R. v. Hassan, 2019 ONCJ 822

ONTARIO COURT OF JUSTICE CITATION: R. v. Hassan , 2019 ONCJ 822 DATE: 2019 11 18 COURT FILE No.: Newmarket 18 03540 BETWEEN: HER MAJESTY THE QUEEN — AND — MUBARAK HASSAN Before Justice Marcella Henschel Heard on August 24 and September 23, 2019 Oral Reasons for Judgment released on November 6, 2019, written reasons released on November 18, 2019 Brian McCallion................................................................................... counsel for the Crown Al Pazuki........................................................ counsel for the defendant Mubarak Hassan HENSCHEL J.: A.

Overview [ 1 ] Mubarak Hassan is charged with impaired operation of a motor vehicle and operating a motor vehicle while his blood alcohol content exceeded 80 mg in 100 ml of blood contrary to sections 253(1) (

a) and 253(1) (

b) of the Criminal Code . The events leading to the charge occurred on April 23, 2018 in Richmond Hill, Ontario. [ 2 ] The defence filed a Charter motion in advance of trial alleging a number of breaches of Mr. Hassan’s Charter rights under sections 7, 8, 9, and 10(

b) and, as a remedy, pursuant to s. 24(2) of the Charter seeking the exclusion of breath readings obtained by a qualified breath technician, and pursuant to s. 24(1) of the Charter seeking a stay of proceedings or a reduced sentence. [ 3 ] The trial proceeded as a blended hearing . Upon agreement of the parties the evidence applied to both the Charter voir dire and the trial proper. The Crown called PC Russo, the investigating police officer, and Mr. Hassan testified on the Charter voir dire and the trial proper. B.

Summary of the Evidence and Findings of Fact: [ 4 ] The evidence was brief. The following

summary focuses on the areas in issue and sets out my findings of fact regarding the events. Many of the facts were not in dispute. In respect of areas of dispute, I have set out my findings of fact in the

summary of the evidence and within the analysis of the law and the facts. [ 5 ] On April 23, 2018 at 11:45 p.m. PC Russo was travelling northbound in the left lane on Yonge Street in Richmond Hill. He saw a vehicle, about ten car lengths ahead of him, travelling northbound in the right lane approaching the intersection of Yonge Street and Industrial Road. He later determined that the vehicle was driven by Mr. Hassan. The light for northbound traffic was red. The vehicle driven by Mr. Hassan turned right onto Industrial road without coming to a complete stop. Although Mr. Hassan testified that he

stopped for the red light, I accept the evidence of PC Russo on this point. One of the reasons Mr. Hassan’s vehicle caught his attention was the failure to stop for the red light which prompted him to watch the vehicle as it proceeded onto Industrial Road. [ 6 ] After seeing the vehicle turn right onto Industrial Road, PC Russo became suspicious about whether the vehicle turned right in order to avoid his police cruiser. Industrial Road leads into an industrial area and since it was late at night PC Russo thought it was unusual for a car to be going into that area.

PC Russo continued north on Yonge Street and turned right onto Elgin Mills Road where he located the same vehicle turning onto Elgin Mills Road from Enford Road. PC Russo learned by querying the vehicle that the registered owner, Mr. Hassan, had a prior conviction for impaired driving and this heightened his suspicion that the driver of the vehicle might be impaired. [ 7 ] PC Russo turned on his roof lights at the intersection of Elgin Mills Road and Shirley Drive in order to stop the vehicle to investigate the driver’s sobriety.

The vehicle did not pull over to the side of the road but instead turned into the driveway of a residence on Shirley Drive. PC Russo subsequently learned that the residence was Mr. Hassan’s home. [ 8 ] After the vehicle stopped, PC Russo approached and spoke with Mr. Hassan. He was alone. He was cooperative and his speech did not appear to be slurred. PC Russo asked Mr. Hassan where he was coming from and if he had been drinking. He said he was coming from meeting a friend downtown and said that he had not been drinking. PC Russo could smell an odour of alcohol on Mr.

Hassan’s breath and formed a reasonable suspicion that Mr. Hassan had alcohol in his body. At 11:53 p.m. he made a standard field sobriety test demand under s. 254(2) (

a) of the Criminal Code for Mr. Hassan to complete physical sobriety tests. [ 9 ] After making the demand, at 11:56 p.m. PC Russo requested another officer to attend. He delayed conducting the physical sobriety tests until the second officer arrived on scene at 11:58 p.m., two minutes later . He explained that he requested the second officer for reasons of officer safety. [ 10 ] In cross-examination when asked why he did not provide Mr.

Hassan with the rights to counsel between 11:53 p.m. and 11:58 p.m., PC Russo indicated that he did not think there would be a sufficient delay to provide and implement the rights to counsel. He expected that there would be units close by, so he did not think it was necessary. He did not believe that they would be waiting long enough, and he had been trained not to give the rights to counsel if there was no obvious delay.

He indicated that his experience in Richmond Hill was that usually within moments another officer would attend. [ 11 ] PC Russo also indicated that between 11:53 p.m. and 11:56 p.m. he was considering how to set up the physical sobriety testing in order to capture the tests on the in-car camera recording. [ 12 ] Following the arrival of a second officer, PC Russo commenced the physical sobriety testing at 12:03 a.m. He was trained to conduct standard field sobriety tests one month earlier and had only completed one test previously while on duty.

At the outset of the physical sobriety test process PC Russo asked Mr. Hassan a number of questions and provided him with instructions about completing the testing. During the instructional phase PC Russo asked Mr. Hassan if he had any problems with his back or legs and he responded “no”. He also asked him if he had any problem with his ears or balance and he again responded “no”. [ 13 ] When PC Russo conducted the “horizontal gaze nystagmus” test, the first of the physical tests, he asked Mr. Hassan if he suffered from a medical condition and Mr. Hassan replied that he suffered from “nerves”.

He said that he could not stand for more than two or three minutes. PC Russo testified that he did not know of or understand a condition called “nerves” and he decided to continue with the testing. PC Russo indicated that he would not have continued if Mr. Hassan had informed him that he had a medical condition that affected his eyes or walking. He indicated that he thought that Mr. Hassan might be lying to him, especially since he believed that Mr. Hassan lied about his consumption of alcohol. PC Russo indicated that had he believed Mr.

