This week’s top three summaries: R v Pereira, 2022 ONSC 2281: 10(b) at the #border, R v Matthews, 2022 ABCA 115: informer #privilege, and R v Odemi, 2022 ONSC 2292: impaired #refusal exclusion 24(2).

This week's top cases deal with issues that do not arise in the vast majority of cases. For great general reference on the law of evidence, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Pereira, 2022 ONSC 2281

[April 12, 2022] Charter s.10(b) - Right to Counsel at a Border Crossing [Justice André]

AUTHOR’S NOTE: Case law in Canada establishes that people crossing the border have to expect some search and questioning powers at the border without recourse to constitutional protections. However, the question often litigated is precisely where that line is. Herein, the court sets out the questions that are clearly permissible and the ones that go over the line before rights to counsel are given. This is a very useful case for further litigation because it functions as a roadmap.


[1] The Crown seeks a court ruling that Ms. Pereira’s statement to an RCMP officer, after being arrested for importing cocaine, was voluntary. Ms. Pereira seeks a declaration that Canada Border Services Officer (BSO) Chamberlain, violated her s. 7, 8, 9, and 10 Charter rights. The court heard these motions on a blended basis.


[3]  Ms. Pereira arrived at Pearson International Airport from St. Lucia on October 2, 2016.

[4] She provided information about her trip in a Customs machine which flagged her for a mandatory inspection.

[5] BSO officer Ron Biloski and his K9 roved Ms. Pereira at a luggage carousel at the airport. The dog had been trained to detect firearms and narcotics. It sniffed Ms. Pereira under her shawl and sat next to her, thereby alerting the officer that Ms. Pereira had either narcotics or firearms on her person. According to BSO Chamberlain, BSO Biloski sent a message over his radio advising that his dog had detected narcotics on Ms. Pereira. He drew a blue line on the back of the electronic declaration form and placed the designation, K6, on it.

[6] BSO Chamberlain responded to BSO Biloski’s radio call and met Ms. Pereira in the secondary inspection area. Upon seeing the telltale blue line, he confirmed that Ms. Pereira was the subject of the K6 investigation. He testified that he only found out that she had been the subject of a lookout during this hearing.

[7] The officer initially asked Ms. Pereira the three standard questions, namely:

  1. Are these your bags?
  2. Did you pack them?
  3. Are you aware of their contents?

[8]  Ms. Pereira replied “yes” to all three questions.

[9]  BSO Chamberlain then asked Ms. Pereira a number of questions concerning narcotics. These include:

  1. Why would the K9 identify you as a person who may have drugs in your possession?
  2. Whether she had been around persons using drugs?
  3. Whether she had used drugs, other than marijuana?

[10] He subsequently searched her handbag and retrieved a pair of sunglasses. He did an ION test on it which proved positive for cocaine. He then asked her why there were traces of cocaine on her sunglasses and whether she had drugs on her person or inside of her.

[11] After the ION test, he advised her that he would detain her if his inspection of her luggage caused him to suspect that she was concealing narcotics.

[12] At no time did BSO Chamberlain advise Ms. Pereira that she was being detained, nor did he read any of her Charter rights during his interrogation of her.

[13] BSO Chamberlain asked Ms. Pereira if she had any drugs. After hesitating for approximately ten seconds, she replied, “I have”. He asked her, “where;” she then replied that she had it “around her”. He then arrested her. Cocaine was subsequently discovered inside Ms. Pereira’s underwear.

B. Did BSO Chamberlain Violate Ms. Pereira’s s. 7, 8, 9 and 10 Charter Rights?

The Law

[19]  Section 11 of the Customs Act, R.S.C. 1985, c.1 (2nd Supp.) indicates that everyone who arrives in Canada is required “without delay to present himself or herself to an officer and answer truthfully any questions asked by the officer in the performance of his or her duties under this or any other Act of Parliament”.

[21] Routine questioning of travellers, the search of their luggage, and perhaps a pat-down search of the traveller, do not engage s. 10(b) and s. 8 of the Charter: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at p. 517  Jones, at para. 32.

[22] Doherty J.A. noted further in Jones at para. 33 that:

[T]he principle against self-incrimination does not demand the exclusion in subsequent proceedings of statements made during routine questioning and searches at the border: R. v. White, at p. 441 S.C.R., p. 278 C.C.C.

[24] In what circumstances would the routine-questioning of a traveller result in the detention of that person? The Court of Appeal noted in Jones, at para. 42 that:

[T]he extent to which the border authorities suspect an individual of having committed a particular offence will impact on whether that individual is or is not detained when subject to routine questioning. For example, if the border authorities have decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning: see R. v. Jacoy1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, [1988] S.C.J. No. 83, 45 C.C.C. (3d) 46. As indicated above, if the person is detained, the assessment of the s. 7 self- incrimination claim as it applies to statements made under statutory compulsion during routine questioning may well yield a different result.

[25] In R. v. Peters, 2016 ONSC 2230, Dawson J. noted at para. 50 (affirmed by the Court of Appeal in 2018 ONCA 493, at paras. 8-9):

The question is whether a reasonable person placed in the position of the border services officer would conclude that there was such a strong particularized suspicion connecting the accused to a specific crime that the questioning and customs examination had changed from one of routine to a focused investigation of a specific offence.

[26] In what circumstances can it be said that a BSO has detained a traveller in an international border context?

[27] In R. v. Peters, 2018 ONCA 493, at para. 8, the Court of Appeal noted the following:

The trial judge adverted to and applied the correct analysis to determine detention in an international border context, namely, whether the border officer has “decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry”. Where the officer has made that decision, the individual may be detained, even when subject to that routine questioning: see R. v. Jones (2006), 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481 (C.A.), at para. 42.

[28] In R. v. Canfield, 2020 ABCA 383, at para. 149, the Alberta Court of Appeal noted that:

We agree with the analysis undertaken by the Ontario Court of Appeal in Jones, and also in Sinclair: there can be a point where, what began as routine questioning and a routine search of belongings, becomes sufficiently intrusive that it qualifies as a detention that engages Charter rights. Absent detention, there is no right to counsel and no right to remain silent.

[29] At what point during the questioning of a traveller can it be said that a BSO has engaged in intrusive, non-routine investigation of a traveller, or has formed a strong particularized suspicion that a traveller was committing an offence and has decided to commence an intrusive investigation? In R. v. Ceballo, 2021 ONCA 791, at para. 19, the Court of Appeal identified two alternative ways of identifying when the line has been crossed and a detention will occur.

