criminal law conference november 20, 2009 the soup impaired driving – are there any defenses left?...

Criminal Law ConferenceNovember 20, 2009

The Soup

Impaired Driving – Are there any Defenses Left?

Judge Alan T. TuftsWilliam Delaney - CrownMichael Taylor - Defense

Criminal Law Conference November 20, 2009

Created by Judge Alan T. Tufts 2

The Soup Three Issues

1. Can breath samples still be excluded under s.24(2)

2. Is there still a last drink defense

3. Latest word on retrospectivity



Breath SamplesExclusion or not – s. 24(2)

R. v Grant 2009 SCC 32 July 17, 2009

Short Answer May yes; maybe no; it depends



S.24(2) - R v Grant Outline

Quick Review of Grant s. 24(b) analysis and principles

Review Grant’s reference to breath samples

Review cases to date Discuss particular factual issues



S.24(2) - R v Grant

Has the law changed re: exclusion of breath and blood samples for Charter violation? Majority refers specifically to breath

samples – para. 106 and 111



S.24(2) - R v Grant S.24(b)

Majority recognize the existing jurisprudence is difficult to apply and need to take a fresh look at framework – Grant para. 3

Collins factors are captured in new test – see Grant para. 71



S.24(2) - R v Grant

Limit our review to violations of s.8,9 and s.10(b)



S.24(2) - R v Grant Remember the Collins/Stillman test

Trial Fairness Seriousness of Charter breach; and Effect of Exclusion on repute of AoJ

Grant discusses the problems with this test particularly the conscriptive/non-conscriptive distinction



S.24(2) - R v Grant Breath/Blood samples generally seen

as conscriptive

Stillman – generally inadmissible – affected trial fairness



S.24(2) - R v Grant SCC revisits s.24(2) in Grant

Trial Fairness is a multi-faceted and contextual concept

Difficult to reconcile with near-automatic presumption that admission of broad classes of evidence would bring AoJ into disrepute

Trial fairness is over-arching systemic goal



S.24(2) - R v Grant Overview of s.24(2)

New focus on “all of the circumstances”

When? – AoJ brought into disrepute



S.24(2) - R v Grant Overview

What is Administration of Justice More than just investigating, charging and

trying suspected offenders About the Rule of Law and upholding

Charter values Focus is long term, forward –looking and from

a societal perspective Not about punishing the police



S.24(2) - R v Grant Overview

Assessing and balancing: The effect of admission

On Society’s confidence in the justice

system



S.24(2) - R v Grant Having regard to 3 inquiries

1. Seriousness of the Charter-infringing state conduct

2. Impact of the breach on the Charter- protected rights of the accused

3. Society’s interest in the adjudication of the case on its merits



S.24(2) - R v Grant 1. Seriousness

Would admission send the wrong message that courts condone deviation from Rule of Law

More severe or deliberate stronger need to disassociate with violation

Aim is preserve public confidence Rule of Law requires state authorities to uphold

Charter rights – Grant para. 73



S.24(2) - R v Grant 1. Seriousness

Conduct varies – inadvertent or minor to willful or deliberate – more seriousness more likely public confidence is affected – favours exclusion

Some action lessens seriousness A. Preventing lost evidence B. Good faith – ignorance or willful blindness is not

good faith Remember a lot of Charter breaches do not make it to

Court – Grant para. 75



S.24(2) - R v Grant 2. Impact

Extent to which breach undermines protected interest

Range from fleeting and technical to profoundly intrusive

What message are we sending about the value of protected rights – is there a risk pf public cynicism - rights have to be more “high-sounding” – Grant para. 76



S.24(2) - R v Grant Impact

Look to the interest engaged by the infringed right and the degree to which the violation impacts that right

Examples Right to silence - s.7 Right to privacy and human dignity – s.8

More serious intrusion more likely exclusion - matter of degree – Grant para. 77



S.24(2) - R v Grant 2. Impact

From Accused perspective – Harrison para. 31

Not necessarily the accused as an individual



S.24(2) - R v Grant 3. Society’s Interest in Adjudication

Truth seeking function only one consideration Reliability is a factor – if breach undermines –

leans to exclusion Exclusion of reliable and relevant evidence

undermines truth seeking function – trial unfair from public perspective – Grant para. 81



S.24(2) - R v Grant Importance to Crown’s case

A factor Questionable reliability even if all of Crown’s

case – still likely exclude More reliable evidence – more likely

admissible Short term public clamour cannot deafen the

judge to the need to protect long term repute of AoJ – Grant para. 84



S.24(2) - R v Grant Balance

No overriding rule governs Mathematical precision not possible Flexible Qualitative analysis Not just a contest between police conduct and

seriousness of offense Cannot let seriousness of offense overwhelm

analysis Police must act better than criminals - Harrison No Charter free zone - Don Stuart - Queens U



S.24(2) - R v Grant Application – Different Kinds of Evidence

A. Statements by Accused B. Bodily Substances C. Non-bodily Physical Evidence D. Derivative Evidence

Discoverability role on “impact” Discoverability not determinative



S.24(2) - R v Grant Bodily Substances

SCC discusses in context of s.8 Critics of Stillman categorical conscriptive test

