R. v. Booth, 2010 ABQB 797

Court of Queen ’ s Bench of Alberta Citation: R. v. Booth, 2010 ABQB 797 Date: 20101216 Docket: 091037085S1 Registry: Edmonton Between: Her Majesty the Queen - and - Leeane Gayle Booth Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ Appeal from the Conviction by The Honourable Judge Tjosvold Convicted on the 3 rd day of May, 2010 (Docket: 091037085P1) I. Facts and Circumstances

[ 1 ] On July 10, 2009, Constable Nicholls was conducting an Alberta Check Stop on a main thoroughfare in the City of St. Albert, Alberta. As part of that initiative, he stopped the appellant. [ 2 ] The Learned Trial Judge conducted a voir dire on the actions of the officer taken pursuant to s. 254(2) of the Criminal Code . The relevant provisions of s. 254(2) are as follows: 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle . . . the peace officer may, by demand, require the person . . . . . . (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. [ 3 ] In the voir dire the Learned Trial Judge came to the following conclusion: Dealing, first, with the question of whether there was a violation of

Section 8 and the right to be free from unreasonable search and seizure. The question in this case is whether or not the officer had a reasonable suspicion that the accused had alcohol in her body. That question has to be assessed, both, subjectively and objectively. Subjectively, I am satisfied that the officer had a suspicion. I am satisfied that he thought he had adequate reason for that suspicion. But I am also satisfied that he was mistaken. Essentially, he relied on two items of evidence. One, was an admission by the accused that she had had one drink about three hours ago.

The other was that when she parked the vehicle she hit the curb force by enough to bounce away from it. Obviously, there were other matters that should have been considered. And, particularly, the absence of other indicia of drinking including the absence of any odour noted by the officer. So, I am satisfied that on an objective basis the suspicion that the officer held was not a reasonable one and there was a violation of

Section 8. [ 4 ] Having determined that the search was unconstitutional, the Learned Trial Judge had to consider whether the evidence should be admitted despite the unconstitutional way it was obtained. He concluded that the evidence should be admitted, and the roadside device’s measurement of alcohol level in the appellant’s breath sample could be relied upon by the officer to support the development of reasonable and probable grounds for a further search of the appellant. That further search would also involve breath samples and an approved breath analysis instrument.

In this case, the appellant ultimately provided breath samples which put her well over the legal limit. [ 5 ] The appellant’s sole ground of appeal is that the trial judge erred in admitting the unconstitutionally obtained screened sample into evidence. Had the evidence been excluded, it is likely that the Crown’s case would have collapsed. That is because the reasonable and probable grounds necessary to a constitutional demand for breath samples from the appellant depended upon the fail reading registered by her when screened.

That does not lead automatically to an exclusion of the breach analysis, but it is difficult to imagine a s. 24 analysis which would see the screened sample seizure excluded but the breath instrument results admitted. [ 6 ] The appellant argues that the first error made by the Learned Trial Judge was that he should have found that the officer acted in bad faith in the legal sense and had he done so, the balancing required when considering the impact of admitting unconstitutionally obtained evidence on the reputation of the justice system should have resulted in the exclusion of the evidence. [ 7 ] The appellant argued that the second error made by the Learned Trial Judge was failing to appropriately consider the impact of the unconstitutional search upon the appellants s. 8 right.

II. Analysis A. Standard of Review [ 8 ] Although the standard of review of a trial decision by an appellate court has been repeated thousands of times, for ease of reference it is: Where the alleged error is one of law, the trial judgment is reviewed for correctness. Where the alleged error is one of fact, the trial judgment is deferred to unless the fact found or inferred is the result of a palpable or overriding error, such as no evidence to support the fact found.

Where the alleged error mixes fact and law, the law must be correctly stated and applied but the facts found or inferred, absent palpable or overriding error, must be deferred to. Housen v. Nikolaisen , 2002 SCC 33 (CanLII) , [2002] SCJ No. 31 B. Section 24(2) [ 9 ] The Supreme Court of Canada in R. v. Grant , [2009] SCC 32 and companion cases reformulated the approach to the question of whether the administration of justice would be brought into disrepute by the admission of unconstitutionally obtained evidence.

McLachlin C.J. and Charron J. said this: 67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. . . 68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case.

Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute. 69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.

Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. 70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public [page394] interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

1. Seriousness of Charter Infringing State Conduct [ 10 ] Again, McLachlin C.J. and Charron J. offered guidance in Grant as to what is embraced in the first part of the test: 72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. 73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led [page395] to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence.

