Ontario Criminal

Criminal Law

Charter of Rights and Freedoms

Other Charter issues

Discoverability doctrine not dispositive of analysis required by Charter s. 24(2)

Nexus between impugned evidence and Charter breach. Police detained accused driver at roadside as suspect in recent hit-and-run accident. While accused was being detained, police smelled alcohol on his breath, which led to accused being tested on approved screening device and then on breathalyzer. Trial judge convicted accused of driving “over 80”. Trial judge found that accused’s right to counsel was breached at roadside, but she declined to exclude breath results pursuant to s. 24(2) of Canadian Charter of Rights and Freedoms (Charter). Trial judge found that “nothing materially flowed” from breach of accused’s right to counsel (“nothing flowed finding”). Accused appealed. Appeal allowed; accused acquitted. Trial judge committed error in law by failing to conduct three-prong analysis required by s. 24(2) of Charter (Grant analysis). “Nothing flowed finding” did not constitute Grant analysis. “Nothing flowed finding” expressed view that breath results were not “obtained in a manner“ that infringed accused’s rights because breath results were unconnected to Charter breaches. In case at bar, there were, at minimum, clear contextual and temporal connections between breath samples and Charter breaches. If accused had been afforded right to counsel immediately upon detention, he might have said nothing, in which case alcohol might not have been detected on his breath. “Nothing flowed finding” did not constitute Grant analysis based on discoverability doctrine. Discoverability doctrine cannot be dispositive of Grant analysis, as it is only factor to be taken into account under second prong of Grant analysis.

R. v. Lima (2017), 2017 CarswellOnt 5113, 2017 ONSC 2224, Fairburn J. (Ont. S.C.J.).

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