) ) HER MAJESTY THE QUEEN Respondent – v. –, 2017 ONSC 4326

CITATION : R. v. Warling, 2017 ONSC 4326 COURT FILE NO.: 16-106 DATE: 20170714 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – CRAIG WARLING Appellant ) ) ) ) ) ) ) ) ) ) ) ) ) K. Hull, for the Respondent E. D. Boeve, for the Appellant ) ) HEARD: May 8, 2017 ON APPEAL FROM THE DECISION OF THE HONOURABLE MR. JUSTICE C.R. HARRIS DATED APRIL 15, 2016 REASONS FOR DECISION DiTOMASO J. THE APPEAL [ 1 ] The Appellant, Craig Warling (“Mr. Warling”), appeals his conviction of operating a motor vehicle while his blood alcohol exceeded 80 milligrams of alcohol in 100 milliliters of blood, contrary to s. 253(1) (

b) of the Criminal Code of Canada made by His Honour Justice C. R. Harris of the Ontario Court of Justice at Barrie, Ontario on April 15, 2016. OVERVIEW [ 2 ] There are three grounds of appeal as follows: (

a) The trial judge erred in his

interpretation of the legal test he applied when considering release pursuant to s. 498 of the Criminal Code ; (

b) The trial judge erred in holding that there was no connection between the purported breach and the breath readings for the purposes of considering s. 24(2) of the Charter ; and, (

c) In refusing to grant a stay or exclude the breath readings, the learned trial judge erred in determining the seriousness and the impact of s. 24(2) breach in holding that the breach occurred in good faith and/or that no standard practice of detention was established and/or in determining that the impact on Mr. Warling was minimal. THE FACTS [ 3 ] The facts are not largely in dispute and can be taken from the factums submitted on behalf of Mr. Warling and the Crown. [ 4 ] On April 11, 2016, Mr. Warling was arraigned and entered a plea of not guilty to a charge that he did “on or about the 25 th

day of October, 2014, at the City of Barrie, in the said Region, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood, did have the care and control of a motor vehicle, contrary to the Criminal Code of Canada , section 253(1)(b). [ 5 ] The Appellant testified he was born December 13, 1968, born in Toronto, Ontario and raised in Mississauga, Ontario. At the time of his arrest the Appellant had two younger sisters who lived in Mississauga and a mom who lived in Coburg, Ontario.

The Appellant attended high school in Mississauga and subsequent to high school attended McMaster University, receiving a Bachelor of Science in 1996, and Mohawk College, receiving a diploma in Chemical Engineering Technology in 1994. [ 6 ] Subsequent to completing his Bachelor of Science, the Appellant worked in construction for few years eventually moving to Vancouver. After living in Vancouver for approximately three years, the Appellant received a job offer in a lab and moved to Redding, California in 2003. Upon moving to California, Mr. Warling obtained a TN VISA. Mr.

Warling did not know what the initials ‘TN’ represented. The VISA permitted the Appellant to work for one specific company at a time. At the time of trial the TN VISA was valid until February, 2018. Mr. Warling had no permanent resident status in the United States. Mr. Warling had been in a relationship with his girlfriend, Ms. Tanya McGinnis, a resident of Barrie, Ontario, for just over four years (since January 2012) and had known her since 2003.

The Appellant had no criminal record at the time of trial and did not have an Ontario driver’s licence for 15 years. [ 7 ] Over the course of the four years prior to trial, the Appellant had come back to visit Ontario about three to four times a year for the purpose of vacation, Christmas, visiting friends, his parents and his girlfriend. The Appellant travelled with a Canadian passport. [ 8 ] The Appellant testified that on the evening of his arrest he had been drinking with his girlfriend. He was arrested after entering a RIDE spot check. He was handcuffed.

He identified himself through a California driver’s license. Subsequent to completing the breath test the Appellant was held in a cell, by himself, in Barrie at the police station. Upon being placed in the cell he was advised that he might be released at 6:00 a.m. Mr. Warling also spoke to duty counsel after being placed in the cell. [ 9 ] Mr. Warling was connected to the court in Newmarket by video link. He was released without surety, a $1000.00 deposit of cash, with a condition to attend court and to notify the officers of any change of address.

