By Dan Lemaire
Recently, in R. v. Jennings, 2018 ONCA 260, the Ontario Court of Appeal made it more difficult to exclude evidence in DUI cases where evidence was obtained in violation of the Charter of Rights and Freedoms. The facts of Jennings are typical for an “over .80” case. An officer observed Mr. Jennings straying in and out of his traffic lane. After pulling the vehicle over, the officer detected an odour of alcohol, and Mr. Jennings admitted consumption. He then registered a “fail” on the roadside screening device and was arrested. At the police station, Mr. Jennings provided two breath samples – both of which were significantly in excess of 80mg of alcohol in 100 ml of blood.
At trial, defence counsel argued that the breath sample constituted an unreasonable search because the officer did not follow the procedures set out in the OPP manual for the approved-screening device. The trial judge agreed and held that the unreasonable search warranted exclusion of the breath sample evidence. As such, Mr. Jennings was acquitted and the Crown appealed.
At the Ontario Court of Appeal, the full court agreed that the trial judge erred by excluding the breath sample evidence. In so doing, the Court of Appeal overruled a previous decision in R. v. Au-Yeung, 2010 ONSC 2292 – a defence-friendly case frequently cited by DUI defence counsel. In that case, Justice Ducharme held that an improperly-collected breath sample can have a serious impact on the accused. His Honour held:
it is true that the taking of breath samples…is not “a significant compelled intrusion upon the body”…But that should not end the matter…In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes…Certainly, such an interference with the appellant’s personal liberty cannot be dismissed as minor (paras 60-61).
However, in Jennings, the court held that it is improper to consider the entirety of the investigation in assessing the impact of the Charter breach on the accused. In other words, the court held that “since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples,” this should not be a factor (para 32).
Thus Jennings has significant implications for persons accused of impaired driving offences. Indeed, going forward, it will be an error of law for courts to consider the broad impact of a DUI investigation on the accused in assessing the seriousness of any Charter breach. Since the vast majority of breath tests are relatively unobtrusive, it will be even more difficult to exclude Charter-infringing evidence and hence obtain an acquittal. More broadly, Jennings undermines the Charter rights of all Canadians – not just those accused of drinking and driving offences.