclusion of relevant and reliable evidence may undermine the truth seeking functionof the justice system and render the trial unfair. In this case the exclusion of evidence of Mr.

Fleming’s breath sample will prove fatal tothe Crown’s case on the ‘over 80’ charge. This favours inclusion. BALANCING [83] This is not an easy case to decide. However, this serious breach of sections 8 and 9 of the Charter that occurred in this case —in which an impulsive decision to arrest was made in 4 minutes (between 23:33 and 23:37 while the defendant was seated in his car) byan inexperienced officer, without consultation, and without reasonable and probable grounds — favours exclusion. The second factorweighs moderately strongly in favour of exclusion as noted above.

It seemed as though police handcuffing policy trumped all otherhuman considerations. When these two conclusions are balanced with the third factor, which strongly favours inclusion, I am of the viewthat it results in the exclusion of the evidence of the breath samples. Case authorities suggest that where the first and second Grantcriteria favour exclusion, the third factor, “will seldom, if ever, tip the balance in favour of admissibility”: R. v. Davidson, 2017 ONCA257 (at para. 63). (See also R. v.

Patterson, 2017 SCC 15, at paras. 55-56. [84] In this decision I have not taken into account the rather neglectful approach taken by the sergeant in charge of 22 Divisiontowards the freedom and welfare of the defendant in detaining him for a further 6+ hours notwithstanding the fact a responsible personwas available to take him home after the tests were completed.

As noted, this did not constitute a Charter breach but is nonetheless astyle of prisoner management that could benefit from some improvement. [85] Finally, I have concluded that the failure to adhere to constitutional standards of conduct in this case may have the effect ofundermining the long-term integrity of the administration of justice. This points in the direction of exclusion of the evidence.

I ammindful that “negligence in meeting Charter standards cannot be equated with good faith.” Further, “Charter-infringing conduct …neednot be deliberate, nor result from systemic or institutional abuse to result in exclusion of evidence.”: R. v. Szilagyi, 2018 ONCA 695; R.v. Patterson, supra. [86] According to Grant, the Court must balance the interests of truth seeking with the integrity of the justice system (see R. v. Mann2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.) per Iacobucci J).

The Court must ask whether the exclusion of evidence exacts toogreat a toll on the truth-seeking goal of the criminal trial particularly having regard to the carnage on Canadian highways caused by thedrinking driver. As had been said so often, the public expects the justice system to reliably deal harshly with conduct that is perenniallyso dangerous to life and limb. [87] Balancing the interests of truth seeking with the need to maintain the long-term integrity of the justice system and havingconsidered the three lines of inquiry contemplated by R. v.

Grant, I have concluded that the exclusion of the evidence would better servethe long-term repute of the administration of justice. The need for this court to disassociate itself from such a fundamentally deficientexercise in arrest and detention (suggesting a major gap in police training) considerably outweighs the important societal values inadmitting the evidence, particularly where the deficient s. 8 practice was compounded by the failure to protect the health and welfare of aperson detained in police custody.

CONCLUSION [88] Having made the above three inquiries, and after engaging in a balancing process, and having regard for s. 24(2)’s focus on thelong term interests of society, I have concluded that the admission of the evidence obtained by these Charter breaches would bring theadministration of justice into disrepute in the long term. Accordingly, the breath sample evidence will be excluded pursuant to section24(2) of the Charter. Having found Mr.

Fleming not guilty on the charge of ‘impaired operation,’ and there being no admissibleevidence on the ‘over 80’ charge, I have entered an acquittal on both counts before the Court. Harris, J.