R. v. Snelgrove Date:, 2012 BCPC 218

Citation: R. v. Snelgrove Date: 20120516 2012 BCPC 0218 File No: 184429-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD DEAN SNELGROVE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: S. Hamade Counsel for the Defendant: B. Mickelson Place of Hearing: Surrey , B.C. Dates of Hearing: December 12, 2011, March 21, April 5, April 12, 2012 Date of Judgment: May 16, 2012 [ 1 ] THE COURT : Richard Dean Snelgrove is charged on Information 184429-1 that he had the care or control of a motor

vehicle while his ability to operate that motor vehicle was impaired by alcohol, contrary to s. 253(1) (

a) of the Criminal Code ; secondly, that in the same circumstances his blood alcohol level exceeded 80 milligrams percent, contrary to s. 253(1)(

b) of the Criminal Code . The events are alleged to have occurred on July 1st of 2010. The evidence on this trial is complete and Mr. Snelgrove is before the court today to receive my decision. [ 2 ] During the course of the Crown's case, counsel for Mr. Snelgrove applied to exclude evidence of the results of analysis of samples of Mr. Snelgrove's breath taken pursuant to s. 254(3) of the Code. Evidence on this issue was heard in the course of a voir dire . The defence says Mr.

Snelgrove's right to be secure against unreasonable search and seizure under s. 8 of the Charter was violated and the evidence should be excluded under s. 24(2) of the Charter. [ 3 ] On the trial the Crown called three police officers. The substantial portion of evidence was heard during the voir dire on the Charter issue. Mr. Mickelson advised the court that the defence would not be calling evidence. By agreement of both counsel, I am invited first to resolve the Charter issue and determine whether the results of analysis of breath samples should be admitted on the trial.

Notwithstanding the outcome of that issue, the parties agree that all other evidence heard on the voir dire should be evidence in the trial proper.

Both parties, having fully examined and cross-examined the Crown witnesses on all issues and the defence having confirmed it would not call evidence, and both parties having fully argued their positions, I am then invited to resolve the ultimate issue; whether the Crown has proven its case in respect to these charges beyond a reasonable doubt. [ 4 ] I will first address the Charter issue and determine the admissibility of results of analysis of breath samples taken from Mr. Snelgrove. Section 254(2) (

a) of the Criminal Code permits an investigator who has a reasonable suspicion that a driver in Mr. Snelgrove's circumstances has alcohol in his body to demand that person perform physical coordination tests prescribed by regulation to determine whether a demand for breath samples may be made under s. 254(3). The Evaluation of Impaired Operation (Drugs and Alcohol) Regulations SOR 2008-196 sets out in s. 2 the following: The physical coordination tests to be conducted under s. 254(2) (

a) of the Criminal Code are the following: (

a) the horizontal gaze nystagmus test; (

b) the walk-and-turn test; (

c) the one-leg stand test. [ 5 ] In the present case, Cst. Brian Nanton, the investigating officer, developed the required suspicion and made a demand that Mr. Snelgrove carry out physical coordination tests. He then purported to administer those physical coordination tests, made observations, and he says on the basis of those observations formed reasonable grounds to make the demand for breath samples under s. 254(3). The defence argues that Cst. Nanton was not qualified as an expert with respect to the

interpretation of the physical coordination tests and therefore his observations cannot be relied upon to form the basis for a reasonably based belief required in order to make the demand under s. 254(3). [ 6 ] During the course of the voir dire the Crown called Staff Sgt. Peat who was qualified as an expert in the administration of standard field sobriety tests, which is a phrase often used to describe physical coordination tests, and in the detection of alcohol impairment symptomology through the use of standard field sobriety tests. His expertise was not challenged by the defence.

The defence argues, however, that it is the investigating officer who administers the tests and forms the opinion who must have the necessary expertise to interpret the observations. He further argues that although Staff Sgt. Peat was present and made observations of Cst. Nanton's conduct of the tests and Mr. Snelgrove's responses, because he did not communicate his observation to Cst. Nanton he cannot assist the Crown as an expert in the field. [ 7 ] The defence argues that for these reasons the evidence of Cst.

