R v. Taylor, 2012 ABQB 474

Court of Queen ’ s Bench of Alberta Citation: R v. Taylor, 2012 ABQB 474 Date: 20120724 Docket: 100687714S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jake C. Taylor Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] This trial commenced on April 1, 2011. Four Crown witnesses were called. The Defence did not call evidence.

The sole issue was whether the Appellant should have been afforded the right to counsel at the roadside while police were awaiting the arrival of an approved screening device (ASD) for approximately 26 minutes. [ 2 ] The matter was adjourned to April 18, 2012 for decision on the Charter issue after written submissions.

[ 3 ] The Trial Judge determined that the Appellant ’ s right to counsel at the roadside had been breached, but that the evidence should not be excluded pursuant to s. 24(2). The Appellant now appeals that finding. The Trial Judge made the following findings: “ In this case the police knew that the accused had a cell phone. They frisk searched him with the stopped him and they found that he had a cell phone. Indeed subsequently it was that cell phone that back at west division he used to exercise the right to counsel which he was given after having been arrested for impaired driving.

In essence, what is being considered here is whether the delay of 24 minutes from the demand until the administration of the roadside test was such as to provide a reasonable time for the accused to contact counsel an, therefore, as I say, give life to the requirements of

section 10(

b) of the Charter . It should be noted, as I ’ ve said, that delay itself can be an issue, and it has been found to vitiate the demand or requirement to comply. And the issue is not an exercise in delay time itself, but, in my view, whether it is so long as to require explanation, firstly, and the reasonableness of that explanation. In this case there was some delay, 24 minutes. ” [ 4 ] The trial judge having found that the Appellant ’ s right under s. 10(

b) of the Charter had been breached, then went on to deny an application for the exclusion of the breath sample evidence. In so doing, the trial judge stated: “ Dealing with the three components in R v. Grant and section 24(2) of the Charter of Rights and Freedom and the weight to be given to each of those factors, leading firstly with the conduct of the police in all of this, I found what they did was in good faith. It is not in any way to be criticized. It was a situation that they were faced with, and they what they could. Just as matters turned out, in my view, took too long.

Secondly, as to right that was breached, every Charter right is of importance. In this case, however, I do not give overwhelming weight to this particular right, that is right not to give a roadside sample without legal advice. In the normal circumstances you do not have the right at all, it is just particular circumstances. The importance of the Charter right violated here obviously is that evidence was obtained which ends up with a certificate which, if it is what I assume it is, proves an offence.

And there may not have been other evidence which, insofar as I am aware, produce evidence upon he could be convicted, including impaired driving. The purpose of all of this analysis in the section 24(2) is to in the end decide whether, given a breach of this nature as I found it to be, it would bring the administration justice into disrepute if the certificate was admitted or whether, as I find in this case, it would bring the administration of justice into disrepute if the certificate were excluded. I say that because at the end of the day and in balancing all of the factors which I am required to do under R v.

Grant , I do - I just simply conclude that the balance is in favour of having the case decided on its merits, which would include the certificate as evidence. Therefore, the certificate will not be excluded. ” Facts [ 5 ] At approximately 10:00 p.m. on April 23, 2010, a civilian was driving some children from a church when he observed the Appellant driving in a ditch on Yellowhead Trail. He saw the Appellant drive for 25-50 metres and enter back onto the highway speeding. The vehicle drove back into the ditch and then again onto the highway in less than one kilometre.

The civilian called 911 to report the truck speeding. He allowed the Appellant ’ s vehicle to pass so that he could follow the Appellant until police arrived and pulled the vehicle over. [ 6 ] At 10:09 p.m., Cst. Vandenberg was dispatched to the call. He caught up to the Appellant ’ s vehicle where upon he activated his lights. The Appellant did not pull over, but instead changed lanes. Cst. Vandenberg activates his lights and siren, but the Appellant did not pull over. Finally Cst. Vandenberg activated his siren several times and the Appellant pulled over. At 10:13, Cst.

Vandenberg formed his reasonable suspicion at roughly 10:14 p.m., and made an ASD demand at 10:16 p.m.

[ 7 ] Cst. Vandenberg did not have an ASD with him because there are only two or three ASDs at the division and they are more accessible for all police members at the station. Immediately after forming his suspicion, Cst. Vandengerg requested that an ASD be brought to the scene from North Division, but no one else was available. Cst. Vandenberg requested the same on the West Division channel and received a response that an ASD would be brought to the scene. He expected the ASD to arrive in 10-15 minutes. [ 8 ] Cst.

