R. v. Stoutenburg Date:, 2017 BCPC 9

Citation: R. v. Stoutenburg Date: 20170103 2017 BCPC 9 File No: 16881-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JAMES ERIC STOUTENBURG ORAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE B. DYER Counsel for the Crown: T. Cockfield Counsel for the Defendant: G.K. Lee Place of Hearing: North Vancouver , B.C. Date of Hearing: January 3, 2017 Date of Judgment: January 3, 2017

[ 1 ] THE COURT: These are my reasons with respect to the issues on the voir dire . The accused is charged on a three-count Information with failing upon reasonable demand made by an evaluating officer pursuant to s. 254(3.4) (

a) of the Criminal Code of Canada to provide a sample of an oral fluid or urine contrary to s. 254(5) of the Criminal Code of Canada, and possession of both cannabis resin and cannabis contrary to s. 4(1) of the Controlled Drugs and Substances Act , all charges said to have arisen on February 14, 2014. He has pled not guilty to all charges. [ 2 ] At the outset of his trial before me on September the 8 th , 2015, Mr.

Lee, his counsel, advised that the accused took the view that on February 14 and 15, certain of his Charter rights, in fact, four in number, had been breached and thus both counsel agreed that a voir dire should be held to deal with the various Charter issues I shall shortly outline in more detail. [ 3 ] I declared a voir dire at the outset of the trial. Crown called three RCMP officers, all of whom had various dealings with the accused on February 14, 2015. They were Constable Wiebe, Constable Bozak, and Corporal Attlesey, all then on duty at the Sechelt detachment of the Royal Canadian Mounted Police.

The accused did not testify on the voir dire nor did he call any evidence. [ 4 ] I will outline the facts in this matter, then set out the Charter breaches that are alleged, and thence summarize counsel's submissions on each and decide each in turn.

The onus is on the accused to establish on the balance of probabilities that one or more of his Charter rights had been breached and, if so, that the remedy granted by the court should be the exclusion of all evidence obtained after any breach occurred or other relief including a stay of proceedings. [ 5 ] Constable Wiebe, when leaving the RCMP parking lot at 11:50 p.m. on February 14, observed a white GMC Yukon pass southbound on Teredo Street bearing no rear licence plate.

He could not say it was then speeding. [ 6 ] He turned out and followed or paced it noting that, (1) it was proceeding at some 65 kilometres per hour in a zone where the posted speed was 50 kilometres per hour which the Yukon was exceeding; he also observed a temporary operator's permit in the rear window and continuing to follow it, (2) he observed the Yukon pass a vehicle using a left-hand-turn lane and then shortly, (3) go through a yellow light after passing an activated orange flashing warning light at Teredo and Cowrie Street in Sechelt.

These two orange warning lights blink apparently to warn southbound drivers that the traffic light at the next intersection, which I understand to be Wharf Street, is about to go red. The Yukon did not appear to slow down on approaching this intersection nor on passing the warning lights. [ 7 ] Constable Wiebe then, having regard to the above driving, initiated a traffic stop and pulled the Yukon driven by the accused over on Wharf Street in front of Daphne's Restaurant. When he approached the driver, who immediately rolled his window down, he recognized the accused from his prior dealings.

When the accused asked why had he been stopped, Constable Wiebe explained that it was due to the above three events and, as well, checking his temporary permit. [ 8 ] Constable Wiebe then detected an odour of vegetative marihuana and, as well, burnt marihuana coming from within the Yukon vehicle. He felt these smells, both of which he said he recognized and could distinguish between, either came from the vehicle or the accused driver.

He immediately asked the accused when he last smoked it, who replied he did not and, when asked why was it Wiebe could smell burnt marihuana on him, responded he had been around people who smoked it, but he did not. He also said he ingested it in cookies or brownies. [ 9 ] Wiebe agreed at this point the accused was not free to go and did not then say to the accused that he was detaining him to investigate whether or not he was driving while impaired by a drug.

He testified that based on the odours he smelled and the driving he had observed that he suspected that the accused had consumed a drug which was present in his body and that he was driving the Yukon under the influence of this drug. [ 10 ] On cross-examination, Wiebe said he was not quite at this point investigating for drugs, but rather more generally what was going on. On any traffic stop, police officers look to see if anything is going on.

He said that when he had the driver's evidence and had detected the smells of marihuana, he was at the s. 215 Motor Vehicle Act 24-hour suspension stage of his investigation. [ 11 ] He asked the driver to get out of the Yukon and he did so in a cooperative fashion. Wiebe did not then read him his s. 10(

a) or (

b) Charter rights as he felt he was not then involved in a criminal investigation, but felt his traffic stop was starting to be turned into one. By way of comparison, he said where alcohol was a factor in a motorist stop, he did not read the s. 10(

a) and (

b) rights before giving the ASD demand and conducting the ASD test. [ 12 ] Thus, at 11:58 p.m., he read to the accused the standard field sobriety tests demand pursuant to s. 254(2) of the Criminal Code . At the time he read this demand, the possibility of a criminal charge was in his mind. The accused said he understood. [ 13 ] Constable Wiebe testified that, in November 2013, he had completed a course at the Pacific Regional Centre in Chilliwack and that, after February 2014, he had become a qualified evaluating officer.

At the end of February 2014, he obtained a qualification as a certified drug recognition expert having received this training right after the investigation of the accused. [ 14 ] Once the accused got out of the Yukon, Wiebe then requested the accused do three physical tests at the roadside, namely, (1) horizontal gaze nystagmus test; (2) walk-and-turn test; and (3) one-leg-stand test.

He completed an SFST worksheet while the accused performed the various tests noting his observations and all of his results thereon. [ 15 ] The accused behaved normally in the first test, but on the second had some problems doing what he was instructed to do properly resulting in four of eight clues in the test result. Constable Wiebe said this result, four clues or more, equated to a reading of .08 impairment if alcohol had been ingested by the accused or a combination of drugs and alcohol.

I understood this evidence to mean a reading of what is sometimes described as 80 milligrams percent where alcohol is involved. On the third test, having a maximum of four clues, the accused was observed to have two clues for a total of six clues on the three standard tests. This result described by Constable Wiebe, based on his training, was a "poor" test result.

[ 16 ] Based on this poor test result, Wiebe then formed an opinion that the accused's ability, as I understood his evidence, was impaired by the presence of a drug in his body and that he had operated a motor vehicle in such a state in the previous three hours. [ 17 ] During his cross-examination, Constable Wiebe compared the standard field sobriety tests or SFSTs he did as similar to the approved screening device test procedure followed where a police officer suspects a driver may be impaired by alcohol. In addition, he testified that only if he got a poor reading on the SFSTs, did he give the 10(

a) and (

b) Charter rights. I understood this to mean a poor or failing performance of the physical coordination tests. [ 18 ] Wiebe did agree that the accused did not slur his speech or stumble outside his car at the scene or have difficulty walking to the sidewalk where the SFSTs were performed at about 11:30 p.m.

In the result, Constable Wiebe, at 17 minutes after midnight or 00:17 hours, read the drug recognition evaluation or DRE demand to the accused pursuant to s. 254(3.1) of the Criminal Code demanding that the accused submit to an evaluation as soon as practicable to be conducted by an evaluating officer to determine if his ability to drive a motor vehicle was impaired by a drug or drug and alcohol. The accused said he understood.

Wiebe then radioed for a partner officer to attend the scene. [ 19 ] Constable Wiebe testified in chief that he then arrested the accused for impaired driving, not reading anything from his standard issue police card in the process, handcuffing him in the process, and eventually placing him in the rear of his cruiser.