The Recognizance is dated October 25, 2016, and noted a time of 2:35 p.m. Mr. Warling testified he was released at about 4:00 p.m. Mr. Warling returned to California the next day. [ 10 ] In cross-examination, the Appellant testified that at the time of his arrest he had been visiting his girlfriend, Ms. McGinnis, for the weekend. He had flown in on a Thursday night/Fright morning. He was arrested late Friday night and flew back Sunday afternoon. Mr. Warling testified he did not know why he was stopped by the police some distance from Ms. McGinnis’ house.

He testified he was not familiar with the streets. [ 11 ] In terms of historical background, Mr. Warling testified he left Ontario on Labour Day, 2000. He obtained a British Columbia driver’s license and did not renew his Ontario driver’s licence since July 2002. He had never lived in Barrie. The Appellant testified that he planned to stay in the United States at least two years (expiry of the TN VISA) and maybe longer. There were no plans to move back to Canada. Ms. McGinnis and Ms. McGinnis’ sister showed up at the police station on the night/morning of the Appellant’s arrest. Mr.

Warling testified that other than having no pillow and it being cold he was treated well by police. [ 12 ] Mr. Warling agreed he spoke to duty counsel twice. Though he could not recall exactly, he believed he was advised that he would need to be brought before a Justice of the Peace before he spoke to duty counsel the first time. Evidence of P.C. Langdon: Case for the Crown [ 13 ] P. C. Langdon, the only witness for the Crown, testified that he had been a police officer with the Barrie Police Service for 14 years, each of those years spent in Barrie, Ontario. At about midnight, P. C.

Langdon observed a Honda Civic four-door vehicle approaching the RIDE stop program set up in the area of Ferndale North Drive in the north end of Barrie. The vehicle approached from the north and stopped a short distance from the RIDE stop program. P. C. Langdon’s attention was drawn to the vehicle by the sound of shattering glass. [ 14 ] Mr. Warling was driving and an intoxicated female was seated in the rear part of the vehicle. When asked where he was coming from, the male and female, who was apparently Mr. Warling’s girlfriend, replied from a liquor establishment.

They were headed to the female’s residence. [ 15 ] Subsequent to admitting he had a few drinks, having an odor of alcohol coming from his person, and having a slight slur to his speech, P. C. Langdon issued an approved screening device demand at 12:02 a.m. P. C. Langdon read a caution, arrested him for over 80, read rights to counsel, and read the approved instrument demand. [ 16 ] At 12:20 a.m. Mr. Warling was transported to the Barrie Police station arriving at about 12:29 a.m. Prior to being transported, Mr. Warling would have been handcuffed to the rear and field searched for weapons. He was very cooperative.

P. C. Langdon and the Appellant arrived at the police stations at about 12:29 a.m. [ 17 ] Mr. Warling entered the police station between 12:29 a.m. and 12:33 a.m. At 12:33 a.m. a call was placed to duty counsel. The station was busy with “multiple impaireds”. [ 18 ] P. C. Langdon identified Mr. Warling at the time of the stop or the arrest through a Canadian passport. The Appellant did not have a driver’s licence with him. Early on, before arriving at the police station, P. C.

Langdon believed he learned through conversation that the Appellant was in Ontario for the purposes of visiting the female that he was with and that he worked and lived in California and that the Appellant was a Canadian citizen. [ 19 ] P. C. Langdon was not sure when the Appellant arrived but was under the impression he was leaving either Sunday or early Monday. Upon performing a check, P. C. Langdon discovered that Mr. Warling did have an Ontario licence but that it was under suspension. When P. C. Langdon learned that that Appellant lived and worked in California, P. C. Langdon thought “his opportunity of

not returning to answer to the charges that he may be charged with at the time were high, ‘cause I don’t know him. I had never met him before”. [ 20 ] When asked whether there was a discussion with the Appellant about the possibility of being kept in jail, P. C. Langdon notes, “Don’t believe we really had that discussion with Mr. Warling other than asking him questions” but P. C. Langdon did have a brief discussion with duty counsel “in regards to it”. Later in testimony, P. C. Langdon testified he would have had a discussion with the Appellant about being a candidate for bail.

That discussion occurred “in my car”. P. C. Langdon testified he would have explained what the concept of being held for bail meant. [ 21 ] Upon arriving at the station, P. C. Langdon advised the sergeant that the Appellant lives in California, works in California, and to ensure his presence in the court, the Appellant would be a candidate for bail. Duty counsel was contacted and the Appellant spoke to duty counsel at 12:43 a.m. Prior to speaking to duty counsel, P. C. Langdon explained to duty counsel about the Appellant’s status and his being held for bail. Duty counsel advised P. C. Langdon that Mr.