Reimer was working in the West Division of Edmonton that evening when a received a dispatch requesting an ASD to be brought to Yellowhead Trail at 10:28 p.m. He retrieved an ASD from West Division, ensured it had been recently calibrated and that the expiry date was appropriate, and the brought it to the scene using the most direct route. Cst. Reimer arrived with the ASD at 10:38 p.m. and provided it to Cst. Vandenberg, who administered and ASD test on the Appellant at 10:40 p.m. [ 9 ] The result of the ASD test was a fail and the Appellant was arrested for impaired operation.

He was taken back to the West Division station where he provided two samples of breath and was charged with operating a motor vehicle with a blood alcohol exceeding 80 mg%. He was released at 1:13 a.m. Grounds of Appeal Did the trial judge err is refusing to exclude evidence pursuant to s. 24(2) of the Charter ? Did the trial judge fail to consider the Appellant ’ s s. 8 Charter rights? Did the trial judge err in failing to apply R v. Grant 2009 SCC is assessing 24(2) of the Charter ? Did the trial judge make unreasonable findings of fact in assessing s. 24(2) of the Charter ?

Standard of Review [ 10 ] The standard of review on a question of law is correctness. The standard of review for the application of a legal standard to a set of facts, a question of mixed fact and law, is a palpable and overriding error. However if it is clear the trial judge made an extricable error in principle in characterizing the standard or its application, then that error may amount to an error of law, subject to the standard of review of correctness.

If the Appellant demonstrates any error of law, the onus is then on the Crown to satisfy the reviewing court that despite the error no substantial wrong or miscarriage of justice has occurred. [ 11 ] The Appellant argues that the trial judge erred in his application of the law with respect to the exclusion of the Certificate of Analyses pursuant to s. 24(2) of the Charter after finding a s. 10(

b) breach; that he failed to address the impact of a s. 8 breach; and further failed to make reasonable findings in assessing exclusion. [ 12 ] The breach of s. 10(

b) was based on the following findings:

(1) The Appellant had a cell phone and could have made a private call to counsel at the roadside if there was time

(2) There was a delay of 24 minutes between Cst. Vandenberg forming his reasonable suspicion and the ASD test being performed on the Appellant;

(3) Although there was a reasonable explanation for the delay, it afforded the Appellant a reasonable opportunity to contact counsel. [ 13 ] A trial judge ’ s decision to exclude evidence under s. 24(2) of the Charter requires considerable deference. In R. v. Grant 2009 SCC 32 at para. 86 , the Supreme Court of Canada held that “ [w]here the trial judge has

considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. ” [ 14 ] The Alberta Court of Appeal recently commented on the significant amount of deference required by appeal courts when reviewing trial decisions on s. 24(2) in R. v. Dionisi 2012 ABCA 20 at paras. 14 to15 : The standard of review of a decision of a trial judge to admit evidence pursuant to section 24(2) of the Charter is deferential.

The decision to admit evidence under section 24(2) of the Charter is reviewed for reasonableness on any factual issues and for correctness on an extricable issue of law: [citations omitted] ( “ Where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review ( Grant , at para 86 , and Beaulieu , at para 5). ” ).

A finding of the officer ’ s honest belief in the lawfulness of their actions — which here is supportable on evidence of the officer ’ s seeking and obtaining a warrant and the officer ’ s making full disclosure in doing so — is a fact finding which is not simply second-guessed by an appeal court: R v. Beaulieu , 2010 5CC 7 at para 5, [2010] 1 5CR 248 ( “ The majority of the Court of Appeal erred in interfering with the trial judge ’ s weighing of the factors in the s. 24(2) analysis. ” ).

Nor is the overall conclusion of the trial judge vulnerable to substitution: Loewen at para 13 ( “ As the majority stated in Grant , at para. 86 , ‘ [w]here the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination. ’ ” ). [ 15 ] In R. v. Grant the Supreme Court provides the three criteria to be considered when determining whether evidence should be excluded: i. The seriousness of the Charter -infringing state conduct; ii. The impact of the breach on the Charter -protected rights of the accused; and iii.

Society ’ s interest in adjudication on the merits. Seriousness of the Breach [ 16 ] Grant deals with this as follows at paras. 72-75: [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 thosevery persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct.

Itfollows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It shouldalso be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressedbecause they did not turn up relevant evidence leading to a criminal charge.