Nanton's observations is unreliable, and the evidence of the results of physical coordination testing conducted on Mr. Snelgrove is flawed and cannot form the basis for reasonable grounds to make a demand under s. 254(3). [ 8 ] The defence further argues that Cst. Nanton administered the physical coordination tests poorly and contrary to training, or at least that his evidence is unreliable on these points and so the conclusions he reached are themselves unreliable. [ 9 ] The defence says that if I find that the physical coordination testing carried out on Mr.

Snelgrove was flawed or unreliable because it is not supported by necessary expert evidence or because the tests were poorly administered, then the demand for breath samples under s. 254(3) is not supported by reasonable grounds. The obtaining of breath samples then was carried out in breach of Mr. Snelgrove's right under s. 8 of the Charter and the results of the analysis should be excluded under s. 24(2). [ 10 ] The evidence on the voir dire is the following. Cst. Brian Nanton was the investigating officer. He became a police officer in 2004. He is an experienced impaired driving investigator.

As of the date of these events he had conducted at least 20 such investigations. He is and was at the time a qualified technician as defined in s. 254 of the Code and has conducted breath sample testing on at least 90 drivers. In December of 2009 he took training conducted by the RCMP and was qualified to conduct standard field sobriety tests. [ 11 ] On July 1st of 2010, Cst. Nanton was on duty in uniform, driving a marked police car. Cst. Nanton was training another police officer, Cst. Heir who was present in the police car at the time. At 1838 hours Cst. Nanton saw a vehicle driven by Mr.

Snelgrove turn onto 64th Avenue from 176th Street. Vehicle and pedestrian traffic was heavy in the area. Cst. Nanton observed the Snelgrove vehicle accelerate quickly. Cst. Nanton followed the vehicle. The vehicle accelerated to about 90 to 100 kilometres per hour in a 60- kilometre zone. The vehicle turned onto 168th Street. He saw the Snelgrove vehicle then enter the oncoming lane with restricted

visibility and pass another vehicle while travelling at a high speed. The Snelgrove vehicle, by estimate of Cst. Nanton, reached about 120 kilometres per hour. [ 12 ] Cst. Nanton activated emergency equipment and at 1841 hours Mr. Snelgrove pulled over. Cst. Nanton went to the driver's window. Mr. Snelgrove was alone in the vehicle. He asked Mr. Snelgrove to get out of the vehicle. He observed Mr. Snelgrove's eyes to be red and his face flushed. They spoke. He observed the smell of alcohol on Mr. Snelgrove's breath. At 1843 hours Cst. Nanton formed the suspicion that Mr.

Snelgrove had alcohol in his body and he had driven a motor vehicle in the preceding three hours. The defence does not dispute the suspicion was reasonably formed, as required under s. 254(2) of the Code. [ 13 ] Cst. Nanton read the demand required under s. 254(2)(

b) that Mr. Snelgrove provide a breath sample to an approved screening device. Cst. Nanton then checked his vehicle but found he did not have an approved screening device with him in his vehicle. He called elsewhere and learned that an ASD could not readily be brought to the scene. He then read a demand to Mr. Snelgrove under s. 254(2) (

a) that Mr. Snelgrove perform physical coordination tests. He asked Mr. Snelgrove if he understood and Mr. Snelgrove agreed to perform the tests. [ 14 ] Cst. Nanton said that the training he had taken in December of 2009 involved the use of a manual. A copy of the manual provided by the Crown was marked as Exhibit B on the voir dire . The course involved both theory and practical aspects of the three physical coordination tests authorized under s. 2 of the Regulations. Cst. Nanton passed both the written and practical examination during his training. His investigation of Mr. Snelgrove was the first time Cst.

Nanton applied physical coordination testing in an actual investigation in the field. He had not done any additional training or any refresher course on the subject since completing the training approximately six-and-a-half months earlier. When physical coordination tests are conducted pursuant to a demand under s. 254(2)(

a) that subsection provides that the purpose in doing so is "to enable the peace officer to determine whether a demand may be made under subsection (3)." [ 15 ] Cst. Nanton stated that he did not have reasonable grounds to demand breath samples under s. 254(3). He then conducted the three physical coordination tests set out in s. 2 of the Regulations. His evidence is that after conducting the first of those tests, the horizontal gaze nystagmus test and observing Mr. Snelgrove's performance on that test, his suspicion was at that point elevated to reasonable grounds.