He also told the accused before placing him in his cruiser that he had a right to talk to a lawyer. [ 20 ] On cross-examination, Wiebe testified that his police notes state that at 00:21 hours, he detained the accused for an impaired driving investigation, but he again stated that he had at first, at 00:18 or 00:19 hours, told him he was under arrest when the accused was outside his vehicle. Three minutes later, he changed his language to "detain." [ 21 ] Shortly, Corporal Attlesey attended at the scene. This was before Wiebe read the accused his s. 10(

a) and (

b) rights in his cruiser. Attlesey was placed in charge of the accused's vehicle at the scene. On arrival, Wiebe advised him as to why he had stopped the accused and said he was engaged in an impaired-by-drugs investigation. This took several minutes to provide this intelligence. [ 22 ] Wiebe got into his cruiser. The accused had been and was then banging his head on Wiebe's cruiser's silent patrolman. Wiebe started to read from his Charter card and the accused stopped banging his head. He testified that he read the language on Exhibit A, the Charter card, with respect to the accused's 10(

a) rights indicating the charge was impaired driving. He then read the s. 10(

b) rights and asked if the accused understood and wanted to call a lawyer. The accused said nothing. He then read the standard warning as it appears on Exhibit A and, on asking if he understood, got no response from the accused. [ 23 ] He then transported the accused to the cell area of the Sechelt RCMP detachment and awaited the arrival of Constable Bozak, the then drug recognition expert, whom he had earlier contacted and asked to attend at the detachment. Wiebe said Constable Bozak then lived in Gibsons, a 20-minute drive away from the Sechelt detachment.

On route to the detachment, Wiebe again asked the accused if he wanted to speak to a lawyer. He recalled that the accused responded, "What the fuck do you think?" [ 24 ] At the detachment, the accused became more agitated and said that, if the handcuffs were removed, he wanted to fight Constable Wiebe. He resisted being lodged in the cells and, owing to his behaviour, remained in handcuffs.

When asked by Wiebe if he would put his hands through the cell door so that his handcuffs could be removed, he refused to do so. [ 25 ] Following Constable Bozak's arrival, the accused was again asked if he wanted to speak to a lawyer and responded, "Yes, Glenn Lee." Wiebe then verified that Glenn Lee was a lawyer. At 00:53 hours, the RCMP called Mr. Lee's number, however, no one answered.

So a voicemail message was left as to the identity of the accused, where he was being held, what charges he faced, and a telephone number at the detachment. [ 26 ] Just prior to making this call, Constable Wiebe was advised over the radio by Corporal Attlesey that he had located at the scene in the Yukon a quantity of cannabis resin. On receiving this new information, he said he opened the cell door where the accused was situate and, reading from his card, arrested him for possession of a controlled substance.

He advised him if he understood and the accused nodded. [ 27 ] Wiebe advised, as well, that a message had been left for Mr. Lee, but said the RCMP could not wait all night for him to respond. He asked if the accused wanted to try another lawyer or speak to Legal Aid. Wiebe testified that the accused declined either option. Wiebe then spoke to the accused about the tests the RCMP intended to conduct and indicated that if he did not want a lawyer, they would in essence start them.

If he did, they would wait, but again, they could not wait forever, words to this effect. [ 28 ] Wiebe could not recall if prior to 00:59 hours the accused gave him an indication that he would do any further tests without speaking to his lawyer first. At 00:59 hours, Wiebe read the supplementary Charter warning from his police card. It states as follows: You have the right to a reasonable opportunity to contact counsel. I am obliged not to take a statement from you or ask you to participate in any process which could provide incriminating evidence until you are certain whether you want to exercise this right.

Do you understand? What do you wish to do? [ 29 ] The accused then said he understood and would participate in the tests, but not with Constable Wiebe being present. Constable Bozak had by this time arrived at the Sechelt detachment and commenced a further drug recognition testing. At the conclusion of Constable Bozak's testing, Wiebe said Bozak called him in and said that he, Bozak, was of the opinion that the accused had driven a motor vehicle in the previous three hours under the influence of and with drugs in his body.

Bozak also stated he was of the opinion that the accused was impaired to a level of .08 or above. Again, I understood this evidence to mean 80 milligrams percent had alcohol been involved. [ 30 ] Bozak then requested that Wiebe read to the accused a bodily substance demand. At 01:45 hours, Wiebe did so pursuant to his police card, Exhibit A, Evaluator Demands Item 1, however demanding only a urine sample. He also told the accused he would be receiving a 24-hour driving suspension. The accused told Wiebe that his lawyer would tell him not to provide a sample even though he

felt his urine was clean. Constable Wiebe was certain that the accused did not ask to speak to his lawyer after the demand was read. [31] Wiebe explained the consequences of a refusal to provide a sample and the potential criminal charge that could result. Theaccused then declined to provide a sample of urine or any other bodily substance. Accordingly, at 01:48 hours, Wiebe read from hispolice card, Exhibit A, s. 10(

a) Charter language with respect to the charge of refusal to provide a urine sample and again read theaccused his s. 10(

b) rights concerning his refusal to provide a sample and, lastly, the police warning on Exhibit A. He said heunderstood these various items. Wiebe did not note his answer to s. 10(

b) other than he understood. He was returned to his cell and latergiven a promise to appear and released. [32] Defence alleges that there have been four Charter breaches in this case under s. 7, 8, 9, and 10(

a) of the Charter. I will dealwith the alleged s. 7 breach last. I will summarize the argument of each counsel in turn relating to each breach and make my finding andconclusion on each in turn. [33] Mr. Lee alleges there were breaches of s. 9 and 10(

a) initially. These provisions are as follows: 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor ... [34] I confess I found Mr. Lee's submission somewhat difficult to follow because he seemed to discuss several breaches together. [35] Dealing with s. 9, he submits that the accused was arbitrarily detained contrary to s. 9 of the Charter starting when ConstableWiebe, after smelling marihuana coming from his car, starting questioning him at the scene continuing right to the conclusion ofConstable Bozak's drug recognition testing at the Sechelt detachment.

He submitted that prior to this, there was no real indication oferratic driving and, on initially interacting with the accused, no evidence of slurred speech, fumbling for anything, no incoherent speech,or difficulty in answering any questions Wiebe had for him. Wiebe could have given him a ticket under the Motor Vehicle Act for minordriving infractions, but did not.

He knew the accused and knew he had what he called a marihuana certificate due to prior dealings. [36] On cross-examination, Constable Wiebe admitted that on February 14, he knew the accused possessed a "licence to possessmarihuana," and he believed only for dried marihuana, that he had seen it and had a copy on another police file. He agreed he had not atthe scene asked to see the accused's marihuana licence.

I observe that the issue which became of concern to Constable Wiebe based onhis testimony was whether or not the accused's ability to do what he was doing, namely, driving a motor vehicle, was impaired by a drug. [37] Mr. Lee further argues that there was insufficient evidence of bad driving to launch an investigation for impaired driving and,hence, detaining the accused at the scene and requiring him to do the three physical coordination tests or SFSTs amounted to an arbitraryor unlawful detention as did his detention for later tests done by Constable Bozak at the detachment.

He asserts that the results of theabove tests also did not justify the further detention of the accused and further DRE testing, nor did the result of the DRE tests justifyfurther detention and the demand for a urine sample. Thus, seemingly almost the accused's entire time with the police was an arbitrarydetention. [38] Mr. Lee, however, did agree that Constable Wiebe did have a right to pull the accused over, that is to say, make the traffic stophe did on February the 14. [39] Mr.

Lee focused on the evidence given by Constable Bozak and the results of his DRE testing prior to Constable Wiebe makingthe demand that the accused provide a sample of urine which the accused refused to do. Mr. Lee submitted that Constable Bozak musthave reasonable grounds to believe a person's ability to operate a motor vehicle is impaired by a drug to make or cause to be made theevaluator demand for a urine sample and submitted that he did not based on all the test results which were unreliable. Mr.

Lee alsosubmitted that due to the weak and unreliable testing evidence, Constable Wiebe had no legal right to make the evaluator demand. [40] Mr. Lee referred the court to the R. v. Mann decision, 2004 SCC 52 , [2004] S.C.J. No. 49, as to when a person couldbe detained for investigation. He submitted that Wiebe arrested the accused on sight at the roadside and that this was unlawful as hisearlier detention had been unlawful. There were insufficient grounds to say the accused was impaired by drugs and thus no grounds toarrest him. [41] Mr.