Hassan’s physical ability to perform the testing was a problem he could have used the approved screening device which he had with him. In cross-examination PC Russo agreed that Mr. Hassan told him that he could not stand for two to three minutes and agreed that was something that could affect walking and standing. However, PC Russo responded that he did not know if Mr. Hassan was making it up and Mr. Hassan did not provide him with a specific medical condition that he believed would affect his ability to stand.

PC Russo indicated that at the time he did not think that the tests would be affected. [ 14 ] Included in the field sobriety testing was an eye examination, the horizontal gaze nystagmus test, which includes a “smooth pursuit inquiry”, the “walk and turn test”; and the “one leg stand” test. PC Russo concluded that Mr. Hassan lacked smooth pursuit for both eyes and did not perform well on the “walk and turn test” or the “one leg stand” test. PC Russo concluded that Mr. Hassan was impaired as a result of his poor performance on all of the tests and arrested him for impaired driving at 12:14 a.m.

PC Russo advised Mr. Hassan of the reason for his arrest, searched him incident to arrest, and placed him into the rear of the police cruiser. [ 15 ] At 12:18 a.m. PC Russo informed Mr. Hassan of his rights to counsel. Initially, when asked if he understood the rights to counsel, Mr. Hassan indicated that he did but was unable to explain what PC Russo had read to him when asked to explain. PC Russo then explained the right to counsel in simple terms and asked Mr. Hassan if he had a lawyer. Mr. Hassan said he did not have a lawyer. PC Russo asked him if he wanted to speak with duty counsel and Mr.

Hassan replied that he did. [ 16 ] At 12:22 a.m. PC Russo read Mr. Hassan a caution and the breath demand pursuant to s. 254(3) of the Criminal Code . He was transported to the police station at 12:24 a.m. [ 17 ] Prior to leaving for the police station, Mr. Hassan asked to retrieve medication from his home. PC Russo testified that because Mr. Hassan was already in custody, he did not think it was safe to allow him to obtain his medication from his home and he did not retrieve the medication for him. He explained that he did not think it was a good idea to release Mr. Hassan after he was under arrest.

PC Russo agreed that in hindsight he probably could have figured something out, that he may have been able to enter the home with Mr. Hassan to retrieve his medicine but indicated that at the time he never thought to do so. PC Russo agreed in cross-examination that he did not make further inquiries with Mr. Hassan about the nature of the medication that he required. [ 18 ] Mr. Hassan arrived at the police station at 12:32 a.m. During the booking process when asked if he took medication, Mr. Hassan reiterated that he needed his medication, “garavanting”, for his nerve disorder. Mr.

Hassan told the officers that he was supposed

to take 12 per day and he had only taken three. PC Russo indicated that he and the booking sergeant asked Mr. Hassan if there was someone at the home who could bring him his medication and Mr. Hassan replied that no one was home. PC Russo agreed in cross- examination that Mr. Hassan’s home was only five kilometers from the station, but he did not offer to have an officer go back to the house to get the medication. He agreed that it could have been done but indicated that he was thinking about the investigation, getting Mr.

Hassan in contact with duty counsel, and processing him quickly in order to get him home. [ 19 ] PC Russo testified that he did not believe that Mr. Hassan appeared to be in pain and he did not recall Mr. Hassan telling him that he was in pain. He testified that if Mr. Hassan had told him he was in pain he would have gotten him medical attention. [ 20 ] During cross-examination the surveillance video which captured the booking process was played for PC Russo. It established that the booking sergeant asked Mr. Hassan if he had a physical disability and he responded “Yes”. The surveillance video also captured Mr.

Hassan discussing his medication. The booking officer asked Mr. Hassan whether he had taken his medication that day and asked what the medication was called. Mr. Hassan indicated that it was called Gabartine and Mr. Hassan said that he takes 12 pills a day and stated, “I took three today because of my feet, they are burning”. He then said that his children were away at school and his wife was not home and no one else was there that could retrieve his medication. [ 21 ] PC Russo testified that at the time of the booking he did not hear Mr. Hassan say that his feet were burning. He acknowledged that he asked Mr.

Hassan whether someone was home to bring the medication and agreed that after making the inquiry he did not take any further steps regarding the medication. However, PC Russo testified that he drove Mr. Hassan home after the investigation was complete in order to get him home as soon as possible so he could take his medication. [ 22 ] After Mr. Hassan was booked, at 12:57 a.m. PC Russo contacted duty counsel and Mr. Hassan spoke with duty counsel from 1:00 a.m. until 1:04 a.m. After completing the call with duty counsel Mr.

Hassan was lodged in the cells until he was taken to the breath technician at 1:13 a.m. [ 23 ] A certificate of a qualified technician was filed as an exhibit. The certificate established that Mr. Hassan provided two samples of his breath into an approved instrument, an Intoxilyzer 8000C, and two readings of 100 mg/100 ml of blood were obtained at 1:18 a.m. and 1:39 p.m. The certificate of the qualified technician established the necessary statutory prerequisites for the Crown to rely upon the conclusive proof provisions of s. 320.13 of the Criminal Code . [ 24 ] At 2:13 a.m.

PC Russo served a number of documents on Mr. Hassan including a copy of the certificate of the qualified technician. A revised certificate that complied with the new provisions of the Criminal Code that came into force in December 2018 was prepared in February 2019. The new certificate was entered as an exhibit without objection. Shortly after 2:13 a.m. PC Russo drove Mr. Hassan home. The promise to appear establishes that Mr. Hassan was released at 2:15 a.m. Evidence of Mubarak Hassan [ 25 ] Mr. Hassan is 58 years old.

He testified that on April 22, 2018 he left home at around noon and met a friend at a downtown restaurant. After leaving the restaurant, he went to a friend’s home in Scarborough and remained there until around 10:30 p.m. He then drove home. [ 26 ] On the way home Mr. Hassan decided to take some books to a friend at St. Louis Bar and Grill on Yonge Street. When he got there, at around 11:30 p.m., the bar was closed so he continued home travelling north on Yonge Street. He turned onto Industrial Road, a short cut to his home which is located at Elgin Mills Road and Shirley Drive. Mr.