Warling would be a cash bail candidate. [ 22 ] In terms of a cash bail option, P. C. Langdon testified “can’t say I turned my mind to it”. He knew of it at the time as “It’s something that we’re turned to during our training at the Ontario Police College”, “there is a provision under the Criminal Code that does cover that”. P. C. Langdon could not say whether he turned his mind to the issue: “I was fully aware of it however in the 14 years I’ve been with Barrie Police, they have - the service - has never exercised that option within the Criminal Code ”. P. C.

Langdon testified he had never used the cash bail option previously: “I’ve never done it”. The Officer in Charge would be given information about the case and make a decision about cash bail. On the evening in question the Officer in Charge would have been Sgt. Berriault and he would have been part of the decision to detain Mr. Warling. The decision to release was made by the Officer in Charge “based on the information I provide them”. [ 23 ] P. C. Langdon suggested duty counsel’s cash bail option to the sergeant but “we’re not equipped or set up to take a cash deposit”. Attendance in court was the only concern.

The Appellant was detained for bail in cell #2. [ 24 ] Prior to the breath tests being taken the Appellant spoke to duty counsel at 12:45 a.m. The second breath test was complete as of approximately 2:21 a.m. The Appellant again spoke to duty counsel at 11:36 a.m. the next morning prior to being released on bail. Mr. Warling was ultimately released on October 25, 2015, at 4:03 p.m. [ 25 ] P. C. Langdon testified he never canvassed the issue of being released to another person. P. C. Langdon did note that the female with Mr. Warling at the time of his arrest was too intoxicated to take Mr.

Warling. [ 26 ] In cross-examination, P. C. Langdon testified that at roadside he was aware that Mr. Warling lives in California, works in California, that Mr. Warling is a Canadian citizen, had a valid Canadian passport, and had a girlfriend in Barrie. Prior to arriving at the police station, P. C. Langdon knew that Mr. Warling would be leaving for California Sunday or Monday and had a strong opinion that Mr. Warling would be held for a bail hearing. Subsequent to consulting the sergeant about the information possessed by P. C. Langdon, it was confirmed that Mr. Warling was being held for bail.

Subsequent to the decision to hold the accused for bail, the only other information received by P. C. Langdon was the suggestion for cash bail made by duty counsel. [ 27 ] P. C. Langdon did not know how often the Appellant visited Ontario, how long he had been living in California, in what city he was born, what university he attended, where his parents and siblings lived, where he went to high school, nor when he arrived in Canada. P. C. Langdon did receive information that the Appellant had grown up in the area and that the Appellant was staying with his girlfriend while visiting. [ 28 ] P. C.

Langdon described the Appellant as being “very cooperative”. There was no indication of a history of mental illness nor concern of self-harm. No weapons were discovered. [ 29 ] In cross-examination, P. C. Langdon was asked whether Mr. Warling would be given the option for cash bail had P. C. Langdon considered that option: Q. If-are you trying to tell me that if that option is available you would offer that option to Mr. Warling? A. If it was a standard practice within the police service, yes.

I knew it wasn’t a standard practice from my experience with the police service, so that option wasn’t even in my mind until the duty counsel refreshed it into my mind. [ 30 ] P. C. Langdon testified that, from his experience, the standard practice has been never to release through cash bail. The decision to hold the Appellant for bail had already, subject to breath tests, been made during the booking procedure and prior to the breath tests.

The Appellant was never asked whether he would appear for court. [ 31 ] At the end of the case the Crown filed affidavit evidence from a Toxicologist, Marie Elliott. [ 32 ] In addition to these facts as stated in Mr. Warling’s factum, the Crown stated these additional facts. [ 33 ] Mr. Warling was advised of his bail situation and spoke to duty counsel. [ 34 ] Mr. Warling’s girlfriend was in a state of extreme intoxication, even when she appeared at the station at 1:05 a.m. She was so drunk that she was unable to understand what was going on around her. [ 35 ] Mr.

Warling himself, because he was also not sober, would have been held in custody absent the bail issue for at least a

further five hours following the completion of his tests. [ 36 ] Having formed the opinion based on Mr. Warling’s statement that he was leaving the country imminently and his residency in California that the chances of his failure to appear for court were high, P. C. Langdon was of the strong view prior to arriving at the station that Mr. Warling would be held for bail if he was charged with a criminal offence. Having to make the bail decision would have obviously been predicated on his failing the breath tests.

