R v Lal, 2012 ABQB 646

Court of Queen ’ s Bench of Alberta Citation: R v Lal, 2012 ABQB 646 Date: 20121022 Docket: 100986462S1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jason Roger Lal Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ I. Introduction [ 1 ] The appellant successfully appealed his July 19, 2011 conviction under s. 253(1) (

b) of the Criminal Code of Canada (2012 CarswellAlta 952 , 2012 ABQB 358 ). The inquiry now turns to the admissibility of breath samples under s. 24(2) of the Charter . For reasons which follow the breath samples are admitted into evidence. II. Background [ 2 ] The appellant was tried on April 14, 2011 and convicted July 19, 2011. He was acquitted of a charge under s. 253(1) (

a) of the Criminal Code . His appeal from conviction succeeded on the basis the investigating officer failed in her evidence to address whether, when she made a breath demand, she had grounds to believe the appellant had committed an offence within the previous three hours.

[3] At trial no s. 24(2) Charter analysis was undertaken in the alternative to the appellant’s conviction under s. 253(1)(b). Onthe successful appeal therefore the issue arose whether the s. 24(2) issue should be returned to the provincial court, either to the originaltrial judge or otherwise, or should simply be dealt with by this court. After some initial uncertainty, at the end of the day counsel agreedas did I that it made sense for this court to undertake the s. 24(2) analysis. This was particularly the case given the trial record beforeme, and the absence of any new evidence. III.

The infringement [4] As noted on appeal, the underlying infringement resulted from the taking of a breath sample which all agreed is awarrantless search and thus prima facie unreasonable under s. 8 of the Charter. The Crown was unable to prove the search wasreasonable. Lacking was evidence from the investigating officer, Cst.

Heigle, of the appellant’s time of driving. [5] Section 254(3) of the Criminal Code requires the investigating officer to have had an honest subjective belief at the timeshe made the breath demand that the appellant had committed an offence under s. 253 of the Criminal Code within the previous threehours, and that her subjective belief was objectively reasonable. [6] The appeal succeed on the basis that the trial judge erred by finding Cst. Heigle had formed the necessary groundsregarding the time of driving. The trial judge found that Cst. Heigle's grounds were formed in part by what she was told by Cst.

Kim,who was involved initially with the appellant. Cst. Kim stopped the appellant in relation to an alleged vehicle hit-and-run. Cst. Kim'sevidence was clear that he was dispatched at 6:50 a.m. to investigate the vehicle hit and run. He stopped the appellant, who hadobviously been driving his vehicle. While investigating the vehicle hit and run, Cst. Kim had occasion to read a roadside screeningdevice demand to the appellant at 7:06 a.m. Cst. Heigle arrived at the scene at 7:18 a.m. and read a breathalyzer demand at 7:34 a.m. [7] The record is thus clear that Cst.

Kim knew the appellant had driven within the requisite three hours. However, it wasfound on appeal that the record failed to show what, if anything Cst. Kim told Cst. Heigle about theappellant’s time of driving. And therecord failed to show what Cst. Heigle learned from Cst. Kim with regard to time of driving. At the end of the day, on appeal it wasfound no evidence existed at trial that Cst.

Heigle even turned her mind to the issue of time of driving. [8] That being said, I agree with the respondent that the record before me for s. 24(2) purposes falls short of showing Cst.Heigle was anything more than careless in failing to testify about the appellant’s time of driving. The record certainly falls short ofshowing negligence, recklessness, or willful blindness in that regard. Granted, there is no evidence that she, or for that matter Cst. Kim,turned their minds to the issue of time of driving.

But the record does not allow me to find, directly or by inference, that in fact eitherofficer was “ignorant” of the importance of time of driving. I am not prepared to speculate about what either officer might have said ifcalled to give evidence on this point in a s. 24(2) hearing. IV.

