R. v. Lofthouse, 2017 ONCJ 12

CITATION: R. v. Lofthouse , 2017 ONCJ 12 DATE: January 24, 2017 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — SHANNON LOFTHOUSE ) ) ) ) ) ) ) ) ) ) ) ) ) N. Laton For the Crown N. Stanford For the Defendant Heard: January 19, 2017 REASONS for RULING (No. 2) (Re Charter S. 24(2)) MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] Shannon Lofthouse, the defendant, was involved in a two-car collision on Highway 401 in Toronto on October 11, 2014.

She was charged with alcohol-impaired driving at the scene of the accident and, later, of driving with an excessive blood alcohol concentration (BAC). At the invitation of the Crown, the charge of impaired driving was dismissed at the close of the Crown’s case and before I ruled, following a blended hearing, on the defence claim that Ms. Lofthouse’s rights under ss. 8 and 9 of the Charter had been infringed. [ 2 ] In the absence of prior judicial authorization, the burden to establish the reasonableness of the defendant’s arrest and the breath demand made of her fell to the Crown.

In written reasons released on January 19, 2017, I held that the defendant’s ss. 8 and 9 rights had been breached. Upon hearing the submissions of counsel, I then further held that the evidence of an expert toxicologist and the Intoxilyzer readings on which his report was premised should be excluded upon application of s. 24(2) of the Charter. My reasons for excluding this evidence follow. They should be read in conjunction with my reasons, dated January 19, 2017, for finding the predicate constitutional infringements. B. THE CHARTER BREACH FINDINGS

[ 3 ] In brief: OPP Cst. Arron Saldenah is an experienced traffic enforcement officer. He arrested the defendant for impaired driving within a few minutes of his arrival at the accident scene. An approved instrument (Intoxilyzer) demand soon followed.

The defendant was transported to the OPP station, submitted to breath-testing by a qualified breath technician (QBT), and ultimately released close to midnight, more than four hours after her arrest. [ 4 ] Saldenah advanced the following grounds to the QBT in support of the defendant’s Intoxilyzer testing: • A motor vehicle collision caused by the defendant. • A police dispatch reporting a possibly impaired driver. • The defendant’s admission of prior consumption of alcohol. • A strong odour of alcohol. • The defendant’s o Glossy, red eyes; o Flushed face; and o Slurred speech.

In addition, Saldenah testified that soon after forming his grounds to believe the defendant had driven while impaired and arresting her for this offence, he observed that she was “unsteady on her feet” and “swaying”. He had failed to make a note of this observation. He had not included this factor in the grounds he first said he conveyed to the QBT. He never mentioned it in his direct examination.

However, during cross-examination on the following day (and more than a year after the event) Saldenah testified to recalling the defendant’s unsteadiness. [ 5 ] As I found in my earlier Ruling, • Saldenah had no basis other than bootstrap reasoning to infer that the defendant had caused the accident at the point his belief in her impairment crystallized. • Despite Saldenah’s contrary insistence, there was no police dispatch reporting a possibly “impaired” driver. • Saldenah’s recall of the defendant’s “obviously” slurred speech was directly contradicted by the evidence of the two men in the struck Subaru and with whom the defendant conversed for approximately 20 minutes, as were his observations of the discolouration of her eyes and the presence of an odour of alcohol. • Saldenah’s explanation of what he meant by describing the defendant’s face as “flushed” defied common sense, conventional dictionary

definitions and shared experience. Other than Saldenah’s testimony respecting an odour of alcohol (which, for reasons explained in my earlier Ruling, I did accept) and the defendant’s admission as to her earlier consumption of alcohol, I held that I could not rely on any of the questionable factual assertions set out in the bulleted list of “grounds” the officer conveyed to the QBT.

Nor, given the ambient circumstances, his very belated recall and the absence of any confirmatory evidence from either of the two men in the Subaru, could I rely on the officer’s claim that the defendant suffered from any imbalance or incoordination.

Apart from the evidence of the two men, patent inconsistencies within Saldenah’s own testimonial account and between his account and that recorded in the unassailable recording of his communications with police dispatch (again, as canvassed in the earlier Ruling) further compromised my confidence in the officer’s narrative. [ 6 ] As set out at para. 37 of my earlier Ruling: I am left with considerable concern about the reliability of Saldenah’s evidence.

I do not find conscious prevarication, but I am of the view that he acted prematurely, drew unsupported inferences, only minimally tested his hypothesis before concluding that the defendant was an impaired driver and, ultimately, carelessly inflated his account. Due to the very delayed revival of this particular memory and the various inconsistencies that surround it, I cannot accept the officer’s account of the defendant’s unsteadiness or physical incoordination.

