1. Criminal Law Conference November 20, 2009 The Soup Impaired Driving – Are there any Defenses Left? Judge Alan T. Tufts William Delaney - Crown Michael Taylor - Defense

2. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts2 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

3. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts3 Breath Samples Exclusion or not – s. 24(2) R. v Grant 2009 SCC 32 July 17, 2009 Short Answer May yes; maybe no; it depends

4. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts4 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

5. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts5 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

6. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts6 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

7. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts7 S.24(2) - R v Grant Limit our review to violations of s.8,9 and s.10(b)

8. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts8 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

9. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts9 S.24(2) - R v Grant Breath/Blood samples generally seen as conscriptive Stillman – generally inadmissible – affected trial fairness

10. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts10 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

11. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts11 S.24(2) - R v Grant Overview of s.24(2) New focus on “all of the circumstances” When? – AoJ brought into disrepute

12. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts12 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

13. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts13 S.24(2) - R v Grant Overview Assessing and balancing: The effect of admission On Society’s confidence in the justice system

14. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts14 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

15. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts15 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

16. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts16 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

17. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts17 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

18. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts18 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

19. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts19 S.24(2) - R v Grant 2. Impact From Accused perspective – Harrison para. 31 Not necessarily the accused as an individual

20. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts20 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

21. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts21 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

22. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts22 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

23. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts23 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

24. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts24 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

25. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts25 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

26. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts26 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

27. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts27 S.24(2) - R v Grant Bodily Substances – Grant Factors 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

28. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts28 S.24(2) - R v Grant Bodily Substances – Grant Factors Merits of Adjudication Usually favours admission Usually reliable evidence

29. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts29 S.24(2) - R v Grant Bodily Substances – Grant Factors 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

30. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts30 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

31. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts31 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

32. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts32 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?

33. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts33 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

34. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts34 S.24(2) - R v Grant Case Law Update

35. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts35 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

36. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts36 S.24(2) - R v Grant Summary – Seriousness Gravity of state conduct

37. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts37 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

38. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts38 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

39. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts39 S.24(2) - R v Grant Summary – Balance Focus is on long term repute of AoJ

40. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts40 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

41. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts41 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

42. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts42 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

43. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts43 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

44. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts44 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?

45. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts45 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

46. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts46 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.

47. Criminal Law Conference November 20, 2009Created by Judge Alan T. Tufts47 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.