Cockfield for the Crown submitted at the outset of his closing argument that, in his view, the legal rules, so to speak, werethe same in both cases of impairment by alcohol and drugs. This sentiment, I think, was also echoed by Constable Wiebe in his evidenceas to how a police officer deals at the scene with both situations of suspected driver impairment. I agree that there are similarities in theCriminal Code schemes which deal with the impairment by alcohol and by drugs or alcohol and drugs. [42] Mr. Cockfield made the following points: 1.

There was no arbitrary detention and thus no breach of s. 9 of the Charter. 2. Wiebe had a right to stop the accused for the three matters outlined above and, as well, because his vehicle had no licence plate. 3. On smelling two kinds of marihuana emanating from the interior of the accused's Yukon vehicle, what was initially aninvestigation of a Motor Vehicle Act offence or offences proceeded in a different direction and Wiebe would have been remiss in hisduties as a police officer not then to do what he did and investigate the accused's sobriety.

I note that this is not at all an uncommonoccurrence for a peace officer to stop a vehicle for some traffic infraction or vehicle safety reason and then discover, for example, thatthe driver had been drinking. 4. Crown relies on R. v. Orbanski, 2005 SCC 37 , [2005] S.C.J. 37, as legal authority which, on February 14, 2014,

permitted Wiebe to do what he did. [43] In Orbanski, the accused was stopped by the police for going through a stop sign, a Motor Vehicle Act infraction in anyprovince in Canada. The second accused, Mr. Elias, was stopped in a random fashion when he was observed leaving a Winnipeg hotel. Both men were questioned about previous driving and Orbanski was asked to perform physical sobriety tests at the roadside which hefailed whereas Elias was given an ASD demand, took it, and failed. [44] Arbitrary detention and s. 9 Charter breach issues were not issues in this decision. Rather, the issue was whether or not bothdrivers ought to have been afforded a right to counsel pursuant to s. 10(

b) of the Charter before the screening measures were taken, theASD demand and test and the physical sobriety tests; see paragraph 28 of reasons. [45] Crown conceded in Orbanski that both men were detained for purposes of s. 10 when pulled over by the police and the SupremeCourt of Canada agreed, see paragraph 31. The s. 10(

b) right to counsel was then triggered, but the court held this is not an absoluteright, see paragraphs 32 and 33, and went on to consider whether on the facts of the case there was any limit to this right. [46] Madam Justice Charron stated in paragraph 40 and 44 of Orbanski that it was settled law that police officers have the authorityand general power to check the sobriety of drivers at common law and by reason of general statutory powers.

It is a proper legal reasonto stop a car to check for reasons relating to the driving of it including the sobriety of the driver, see paragraph 41. [47] The court held that, logically, certain measures later referred to as "screening" could be taken by the police in furtherance oftheir above general power and indeed duty to fulfill it, see paragraph 44, and that these measures did include both the ability to questionthe driver about his consumption of alcohol and demand that sobriety tests be performed, see paragraph 49 and 50. [48] Madam Justice Charron then said this in paragraph 50 of the court's majority reasons: The police officer was also authorized to ask Orbanski to perform a physical sobriety test at the roadside.

As I have indicated, theinquiry is always case specific. I n this case, the request made to Orbanski fell within the scope of reasonable and necessary measures. Having observed Orbanski's erratic driving and having detected the smell of liquor emanating from the vehicle, the officer requestedthat the accused step out of the vehicle to perform some sobriety tests. The tests involved reciting the alphabet, walking heel to toe, andfollowing the officer's finger with his eyes.

The trial judge specifically held that these tests were reasonable and necessary: In my view the interference with liberty in this case was necessary for the carrying out of the police duties described above. The policeconstable suspected that the appellant had been driving while his ability to drive was impaired by alcohol. However, he did not thinkthat he had reasonable and probable grounds to demand that the appellant take a breathalyzer test.

He requested the sobriety tests inorder to see whether his suspicions were well founded, -- whether he could obtain reasonable and probable grounds for a demand for abreathalyzer test. There is nothing in the evidence to indicate that a roadside breath testing device was available. The sobriety tests weretherefore necessary. [p. 189] The officer was quickly able to determine whether there were grounds to make a breathalyzer request under s. 254(3) of the CriminalCode. [49] It is now convenient to conclude my

summary of R. v. Orbanski to deal with the court's s. 10 analysis as this point is also raisedby Mr. Lee as a further Charter breach. Charron J. addressed the limits on the right to counsel in a motor vehicle stop situation wheredriver impairment was an issue.

Section 10(

b) requires that detainees be informed of their right to counsel and the means available toexercise it as well as a reasonable opportunity to exercise the right to retain and instruct counsel, see paragraph 52. She then said this inparagraphs 52, 59, and 60 of her reasons: 52 It is important to keep in mind that compliance with s. 10(

b) requires not only that detainees be informed of their right and of themeans available to exercise it, but that they be provided with a reasonable opportunity to exercise the right to retain and instruct counsel. The question is whether there was an implied limit on such right in these cases. In Thomsen, this Court held that the exercise of the rightto counsel was incompatible with the operational requirements underlying the demand for a sample for analysis in a roadside screeningdevice made pursuant to s. 234.1(1) of the Criminal Code (now s. 254(2)).

In determining that there was an implicit limitation on theright to counsel prescribed by s. 234.1(1), the Court adopted the reasoning of Finlayson J.A. in R. v. Seo (1986), (ONCA), 25 C.C.C. (3d) 385 (Ont. C.A.), and concluded as follows, at p. 653: 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.

A s.234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quicklyas possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary toadminister pursuant to s. 235(1) of the Code. In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screeningtechniques utilized in these cases.

If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a samplefor analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding thedemand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand.

Similarly, thelimit must necessarily be prescribed during the screening measure that is the functional equivalent to the roadside screening device,namely, a technique conducted with the very objective of determining whether there are [page31] reasonable and probable groundsjustifying a s. 254(3) demand for a breath or blood sample. ... 59 In each case before the Court, the impugned evidence was adduced at trial solely to confirm the police officers' grounds formaking the breathalyzer demand. Each driver was informed and given the opportunity to exercise his s. 10(

b) right upon arrest andbefore he was requested to provide incriminating evidence through breath samples. The abridgment of the s. 10(

b) right was strictlyconfined for the purpose of roadside screening and was constitutional.

60 For these reasons, I conclude that while both Elias and Orbanski were detained for the purpose of s. 10(b), hence triggering the right to counsel, the operational requirements of the statutory regimes in place in Manitoba prescribed a limitation of the right to counsel.

This limitation is justifiable in a free and democratic society given the importance of detecting and deterring drunk driving, the highly [page34] regulated nature of driving on public roads, the limits placed by the common law on the types of screening that can be conducted at the roadside, and the limited use that can be made of the compelled evidence collected during the screening process. [ 50 ] Thus, based on Orbanski , a motorist who is lawfully stopped, including for a Motor Vehicle Act reason, is detained and, in the event the investigation becomes criminal in nature by reason of the facts and circumstances confronting the police officer interacting with the driver, he or she has a right to counsel.

However, the same is said to be limited or abridged or even infringed during the investigative stages where reasonable screening measures are taken by the police to assess the driver's sobriety which can include talking to the driver and asking questions, conducting physical sobriety tests, and administering an ASD test. Charron J., above in paragraph 60 of her reasons, pointed out why such limitations were required in Canadian law. [ 51 ] During the course of his argument, Mr.

Lee said that, in his view, Orbanski was not an authority that should be relied on where the alleged impairment related to a drug and not by reason of alcohol. He made a further submission wherein he pointed out perhaps what is obvious that for impairment by alcohol or at least the Criminal Code of Canada .08 offence, there is a level of blood alcohol beyond which Parliament in essence deems that if proven, a criminal offence is made out, whereas with impairment by a drug as alleged here, there is no defined minimal limit anywhere.

Thus, with alcohol, there is a certain permissible limit and it is not unlawful to have some alcohol in one's system and drive whereas with drugs there is no defined limit. On this basis, Orbanski was said to be distinguishable. [ 52 ] I do not accept this argument as either persuasive or compelling. It is certainly true that no evidence was placed before me suggesting that there exists any scientific test or apparatus that can measure, as with alcohol, the amount or quantity of a given drug in a human body and certainly nothing in use by the police.