Section 24(2) [9] Section 24(2) of the Charter provides: 24(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed bythis Charter, the evidence shall be excluded if it is established that, having regard to all of the circumstances, the admission of it in theproceedings would bring the administration of justice into disrepute. [10] In R. v. Loewen 2010 ABCA 255 , 2010 ABCA 255, Berger J.A., although dissenting in the result, provided what Ihave subscribed to as a helpful s. 24(2) analysis, as follows:

[82] McLachlin C.J. and Charron J, on behalf of the majority in R. v. Grant described the analysis required by s. 24(2) as anobjective one that asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter,would conclude that the admission of the evidence would bring the administration of justice into disrepute”: para. 68.

The essence of therequisite 24(2) analysis is set out in para. 71 of the majority’s decision: “A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

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

The court’s role on a s. 24(2) application is to balance theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute....” [83] The test for seriousness of state conduct requires consideration of the following factors: ⋅ Was the breach “inadvertent or minor” or a result of willful or reckless or deliberate disregard for the Charter? ⋅ Did the police act in good faith? ⋅ Were there “extenuating circumstances”? [84] In an

article entitled “Common Law Police Powers and Exclusion of Evidence: the Renaissance of Good Faith” (2006), 36 C.R.(6th) 353 at 356-357, Steve Coughlan has stated: “Good faith has always been a flexible concept within s. 24(2), and courts have applied it in a number of ways.

Some cases have treatedgood faith as the mere absence of bad faith, and have therefore held either that a lack of malice is a factor favouring admission, or haveheld that a failure to act in good faith is not automatically bad faith, and therefore is not necessarily a factor favouring exclusion.Similarly, there has been confusion over whether bad faith requires a conscious decision by police to ignore the limits on their powers, orwhether simple ignorance of the limits of those powers is sufficient.

To a certain extent, it is only relatively recently that courts havebegun carefully distinguishing between these two situations.” [85] In reliance upon R. v. Buhay, 2003 SCC 30 , 2003 SCC 30 , 2003 SCC 30, [2003] 1 S.C.R. 631, Coughlangoes on to explain that a casual attitude towards legal requirements by a police officer or a failure to think about limits of power “ratherthan a conscious decision to ignore those limits, can also both destroy a good faith claim and be a factor favouring exclusion.” [footnotesomitted] [86] Good faith is now considered under the first stage of the revised s. 24(2) framework.

If made out, it will favour the admission ofthe evidence as it will “reduce the need for the court to disassociate itself from the police conduct”: R. v. Grant, supra, at para. 75. [11] I have also considered the views of Clackson J. in R. v. Booth 2010 ABQB 797, wherein after quoting from Grant, he notes: [11] In the first three paragraphs, the [Grant] Court outlined a continuum from least egregious defined as “inadvertent or minorviolations of the Charter” to the most egregious, defined as “willful or reckless disregard of Charter rights”.

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

labels “ good and bad faith ” is that they mislead. The analysis is not defined by faith, or intent, but by the egregiousness of the state conduct. There is no added requirement to consider the mental processes of the authorities engaged in the breach, rather, intention is a part of the process of determining how egregious the conduct was. It is a factor, not the answer. Therefore, to argue as the appellant has that the Learned Trial Judge should have found bad faith, misses the point, faith is not the appropriate legal standard. V.

Analysis The seriousness of the Charter-infringing state conduct [ 12 ] I am unable to agree with the respondent Crown ’ s position that this is a case in which the officer in question “ merely failed to testify about her belief as to the time of driving ” – the implication being the officer was well-informed as to the appellant ’ s rights, probably took them into account at the scene, but just neglected to mention that at trial. [ 13 ] On the other hand, on a s. 24(2) inquiry it is for the appellant to show what I have already found is not apparent from the trial record: that anything more than “ carelessness ” exists on the facts of this case, and that evidence is lacking that the investigating authorities were “ ignorant ” of the appellant ’ s Charter -protected rights. [ 14 ] I agree with the appellant ’ s submission that the temporal element in s. 254(3) of the Criminal Code is “ not some arcane or obscure legal notion ” and proof of it is not onerous.