[30] The first is, as noted by Barnes J. in R. v. Sinclair, 2016 ONSC 877, at para. 43, aff’d 2017 ONCA 297, “when the questioning and searches become less routine and more intrusive, the person is detained and that individual’s s. 7, 8 and 10(b) Charter rights are engaged.” The Court of Appeal in Ceballo further noted at paras. 21-22 that:

[21] The line between detention and routine investigation is not always bright. However, in assessing whether a border investigation has reached the point where it is intrusive enough to trigger a detention, it must be appreciated that given the importance of border security, a robust concept of permissible “routine forms of inspection” operates. For example, the use of x-rays and ion scans capable of detecting drugs are routine forms of inspection: R. v. Peters, 2018 ONCA 493, at paras. 3, 11; Sinclair (ONCA), at para. 6. So, too, is questioning related to the contents of luggage, or the provenance of those contents: Peters, at para. 3. Similarly, questions intended to expose possible contraband or immigration issues, including questions about marital or employment status, income, or the purpose of a trip, or questions intended to probe the credibility of the answers a traveller has provided, are routine: see Jones, at paras. 20-21, 37; R. v. Sahota, 2009 CanLII 44280 (Ont. S.C.), at para. 6.

[22] By contrast, searches conducted pursuant to s. 98 of the Customs Act, including strip searches, body cavity searches, and “bedpan vigils”, are intrusive and will trigger a finding of detention: R. v. Simmons, 1988 CanLII 12 (SCC), [1988] 2 S.C.R. 495, at p. 521; R. v. Monney, 1999 CanLII 678(SCC), [1999] 1 S.C.R. 652. Of more immediate relevance to the instant case, questions cross the line and become intrusive when they amount to a coercive or adversarial interrogation, contain improper inducements, or exert unfair pressure: Jones, at paras. 41-42; R. v. Darlington, 2011 ONSC 2776, at paras. 75, 79.

[31] Significantly, the Court of Appeal noted in Ceballo, at para. 26 that:

It may be that for a detention to occur, another step is required. Namely, in addition to having a sufficiently strong particularized suspicion, and a subjective decision to engage in an intrusive investigation or detain the subject, the border services officer may have to engage in some action that makes that intention known to the traveller. This requirement is consistent with the foundation for the constitutional concept of detention, resting as it does in the physical or psychological detention of the accused: Simmons, at pp. 515-21. There is also authority, including the decision of this court in Kwok, to support the need for some act by the border services agent that indicates their intention to engage in more intrusive investigation or to detain the subject.

[32] The Court of Appeal elaborated on this requirement at para. 29:

The need for some action by the border services agent that demonstrates their decision to engage in more intrusive measures also finds support in Simmons. There Dickson C.J. found, for a majority of the court, that a traveller was detained once informed that she would be strip searched. He noted, at p. 521, that when this occurred, “the appellant could not have refused and continued on her way.” He made a similar finding in the companion case of R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, at pp. 557-58, that the detention was triggered when the accused was ushered into an interview room for the purposes of conducting a search. In each case the trigger for detention was not the formulation of the subjective intention to engage in intrusive investigation, but rather the steps that had been taken to commence the intrusive investigation, which steps would have made the subject aware that the border services officer had decided to go beyond a routine investigation.


[33] In determining whether BSO Chamberlain crossed the line from posing routine questions to Ms. Pereira to a point where, because of a sufficiently strong particularized suspicion, he engaged in a more intrusive form of inquiry, I must set out the parameters of a “routine” questioning. In Ceballo, the Court of Appeal noted at para. 21 that the use of x-rays and ION scans capable of detecting drugs are routine forms of inspection. The court added that so too is questioning related to contents of luggage, or the provenance of those contents, the marital status and employment status of the traveller, his or her income, or the purpose of the trip. To that list could be added questions regarding when and how a travel ticket was purchased.

[34] In this case, BSO Chamberlain did not ask Ms. Pereira questions that could be considered routine, save and except the first three questions he asked her. These are:

  1. Are these your bags?
  2. Did you pack them?
  3. Are you aware of their contents?

[35] Following these questions, he focused, almost exclusively, in asking Ms. Pereira questions regarding narcotics in an attempt, he testified, to negate the “canine indication”. He, therefore, asked her why the dog had “hit on her”. She replied, “No idea”.

[36] He then asked her if she was around narcotics while outside Canada. She replied, “yes, that she had smoked marijuana and had been around people who had done the same”. Thereupon, he asked her if she had used any other narcotics. She replied she had last used cocaine six years previously.

[37] He then examined her purse and did an ION scan of Ms. Pereira’s sunglasses. He received a positive indication for traces of cocaine. BSO Chamberlain testified that because of the sensitivity of the ION scan, the positive test was an indicator no different than a traveller’s purchase of a ticket at the last minute.

[40] The Crown contends that BSO Chamberlain’s subjective belief did not rise to a particularized suspicion that Ms. Pereira may have been involved in the illegal importation of drugs and that this subjective belief was objectionably reasonable in this case. I disagree for the following reasons.

[41] First, after asking her the three routine questions concerning her luggage, the officer’s subsequent questions were focused on ascertaining whether Ms. Pereira was in possession of drug contraband.

[42] Second, I find that his testimony that prior to arresting Ms. Pereira, he had no suspicion that she was in possession or narcotics to be unworthy of belief because of the following:

a)      He is an experienced BSO who had inspected hundreds of travellers in the secondary area of the airport;

b)      The nature of the questions he posed to Ms. Pereira and his own testimony that he was trying to “negate” the K9 indicator, which he viewed as “reliable”;

c)      His testimony that he knew she was coming from a “high risk” country;

d)      Officer Lucas’ testimony that BSO Chamberlain told him that Ms. Pereira was “nervous and her voice was trembling” when he asked her questions;

e)      He testified that she hesitated for ten seconds after he asked her a question following the failed result of the ION test;

f)       Under cross-examination, BSO Chamberlain agreed that the questions he asked Ms. Pereira were not routine questions, but added in re-examination that questions concerning narcotics are definitely within the scope of routine questions;

g)      Additionally, I do not accept the officer’s testimony that he did not notice that Ms. Pereira had been flagged by the machine and that the document produced by the machine had indicated that Ms. Pereira was singled out for a mandatory inspection. He inspected the document. He was trained to look out for any information related to the inspection of a traveller. I find it incredible that he could not recall seeing this information on Ms. Pereira’s electronic immigration form.