Hassan testified that he stopped at the red light before turning right onto Industrial Road. He said that he did not see the officer or know that the officer was trying to stop him until he pulled into the driveway for his home. [ 27 ] Mr. Hassan testified that he has a chronic medical condition. He was diagnosed by a neurologist, Dr. Sharon Cohen, with a neurological disorder, glaucoma, and dementia. He has been treated by Dr. Cohen since 2015. Mr. Hassan explained that he was first diagnosed in 2014 by Dr. Roussev with “shaky legs”, a nerve condition that affects his vision, legs, and feet.

He was prescribed “Garabantie” for the nerve condition. The medication is for leg, feet and neuropathic pain. Mr. Hassan advised that he is on disability as a result of dementia and his loss of vision. The glaucoma has resulted in almost complete loss of vision in his right eye. He also takes medication for glaucoma. [ 28 ] Mr. Hassan testified that he began taking the nerve medication in 2015. Initially he took six pills a day, but in 2018 the pain worsened, and he began taking twelve pills per day. On the first day of his testimony Mr.

Hassan testified that on the day of his arrest, he took six pills in the morning, and an additional three pills at around 1:00 p.m. When Mr. Hassan’s evidence continued September 23, 2019, he had some difficulty recalling how many pills he took on April 22, 2018. I have not attached any significance to this inconsistency considering Mr. Hassan’s diagnosis of dementia. [ 29 ] In respect of his interactions with PC Russo on April 22 and 23, 2018, Mr. Hassan testified that after the traffic stop the officer told him to stay in his car and asked him for his drivers’ license, ownership, and insurance.

He provided the documents. The officer asked him if he had been drinking and he replied no because he thought the officer was asking him if he had just come from a bar. He said that the officer then told him that he wanted to do a test and called for back-up. The officer produced a black tape and told him that he wanted him to walk on it. Mr. Hassan testified that he told the officer that he had nerve issues and could not stand for more than two or three minutes and that he needed to take his medication. He testified that prior to the physical tests he told the officer that his medication was in the house.

He said that the officer did not say anything in response, and he thought the officer was in a rush to deal with the situation. Mr. Hassan testified that the medication he needed was inside of his house and he could have located it very quickly. [ 30 ] Mr. Hassan indicated that another officer arrived and he did the test. Mr. Hassan did not recall the officer asking him questions about his back and legs, or ears and balance, but said that he told the officer that he could not stand and that he had glaucoma before the tests, but the officer ignored it.

He testified that he told the officer about wanting his medication because his feet were burning, and the pain was becoming severe. He testified that the pain was a 10 on a scale of 1 to 10. He explained that the medication relieves the pain within five minutes.

[ 31 ] A portion of the police station surveillance video was played for Mr. Hassan which showed Mr. Hassan at the police station in the holding cell removing his shoes and rubbing his feet. Mr. Hassan explained that he did this because his feet were burning, and he was rubbing his feet to try and make the pain a bit “softer” until he was able to return home to take his medication. [ 32 ] Mr. Hassan testified that if he had been given his rights to counsel at the scene, he could have checked the internet to find a lawyer because he wanted to know his rights.

He noted that his call with duty counsel at the station was not more than three minutes and if the officer had contacted duty counsel at the scene, he would have spoken to him. Mr. Hassan testified that he had a cell phone and if he had been allowed to use it at the scene of his arrest would have contacted a lawyer. C. Position of the Parties [ 33 ] The applicant submits that Mr. Hassan’s rights under ss. 8, 9 and 10(

b) of the Charter were violated because the physical coordination tests were not “forthwith”. The applicant submits that his s. 10(

b) right to counsel was violated because he was not advised of the right to counsel without delay and because he was not given an opportunity to speak with counsel at the scene. The applicant submits that there was a realistic opportunity for him to contact counsel while the police were waiting to conduct the physical sobriety tests. [ 34 ] The applicant further submits that the breath samples obtained at the police station pursuant to the s. 254(3) demand were not authorized by law because PC Russo did not have the required reasonable grounds to make the demand.

The applicant submits that PC Russo’s grounds to believe that his ability to operate a motor vehicle was impaired were not objectively reasonable because PC Russo should not have relied on the applicant’s failure of the standard field sobriety tests because the applicant communicated to him that he had a medical condition that affected his ability to perform the tests. [ 35 ] The applicant also submits that Mr.

Hassan’s s. 7 right to security of the person was violated because he was denied necessary medication by the police during his detention. [ 36 ] As a remedy for the alleged breaches, the applicant seeks the exclusion of the breath samples under s. 24(2) of the Charter , and in relation to the s.7 breach a stay of proceedings, under s. 24(1) of the Charter , or in the alternative, should a finding of guilt be made, a reduced sentence, under s.24(1) of the Charter . [ 37 ] In respect of the impaired driving count, the defence submits that the Crown has not established that Mr.

Hassan’s ability to operate a motor vehicle was at least slightly impaired beyond a reasonable doubt. The defence submits that there were no indicia of impairment other than the odour of alcohol. There was no evidence of bad driving, except, if the officer’s evidence is accepted, that Mr. Hassan turned right on a red light, an action which in the circumstances, was not indicative of impairment. [ 38 ] In response, the Crown submits there were no breaches of ss. 7, 8, 9, or 10(

b) of the Charter . The Crown submits that PC Russo made a lawful roadside field sobriety test demand after forming the necessary reasonable suspicion to believe that Mr. Hassan had alcohol in his body based on his observations of the applicant at the roadside, including the odour of alcohol coming from his breath. The Crown submits that the field sobriety testing was completed “forthwith” and after Mr. Hassan failed the testing, PC Russo had the required reasonable grounds to arrest Mr.

Hassan for impaired operation and to make a breath demand under s. 254(3) of the Criminal Code . [ 39 ] The Crown submits that the right to counsel was suspended at the roadside until the completion of the screening tests and that there was not a reasonable opportunity for Mr. Hassan to contact counsel while awaiting the arrival of the second officer. The Crown submits that the police complied with their informational and implementational obligations and that PC Russo was entitled to rely on the failure of the standard field sobriety testing because Mr.

Hassan did not make clear the nature of his medical disorder and PC Russo had good reason not to accept what Mr. Hassan told him. The Crown submits that Mr. Hassan did not tell the officer that he needed medication until after his arrest. PC Russo had only limited information from Mr.