The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter . 74 State conduct resulting in Charter violations varies in seriousness.

At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute. 75 Extenuating circumstances, such as the need to prevent the disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach: R. v.

Silveira , 1995 CanLII 89 (SCC) , [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest , 1989 CanLII 109 (SCC) , [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch , 1990 CanLII 55 (SCC) , [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay , 2003 SCC 30 , [2003] 1 S.C.R. 631, at para. 59 .

Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends [page396] to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter -infringing conduct was part of a pattern of abuse tends to support exclusion. [ 11 ] In the first three paragraphs, the Court outlined a continuum from least egregious defined as “inadvertent or minor violations of the Charter ” to the most egregious, defined as “willful or reckless disregard of Charter rights”.

However, in an attempt to embrace the many decisions which pre-dated Grant , the Court in para. 75 attempts to give meaning to the notions of good faith and bad faith, that attempt is repeated at para. 108. Plainly, “bad faith” is at the egregious end of the spectrum. Simple enough. But what of “good faith”? Does “good faith” embrace inadvertence, minor violations, or an honest but mistaken belief? If ignorance of Charter standards must not be rewarded and cannot be good faith, does it matter if the ignorance is honest? In my view, the problem with the use of the labels “good and bad faith” is that they mislead.

The analysis is not defined by faith, or intent, but by the egregiousness of the state conduct. There is no added requirement to consider the mental processes of the authorities engaged in the breach, rather, intention is a part of the process of determining how egregious the conduct was. It is a factor, not the answer.

Therefore, to argue as the appellant has that the Learned Trial Judge should have found bad faith, misses the point, faith is not the appropriate legal standard. [ 12 ] In this case, although the trial judge said: In assessing the seriousness of the violation in this case we have, essentially, I think a concession the officer was acting in good faith. I am prepared to find that. I think he was mistaken but I think he honestly believed he had adequate grounds for the demand. (p. 35 ll. 34- 36).

The Learned Trial Judge did not lose sight of the ultimate issue however, because he also said: So, how seriously would a reasonable person aware of the long term objectives of the Charter view this conduct . . . If I was to characterize the seriousness of the breach here I would say it is not inconsequential but to my mind it is not egregious, if I can use that term. [ 13 ] That is, in my view, exactly the right term and the right approach. The Learned Trial Judge properly stated and applied the law.

The conclusion he reached on where the state conduct actually fell on the egregiousness continuum is a finding of fact, based upon his assessment of the evidence. It is entitled to deference. [ 14 ] The appellant argued that because the standard for demanding a screenable breath sample is so low, no breach of that standard should be tolerated. Had the appellant refused to provide such a sample, she would have been acquitted on the facts of this case. However, she complied with the demand despite violation of her right. Once she complied, the evidence was admissible, absent reason to exclude it at that juncture.

Exclusion requires an analysis under s. 24(2). There is no other basis to exclude the resulting evidence. [ 15 ] This case is distinguishable from R. v. Dunkle , [2010] A.J. No. 464 because the officer in Dunkle acted in a far more egregious manner which justified exclusion. [ 16 ] In my view, no error was made by the trial judge in the first part of the test under s. 24(2). 2.

Impact on the Appellant’s Charter Protected Rights [ 17 ] In Grant this part of the test was generally described as follows at para. 76 through 79: 76 This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. 77 To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.

For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) -- all stemming from the principle against self-incrimination: R. v. White , 1999 CanLII 689 (SCC) , [1999] 2 S.C.R. 417, at para. 44 .

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. 78 Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected [page397] interests of privacy, and more broadly, human dignity.

An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not. [ 18 ] In Grant , the Court also provided insight into how the new analysis would apply to different kinds of evidence.

On the subject of unconstitutional bodily substance seizures, McLachlin C.J. and Charron J. offered this at paras. 103 and 109: 103 A flexible, multi-factored approach to the admissibility of the evidence is required, not only by the wording of s. 24(2) but by the wide variation between different kinds of bodily evidence. The seriousness of the police conduct and the impact on the accused's rights of taking the bodily evidence, [page405] may vary greatly. Plucking a hair from the suspect's head may not be intrusive, and the

accused's privacy interest in the evidence may be relatively slight. On the other hand, a body cavity or strip search may be intrusive, demeaning and objectionable. . . 109 The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused's protected interests.

In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which the search and seizure intruded upon the [page408] privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples or dental impressions (as in Stillman ). At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris-recognition technology.