REVIEW OF THE REASONS FOR JUDGMENT [ 37 ] The Reasons for Judgment can be found in the transcript commencing at page 124 through 139. [ 38 ] By agreement, this matter proceeded by way of a Charter Application under s. 8 and s. 9 and a blended trial which was held April 11, 2016. The s. 8 argument did not proceed and was not pursued. The whole issue argued was s. 9, arbitrary detention. Justice Harris noted in his Reasons that Mr.

Warling either sought a stay of proceedings against him or an exclusion of all breath samples, pursuant to s. 9 and s. 24 of the Charter . [ 39 ] The trial judge noted that the defence argued arbitrary detention was involved with Mr. Warling being held overnight and that a stay was the only appropriate and just remedy. Mr. Warling’s breath samples ought to be excluded and on a s. 24(2) analysis, there should be a stay or exclusion. [ 40 ] Subsequent to reviewing the facts, the trial judge noted the following: (

i) it was a very busy night for impaired drivers in the station. The drunken passenger was not comprehending anything; (ii) there was no evidence that there was cash; (iii) the Appellant had pretty high readings, a suspended driver’s license, an Ontario man whose life was based in California; (iv) the Appellant never said he will not attend; (

v) the officer’s belief about failing to attend was “a belief held by the investigating officer for whatever reason”; (vi) a couple of realistic concerns arose: did police have the time and ability given the condition of the two people present to determine the facts and whether Mr.

Warling could properly be released by an Officer in Charge; (vii) whether, given all the factors, including the very fact of residence and work in California since 2003, whether the amount of money which had to be $500.00 or less, would suffice; (viii) it is not established fully on the evidence that there could be proper resort to s. 498 of the Criminal Code ; (ix) it had not been clearly established that there was a practice not to use cash bail within the station; (

x) the officers did not circumvent their duties by having speedy judicial intervention; (xi) the police acted sensibly and logically; that the police did not resort to an Officer in Charge release was abundantly sensible in all the circumstances; (xii) there was no malfeasance; (xiii) given that the Appellant was not ordinarily resident in Canada, the Appellant was in a reverse onus situation pursuant to s. 515(6) (

b) of the Criminal Code that indicates an accused should be detained unless the accused “shows cause why the accused’s detention in custody is not justified”; (xiv) the circumstances themselves dictated resort to a judicial officer, whether s. 515(6) applied or not; it was asking too much for an Officer in Charge to decide if $500.00, if for the sake of argument $500.00 was available at the time and there was no evidence on that, suffices and to somehow sort that out with a super drunk girlfriend and an accused who blew 160 and 150; (xv) the Ontario Court of Appeal cases are telling ; there is no clear proof of a standard practice; no proof at all on arbitrary detention; no nexus between the reading and the alleged arbitrary detention since Mr.

Warling would only be held after failed tests; (xvi) if there was a breach and a nexus it is significant that the public had a high interest in deterring drinking and driving; the Charter breach would have been conducted in good faith with a number of variables at play such as to make the s. 498 release an impossibility to do in the circumstances; (xvii) if there had been a breach, the Appellant’s protected interest was minimal; breath samples do not go to the “biographical core of personal information”; (xviii) if there had been a breach it would have been committed after the breath tests and would have neither a temporal or causal connection to any evidence and, therefore, no evidence should be excluded pursuant to any breach of s. 9 of the Charter; (xix) there is a societal interest in the adjudication of this case and other cases of this nature, on the evidence; (xx) the s. 9 Application is dismissed and there is neither a stay or exclusion given the relative lack of seriousness of the alleged infraction on these particular circumstances; and,

(xxi) the implication of s. 515(6) if you were in Mr. Warling’s situation, you would go to a Justice of the Peace for a hearing. [ 41 ] Subsequent to this analysis, the trial judge held that “it is my conclusion, accordingly, with the Charter Application being dismissed, the ordinary part of the case being conceded, that I am satisfied, beyond a reasonable doubt, that the evidence has been established in all respects and there will be a finding of guilty and a conviction”. POSITION OF THE PARTIES Position of the Appellant Warling [ 42 ] It is submitted that the trial judge erred in his

interpretation of the legal test to be applied when considering release pursuant to s. 498 of the Criminal Code . It is submitted that Mr. Warling was overheld at detention by the police who should have released him on an undertaking and cash deposit bail. Instead, because of an alleged systemic problem involving cash bail, the police did not release Mr. Warling but rather required him to appear before a Justice of the Peace who set bail conditions for Mr. Warling’s release from custody.