In recognition of the need for courts to distance themselvesfrom this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion. [17] The Supreme Court directs that trial judges consider where a particular breach falls on a spectrum from minor or inadvertentbreaches to willful breaches involving reckless disregard of Charter rights. Good faith on the part of the police is an important factor inconsidering whether the court needs to disassociate itself from the police conduct. [18] Our Court of Appeal considered this ground in R v.

Harding, 2010 ABCA 180. In that case, the Court considered theexclusion of evidence in a case involving a delay of several minutes in informing the accused person of his right to counsel pursuant to s.10(

b) of the Charter. The Court held that the time delay of 15 minutes was “minor” and that the police officer acted in good faith. [19] At trial Cst. Vandenberg was questioned by defence counsel about why he chose not to provide the Appellant with his right tocounsel at the roadside. Cst. Vandenberg responded that he believed that “[w]hen somebody’s being detained pursuant to a roadsidedemand or a screening device demand, that simply isn’t a requirement.” Furthermore Cst. Vandenberg noted that there would not beprivacy for the Appellant to exercise his right to counsel.

While the Cst. was incorrect in this particular case given the length of timerequired for the delivery of the ASD, his understanding of the law is correct that there is no general right to counsel prior to a lawfulASD test. [20] In R. v. Mitchell,(1994), 1994 ABCA 369 , 35 C.R. (4th) 282 (Alta.

C.A.) at paras. 9 to 11, our Alberta Court ofAppeal held unequivocally that there is no right to counsel at the roadside, regardless of whether a detainee is in proximity to a phone ora lawyer: We do not read (those decisions as ) saying that where communications are difficult the police need not allow access to a lawyer beforedemanding a roadside screening sample. We read them as saying that Parliament requires motorists to give roadside screening sampleswithout any chance to obtain legal advice first, and that any violation of the Charter is pardoned by s. 1 of the Charter.

It is not for us to disregard decisions of the Supreme Court of Canada. For a lower court to disregard law laid down by higher courtsbecause the lower court thinks the reasoning or criteria lack force at different places or different times is largely to ignore the doctrine ofprecedent... Furthermore, we think that the Supreme Court and our court intended to lay down a general rule in those cases cited above.

And wethink that the Supreme Court and our court, when deciding those cases, were perfectly aware that police sometimes stop motorists forinvestigation of possible impaired driving at times and in places where communication with a lawyer might be possible. In urban areas,there is often a telephone booth nearby. A lawyer may even happen to be nearby on occasion. Even in 1988 citizens’ band radios and cartelephones were fairly common. But Parliament enacted a general scheme by legislation and that general scheme had been upheld by thecourts.

We will not depart from it. [21] As a result, the trial judge’s holding that the police were acting in good faith is supported by the evidence and the law.

Impact of the Breach [ 22 ] For the second criteria the Supreme Court in Grant at paras. 76 to 77 directs that trial judges consider where a particular breach falls on a spectrum from fleeting and technical breaches to profoundly intrusive breaches. Courts must consider the degree to which the violation impacted the interests of the accused person. [ 23 ] In Grant the Supreme Court specifically identifies breath sample evidence as being “ reliable evidence ” with a “ relatively non-intrusive ” method of collection, which militates toward inclusion of the evidence at para. 9 to11. [ 24 ] R v.

Booth , 2010 ABQB 797 considered a breach of s. 8 of the Charter in the context of an ASD demand. It was held at para 20-21 that the breaching event is the only event to be considered in determining the impact of the breach on the accused person, and not the events that followed the breach. The subsequent arrest, personal consequences, or employment consequences from the arrest are not to be taken into account on this ground. [ 25 ] In this present appeal the breach occurred because of the delay in getting the ASD to the scene .

