R. v. Tysick, 2011 ABQB 560

Court of Queen ’ s Bench of Alberta Citation: R. v. Tysick, 2011 ABQB 560 Date: 20110928 Docket: 100645076S1 Registry: Wetaskiwin Between: Her Majesty the Queen Respondent/Crown - and - Travous John Tysick Appellant/Accused _______________________________________________________ Reasons for the Decision of the Honourable Mr. Justice Keith D. Yamauchi _______________________________________________________ I. Introduction

[ 1 ] On May 28, 2010, the Crown charged Travous John Tysick [the “appellant”] with a number of offences. For the purposes of this appeal, on October 18, 2010, the Provincial Court of Alberta found the appellant guilty of unlawfully operating a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to section 253(1) (

a) of the Criminal Code , R.S.C. 1985, c. C-46 [“ Criminal Code ”]. The Crown did not charge the appellant with an offence of operating a motor vehicle with a blood alcohol ratio in excess of eighty milligrams of alcohol in one hundred millilitres of blood pursuant to Criminal Code s. 253(1) (b). [ 2 ] For the purposes of this appeal, the appellant does not appeal his sentence. II. Evidence at Trial [ 3 ] At trial, the Crown’s counsel called three witnesses: • Cst. Jonathon Cook, of the Royal Canadian Mounted Police [“RCMP”] in Wetaskiwin, Alberta, who was the investigating and arresting officer [“Cook”], • Cst.

Mark Scheck, a qualified breath technician for the Wetaskiwin RCMP [“Scheck”], and • Cpl. Kevin MacDonald, a member of the Wetaskiwin RCMP who provided roadside assistance to Cook [“MacDonald”]. All of their evidence was heard in a voir dire . The appellant called no evidence. Cook ’s Evidence [ 4 ] At 10:30 a.m. on April 17, 2010, Wetaskiwin RCMP received a complaint that a driver had entered a Husky Market gas station and had “come screeching to a halt.” The complainant indicated that the driver “actually looked intoxicated and had a flushed look on his face.” Cook received this information from dispatch.

The information also included the make and model of the vehicle, a licence plate number and the colour of the vehicle. Eventually, Cook spotted a vehicle roughly matching this description approaching his vehicle on the other side of the road. At that time, Cook was unable to determine the make or model of the vehicle or observe a licence plate number. [ 5 ] Cook executed a u-turn, and followed the vehicle as it approached Highway 2 via the Highway 13 interchange ramp.

Cook noted that as he followed the vehicle down the curved Highway 2 on-ramp, the vehicle “was actually leaning all the way to the left and was traveling at approximately 80 kilometres an hour”: Trial Transcript, p. 7, ll. 3-6. The vehicle remained within the lane’s lines, but as it proceeded to merge onto Highway 2 southbound, the vehicle “nearly collided with another southbound vehicle… [that] had to swerve out of the way to avoid a collision”: Trial Transcript, p. 7, ll. 18-3.

Cook believed that the other vehicle “actually went into a totally different lane,” but could not say for certain: Trial Transcript, p. 9, ll. 3-5. While on the ramp, Cook was able to confirm that the licence plate number of the vehicle matched the licence plate number he received from dispatch: Trial Transcript, p. 10, ll. 38-39. It was also at that time that Cook recognized the vehicle as a Honda Civic: Trial Transcript, p. 11, ll. 6-10. [ 6 ] After the other vehicle swerved, Cook activated the emergency lights of his police vehicle.

The Honda Civic pulled over without incident and Cook commenced his direct interaction with the appellant. Cook said: I asked the driver for his driver's licence and he actually produced to me a bank card with no name on it. And he said he didn't have his licence. The driver had slurred speech and he also had glossy, red eyes. The - - the car actually had a strong odour of marihuana coming from it as well: Trial Transcript, p. 11, ll. 17-21

[ 7 ] Cook told the appellant to step out of his vehicle, and it was not until they stood at the rear of the police vehicle that Cook noted “an odour of liquor coming from his breath.” Cook had not noticed this while the appellant was still in his vehicle. Cook had taken the appellant to the rear of the police vehicle for questioning because Cook was “investigating whether or not this was an impaired driver”: Trial Transcript, p. 13, ll. 6-30. By that time, Cook “already had suspicion that the driver was impaired” by alcohol.