– consensus now that admission is not dependant solely on conscripted or not

Multi-faceted flexible approach based on “all of the circumstances” is required

Charters concerns better addressed by reference to interests of privacy, bodily integrity and human dignity



S.24(2) - R v Grant Bodily Substances

Statements and bodily substances are different – Grant para. 105

Conscription rule often produced anomalous results

Breath samples often excluded even where breach was minor and would not realistically bring AoJ into disrepute



S.24(2) - R v Grant Bodily Substances – Grant Factors

Seriousness Fact specific Is conduct deliberate and egregious – leads

to exclusion Good faith – leads to admission




Impact S.8 context Degree to which search and seizure intrudes

on privacy, bodily integrity and human dignity

Range – forcible blood taking at one end fingerprinting at another




Merits of Adjudication Usually favours admission Usually reliable evidence




Balance see Grant para. 111 Each case considered on its own facts If intrusion is deliberate and impact on privacy is

high – exclusion But; if violation less egregious and impact less

severe reliable bodily substances admitted Example – breath samples – collection is

relatively non-intrusive



S.24(2) - R v Grant Summary of Grant principles

Purpose is to maintain good repute of AoJ AoJ embraces maintenance of the Rule of Law

and upholding Charter rights in the justice system as a whole

Focus is on “all of the circumstances Societal - broad impact on the long-term repute

of the justice system – and it is prospective Not about punishing police – it is about our

justice system



S.24(2) - R v Grant Lessons from Grant re: Breath Samples

Near-exclusion rule for conscripted breath samples is gone

Fact driven analysis Majority’s comments on bodily substances are in

context of s.8 If s.8 violation focus is on deliberate conduct and

good faith Impact on privacy seems to be minimal – Grant

para. 111



S.24(2) - R v Grant Lessons from Grant

Need to identify which Charter violation e.g. s.8, s.9 or s.10(b)

Protected interests are different Impact is on the protected interest – maybe

different depending on the type of violation What values are being undermine?

Are blood samples different than breath samples?



S.24(2) - R v Grant Lessons from Grant

Practical affect Need clearer Notices of Charter

Applications - identify Charter violations

Evidence of “conduct” and “impact” by direct or X examination

Remember A carries the onus



S.24(2) - R v Grant

Case Law Update



S.24(2) - R v Grant Reported Cases since Grant re s.253 or 254

20 Breath Samples Cases 14 no exclusion 6 exclusion

3 Refusal Cases All excluded

1 Statement Case – Impaired Driving Exclusion



S.24(2) - R v Grant Summary – Seriousness

Gravity of state conduct



S.24(2) - R v Grant Summary – Impact

Protected interests – need to identify S.8

Privacy and dignity Bodily integrity for bodily substances

S.9 Liberty

S.10(b) Right to silence



S.24(2) - R v Grant Summary – Merits of Adjudication

Reliability of evidence Importance to Crown’s case Seriousness of alleged offense cuts both way



S.24(2) - R v Grant Summary – Balance

Focus is on long term repute of AoJ



S.24(2) - R v Grant Trends from cases re breath cases

S.8 Reliance on Grant – impact is low Focus is on state conduct

Flagrant? Deliberate? Good Faith/Bad faith

S.9 Impact weighs more in favour of exclusion

S.10(b) Mixed treatment

Focus is on impact and state conduct



S.24(2) - R v Grant Trends

Contextual Particularly for s.8 and s.9 If state conduct is focus need more complete examination More extensive submissions

How does police conduct undermine Charter protected right in the long term

S.10(b) Impact is different than s.8



S.24(2) - R v Grant Trends

Two themes re s.8 1. Focus on good faith/bad faith given impact is

minimal R v Du R v Fildan R v. Bryce

2. Focus on long term “big picture” R v Beattie R v Robinson



S.24(2) - R v Grant Final Remarks

No easy answers Not a mathematical exercise – no set

formula to determine exclusion/inclusion Contextual but informed by long term

need to uphold Charter values



S.24(2) - R v Grant Problem No. 1

D stopped in early afternoon Smell of alcohol and rosy face ASD demand made but no ASD present ASD arrives and test performed after 20 minute

delay T/J conclude demand was outside authority of

s.254(2) and found s.8 & ( violation Exclusion?



S.24(2) - R v Grant Problem No. 2

D’s car seen weaving in lane and involved in minor fender bender -11pm

D admits to drinking Delay of approx. 15 minutes making

ASD demand after police had opportunity to do so.

T/J found s.8 & 10(b) violations



S.24(2) - R v Grant Answers

Problem No. 1 Exclusion – R v Beattie 2009 ONCJ 456

The decision is a difficult one. Most of the circumstances clearly favour inclusion of the evidence. Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.



S.24(2) - R v Grant Answers

Problem No. 2 No Exclusion – R v Fildan [2009] OJ No. 3604

.. no case to be made that .. constable acted with deliberate intent to give short shrift to Ms. Fildan's constitutional rights. While no good or bad faith findings are warranted on the record here, .. [no] egregious or a deliberate abuse of power.

It cannot be said that the delay in ASD testing prolonged … attendance at the roadside.

there is nothing demeaning or objectionable in participation in ASD testing.

reliability of .. evidence is an important factor the appellant has failed to demonstrate that the admission ..

could bring the administration of justice into disrepute.

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