[44] However, the constellation of factors, in this case, viewed objectively, give rise to the formulation of a particularized suspicion that Ms. Pereira may be involved in the illegal importation of drugs. That explains the narrow focus of the questions the officer posed to Ms. Pereira.

[46] It also adopted Barnes J.’s observation in Sinclair that “when the questioning and searches become less routine and more intrusive, the person is detained and that individual’s s. 7, 8 and 10(b) Charter rights are engaged.”

[47] At the very minimum, BSO Chamberlain should have, when viewed objectively, formed a suspicion that Ms. Pereira had illegal drugs on her possession after he received the results of the ION test. By continuing to ask her questions regarding whether she was in possession of drugs and where, he conscripted her against herself without advising her of her rights to counsel and her right to remain silent. His failure to do so led to a violation of Ms. Pereira’s s. 7 and s. 10 Charter rights.

Charter 24(2)

[49] The breach of Ms. Pereira’s ss. 7 and 10(b) Charter rights is serious. BSO Chamberlain has worked as a border officer since 2006. He should have known his Charter obligations as they relate to border investigations of which, he testified, he has done hundreds of times....

[50] BSO Chamberlain violated Ms. Pereira’s rights against self-incrimination and her right to speak to counsel. The admission of this evidence would gravely affect trial fairness. ...

[51] Would the truth-seeking function of the trial be better served by the admission of the evidence or by its inclusion? In my view, the failure to exclude the evidence would send the wrong message of the court condoning the breach of Ms. Pereira’s s. 7 and 10 Charter rights by an experienced BSO who should have been fully cognizant about the rights of travellers. Canadian borders are not Charter free zones. While the law permits routine questioning of travellers and searches of luggage, it does amount to an evisceration of their rights. Undoubtedly, the evidence is crucial to the Crown’s case. However, maintaining fidelity to the rule of law is also crucial to the maintenance of the public’s confidence in the administration of justice. For this reason, this factor also favours exclusion of the evidence.


[52] The drugs seized and Ms. Pereira’s statements confessing to being in possession of cocaine are excluded.

R v Matthews, 2022 ABCA 115

[March 30, 2022] Informer Privilege - Judicial Stay of Proceedings [Ritu Khullar, Dawn Pentelechuk, Kevin Feehan JJ.A.]

AUTHOR’S NOTE: The Crown and the Court have an obligation to keep secret any information tending to identify a Confidential Source. Defence lawyers do not. Where defence can establish relevance of the information for disclosure and get the judge to order it the next step in the process may lead to a stay of proceedings. Crown and Court conduct an ex parte hearing to determine if the disclosure fits into the narrow "innocence at stake exception". If it does, then the Court has to stay the proceedings against that accused. Herein is an example of this occurring successfully and unsuccessfully all in one case as against two different co-accused. 


[1] The Crown appeals from a judicial stay imposed by the trial judge in the first-degree murder trial of the two co-accused respondents, Max Matthews and Christopher Chung. Matthews and Chung were alleged to have killed Junior Laidley on January 4, 2016.

[2] The Crown advances two grounds of appeal. First, the trial judge erred in ordering disclosure of two Source Debriefing Reports which contained information from a confidential informer because he erroneously concluded that the innocence at stake exception applied. When the Crown refused to disclose the documents, the trial judge judicially stayed the proceedings against Chung and Matthews. ...

[3] ... We uphold the stay of proceedings against Matthews.

Facts of the Case

[5] The Crown’s theory was that Laidley lived in Edmonton with Chung and Chung’s girlfriend for a few weeks. According to Chung’s girlfriend, Chung assaulted her on the morning of December 31, 2015, Laidley helped her leave and took her to her hometown near Wainwright. They did not return to Edmonton until January 3, 2016. Chung was angry with Laidley for assisting his girlfriend to leave him. Chung, with the assistance of others, spent several days trying to find them, including driving to Wainwright. The Crown alleged that on the evening of January 4, 2016, Chung, with the help of three others (Hill, Pennell and Thiemer) lured Laidley to the parking lot of a 7-Eleven store in Fort Saskatchewan under the pretext of repaying a drug debt. The car Laidley was driving, a borrowed BMW, was boxed into the parking lot by a truck driven by Hill, and then Chung, Matthews and others assaulted Laidley in the car.

[6] The Crown’s theory was that Hill, Pennell and Thiemer thought that Laidley would be roughed up but, in fact, Matthews and Chung intended to kill Laidley. Pennell, Thiemer and Hill were involved in boxing in Laidley’s vehicle, the assault and disposing of the body. The Crown’s theory was that during the fight, Chung fatally stabbed Laidley in the heart. The Crown alleged that Chung and others then drove the BMW to a farmer’s field, put in Laidley’s body, doused the vehicle with gasoline and set it on fire. They were followed by the truck and left the scene in the truck.

[7] ... The other participants were dealt with differently:

a)  Melvin Pennell pled guilty to manslaughter;

b)  Matthew Thiemer pled guilty to being an accessory after the fact to murder; and

c)  Daniel Hill was never criminally charged for his involvement.

[8] The Crown planned to call 20 witnesses at trial. These included Thiemer, Pennell and Hill, who each had criminal records and were Vetrovec witnesses in addition to being allegedly involved in the killing. According to the Crown, their evidence would be corroborated through video and cell phone evidence.

The Trial Process

[9] On August 1, 2018, three months before the trial started, counsel for Chung sent a disclosure request to the trial Crown, seeking “all agreements (both previous and updated), or consideration materials provided to anyone in this case, including previous accused’s [sic] and any civilian witnesses”. In response to a request for clarification from the Crown, counsel for Chung stated:

What I mean by this is any formal immunity agreement or agreements with accused’s [sic] or suspects for joint submissions on lesser penalties in exchange for testimony. ...

[10] The Crown responded in a letter dated August 15, 2018, stating:

The Crown confirms that no witnesses or Accused in this investigation was offered anything in exchange for cooperating with the investigation, providing evidence and furtherance of the investigation, or testifying against any of the Accused or Co-accused. The decision not to charge Daniel Hill was made by police utilizing their discretion. [PJM Emphasis]

[11] In correspondence dated August 22, 2018, counsel for Chung asked whether the Crown had confirmed the information provided in the August 15, 2018 letter with the primary investigator or the Crown prosecutor who previously had conduct of the file. He also asked for all communications between the RCMP and the various witnesses and accused persons, and all communications as between the Crown and the RCMP with respect to the investigative steps taken on the file. Chung’s lawyer also said that he raised the issue because he had come across materials in the disclosure which seemed to undermine the Crown’s claim.