Hassan about any medical problem and the applicant has failed to establish a breach of s. 7 on a balance of probabilities. [ 40 ] The Crown submits that if any of the alleged breaches of the Charter are established, the breaches are not serious, and had only a minimal impact on the accused’s Charter protected rights such that no remedy under s. 24(2) or s. 24(1) is warranted. This is not one of the clearest of cases where a stay is appropriate. D.

Section 8, 9 and 10(b) : Did the Standard Field Sobriety Tests Comply with the “Forthwith” Requirement of s. 254(2)(a) [ 41 ] Section 254(2) (

a) of the Criminal Code provides for standard field sobriety testing where an officer has reasonable grounds to suspect that a driver has alcohol or drugs in his or her body and has operated a vehicle within the previous three hours. The relevant portions of s. 254(2) (

a) provide as follows:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, …..the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (

a) and (c), in the case of a drug, or with the requirements of either or both of paragraphs (

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

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand

may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; [ 42 ] There is no dispute that PC Russo had the requisite reasonable suspicion to make a standard field sobriety test demand under s. 254(2) (

a) of the Criminal Code . At issue is whether the “forthwith” requirement was met, and whether, in light of Mr. Hassan’s medical condition, the officer could rely upon the failure of the standard field sobriety tests to formulate the necessary reasonable grounds to arrest Mr.

Hassan for impaired driving, and to make a breath demand under s. 254(3) of the Criminal Code . [ 43 ] In Quansah [1] , the Ontario Court of Appeal considered the “ forthwith ” requirement of s. 254(2) of the Criminal Code and made the following findings: • The meaning of s. 254(2) and the “forthwith” requirement is informed by the provisions purpose.

Parliament created a two-step detection and enforcement procedure in s. 254 that necessarily interferes with rights and freedoms guaranteed by the Charter . • The first step, pursuant to s. 254(2), authorizes peace officers, on reasonable suspicion of alcohol consumption to require drivers to participate in screening tests at the roadside to determine whether more conclusive testing is warranted.

The second step, under s. 254(3), allows peace officers who have the required reasonable grounds, which may flow from an approved screening device test, (or from a standard field sobriety test), to demand breath samples for a more conclusive breathalyzer analysis, which will determine whether the alcohol level of the detained driver exceeds the legal limit. • The “forthwith” requirement is linked to the constitutional integrity of s. 254(2) and was intended to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights, including the rights protected by s. 8, 9 and 10(

b) of the Charter . • So long as a demand is made “forthwith” and is otherwise in compliance with s. 254(2) there is no unjustified seizure or arbitrary detention or breach of the requirement to advise a detainee of his or her right to counsel during the period necessary to conduct the standard field sobriety testing.

This is because the statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights given the extreme danger represented by impaired drivers on the road. • The term forthwith in s. 254(2) means “immediately” and “without delay” and indicates a prompt demand by a peace officer, and an immediate response by the person to whom the demand is addressed. It is implicit in s. 254(2) that the demand must be made by the police officer “forthwith”, as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.

The immediacy requirement is explicit for the mandatory response by the driver, who must provide the sample “forthwith” (or perform sobriety testing “forthwith”) upon the demand being made. • Although the “forthwith” requirement connotes a prompt demand and an immediate response, in unusual circumstances a more flexible

interpretation may be given. The time from the formation of reasonable suspicion to the making of the demand to the detainee’s response to the demand by refusing to perform the screening testing or by performing the test must be no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement. • If the screening test is not conducted before there is a realistic opportunity to consult counsel that was not provided, the immediacy requirement will not be met.

If the tests are done before a realistic opportunity to consult with counsel, but after a delay longer than is reasonably necessary for the purposes of s. 254(2) it is not “forthwith”. • Examples of where some delay may be justified as reasonably necessary to enable an officer to properly discharge his or her duty include: o Where the police officer takes further steps, such as sobriety and physical coordination tests to determine whether there are reasonable grounds for an Intoxilyzer demand; o Where the delay is necessary to ensure the reliability of the approved screening device test, such as where there has been recent consumption of alcohol or smoking; o Where the officer asks questions to learn the amount of alcohol said to have been consumed so that, where the officer has confidence that only one drink was consumed, the officer may direct the motorist on his or her way; or o Where legitimate public safety or similar exigencies arise and justifiably explain a brief delay preventing immediate communication of a screening demand or the commencement of the screening test. [ 44 ] Although in Quansah the court was considering the “forthwith” requirement in the context of a demand for an approved screening device test, the reasoning and

interpretation of “ forthwith ” is equally applicable to a demand for standard field sobriety tests. Analysis and Conclusions – Forthwith Issue

[ 45 ] I am satisfied that the standard field sobriety tests complied with the “forthwith” requirement of s. 254(2)(a). The chronology of the events was as follows: • 11:45 p.m.: PC Russo first observed Mr. Hassan driving his vehicle on Yonge Street, shortly before he turned onto Industrial Road. • 11:53 p.m.: PC Russo stopped Mr. Hassan and made the standard field sobriety test demand pursuant to s. 254(2) (

a) immediately after forming a reasonable suspicion that Mr. Hassan had alcohol in his system. • 11:56 p.m.: PC Russo requested a second officer to attend the scene so that he was not alone while performing the standard field sobriety tests. • 11:58 p.m.: The second officer arrived. • 12:03 a.m.: PC Russo commenced the standard field sobriety tests. • 12:14 p.m.: Mr. Hassan failed the standard field sobriety tests and was placed under arrest, searched incident to arrest, and placed in the police vehicle. • 12:18 am. Mr. Hassan was provided with the rights to counsel, caution, and breath demand. • 12:24 a.m.: Mr.

Hassan was transported to the police station. • 12:32 a.m.: Mr. Hassan and PC Russo arrived at the police station and Mr. Hassan was booked. • 12:57 a.m. PC Russo contacted duty counsel for Mr. Hassan. • 1:00 -1:04 a.m.: Mr. Hassan spoke with duty counsel. • 1:13 a.m.: Mr. Hassan was turned over to the breath technician. • 1:18 a.m.: Mr. Hassan completed the first breath test into the approved instrument. • 1:39 a.m.: Mr. Hassan completed the second breath test into the approved instrument. • 2:13 a.m.: Mr. Hassan was served with documents • 2:15 a.m. Mr.