It is submitted that the trial judge did not consider whether the Officer in Charge considered all of the applicable circumstances in coming to the conclusion to detain Mr. Warling in custody. Rather than looking at whether the Officer in Charge had the applicable subjective and objective basis to detain Mr.

Warling, it is submitted that the trial judge held, in part, that the investigating officer’s decision was just a belief held by the him “for whatever reason”. [ 43 ] Further, it is submitted the trial judge erred in holding there was no connection between the purported breach and the breath readings for the purposes of considering s. 24(2) of the Charter . It is submitted that the trial judge erred in law holding that there was no nexus between the decision to detain and the breath readings.

The trial judge did not reject any of the evidence establishing that the decision to detain had been made very early in the investigation, it is submitted that the trial judge erred in refusing to grant a stay or exclude the breath readings in determining the seriousness and impact of the s. 24(2) breach where the trial judge held that the breach occurred in good faith and/or that no standard practice of detention was established and/or in determining that the impact on Mr. Warling was minimal.

It is submitted that the trial judge erred in considering that the impact was minimal based solely on the breath readings obtained and without considering the prolonged detention of Mr. Warling. Further, it is submitted that the trial judge erred in considering that a systemic issue could not be found to exist in the case at bar. [ 44 ] It is submitted on behalf of Mr. Warling that the conviction should be quashed and the breath readings excluded pursuant to s. 24(2) of the Charter . In the alternative, Mr. Warling seeks an order that the proceedings be stayed pursuant to s. 24(1) of the Charter .

In the further alternative, it is submitted that a new trial be ordered. Position of the Crown [ 45 ] The Crown submits that P. C. Langdon was not required to assess the matter as would a bail or trial court or make any sort of prediction. He was required to consider what he did and did not know in order to make an informed decision. It is submitted that this is what P. C. Langdon did. On the basis of what P. C. Langdon knew, P. C. Langdon’s decision to hold Mr. Warling in custody was not unreasonable. [ 46 ] Mr. Warling was in a reverse onus situation by virtue of s. 515(6) (

b) of the Criminal Code . It was relevant to the trial judge’s determination that Bail Court decided to release Mr. Warling on a cash bail in an amount higher than what the Code permits the officer to consider. [ 47 ] The Crown further submits that reliable evidence ought not to be excluded. It is submitted that there was no contextual or rational connection to the alleged breach of s. 9 and evidence lawfully obtained.

It was open to the trial judge to make such a finding. [ 48 ] It is also submitted by the Crown that the trial judge committed no error in finding that the taking of the breath samples to have been minimal. The trial judge carried out his balancing function and found in favour of the admission of evidence which the Crown submits is entitled to deference and ought not to be set aside.

It is submitted that the trial judge was correct to say that excluding reliable and crucial evidence in these circumstances would have brought the administration of justice into disrepute. [ 49 ] The Crown submits that the trial judge was correct in finding that there was no s. 9 Charter breach. Even if such a breach existed, it was not the sort of breach to attract a s. 24(2) inquiry. However, the trial judge did conduct a s. 24(2) inquiry and applied the right test. [ 50 ] The Crown submits that the appeal be dismissed.

ANALYSIS Standard of Review [ 51 ] In addition to deference being owed to the trial judge’s findings of fact, subject to a palpable and overriding error, on this

appeal, the trial judge’s conclusions on the scope of the Charter right is also entitled to considerable deference. Our Court of Appeal hasrecognized that the Grant enquiry requires that trial judges undertake a balancing exercise involving the weighing of often competinginterests.

