The Charter of Rights guarantees that every person has a series of significant rights upon arrest or detention. You have the right to be free from arbitrary detention. You have the right to be advised of the reasons for detention. You have the right to retain and instruct counsel without delay. You have the right to be secure against unreasonable search and seizure. And above all, you have the right to life, liberty, and security of the person. These rights are constitutionally entrenched in sections 7 through 10 of the Charter.
Sections 7 through 10 are the most frequently litigated sections of the Charter when it comes to impaired driving investigations. This is because if your rights have been breached you have the right to apply to the Court for exclusion of evidence obtained in breach of your rights. In most impaired driving cases this amounts to exclusion of the Certificate of Qualified Technician, setting out your blood alcohol concentration.
In the past, the Court was virtually bound to exclude evidence in Over .08 driving cases where a Charter breach was made out. This was based on the rule in R. v. Stillman in which the Supreme Court of Canada stated that bodily samples obtained without consent or as a result of the breach amounted to a violation of the right to life, liberty, and security of the person. The Court determined that admitting this impact would negatively impact trial fairness.
The result was that any conscripted bodily samples—that is, samples the accused was forced to give and obtained in violation of the Charter, were almost always excluded.
We all knew the rules. The police were held to a high standard.
Of course there was and remains a perception that anyone who gets an impaired driving charge only needs to hire a good lawyer and it will go away. And we know this to be untrue. But Canadians seemed tired of the exclusionary rule. So along came the Grant decision.
We cannot figure out how this happened, but the Supreme Court of Canada somehow got the hint. They wrote:
“Notably, breath sample evidence tendered on impaired driving charges has often suffered the fate of automatic exclusion even where the breach in question was minor and would not realistically bring the administration of justice into disrepute. More serious breaches in other kinds of cases — for instance, those involving seizures of illegal drugs in breach of s. 8 — have resulted in admission on the grounds that the evidence in question was non-conscriptive. This apparent incongruity has justifiably raised concern.”
And so the test for exclusion of evidence was reformulated from one that considered trial fairness and conscription to something that was more discretionary and could be applied in all the circumstances that might come before the Court.
Now when considering whether to allow the remedy of exclusion of evidence, the Court must look at the following factors:
- The seriousness of the breach;
- The impact on the Charter-protected rights of the accused; and
- Society’s interest in adjudication of the case on its merits.
The Court must then balance these three factors in light of the overall reputation of the administration of justice. If to admit evidence would bring the administration of justice into disrepute, it should be excluded. If to exclude evidence would bring the administration of justice into disrepute, it should be admitted.
This provides police some comfort in knowing that if they inadvertently breached or breached in a minor way an accused’s Charter rights their entire case would not necessarily fall apart. It also provides citizens with comfort in knowing that people were not being acquitted based on what they view to be “technicalities” but rather after a Court has carefully considered the merits of the case and balanced society’s interests against the accused’s.
Do we agree with these changes? Not entirely. The problem with this approach that we see as defence counsel is that in some cases it can embolden the police to commit violations willfully or negligently assuming that the Court will err on the side of inclusion. Our Courts no longer hold the police to the same high standard and we are seeing this in the cases we defend. This will be discussed more in a later blog post.
For now, what you need to know: if you have been charged with impaired driving / driving Over .08 is that there are many ways in which we can help you. These cases do not come down to Charter rights alone and in the vast majority of our cases we are able to resolve the matter so that our clients avoid a criminal conviction.