The officer’s explanation of the defendant’s supposedly “flushed” face is so counter to shared experience and conventional understanding of the word that, even were his description accepted, it adds nothing to the reasonableness of the arrest or demand; indeed, it detracts from my confidence in Saldenah as a reliable or even competent reporter. In view of the directly contrary evidence of the two men in the Subaru, I am also left in doubt as to whether the defendant had “obviously slurred” speech.

Saldenah’s description of the defendant’s eyes as glossy or red is ultimately of small probative value, particularly as the officer conceded that there could be many benign explanations for the discolouration he claimed to have observed. [ 7 ] In sum, I did accept Saldenah’s evidence that he detected an odour of alcohol emanating from the defendant. I accepted, as well, his unchallenged recall that the defendant admitted having some five or six “shots” some seven or so hours earlier and smoking some marihuana around the same time.

I also took into consideration her involvement in an unexplained accident on a crowded 401. These “objective facts”, I held at para. 42 of my Ruling, “ support the ‘possibility’, but not the ‘probability’, of the defendant having committed an offence” for which she could be arrested or for which an approved instrument demand could be lawfully advanced. Put otherwise, as at para. 41, “the evidence does objectively support a roadside screening demand premised on ‘reasonable suspicion’. It does not, however, crest the higher legal hurdle of ‘reasonable grounds to believe’”.

As Saldenah did not have lawful authority to arrest the defendant or make a s. 254(3) breath demand, I concluded that her Charter ss. 8 and 9 rights to be secure against unreasonable search and seizure and to not be arbitrarily detained had been violated.

C. ANALYSIS (

a) Introduction [8] Section 24(2) of the Charter frames the availability of the remedy of exclusion of evidence.

As clear from the language ofthe provision and as consistently reaffirmed by appellate authority, the focus of the inquiry is on preserving the integrity of and publicconfidence in the justice system: S. 24(2) Where … a court concludes that the evidence was obtained in a manner that infringed or denied any rights or freedomsguaranteed by the Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, [its] admission… would bring the administration of justice into disrepute.

The burden of establishing that suppression of the impugned evidence is “appropriate and just”, as put in s. 24(1), is borne by thedefendant. [9] Although its architecture has changed over time, the current controlling analytical framework is that three-part test set out bythe Supreme Court in R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 71: [A] court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to:(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message thatindividual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The court’s role on a s.24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all thecircumstances, admission of the evidence would bring the administration of justice into disrepute. More generally, as said one paragraph earlier: [Section] 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, butrather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justicesystem. [10] In the

summary conviction appeal of R. v. Rehill, 2015 ONSC 6025 , [2015] O.J. No. 5068 (Ont. S.C.), at paras. 27-47, Justice K.L. Campbell carefully examined the implications of R. v. Grant, supra, and reviewed, if critically, what he construed asoverly-generous trial level departures from its application to breath-testing results in cases arising, as here, from allegations of drinkingand driving. Needless to say, Crown counsel places heavy reliance on Rehill. Indeed, as in many analogous cases, the defence finds itselfboxing with Rehill’s impressive shadow.

Even had I the liberty, I would take no issue with either the substance or tenor of Rehill. Itscautionary language flows directly from the Grant Court’s oft-quoted “general” observation, at para. 111, respecting the balancingexercise that typically plays out in such cases: While each case must be considered on its own facts, … in general … where an intrusion on bodily integrity is deliberately inflicted andthe impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevanceand reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodilyintegrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case withbreath sample evidence, whose method of collection is relatively non-intrusive. I note that the Supreme Court, in this and preceding passages, addresses the balancing in drinking-and-driving cases solely implicating s.8 of the Charter. I also note the Court’s introductory reminder that “each case must be considered on its own facts”.

The factual scenarioin Rehill, for example, is very different from that before me. Further, the dubious constitutional misconduct found at trial in Rehill washeld to engage only s. 8. [11] I turn, then, to each of the three prongs delineated in Grant and, finally, to the balancing of these individual assessments thathas here led me to find a negative effect of admission on the repute of the administration of justice. (

b) Seriousness of the State Conduct [12] There is a continuum of Charter-infringing state conduct – a “fault line”, as said in R. v. Kitaitchik (2002), (ON CA), 166 C.C.C. (3d) 14 (C.A.), at para. 41 – that extends from the negligent or inadvertent to the knowing or intentionalsubversion of constitutionally protected rights. (See also R. v. Grant, supra, at para. 72.) [13] The here-identified ss. 8 and 9 breaches are not a consequence of any deliberate Charter infringements on the part of thearresting officer.

They do, however, reflect a failure to observe statutory requirements and, thereby, to adhere to long-settled standards ofconstitutional propriety.

Further, the officer’s misconduct was largely a product of his own misappreciation and mishandling of the case:he claims to have proceeded on the basis of information that, on the evidence, was never conveyed to him; he drew and acted onincriminatory inferences that were not reasonably available; he neglected to conduct a minimally appropriate on-scene inquiry; and hefailed to take those intermediate investigative steps that were legally justified, that he had the time and the approved instrument tocomplete, and that were not jeopardized by any extenuating circumstances.

