R. v. Kanik, 2011 ABQB 101

Court of Queen ’ s Bench of Alberta Citation: R. v. Kanik, 2011 ABQB 101 Date: 20110218 Docket: 080277833S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - David Justin Kanik Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Paul R. Jeffrey _______________________________________________________ Appeal from the Decision by The Honourable Judge W.J. Cummings Delivered Orally the 18 th day of June, 2010 Docket: 080277833P1 [ 1 ] David Justin Kanik appeals his conviction for operating a motor vehicle with a blood-alcohol level exceeding 0.08 contrary to s. 253 (

b) of the Criminal Code .

[ 2 ] The trial judge found that samples of Kanik’s breath were taken in breach of his Charter right to first retain and instruct counsel without delay, based on the Crown’s failure to prove that Kanik had unequivocally waived his right to counsel after earlier indicating an interest in doing so. However, after conducting the Grant analysis pursuant to s. 24(2) of the Charter , the trial judge admitted the breath sample into evidence. The Appellant appeals that conclusion.

Trial Judge ’ s Findings of Fact [ 3 ] The trial judge made the following findings of fact. [ 4 ] On February 22, 2008, Kanik ( the “Appellant”) was the driver of a motor vehicle stopped at an alcohol Checkstop located at Barlow Trail southbound by 114 th Avenue S.E. in the City of Calgary. [ 5 ] Constable Jeffrey Klinger (“Cst. Klinger”), a Calgary Police Service officer since 2000 with five years of experience in the traffic section, approached and advised Kanik that an alcohol Checkstop was being conducted. Cst. Klinger asked Kanik if he had consumed any alcohol that day. Cst.

Klinger directed Kanik to move into the second lane where police vehicles were intermittently staggered. Kanik stopped as directed. Cst. Klinger obtained Kanik’s driver’s license and noted an odour of alcohol coming from the vehicle. Kanik was instructed to pull between police vehicles, which he did. [ 6 ] Cst. Klinger again approached the vehicle and asked Kanik for the rest of his documents. As a result of that conversation Cst. Klinger then attributed the odor of alcohol in the vehicle directly to Kanik’s breath. Kanik did not respond to Cst.

Klinger’s comments that he needed a sample of his breath and that Kanik needed to get out of the car and come with Cst. Klinger. Kanik sat stone- faced staring straight ahead. [ 7 ] Cst. Klinger conducted a visual search of Kanik before taking him back to the police vehicle. He had Kanik empty his pockets and pull up his pant legs to see the bottom of his legs and the top of his shoes. Cst. Klinger asked Kanik the last time he had smoked or consumed anything. Kanik responded by admitting to the consumption of alcohol. [ 8 ] At 22:17 Cst. Klinger read Kanik a screening device demand from a card.

He asked Kanik whether he understood and Kanik responded “yes.” Cst. Klinger was trained in the use of the approved screening device, the Intoxilyzer 400D, had tested the device used and determined it was working properly and capable of receiving a breath sample. [ 9 ] At 22:19 Cst. Klinger took one sample of Kanik’s breath. The result was a fail reading. This suggested a blood alcohol level over the legal limit. On this basis, Cst. Klinger formed the opinion that Kanik’s ability to operate the motor vehicle was impaired by alcohol. Cst.

Klinger advised Kanik he was under arrest for impaired driving and blowing over. Cst. Klinger formed a suspicion that Kanik’s ability to operate a motor vehicle was impaired by alcohol by reason of his previous consumption and the other indicia indicated. [ 10 ] The trial judge said that Cst. Klinger and Kanik differed on what occurred after 22:22. He then summarized the evidence of each, as follows, starting with the evidence of Kanik. [ 11 ] Kanik was 34 years old at the time of the stop and was then employed by a crane manufacturer.

He had no criminal record nor had he ever been arrested for a criminal offence. Further, he said that no police officer had ever read him his rights, he had never needed to call a criminal lawyer either in or out of custody and he had never been in a Checkstop bus before. Kanik recalls being given information about phone numbers to lawyers and information in the room to access lawyers. He answered “yes” when asked if he understood this. He questioned Cst. Klinger extensively about accessing counsel; however Cst. Klinger did not respond to any of his questions.