A failure to show an awareness of the legal obligation and to bring forward proof of compliance is clearly a factor going to the seriousness of the Charter- infringing state conduct. I also agree with the statement of principle that “ apparently innocuous ” Charter infringements should not be ignored: R. v. Berger 2012 ABCA 189 . [ 15 ] What is “ apparently innocuous ” however will always be a question of fact. Here, it is the failure of Cst. Heigle through what I find was no more than carelessness to testify as to the temporal element of grounds for a breath demand.

That evidence exists in a context which includes evidence that Cst. Kim had the appellant driving at the appropriate time, even though the evidence fails to disclose he passed that information on to Cst. Heigle. [ 16 ] Of course Cst. Kim ’ s observations as to time of driving were to no avail on the “ liability ” question of Cst. Heigle ’ s grounds for a demand. Cst. Kim ’ s observations are relevant however on the s. 24(2) inquiry as to remedy: R. v.

Spaner 2012 CarswellAlta 165 , 2012 ABPC 17 , 99 W.C.B. (2d) 111 , wherein Sully P.C.J., in his s. 24(2) analysis, relied on evidence of a second officer – rather like Cst. Kim in the case before me – that established the accused driving well within the three hour time limit. Judge Sully concluded that on such facts the alleged failure of the investigating officer to turn his mind to time of driving was a “ purely technical ” shortcoming, and I agree. [ 17 ] The appellant relies on the discussion in R. v.

Berger , mentioned above, and ramifications of an “ absence of evidence ” concerning why a Charter infringement occurred. On the facts in Berger it is clear the circumstances called for an explanation by the officer whose conduct was impugned. Absent an explanation, the Court of Appeal drew an inference that the officer in question strategically denied the appellant his s. 10(

b) rights: [20] Because the officer was not asked why he had allowed the appellant to provide a breath sample when he had not yet contacted counsel, especially in the face of his express statement that he did not wish to waive his right to counsel, it is not possible to conclude that the breach did not arise from ignorance of Charter standards, negligence or wilful blindness. The officer simply grasped an opportunity to gather incriminatory evidence rather than allow the appellant additional time to attempt to gain legal advice.

A forthcoming attitude on the stand, short of providing this evidence, and providing the appellant with timely access to a telephone, cannot support a finding of good faith in the absence of this critical explanation. (emphasis added). [ 18 ] Unlike the circumstances in Berger , as noted I am unable to find on the record before me anything approaching “ ignorance ” of Charter standards, not to mention negligence, recklessness, or wilful blindness.

I do not read Berger as fundamentally altering the burden on the s. 24(2) applicant to justify the remedy of exclusion of evidence, if necessary by adducing further evidence, when the record does not itself give rise to inferences favourable to the appellant.

[ 19 ] At the end of the day on this part of the Grant test, I would characterize the infringement as technical, inadvertent or minor; no evidence exists to give rise to a finding of bad faith; and extenuating circumstances include that in fact the impugned demand was made well within the three hours noted in s. 254(3) of the Criminal Code . In these circumstances, the court should not be unnecessarily concerned to dissociate itself from the state conduct in question. The application of this part of the Grant test thus favours the evidence being admitted.

The Impact of the Breach on the Charter Protected Interests of the Applicant [ 20 ] As noted in R. v. Waters 2010 ABQB 607 , under this part of the Grant test: [42] … the court must assess how the breach actually impacted the accused ’ s Charter -protected rights. The court first identifies the interests engaged by the infringed right, and then assesses the impact on those interests. Again, the more severe the impact, the more strongly this branch weighs towards exclusion of the evidence. An unreasonable search and seizure of bodily evidence engages interests of privacy, dignity, and bodily integrity.