[13] The Crown provided no further disclosure relating to any witnesses’ involvement in the witness protection program and no further disclosure of communications between RCMP members and witnesses prior to the start of trial.

[16] Daniel Hill testified for the Crown as its first Vetrovec witness on November 7, 2010. During cross-examination, Hill was questioned about being accompanied by the police during the trial. In re-examination, the Crown asked Hill why he was accompanied by the police. Hill responded that he was “in protection”. This revelation set off a series of events which ultimately resulted in the trial judge issuing a judicial stay of proceedings against both respondents. [PJM Emphasis]

[17] Chung’s counsel took the position that the information that Hill was in the witness protection program was contrary to the representations made by the Crown on August 15, 2018, in response to Chung’s written request for disclosure. He also said that the information was directly relevant to whether Hill had a motive to lie on the stand. The Crown denied there was an inconsistency or a failure to disclose. Nevertheless, early in the trial, Chung brought an application for disclosure of witness protection documents. Chung indicated his intention to file a Charter application alleging breach of s 7 of the Charter due to the Crown’s failure to disclose Hill’s involvement in the witness protection program and documents related to it; he also expressed his intention to bring a Charter application alleging an abuse of process.

[20] Another issue arose during the disclosure voir dire on November 20, 2018. After having received some of the records, Chung took the position that the Crown had knowledge of Hill’s involvement in witness protection at the preliminary inquiry, which it failed to disclose. Further, Chung argued that the lead investigator for the RCMP misled the Crown when it was responding to Chung’s August 2018 disclosure request. Chung also raised an inconsistency between the recently disclosed witness protection records and the testimony of the RCMP team command about who made the decision not to charge Hill: the Crown or the police? The Crown disagreed with this characterization of the records, and said that any apparent inconsistencies in the records were easily explained.

[23] The voir dire resumed on November 21, 2018. The trial judge advised counsel that it appeared new documents recently disclosed contained information contradicting the Crown’s position that it had no knowledge of Hill’s involvement with the witness protection program, and information from the police concerning who made the decision about charging Hill. The trial judge wanted to resolve these issues by hearing evidence in the voir dire from police officers involved in the investigation and, possibly, Crown counsel. He directed that the witness protection program documents be provided to him in unvetted form, so he could supervise the disclosure process which was proceeding as disclosure of third-party records under O’Connor. The jury was excused until November 28, 2018.

[25] On November 26, 2018, the trial Crown counsel withdrew from the case after a police witness gave evidence about the investigative team’s response to the August 2018 disclosure request which appeared to conflict with representations made by him.

[26] On November 27, 2018, the trial judge determined that in light of the ongoing problems with disclosure, it was necessary to step in again to supervise the process. He ordered that the entirety of the disclosure from the Provincial Crown and the RCMP should be provided to the Court in unredacted form so he could determine what further information should be unredacted and disclosed. He adjourned hearing any further evidence in the voir dire until the disclosure was completed.

Re-Election to Judge Alone Trial

[28] The trial judge found, on the balance of probabilities, that it was not possible to have a fair trial before a jury. He referred to the likelihood that police and prosecutors would be called in the trial proper, the length of time needed to resolve the voir dire issues and the trial itself, the delays and inconvenience to the jury, and the high complexity of a potential jury instruction. Having ruled that a jury trial could not be fair, he asked the Crown whether it would now agree to proceed with a trial by judge alone or would seek a mistrial. The Crown indicated that it would proceed by judge alone. It was agreed that the proceedings would reconvene the following week once disclosure was complete.

Informer Privilege and Innocence at Stake

[29] On December 5, 2018, when court reconvened, the trial judge advised counsel that during his review of the unvetted disclosure materials, he had discovered documents he believed were subject to informer privilege. The materials in question were Source Debriefing Reports (SDRs) which contained information provided by a confidential informer about the killing of Laidley. The trial judge said that it appeared the “innocence at stake” exception to informer privilege might apply to the records, such that the Crown was obliged to disclose them to the respondents, despite the privilege.

[30] The trial judge ordered disclosure of the SDRs to the prosecuting Crown. The contents of the SDRs are described later in these reasons at para 41. During the subsequent in camera hearing, the Crown asserted informer privilege over the entire contents of the documents. The trial judge agreed with the Crown that none of the contents of the SDRs in issue could be disclosed because of the risk of identifying the informer and putting his life in danger.

[31] The proceedings continued in camera with Crown counsel addressing whether the innocence at stake exception applied to the SDRs. The trial judge ruled that the SDRs met the innocence at stake exception. The Crown refused to both disclose the SDRs and to enter a stay of proceedings. It brought an application under s 37 of the Canada Evidence Act, RSC 1985, c C-5 to certify an objection to disclosure[1]. Instead, the trial judge entered a judicial stay of proceedings in order to protect the identity of the informer.

The Grounds of Appeal

[The Crown appealed] [33] The test for determining whether a record or communication is privileged and whether an exception to it applies is a question of law reviewed for correctness. Absent an extricable question of law, the application of the law of privilege to particular records or communications is a question of mixed fact and law, reviewed for palpable and overriding error: Thomson v University of Alberta, 2013 ABCA 391 at para 11.

[35] This was a first-degree murder jury trial against two co-defendants. The primary evidence of the Crown were three Vetrovec witnesses. Problems started with this trial as early as days two and three with concerns about the lack of Crown disclosure and Hill’s involvement in the witness protection program.

[36] The disclosure issues plagued the balance of the trial. The issues were serious. For instance, on appeal, the Crown conceded that the SDRs were first party disclosure, and ought to have been disclosed (in redacted form) to the respondents as part of the Crown’s Stinchcombe disclosure. If that had happened, then the respondents would have at least been alerted to the fact of the existence of the SDRs pre-trial, though depending on how much was redacted, they may not have known anything about the contents. However, the respondents could have considered any further applications that would have been appropriate pre-trial. Instead, the SDRs were disclosed inadvertently to the trial judge four weeks into the jury trial.