The instructions as to the location of the phones, the available numbers and that there was being told to close the door when he was satisfied or ready to come out were clear to Kanik. He did not recall being told how many calls he could make even though he asked Cst. Klinger that question several times without receiving an answer. Kanik attempted to contact counsel and thought he needed to knock on the door to show he was attempting to do so. He attempted to get Cst. Klinger’s attention and then told Cst. Klinger he had left

his cell phone as a return number as he had received no live answers to calls he made off the posters in the room or the Yellow Pages. Cst. Klinger told him, in effect, that his time was up in one phone room and made it clear he had to return to a second room to continue phoning. Kanik believed he was put into the second phone booth. On the third occasion Kanik was returned to the first room.

Throughout the course of all this he continued to ask how many more times he was allowed to go back in and make phone calls, how many phone calls he was permitted to make if he made contact, and how long he was allowed to talk. He received no verbal response from Cst. Klinger to any of these questions. Kanik made multiple phone calls to the same two people from the poster and two more separate Yellow Page phone calls. Voicemail cut in on all four. Kanik left messages to the effect that he needed legal advice as soon as possible and left his cell phone number. After he used the bathroom, Kanik testified that Cst.

Klinger used words suggesting the time was fast running out, and he needed to produce the first of two samples. Kanik asked Cst. Klinger if he could wait an approximate five minutes in hopes someone would return his phone call. It took five to ten minutes to set up the equipment, in which time no phone call was returned. Cst. Klinger approached Kanik and requested the first breath sample and asked if he understood he was waiving his right to speak with a lawyer. Kanik denied that Cst. Klinger read the waiver from a card. Kanik further testified that he was not provided with the content of a normal waiver.

He responded to Cst. Klinger that he was not certain he had a choice. Cst. Klinger replied that he would read him the waiver again, and Kanik again responded that he was not certain he had a choice. Cst. Klinger made it clear that if Kanik refused to provide a breath sample, he would be charged with failing to produce a breath sample. [ 12 ] Cst. Klinger testified that at 22:22 he read the Charter caution to Kanik, to which Kanik replied that he understood. He advised Kanik that he was under arrest and would now proceed to the Checkstop bus where he would have the opportunity to contact a lawyer.

At 22:36 Kanik was placed in the phone room and was shown the different options for contacting counsel. Kanik confirmed he understood the options. Cst. Klinger obtained Kanik’s cell phone from his vehicle to assist him in contacting a lawyer. Cst. Klinger told Kanik to knock when he was done or if he had further questions and advised Kanik that he could make as many calls as he needed. At 22:40 Kanik was in the room behind a closed door. Kanik subsequently advised Cst.

Klinger that he had left a message with reception and wanted to wait for his lawyer to call back and thought it would be about ten minutes before the call was returned. At 23:05 Cst. Klinger reminded Kanik how much time had passed and asked how Kanik wanted to proceed. Kanik said he wanted to go back into the phone room and continue to attempt to receive legal advice. At 23:07 Kanik advised he needed five more minutes. At 23:14 Cst. Klinger again advised Kanik of the time that had passed and asked him how he wanted to proceed.

Kanik again advised he wished to continue attempting to contact counsel in the phone room. At 23:18 Kanik advised Cst. Klinger that he wished to attempt to contact the toll free 1- 866 number. Cst. Klinger said that was fine. Kanik passed Cst. Klinger his cell phone. At 23:26 Kanik advised Cst. Klinger that he wished to use a bathroom and asked Cst. Klinger to watch his cell phone for him in case his lawyer phoned. Kanik emerged from the bathroom at 23:30. At 23:33 Cst. Klinger again advised Kanik of the time and asked how Kanik wished to proceed.

Kanik advised that he wished to return to the phone room, which Cst. Klinger accommodated. At 23:34 Cst. Klinger testified that Kanik stated he wanted to discontinue his efforts to receive legal advice. Cst. Klinger stated he read him a waiver of his rights and Kanik gave an unqualified waiver of his right to counsel. Cst. Klinger denied that Kanik answered the question about waiving his right to contact a lawyer by saying he was not certain he had a choice and did not want to be charged with failure to comply.

Two breath samples were taken from Kanik by Constable Jackson, a breath technician, at 23:38 and 23:58. [ 13 ] During cross-examination Cst. Klinger corrected his earlier testimony about being at the same place after a subsequent impaired driving investigation beginning at 01:32 following the dealings with Kanik. Although the next investigation did start at that time, it did not occur at the same location. This correction came with the information that he stayed with Kanik to answer questions while his partner left with other officers to a Denny’s restaurant for something to eat.

