Joseph A. Neuberger
There is no doubt that impaired driving is a serious social issue affecting Canadians across Canada. The consequences of a conviction for impaired driving can have long lasting implications for an individual. This is partly why impaired driving cases account for the largest percentage of cases litigated in the Provincial courts. Charter jurisprudence has matured within this context. Consequences for Charter breaches such as the right to speak with counsel of choice, or an unreasonable seizure of breath have traditionally resulted in exclusion of the breath readings with little analysis of s. 24(2).
A recent decision of Mr. Justice Ducharme sitting on an appeal of an acquittal of an Over 80 charge in Regina v. Padavattan,  O.J. 2003, has been heralded by some Crown Attorney as a pivotal decision establishing that a breach of Charter rights does not mean that conscriptive evidence (breath samples) must always be excluded. Indeed this judgement garnered considerable media attention as being noted in a Toronto Star article of July 13, 2007 as "Precedent-setting drunk-driving incident expected to have major impact on other cases."
Mr. Padavattan had pulled up to a McDonald's drive through and appeared drunk to the cashier. Police were called and when Mr. Padavattan was stopped, police made a demand under s. 254(2) of the Criminal Code for a roadside breath sample. The officer who had formed the suspicion that Mr. Padavattan had previously consumed alcohol called for another officer to attend with the breath machine. At trial the defence brought an Application to exclude the results alleging an unreasonable seizure of the accused's breath. The second officer did not testify and the issue was whether the Crown was required to prove that the officer who physically administers the test must have the reasonable suspicion. The trial court found that since there was no evidence that the administering officer had a reasonable suspicion, the accused's right was violated and the readings were excluded. The Crown appealed.
The routine exclusion of breath samples has generally be based on the view that the Supreme Court of Canada has articulated an automatic rule of exclusion for conscriptive evidence that impacts trial fairness, Regina v. Stillman (1997), 113 C.C.C. (3d) (S.C.C.). However, in recent years many lower court decisions such as Regina v. Richfield (2004), 178 C.C.C. (3d) (Ont. C.A.) have found that exclusion of evidence, as a general rule, may provide a disproportionate remedy. Justice Ducharme wrote that "Given the public acceptance of the use of breath samples to fight drinking and driving cases .... the exclusion of the evidence would have a negative impact on the reputation of the administration of justice." This was because the breach was of a very minor nature (p. 29).
Crown Attorneys have however seized upon this language to argue that "technical" breaches ought not to result in exclusion of evidence. However, rather than resetting the course of Charter jurisprudence in impaired driving cases, this decision does little more than remind courts that the Collins factors must be examined when determining whether exclusion of evidence is an appropriate remedy. Further, Justice Ducharme found that as long as the investigating officer had a reasonable suspicion, the requirements of s. 254(2) were met and that there was no Charter breach, but if his analysis was wrong and there was a violation of s. 8 of the Charter, the evidence ought not to be excluded. The must discussed s. 24(2) analysis thus occurs within the context of a hypothetical breach on facts that would not and should not constitute a Charter violation.
Post Padavattan, Provincial trial courts are still excluding evidence when Charter violations are found. In impaired driving cases, the focus is typically on whether or not there has been a violation of the Charter rights of an accused. Although going forward closer attention may be paid to the factors under s. 24(2), the vast majority of Charter violations tend to revolve around serious fundamental issues that can never been characterized as merely "technical" and will continue to result in exclusion of conscriptive evidence.