Perhaps the answer to this is simply that alcohol is a different substance from various active and potentially impairing ingredients in various drugs including marihuana and is more easily measured, for example, in milligrams' percentages. [ 53 ] That said, I do not accept Mr. Lee's argument as any rational basis upon which I could distinguish Orbanski as a compelling authority on the facts of this case. The case at bar deals with exactly the same issues, in my view, as the Supreme Court of Canada faced in Orbanski with one difference.

The alleged impairment is said to be due to ingredients in marihuana, a drug, and not alcohol. It is clear to me that the Criminal Code provisions that focus on alleged drug impairment are Parliament's effort to have a parallel regime, so to speak, to be used by law enforcement officers who suspect a given motorist's ability to drive is impaired by the effects of a drug. [ 54 ] In my view, the principles in Orbanski do apply in the case at bar. I also note that, with the offence of impairment by both a drug or alcohol, there is no prescribed limit, as argued by Mr.

Lee, below which a person is deemed not impaired and above which he or she is. [ 55 ] I find that I am in complete agreement with Crown's submission on this alleged Charter breach. I find that the accused has failed to establish this breach on the balance of probabilities. I find that the police officer, Constable Wiebe, having regard to his observations of the accused's driving, had a lawful right to stop him on February 14, 2014, in Sechelt and to detain him as he did initially at the roadside and to conduct the three physical sobriety tests he did in the circumstances.

The detention was, hence, not arbitrary, but one lawfully permitted. [ 56 ] I find that Wiebe had proper grounds to make the DRE demand and to take the accused to the station and that Constable Bozak had a right and duty to perform the various tests I shall refer to below. I find that the accused was not arbitrarily detained during any of this process or anything later related to it as both officers had a lawful right to do what each did on proper reasonable legal grounds. [ 57 ] I turn now to the alleged s. 10(

a) breach. Mr. Lee argued that when Constable Wiebe commenced questioning the accused, he had in his mind that criminal charges were a possibility and thus the initial stop under the Motor Vehicle Act now became more of a criminal investigation. He seemed to argue that as soon as Wiebe had a thought or an inkling that his investigation might have this ultimate result that both s. 10(

a) and potentially 10(

b) Charter rights might -- or ought to have been read or given to his client and submitted that this had not occurred at least not in a timely way. [ 58 ] For purposes of this voir dire only, I accept as truthful Wiebe's evidence that very shortly into his driver's door discussion with the accused still seated in his Yukon he told the accused why he had been stopped which was a detention for the three above-referred-to Motor Vehicle Act infringements.

I find this was a timely compliance with s. 10(a). [ 59 ] What then occurred was, as described by Wiebe, an investigation into the driver's sobriety and whether his earlier observed driving was caused by his ability being impaired by a drug or its effects. Wiebe was legally entitled to do this and was under no legal duty to read or give the accused his s. 10(

a) or (

b) Charter rights until the investigation reasonably concluded with his assessment or screening of the driver's state of impairment. [ 60 ] Charron J. points out in Orbanski in paragraph 45 and 47 , as I understand this aspect of her decision, that it is, in essence, illogical for an investigating police officer to give a motorist s. 10(

b) Charter rights where no conclusion based on a reasonable and timely and safe screening has first been made. She says this in paragraphs 45 and 47: 45 The screening of drivers necessarily requires a certain degree of interaction between police officers and motorists at the roadside. It is both impossible to predict all the aspects of such encounters and impractical to legislate exhaustive details as to how they must be conducted. On this point, I respectfully disagree with the analysis of my colleague Justice LeBel.

As I read his reasons, unless a statute prescribes specific investigatory measures, a police officer has a duty to provide motorists with their right to counsel before taking any steps to assess their sobriety. For example, in Mr. Elias's case, my colleague takes the view that police officers can only ask motorists about alcohol consumption before they contact counsel if legislation permits it. Presumably, the same reasoning would apply in respect of any general question designed to assess the sobriety of the driver.

On that approach, a police officer would be well advised to provide motorists with their right to counsel as soon as they rolled down their window. In my view, this would result in longer and often

unnecessary detentions. While statutory provisions such as the recent Manitoba amendments can provide more guidance and certaintyon the scope of permissible investigatory measures, it is my view that many of the powers set out in the amendments are implicit in theexisting Manitoba legislation. The recognition of these powers is not carved out of whole cloth from common law principles to suit theoccasion -- these powers are part of a longstanding statutory scheme that permits police officers to stop drivers and check their sobriety.

The scope of justifiable police conduct will not always be defined by express wording found in a statute but, rather, according to thepurpose of the police power in question and by the particular circumstances in which it is exercised. Hence, it is inevitable that commonlaw principles will need to be invoked to determine the scope of permissible police action under any statute. In this context, it becomesparticularly important to keep in mind that any enforcement scheme must allow sufficient flexibility to be effective.

The police power tocheck for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedmanby that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of theliberty interfered with and the importance of the public purpose served by the interference" (p. 35). ... 47 Whether a particular screening measure will fall within the scope of authorized police action is a question that necessarily callsfor a case-specific inquiry.

In more obvious cases of drinking and driving, observation of the driver alone may suffice for effectivescreening. But one can think of many examples in which observation of the driver through the open car window will not be sufficient toenable the officer to draw the line between those drivers with a permissible amount of alcohol in their body and those who have reachedthe impermissible level. [61] I think it follows from this analysis that no s. 10(

a) right can be given until the investigating officer reasonably concludes his orher investigation and reaches a conclusion as to whether or not a driver, in addition to potentially infringing provisions in the MotorVehicle Act, may have infringed provisions in the Criminal Code. [62]

Section 10(

a) does not require such a police officer to tell a driver on opening his window and smelling marihuana that, "I maybe detaining you or arresting you for a criminal offence. I will let you know shortly." Rather, the officer has a lawful right to conduct areasonable, timely, and safe screening investigation first. There, in my view, is a certain straight forward appealing logic to thisprinciple. [63] Constable Wiebe did, at the conclusion of the three SFST tests and immediately after making the drug recognition expertdemand, orally give the accused his s. 10 rights relating to impairment.

I am of the view that only then and not sooner did he have areasonable belief that the accused's ability to drive a motor vehicle was impaired by a drug. Within a few minutes, when the accused wasseated in his cruiser, he gave them again, both 10(

a) and 10(b), reading from his police card. His 10(

b) rights were given twice more inthe detachment before Constable Bozak commenced his tests. [64] Mr. Lee relies on the decision of R. v. Wernicke, 2013 BCPC 90 , 2013 BCPC 0090, a decision of Chen P.C.J., as anauthority supportive of his submission that a s. 10(

a) breach occurred. I note that Orbanski was not referred to in this case and, further,Wernicke can be distinguished on its facts from the case at bar. I have reviewed this decision and considered it and I do not find it to be ahelpful authority on the s. 10 argument in the case at bar. [65] Mr. Lee submits that his client's s. 8 rights were breached.

Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure. [66] Mr. Lee appears to have advanced two positions on this alleged breach. In his oral submission made on June 8, 2016, he assertsthat the alleged unreasonable search, being the tests, go hand in hand with the arbitrary-detention submission which I have rejected.

Thetests, assumedly all of them, both at the scene and those conducted later by Constable Bozak at the detachment, are all unreasonablesearches. [67] In his written submission, he seemed to focus on this breach only arising with respect to Constable Bozak's testing whichoccurred later in the piece. I will deal with his written submission as I understand it, namely, one based on both constables havinginsufficient evidence to demand that the accused do any test or, I suppose, in addition, no proper grounds in the case of Constable Wiebeto make either a s. 254(2)(

a) SFST demand or a s. 254(3.1) later DRE demand. [68] Mr. Lee, in his written submission, relies on the evidence that the alleged driving infractions for which no ticket was ever givenamounted to insufficient evidence upon which Wiebe could then launch his criminal investigation including, I think, too, making a s.254(2) demand. The results thus obtained were as a result of an unreasonable search and therefore should not be admissible. [69] I think the essence of Mr.