Decision of the Trial Judge [ 14 ] Although the trial judge did not articulate his findings of fact with respect to all the evidence of Kanik and Cst. Klinger, he did make the following comment at p. 222 lines 14-17 of the transcript: Where Klinger’s evidence departs from Kanik’s on the issue of whether Kanik waived his right to counsel, I prefer Kanik’s. In arriving at that conclusion, I have taken the whole of the evidence into consideration and do not simply prefer one witnesses’ testimony over the other. [ 15 ] The trial judge found that there was no issue with the informational or implementational elements.

He was satisfied that Kanik invoked his right to counsel, was informed of the availability of resources for that purpose, was moved in and out of the phone rooms on at least three occasions, accessed his own cell phone in an effort to contact counsel using numbers made available in the rooms and left messages requesting he be contacted. He found that Kanik was making reasonable efforts to contact counsel, and that the opportunities given by Cst. Klinger were reasonable and transpired over a period of just under one hour, a realistic window of time to attempt to contact counsel.

However, Kanik was unable to contact counsel. The trial judge found that Kanik made concerted and determined efforts to acquire legal advice through all stages of the investigation and did not acquiesce, relinquish or waive this entitlement.

[ 16 ] The trial judge found he did not believe Kanik’s “flat out denial of waiving his right to counsel”. However, he found that on all of the evidence he had a more difficult time believing Cst. Klinger’s testimony that Kanik unequivocally waived his rights to counsel after he heard Cst. Klinger speak in terms of specific time lines and unstated meal breaks. He questioned whether Kanik had in fact unequivocally waived his right to counsel or whether Cst. Klinger was trying to fast track the investigation without it.

The trial judge noted that the Checkstop bus disappeared within seconds of the breath samples being taken, consistent with Cst. Klinger’s reference to an imminent meal break for his fellow officers, not further time dedicated to an extended investigation. [ 17 ] With respect to Cst. Klinger’s correction of his testimony, the trial judge made the following comments at p. 218 at lines 18 - 37: I note his correction comes with the added information that he stayed with the accused to answer several of his questions while his partner Jackson left with other police members for Denny’s for something to eat.

At line 6, page 139 of the August 13 th 2009 transcript he testified in effect by the time he had finished his paperwork “it was already too late to go and enjoy the meal with them” leaving him to drive around and come upon the next impaired driver at 01:32 hours. These comments are interesting. They demonstrate the next stop for Jackson and the other officers following this investigation wasn’t another impaired driving investigation, as Klinger first suggested, it was a stop at Denny’s, a social event Klinger expressed mild regret in missing.

This is disturbing to the extent that he had time to think about the inaccuracy arising from his prior cross-examination on May 11 th , 2009 but said nothing about this until being asked very late in his continued cross-examination on August 13 th , 2009. I again watched Klinger carefully here. He turned directly to the Bench and earnestly admitted the error.

I don’t view this as a lie, and must emphasize I do not construe this as amounting to bad faith, but it most certainly amounts to the witness being less than careful in providing his testimony on the issue. [emphasis added] [ 18 ] The trial judge found that, on the whole of the evidence, he was left with a doubt as to whether Kanik provided an unqualified waiver of his right to counsel. The trial judge found that the Crown had failed in fulfilling its burden to prove an unequivocal waiver of Kanik’s right to counsel. The trial judge found, therefore, that Kanik’s right to retain and instruct counsel pursuant to

section 10(

b) of the Charter had been breached. [ 19 ] Kanik applied for exclusion of the breath sample evidence, under s. 24(2) of the Charter . After stating the correct test, the three avenues of inquiry under a s. 24(2) analysis as set out by the majority of the Supreme Court of Canada in para. 71 of R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353, the trial judge embarked on the following analysis. [ 20 ] With respect to the first Grant inquiry, the seriousness of the Charter -infringing state conduct, he found the breach to be below the midpoint on the scale of relative seriousness and further found that Cst.

Klinger’s actions were not willful or reckless. The trial judge noted that just as Kanik moved in the direction of wanting to obtain legal advice, so too did Cst. Klinger move in the direction of accommodating those intentions. Kanik was given several opportunities to access counsel through the use of police resources and his own cell phone. The trial judge stated that the source of his concern was the manner in which the investigation concluded, Kanik testifying that he felt he had little alternative but to provide samples and Cst. Klinger testifying that he had received an unequivocal waiver from Kanik.

