Her Majesty the Queen - v. -, 2013 SKPC 107

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 107 Date: August 26, 2013 Information: 90000330 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Adam Kreiser Appearing: Maura Landry For the Crown James Korpan and Darren Kraushaar For the Accused DECISION J.D. KALMAKOFF , J [ 1 ] Adam Kreiser is charged with having care or control of a motor vehicle while his blood alcohol concentration exceeded the legal limit, contrary to section 253(1) (

b) of the Criminal Code . He argues that the evidence against him, namely the results of the breath tests, should be excluded because his right to counsel, as guaranteed by

section 10(

b) of the Charter , was violated. [ 2 ] For reasons which follow, I am satisfied that Mr. Kreiser’s right to counsel was violated, and that the evidence obtained in connection with that breach, namely the Certificate of Qualified Technician, should be excluded.

FACTUAL BACKGROUND [ 3 ] Shortly before midnight on February 24, 2013, the Regina Police Service received a complaint that a suspected impaired driver had just left a restaurant located at Park Street and Victoria Avenue. Cst. Kaip and his partner, Cst. Bacon, responded to the complaint, and located Mr. Kreiser in a parking lot across the street at 11:55 p.m. Mr. Kreiser was sitting in the driver’s seat of his vehicle when police arrived. Both Mr. Kreiser and his vehicle matched the descriptions provided by the person who called the police. [ 4 ] Cst. Kaip immediately noticed signs that Mr.

Kreiser had been drinking. Accordingly, he brought Mr. Kreiser back to the police car and made an Approved Screening Device (ASD) demand at 11:58 p.m. Mr. Kreiser quickly produced a mobile phone, and tried to make a call. He told the officers he was trying to call his lawyer. As it turns out, he called the office of Mr. Korpan, who represented him at trial. Not surprisingly, given the time of day, Mr. Korpan was not in his office when Mr. Kreiser phoned from the police car. The officers instructed Mr.

Kreiser to end the telephone call, and told him he would be given the opportunity to contact counsel once they got to the police station. The reason, the officers explained, was that they could not give Mr. Kreiser the privacy he needed for his call to counsel while in the police car. [ 5 ] Mr. Kreiser put down his phone, but did not hang up the call. He had reached Mr. Korpan’s voice mail, and a significant portion of his ensuing conversation with the police was recorded. An excerpt of the recording was entered as evidence. In it, Mr.

Kreiser clearly said that he wanted to talk to his lawyer, and asked the officers what would happen if he was unable to reach his lawyer. Cst. Bacon explained that Mr. Kreiser would be given an opportunity to contact his lawyer, but “if he doesn’t answer, then our hands are tied at that point, we have to continue with our investigation.” He also reminded Mr. Kreiser that Legal Aid duty counsel was available 24 hours a day. [ 6 ] At 12:03 a.m., Mr. Kreiser blew a “fail” on the ASD. At 12:06 a.m., Cst. Kaip arrested Mr.

Kreiser for having care or control while over the legal limit, and advised him of his right to counsel. Mr. Kreiser indicated that he understood this right, and said that he would like to call a lawyer. At 12:11 a.m., Cst. Kaip read Mr. Kreiser the breath test demand. [ 7 ] Csts. Kaip and Bacon then transported Mr. Kreiser to the police station, arriving there at 12:15 a.m. After some routine booking-in procedures were completed, Mr. Kreiser was taken to the telephone room at 12:26 a.m., so that he could call a lawyer. After two unsuccessful attempts to reach Mr. Korpan’s office, Mr.

Kreiser spoke to Legal Aid duty counsel from 12:31 a.m. to 12:35 a.m. Following that, he provided samples of his breath at 1:00 a.m. and 1:20 a.m., both of which showed a blood alcohol concentration well in excess of the legal limit. [ 8 ] There is discrepancy in the evidence as to the events relating to the exercise or non-exercise of Mr. Kreiser’s right to counsel. The recollections of Cst. Kaip and Mr. Kreiser differ on critical points. Significant portions of Mr. Kreiser’s evidence are corroborated by the audio recording, and those portions contradict Cst.

Kaip’s evidence where he was testifying only from memory, and not from recordings made in his notes. While I found Cst. Kaip to be a generally honest witness, those contradictions cause me to question the accuracy and completeness of his recollection of events. When asked about important events, Cst. Kaip frequently responded by saying “I don’t recall”, which leads me to the conclusion that his memory of this incident is simply not reliable. Generally, I accept the evidence of Mr. Kreiser where it differs from the evidence of Cst.

Kaip, as it relates to the issue of right to counsel. [ 9 ] I am satisfied the following facts have been established with respect to what occurred after Mr. Kreiser was taken to the police station. When asked if he wanted to call a lawyer, Mr. Kreiser asked to speak to James Korpan, who had represented him on legal matters in the past. Mr. Korpan’s telephone number was not contained on the list of lawyers posted in the phone room at the police station. Mr. Kreiser then told Cst. Kaip that if Mr. Korpan could not be reached, he would prefer to speak to Aaron Fox, a lawyer who worked at the same firm as Mr. Korpan.

Mr. Fox’s number was not contained on the list posted in the phone room either. Mr. Kreiser then told Cst. Kaip that both lawyers worked for McDougall Gauley, and Cst. Kaip proceeded to call the main office number for that firm at 12:26 a.m. Not surprisingly, given the time of day, the office was closed, and Cst. Kaip’s call went to a voice mail service. Cst. Kaip left a message, saying that Mr. Kreiser had been arrested and wanted to speak to a lawyer. At 12:29 a.m., Cst. Kaip called the same number a second time, and let Mr. Kreiser leave another message.