Lee's submission was, for starters, that Constable Wiebe did not have "reasonable grounds" to suspectthat the accused had a drug in his body before making the SFST demand. He did not really question Wiebe's evidence on point to theeffect that he had what he called a suspicion that the accused was driving under the influence of a drug due to his driving, the marihuanaodours he smelled, and I think, too, the accused's admission that he had ingested marihuana in cookies or brownies. [70] Mr.

Cockfield argues that Wiebe, whether measured subjectively or objectively, did have grounds for a reasonable suspicionand could therefore have lawfully made his demand under s. 254(2)(a). The Criminal Code basis for the demand, he argued, is not on itsface a high standard. Up to the time of making the SFST demand, Wiebe, in the course of his investigation, did all he legally could do. He said he had a suspicion.

This satisfies the subjective element of the analysis. [71] He argued, looking at the evidence objectively, a reasonable person would agree that based on the accused's observed driving,the smell of marihuana, and the accused's admission that he used marihuana that Wiebe had reasonable grounds for his suspicion. Hence, the demand was lawfully made and the three test results were not got as a result of an unreasonable search. [72] Mr.

Lee argued that the test results were, in essence, inconclusive and did not warrant or justify further detention of his clientonce done and that there was essentially no basis for the DRE demand or the DRE testing done by Constable Bozak. Mr. Lee did notappear to challenge the accuracy of Constable Wiebe's evidence as to the results of the SFST tests and Wiebe's conclusion that theaccused had, by reason of the six clues, achieved a poor result. Constable Wiebe again testified that, due to this result, he formed the

view that the accused had been operating a motor vehicle in the previous three hours while his ability to do so was impaired by a drug and therefore made the second or DRE demand. [ 73 ] Mr. Lee argued that all tests and test results were unreliable, particularly those conducted by Bozak because Bozak could not, for example, explain how the lack of convergence of one's eyes relating to an inability to drive a motor vehicle. He noted, "It's all subjective." He asked rhetorically, "What do poor test results have to do with one's inability or ability to drive a motor vehicle?" [ 74 ] Mr.

Cockfield submitted in response that the various tests both Constable Wiebe and Bozak performed were prescribed by Parliament to be valid and were the law.

Counsel referred to Canada Regulation 2008-196 entitled, "Evaluation of Impaired Operation (Drugs and Alcohol) Regulations." [ 75 ] Inasmuch as these tests are, in essence, part of the law of the land, and where no evidence has been presented that the results of such tests are or can be unreliable predictors of whether or not a given person's ability to drive might be impaired by a drug in his or her body, I have to accept them and not find they are unreliable in any way. Wiebe was entitled to find a poor result and to form the requisite s. 254(3.1) opinion and make a lawful DRE demand and he did so.

In the result, Bozak's tests proceeded on a proper legal footing. The accused was required to do the tests. [ 76 ] As to Bozak's tests, Mr. Cockfield's argument was the same as above. The tests were prescribed by law and, based on Bozak's findings, he was entitled to make or cause to be made the s. 254(3.4) evaluator demand for a urine sample whether his conduct and grounds were reviewed from a subjective or objective standpoint.

The reliability of the test could not be an issue, certainly, I think, absent evidence, likely expert evidence, now or ever. [ 77 ] I find again I am in agreement with Crown's submission. I agree that I am not now on this voir dire considering whether the accused's ability to operate a motor vehicle was impaired by a drug. He is not charged with such an offence.

What I am considering is whether the accused's s. 8 and I think, too, s. 9 Charter rights were infringed by anything the two police officers did on the night in question. [ 78 ] I do not find Bozak breached either right in detaining and testing the accused as he did, nor were these rights breached in the brief time it took Wiebe to make the demand for a urine sample which, of course, the accused refused to provide. [ 79 ] Insofar as Mr. Lee includes the making of this final demand within the umbrella as

an act done somehow in breach of his client's s. 8 or 9 Charter rights, I do not find that the accused has established this alleged breach of his Charter rights on the balance of probabilities. As no urine sample was given, there was no search evidence or result to consider excluding from evidence either. Mr. Cockfield argued that the s. 254(3.4) (

a) demand made for a urine sample by Wiebe at 01:45 hours was proper. I agree that the demands for purposes of Count 1 must be proper and lawful ones. [ 80 ] I have now found that, insofar as this demand was made by Wiebe, it did not infringe any of the accused's s. 8 or 9 Charter rights when made. In the result, I do not find that the accused has proven on the balance of probabilities that his s. 8 Charter rights were breached by Constable Wiebe or Bozak and indeed that with either officer doing what I have described above it has been likewise established that he was arbitrarily detained. [ 81 ] I turn lastly to the s. 7 alleged breach.

Section 7 states: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [ 82 ] The Criminal Code of Canada provides in s. 254(2.1) and sub (3.2) as follows:

(2.1) For greater certainty, a peace officer may make a video recording of a performance of the physical coordination tests referred to in paragraph (2)(a). ...

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1). [ 83 ] Thus, it was permissible on February 14 and 15, 2014, to make a video of all tests done by either Wiebe or Bozak pursuant to their various demands. [ 84 ] Constable Bozak testified in cross-examination that he had been called to attend the Sechelt detachment by Constable Wiebe arriving at 12:45 a.m.

His DRE testing was done inside the detachment in two areas: 1. an interview room in the rear cell area; and 2. in a hallway measuring about seven-feet-by-20-to-25-feet in length entering the cell area. The part he used for testing, he estimated, comprised some 15 feet of the overall length of the hallway. [ 85 ] On February 15, 2014, there was a video surveillance camera located in the ceiling of the west side of this hallway. I was not told where it was situate and what it was aimed at. It was on all the time.

It was located near where he conducted the psychophysical tests and he felt it likely would have captured his testing. [ 86 ] He believed that there was a surveillance camera also located in the rear of the interview room, he was not 100 percent sure, which had to be turned on to function. This is the area where, for example, his pupil measurement tests were conducted. He testified he did not record the tests he performed on the accused in this interview room as he felt there was nothing to really record.

It was a dark room and he felt, if activated, the system would not record a lot, but he agreed that some of the tests he conducted there were not done in the dark including part of that measuring the accused's pupils. He did not record these tests as it did not cross his mind to do so. He did not feel there was a need to do so, but did not take the position it was not important to record them.

[ 87 ] He did not secure the video of the various tests done in the hallway as he was not the lead investigator nor did he initially tell Crown counsel these tests were recorded. He put no note in his police notebook indicating any lack of recording.

He never told Constable Wiebe the hallway tests were recorded, but felt every RCMP member knew this to be the case. [ 88 ] He was asked for a recording on a different file about February 25, 2014, and could not locate it. [ 89 ] He was then advised that the video recording was a constant loop and I had the impression this meant that, as more events are recorded, other earlier recordings are potentially erased and lost.

Clearly, Bozak did not know exactly how this occurred and it was not explained to me at trial. [ 90 ] Bozak said he did not ask whether the accused's recording had been lost and said at trial months later, "Perhaps it's still there." I would doubt that this is so based on all the evidence I heard on point. Thus, an important record of the hallway testing was not preserved and thus not produced to the Crown and thence to the accused in disclosure, nor was the accused ever told, including on the night in question, that the tests were being recorded. [ 91 ] The tape is now presumed lost or erased.