He was not sure if the smell of marihuana was coming from the vehicle or from the appellant personally: Trial Transcript, p. 14, ll. 1-12. [ 8 ] During cross-examination, Cook confirmed that he did not note an odour of liquor emanating from the Appellant until after Cook had directed the appellant to exit his vehicle and stood with him outside the police vehicle: Trial Transcript, p. 28, ll. 2-24. [ 9 ] After the appellant was seated in the rear of the police vehicle, he “continued to exhibit signs of impairment by alcohol.” At that point, Cook immediately advised the appellant “that he was under arrest for impaired operation of a motor vehicle”: Trial Transcript, p. 15, ll. 28-30.

Although Cook thought “there was a possibility of maybe some drugs in the vehicle,” and “also the driver might have been impaired by a drug as well,” the appellant “had all the indicia of being impaired by alcohol”: Trial Transcript, p. 16, ll. 6-8. [ 10 ] Cook did not conduct any field sobriety tests as he was “not trained in that exercise” although there were members of the detachment who were so trained. Cook could have contacted them for assistance.

Cook did not obtain a sample of the appellant’s blood for analysis: Trial Transcript, p. 29, ll. 32-41; p. 30, ll. 10-16. [ 11 ] Cook placed the appellant under arrest at 10:46 a.m.: Trial Transcript, p. 16, ll. 10-11. Cook subsequently “ Chartered and cautioned” the appellant: Trial Transcript, p. 16, ll. 13-41; p. 17 ll. 1-34.

At trial, the appellant took no issue with the wording of the arrest “ Charter and caution.” At 10:50 a.m., Cook read the appellant the first breath demand: Trial Transcript, p. 17, ll. 34-41; p. 18, ll. 1-3. [ 12 ] Cook confirmed the grounds on which he based his arrest of the appellant for impaired operation of a motor vehicle: Trial Transcript, p. 18, ll. 5-31]: Q ... What were your grounds for arrest at that time? A My grounds for arresting him for impaired motor vehicle, impaired operation of a motor vehicle included the driving behaviour that I observed before the vehicle stop. Q Yes?

A Was a marked departure from the normal driving behaviour. Q Okay. A The -- upon speaking with the driver he had slurred speech, red glossy eyes. Upon speaking further with the driver outside of the vehicle, there was a strong odour of liquor that came from him. Q Yes? A And he continued to demonstrate slurred speech while in the PC. Q Okay. Anything else? A That was -- Q What about the complaint? Did that play any role in it?

A Yes, the complaint did. The complaint of the impaired driver itself that the driver had come to a stop at a screeching halt at the Husky Market. The driver had looked intoxicated. [ 13 ] Cook then explained his understanding of the offence for which he charged the appellant: Trial Transcript, p. 18, ll. 33-40: Q All right. It is - - is it a crime to be impaired by alcohol? A Yes. Q It is? A While driving a motor vehicle. Q What, if any, opinion did you form about his opinion ( sic ) to drive the motor vehicle?

A That his driving ability was impaired. [ 14 ] After MacDonald arrived to assist with towing the appellant’s vehicle, Cook drove the appellant to the Wetaskiwin RCMP detachment. They arrived at 11:16 a.m.: Trial Transcript, p. 19, ll. 22-29. [ 15 ] Once they arrived at the detachment, the appellant was booked into cells. The appellant “refused to provide his address, refused to provide a telephone number and place of work as well”: Trial Transcript, p. 19, ll. 33-34. Immediately thereafter, Cook placed the appellant in the telephone room.

At 11:25 a.m., Cook “could hear yelling coming from the lawyer room,” so he opened the door and “asked if Mr. Tysick was talking to his lawyer. And he said he was”: Trial Transcript, p. 20, ll. 8-10. Cook went on: I closed the door and shortly after that he hung up the phone. So I believed he, at that point, would have finished talking with his lawyer. I opened the door again to see how be made out and he said he was going to call a lawyer now. ... …. When I questioned him I - - he actually said he was talking to his girlfriend. …. I advised him that it was his chance to call his lawyer, not his girlfriend.