It does not advance an administration of justice to permit appellate courts wide-ranging licence to second guess.[1] Issue One: Did the Trial Judge err in his Application of the Legal Test for Release by an Officer in Charge pursuant to s. 498 of theCriminal Code? [52] The answer to this question is no. [53] The trial judge held that P. C. Langdon acted appropriately and sensibly in deciding whether Mr. Warling ought to be held fora bail hearing. P. C. Langdon knew the following: (

a) Mr. Warling did not reside in Canada and had not resided in Canada for some time; (

b) Mr. Warling worked in the United States and had no work connection to Canada; (

c) Mr. Warling was leaving the country either the next or the following day; (

d) although Mr. Warling had family connections here, P. C. Langdon had no way of gauging the strength of those ties or whether theywere important to him at all; and, (

e) although Mr. Warling had no record of outstanding charges, P. C. Langdon had no prior dealings with him and had no way ofknowing whether Mr. Warling would have been genuine in promising to return to court. [54] Further, the police were in no position to speak with Mr. Warling’s girlfriend because she was extremely intoxicated. [55] The trial judge’s Reasons are replete with references to these facts and the reasonableness on the part of the police to hold Mr.Warling for bail. [56] The reference by the trial judge “for whatever reason” must be read in the complete context of his Reasons.

The trial judgehad realistic concerns and was alive to the release of Mr. Warling by the Officer in Charge. There was no evidence that Mr. Warling hadany or sufficient cash or whether Mr. Warling ought to have been released upon payment of $500 or less. Mr. Warling’s reliance on s.498 of the Criminal Code in all of the circumstances was definitely problematic. The argument that there was a systemic problem withinthis police station regarding cash deposit bail is of no consequence. The trial judge found, as he was entitled to do, that the police actedsensibly and there was no malfeasance.

The trial judge was aware of all of the concerns that were of concern to P. C. Langdon. Nofurther inquiry could have informed P. C. Langdon’s decision regarding Mr. Warling’s release. It cannot be said that his decision wasunreasonable. It was a proper consideration for P. C. Langdon to ensure Mr. Warling’s attendance in court and in this case, thatconsideration was sufficient to detain Mr. Warling. [57] Further, the trial judge stated that Mr. Warling was in a reverse onus situation by virtue of s. 515(6)(

b) of the Criminal Coderequiring Mr. Warling at the bail stage to show cause why detention was not justified. I find that it is also relevant to the trial judge’sdetermination that the court decided to release Mr. Warling on a cash bail in an amount higher than the Code permitted the Officer inCharge to consider. Certainly, the trial court can assess P. C. Langdon’s “on the spot decision” with what he knew at the time supportedby the subsequent endorsement of a judicial officer. [58] The trial judge was correct in determining that the Officer in Charge made the determination to detain Mr.

Warling onreasonable and probable grounds. In all of the circumstances, the officer formulated those reasonable grounds on a subjective andobjective basis. The trial judge did consider whether P. C. Langdon considered all of the applicable circumstances in coming to theconclusion to detain Mr. Warling in custody. For these reasons, this ground of appeal must fail. Issue Two: Did the learned trial judge err in holding that there was no connection between the purported breach and the breathreadings for the purposes of considering s. 24(2) of the Charter? [59] On behalf of Mr.

Warling, it is submitted that the trial judge erred in holding that there was no connection between thepurported breach and the breath readings for the purpose of considering s., 24(2) of the Charter. Defence counsel cited R. v. Edwards,2016 ONCA 389 , [2016] O.J. No. 2656 (Ont.C.A.), where the Court held that there was a sufficient nexus between a breach ofrights to counsel and the subsequent seizure of narcotic evidence. The test for s. 24(2) must be interpreted more flexibly and withrespect to the circumstances of the case. It is argued that in the case at bar the decision to detain Mr.

Warling was made prior to theanalysis of the breath samples. The testimony of P. C. Langdon established that prior to arrival at the police station, P. C. Langdon wasof the strong opinion Mr. Warling would be detained. Such decision was confirmed subsequent to consulting with his sergeant. Thedecision was also discussed with Mr. Warling’s lawyer (duty counsel) even before the breath tests were taken. It is submitted that giventhe fact that the decision to detain Mr.

Warling in this case had been prior to the breath tests, the trial judge erred in law in holding thatthere was no nexus between the decision to detain and the breath readings given the Ontario Court of Appeal’s decision in Edwards,supra. It is submitted that the trial judge did not reject any of the evidence establishing that the decision to detain had been made veryearly in the investigation. [60] The Crown submits that the breath readings in this case are reliable evidence crucial to the Crown’s case. As such, the breathreadings appropriately factor into the third branch of the Grant inquiry.