[37] The trial judge was very alive to his obligation to ensure a fair trial, particularly with a jury. He was also very alive to the challenges posed to the jury trial by the ongoing disclosure issues and the delay that was causing, as well as increasingly complex issues of credibility for the jury, given that police and Crown counsel were called to give evidence in the voir dire. In the course of trying to manage the various issues that arose, there were several failures in this trial:

  1. It appears the Crown failed to fulfil its disclosure obligations and generally failed to manage its case appropriately;
  2. At least in part because of how the issues were unfolding, defence counsel raised issues and objections on the fly, not always clearly or rigorously, which made adjudication of the issues more difficult;
  3. The trial judge, in trying to manage the evolving issues, was not always as precise as he needed to be identifying the issues, counsels’ positions on the issues and determining how to proceed with them; and
  4. In an effort to be practical and manage this trial, there was much “thinking out loud” by all participants, which made it difficult to identify what the issues were and the law relevant to their resolution.

We make these observations mindful that because of how the trial ended, the voir dires were not concluded and no findings were made about the alleged Charter breaches.

The Confidential Source Debriefing Reports

[38] As noted, during the disclosure and abuse of process voir dire, the trial judge received unvetted disclosure from the Crown. When the trial judge received the last batch of disclosure, he noticed that two unredacted, confidential SDRs had been provided to him which contained information from a confidential informant about the killing of Laidley. The trial judge brought this to the attention of Crown counsel and, upon moving to an in camera hearing, Crown counsel asserted informer privilege over the SDRs. The trial judge agreed.

[39] Informer privilege is near absolute; it can be lifted only if the “innocence at stake” exception applies. The trial judge held that exception applied to both respondents and ordered the SDRs to be released to them. It is the application of this exception that gives rise to the first ground of appeal.

[40] On appeal the Crown originally maintained its position that the two SDRs should be kept confidential to ensure that the identity of the informer remained secret. However, in March 2020 the Crown changed its position and disclosed redacted versions of the SDRs to the respondents. The redacted SDRs contained the following information:

  • A man known colloquially as Motor was present for the killing;
  • Motor and Chung went to find Laidley;
  • Chung killed Laidley by shooting him with Motor’s gun;
  • The murder happened in Motor’s car, which Laidley had borrowed; and
  • Chung knew the police had spoken to Motor and his girlfriend, and Chung accused them of providing information to the police and threatened them.

[41] This information is significant because it is the first time Motor is identified as present during the killing. Importantly, there is no mention that Matthews was present during the killing. It is also significant that the information states that Chung shot Laidley. This is in tension with the medical examiner’s evidence, which was that Laidley was killed by a sharp point to the heart, consistent with stabbing. The Crown conceded that evidence Laidley died from a stab wound is not strictly inconsistent with him having been shot (because Laidley might not have died from the shot), but it was impossible to determine owing to the extensive damage to Laidley’s body from being burnt in the car.

[46] Informer privilege is a class privilege that arises when a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain: R v Basi, 2009 SCC 52 at para 36. Courts have long recognized that if the police were unable to make such promises, information crucial for the detection of crimes would not become available. The strict protection of informer privilege safeguards informers from the risk of retribution from those involved in criminal activity by guarding the identity of those who provide information. This protection is “of fundamental importance to the workings of the criminal justice system”: R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 SCR 281 at para 10, 112 CCC (3d) 385; R v Durham Regional Crime Stoppers, 2017 SCC 45 at para 14. The scope of the privilege is broad. It applies to the name of the informer, and any information which might reveal their identity: Leipert at paras 18, 28. [Emphasis by PJM]

[47] ... The fact that privileged information might assist the accused is not enough of a reason to breach informer privilege. Thus, the court has no discretion to order disclosure, subject to one exception: when the innocence of the accused in criminal proceedings is demonstrably at stake – the innocence at stake exception: Basi at para 37; Leipert at para 12-14, 20-22; Named Person v Vancouver Sun, 2007 SCC 43 at para 27.

[48] The courts have developed an in camera, ex parte, process, which excludes defence counsel, for determining whether informer privilege applies to records or files: Basi at para 38; Named Person at paras 46-48. Because of how this case unfolded, there was no such hearing. During his review of Crown disclosure, it was the trial judge who noticed that the SDRs were potentially subject to informer privilege and alerted Crown counsel to the issue. During the in camera hearing, the Crown asserted the privilege and the trial judge agreed that it applied to the SDRs. We accept that informer privilege applied to the documents at the time of the trial.

[49] Once it is established that informer privilege applies to a record, the next step is to determine if the innocence at stake exception applies.

[50] The leading case on the innocence at stake test is R v McClure, 2001 SCC 14 which deals with innocence at stake as an exception to solicitor-client privilege. The approach is the same when informer privilege is at issue. McClure, a former teacher, was charged with sexual offences by 11 former students. One student had commenced a civil claim against McClure and the school board that employed him. In his criminal trial, McClure sought production of the civil litigation file to determine the nature of the allegations first made by the student to his lawyer and to assess the extent of the student’s motive to fabricate or exaggerate the allegations.

[51] In McClure, the Supreme Court articulated the following approach at paras 48-51, 58:

  • Before the trial judge examines the records protected by informer privilege, the accused must establish as a threshold matter that the privileged information is not available from any other source and that, in light of the Crown’s case, there is no other way to raise a reasonable doubt about guilt.
  •  If the threshold is met, before the trial judge examines the records, the accused must then provide some evidentiary basis upon which to conclude that there exists a record or information that could raise a reasonable doubt as to guilt. At this stage, a trial judge decides whether to review the privileged records.
  • If the trial judge decides to review the privileged records, then at this stage, he or she must examine them to determine whether, in fact, there is information in them that is likely to raise a reasonable doubt as to the guilt of the accused. To be likely to raise a reasonable doubt, the information will normally go to one of the elements of the offence.

[52] The trial judge needs to be satisfied that the information is likely to raise a reasonable doubt, not that it would certainly raise a reasonable doubt. To properly assess this, a trial judge should consider the entirety of the Crown’s evidence: McClure at paras 59-60.

[53] If the second step is met, the trial judge should order produced only that portion of the record necessary to raise the defence claimed: McClure at para 51; Leipert at para 33.

[55] Recently, the Supreme Court has approved a formulation of the innocence at stake test that collapses the threshold inquiry into the first stage test:

On a McClure application, the accused seeks to gain access to informer-privileged information through, ordinarily, a two-stage process. The first stage typically takes place in open court, with the accused and all counsel present. At this stage, as a threshold matter, the accused must establish that the privileged information is not available from any other source and that, in light of the Crown’s case, there is no other way for him or her to raise a reasonable doubt. At this stage he or she must also establish an “evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt”….