He was provided with another opportunity to contact a lawyer. [Trial Transcript, p. 20, ll. l0-19, 38]. Cook continued: He began thumbing through the phone book again and eventually did make a second phone call after which point eventually he did hang up again. He was - - he was asked if he had finished talking to a lawyer and he said he was not happy with his consultation. He said he wanted to speak to a second lawyer. …. I explained to him that he had been given a reasonable opportunity to contact counsel but he was agitated, refused to - - to acknowledge that. [Trial Transcript, p. 21, ll. 22-25, 33-35].

[ 16 ] The Wetaskiwin RCMP gave the appellant no further opportunity to retain and instruct counsel. Scheck ’s Evidence [ 17 ] Scheck was the breath technician responsible for obtaining two breath samples from the appellant. He was qualified to operate an Intoxilizer 5000C for the purposes of blood alcohol analyses pursuant to Criminal Code ss. 254 and 258 . [ 18 ] Scheck’s first contact with the appellant was at 11:52 a.m. on April 17, 2010.

He noted the appellant had “very red glassy eyes” and that there was “an overwhelming odour of burnt cannabis coming from [the appellant] himself”: Trial Transcript, p. 35, ll. 8-10. [ 19 ] Just as Scheck noted that the first sample, taken at noon, was “96 milligram percent,” the appellant’s trial counsel rose and the Crown’s counsel asked that Scheck stop. The appellant objected to evidence of his breath samples being presented to the court, as the Crown had not charged the appellant with a Criminal Code s. 253(1) (

b) offence. The appellant’s counsel argued that she did not think the readings were being introduced “properly”: Trial Transcript, p. 35, ll. 38-41; p. 36, ll. 3-6. The Crown’s counsel responded as follows: Well, my response to that, Sir, is the courts in Alberta - - well there are three, four cases out of Alberta R. v. Emery , R. v. Freizen , R. v. Cleary , R. v. Mide . As well as a case called R. v. Gohein (phonetic)… that all refer to a B.C. Court of Appeal decision

(1976) CarswellBC 360 , which indicated that evidence of readings over .80 at the end of the day can be considered corroborative of impairment.

It's on that basis that I'm calling this evidence: Trial Transcript, p. 36, ll. 3-15; citations omitted. [ 20 ] The learned Provincial Court judge, without asking the appellant’s trial counsel whether she had a response, immediately decided to allow evidence of the readings into the voir dire based on the Crown counsel’s representations: Trial Transcript, p. 36, l. 17. [ 21 ] Subsequently, Scheck noted the first reading, 96 milligrams of alcohol in 100 millilitres of blood, would have been “truncated down to 90" because “it benefits the accused”: Trial Transcript, p. 36, ll. 24-35.

Twenty minutes later, Scheck obtained a second breath sample from the appellant with an actual reading of 90 milligrams of alcohol in 100 millilitres of blood. MacDonald ’s Evidence [ 22 ] MacDonald assisted in arranging for the appellant's vehicle to be towed from where Cook stopped it on Highway 2. When he searched the vehicle, he “found a small roach in the driver's side door pocket,” which he seized: Trial Transcript, p. 40, ll. 7-10.

He later “turned over the roach” to Cook: Trial Transcript, p. 40, ll.19-20. [ 23 ] MacDonald testified “I know what marihuana smells like,” but he was not qualified as an expert: Trial Transcript, p. 40, l. 32. He did not testify that the “roach” was in fact marihuana and “roach” was never defined at trial. III. Reasons for Conviction [ 24 ] The learned Provincial Court judge found that the “issue in this case is the adequacy of the legal advice received by the accused in exercising his 10(

b) rights under the Charter of Rights and Freedoms , and if there was a breach of the accused's Charter rights, are there remedies available to him under

section 24 of the Charter ”: Sentence Transcript, p. 3, ll. 21-24. The appellant argues that the learned Provincial Court judge noted no other issues and, accordingly, the learned Provincial Court judge’s reasons deal almost exclusively with this question.