Hassan was released and driven home by PC Russo. [ 46 ] I am satisfied that PC Russo complied with the “forthwith” requirement in s. 254(2) (

a) of the Criminal Code . He issued the demand to Mr. Hassan immediately after he formed a reasonable suspicion that Mr. Hassan had alcohol in his system and had been operating a motor vehicle within the proceeding three hours. I am also satisfied that the time from the demand to the commencement of the standard field sobriety tests was “forthwith”. Within three minutes of making the demand PC Russo radioed for a second officer to attend. It was 11:56 p.m. at night and PC Russo was alone with an individual he did not know and with whom he had no prior dealings.

It was entirely appropriate for PC Russo to ask a second officer to attend for officer safety reasons. It took only two minutes for the second officer to arrive at 11:58 p.m. There was some set up required for PC Russo to perform the standard field sobriety testing in order to capture it on the in-car camera and it is reasonable to infer that he must have required a least a few moments to brief the second officer. He commenced with the sobriety testing within 5 minutes of the second officer’s arrival at 12:03 a.m. The total period that elapsed from the demand to the beginning of the sobriety tests was 10 minutes.

I am satisfied that this period was no more than was reasonably necessary to enable the officer to properly discharge his duties. [ 47 ] In addition, I am satisfied that in context there was not a realistic opportunity for Mr. Hassan to speak with counsel during this time. PC Russo was in Richmond Hill and from experience expected that the officer would arrive quickly, faster than would allow for implementation of the right to counsel. In fact the officer arrived within two minutes.

Assuming that a cell phone was available to make a call, I am not satisfied that there was sufficient time for PC Russo to read the rights to counsel, ensure that Mr. Hassan understood them, and to contact a private lawyer or duty counsel, connect with and receive a call back from a lawyer, and provide Mr. Hassan an opportunity to consult privately with counsel. I am not satisfied that the applicant has established a breach of s. 8, 9, or 10(

b) of the Charter on this basis. E. Did the Officer Have Reasonable Grounds to Make a s. 254(3) Demand Based on the Failure of the Standard Field Sobriety Tests. [ 48 ] With respect to s.8, while the onus is generally on the accused to establish breaches of Charter rights on a balance of probabilities, breath samples are obtained via a warrantless search and warrantless searches are prima facie unreasonable. As a result, the Crown has the burden of proving that reasonable grounds existed for the breath demand. The Crown bears the persuasive burden of establishing that the search was authorized by law. [2] [ 49 ]

Section 495 of the Criminal Code gives police officers the power to arrest anyone they find committing, or that they have reasonable grounds to believe has committed, an indictable offence. In this case, if, at the time of the arrest, PC Russo had reasonable

grounds to believe that the applicant had committed the offence of impaired driving then the arrest was lawful. If not, the arrest and resulting detention violated s. 9 of the Charter . [ 50 ] Section 254(3) of the Criminal Code permits an officer to demand breath samples where the officer has reasonable and probable grounds to believe that the person is committing, or at any time within the preceding three hours, has committed an offence under

section 253 of the Code as a result of the consumption of alcohol. A lawful demand made under section 254(3) includes the statutory authority for the officer to require an individual to accompany him if necessary, to provide breath samples. [ 51 ] If P.C. Russo did not have reasonable grounds to believe that Mr.

Hassan’s ability to drive was impaired by alcohol when he made the breath demand, then the demand was not authorized by law, and the taking of the breath samples violated the applicant’s rights under s. 8 of the Charter . [3] [ 52 ] The existence of reasonable grounds entails both an objective and a subjective component.

An officer must subjectively form an honest belief that there are reasonable grounds to believe that the subject has committed the offence and the belief must be objectively reasonable. [4] The meaning of reasonable and probable grounds for an arrest was classically stated by Cory J. in Storrey as follows: In

summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base an arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds.

Specifically, they are not required to establish a prima facie case for conviction before making the arrest [5] . [ 53 ] Reasonable grounds is more than suspicion, but less than proof beyond a reasonable doubt, or even a prima facie case. The arresting officer is not required to establish the commission of an offence on a balance of probabilities but must be acting on something more than reasonable suspicion or a hunch. [6] [ 54 ] In the context of impaired driving investigations, while the standard should not be watered down, it is not an onerous standard.

The precondition to an officer’s authority to effect an arrest and to make a breath demand is satisfied where the officer subjectively and objectively has reasonable and probable grounds to believe that the applicant’s ability to operate a motor vehicle is impaired to any degree ranging from slight to great.

Impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. [7] [ 55 ] It is also important to keep the following in mind when assessing the reasonable grounds to believe standard: • Evidence must be considered cumulatively and not piecemeal. [8] • The reasonable grounds standard must be interpreted contextually and take into account all the circumstances, including the timing involved and the events leading up to the arrest or demand.

Police officers must make decisions quickly, in circumstances that are less than ideal, and on the basis of information available to them at the time , which is sometimes incomplete. [9] • Reasonable grounds can be established despite the fact that there may be competing explanations for individual factors that contribute to the officer’s belief. The officer is only required to consider the incriminating and exonerating information to the extent that the circumstances reasonably permit.

The inference that the subject is impaired may be reasonable even if it is not the only inference that can be drawn from the circumstances. “Reasonable grounds to believe” does not require the officer to be in a position to dispel or rule out innocent or innocuous inferences that may be drawn from the same observations. [10] Analysis and Conclusions – Sufficiency of Grounds for Demand and Arrest [ 56 ] While I am satisfied that subjectively PC Russo believed that Mr. Hassan’s ability to operate a motor vehicle was impaired by alcohol, I am not satisfied that his determination was objectively reasonable.

I am not satisfied that he had the requisite reasonable grounds to make a demand under s. 254(3) of the Criminal Code . [ 57 ] PC Russo’s grounds for making the breath demand under s. 254(3) were dependent on the failure of the standard field sobriety tests. Without the failure of the standard field sobriety tests there was insufficient evidence to establish reasonable grounds to believe that Mr. Hassan’s ability to operate a motor vehicle was impaired. I am not satisfied that there was evidence of bad driving that would suggest impairment. I accept that Mr.