Unlike the Rehill scenario, this was hardly, as Campbell J.

characterized the breach in that case, “an extremely technical violation” [of the defendant’s] rights”: para. 29. [14] No challenge was taken to Cst. Saldenah’s subjective belief that he had the necessary reasonable grounds to make the arrestand demand. However, the sincerity of his belief – and the “good faith” it would ordinarily carry – is of diminished value where, as here,it is founded on both the officer’s self-induced or patently negligent misunderstandings and his failure to conduct a competentinvestigation.

Even on his own evidence, Saldenah’s grounds for the defendant’s arrest and the breath demand crystallized before hisbelated claim to have observed her unsteady composure. Good faith, as said in Grant, at para. 75, “reduce[s] the need for the court todisassociate itself from the police conduct”, but, Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with goodfaith. [Citations omitted; emphasis added.] [15] In my view, the state misconduct falls well beyond the midpoint of the constitutional “fault line”.

Accordingly, it militates infavour of exclusion. (

c) Impact of the Charter Breaches [16] While the first tine of s. 24(2) inquiry focuses on the conduct of the state, the second is concerned with the effect of thatconduct on the applicant-defendant. As put in Grant, at para. 76, this second line of inquiry “calls for an evaluation of the extent to whichthe breach actually undermined the interests protected by the right infringed”. [17] The unreasonable search and seizure of the defendant’s breath samples by way of Intoxilyzer testing is at the less invasive endof the spectrum of privacy and personal dignity interests protected by s. 8 of the Charter.

The impact of her unlawful arrest is not nearlyas benign. The defendant was unreasonably detained, in violation of her s. 9 rights, for more than four hours. Her ordinary liberties wereentirely subject to state control. The accompanying anxiety was inevitably magnified by not knowing when she would be released. Asexplained in Grant, at para 20, The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference. As recognized by this Court in Blencoev.

British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, "liberty", for Charter purposes, is not "restrictedto mere freedom from physical restraint", … . Thus, s. 9 guards not only against unjustified state intrusions upon physical liberty, but alsoagainst incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to peoplewithout adequate justification. These s. 9 protected interests – both physical and mental liberty – were meaningfully infringed in this case. [18] The defendant’s unlawful arrest had additional adverse consequences.

The charge of impaired driving led to the impoundingof her car and a 90-day driving suspension – hardly minimal constraints on personal liberty and mobility. [19] In the result, and as with the first line of inquiry, the impact of the Charter violations favours, if modestly less forcefully, theremedy of exclusion. (

d) Societal Interest in an Adjudication on the Merits [20] No issue is taken with the reliability of the expert toxicology report and the results of the defendant’s Intoxilyzer testing. Thisevidence is also essential to the Crown’s capacity to prove the charge of driving with an excessive BAC.

These two factors, reliabilityand prosecutorial importance, generally support receipt, rather than exclusion, of this type of evidence in drinking-and-drivingprosecutions as its admission, as put at para. 79 in Grant, advances “the truth-seeking function of the criminal trial process” and, at para.81, avoids “render[ing] the trial unfair from the public perspective”. [21] The procedural evolution of this case warrants closer scrutiny of the second factor, that focusing on the importance of thedisputed evidence to society’s “collective interest in ensuring that those who transgress the law are brought to trial and dealt withaccording to the law": R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20” (as echoed in Grant, at para. 79).* Inthe language of the Grant court, at para. 83: “the exclusion of highly reliable evidence may impact more negatively on the repute of theadministration of justice where the remedy [of exclusion] effectively guts the prosecution”. [22] The risk highlighted in these passages from Grant is of somewhat nuanced application to the immediate case. The defendant,as in many if not most drinking-and-driving prosecutions, was charged with impaired driving and driving with an excessive BAC.

Whileexclusion of the expert report and breath testing results impacts fatally on the latter charge, this remedy has no bearing on the charge ofimpaired driving. Further, even had the defendant been found guilty of both charges, application of the “Kienapple principle” would havealmost certainly resulted in registration of but a single conviction.

If exclusion here “guts the prosecution”, that result is to significantdegree a function of Crown counsel’s decision, no matter how well intended, to invite dismissal of the impaired driving charge beforethe conclusion of the Charter argument respecting the alleged breaches of ss. 8 and 9.

Irrespective of my s. 24(2) ruling, the prosecutionwould not be “gutted” If the impaired driving charge was still before this court, nor would society’s “collective interest in ensuring” anadjudication on the merits “according to the law”. [23] By virtue of their incidence, the risk to public safety and their too often tragic consequences, drinking-and-driving offences arefrequently described as “serious”. The Crown urges me to consider this pejorative characterization in calibrating the relative weightassigned this third line of inquiry.

