Impaired Exclusion: Exploring the Possibility of a New Bright Line Rule of Good Faith in Impaired Driving Offences

AuthorBrian Eberdt
PositionCompleted his J.D. at the University of Victoria Faculty of Law in the fall of 2010
Pages65-83
ARTICLE
IMPAIRED EXCLUSION:
EXPLORING THE POSSIBILITY OF A NEW
BRIGHT LINE RULE OF GOOD FAITH IN
IMPAIRED DRIVING OFFENCES
By Brian Eberdt*
CITED: (2011) 16 Appeal 65-83
I. INTRODUCTION
e success of a defendant’s application to have inculpatory evidence excluded under
s. () of the CanadianCharter of Rights and Freedoms (“Charter”)can easily be charac-
terized as one of the most determinative events in the outcome of a criminal trial. In light
of the fact that most successful applications eliminate the Crown’s ability to sustain a pros-
ecution, the exclusion of evidence may be the most formidable means of upholding Char-
ter rights within the criminal justice system. In the absence of a meaningful test with which
to exclude evidence, the breach of a defendant’s Charter rights becomes a breach without
any other means of recourse. At the same time, imposing a test that weighs too heavily in
favour of exclusion can give rise to negative perceptions of the administration of justice. It
is for these reasons that s. () balances the importance of Charter rights against the re-
pute of the administration of justice.
On July , , the Supreme Court of Canada released the decisions of R. v. Grant, R. v.
Harrison, and R. v. Suberu. Together, these three decisions establish a new approach to
the exclusion of evidence. e event has had a signicant impact throughout the world of
APPEAL VOLUME 16 w65
* Brian Eberdt completed his J.D. at the University of Victoria Faculty of Law in the fall of 2010. He has Bachelor
of Arts degree in Psychology from York University (Glendon College) and McGill University. While completing
his J.D., Brian completed co-op work terms at the criminal law f‌irms of Claus and Company in Victoria and
Lockyer Campbell Posner in Toronto. He will be returning to the latter for his articles in May 2011. He would
like to thank his major paper supervisor, Professor Lee Seshagiri, for his insight and enthusiasm throughout the
research and editing process. He would also like to thank Appeal staff editor Meaghan McWhinnie for her care-
ful and patient eye. Finally, Brian would like to thank his wife, Sarah Facini, for her unwavering support.
1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK) (1982), c 11 at s 15 [Charter].
2. R v Grant, 2009 SCC 32, [2009] SCJ No 32 [Grant].
3. R v Harrison, 2009 SCC 34, [2009] SCJ No 34 [Harrison].
4. R v Suberu, 2009 SCC 33, [2009] SCJ No 33.
criminal law because these are the rst decisions to fundamentally change the framework
created by R. v. Collins over  years earlier. e initial reaction to the decisions has been
positive. is is perhaps unsurprising given the accumulation of legal commentary de-
nouncing the uncertainty of the pre-existing framework created by Collins and further ex-
acerbated by R. v. Stillmanin .
At the time of publication, there were approximately  reported decisions referencing the
new framework. In light of the fact that the majority of these decisions have dealt with im-
paired driving oences, the trends that have emerged in the post-Grant case law are most
apparent within that context. is article surveys the post-Grant jurisprudence in the area
of impaired driving to illustrate that the consideration of “good faith” now threatens to sin-
gularly determine the analysis in a manner that resembles the conscription bright line rule
articulated in Stillman.
Part one provides a review of the historical context that gave rise to Grant and its com-
panion decisions. Commencing with the pre-Charter position to exclusion of evidence es-
tablished in R. v. Beginand R. v. Wray, the section describes the struggle involved in
giving eect to the words that appear at s.  of the Charter. is is followed by an outline
of the post-Charter interpretations of s. (), including the confusion and inconsistency
that arose out of the decision of R. v. Stillman.
Part two provides a brief explanation of the Grant decision, highlighting the elements of the
framework to which the Supreme Court sought to bring new certainty. It devotes particu-
lar focus to the discussion of bodily evidence in Grant and its direct treatment of breath
samples. It also notes the ambiguous nature with which the majority has dealt with the
consideration of the seriousness of the oence. is is supported by a discussion of Justice
Deschamps’ separate reasons as she addresses her disagreement with the majority’s focus
on the factor of good faith.
Part three provides a discussion of the post-Grant jurisprudence, focussing on the distinct
eect that the decision has had within the area of impaired driving oences. e section
includes the argument that the removal of the automatic exclusion of conscriptive evi-
dence, established in Stillman, has reintroduced signicant legal barriers for defendants
seeking to exclude breath sample evidence. is is followed by an illustration of how the
treatment of this type of evidence as articulated by the majority in Grant creates the risk
that the second and third branches of the framework will be pre-determined. e section
proceeds to show how the manner in which trial judges have interpreted the seriousness
of the oence further contributes to the likelihood that the exclusion of breath sample ev-
idence is most likely to occur under the rst branch of the framework.
II. PART ONE: DEVELOPING CANADA’S EXCLUSION OF EVIDENCE
REGIME
Due to the fact that the exclusion of evidence is one of the most regularly adjudicated is-
sues in a criminal trial, the history of this area of the law is especially dense. e brief
overview that follows devotes particular attention to how the evolving exclusion of evi-
5. R v Collins, 1987 SCC 11, [1987] 1 SCR 265 [Collins].
6. R v Stillman, [1997] 1 SCR 607, [1997] SCJ No 34 [Stillman].
7. Québec (AG) v Begin, [1955] SCR 593 [Begin].
8. R v Wray, (1970), 11 DLR (3d) 673 (SCC), [1970] 4 CCC 1 [Wray].
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