He went on to conduct the other two tests, but he believed he had the requisite grounds following the first test. [ 16 ] Staff Sgt. Peat, who was qualified as an expert, as I earlier mentioned, in the administration of standard field sobriety tests and detection of alcohol impairment symptomology through their use, also gave evidence. He made clear that he was not an expert in the medical or scientific implications of the tests or the observations. He said that horizontal gaze nystagmus occurs when the eye moves to the side and an involuntary jerking of the eye is observed.

He said a trained officer is able to see and assess this involuntary action of the eye. The involuntary jerking motion of the eye is the indicia of impairment on which the trained officer will rely. Three individual procedures are conducted on both eyes and are scored. Staff Sgt. Peat said that he is familiar with studies conducted to assess the accuracy of the horizontal gaze nystagmus test in individuals who have consumed alcohol. He said those studies demonstrate an 88 percent level of accuracy in identifying people with a blood alcohol level exceeding 100 milligrams of alcohol in 100 millilitres of blood.

He has conducted training and carried out his own tests in the course of his work and conservatively places his own ability to identify an individual with a blood alcohol level in excess of 100 milligrams percent using the horizontal gaze nystagmus test at 85 percent. [ 17 ] Staff Sgt. Peat said the first step in conducting the horizontal gaze nystagmus test is to ensure the subject's two pupils are of equal size, and then by holding a stimulus such as a pen 12 to 15 inches from the eyes, to move that stimulus across the plane of each eye to ensure equal tracking of the eye. This is done twice with both eyes.

If the pupils are not of equal size or do not track equally, this may indicate an illness or other medical condition. Assuming this initial procedure demonstrates equal size and tracking, the three procedures to be scored are then conducted. [ 18 ] The first component is called smooth pursuit. The officer holds a pen in front of the left eye first, then moves the pen across the left eye and back to the centre. The same is then carried out with the right eye. This cycle is done twice. The officer is looking to see if the eye carries out a smooth pursuit of the stimulus as it is moved.

If the officer observes erratic pursuit or jerking of the eye as it pursues the stimulus, one point is scored. If this is observed in both eyes, two points are scored. [ 19 ] The second component is referred to as distinct and sustained nystagmus at maximum deviation. The eye is held at its farthest point for four seconds. The officer looks to see if nystagmus or jerking is present. This is done twice with both eyes.

If the officer is very sure he sees nystagmus or jerking present, he will score one point for each eye where he sees this to be present. [ 20 ] The third component is referred to as involuntary jerking at 45 degrees. In this procedure, the officer moves the stimulus across the plane of the eye and looks to see the point at which jerkiness is first observed. At the point jerking is observed the officer stops and holds the position for two seconds. If he is unsure whether the jerking occurred he continues to move the stimulus to the shoulder. This is carried out twice in respect of each eye.

One point is scored for each eye in which jerkiness is observed before the eye reaches a 45-degree angle. Although a subject may have up to six points scored against him, Staff Sgt. Peat said a score of four has been found to be sufficient to identify persons with a blood alcohol reading in excess of 100 milligrams percent 85 percent of the time. [ 21 ] In his evidence, Cst. Nanton said that he believes he conducted the initial procedure to ensure pupils of equal size and equal tracking.

He agreed that although his training directs that he make notes of all steps and observations, he did not do so in the case of Mr. Snelgrove. He agreed as well that his training requires that he follow a checklist. He did not have one with him and did not construct one for use in testing Mr. Snelgrove. [ 22 ] He said he then conducted the smooth pursuit component of the test. He observed each eye lacked smooth pursuit. He said he observed jerking action with the eye speeding up and slowing as it tracked. He scored one point for each eye.

He then conducted the maximum deviation component by holding a pen at the farthest point of the eyes' gaze. He observed jerking back and forth at maximum deviation and he scored one point for each eye. [ 23 ] Cst. Nanton did not refer in his direct evidence to the third scoring component of the HGN test, which involves assessing whether jerking occurs before the stimulus reaches a 45-degree angle. He said he conducted a vertical nystagmus test which is referred

to in the regulation but is useful in assessing drug impairment, not alcohol impairment. No negative observations were made in respect of that test. Cst. Nanton said that he scored Mr. Snelgrove at four of a possible six on the horizontal gaze nystagmus test and on that basis, together with observations of driving, flushed face, red eyes and an odour of liquor, formed the reasonable grounds to make the demand for breath samples.