[ 25 ] In fact, it is clear that the learned Provincial Court judge had to deal with a further issue for him to find the appellant guilty of the Criminal Code s. 253(1) (

a) charge, viz. , that the appellant unlawfully operated a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug. [ 26 ] With respect to the alleged breach of

section 10(

b) of the Canadian Charter of Rights and Freedoms ,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [“ Charter ”], the learned Provincial Court judge held that the Supreme Court of Canada decision in R. v. Willier was dispositive of that issue when he said: This court believes that the recent decision of the Supreme Court of Canada in R. v. Willier … clarifies that issue. In - - in that particular case, which involved a murder investigation, the accused was unable to contact the lawyer of his choice and spoke to Legal Aid counsel. The court stated at paragraph 35, citing R. v.

Tremblay : A detainee must be reasonably diligent in the exercise of these rights ...: Sentence Transcript, p. 5, ll. 11-29; citations omitted. Referring to his 10(

b) rights: ... and if he is not, the qualitative duties imposed on the police as set out in Manninen are suspended. Then at paragraph 42, the court stated: However, unless a detainee indicates diligently and reasonably that the advice he or she has received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel. Sentence Transcript, p. 5, ll. 11-29. [ 27 ] The learned Provincial Court judge found that there was no evidence that the appellant “had expressed any further desire to contact counsel”: Sentence Transcript, p. 5, ll. 33-35.

Thus, he found that the appellant did not prove on a balance of probabilities that there was a breach of his Charter s. 10(

b) rights: Sentence Transcript, p. 5, ll. 37-39. [ 28 ] Turning his mind to the question of whether the impaired operation of a motor vehicle was proven beyond a reasonable doubt, the learned Provincial Court judge's conclusion was: On the issue of impairments, the evidence shows that the accused's ability was clearly impaired with the strong odour of marihuana and the smell of alcohol clearly being factors in the impairment.

The breathalyser readings simply corroborate that alcohol was one of these factors, there will therefore be a conviction and we'll postpone sentencing to another date: Sentence Transcript, p. 5, l. 41; p. 6, ll. 1-4. IV. Issues on Appeal [ 29 ] The issues before this Court are: (

a) Whether the learned Provincial Court judge erred in using the appellant’s breath sample readings to support his finding that the appellant was operating a motor vehicle while his ability was impaired by alcohol;

(

b) Whether the learned Provincial Court judge erred in finding beyond a reasonable doubt that the appellant unlawfully operated amotor vehicle while his ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to Criminal Code s. 253(1)(a); and (

c) Whether the learned Provincial Court judge erred in failing to find a breach of the appellant’s Charter s. 10(

b) rights. V. Analysis Standard of Review [30] Under Criminal Code s. 686(1)(a), this Court may allow an appeal against conviction on three possible grounds: (

a) the verdict is unreasonable or cannot be supported by the evidence; (

b) the trial court’s judgment is a wrong decision on a question of law; or (

c) there has been a miscarriage of justice. [31] If this Court were to allow this appeal, pursuant to Criminal Code s. 686(2), it “shall quash the conviction” and: (

a) direct a judgment or verdict of acquittal to be entered; or (

b) order a new trial. [32] This Court may dismiss the appeal using the standard of review set forth in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2S.C.R. 235, or under Criminal Code s. 686(2), where it finds that although the learned Provincial Court judge made a wrong decision ona question of law, there was no substantial wrong or miscarriage of justice. [33] This Court must review a question of law using a standard of correctness: Housen at paras. 8-9. It must review a question offact and questions of inferences of fact using a standard of palpable and overriding error: Housen at paras. 10-25.

Finally, it must reviewa question of mixed fact and law using a standard of palpable and overriding error: Housen at paras. 26-36. This Court couldcharacterize a question of mixed fact and law with an extricable error in principle as an error of law, in which case, this Court mustreview it using a correctness standard.