The subsequent delay in getting the accused to the police station [12 minute ride], the 26 minute wait there before the accused could phone a lawyer, and the 2 further hours it took for his release are arguably not part of the Grant second line of inquiry as I understand it. [ 26 ] R v. Vandenberg 2010 ABQB 261 is also useful in this case. Similar to this case, Vandenberg involves a breach of s. 10(

b) at the roadside as a result of the officer failing to comply with the “ forthwith ” component of s. 254(2). Justice Smith found at para 40, “ The trial court judge made no error of law or palpable and overriding error in taking into consideration that the ASD procedure is non-invasive and does not undermine bodily integrity or dignity ” . [ 27 ] In the present appeal the trial judge found that the police were acting in good faith and “ not in any way to be criticized ” since they “ did what they could ” in the situation. [ 28 ] The trial judge correctly identified that no prejudice accrued to the Appellant as a result of the s. 10(

b) breach. Instead the Appellant was merely denied a benefit that is generally not enjoyed by other detainees at the roadside. Furthermore there was no evidence that the Appellant would have taken the opportunity to exercise his right to counsel at roadside had he been given the chance. The impact of the s. 10(

b) Charter breach was minimal since the Appellant was left in the same position as other roadside detainees. [ 29 ] With respect to the s. 8 breach, the Appellant did not incriminate himself as there is no evidentiary value in the ASD test. It is also a non-invasive testing procedure involving the collection of exhaled air. There was not a substantial impact on the Charter -protected rights of the Appellant in these circumstances.

Society ’ s Interest in Adjudication on the Merits [ 30 ] Finally the Supreme Court in Grant at paras. 79 to 83 directs that trial judges consider the impact of admission or exclusion on the administration of justice, noting that the public interest in truth- finding is relevant consideration, as is the importance of the evidence to the prosecution ’ s case. [ 31 ] Grant also directs trial judges to consider the reliability of the evidence in determining admission or exclusion.

Unlike compelled confessions, in which reliability is an issue, “ Reliability issues with physical evidence will not generally be related to the Charter breach. Therefore, this consideration tends to weigh in favor of admission. ” [para 115] [ 32 ] Our Alberta Court of Appeal considered the exclusion of marijuana in a case involving a delay of several minutes in the right to counsel being provided to the accused in R v. Harding 2010 ABCA 180 . In concluding that the evidence should be admitted, the Court wrote at para 44:

In these circumstances, any breach was not serious; there was very limited impact on the appellant ’ s Charter rights; and the exclusion of reliable, physical evidence, namely, the marijuana, would tend to undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute. [ 33 ] Similarly in Booth , which involved a breach of the accused ’ s s. 8 rights before she provided an ASD sample, the Court concluded that the evidence should be admitted.

Justice Clackson held at para 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. [ 34 ] In R. v. Megahy 2008 ABCA 207 (Alta.

C.A.) at para. 28 our Alberta Court of Appeal held that a short delay in making an ASD demand did not warrant exclusion of the Certificate of Analyses: Applying those factors to this case, I would disagree that the delay of a few minutes in making the roadside demand constituted a serious violation of the appellant ’ s Charter rights. While the delay was unnecessary and unreasonable, it was, at most, a minor and technical breach that typically would not call for any remedy, let alone the ultimate recourse of granting an acquittal by excluding the certificate of analyses.

The officer had the necessary grounds and statutory authority to demand the evidence. The short delay in making the demand, and the concurrent suspension of the appellant ’ s Charter rights, did not affect the fairness of the trial. Moreover, the reputation of the administration of justice would not require the evidence be excluded.

Indeed, in my opinion, that reputation would suffer if the evidence were excluded for this reason. [ 35 ] In deciding society ’ s interests in adjudication on its merits, the trial judge recognized that, after balancing all the factors, it would bring the administration of justice into disrepute if the Certificate was exclude. [ 36 ] I conclude that the Certificate of Analyses was critical to the prosecution ’ s case against the Appellant.

As the Supreme Court held in Grant at para 83 “ 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. ” [ 37 ] The trial judge properly admitted the evidence and should be afforded deference in this conclusion. Appellate intervention on this ground is not warranted. Unreasonable Search:

Section 8 of the Charter [ 38 ] The Appellant argues that the trial judge erred in failing to consider whether the Appellant ’ s right to be free from unreasonable search or seizure was infringed. However the Appellant ’ s s.8 argument (both at trial and on appeal) is inexorably connected to the s. 10(

b) argument, making it impossible to determine one without the other. In finding that the Appellant should have been given a s. 10(

b) warning, the trial judge was necessarily finding that the demand was not “ forthwith ” as required by s. 8 of the Charter . [ 39 ] The starting proposition is that there is no right to counsel at the roadside pursuant to R v. Thomsen 1988 11 S.C.R. 640 . The reason that there is no right to counsel at the roadside is because s. 254(2) mandates that an ASD test be performed “ forthwith ” , and therefore there is insufficient time to provide an adequate opportunity to consult with counsel at the roadside. In Thomsen , the Supreme Court writes at para 23:

That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, animplication of the terms of s. 234.1(1) when viewed in the context of the breath-testing provisions of the Criminal Code as a whole.