He conducted the walk-and-turn test and the one-leg stand test, but in my view made no significant negative observations and they did not contribute to his grounds to make the demand. [ 24 ] Cst. Nanton was closely cross-examined on his conduct of the horizontal gaze nystagmus test. As I earlier noted, he agreed he had no notes, nor did he rely on a checklist, nor create one in order to log or record his observations as he is trained to do. His lack of a record of this kind was telling. He was referred to the manual. He agreed he could not say whether Mr.

Snelgrove wore glasses and whether he asked that they be removed as the training protocol required. Without notes he could not say for sure that he carried out the evaluation of pupil size or the equal tracking assessment. Protocol for testing requires he begin with the left eye, but he could not say if he did so. He initially said he cannot recall if he did each eye separately or that he tested each eye twice. He has no notation that he carried out each component twice in respect to each eye. [ 25 ] Late in his cross-examination, Cst.

Nanton was referred to a written response he provided to a question asked of him by Crown counsel and provided to the defence in disclosure. He was asked if during the horizontal gaze nystagmus test each eye was checked separately. He responded, "I can't recall, not in notes." He then stated in evidence that now in court a year-and-a-half later and without the benefit of notes he does recall that he checked each eye separately and that when he said he could not recall, he was mistaken. Although that may be his evidence and recollection today, I find that to be unreliable. Cst.

Nanton acknowledged that he had no note of carrying out the 45-degree component, and of course he made no reference to it in direct examination. He could not say whether he conducted that component or, if he did, what he observed or whether he carried it out pursuant to training. [ 26 ] The manual includes a paper apparently prepared by a Florida agency in which the following appears: It is of the utmost importance that the officer determines whether or not the suspect has any physical disabilities that would disqualify him from performing the test. Cst. Nanton did not ask or recall if he asked Mr.

Snelgrove if he had any medical conditions or disabilities. [ 27 ] The manual, Exhibit B, at page XIII-15 states: Certain conditions may interfere with the ability of the subject to perform the test. These include visual or other distractions impeding the test (always face suspect away from rotating lights, strobe lights and traffic passing in close proximity). Cst. Nanton's evidence on cross-examination places he and Mr. Snelgrove behind the Snelgrove vehicle and facing towards the police vehicle when the horizontal gaze nystagmus test was administered. Cst.

Nanton cannot be precise about which of his emergency lights were turned on at that time, that is the time the horizontal gaze nystagmus test was conducted, but the tenor of his evidence was that emergency lights were on. I find that Mr. Snelgrove was facing that police vehicle and emergency lights were on when the horizontal gaze nystagmus test was conducted. [ 28 ] At the close of his cross-examination, Cst.

Nanton was directed to page VIII-19 of the manual Exhibit B where the following appears, "It is necessary to emphasize this validation applies when," and then the following three points: "the tests are administered in the prescribed standardized manner," next, "the standardized clues are used to assess the suspect's performance," and the next point, "the standardized criteria are employed to interpret that performance. If any one of the standardized field sobriety tests elements is changed, the validity is compromised." [ 29 ] In his evidence, Staff Sgt. Peat said he attended the scene and observed Cst.

Nanton conduct the standard field sobriety tests. He said he saw Cst. Nanton conduct the tests properly. He said he observed Cst. Nanton initially assess equal tracking and that the pupils were checked and were found to be of equal size. He said the smooth pursuit component was properly done and he observed involuntary jerking of the eyes. Erratic pursuit was present. He said the maximum deviation test demonstrated nystagmus to be present. He said the 45-degree test was done and that involuntary jerking was present prior to 45 degrees. From his observations, Staff Sgt. Peat would have scored Mr.

Snelgrove six out of six. He observed Mr. Snelgrove to be exhibiting bloodshot, watery eyes, a moderate odour of liquor on his breath, slurred speech and a sluggishness about his balance. He leaned against his vehicle, his body swayed three inches left and right of centre as he walked. There is no evidence that Staff Sgt. Peat passed these observations on to Cst. Nanton. Sgt. Peat was not cross-examined. [ 30 ] Cst. Nanton relied on the horizontal gaze nystagmus test together with his observations of driving and other symptoms of impairment to form the grounds for the demand. I conclude that the evidence of Cst.