He further stated that if he had found a breach in circumstances where the Cst. Klinger contended he received an unqualified waiver at the commencement of his involvement with Kanik and without all of what intervened between them, the breach would have been viewed as deliberate and serious. The trial judge found that, given the continuum of events, Cst. Klinger exhibited a high degree of patience, restraint and professionalism up until the end point when the officer’s actions came under scrutiny.

The trial judge stated subsequently (at p. 249 at line 40/41) that “[t]hose actions are not at all deserving of being branded as willful.” The trial judge further made no finding that Kanik had not been intimidated or misled by Cst. Klinger. The trial judge stated that no matter how Kanik testified he was left feeling about his choices, he made the finding that Kanik persisted in his attempts to contact counsel. The trial judge further noted that he did not believe Kanik’s denial of waiving his right to counsel, reiterating that he accepted certain portions of Cst.

Klinger’s testimony but questioned the reliability of some of his testimony concerning Kanik’s purported unequivocal waiver. The trial judge wrote that he was not prepared to infer an absence of good faith by Cst. Klinger.

[ 21 ] On the second Grant inquiry, the seriousness of the impact of the breach of the Charter protected interests of the accused, the trial judge concluded that the degree of intrusion on the accused tended towards inclusion of the evidence. The trial judge referred to the Supreme Court’s discussion in Grant of bodily evidence obtained in breach of

section 8 of the Charter .

He referred to the majority’s discussion at para. 111 of Grant where the majority writes that the method of collection of breath sample evidence is relatively non- intrusive. [ 22 ] On the third Grant inquiry regarding the effect of admitting the evidence on the public interest in having a case adjudicated on its merits, the trial judge stated that tended to favour the admission of the Certificate of Analysis into evidence. [ 23 ] The trial judge concluded that the breath sample was reliable evidence which was required to establish the Crown’s case on a serious charge and its admission into evidence would not bring the administration of justice into disrepute.

Grounds of Appeal [ 24 ] The Appellant accepts that the trial judge referred to and relied upon the correct analytical framework under section 24(2) of the of the Charter , as described by the majority in Grant , and that the trial judge, in so doing, “cited the appropriate factors that must be considered in determining whether the evidence in question is admissible”. [ 25 ] However, the Appellant argues that the trial judge “erred in his analysis and application of those factors”. Specifically, the Appellant says that the trial judge erred in his analysis of the first and second Grant inquiries.

Standard of Review [ 26 ] The decision to exclude evidence must be a reasonable one. An appeal court is not to interfere with a trial judge’s conclusions on s. 24(2) “[...]absent an ‘apparent error as to the applicable principles or rules of law’ or an ‘unreasonable finding’”: R. v. Law , 2002 SCC 10 , [2002] 1 S.C.R. 227 at para. 32 ; R. v. Nelson , 2010 ABCA 349 at para. 14 ; R. v. Harding , 2010 ABCA 180 , 27 Alta. L.R. (5 th ) 228 at para. 14 .

Section 24(2) Charter Analysis Part One - Seriousness of the Impugned State Conduct [ 27 ] The guiding principles with respect to this inquiry are set out by the majority in Grant at para. 72-75 as follows: [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 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 obtainedthrough inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law.

At the other endof the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negativeeffect 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 policeconduct that results in a Charter breach: R. v. Silveira, (SCC), [1995] 2 S.C.R. 297, per Cory J. "Good faith" on the partof the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charterstandards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, (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 verypersons who are charged with upholding the right in question may require that the court dissociate itself from such conduct.

It followsthat deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also bekept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because theydid not turn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distance themselves from thisbehaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [emphasis added] [28] The Appellant contends that the trial judge erred in finding that Cst. Klinger’s conduct did not amount to a serious Charterviolation. He argues that the trial judge’s conclusion that Cst. Klinger acted in good faith is inconsistent with the bulk of the evidencereviewed by the trial judge in finding that a Charter breach had occurred which suggested that Cst.