An extricable error in principle is one that “can be attributed to the application of an incorrectstandard, a failure to consider a required element of a legal test, or a similar error in principle,” Housen at para. 36. [34] The test for whether a trial court has rendered an unreasonable verdict is whether the verdict is one that “a properly instructedjury acting judicially, could reasonably have rendered,” R. v. Yebes, at para. 16 (S.C.C.), [1987] 2 S.C.R. 168, quotingR. v. Corbett, (S.C.C.), [1975] 2 S.C.R. 275 at 282. In R. v.

Biniaris, 2000 SCC 15 at paras. 36-37, [2000] 1 S.C.R.381, the court outlined the role of an appellate court in assessing the reasonableness of a verdict from a judge sitting alone: ... That formulation of the test imports both an objective assessment and, to some extent, a subjective one. It requires the appeal court todetermine what verdict a reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyze and,within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to a subjective

exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed,and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or a subjective test. … These examples demonstrate that in trials by judge alone, the court of appeal often can and should identify the defects in the analysisthat led the trier of fact to an unreasonable conclusion.

The court of appeal will therefore be justified to intervene and set aside a verdictas unreasonable when the reasons of the trial judge reveal that he or she was not alive to an applicable legal principle, or entered a verdictinconsistent with the factual conclusions reached.

These discernable defects are themselves sometimes akin to a separate error of law,and therefore easily sustain the conclusion that the unreasonable verdict which rests upon them also raises a question of law. [35] This Court must be careful in not carrying the Biniaris analysis too far, as the court in that case was referring to a trial judge’s“defects in the analysis.” When this Court is analyzing the learned Provincial Court judge’s conclusions based on the facts before him, itmust determine whether the learned Provincial Court judge made a palpable and overriding error in reaching those conclusions.

In R. v.Burns, (SCC), [1994] 1 S.C.R. 656, 165 N.R. 374 the court stated the standard as follows: 14 In proceeding under s. 686(1)(a)(I), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, butonly for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether thetrier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, (SCC), [1987] 2S.C.R. 168; R. v. W. (R.), (SCC), [1992] 2 S.C.R. 122.

Provided this threshold test is met, the court of appeal is not tosubstitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial. [36] Needless to say, this Court must defer to the learned Provincial Court judge on matters of credibility, which do not call forappellate intervention unless they are clearly unreasonable or unsupported by the evidence: R. v. W. (R), (SCC), [1992]2 S.C.R. 122 at 131-132; R. v. Janzen, 1998 ABCA 371, 228 A.R. 12 at para. 7; Biniaris at para. 24. Charter s. 10(

b) Issue [37] This Court will deal with this issue at the outset. If the RCMP breached the appellant’s Charter s. 10(

b) rights sufficient forthe exclusion of the appellant’s breath sample readings under Charter s. 24(2), there would be no need even to deal with the issue ofwhether the learned Provincial Court judge erred in his alleged reliance on the readings. [38] When one reviews the Trial Transcript, it is clear that the lawyers and the learned Provincial Court judge were confused as towhat exactly happened at the Wetaskiwin RCMP detachment. Counsel, during argument, and the learned Provincial Court judge, in hisconclusions, referred to the fact that the appellant had contacted two lawyers; see e.g.

Trial Transcript p. 47, ll. 16-17 (Appellant’sargument); p. 50, ll. 14-17 (Crown’s argument); January 14 Transcript p. 5, ll. 31-32 (learned Provincial Court judge). That did nothappen, from Cook’s evidence. The appellant contacted his girlfriend, and then contacted a lawyer. He did not contact another lawyer, asfar as Cook was aware. It was that one lawyer whose advice the appellant “was not happy with”: Trial Transcript at p. 21, l. 33. [39] Does this change the analysis the learned Provincial Court judge undertook? He relied on Willier.