The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused. [ 19 ] Again, the Court has created a continuum or scale. The scale measures degree of intrusiveness and degree of dignity degradation. [ 20 ] In this case, the appellant argued that the Learned Trial Judge was wrong to conclude that the only impact upon the appellant’s right to privacy, bodily integrity and liberty, was the actual screening process.

Rather, she argues the proper approach is to consider the fact that the illegal search resulted in her arrest, detention, transportation to the RCMP detachment, processing and the affront to privacy, liberty and dignity that all of that entails. She argues that assessing the impact of the breach requires consideration of everything ensuing from the breach. The impact upon her employment, the need for representation and the loss of her licence are examples.

By extension, all personal consequences ensuing from the breach might also be relevant and the individual personality of the victim would become a necessary part of the analysis. [ 21 ] I do not agree. The object of the exercise is to assess the risk that and degree to which reasonable persons would become cynical as to the effectiveness of the right violated. It is an objective exercise focussed on the actual breaching event. That

interpretation fits best with the Court’s words at para. 111. 111 While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 22 ] Additionally, the Court’s actual analysis of the seriousness of the impact upon Mr. Grant’s rights suggests an objective approach: 134 The second inquiry under the s. 24(2) analysis focusses on whether the admission of the evidence would bring the administration of justice into disrepute from the perspective of society's interest in respect for Charter rights. This inquiry focusses on the impact of the breach on the accused's protected interests.

Because the two infringed Charter rights protect different interests, it is necessary to consider them separately at this stage. 135 The initial Charter violation was arbitrary detention under s. 9 of the Charter , curtailing Mr. Grant's liberty interest. This interaction, beginning as a casual conversation, quickly developed into a subtly coercive situation that deprived Mr. Grant of his freedom to make an informed choice as to how to respond. This is so, notwithstanding the fact that the detention did not involve any physical coercion and was not carried out in an abusive manner.

We [page416] therefore conclude that the impact of this breach, while not severe, was more than minimal. 136 The second Charter violation was breach of Mr. Grant's s. 10(

b) right to counsel. Cst. Gomes, by his own admission, was probing for answers that would give him grounds for search or arrest. Far from being spontaneous utterances, the appellant's incriminating statements were prompted directly by Cst. Gomes' pointed questioning. The appellant, in need of legal advice, was not told he could consult counsel. [ 23 ] Significantly, no consideration is given by the Court to any of the subjective consequences which could be said to be part of

the “impact” of the breaches. The focus was on the breaching event and the degree to which the interests, which we all have, had been undermined.

It is that degree which defines the extent of the risk that reasonable people will discount the strength of their constitutional rights. [ 24 ] Finally, a long-term, forward looking and societal perspective is not consistent with a highly personalized subjective assessment of the impact of the breach. [ 25 ] Therefore, I have concluded that assessing the impact of the breaching event is to be done on a general or objective basis. [ 26 ] The appellant referred to Judge Allen’s decision in R. v. Haut , [2010] A.J. No. 113 (Alta. PC) and Judge Henderson’s decision in R. v.

Mejia , [2009] ABPC 310, in support of the proposition that a more subjective analysis of the second part of the three part test was appropriate. Both cases related to violations involving arrest and breath sampling as opposed to breath screening. In both Haut and Mejia , the unconstitutional state conduct related to lacking reasonable and probable grounds for demand under s. 254(3). That

section authorizes a more invasive procedure than provided for in s. 254(2). Both cases are distinguishable on that basis. However, to the extent that either suggests a subjective approach to the impact question, I must respectfully disagree. [ 27 ] In my view, the Learned Trial Judge was right to focus on the events immediately surrounding the breach and in that respect, the actual impingement upon the appellant’s dignity, privacy and liberty was minor. The only thing the appellant did which she should not have been required to do was blow into the screening device.

In my view reasonable people would not consider overlooking that intrusion as undermining the strength of their constitutional rights. Therefore, the Learned Trial Judge did not err as alleged in relation to the second ground. [ 28 ] The appellant having failed to demonstrate any error in the trial judgment, her appeal is dismissed. Heard on the 18 th day of November, 2010. Dated at the City of Edmonton, Alberta this 14 th day of December, 2010. T.D. Clackson J.C.Q.B.A. Appearances: Jeffrey L. Morrison Alberta Justice, Edmonton Rural & Regional Response Office for the Crown

Y. Rory Ziv Weary & Ziv for the Accused