Hassan did not come to a complete stop at a red light prior to making a right-hand turn. However, in my view this type of highway traffic infraction, occurring late at night, in the location that it did, was not suggestive of impairment and was not something when considered with the totality of the facts, that established reasonable grounds to believe that Mr. Hassan was impaired. Secondly, I am not satisfied that the fact that Mr. Hassan chose to take the route along Industrial Road to Elgin Mills Road

was a fact that supported reasonable grounds to believe that Mr. Hassan was impaired. Similarly, I am not satisfied that there was a failure by Mr. Hassan to respond in a timely manner to the officer’s direction to stop when he activated his roof lights. Mr. Hassan was at his home and pulled into the driveway at the same time or immediately after the officer activated his lights. I accept that he simply did not see the officer until he had completed pulling into his driveway. I am not satisfied that the officer could rely upon Mr.

Hassan pulling into his home instead of stopping on the roadway in front of his home to support reasonable grounds to believe that Mr. Hassan was impaired. Aside from the smell of alcohol, there were no obvious physical indicia of impairment, independent of the sobriety testing. I accept that the prior conviction for impaired driving and the fact that Mr. Hassan appeared to have lied to him about whether he had been drinking were factors that PC Russo could consider as part of the totality of the circumstances in determining whether he had reasonable grounds to believe that Mr. Hassan was impaired.

However, when the evidence is viewed in totality, it is clear that PC Russo had neither subjective nor objective reasonable grounds to arrest Mr. Hasan for impaired driving or to make a s. 254(3) demand prior to conducting the physical sobriety tests. This was the very reason he conducted the physical sobriety tests. [ 58 ] I agree with Mr. Pizuki that based on what the officer knew at the time he conducted the tests it was not objectively reasonable for PC Russo to rely upon the results of the physical sobriety tests to formulate reasonable grounds to arrest Mr. Hassan. I find that prior to Mr.

Hassan performing the physical sobriety testing he told PC Russo that he had a nerve problem that made it difficult for him to stand for longer than 2 or 3 minutes. I also believe that Mr. Hassan told the officer that he had a vision problem. It is not clear to me whether PC Russo did not understand what Mr. Hassan said at the time this was conveyed by Mr. Hassan, did not hear him, or has simply forgotten, but I accept that Mr. Hassan told the officer that he had a vision problem.

It is not plausible to me that he would have failed to advise PC Russo that he is blind in one eye when the officer was conducting an examination of his eyes. I accept Mr. Hassan’s evidence on this point. [ 59 ] Mr. Hassan is 58 years old but presents as older and somewhat infirm. I am satisfied that the way he presented in court is consistent with how he appeared to PC Russo at the time of the traffic stop. I base this conclusion on Mr.

Hassan’s evidence that his health problems were present in 2018 and on the surveillance video from the police station which confirms that he looked the same in 2018. [ 60 ] PC Russo had an approved screening device with him and acknowledged that he could have used it if he had been concerned about relying upon the physical sobriety testing. In my view PC Russo should have been concerned about relying on the sobriety tests and should have used the approved screening device. [ 61 ] I find that at least sub-consciously PC Russo’s willingness to consider what Mr.

Hassan was telling him about his physical limitations and to consider how it would affect the physical sobriety testing was clouded by the fact that he believed Mr. Hassan had previously been convicted of impaired driving and had lied to him about his consumption of alcohol. Even if PC Russo was skeptical about whether Mr. Hassan had a medical condition that would affect his ability to do the sobriety tests, he should have asked Mr. Hassan for more information about his health. I accept PC Russo’s evidence that he was not familiar with a condition called “nerves”, however, he should have asked Mr.

Hassan to explain what he meant and how the condition impacted his ability to walk and stand for more than two or three minutes. Instead of being duly diligent and asking further questions, or taking the obvious alternative investigative route available, the approved screening device, PC Russo chose to proceed with physical sobriety tests.

In my view, with the information he had at the time, it was not reasonable for PC Russo to rely upon the failure of physical sobriety tests by a physically infirm man who had expressed that he had a medical disorder that affected his ability to stand for more than two or three minutes. [ 62 ] As a result, I am satisfied that the applicant has established that PC Russo did not have the reasonable grounds to believe that Mr. Hassan was impaired by alcohol necessary to lawfully arrest him and to make a lawful demand under s. 254(3) of the Criminal Code . As a result, I find that Mr.

Hassan’s rights under ss. 8 and s. 9 of the Charter were violated. F. The Alleged

Section 7 Violation - Denial of Medication [ 63 ] Mr. Hassan alleges a breach of his s. 7 Charter right to security of the person on the basis that the police conduct, following his detention and after his arrest, denied him medication he required, causing him to suffer pain related to his nerve disorder which could have been alleviated had the police retrieved his medication at the scene or once he was at the station. [ 64 ] As noted above, Mr. Hassan was first detained at approximately 11:53 p.m. when PC Russo effected a traffic stop. PC Russo began the standard field sobriety tests at 12:03 a.m. and placed Mr.

Hassan under arrest at 12:14 a.m. Although Mr. Hassan testified that he told PC Russo that he required his medication before he was placed in the police car, I find that he is mistaken regarding this, and find that he first told PC Russo following his arrest, and after he was in the police car, that he required his medication, sometime shortly after 12:14 a.m. when he left for the police station. [ 65 ] Mr. Hassan was transported to the police station at 12:32 a.m. and he remained there until 2:15 a.m., when he was served with documents, released on a promise to appear, and driven home by PC Russo.

The entire detention was less than two and a half hours. [ 66 ] I am satisfied that the applicant has established that he suffered from a number of medical conditions including a nerve disorder that caused pain in his hands, feet, and legs, glaucoma, and dementia. I am also satisfied that Mr. Hassan not only requested his medication at the scene but also during the booking process. He told the officers during the booking process that he was in discomfort because he did not have his medication and that his feet were burning. I accept Mr. Hassan’s evidence that his feet were burning, and he was in discomfort.

His evidence is corroborated by the video surveillance footage that shows him removing his shoes in the cells and rubbing his feet. [ 67 ] In terms of the seriousness of the pain Mr. Hassan was experiencing and the urgency that he receive his medication, although he testified in court that his level of pain was 10 out of 10, I am not satisfied that the circumstances were that dire. Although he clearly told the officers that his feet were burning at the station, I find that he did not make it clear to PC Russo at the scene or to the officers at

the station that he was in significant discomfort, and, based on the totality of the evidence, I find that it was not clear to the officers from what Mr. Hassan said to them, or from how he presented that he was in serious physical distress that required immediate attention. [ 68 ] In addition, in assessing the seriousness and extent of his discomfort, I note that Mr. Hassan planned to stop at St. Louis Bar on the way home to meet a friend and exchange some books with him. He was not able to do so because the bar was closed and as a result he returned home.