However, the Crown contends and the trial judge was correct infinding that there was no contextual or rational connection between the alleged breach of s. 9 and the evidence lawfully obtained. [61] The Crown takes no issue with the comments made in Edwards, to the effect that generalizations cannot be made about post-evidence breaches. (See R. v. Edwards, supra, at para. 49). However, the Crown submits that the type of police conduct in Edwards ismuch different than police conduct in the case at bar. In Edwards, the exclusion of the evidence was demanded.

The police had actedwith egregious disregard to the rights of the accused and had been deceptive. In those circumstances, they were able to say that the

breach and the evidence were all part of one transaction. With this kind of police conduct, it matters not when it happened. The conductis serious enough to warrant the exclusion of evidence under s. 24(2). [62] I find the facts are considerably different in the case at bar. It was open to the trial judge to find that the decision to hold Mr.Warling for a few extra hours, even if there was a breach, was not at all part and parcel of the same transaction as the collection of theevidence which had been completed earlier. It was certainly open to the trial judge to find that there was no “contextual” connection.

P.C. Langdon was concerned about Mr. Warling attending court. Even before obtaining the breath samples, there was a provisionaldecision to hold Mr. Warling which was confirmed after the breath tests were administered. The decision to hold Mr. Warling cameunder further scrutiny after the breath tests were taken. Given Mr. Warling’s condition, he was held for five hours. He could have beenheld for at least five hours. He could not be released into the custody of his girlfriend as she was in worse condition than he was. Heappeared at Wash Court at the earliest opportunity.

It was open to the trial judge to decline to find that this was the kind of policeconduct and connection that required investigation. [63] The “context” of the breach, if any, was the bail decision to be made once the police had evidence that Mr. Warling hadcommitted a criminal offence. That decision could only have been made, and was, tentative prior to Mr. Warling providing samples. The trial judge was correct when he found that no breach could be tied to the collection of samples which were obtained in strictcompliance with the law.

I agree with the submission by the Crown that on this basis, the case at bar falls outside the scope of thosecases required to undertake a Grant analysis. [64] For these reasons, this ground of appeal also fails. Issue Three: In refusing to grant a stay or exclude the breath readings, did the trial judge err in determining the seriousness andimpact of the s. 24(2) breach in holding that the breach occurred in good faith and/or that no standard practice of detention wasestablished and/or in determining that the impact on Mr.

Warling was minimal? [65] It is submitted that in the case at bar, the trial judge erred in considering that the impact was minimal based solely on thebreath readings obtained and without considering the prolonged detention until approximately 2:35 p.m. on October 25, 2016. The trialjudge also erred in considering that a systemic issue could not be found to exist in the case at bar where the evidence from P. C.Langdon, an experienced police officer, was that he never used the cash bail option in 13 years and that the police were not set up forthat service.

It is submitted this issue should have been considered in determining whether a stay was applicable or whether the breathreadings should have been excluded. [66] I find the trial judge did conduct a s. 24(2) analysis. The trial judge committed no error to have found the intrusion on therights of Mr. Warling, in taking the sample, to have been minimal. Breath samples are described in Grant strictly as non-intrusive. (SeeR. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 (S.C.C.) at para. 111) [67] The trial judge did note that the evidence sought to be excluded was reliable evidence.

This factor in addition to the publicinterest in adjudicating drinking and driving cases, strongly favoured the admission of the evidence. (See R. v. Grant, supra, at para. 10) [68] The trial judge found that the police acted sensibly in not releasing Mr. Warling. There was no evidence that a cash bail of$500 would have been sufficient. [69] Further, Mr. Warling’s life in California made the risk of not returning to court high. These were reasonable findings on theevidence before the trial judge and were borne out at the bail hearing.

These findings, combined with the minimal intrusion, advocatedin favour of the admission of the evidence. [70] The trial judge exercised his balancing function and did so with appropriate regard to the factors as set out in Grant. Thisexercise, essentially a weighing exercise, is entitled to deference and ought not to be set aside. (See R. v.

McGuffie, supra, at paras. 59-64) [71] I find the trial judge was correct to say that excluding reliable and crucial evidence in these circumstances would have been“draconian and non-sensical” and would have brought the administration of justice into disrepute. (See transcript of April 15, 2016, page138, line 10-25) [72] For these reasons, this ground of appeal also fails. [73] In conclusion, I find the trial judge did not commit any palpable and overriding errors. He made his findings supported by theevidence before him. Accordingly, his decision is entitled to deference.

DISPOSITION [74] For all of the above reasons, the appeal is hereby dismissed.

DiTomaso J. Released: July 14, 2017