To be more specific, what is apparently lost is the film of some, but not all, of the evaluation tests and procedures referred to in the above Canadian Regulation 2008-196 in s. 3. [ 92 ] Constable Bozak described the tests he did, essentially, in the order they appear listed in s. 3 of this Regulation commencing at 1:04 a.m. on February 15, 2014. Bozak said that the unrecorded tests done in the interview room in the back or cell area included the pupil measurement test. I assume this refers to the prescribed test in Regulation 2008-196 at s. 3(

a) and (e). He said the psychophysical tests were done in the hallway and recorded. This term "psychophysical" is not used in the Canadian Regulation. He did not testify as to just which tests as per the Regulation were included in this term which he used in giving his evidence nor was he asked in his direct evidence which tests he did in the interview room and which were done in the hallway. Mr. Lee covered this point to some extent in his very thorough cross-examination. [ 93 ] Doing the best I can with all the evidence as to the location of where each test was done, I conclude using s. 3 of the Regulation as an index, so to speak, that those tests referred to in s. 3(

c) and (

d) were done in the hallway whereas all others were unrecorded and done in the interview room. Thus, not all s. 254(3.1) tests the accused did on February 15 were recorded in the first instance nor did Bozak rely only on recorded tests informing his opinion for making the evaluator demand. [ 94 ] Bozak testified that some of the tests the accused did gave rise to or included various clues that could indicate impairment by a drug. He described them as the nystagmus test, s. 3(

b) of the Regulation, having six total clues, three in each eye; the one-leg-stand test, s. 3(c)(iii) of the Regulation, having eight clues, four per leg; and the walk-and-turn test, Regulation s. 3(c)(ii), having eight total clues, for a total of 22 clues. His evidence was the accused displayed four clues out of 22, two on the walk-and-turn test and, I believe, two on the one-leg-stand test both done in the hallway and believed to have been recorded.

He testified that he took the results, four of 22 clues, and put them together with all his other findings and observations - most of which were either made in the interview room and thus not recorded or, if made in the hallway, would, in my view, unlikely show up on a ceiling surveillance recording, for example, the accused having a red septum - in reaching his conclusion preliminary to causing Wiebe to make the urine sample demand. The septum is found inside one's nose.

I very much doubt a surveillance camera could detect this fact. [ 95 ] On this analysis, not made by either Crown or defence in argument on the voir dire , I conclude that the recorded tests done in the hall were only one aspect of all the testing Bozak did on February 15. [ 96 ] Mr. Lee argues that Crown's failure to preserve the surveillance tape relating to the testing done in the hallway is a breach of his client's s. 7 Charter rights and inhibits his ability to make full answer and defence.

He says only Constable Bozak knew that the DRE test was videotaped and that the results were highly subjective and central to the issues in the case. Bozak, knowing the results were videotaped, did not mention this in his notes or disclose this fact or the existence of a video to Crown counsel. He neglected to do so nor did he secure the video. He does not assert Bozak intentionally did what he did, including with a view to prejudicing the accused in his defence.

He argues that the loss of this video record of at least some of the testing is due to negligence on the part of the RCMP and is the loss of a crucial piece of evidence and requests a stay of proceedings under s. 24(2) of the Charter accordingly. [ 97 ] Mr. Cockfield for the Crown admits that the Crown (

a) has a duty to preserve and (

b) disclose relevant evidence which, in essence, was breached in this case by reason of negligence on the part of Crown, obviously Constable Bozak's activities relating to the video surveillance recording set out above. He submits that, notwithstanding the loss of this piece of evidence, Mr. Lee had a full opportunity to cross-examine Constable Bozak and did so at length at the trial. [ 98 ] He conceded neglect on the part of Constable Bozak, at least, but argued it was not "unacceptable" negligence. Nothing had been concealed.

Crown neither concedes nor agrees that, due to the failure to produce this videotape, the defence has suffered irreparable damage. The absence of the tape may make the accused's defence harder, but not to the extent that I should, in essence, find there has been irreparable prejudice to the accused's ability to defend himself and order a stay of proceedings. [ 99 ] Crown relies on two cases, namely, R. v. Berner , 2012 BCCA 466 , and R. v. Neidig , 2015 BCCA 489 , both, of course, decisions of our Court of Appeal.

In Berner , the accused was charged with impaired driving causing death and several other related criminal offences. She drove her vehicle into a car parked at the side of a road and struck a woman seriously injuring her and killed a child, both persons standing nearby the parked vehicle. One month before charges were laid, ICBC disposed of the accused's car and it was unavailable when her counsel later requested access to it to enable an independent investigation to occur. [ 100 ] The accused was convicted at trial.

One ground of the following appeal was the trial judge's refusal to direct a judicial stay of proceedings under the Charter by reason of the destruction of Berner's vehicle before she was charged. The evidence disclosed that four days after the accident, an agent, one Mr. Kirkpatrick, a mechanic on behalf of the Delta Police examined the Berner car for mechanical defects and retrieved certain parts for mechanical testing. Eleven days after the accident, Ms. Berner signed a salvage release in favour of ICBC transferring all her title in her car to them in the event it was not repairable.

[101] Thirteen days after the accident, the RCMP wrote to her indicating that if she wanted to have her car inspected by a mechanic orengineer, she should advise them in two weeks' time. Ms. Berner did not answer this letter. On November 10, 2008, someapproximately six months after the accident, with RCMP approval, ICBC sold the Berner vehicle for scrap parts to an auto wrecker. Thepolice could have advised ICBC to hold and store the vehicle as part of a criminal investigation, but did not do so. [102] Ms. Berner was later charged on December the 10th.

The defence at trial included a theory that the accident resulted from amechanical failure of the braking or steering mechanism in Ms. Berner's vehicle. If accepted, this defence would have negated thecriminal actus reus of certain of her charges and also had implications for her impaired driving charges. Ryan J.A. noted that: Pursuit of this theory was central to the case for the defence. See paragraph 18. [103] Crown agreed it would have been preferable to have preserved her vehicle, but failure to do so did not prejudice her defence. Madam Justice Ryan referred to R. v.

La, (SCC), [1997] 2 S.C.R. 680, as the leading case on whether Crown's loss ordestruction of evidence amounts to a violation of an accused's s. 7 Charter right to make full answer and defence at paragraph 79 and 80of her reasons as follows: [79] Sopinka J., writing for the majority, set out the applicable principles at paras. 17-26 of La. He noted that as part of an accused’ss. 7 Charter right to make full answer and defence, the Crown has a duty to disclose relevant information in its possession. This in turnincludes a duty to preserve relevant evidence.

If an accused establishes on a balance of probabilities that relevant evidence has been lostor destroyed, the onus shifts to the Crown to provide an explanation for the loss or destruction. [80] If the explanation the Crown provides is insufficient to absolve it of unacceptable negligence or deliberate malfeasance, then abreach of s. 7 of the Charter is established. Deliberate destruction to defeat disclosure obligations is an abuse of process.

In the case ofa breach or an abuse of process, the accused must establish actual prejudice to his right to make full answer and defence in order to obtaina stay of proceedings. Even in the absence of a breach of the Crown’s duty to disclose, the accused could obtain a stay in extraordinarycircumstances if the non-disclosure is so prejudicial that it impairs his right to a fair trial. In either situation, a stay of proceedings will begranted only in ‘‘the clearest of cases”.

Only irreparable prejudice to an accused’s ability to make full answer and defence or irreparableharm to the integrity of the administration of justice will justify a stay. (See also R. v. Knox (2006), (ON CA), 80O.R. (3d) 515 (CA) at paras. 28-31, 209 C.C.C. (3d) 76.) [104] Ryan J.A. concluded her discussion on this point in paragraphs 98 and 99 of her reasons as follows: [98] I agree that the destruction of the vehicle before Ms. Berner was charged with any offence relating to it is disturbing. That said, Iam of the view that given the circumstances of this case, we need not explore the issue further.

In order to obtain a stay of proceedingsthe appellant had to demonstrate that she was actually prejudiced in her defence. I agree with the trial judge that she was not. [99] The issue of prejudice must be analyzed in the context of the evidence called at trial, including the handling of Cst. Parker’smeasurements and report. Examined carefully, it is apparent that the appellant’s theory of possible mechanical failure was discounted bythe evidence called by the Crown at trial. It was open to Ms.

Berner, through cross-examination or expert witnesses, to challenge theCrown’s evidence that showed the vehicle was mechanically uncompromised. In my view, Ms. Berner was not prejudiced in her defencein a way that would entitle her to a stay of proceedings. [105] The Court of Appeal did not disturb the trial judge's finding that the police/ICBC negligence was not unacceptable. Thus, inBerner, a qualified mechanic had inspected the accused's vehicle before it was sold for scrap and he was available to testify and did so attrial and was cross-examined on its mechanical state.