Klinger unduly rushed the Appellant.The Appellant submits that it was inconsistent of the trial judge to conclude that Cst. Klinger acted in good faith after questioningwhether Cst. Klinger had an unstated agenda in moving the investigation forward. He further argues that Cst. Klinger’s actionsdemonstrated at least a reckless disregard of well-established law. The Appellant submits that Cst. Klinger is an experienced policeofficer who cannot have breached Kanik’s Charter right because of a lack of experience. Cst.

Klinger knew or ought to have knownbetter than to set an implied limit on the Appellant’s right to counsel. The Appellant further argues that simply because the trial judgedid not impute willful disregard for the Appellant’s rights does not mean bad faith should not be imputed in these circumstances. [29] The Appellant points to the statement in para. 75 of Grant underlined above to support his proposition that the trial judgemisapplied the law to the facts. The Appellant submits that based on the trial judge’s findings with respect to Cst.

Klinger’s conduct,which the Appellant characterizes as at least negligent, the trial judge was wrong to say that an absence of good faith could not beinferred. [30] Furthermore, the Appellant argues that Cst. Klinger’s conduct in Court should have been considered under this inquiry, notingthe trial judge’s comments with respect to his inability to believe Cst. Klinger’s testimony, yet not expressly addressing that in hisanalysis of the first inquiry under s. 24(2). The Appellant relies on the Supreme Court of Canada decision in R. v.

Harrison, 2009 SCC34, [2009] 2 S.C.R. 494, at para. 26, on the relevance of in-court conduct to this portion of the s. 24(2) analysis. [31] The Respondent submits that the trial judge’s findings with respect to Cst. Klinger’s actions are findings of fact which deservedeference from this Court, that the Appellant has failed to demonstrate that the findings of the trial judge were unreasonable, and that thefindings of the trial judge are not inconsistent when the judgment is considered as a whole.

The Respondent submits that the trial judgeconsidered the findings from different perspectives under different elements of the analysis. The Respondent points out also that whilethe trial judge did find that the Crown had not proven beyond a reasonable doubt that an unequivocal waiver had been obtained, he didnot find that the Appellant was rushed by Cst.

Klinger in his attempts to obtain counsel nor did he find that the waiver had not been read.The Respondent submits that, considering all of the evidence and findings by the trial judge, the trial judge’s conclusions that the breachwas not willful or reckless is not an unreasonable finding. The Respondent argues that the actions of Cst. Klinger are not the type fromwhich the Court must disassociate itself, as the actions were not willful or reckless but made in good faith. With respect to the impact ofCst.

Klinger’s conduct in court, the Respondent argues that although it may be relevant, the conduct is nowhere near as egregious as theactions of the officer in Harrison. [32] Based on the Appellant’s oral and written submissions, his arguments on the first Grant inquiry fall into two groups and shallbe addressed in turn. [33] First, the Appellant argues that the trial judge’s findings with respect to the general conduct of the investigation by Cst.Klinger were inconsistent with a finding of good faith, or an unwillingness to “infer the absence of good faith” in the words of the trialjudge (at p. 251 lines 39-40).

The Appellant says that a finding of negligence or wilful blindness cannot be equated to a finding of goodfaith.

[ 34 ] With respect to the general conduct of the investigation, the Appellant argues that on the basis of the trial judge’s findings of fact that Cst. Klinger knew or ought to have known that he was breaching the Charter rights of the Appellant. If the trial judge had made findings to that effect then perhaps one could conclude that some standard of negligence or recklessness or otherwise was found but not applied; however the trial judge made no such finding. In effect the Appellant asks this Court to re-weigh the trial judges findings of fact and infer such conclusions.

This is not the place of appellate review on the deferential standard applicable here. When one looks to the reasons of the trial judge (at p. 221 lines 26-34) writing that the Appellant was informed of the availability of resources and was provided with a reasonable opportunity to contact counsel, the trial judge found that there was no issue with the informational and implementational elements of the Appellant’s s. 10(

b) rights. As correctly pointed out by the Respondent, the trial judge did not find that there was any issue with those elements, nor did he believe the Appellant’s assertion that he did not waive his right to counsel (at p. 221 lines 39-41). The trial judge was only left with a doubt as to whether the Appellant’s waiver was unqualified.

He did state (at p. 220) that he questioned “[...]whether Klinger had an unstated agenda to limit the accused’s attempts to contact counsel to fit his own timeline[,]” (lines 15-16) and that he was “...left to question whether an unequivocal waiver of the right was achieved or whether Klinger was trying to fast track the investigation without it[...]” (lines 26-27). He had doubt as to whether Kanik unequivocally waived his right to counsel.