R v Brassington, 2018 SCC 37 at para 37

[56] This makes practical sense. At “the first stage”, the trial judge does not have any document to review. An accused must establish that a document exists, that it is not available elsewhere, and it will be the only way the accused could raise a reasonable doubt in light of the Crown’s case.

[57] The case law contains several recommendations about the timing of McClure applications. Normally, it makes sense to hear a McClure application at the end of the Crown’s case, but there is no requirement to do so: Brassington at paras 15, 36; R v Brown, 2002 SCC 32 at para 52. The cases note that an accused can make more than one McClure application at different stages of the trial. It is not a one-shot deal, but may evolve as the evidence evolves: Brown at para 54. The real issue is whether, at the time of an application, the trial judge can assess the Crown’s case sufficiently and understand the pathways by which an accused may raise a reasonable doubt and whether the privileged records are likely to raise a reasonable doubt.

[The Alleged Errors]

A. Failure to conduct the threshold inquiry

[64] First, the Crown cannot complain now that the trial judge erred by not going through the threshold analysis, which relates to whether the Crown should provide the privileged records to the trial judge. The trial judge already had the records in possession because of the Crown’s mistakes in not disclosing their existence to the respondents and in providing them unredacted to the trial judge without any indication that they were protected by informer privilege. To require the trial judge to formalistically go through the motions of the test, when he already had the unredacted SDRs before him, is to put form over substance, in what was an already difficult trial.

[65] Second, as the Supreme Court pointed out in McClure at para 52, the point of the threshold inquiry is to prevent “fishing expeditions” and to prevent “too easy” invasion of privilege by having a trial judge examine privileged documents in every case. Neither concern was engaged in this case. There was no “fishing expedition”. By the time the parties were aware of the informer privilege issue, the trial judge had already looked at the documents and, in that way, partially invaded the privilege. Engaging in the threshold inquiry would have been an artificial exercise.

[66] Third, and in any event, the procedure followed at trial was endorsed by the Crown.

B. Timing of decision on the McClure test

[67] ...However, it was not an error here for the trial judge not to wait until the close of the Crown’s case.

[68] In this case, unlike in McClure or Brown, the trial judge had the benefit of the Crown’s opening statement, hearing some evidence in the trial proper, some evidence in the voir dire and the Crown’s submissions in the ex parte, in camera hearing when the Crown properly alerted the trial judge to other anticipated evidence that would be relevant to Matthews.

C. Technical errors in determining if the SDRs were likely to raise a reasonable doubt

[69] The Crown argues that the trial judge misapprehended the content of the SDRs, in that he believed the informer was present when Laidley was killed (whereas the SDRs indicate that the informer was told what happened by a third party). The Crown also argues that there were problems with the admissibility of the information in the SDRs (they were hearsay), such that the SDRs were not likely to raise a reasonable doubt at trial. Finally, the Crown argues the trial judge seriously overstated the reliability of the information in the SDRs, pointing out that the informer’s account of the killing is inconsistent with the evidence of the medical examiner that Laidley was killed by a stab to the heart.

[70] We would not give effect to any of these arguments. The first argument is not born out by the record. It is true that the trial judge did consider the possibility that the confidential informer directly witnessed the killing but he was well aware of the limits on the inferences he could draw from the SDRs alone and, at several points in the in camera hearing, stated he did not know whether the informer was present for the killing: in camera trial transcript, December 5, 21/25, 24/10-14, 38/2-9; in camera trial transcript, December 6, 10/25-11/4; 11/28-34.

[71] The second argument also fails. It assumes, incorrectly, that the information in the SDRs could only be used to raise a reasonable doubt about the respondents’ guilt by being tendered as defence evidence – through calling the informer or tendering the SDRs themselves as documentary hearsay. The Crown suggests that it would have been impossible to do that because both pieces of evidence were inadmissible hearsay. However, the SDRs might be used to raise a reasonable doubt in other ways. Defence counsel might call Motor as a defence witness. If he were unavailable, the hearsay statements might be admissible under an exception, such as declarations against penal interest, the principled exception to hearsay or where the defendant seeks to establish that the police investigation was inadequate: R v Underwood, 2002 ABCA 310 at paras 34-35; R v Dhillon, (2002) 2002 CanLII 41540 (ON CA), 166 CCC (3d) 262 at para 47, 161 OAC 231 (ONCA); R v Mallory, 2007 ONCA 46 at para 87. There are other possibilities too. Defence counsel might use the information in the SDRs about the killing to cross-examine police witnesses including, possibly, the “handlers” who compiled the reports.

[72] Thirdly, the Crown argues that the trial judge failed to consider, or erred in his assessment of, the reliability of the information in the SDRs. In particular, it highlights apparent inconsistencies between that information and other evidence, such as medical evidence about the cause of death. As noted, there is no logical inconsistency between the medical evidence about the cause of death and the informer’s statement that Chung shot Laidley. Both could have occurred. Moreover, a review of the record shows that the trial judge did go through the information in the SDRs and compared it to other evidence in the trial. He found, particularly with respect to Matthews, that much of the information in the SDRs was corroborated by evidence he had heard to that point in the trial. He found it was reliable. This is a finding of mixed fact and law, reviewed on the palpable and overriding error standard, and the Crown has not been able to demonstrate such an error.

D. Unreasonable finding that the SDRs were likely to raise a reasonable doubt?

[73] The last issue in this ground of appeal is whether the trial judge made an unreasonable or palpably wrong finding, at the second stage of the McClure test, that the information in the SDRs was likely to raise a reasonable doubt about the respondents’ guilt. Because the circumstances of Matthews and Chung are different, it is helpful to consider the application of the test to each of them separately.

i. Matthews

[74] As the trial judge found, the evidence against Matthews was principally the testimony of the three Vetrovec witnesses who placed him at the scene of the crime. Hill had testified, was cross-examined and re-examined, although it was acknowledged after the disclosure of his involvement in the witness protection program, that he would have to be recalled. Pennell had been examined but cross-examination had been adjourned pending disclosure issues relating to the witness protection program. Thiemer had yet to testify, but it was expected his evidence would be similar in placing Matthews at the scene of the crime.