Secondly, the accused had early on agreed that ICBC would own her car if it couldnot be repaired, albeit before she was charged and might have appreciated the desirability of having it inspected by her own expert. Thirdly, the accused was asked if she wanted to inspect it and did not respond again before she was charged with any criminal offence. [106] In Neidig, the accused was involved in a motor vehicle accident in which his friend was thrown from his car and killed. Neidigwas charged with, among other things, impaired driving causing death.

In the roll-over accident, Neidig's vehicle was severely damagedand undriveable. An RCMP accident reconstructionist attended the scene and took a multitude of photos including of the interior andexterior of the vehicle before it was moved. It was then seized as evidence in the ongoing criminal investigation. [107] On his release, the RCMP told Mr. Neidig, in essence, he would likely be charged. He did not admit he was the driver. [108] On June the 17th, a motor vehicle inspector, one Mr. Krause, performed a mechanical inspection of the vehicle while in anRCMP garage. He prepared a report and testified at trial.

Other facts relating to the vehicle are set out in paragraph 13 of the court'sreasons as follows: By June 18, 2010, the RCMP had completed their inspections of the vehicle. Cst. Roy testified that at that point it became the propertyof the owner or the insurance company. The police had not received any direction from Mr. Neidig about the wrecked vehicle and Cst.Roy did not expect it to be repaired, so he directed VHT to tow the Blazer to the VHT secure storage yard in accord with what he saidwas normal RCMP procedure.

He told VHT to store it pending directions from ICBC or the family as the police no longer had controlover it. Cst. Roy acknowledged that the vehicle was an important piece of evidence but said it had been examined by the police and itcould not be brought to court so it had to be disposed of. He did not notify Mr. Neidig of the vehicle’s location, the RCMP inspectionsof it, or the possibility of conducting his own inspection. Nor did he tell VHT that Mr.

Neidig was its owner, or give instructions abouthow long VHT should keep the Blazer. [109] The vehicle was taken from the VHT yard in October or November and scrapped. On March the 7th following, Mr. Neidig wascharged. As I have said, the accused did not admit he was driving the car. An engineer retained by the defence reviewed the RCMPreports concerning the accused's vehicle and concluded that, had he been able to inspect the accused's vehicle, additional relevant

evidence would have been found that would have helped identify the seating positions of the accused and deceased individuals. He laterconcluded this fact could not be determined on the evidence available which was not sufficiently thorough. [110] Defence at trial asserted a s. 7 Charter breach based on the police having been unacceptably negligent in destroying theaccused's vehicle thereby preventing him from making full answer and defence.

The trial judge found that the police knew that theaccused's vehicle was an important piece of evidence on the issue of driver identification and, that aside, that the vehicle was a piece ofrelevant and material evidence and the RCMP's failure to preserve it was unacceptable negligence and ultimately directly a stay ofproceedings. [111] In considering whether the trial judge had erred in finding a breach of s. 7 and granting a stay, Neilson J.A. in our Court ofAppeal said this in paragraph 33 and 34 of her reasons: [33] The legal principles that govern this issue are not contentious.

They were discussed by the Supreme Court in La, at paras. 17-25,and usefully summarized by the Nova Scotia Court of Appeal in R. v. F.C.B., 2000 NSCA 35 , at paras. 10-11. I set them out asfollows. The Crown’s duty to disclose to an accused all relevant information in its possession necessarily gives rise to an obligation onthe Crown and the police to preserve this information. If such material is lost or destroyed, the Crown must explain this.

In consideringthe adequacy and import of the Crown’s explanation, a trial judge must consider all of the circumstances surrounding the loss of theinformation, including the relevance it was seen to have at the time, and whether the police acted reasonably in attempting to preserve it.

If the explanation reveals that the information was destroyed or lost due to unacceptable negligence, this constitutes a breach of theCrown’s disclosure obligation and a violation of the accused’s s. 7 rights. [34] A loss of evidence may also give rise to a finding of abuse of process if the accused establishes that its absence offends thecommunity’s sense of decency and fair play.

This will be the case if evidence was deliberately destroyed to defeat the obligation tomake full disclosure, but an improper motive is not essential to a finding of abuse of process and, in some cases, an unacceptable degreeof negligence may suffice.

A stay of proceedings may be an appropriate remedy in the rare case in which the loss of evidence is soprejudicial to the accused’s right to make full answer and defence that it impairs the right to a fair trial. [112] On appeal, Crown argued that the trial judge erred in a number of ways including: 1. in finding that the conduct of the RCMP was unacceptably negligent; 2. in not finding that the RCMP had provided an acceptable explanation for the loss of the accused's car; 3. that, in finding that the RCMP failed in their duty to preserve evidence, the trial judge failed to appreciate that the size of thevehicle created logistical problems making it impractical and unreasonable to require it to preserve same in every accident where chargesmight be laid; the police cannot be expected to preserve everything that comes into their hands on the off chance it might becomerelevant in future; 4. in finding that the police have a duty to preserve evidence in the hands of a third party. [113] Neilson J.A. answered these arguments at paragraphs 40, 42, and 45 of her reasons as follows: [40] In my view, these arguments cannot be sustained on the following undisputed findings of fact by the trial judge.

When Cst. Royreleased the Blazer to VHT on June 18, 2010, he knew it was important evidence with respect to driver identification. The possibilitythat it might provide exculpatory evidence should have occurred to the police, since they knew the identity of the driver was an issue andthis was one reason why they had undertaken an examination of the vehicle. Yet Cst. Roy gave no instructions to VHT to preserve thevehicle, either because he did not turn his mind to the importance of preservation, or because he assumed no further relevant evidencecould be obtained from the Blazer.

The police had no reason to expect Mr. Neidig would recover the vehicle since the damage to itcould not be repaired and he was not facing charges. They did not inform Mr. Neidig that the Blazer was at VHT. Nor did they informVHT who owned the vehicle. ... [42] The lack of communication from the RCMP to Mr. Neidig about the Blazer is also relevant to the Crown’s argument thatpreservation of the entire vehicle was impractical and unreasonable. This difficulty could easily have been resolved by notifying Mr.Neidig of its location and pending destruction, leaving it to him to salvage the vehicle if he wished.

Given the judge’s finding that thepolice should have been aware of its potential relevance to the defence, it was not reasonable for the RCMP to make a unilateral decisionthat the Blazer need not be preserved because their investigation was sufficient for defence purposes. ... [45] Mr. Neidig had no experience with the criminal justice system. While the RCMP had advised him of his potential jeopardy onthe day of the accident, several months had passed with no indication to him that charges would be laid. Without charges, the Crown’sduty of disclosure had not crystallized, so Mr.

Neidig had no knowledge of the RCMP’s investigations of the Blazer, or the importanceof conducting his own examination. Since it was not drivable he had no thought of recovering it for his own purposes.

Because therewas evidence he had been impaired at the time of the accident, he had no insurance coverage and so there was no intervention from aninsurer that might have alerted him to the importance of preserving the vehicle. [114] The Court of Appeal did not find that the trial judge had made any reversible error in his findings that there had been a seriousdeparture from Crown's duty to preserve evidence, a breach of the accused's s. 7 Charter rights, and an abuse of process in that he was, asa result of the destruction of the car, unable to make full answer and defence, see paragraph 29 and 56-59. [115] The Court of Appeal then considered whether or not the trial judge had erred in ordering a stay of proceedings.

This, of course,seems the obvious remedy where as a result of Crown neglect, evidence, as in Berner and Neidig and in the case at bar, is lost. There isnothing to seek to exclude as a result of the breach on that analysis. Neilson J.A. said this on point at paragraph 61 and 62 of herreasons, observing later at paragraph 67 that the decision with respect to the granting of a stay was a discretionary one on the part of thetrial judge. Referring to paragraph 61 and 62, she stated as follows:

[61] A stay of proceedings is the most drastic remedy a criminal court may order, and will only be granted in the “clearest of cases”,where state conduct has irreparably compromised trial fairness, or will cause irreparable prejudice to the integrity of the judicial processif the prosecution proceeds. The reluctance to grant a stay reflects the strong societal preference for a verdict on the merits. A stay ofproceedings is an unsatisfactory result in that it denies both the accused and the community the legitimate expectation of such a verdict. Accused persons seeking a stay thus face a heavy onus.