Based on the foregoing, I cannot conclude that the trial judge’s finding of good faith was necessarily inconsistent with, or unreasonable given, the facts found. [ 35 ] More generally, nothing in the trial judge’s findings suggest that he thought Cst. Klinger’s conduct formed part of a pattern of abuse of Charter rights. [ 36 ] Second, the Appellant argues that the trial judge erred in failing to consider Cst. Klinger’s in-court error in his testimony when conducting an analysis under the first inquiry under s. 24(2).

The majority decision of the Supreme Court of Canada did acknowledge in Harrison , at para. 26-27 : [26] I note that the trial judge found the officer’s in-court testimony to be misleading. While not part of the Charter breach itself, this is properly a factor to consider as part of the first inquiry under the s. 24(2) analysis given the need for a court to dissociate itself from such behaviour. As Cronk J.A. observed, “the integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter .

Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority” (para. 160). [27] In sum, the conduct of the police that led to the Charter breaches in this case represented a blatant disregard for Charter rights. This disregard for Charter rights was aggravated by the officer’s misleading testimony at trial . The police conduct was serious, and not lightly to be condoned. [emphasis added] [ 37 ] The trial judge did not expressly consider Cst. Klinger’s in-court testimony in his analysis of the first inquiry under s. 24(2).

But here there was not, as there was in Harrison , any finding that the officer’s in-court testimony was misleading. The trial judge found that Cst. Klinger had been “less than careful[,]”(p. 218 lines 36-37) and expressly found that he did not view Cst. Klinger’s error as a lie. I agree with the Respondent’s submission that Cst. Klinger’s conduct was not egregious, as was the conduct of the officer in Harrison . The trial judge noted the earnest manner in which he admitted his error (at p. 218 lines 34-35).

Although in-court conduct from persons in authority can be a proper consideration under the first Grant inquiry, the trial judge’s silence on this in his reasons was not unreasonable given his factual findings. [ 38 ] Even if I am wrong and the testimony was a necessary and omitted consideration under this first inquiry, I would have reached the same conclusion as the trial judge after that consideration. In para. 27 of Harrison the effect of the officer’s misleading testimony was to aggravate the nature of the officer’s earlier conduct that displayed a blatant disregard for Charter rights.

Without consideration of Cst. Klinger’s in-court testimony, the trial judge concluded that the breach was below the midpoint on the scale of relative seriousness. Considering that the trial judge found that he did not view Cst. Klinger’s error as a lie and did not go further than to call his testimony “less than careful[,]” I find Cst. Klinger’s in-court conduct was not sufficiently aggravating to render the trial judge’s conclusion on the first inquiry unreasonable. The trial judge concluded that, in effect, Cst.

Klinger’s trial conduct had a minimal impact on the first inquiry under s. 24(2). [ 39 ] For these reasons, the conclusion of the trial judge under the first inquiry was reasonable.

Section 24(2) Charter Analysis Part Two- Seriousness of Impact on the Charter Protected Interest [40] The majority decision of the Supreme Court of Canada in Grant provides guidance on this inquiry in paras. 76-78 of thedecision: [76] This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. Itcalls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact ofa Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious the impact on the accused's protectedinterests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are oflittle 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 andexamine the degree to which the violation impacted on those interests.

For example, the interests engaged in the case of a statement tothe 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, (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 administrationof justice into disrepute. [78] Similarly, an unreasonable search contrary to s. 8 of the Charter may impact on the protected 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. [41] The majority made further comments with respect to breath sample evidence at paras.109 and 11, as referred to by the trialjudge: [109] The second inquiry assesses the danger that admitting the evidence may suggest that Charter rights do not count, therebynegatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on theaccused's protected interests.