It might be worthwhile forthis Court to review Willier and the reasoning that the Supreme Court of Canada provides in reaching its conclusion. The accused, in thatcase, was arrested and charged with murder. After the police advised the accused of his right to counsel, the accused, attempted tocontact a particular lawyer. When that lawyer was unavailable, the police advised the accused of the availability of duty counsel. Theaccused contacted duty counsel and advised the police that he was satisfied with the advice he received from duty counsel.

The trialjudge found that the police had breached the accused’s Charter s. 10(

b) rights because he was not given a reasonable opportunity tocontact counsel of his choice. The Alberta Court of Appeal reversed this decision, reversed the acquittal and ordered a new trial. Onappeal to the Supreme Court of Canada, the court dismissed the accused’s appeal. [40] Willier is a case in which the Supreme Court of Canada deals with the issue concerning the accused right to contact “counselof choice.” The Alberta Court of Appeal dealt with the quality of the advice that the accused received, so the Supreme Court of Canadaprovided us with obiter dicta on this issue.

We must also remember that the accused in that case “expressed his satisfaction with the legaladvice to the interviewing officer, prior to questioning”: Willier at para. 42.

[41] Nonetheless, the Supreme Court of Canada said: 41 While s. 10(

b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, itdoes not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence,premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to beresponsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would beincompatible with the privileged nature of the relationship.

The police cannot be required to mandate a particular qualitative standard ofadvice, nor are they entitled to inquire into the content of the advice provided. ... 42 As noted, s. 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercisethem. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police mayassume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. ... [Theaccused] ... is not entitled to ... remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and thenseek a finding that the advice was inadequate because of its brevity. A s. 10(

b) Charter breach cannot be founded upon an assertion of theinadequacy of [the accused’s] legal advice. [42] In this case, the appellant stated, after being in the telephone room for 27 minutes, that he was “not happy with hisconsultation” and he “wanted to speak to a second lawyer.” After Cook told the appellant that he had been given a reasonableopportunity to contact counsel, the appellant was agitated, but eventually gave his breath sample. [43] The appellant provided Cook with no explanation why he was “not happy.” He did not explain that the advice he receivedwas inadequate.

He did not even assert that it was inadequate. Nor was it even inadequate because of its brevity. He was in the telephoneroom for 27 minutes. During that time, he could have called another lawyer, or his discussion with the lawyer he contacted was fairlylengthy. [44] He argues that he expressed a positive right to contact a second lawyer, and it would not be unreasonable for the police toafford him that right, as they were still within the 2-hour window before he had to give his breath sample. Cook gave the appellant ampleopportunity to contact counsel.

He placed the appellant into the telephone room for the express purpose of contacting counsel. Theappellant instead chose to call his girlfriend. Cook would not be criticized if he did not permit the appellant to contact counsel after that,as the appellant was not “reasonably diligent” in attempting to obtain counsel: see e.g. R. v. Black, (SCC), [1989] 2S.C.R. 138 at 154-55, 98 N.R. 281. However, Cook, again, invited the appellant to contact counsel and left him in the telephone room for27 minutes to allow him to exercise that right. [45] Willier at para. 26 says that Charter s. 10(

b) makes no specific mention of the right to counsel of choice. Similarly, neitherthe Charter nor any cases decided under it say that the police must continue to offer an accused the right to contact counsel until theaccused is happy with the advice the accused receives after contacting counsel.

To do so, without the accused providing an explanationwhy he is not happy with the advice he receives, would allow the accused “to delay needlessly and with impunity an investigation”: R. v.Smith, (SCC), [1989] 2 S.C.R. 368 at 385, 61 D.L.R. (4th) 462. [46] The reason this Court adds the caution that an accused be permitted to explain why he is not satisfied with the advice hereceives is that one can imagine a situation where an accused does not receive any advice at all.