Nanton relating to the administration of the physical coordination tests, and particularly the horizontal gaze nystagmus test is highly unreliable. It is unreliable because he has failed to follow the trained procedure of logging his observations in a careful manner in order to ensure he can give an accurate account of the steps he took to ensure he followed the training protocol and to ensure he is able to give an accurate account of the responses he observed in Mr. Snelgrove. By doing so, the court can assess the objective basis for his subjective belief that Mr.

Snelgrove's ability to operate a motor vehicle was impaired by alcohol, allowing a demand for breath samples to be made. The training manual presented in evidence emphasizes in several places the importance of accurate logging of the steps taken and the observations recorded for precisely these reasons. That manual at

section VIII, pages 14 and 15, provides a checklist logging format that addresses each step and alerts the investigator, for example, to address factors such as lighting or other distractions that might impact the reliability of the

interpretation of

the observations. It is at the end of this

section that the words that I earlier quoted which emphasize that the outcome of this testing iscompromised if the tests are not carefully administered pursuant to training appears. [31] The importance of care and precision in the carrying out of these tests and the observing of responses becomes clear when oneconsiders the line of cases which addressed the admissibility of standard field sobriety tests prior to the adoption of the regulationsrelating to the tests in 2008. The defence has argued that despite the evidence of Staff Sgt.

Peat, who was qualified as an expert in theareas earlier noted, the evidence called by the Crown nevertheless required that Cst. Nanton himself be qualified, or at least that a degreeof expertise beyond that provided by Staff Sgt. Peat is required before the physical coordination tests, and particularly the horizontalgaze nystagmus test, can be relied upon to advance observations made by the investigator to the level of reasonable grounds. Thedefence relied on the series of cases in British Columbia beginning with a case called R. v.

Badry 2002 BCPC 353, a decision of JudgeTweedale of this court, and continuing with R. v. Dixie 2004 BCPC 5, which is a decision of Judge Barnett; R. v. Freeman 2004 BCPC92, which is a decision of Judge Hoy; and R. v. Scurvey 2002 Yukon Territorial Court 87. [32] The Crown pointed out that those decisions predate the Regulation 2008-196 which specifically adopted the three tests atissue here, including the horizontal gaze nystagmus test, as physical coordination tests for the purposes of s. 254(2)(a).

The Crown'sargument is that with the adoption of that regulation the Legislature has said that a person trained to conduct the tests and makeobservations can rely on those observations to develop reasonable grounds and no expertise need now be established. [33] Had the evidence of the administering of those tests been more compelling, resolving the issue of expertise would have beenthe first step to take. However, I have concluded that evidence is not compelling or reliable. I have already noted the concerns I havewith the reliability of Cst. Nanton's evidence in this area. I have determined that Staff Sgt.

Peat's evidence does not adequately shore upCst. Nanton's evidence to the point that I could be confident about the conduct of the tests and observations made by the investigator. There is no evidence that Staff Sgt. Peat's evidence was given with reference to the kind of note-taking or checklist or logging of eventsand observations that training says is necessary. There is no evidence from Staff Sgt. Peat contradicting the evidence of Cst. Nanton thatno distraction such as emergency lights or traffic were present. There is no evidence that specific inquiries were made to eliminatemedical or other disorders.

In all the circumstances, I am not prepared to rely on Staff Sgt. Peat's assertions at this point that everythingwas done correctly. [34] The application of the horizontal gaze nystagmus test in my view requires a degree of care and precision of observation andreporting that is different than the observing of balance or speech or odour of liquor. That degree of care and precision are not presenthere to the point that I can be confident these tests were carried out properly and the observations recorded carefully as training standardsrequire. [35] Cst.

Nanton made clear in his evidence that he had not formed a subjective belief that Mr. Snelgrove's ability to operate amotor vehicle was impaired by alcohol on the information available to him before conducting a horizontal gaze nystagmus test. Cst.Nanton says he formed a subjective belief after considering the outcome of the horizontal gaze nystagmus test, but I have no confidencethat testing was conducted competently according to the strict testing criteria on which he was trained.

Thus, I conclude the results ofthat testing cannot contribute to the assessment of the presence of an objective basis for his subjective belief. In R. v. Bush, which is adecision of the Ontario Court of Appeal in 2010, that court stated at paragraph 38: Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer tohave an honest belief the suspect committed the offence... And the court referred to R. v. Bernshaw (1995), (SCC), 1 SCR 254. The officer’s belief must be supported by objective facts... And the court there referred to R. v.

