Steven Jennings was driving his motor vehicle with a blood alcohol concentration above the legal limit. He was stopped by police. They noticed. He was arrested. He later provided samples of his breath proving this fact. At trial he sought to exclude that evidence, alleging a violation of section 8. He succeeded. The Crown appealed. The Ontario Court of Appeal allowed the appeal, entered a conviction and remitted the matter for sentencing: 2018 ONCA 260.

The trial judge had found that there was a violation of Jenning’s section 8 rights. The basis for this was the identified failure of the OPP officer to following steps set out in a manual regarding the proper procedure for administering the approved screening device [ASD] – namely that he failed to:

perform a self-test of the ASD at the beginning of his shift;
record the particulars of the ASD calibration check in his notebook; or
perform a second self-test after the respondent provided his breath sample.

The Court of Appeal disagreed. After a review of each step, and its impact on the objective reasonableness of the officer’s belief, the Court of Appeal held:

The uncontested evidence was: (i) the constable observed the respondent’s vehicle swaying into the wrong lane; (ii) the constable detected alcohol on the respondent’s breath; (iii) the respondent admitted to having consumed alcohol; (iv) the constable followed the procedures for use of the ASD, with the exception of those noted above; (v) the results of the self-test and the calibration check indicated the device was working; and (vi) the breath sample provided by the respondent registered over .80. [@ 22].

Although finding there was no violation of section 8, the Court turned to consider section 24(2). In particular, the court took aim at the second head of the Grant test. In doing so the court noted there were two divergent lines of authority on the interpretation of this head of the test.

The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung, the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent’s being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.

The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov; R. v. Ramsammy, 2013 ONSC 7374; R. v. Marchi, 2016 ONCJ 757; R. v. Ho, 2014 ONSC 5034, rev’d on other grounds 2015 ONCA 559. [@27-28]

Having identified these divergent lines of authority, the court clearly rejected the former.

The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543,116 O.R. (3d) 721, where Watt J.A. refers to “the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness” (at para. 100) and, citing Grant at para. 111, says that “as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted.”

Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that “[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity: Grant, at para. 111.”

To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission. [@ 29-32].

It is somewhat peculiar that the Au-Yeung approach to the second head of the Grant analysis had developed and been relied upon. It is also unfortunate, as many cases, relying on this approach, likely excluded evidence that should not have been excluded – Jennings would have been one more example of this. Fortunately, the Ontario Court of Appeal took the opportunity in Jennings to soundly reject this approach. It is unfortunate that such a ruling was necessary in light of the dicta in Grant – but fortunate it has been made.