As.234.1(1) roadside screening device test is to be administered at the roadside, at such time and place as the motorist is stopped, and asquickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test... [40] If there is sufficient time for a detainee to consult counsel, then the ASD test is clearly not being administered “forthwith,”which will constitute a breach of a detainee’s s. 8 Charter rights.

Section 10(

b) of the Charter has a limited or no role at the roadside:either the test was forthwith in which case there is insufficient time to provide the right to counsel; or the test was not forthwith in whichcase there is a breach of s. 8 of the Charter and the demand and detention were unlawful. [41] The facts and analysis in R. v. Grant are instructive in this case. In Grant, the officer formed a reasonable suspicion that theaccused had alcohol in his body and made a demand for an ASD test pursuant to 254(2) of the Criminal Code. It took 30 minutes for anASD to be delivered to the scene.

When it arrived, the accused refused to take the test and was charged with refusing to provide a breathsample. [42] On appeal, the Supreme Court of Canada held at para 23 that the actions of the officer fell outside the ambit of s. 254(2)because Mr. Grant was unable to provide a sample of his breath “forthwith” and therefore, the demand was unlawful and Mr. Grantshould have been provided with a s. 10(

b) warning upon his initial detention. [43] The Ontario Court of Appeal frames this issue as follows: “In other words, if the police officer is not in a position to requirethat a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer’s demand is not ademand made under s. [254(2)]”: R. v. George (ON CA), [2004] 187 C.C.C. (3d) 289 (Ont. C.A.) at para 32,quoting from R. v. Cote (1992), (ON CA), 70 C.C.C. (3d) 280 (Ont. C.A.) at 285 [44] The Supreme Court of Canada again reviewed the “forthwith” requirement of s. 254(2) in R. v. Woods, 2005 5CC 42.

TheCourt affirmed that s. 254(2) authorizes roadside testing for alcohol consumption in violation of ss. 8, 9 and 10 of the Charter. Theseviolations are saved by the forthwith requirement imposed by s. 254(2). If the forthwith requirement is not met, the detention is not onepursuant to s. 254(2): [15] Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8,9, and10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutionalmuster.

That requirement cannot be expanded to cover the nature and extent of the delay that occurred here. ... [29] The “forthwith” requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses theissues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8,9 and 10of the Charter.

In interpreting the “forthwith” requirement, this Court must bear in mind not only Parliament’s choice of language, butalso Parliament’s intention to strike a balance in the Criminal Code between the public interest in eradicating driver impairment and theneed to safeguard individual Charter rights. [45] The only route to finding that the Appellant’s s. 10(

b) rights were infringed was through finding that the ASD test was notadministered “forthwith”, constituting a breach of s. 8 of the Charter. The trial judge correctly considered the s. 8 requirement of“forthwith” and on the facts of this case concluded that the sample was not taken forthwith, which subsequently gave rise to the right tocounsel. Unreasonable Findings of Fact [46] The Appellant argues that the trial judge’s finding that the police officers were acting in good faith was unreasonable.

[ 47 ] However this is a finding of fact and subject to a standard of review of palpable and overriding error. The trial judge had a rational basis for reaching his conclusion: the police officers “ did what they could ” in the situation but that the timing was simply too long. Conclusion [ 48 ] There is no evidence to suggest a finding of bad faith on behalf of the officers.

The Appellant argues that the officer made no inquiries as to when the device could be brought to the scene, but the officer testified that he believed the device would arrive in 10-15 minutes based on his proximity to West Division station, after having contacted the North Division when he learned no officer was available. [ 49 ] The finding that the officers were acting in good faith is supported by the evidence and should not be disturbed on appeal, as I conclude that appellate intervention on this ground is not warranted. [ 50 ] Finally I conclude that the trial judge correctly outlined the proper test with respect to the exclusion of evidence from R v.

Grant . He then proceeded to apply the factors of the test in a manner that was both reasonable and consistent with the Supreme Court ’ s guidelines in Grant . [ 51 ] Accordingly the appeal is dismissed. Heard on the 19 th day of July, 2012 Dated at the City of Edmonton, Alberta this 24 th day of July, 2012. Donald Lee J.C.Q.B.A. Appearances: Theodore H. Kantor for the Appellant

Megan Rosborough Crown Prosecutor ’ s Office for the Respondent