There are, as I see it, two difficulties with unqualifiedly adopting this approach. [24] First, and as I have said elsewhere, “not all crimes within the same genus of offences are of equal gravity”: R. v. Azarnush,2016 ONCJ 355, at para. 65. If only the result of good fortune, the collision on the 401 damaged no more than the rear quarter panels ofboth vehicles. Other than carelessly veering out of her lane to catch an approaching exit, the defendant does not appear to have exhibitedany speeding, erratic motoring or other sanctionable driving behaviour.

There is no credible evidence that her motor skills orcoordination were impaired. She slowed down and parked on the shoulder within seconds of the second car’s honking. The driver of the

Subaru voluntarily attended a hospital that night. He was given Tylenol 3s and was later referred to physio by his family doctor. He is“OK” today. This collection of circumstances, while troubling, is less aggravating than those that define many similar prosecutions.Crown counsel, in argument, eschewed reliance on the defendant’s moderately excessive Intoxilyzer readings as their admission hadbeen held in abeyance pending determination of this motion.

To be clear, the inclusion of those readings in this calculus would not altermy assessment of the moderate gravity of the offensive conduct alleged. [25] More importantly, perhaps, is the Supreme Court’s recognition that the seriousness of an offence does not necessarily militatein favour of admission. As explained in Grant, at para. 84: [W]hile the seriousness of the alleged offence may be a valid consideration; it has the potential to cut both ways. Failure to effectivelyprosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system.

Yet, as[earlier] discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham [(SCC), [1995] 2 S.C.R. 206], the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual standsaccused" (para. 51). And as Lamer J. observed in Collins [ (SCC), [1987] 1 S.C.R. 265], "[t]he Charter is designed toprotect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282).

The short-term publicclamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice.Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious; it alsohas a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high. These themes replay in R. v.

Taylor, 2014 SCC 50 , [2014] 2 S.C.R. 495, at para. 38, respecting drinking-and-drivingprosecutions directly: It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to beexcluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 80, the public also has an interest “in ensuring that the justice system remains above reproach inits treatment of those charged with these serious offences”.

In the face of sustained vocal advocacy for more stringent enforcement of drinking-and-driving offences, it is important to recall, as saidby the Court of Appeal in R. v. Ting, 2016 ONCA 57, at para. 84, that “society’s interests”, which s. 24(2) is directed to safeguarding, isnot necessarily synonymous with a “public outcry or expression of public concern”. [26] In the end, I am satisfied that the third line of inquiry is antagonistic to the exclusionary direction indicated by the first two.

Itundoubtedly favours receipt of the impugned evidence, but not as strongly as do the countervailing weight of the first two factors. I turnnow to that balancing. (

e) Balancing the Interests [27] The task of balancing the results of the three lines of inquiry is an exercise of careful judicial discretion. “No overarching rulegoverns how the balance is to be struck. Mathematical precision is obviously not possible”: Grant, at para. 86. And as said in R. v.

Ting,supra, at para. 85, All an application judge can do is consciously bear in mind the three factors and determine as best she can whether the admission or theexclusion of the evidence better serves the interest of maintaining justice in a society ruled by law. [28] The first two lines of inquiry, and especially the first, preference exclusion. The last weighs in favour of admission.

This forceof this final factor is somewhat attenuated by the absence of seriously aggravating circumstances and, more importantly, by the Crownhaving effectively denuded itself of a parallel prosecution worthy of a trier’s determination. Even apart from these latter considerations,and acknowledging the closeness of the call, I am of the view that an informed public’s respect for the administration of justice isultimately better served by exclusion rather than receipt of the impugned evidence. D.

CONCLUSION [43] For these reasons, the tendered evidence of the toxicology report and the defendant’s Intoxilyzer readings is excluded. In theresult, there is no basis to ground the defendant’s conviction for the offence of operating a motor vehicle with an excessive BAC.Accordingly, she is acquitted of that charge. Released on January 24, 2017 __________________________ Justice Melvyn Green * R. v. Askov is famously concerned with the guarantee against unreasonable trial delay afforded by s. 11(

b) of the Charter. The Court’s

* R. v. Askov is famously concerned with the guarantee against unreasonable trial delay afforded by s. 11(

b) of the Charter. The Court’s use of “transgress[ors]” rather than referring to those “charged” with criminal offences fits awkwardly with the presumption of innocence. Nonetheless, it is clear that even those whose guilt is beyond dispute are not thereby disentitled to Charter protection, at least under s. 11(b) (see, e.g., R. v. Williamson , 2014 ONCA 598 , at paras. 65 and 68 ; affd. 2016 SCC 28 ) or upon application of s. 24(2) (see, e.g., R. v. McGuffie , 2016 ONCA 365 , at para. 83 ).