[78] Further, during the in camera proceedings, the Crown drew the trial judge’s attention to anticipated evidence about cell phones pinging to cell phone towers near the 7-Eleven store where Laidley was killed and the field where the burnt vehicle was found. The data indicated that the cellphones of the three Vetrovec witnesses and Chung were at those locations but did not implicate Matthews at all. Of course, whether someone’s cellphone is present or absent at a location is not conclusive proof that the person was there, or absent. However, the fact that all other cellphones were pinged to near the crime scenes and Matthews’ did not, supports the reliability of the SDRs in relation to the absence of Matthews.

[80] We disagree. There was no evidence to corroborate the Vetrovec witnesses’ account that Matthews was present when Laidley was killed. There was no DNA evidence, video evidence or cellphone data that supported the account that Matthews was present during Laidley’s murder. The information in the SDRs identified Motor as being present at the killing and goes to a core element of the offence – the identity of the killers. It contradicts the evidence of the Vetrovec witnesses. This is not information that Matthews would have available to him from any other source. In applying the test, the trial judge reviewed the information contained in the SDRs, considered whether it was corroborated by evidence he had heard or would hear and found it sufficiently probative that it was likely to raise a reasonable doubt about Matthews’ guilt. His approach does not disclose palpable and overriding error. [PJM Emphasis]

[82] We dismiss this ground of appeal as it applies to Matthews. We confirm the judicial stay of proceedings against Matthew imposed by the trial judge.

ii. Chung

[83] Chung’s circumstances are very different. Most importantly, the information in the SDRs supports the Crown’s theory that Chung was present at the killing of Laidley. It corroborates the Vetrovec witnesses on this key point.

[102] With respect to Chung, the Crown’s appeal is allowed. Based on the trial record, the innocence at stake exception does not apply. The judicial stay of proceedings is vacated. However, due to circumstances already noted – the retirement of the trial judge – this matter is returned for a new trial before a new trial judge and jury.

R v Odemi, 2022 ONSC 2292

[April 13, 2022] Charter s.8: Exclusion of the Evidence of Refusal of Breath Sample - 24(2): Only One Factor Favouring Exclusion [Justice Barnes]

AUTHOR’S NOTE: This case dives into the debate about whether the actus reus of an offence can be excluded under the Charter. The answer here after a thorough review of the case law to the contrary is yes. The case is also useful for the defence in upholding a exclusion of evidence on the basis of a single factor under 24(2). The case represents a significantly useful analogy source in litigating various offences arising out of interactions with police: obstruction, refusal of breath samples, threatening police officers, etc. 


[1] On January 8, 2021, Atwood J. of the Ontario Court of Justice acquitted the Respondent of refusing, without reasonable excuse, to comply with a demand made to him by a peace officer, to provide forthwith a sample of his breath as in the opinion of the qualified breath technician was necessary to enable a proper analysis of his breath to be made to determine the concentration, if any, of alcohol in his blood. contrary to section 254(5) of the Criminal Code, R.S.C., 1985, c. C-46 (“Code”).

[3] At approximately 3:40 a.m. on July 17, 2018, Constable Lancia and Constable Lukasik observed the Respondent drive his vehicle at a slow rate of speed, make a wide turn and mount the curb. Constable Lancia and Constable Lukasik disagreed on whether the vehicle came to a rest on the curb or on the roadway. Constable Lancia was driving the police vehicle and Constable Lukasik was the passenger.

[4] Constable Lancia stopped the vehicle, spoke to the Respondent, and asked him to exit the vehicle. He asked the Respondent if he had consumed alcohol. The Respondent said no. Constable Lancia detected a smell of cologne which he believed could be used to mask the smell of alcohol. Constable Lancia made an approved screening device demand (“ASD”) for the Respondent to provide a sample of his breath for testing by an ASD.

[5] Constable Lancia relied on his conversation with the Respondent, and his observations of the driving, to ground his “reasonable suspicion that the Respondent had alcohol in his body”. Based on this belief, Constable Lancia conducted an ASD test: Code, s. 254(2). The Respondent failed the test.

[6] Constable Lancia described his belief as “a reasonable suspicion” that the Respondent “was driving while impaired”. He did not use the words of s. 254(2) (i.e., that the “Respondent had alcohol in his body”). Contrary to the Respondent’s submissions, this is not fatal.

[7] The only reasonable inference that can be drawn from Constable Lancia’s question to the Respondent inquiring whether he had consumed alcohol, and his issuance of the approved instrument demand, is that he believed that he had a reasonable suspicion that the Respondent had alcohol in his body: See also, R. v. Harris, [2007] O.J. No. 675 (S.C), at para. 45.

[8] Based on the failed ASD test, Constable Lancia determined that he had reasonable grounds to believe that the Respondent had over the legal limit of alcohol in his blood. He arrested the Respondent for having over the legal limit of alcohol in his blood and demanded that the Respondent provide a sample of his breath into an approved instrument in order to determine whether the Respondent had a blood alcohol concentration over the legal limit: Code, s. 254(3).

[10] ... Constable Lancia said upon arrest, the Respondent was resistive, aggressive and violent. Constable Lancia said he and Constable Lukasik had to work together to get the Respondent into the police cruiser. Constable Lukasik did not recall any violent behavior by the Respondent. The Respondent said he did not act in a violent manner. The trial judge found that the delay was 20 minutes. Atwood J. did not accept Constable Lancia’s testimony that rights to counsel was provided at the scene, or that the Respondent was resistive and violent upon arrest.

[11] The trial judge rejected Constable Lancia’s grounds for conducting the ASD test. The trial judge accepted Constable Lukasik’s observations of the Respondent’s driving. Atwood J. concluded that without Constable Lancia’s grounds for reasonable suspicion, the ASD demand was unlawful and, therefore, the approved instrument demand was unlawful.

[12] Atwood J. conducted a section 24(2) Charter analysis: R. v. Grant, 2009 SCC 32 (CanLII), 2009 SCC 353, 245 C.C.C. (3d) 1. Atwood J. concluded that the ASD result and evidence of the Respondent’s refusal to comply with the approved instrument demand should be excluded. ...

Did the trial judge err in concluding that erratic driving on its own could not ground a reasonable suspicion that the Respondent had alcohol in his body?

[14] ... The trial judge concluded the nature of the driving described did not meet the low “reasonable suspicion” threshold. Atwood J.’s conclusion that the ASD was unlawful does not constitute an error in law.

[17] ... Therefore, it follows that depending on the circumstances, erratic driving in the absence of an odor of alcohol can provide grounds for a police officer’s “reasonable suspicion”: R. v. Walsh, 2019 ONSC 2337, at paras. 5-19; R. v. Wilson, 2020 ONSC 1956, at para. 49.