Berlinski, (ON CA), [2001] OJ No. 377 (CA). The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that therewere indeed reasonable and probable grounds for the arrest... (R. v. Bush 2010 ONCA 554) [36] Here, an experienced officer concluded on the basis of the information available that he lacked the grounds without thebenefit of the horizontal gaze nystagmus test.

In my view, in those circumstances a reasonable person in the place of the officer wouldnot be able to conclude there were reasonable and probable grounds based on that residual information in circumstances in which Cst.Nanton himself would not have relied on those circumstances to reach that conclusion. [37] Because I find the evidence surrounding the horizontal gaze nystagmus test to be unreliable, it is not necessary that I resolvehere the question whether expert evidence continues to be required when physical coordination tests are offered as evidence and if so,whether the required expertise in this case was present.

I find on the evidence that Cst. Nanton's belief that Mr. Snelgrove's ability tooperate a motor vehicle was impaired by alcohol is not objectively supported. The basis for a demand under s. 254(3) has not beenestablished. Mr. Snelgrove has established a breach of his right to be secure against unreasonable search and seizure. [38] The issue then is whether the certificate setting out the results of analysis of breath samples thereafter taken from Mr.

Snelgrove should be excluded. Section 24(2) of the Charter says that such evidence shall be excluded if it is established that having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. In addressing this issue, I must assess and balance three lines of inquiry.

In doing so, I must take an objective view which considers the impact of admission of the evidence over the long term and prospectively on the repute of the administration of justice, and from the perspective of a reasonable member of the community informed of the principles and values underlying the Charter. [ 39 ] The first inquiry focuses on the seriousness of the Charter-infringing state conduct and asks whether admission of the evidence would send a message that the court condones state deviation from the rule of law.

Here, a trained police officer has not followed basic principles of that training and as a result the court is left unable to assess the objective strength of conclusions he reached on the basis of which a search was conducted. I take account here, as I did earlier in these reasons, that Staff Sgt. Peat said all procedures were done correctly. The difficulty is that the means by which that can be verified is not present, precisely because neither investigator recorded their observations; and in this particular procedure precision and care are of the utmost importance.

Although not a case of oppressive, malicious or willful conduct, I cannot conclude the conduct of the police investigator in failing to follow important procedures was of only passing importance. Because Cst. Nanton is not a scientist, it is essential he follow the training he is given, precisely. Although the evidence to be gleaned is not itself proof of guilt, it provides the basis upon which a search is conducted. The reasonable expectations are that care will be taken to ensure the integrity of the process and the results.

That did not occur in this case, and I view the violation to be serious. [ 40 ] The second line of inquiry focuses on the impact of the breach on the Charter-protected interests of the accused where admission of the evidence may send the message that individual rights count for little. This is not a fleeting or technical breach. It calls on an accused person to provide breath samples. Although less intrusive than some other searches which involve intrusions on bodily integrity, it is central to the Crown's case and there is a minimum expectation that a subjective belief objectively supported be present.

If a poorly conducted and documented investigation can readily overcome that statutory standard to generate evidence in these circumstances, a reasonable member of the community would believe that Charter rights count for little in the circumstances. [ 41 ] The third line of inquiry addresses the community's interest in seeing serious criminal charges addressed on their merits at trial and usually argues for the admission of the evidence.

The strength of this argument may be greater in the case of breath test results because they are generally accepted as reliable, and so supportive of the truth-seeking function of the criminal trial. That evidence does not suffer from the same well-documented reliability concerns that are present where, for example, the evidence at issue was a statement of the accused obtained in violation of a Charter right. [ 42 ] I am reminded, however, that it is the balancing of the three lines of inquiry which is called for.

I am also mindful that informed members of the community recognize the importance of Charter values and the importance of ensuring those interests are protected. Here, a balancing of those interests leads me to conclude that the admission of the certificate would bring the administration of justice into disrepute and the results of the analysis of breath samples for Mr. Snelgrove will be excluded. [ 43 ] There being no other evidence of the concentration of alcohol in his blood at the relevant time, Mr. Snelgrove is acquitted on Count 2.

The Crown has made no submission on Count 1 and invites an acquittal, and I acquit Mr. Snelgrove on Count 1. (RULING CONCLUDED)