It was not clear how long he planned to stay at the bar had it been open, but clearly the stop would have delayed him from taking his medication. This context suggests that even though he was away from home for most of the day, he was not rushing home to take his medication. This context must be taken into account in assessing the severity of the pain he was experiencing, and the urgency of his need for medication. [ 69 ] At the same time, I do not want to trivialize Mr. Hassan’s experience. I accept that during the period of his detention between 11:53 p.m. and shortly after 2:13 a.m. Mr.

Hassan suffered discomfort because he could not take his medication to alleviate the burning he was experiencing in his feet. [ 70 ] Not every qualification or compromise of a person’s security of the person comes within the reach of s. 7 of the Charter . The qualification or compromise must be significant enough to warrant constitutional protection. To suggest that any qualification or compromise of security of the person engages s. 7 risks trivializing the protections of the Charter . Security of the person protects both the physical and psychological integrity of the individual.

For a violation of the security of the person to be established, the state action must involve a “substantial interference” with the persons physical integrity or have a serious and profound effect on the person’s psychological integrity. [11] [ 71 ] I do not accept that PC Russo was indifferent to or unconcerned with Mr. Hassan’s well-being. Although he had limited information and understanding about Mr. Hassan’s medical condition and his need for medication, PC Russo demonstrated his concern for Mr. Hassan’s well-being by expediting the investigation so that he could release Mr.

Hassan immediately after the breath tests were completed. Following his release, PC Russo drove Mr. Hassan home so that he could get his medication as quickly as possible. [ 72 ] Nonetheless, I find that PC Russo and the booking sergeant should have made further inquiries to better understand Mr. Hassan’s medical condition and his need for medication. PC Russo candidly agreed that he realized in hindsight that steps could have been taken to recover Mr. Hassan’s medication from the home while he was at the scene and that it became more complicated to obtain the medication once Mr. Hassan was at the station.

While it may have been possible for PC Russo and a second officer to attend in the home with Mr. Hassan to retrieve Mr. Hassan’s medication, I recognize that PC Russo was faced with a difficult circumstance. There may be real safety concerns for an officer, even if accompanied by a second officer, to enter an unknown individuals’ home. Also, once an individual is under arrest, an officer cannot simply allow an individual to enter their home unaccompanied. If they were to do so, they might be faced with the prospect of the individual refusing to leave the home.

During the booking process the officers explored whether there was anyone at Mr. Hassan’s home who could bring him his medication and learned that no one else was home. Under the circumstances, the solution was not necessarily obvious or simple. [ 73 ] In my view the route the officer took, to complete the investigation as quickly as possible and drive Mr. Hassan home so he could take his medication showed that PC Russo was not indifferent to Mr. Hassan’s well-being. However, it also confirms that Mr.

Hassan clearly conveyed to PC Russo that he needed his medication as soon as possible. [ 74 ] Taking into account the finding that Mr. Hassan was not in serious medical distress and did not suffer any ongoing injury, in my view the state conduct that lead to Mr. Hassan being unable to access his medication for approximately two and a half hours did not violate s. 7 of the Charter .

The conduct did not involve a substantial interference with his physical integrity and did not have a serious and profound effect on his psychological wellbeing. [ 75 ] In Donnelly , the accused plead guilty to the offence of making child pornography for the purpose of publication. Following his guilty plea he applied for a stay of proceedings as a result of alleged state misconduct, including a failure by correctional authorities to provide him prescribed medication that was in their possession. The trial judge found a breach of Mr.

Donnelly’s security of the person interest contrary to s. 7 of the Charter but concluded that a stay was not warranted.

Instead as a remedy, the trial judge reduced the sentence under s. 24(1) of the Charter . [ 76 ] The misconduct grounding the finding of a s. 7 violation, occurred over a three-day period while the accused was in custody awaiting a bail hearing and included: i.) Delay in providing prescribed medication; ii.) Derogatory comments made by state agents during transport; iii.) Physical abuse by correctional officers, a trip and punch to the head; and iv.) Correctional officials leaving Donnelly partially clad after a strip search when he was placed on suicide watch. [78] In respect of the medication, the trial Judge found that the accused was denied medication while in custody for a period of 48 hours.

The trial Judge noted that Donnelly did not request his medication, although others did on his behalf, and that it was a correctional policy not to administer medication brought into the jail by inmates. The trial judge concluded that Donnelly suffered no physical harm as a result of the delay in receiving his medication but found that the delay in providing the medication exacerbated Donnelly’s inherent anxiety and caused him to believe that the authorities were intentionally withholding his medication.

[79] On appeal, the Ontario Court of Appeal held that the findings of fact of the trial judge were based on palpable and overriding errors, but nonetheless concluded that “even if the findings of fact made by the trial judge remain intact, those findings simply do not support a finding of s. 7 infringement when the proper standard is applied”. [80] Given the Court of Appeal’s conclusion that the factual circumstances in Donnelly would be insufficient to establish a breach of s. 7 of the Charter , the circumstances of this case while unfortunate, simply cannot support a finding of a violation of s. 7. [81] In the event I am wrong such and there was a violation of s. 7, having regard to the findings in Donnelly , and the Supreme Court of Canada’s findings in Nasogaluak [12] , the conduct most certainly could not justify a stay of proceedings having regard to the high threshold required for a court to impose a stay. [13] In Nasogaluak , the court held that the high threshold for a stay of proceedings was not met where during the accused’s arrest for impaired operation of a motor vehicle and flight from police the accused was punched in the head three times, in the back twice, and pinned face down on the pavement resulting in broken ribs and a punctured lung that required emergency surgery.

The nature of the conduct of the state officials in this case is simply not comparable. [82] However, this does not mean that the delay in Mr. Hassan being able to access his medication is irrelevant to the disposition of this matter. In my view, it must be considered as a part of the totality of the circumstances in assessing whether a remedy under s. 24(2) for the breaches of s. 8 and 9 of the Charter is appropriate. Mr. Hassan was denied medication while he was arbitrary detained and the taking of the breath samples occurred while he was in discomfort because he was not able to retrieve his medication. G.