[18] Contrary to the Appellant’s assertion, the effect of the trial judge’s rejection of Constable Lancia’s grounds for the ASD, and his acceptance of Constable Lukasik’s observations and the Respondent’s testimony, does not amount to a finding that erratic driving alone, in the absence of a smell of alcohol, cannot ground a police officer’s “reasonable suspicion”.  Atwood J. was not satisfied that the nature of the erratic driving described was sufficient to ground “reasonable suspicion”.

[19] ... The trial judge accepted Constable Lukasik’s evidence of a wide turn which did not send the vehicle over the yellow line and described it “as if to avoid an object in the road” and a correction which sent the vehicle onto the curb briefly and back onto the roadway. This is a significant difference.

[20] ... The trial judge’s rejection of Constable Lancia’s grounds for his “reasonable belief” amounts to a rejection of the grounds for the ASD demand. On the evidence, this was a finding open to the trial judge to make. [PJM Emphasis]

[21] As noted, the trial judge provided detailed reasons why he rejected Constable Lancia’s evidence on his grounds for the ASD test. There was ample basis for the trial judge to make adverse findings on Constable Lancia’s credibility. Another example is Constable Lancia’s description of violent behaviour by the Respondent. Constable Lukasik did not witness violent behavior and the Respondent denied engaging in any violent behaviour. The trial judge found that there was no violent behaviour by the Respondent. Constable Lancia said that rights to counsel were provided on scene. The trial judge found that they were provided 20 minutes after arrest and at the police station.

[22] In addition, when his reasons are considered as a whole, it is apparent that the trial judge concluded that it was Constable Lancia’s observation that formed the basis for the “reasonable suspicion” to administer the test, not Constable Lukasik’s. Thus, an acceptance of Constable Lukasik’s evidence did not act as a replacement for the observations of Constable Lancia. The rejection of Constable Lancia’s grounds in support of the ASD meant that there were no other grounds to support the ASD. This conclusion was open to the trial judge to make. His reasoning does not constitute palpable and over riding error. [PJM Emphasis]

[23] In effect, Atwood J. found that Constable Lancia embellished his observations of the Respondent’s driving. The practical effect of rejecting Constable Lancia’s observation constituted a finding that Constable Lancia’s grounds for his “reasonable suspicion” were not reasonable on a subjective and objective basis.

[24] It was open to the trial judge to reject Constable Lancia’s testimony and correct for him to conclude that on the basis of the evidence he accepted, the low “reasonable suspicion” threshold had not been met.

Which evidence is subject to exclusion under a section 24(2) analysis?

[27] ... The Appellant argues that while the ASD test is properly subject to consideration for exclusion, the Respondent’s refusal to comply with the approved instrument demand is the actus reus of the offence and hence not subject to exclusion under a section 24(2) analysis.

[28] In R. v. Hanneson (1989), 1989 CanLII 7159 (ON CA), 34 O.A.C. 352, and R. v. Ha, 2010 ONCA 433, the Ontario Court of Appeal held that the actus reus of an offence cannot be excluded due to a Charter breach. In R. v. Cobham, 1994 CanLII 69 (SCC), [1994] 3 S.C.R. 360, the Supreme Court of Canada excluded evidence of a refusal. The Ontario Court of Appeal in R. v. Van Deelen, 2009 ONCA 53, and R. v. Williams, 1992 CanLII 7657 (ON CA), 78 C.C.C (3d) 72, at p. 75, has suggested that refusals can be excluded.

[29] Several decisions at trial level stand for the proposition that evidence of refusals can be excluded on a section 24(2) Charter analysis.  R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at paras. 49-51; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at para. 61; R. v. Kraus, 2015 ONSC 2769, 87 M.V.R. (6th) 222, at paras. 49 -65; R. v. Soomal, 2014 ONCJ 220, 10 C.R. (7th) 279, at para. 63-83.

[30] Further Appellate clarification is warranted, however, in this case, except to indicate that I agree with the reasoning in jurisprudence supporting the principle that evidence of refusals can be excluded, further consideration of the issue is unnecessary, since the exclusion or inclusion of the ASD test results will resolve the issue of whether an acquittal or conviction should be registered. I will now consider the trial judge’s section 24(2) analysis using the three Grant criteria below. [PJM Emphasis]

Did the trial judge err by excluding the Respondent’s ASD fail result or refusal to comply with the approved instrument demand from evidence?

[31] The trial judge was equivocal in his conclusions on the impacts of the section 10(b) breach and did not follow R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224. This constitutes an error in principle but ultimately Atwood J. did not err in excluding the ASD test results.

[36] Though not stated explicitly, when the reasons for decision are considered as a whole, the trial judge concluded that on the facts before him, the section 10(b) breach is “clearly not too remote”. I agree with the Respondent that the trial judge did not make an error in principle in reaching this conclusion. The trial judge rejected Constable Lancia’s evidence that the Respondent was advised of his 10 (b) rights on scene and a contributory factor to the delay in implementation was the Respondent’s resistive and violent behavior. The ASD test result existed prior to the section 10(b) breach but is connected to the evidence about the refusal.

[37] ... When the reasons are considered as a whole, it is apparent that the section 10(b) breach was not a significant factor in the decision to exclude evidence.

[42] In effect, the Respondent’s Charter protected rights were infringed because an officer embellished the grounds. This is the crux of the infringement. This is very serious. In the context of the trial judge’s own factual findings, his conclusion that Constable Lancia’s conduct was not that serious or somewhatserious is unreasonable. It cannot be equated with good faith to embellish the grounds for this state Charter infringing conduct. The facts as found by the trial judge speak for themselves. The officer’s description of his grounds was misleading. Condonation of such conduct will undermine the public’s confidence in the rule of law and its processes and, in effect, in the administration of justice. The seriousness of this conduct favours exclusion. [PJM Emphasis]

[45] ... The current state of binding jurisprudence is that a breath sample collected via a Charter breach has minimal impact on an accused’s Charter protected interests: See Jennings. Applying this narrow criterion, the breach’s impact was indeed minimal. The Respondent provided a breath sample for the ASD test and did not provide a breath sample for testing by an approved instrument. This factor favors admission of the ASD test result.

[48] On balance, the seriousness of the State infringing conduct is such as to outweigh the outcome of the other two considerations. In addition, on balance, admission of the ASD test result would bring the administration of justice into disrepute. The ASD test result is excluded and the appeal from acquittal is dismissed.