In R. v. Cheema, 2016 ONCJ 61 the accused was held in a cell for four hours and 20 minutes after the failing the Brethalyzer tests. At trial, the judge ruled this violated the accused’s Charter right against arbitrary detention and arrest. The violation was not serious enough to exclude the breath readings as evidence. Instead, the judge was willing to reduce the sentence as a Charter remedy, stating:

[34]           I am of the view that some remedy is appropriate.  There is authority suggesting that a penalty less than the statutory minimum is an available remedy for a breach of this nature: R. v. Price, supra at para. 96; R. v. Morgan, supra at para. 64; R. v. Systma, supra at para. 34; R. v. Sukraj, supra at paras. 90-91.  I am prepared to grant such a remedy in this case and will hear submissions from counsel as to the appropriate penalty.

[35]           Some further comment is warranted before leaving this issue.  R. v. Price, supra is a decision from this jurisdiction which clearly sets out how release decisions are to be approached and what factors are to be considered.  Although Price was released in 2010, Sgt. Gonsalves seemed to be unaware of the decision.  There appear to be a significant number of “overholding” cases in this jurisdiction.  As in this case, most courts have declined to order stays of proceedings or exclude evidence, but have made it clear that the principles in Price are to be followed.  Notwithstanding repeated clear judicial direction, it is not clear that police practices have changed.  In these circumstances, it could appear to a reasonable observer that as long as convictions are not at risk, complying with the Charter is of less concern to the police.  If it were ever established that this were the case, then more drastic remedies may be in order.

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