Section 24(2) [83] Exclusion of evidence is not automatic upon a finding that it was obtained in a manner that violated the Charter . Section 24(2) of the Charter requires that a court exclude evidence only if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute.

The accused bears the burden of establishing this on a balance of probabilities. [14] [84] According to the Supreme Court of Canada’s decision in Grant [15] , there is a three-pronged test that must be applied when considering the admissibility of evidence under s. 24(2) of the Charter .

The court must assess and balance 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) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. [16] [85] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account.

In my view consideration of these governing principles leads to the conclusion that the Intoxilyzer results of the respondent’s breath samples should be excluded. [86] In respect of the seriousness of the breaches, although I do not believe that PC Russo acted in bad faith, in my view he should have realized that it was not appropriate to proceed with and rely upon the standard field sobriety tests without a better understanding of Mr. Hassan’s medical circumstances. This is especially so given that he was dealing with an individual who appeared older and infirm.

He should have asked further questions or simply decided to proceed with the approved screening device test which was readily available to him. When Mr. Hassan asked for his medication, he should have made further inquiries to assess his need for the medication and considered more carefully whether he could retrieve the medication at that time. As a result, I find that while not the most egregious Charter breaches, the breaches were not merely technical and were serious enough that the first prong of the Grant factors supports exclusion of the evidence.

In my view, the nature of the conduct in this case is distinguishable from the conduct of the officer in Jennings [17] , discussed below. It is closer to the type of conduct that occurred in Au-Yeung [18] , in that PC Russo relied upon the results of the physical sobriety tests in circumstances where it should have been clear to him that it was not appropriate to do so. The grounds to make the s. 254(3) demand were clearly deficient.

[87] In relation to the impact on Mr. Hassan’s Charter protected rights, despite the findings of the Ontario Court of Appeal in Jennings [19] , I find that this factor supports exclusion. In Jennings , the trial judge concluded that there was a violation of s. 8 of the Charter because the officer’s grounds for a s. 254(3) demand, based on an approved screening device test failure, were not objectively reasonable because the officer did not follow a number of the steps outlined in the OPP policy manual for the operation of the approved screening device. The trial judge excluded the breath samples under s. 24(2).

On review, the Court of Appeal concluded that the officer’s grounds were objectively reasonable and that the trial Judge erred in finding that there was a breach of s. 8 of the Charter .

Although this finding was dispositive of the appeal, the Court went on to consider s. 24(2) in order to clarify a division in the law regarding the proper approach to the assessment of the second prong of s. 24(2) in impaired driving or “over 80” cases where the applicant seeks to exclude breath samples as a remedy for breaches of s. 8 and 9 of the Charter . [88] In respect of the second prong of the Grant test, the Court of Appeal rejected the approach taken by the court in Au-Yeung where, in considering the impact of the breach the court focused not only on the impact of the administration of the breath test procedure, which is minimally intrusive, but on the entirety of the procedure faced by the accused including the initial detention, being placed in the back of a police cruiser, transported to a police station, and detained at a police station for a substantial period of time.

In rejecting such an approach, the Court of Appeal found that the Supreme Court’s indication in Grant that breath tests were minimally intrusive was “no mere throwaway line”, adding that “the Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search”.

The Court of Appeal emphasized that the Supreme Court surely did so with the knowledge that most formal demands for breath samples would be accompanied by an arrest and the processing related to the arrest and resulting in time spent in custody. [20] [89] In Jennings , the Court of Appeal adopted an approach that focuses on the breath sample procedure itself stating as follows: To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the station to provide further breath samples.

This would be contrary to the approach taken by the Supreme Court of Canada in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample.

Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission. [21] [90] The Court of Appeal’s comments make clear that the routine procedures that accompany the collection of breath samples do not convert a minimally intrusive search, into conduct that has a significant impact on an accused’s Charter protected rights. [91] Despite the Court of Appeals finding in Jennings , in this case, I have concluded that the impact on Mr. Hassan’s Charter protected favours exclusion.

I do not reach this conclusion because Mr. Hassan was subjected to the routine procedures experienced by every person detained, arrested and taken to the police station to provide breath samples. Instead, I have reached this conclusion by focusing on the specific and unique circumstances of the case that resulted in a much greater impact to Mr. Hassan than is ordinarily the case when breath samples are obtained. [92] In assessing the impact on the Charter protected interests of the accused, in each case courts must have regard to “all of the circumstances”. In this case, Mr.

Hassan, an older and somewhat infirm man was arbitrarily detained as a result of sobriety tests that should not have been performed or relied upon. While arbitrarily detained, Mr. Hassan was unable to take his medication, something had a much more serious impact upon him than do routine procedures on most accused. Although, the breath samples themselves were minimally intrusive they were obtained while Mr. Hassan suffered physical discomfort because he could not access his medication. In my view, having regard to all of the circumstances the impact upon Mr.

Hassan was more serious than and distinct from the normal consequences of arrest and detention and this prong of the Grant test supports exclusion of the evidence. [93] Finally, the third prong supports the inclusion of the evidence. Breath sample evidence is reliable, minimally intrusive, and its admission would clearly serve the truth-seeking process more than would its exclusion. The Charter violation in no way undermined the reliability of the evidence and the evidence is vital to the Crown’s case.

Although the public has long had a very strong interest in dealing with “drinking and driving” cases on their merits, I note that the two readings of 100 mg/100 ml of blood, were, although in excess over the legal limit, relatively low readings in the context of impaired driving and over 80 cases.

Nonetheless, the third prong of the analytical framework favours admission of the evidence. [94] In my view, the applicant has established on a balance of probabilities that, having regard to all the circumstances, the admission of the breath sample results would bring the administration of justice into disrepute and as a result the breath sample results will be excluded. As a result, the over 80 charge is dismissed.

[95] My prior findings, that the officer did not have reasonable grounds to believe that Mr. Hassan’s ability to drive a motor vehicle was impaired, even to a slight degree, on the facts of this case demand an acquittal on the impaired driving count. The Crown has not established beyond a reasonable doubt that the accused’s ability to drive was at least slightly impaired by alcohol. As a result, there will also be a finding of not guilty on count 1, the charge of impaired driving. Released: November 18, 2019 Signed: Justice Marcella Henschel