They must establish, first, that the alleged prejudice “will be manifested,perpetuated, or aggravated through the conduct of the trial, or by its outcome” and, second, that there is no alternative remedy that canredress the prejudice. If uncertainty remains, the court must balance the interests in favour of a stay with the societal interest in having afinal decision on the merits: R. v. Babos, 2014 SCC 16 at paras. 30-32, 44; Bero at para. 43. [62] The Crown argues that the trial judge erred in assessing the degree of prejudice to Mr. Neidig arising from the destruction of theBlazer. Relying on R. v.

Bradford (2001), (ON CA), 52 O.R. (3d) 257 (C.A.), at paras. 8-9, it says a missing pieceof evidence alone is not enough to establish irreparable harm to the right to make full answer and defence. Mr. Neidig must establish aninability to adequately put forward a defence, not just that it has become more difficult. In considering whether actual prejudice has beenestablished to the right to full answer and defence, the court must examine the lost evidence in the context of the evidence that does exist. [116] The Court of Appeal reversed the trial judge's conclusion in finding that a stay was an appropriate remedy.

It concluded on allthe evidence that it had not been shown that the destruction of the accused's vehicle, created actual prejudice. The trial judge could drawan adverse inference against the Crown due to the destruction of the vehicle. I note that Crown had argued that this was a remedy, so tospeak, short of a stay on the appeal (see paragraph 65) whereas in the case at bar, no such argument has as yet been made, likely becauseMr.

Cockfield urges me to find any negligence on the part of the RCMP was not unacceptable. [117] In Neidig, the court held that it was not one of the clearest cases meriting a stay and the Court of Appeal did not agree that, as aresult of the destruction of the evidence, the accused had suffered irreparable prejudice to his ability to defend himself. Discussion [118] The making of a recording of the s. 254(3.1) tests is not made mandatory by the Criminal Code.

Nonetheless, for whateverreason, on the night of February 15, 2014, the Sechelt RCMP had a surveillance camera apparently operating in the hallway where some,but not all of the s. 254(3.1) tests were completed by the accused in part only of the hallway comprising likely 60 percent of the totalhallway space. [119] There is no evidence that the video surveillance camera would definitively have recorded all aspects of all tests done in thehallway and, thus, the loss of the film is tantamount to a loss of a complete record of all these tests.

Bozak thought it likely that theresults would have been recorded, but did not really say why it was or how it was that he held this view. I cannot find or assume that thiswould be so without fuller evidence. For example, if the accused performed a finger-to-nose test with his back to the ceiling camera, itis far from obvious to me what use the video, if produced, would really be in the defence. [120] There is no evidence as to where and how the accused stood for each recorded hallway test in relation to the ceiling cameralens.

There is no evidence that other s. 254(3.1) tests done by another accused had ever been recorded and the film later reviewed byeither Constable Wiebe or Bozak who could clarify just how helpful the film was and, more importantly, how accurate it was inrecording all aspects of each test.

There is no evidence Bozak purposefully had the accused do the tests in such a way that the camerawould catch all of the accused's movements. [121] This lost film is thus different, in my view, from a wrecked car where, for example, an accused believes his brakes or steeringfailed resulting in a serious accident and criminal charges later result.

In such case, one might assume the whole car and all componentsof each system are often present. [122] Notwithstanding my concerns about the weight to be given and quality of the lost video evidence, had it not been lost andintroduced at trial, I do find that it would be a piece of relevant evidence or information. Insofar as it accurately recorded a complete testand the accused's efforts to complete same, it would be, of course, the best evidence, better than Constable Bozak's notes or memory.

Itcould potentially be used in defence counsel's cross-examination of Constable Bozak. [123] I find Crown, including the RCMP, had a duty to preserve it. I find that Constable Bozak at least knew the recording was beingmade.

I suspect on February 15, he simply did not turn his mind to its existence and the need to preserve it likely because it was late atnight when he was called out. [124] Insofar as he completed a form document setting out his s. 254(3.1) test results, it would, of course, be a simple matter to includea printed reference to the tape thereon, especially in light of the above Criminal Code provisions, such as, "Was a video made?" "Yes orno".

"If yes, what immediate steps are being taken to make a copy?" Clearly, such a tape might contain both inculpatory andexculpatory material. [125] If Constable Bozak did not on February 15 know how long any video record would be preserved in the Sechelt detachment, I amof the view that he ought to have known this fact and discharged his duty to preserve the video in a timely way accordingly. [126] I am also of the view that he ought to have told the accused on February 15 that certain of his tests were being filmed and that heought to have included this fact in his Report to Crown Counsel.

There is no evidence the accused knew any of the tests were beingrecorded so as to have been able to ask for a copy of same in a timely way. [127] R. v. Bowler (1998), 37 M.V.R. (3d) 244, is some authority that there is a duty on an accused to exercise reasonable diligence inactively pursuing the production of evidence he knows to be in the hands of a third party.

There is no evidence that the accused hereknew sooner than likely after the date the video was either lost or destroyed that it was made at all. [128] I find that the video evidence was not lost due to some intentional act on the part of any RCMP officer. I find that the loss wasaccidental and due to human error, but that Bozak breached his duty to preserve relevant evidence and did so negligently. He did not tell

the accused he was at times being recorded, as I have said. He took no timely steps to make a digital copy of the tape and place it on the accused's file, notwithstanding he had been arrested and issued a promise to appear for an alleged offence where the video evidence would have been relevant.

He did not, in the Report to Crown Counsel, put Crown counsel on notice that such evidence existed when he failed to mention it. [ 129 ] Based on all his evidence, I also conclude that, on February 15, he did not understand how long this important type of evidence was being preserved in the system, its shelf-life, so to speak.

If it could have been expected to last, for example, 72 hours, I think he had a duty to tell the Crown and the accused that this was so. [ 130 ] I find that the accused has established on the balance of probabilities that relevant evidence has been lost or destroyed. [ 131 ] The onus then shifts to Crown to provide an explanation for the loss or destruction. Here, the explanation, unsatisfactory as it was, really came out in Bozak's cross-examination. Mr. Cockfield admits the Crown was negligent, but not unacceptably so. I do not agree.

No explanation is really offered for the failure to preserve this evidence. [ 132 ] The very fact that the Criminal Code of Canada provides that evaluation tests done pursuant to s. 254(3.1) may be video- recorded is some support for the potential importance of video evidence.

Bozak agreed in cross-examination the test results were "pretty crucial." His excuse that he did not secure the video as he was not the lead investigator seems somewhat unconvincing, as is his evidence that every RCMP member knew that the surveillance was operating so he did not tell Wiebe, assumedly the lead investigator, that they were being recorded. [ 133 ] Bozak was the evaluating officer and, in my view, it was part and parcel of his duty as such to take reasonable steps to preserve this evidence. I understand he did nothing.

I find that his negligence was unacceptable, but not deliberate malfeasance. [ 134 ] I find that the accused has therefore established a breach of his s. 7 Charter right to make full answer and defence. I do not, however, find that the circumstances relating to the failure to preserve this piece of evidence amount to an abuse of process. [ 135 ] Is the accused entitled to a stay of proceedings? [ 136 ] This remedy is granted in only the clearest of cases. If granted, there is no trial of the charges on the merits.

The accused must establish actual prejudice or irreparable prejudice to his ability to make full answer and defence or irreparable harm to the integrity of the administration of justice if a stay is not granted. The onus is a heavy one. The issue of prejudice is to be examined and analyzed in the context of the evidence called at trial here on the voir dire ; see R. v. Berner , paragraph 99 . [ 137 ] In my view, the accused has not established that he is entitled to a stay of proceedings. I have taken some time above to attempt to quantify just what was lost and not available to the accused to use in his defence.

Again, not all test results which Bozak relied on and observations were recorded. Frankly, it seems a lot were not. [ 138 ] Mr. Lee had and took much time in a very careful and thorough cross-examination of Constable Bozak as to all h

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