For example, if the only lawyer that anaccused knows is a bankruptcy lawyer, one could hardly expect that lawyer to be able to provide an accused with advice concerning acriminal law matter. Such a simple explanation would suffice to require the police to allow the accused to contact other counsel. [47] Because of the foregoing, this Court finds that the learned Provincial Court judge was correct in his finding that theWetaskiwin RCMP did not breach the appellant’s Charter s. 10(

b) rights. It was the appellant’s burden to show that the police breachedhis Charter rights and he did not satisfy that burden. [48] If this Court’s analysis is incorrect and Cook breached his duty to allow the accused to retain and instruct counsel withoutdelay, this Court must examine the issue of whether to exclude the evidence under Charter s. 24(2). Charter s. 24 provides: 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [49] A Charter s. 24(2) analysis starts from the position that there has been a breach of the Charter. This is important, as this facthas already brought the administration of justice into disrepute.

The Charter s. 24(2) analysis is seeking to ensure that courts do notallow a situation where there is further damage to the repute of the administration of justice through the admission of the evidenceacquired as a result of that breach: R. v. Grant, 2009 SCC 32 at para. 69, [2009] 2 S.C.R. 353. [50] Grant at para. 71, provides courts with a roadmap to follow when faced with the issue of whether to exclude evidence as aresult of a Charter breach, when it said: ...

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission maysend the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests ofthe accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of thecase 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 determinewhether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The seriousness of the Charter-infringing state conduct [51] This first step to determine whether the effect of admitting the evidence would impair society's confidence in the justicesystem, is for this Court to examine the police or state conduct that led to the Charter violation.

There is a spectrum of conduct rangingfrom deliberate, severe, reckless or wilful to inadvertent or minor. The more deliberate or severe the conduct, the greater the likelihoodthat society will not tolerate such conduct. As a result, societal needs will direct that courts exclude the evidence that resulted from thatconduct. [52] How serious is the alleged breach of Charter s. 10(b)? In R. v. Harrison, 2009 SCC 34 at para. 23, [2009] 2 S.C.R. 494 thecourt said: The metaphor of a spectrum used in R. v. Kitaitchik (ON C.A.), (2002), 166 C.C.C. (3d) 14 (Ont.

C.A.), per DohertyJ.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor: Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard forCharter rights. ... What is important is the proper placement of the police conduct along that fault line, not the legal label attached to theconduct.

The impact of the breach on the Charter-protected interests of the accused [53] The second step is for this Court to examine rights of the accused that the Charter protects and determine the impact of theCharter violation on the accused’s rights. The more intrusive the breach on the accused’s rights, the more likely that society will see anindividual’s Charter-protected rights as meaningless.

Society will direct courts to exclude such intrusive evidence. [54] Harrison at para. 28 says that, “This factor looks at the seriousness of the infringement from the perspective of the accused.”As Grant at para. 77 says, “The more serious the incursion on these interests, the greater the risk that admission of the evidence wouldbring the administration of justice into disrepute.” Society’s interest in the adjudication of the case on its merits

[ 55 ] Grant at para. 79 , summarized this step as “whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.” This analysis requires the court to examine the quality of the evidence against the means by which the evidence was obtained. The latter, in part, is examined during the first two steps along the Charter s. 24(2) analysis. The former examines the reliability of the evidence.

Society has no interest in having a court adjudicate a case based on such unreliable evidence and, accordingly, society will direct courts to exclude such evidence. On the other hand, society will not tolerate a court excluding evidence that is relevant and reliable. [ 56 ] Grant at para. 83 , also pointed to the importance of the evidence to the prosecution’s case. It said: The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused.

Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution. Whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute [ 57 ] This Court must examine what it has found in the previous three steps, balance them and complete its journey by determining the effect that admitting the evidence will have on society's confidence in the justice system. This is not a scientific exercise.

In fact, Grant at para. 86 said, “No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.” [ 58 ] Grant at para. 96 said: For instance, if an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10(

b) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. [Citations excluded] [ 59 ] In this case, Cook was well aware of the appellant’s right to counsel and he gave the appellant an opportunity to exercise that right. He complied with his “informational duty.” The appellant argues that because Cook should have been aware of the 2-hour time limit, he has acted in bad faith. This Court does not find that Cook acted in bad faith.

In fact, he checked again with Scheck to determine whether he should allow the appellant a further right to contact counsel. This Court finds that when he checked with Scheck, Cook was acting in good faith. Grant at para. 75 said, “‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.” Even had this Court found that Cook breached the appellant’s Charter rights, Cook’s behaviour would fall to the less serious side of the spectrum set forth in R. v.

