Gordon Rambissoon was charged with impaired and “over 80”. At trial he sought to exclude evidence – including the breath readings – based on alleged violations of his rights under sections 8 and 10(b) of the Charter: The alleged violations were based on the timing of the ASD demand by the police.
Knazan J found that there was a breach. Turning to section 24(2) – at the time just months after R v Grant, 2009 SCC 32 had been released – Knazan J held that the evidence should not be excluded, noting, inter alia, that trivial nature of the breach.
After the ruling on the Charter motion the trial was adjourned. In the interim, defence counsel filed another Charter motion, this one sought to prohibit the Crown from relying upon the presumption of identity in 258(1)(c), based on the same breach and reliance upon section 24(1). The defence relied upon R v Charette, 2009 ONCA 310. With respect to timing the defence asserted that it had not previously been aware of these rulings.
Knazan J refused to permit the defence to bring the application. Rambissoon was convicted. He appealed: 2012 ONSC 3032.
Trotter J, sitting on summary conviction appeal, dismissed the appeal. In doing so he offered the following:
The trial judge fairly noted that, while the law had changed since the appellant had been charged and filed his Charter application (i.e., R. v. Grant, supra, and R. v. Charette, supra, were decided), the changes had occurred months prior to the oral argument of the s. 24(2) application. While the unreported decision of Coghlan may have been difficult to find, the same remedy was contemplated in Charette.
Furthermore, the trial judge noted that the Crown is entitled to know all of the bases upon which the defence might advance Charter claims in order that it may take reasonable decisions on how to proceed and what evidence to adduce. While the trial judge acknowledged that the defence would consent to an adjournment should the application succeed and the Crown request leave to call further evidence, he noted that the trial had become unwieldy. As he said at para. 22 of the s. 24(1) reasons: "The timing of this application involves not only a forward lengthening of the trial but a backward distortion." I agree with this characterization. Moreover, the trial judge also identified "strategic and economic decisions" at play in the timing of the s. 24(1) application.
It is impossible to gauge the reasonableness of the trial judge's decision on the s. 24(1) issue without remembering an important aspect of his ruling on his application to exclude evidence under s. 24(2). The trial judge debated whether, based on conflicting authority, a breach had been established at all. In the end, he concluded that a breach had been made out, but just barely. As he said at para. 29 of the s. 24(2) reasons, the officer's "breach was very minor indeed." He also found that the officer acted in good faith and that the breach was not deliberate. I agree with these characterizations. And while they were tailored to the analytical framework in R. v. Grant, supra, on a more general level, they must have some relevance to whether any remedy ought to have been granted under s. 24(1) of the Charter. That is, acknowledging that the Court of Appeal in R. v. Charette, supra, contemplated that applicants may be entitled to a remedy under s. 24(1) in these circumstances when one is not available under s. 24(2), it is difficult to imagine that any remedy would have been considered "appropriate and just" given the trifling or tenuous nature of the underlying breach[paras 10-12]; [emphasis added].