Ontario Criminal

Charter of Rights

Search and seizure

Judge was not under any obligation to raise issue of s. 8 breach on his own motion

Police officer stopped accused and he smelled strong odour of alcohol on accused’s breath. Accused failed roadside test and she was arrested for driving over 80. Accused’s two breath samples were over limit. These two samples were taken more than two hours after offence. At trial, accused brought no application under Canadian Charter of Rights and Freedoms and she called no evidence. Accused’s only attack on Crown was that samples were not taken as soon as practicable. Trial judge acquitted accused because he held that Crown could not prove its case using breath readings and toxicologist’s report because it did not prove that breath samples were taken as soon as practicable. Judge raised Charter issue on his own motion. Appeal allowed. Acquittal quashed and conviction entered. Judge made finding of fact that breath samples were not taken as soon as practicable. This amounted to breach of s. 8 of Charter. However, this was relatively trivial breach for there was only delay of 46 minutes in taking breath samples. Delay did not result in any issue regarding accuracy of toxicologist’s report based on those samples. There was no evidence of bad faith of police or evidence of prejudice to accused that resulted from that delay or any impact on her Charter rights. Argument to exclude breath samples was weak. Judge was not under any obligation to raise issue of s. 8 breach on his own motion. Even if judge had obligation to consider s. 8 breach on his own motion, judge would likely have decided that it was too late for issue to be considered, given prejudice to Crown that arose from fact that there was no timely Charter application. Furthermore, had judge decided on his own motion to consider Charter application at end of case, he very likely would have decided that evidence should not be excluded. Exclusion of evidence would have brought administration of justice into disrepute. This was one of those clearest of cases where, but for error of law made by judge, only conclusion was that Crown had proven its case beyond reasonable doubt and that accused was guilty.

R. v. Li (Nov. 13, 2015, Ont. S.C.J., N.J. Spies J., 5/15) 128 W.C.B. (2d) 4.

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