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

The greater the intrusion on these interests, the more important it is that a court exclude the evidence inorder to substantiate the Charter rights of the accused. [...] [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately 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 interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [42] The Appellant argues that the trial judge misdirected his inquiry by reviewing the impact of the breach on the Appellantbased on the comments in Grant in the context of a s.8 Charter violation, when he had before him a s. 10(

b) violation. The Appellantemphasizes the importance of s. 10(

b) rights and argues that any analysis on the degree of impact on the Charter-protected interest withrespect to breath sample evidence should not simply apply paras. 109 and 111 of Grant but consider the issue specifically from theperspective of s. 10(

b) of the Charter. [43] The Respondent argues that the trial judge did consider the impact of the breach of the Appellant’s s. 10(

b) Charter rights.The Respondent submits that the trial judge did not find that the officer prevented or restricted the Appellant’s right to contact counseland that this finding coupled with the relatively non-intrusive nature of breath samples, do not amount to a breach for which evidenceshould be excluded. The Respondent further points to the trial judge’s finding that Kanik was neither intimidated or misled by Cst.Klinger and the trial judge found the breach because he was left with a doubt as to whether Kanik unequivocally waived his right to

counsel. The Respondent submits that the Charter breach found by the trial judge minimally impacted the Appellant’s protectedinterests and the Appellant did not demonstrate such a finding was unreasonable. [44] The comments in para.109 of Grant are specific to analysis under s.8 of the Charter.

Mid-way through para. 109 the Courtstates: [109][...]In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the court to examine the degree to which thesearch and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. [45] The Supreme Court of Canada then assesses the degree of intrusion on the accused’s bodily integrity and human dignity.Kanik argues that this offers little guidance when s. 10(

b) of the Charter has been breached. [46] In my view the concluding sentence in para. 109 of Grant is true also of s. 10(

b) breaches. It states: “[t]he greater the intrusionon these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused.”However, the Appellant is correct that this principle must be considered in light of the specific Charter right breached. Considering thedegree of “intrusion on these interests” necessarily entails considering the specific Charter right involved, since each such right protectsdifferent interests.

Nevertheless, paras. 109 to 111 of Grant are not entirely inapplicable here is evident from the end of para. 111, wherethe Court states: “[f]or example, this will often be the case with breath sample evidence, whose method of collection is relativelynon-intrusive.” [47]

Section 10(

b) of the Charter provides an accused with the opportunity to make an informed decision about legal rights whenfacing criminal jeopardy. Moreover, the most important function of legal advice upon detention is to ensure the accused understands hisrights: R. v. Hebert, (SCC), [1990] 2 S.C.R. 151, at 176 (majority decision of McLachlin J., as she then was). Section10(

b) serves to protect the privilege against self-incrimination: R v. Prosper, (SCC), [1994] 3 S.C.R. 236 at 271(majority decision of Lamer C.J.). Any breach of a Charter right is a cause of concern for the Court, and in particular when a detaineedoes not receive access to legal advice by which he can learn of the remainder of his rights. [48] However, the breach in this case does not indicate a disregard for Charter rights. The Appellant was permitted to and wasprovided with the means to make a concerted and determined effort to obtain legal advice. The trial judge found that Cst.

Klinger wasreasonable in the opportunity he provided to do so, made no finding that the Appellant was either intimidated or misled by Cst. Klinger,and found that there was no issue as to the informational and implementational elements of the Appellant’s s. 10(

b) right. Cst. Klingercomplied with a significant portion of his duties as a police officer flowing from s. 10(b). This breach is much less serious than acomplete failure to inform a detainee of his right to counsel or to allow a reasonable opportunity to contact counsel. On the spectrum ofpotential impacts to a Charter breach, the breach in this case was not egregious. On this basis, I find that the trial judge’s conclusion thatthis inquiry tended towards the inclusion of the Certificate evidence was reasonable.

Administration of Justice [49] What is required under Grant in this final balancing step is well stated in the majority decision in R. v.

Morelli, 2010 SCC 8,[2010] 1 S.C.R. 253, at para. 108: [108] In balancing these considerations, we are required by Grant to bear in mind the long-term and prospective repute of theadministration of justice, focussing less on the particular case than on the impact over time of admitting the evidence obtained byinfringement of the constitutionally protected rights of the accused. [50] Having found reasonable the conclusions of the trial judge on the lines of inquiry in question, I find that the trial judge wasalso reasonable in his conclusion on this final balancing step that to exclude this evidence would not bring the administration of justiceinto disrepute. [51] I therefore dismiss the appeal.

Heard on the 17 th day and the 20 th day of December, 2010. Dated at the City of Calgary, Alberta this 17 th day of February, 2011. Paul R. Jeffrey J.C.Q.B.A. Appearances: Ian Savage for the Appellant Kyra Kondro for the Respondent