The degree of impact varies widely, from minor and fleeting to profound. From the analysis in Grant , it appears that the boundaries of Charter protection for the interest being examined can help the court to determine the degree of intrusion. For example, the search is more intrusive if it occurs in a place where there is a high privacy interest, or if it is performed in a demeaning manner. The amount and type of contact with the body also matters.

The forced giving of a blood sample is more intrusive than fingerprinting, for example: see Grant , paras. 76-77, 109 [ 21 ] In Grant the taking of breath samples is held out as an example of a search which will often be characterized as relatively non-intrusive, depending on all of the circumstances. There is little in the record before me to suggest the search here was relatively intrusive . It is relevant that the initial stop appeared lawful in that it arose from an alleged vehicle hit and run for which the appellant was arrested. The appellant did not seriously challenge Cst.

Kim ’ s s. 254(2) Criminal Code demand for a road-side sample. Arguments around alleged delays in the ensuing investigation were rejected on appeal. [ 22 ] On the other hand I have some sympathy for the fact that just under two hours went by between the initial s. 254(3) Criminal Code breath demand, at 7:34 a.m., and the appellant ’ s release at 9:20 a.m. In Waters Kenny J. found a 90-minute detention following an invalid demand was a significant factor weighing in favour of exclusion. Likewise, R. v. Dupras 2010 ABPC 138 and R. v. Adhofer 2010 ABPC 235 .

On this point the respondent provided me with no counter-vailing authorities. And so, notwithstanding a relatively unintrusive search, assessed broadly as a question of the appellant ’ s “ interests of privacy and human dignity ” I find the appellant was arbitrary detained for nearly two hours and that is a factor militating in favour of exclusion. [ 23 ] The application of this part of the Grant test narrowly favours the evidence being excluded.

Society ’ s interest in the adjudication of the case on its merits [ 24 ] Grant acknowledges the general expectation of society that criminal allegations will be adjudicated on their merits. The third line of inquiry asks whether the truth-seeking function of the criminal trial process will be better served by admission of the evidence or by its exclusion.

Some of the factors to be considered include the reliability of the evidence, the importance of the evidence to the prosecution ’ s case, and the seriousness of the offence. [ 25 ] The appellant acknowledges the infringement does not compromise the integrity of the subsequently obtained evidence. The impugned evidence is central to the prosecution ’ s case. The offence in question is serious as it continues to plague Canadian society. [ 26 ] The application of this part of the Grant test clearly favours the evidence being admitted. Balancing the factors

[ 27 ] Weighing the factors, in all of the circumstances would admission of the evidence bring the administration of justice into disrepute? [ 28 ] I am mindful of Kenny J. ’ s conclusion in Waters that the “ significant impact ” on the Charter -protected interests in the accused in the case before her led to the exclusion of otherwise reliable evidence.

My own balancing however leads to the opposite result: the impact of the arbitrary detention on the appellant, while of some significance, does not outweigh society ’ s interest in adjudication of this case on its merits, mindful of the reliability of the evidence, its importance to the prosecution ’ s case, and the seriousness of the offence. And as noted, the nature of the state conduct giving rise to the infringement does not tilt the balance toward exclusion. From a long-term perspective, the state conduct here does not adversely impact the repute of the administration of justice. IV.

Conclusion [ 29 ] Following a Grant analysis, the evidence while obtained in a manner that infringed the appellant ’ s Charter rights should nevertheless be admitted as to do so would not bring the administration of justice into disrepute. [ 30 ] I am indebted to Crown counsel Julie Snowden and Megan Rosborough, and to appellant ’ s counsel R.S. (Ravi) Prithipaul, for their excellent submissions and written argument. Heard on the 28 th day of June, 2012. Further written submissions July 4, July 6, August 17, August 31 and September 10, 2012. Dated at the City of Edmonton, Alberta this 22 nd day of October, 2012.

Peter Michalyshyn J.C.Q.B.A. Appearances: Julie Snowden and Megan Rosborough Crown Prosecutor's Office for the the Crown R.S. (Ravi) Prithipaul Gunn Law Group for the Accused