Kitaitchik , cited in Harrison . [ 60 ] The appellant chose first not to contact counsel when Cook gave him that right. He then exercised his right to contact counsel. In the first instance, the appellant did not even choose to contact counsel, so from his perspective any infringement was not serious. From an objective perspective, even if there were an infringement, the impact of the breach was not a serious incursion into the appellant’s Charter -protected rights. [ 61 ] How reliable is the evidence and how important is this evidence to the Crown’s case?

The breaches of the accused’s Charter rights are not severe. Thus, they do not undermine the reliability of the evidence and, as such, they do not undermine the truth-seeking function of the justice system. Unlike some forms of evidence that the police obtain as a result of a Charter -breach, the evidence in this case is reliable. The Criminal Code provides certain presumptions concerning breathalyser tests.

As to whether the exclusion of the breathalyser tests will “gut the prosecution’s case,” this Court will deal with that issue later in these reasons. [ 62 ] Having regard to all the circumstances, the admission of the breathalyser tests into evidence would not bring the administration of justice into disrepute. Use of the Breathalyser Tests to Support a Finding of the Appellant ’s Impairment

[ 63 ] The appellant argues that the learned Provincial Court judge used the breathalyser readings to buttress Cook’s credibility as to the appellant’s impairment. It is important to repeat the learned Provincial Court judge’s finding in this regard. He said: On the issue of impairments, the evidence shows that the accused's ability was clearly impaired with the strong odour of marihuana and the smell of alcohol clearly being factors in the impairment.

The breathalyser readings simply corroborate that alcohol was one of these factors, there will therefore be a conviction and we'll postpone sentencing to another date: Sentence Transcript, p. 5, l. 41; p. 6, ll. 1-4. [Emphasis added]. [ 64 ] The appellant argues that by using the emphasized words, the learned Provincial Court judge used the breathalyser readings for the following two purposes: (

a) to strengthen, or make more certain, the facts that the learned Provincial Court judge found; and (

b) to buttress Cook’s credibility. [ 65 ] The appellant provided this Court with dictionary

definitions that define “corroborate” as, “to strengthen (an opinion, statement, argument, etc.) by concurrent or agreeing statements or evidence”: The Oxford English Dictionary, 2d ed., s.v. “corroborate.” This dictionary contains six separate

definitions and the appellant argues the “strengthening” aspect. That same dictionary, however, contains a separate definition of “corroborate,” which is “to support, confirm”: ibid. [ 66 ] This Court finds that the learned Provincial Court judge used “corroborate” in the latter, or “confirming” sense. He found the appellant was “clearly impaired” with the strong odour of marihuana and the smell of alcohol, which are “clearly” factors in the appellant’s impairment. The breathalyser readings “simply corroborated” or confirmed the clear finding that alcohol was a factor.

In other words, the learned Provincial Court judge did not need the breathalyser readings at all, in the view of his “clear” findings. [ 67 ] Thus, even had the learned Provincial Court judge, or this Court, excluded the breathalyser readings, it would make no difference given the learned Provincial Court judge’s clear findings of fact.

This Court has reviewed the record and finds that the learned Provincial Court judge made no palpable and overriding error in making those findings. [ 68 ] Accordingly, this Court dismisses the appellant’s appeal. [ 69 ] The appellant has asked this Court to examine specifically, whether the learned Provincial Court judge erred when he used the breathalyser readings to buttress Cook’s testimony. The learned Provincial Court judge did not use the breathalyser readings in this way, and nothing that he said in his reasons for his decision suggests this. Accordingly, this Court need not address this issue.

Heard on the 28 th day of July, 2011. Dated at the City of Edmonton, Alberta this 19 th day of September, 2011.

K.D. Yamauchi J.C.Q.B.A. Appearances: Derek J. Anderson Knisely Shipanoff LLP for the Appellant/Accused Luke Faught Attorney General of Alberta for the Respondent/Crown