[10] At this point, Cst. Kaip did not offer, nor did he make any attempts, to find alternative contact numbers for Mr. Korpan or Mr.Fox before reminding Mr. Kreiser of the availability of Legal Aid. Mr. Kreiser requested a phone book, but when he did, one was notprovided. Instead, Cst. Kaip suggested that he would call Legal Aid, and Mr. Kreiser could speak to someone there. Mr. Kreiser agreedto speak to Legal Aid duty counsel, and testified that he did so because he felt he had no other option. [11] Mr. Kreiser spent from 12:31 a.m. to 12:35 a.m. speaking to Legal Aid duty counsel.

After this call was completed, Mr.Kreiser was asked if he was satisfied with his call to counsel. He responded “yes” when asked this question. I accept the testimony ofCst. Kaip on this point, because he made a specific notation about that response, which he placed in quotation marks, in his notebook. Even if I were to accept Mr. Kreiser’s suggestion that he said “I guess so”, it would make little difference in the overall analysis, becauseit is clear that Mr.

Kreiser never told police that he was dissatisfied with Legal Aid duty counsel’s advice. [12] After that, there was no further discussion of counsel before Mr. Kreiser complied with the demand to provide breathsamples. ISSUES [13] There are two issues raised in this case:

(1) Was there a violation of Mr. Kreiser’s right to counsel, as guaranteed by

section 10(

b) of the Charter; and

(2) If so, is the remedy of exclusion of evidence warranted, pursuant to section 24(2) of the Charter? ANALYSIS

(1) Was there a violation of Mr. Kreiser’s right to counsel, as guaranteed by

section 10(

b) of the Charter? [14]

Section 10(

b) of the Charter guarantees that, upon arrest or detention, everyone has the right to retain and instruct counselwithout delay, and to be informed of that right. The accused bears the onus of establishing a breach of that right on a balance ofprobabilities. [15] The right to counsel has an information component and an implementation component. The information component requiresthe police to inform the detainee of the right to retain and instruct counsel without delay, and of the existence and availability of LegalAid and duty counsel: R. v. Luong, 2000 ABCA 31. I am satisfied in this case that the police complied with the informationalrequirements of

section 10(b). Mr. Kreiser was advised that he had the right to counsel as soon as he was arrested, and was also advisedof the existence and availability of Legal Aid and duty counsel. [16] The implementation component of the right to counsel is two-fold, and arises when the detainee expresses a desire to exercisethe right to counsel. First, it requires the police to give the detainee a reasonable opportunity to contact counsel.

Second, it requires thepolice to hold off on attempts to gather evidence until the detainee has had that reasonable opportunity (except, of course, in situations ofurgency or danger): R. v. Luong, supra; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173; R. v. Sinclair, 2010 SCC 35, [2010] 2S.C.R. 310. [17] These duties, of course, are not absolute. The obligations placed on police in relation to the right to counsel are contingentupon the detainee exercising reasonable diligence in attempting to contact counsel.

If the detainee is not diligent in exercising the rightto counsel, the police obligation to hold off attempts to elicit evidence is suspended, and they can properly continue with their

investigation. What amounts to reasonable diligence on the part of the detainee depends on the circumstances of the case. See R. v.Willier, 2010 SCC 37, [2010] S.C.R. 429; R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368. [18] The right to counsel of choice is part of the guarantee in

section 10(b). The importance of counsel of choice was described byJustice Mills in R. v. Trueman, 2008 SKQB 335, at paragraph 12: Selecting counsel of one’s choice cannot be underestimated. The integrity of the system of justice is based in part on the accused’s beliefthat his lawyer will represent his interest alone.

If an accused has confidence in a particular individual to represent his interests overthose of the state, he or she must be given a reasonable opportunity to obtain advice from that individual. [19] A detainee who wants to speak to a specific lawyer has the right to a reasonable opportunity to do so before the policecontinue attempts to gather evidence. If the detainee’s lawyer of choice is not immediately available, he or she has a right to refuse tospeak with other counsel, and wait a reasonable amount of time for the chosen lawyer to become available.

However, if the chosenlawyer cannot be available within a reasonable period of time, the detainee is expected to exercise the right to counsel by calling anotherlawyer. Failing to do so means the detainee is not being diligent, and suspends the corresponding duty of the police to hold off attemptsto gather evidence. Again, what amounts to a reasonable period of time depends on all the circumstances of the case, and may includefactors such as the seriousness of the charge and the urgency of the investigation: R. v. Willier, supra, at para. 35; R. v.

McCrimmon,2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17-18. [20] Mr. Kreiser invoked his right to counsel in this case. He said he wanted to call a lawyer, and informed police there was aspecific lawyer he wished to call. Accordingly, I must determine whether police provided Mr. Kreiser with a reasonable opportunity tocontact his counsel of choice. [21] In considering this question, I am drawn to the decision in R. v. Blackett (2006), 70 W.C.B. (2d) 212, [2006] O.J.

No. 2999(S.C.J.), where Justice Ferguson outlined a three-step analysis for determining whether a detainee’s right to counsel has been violated incircumstances such as these. At paragraph 29, he wrote: [29] It appears to me that the case law dictates this three stage analysis of these s. 10(b) “right to counsel of choice” situations: (

a) Did the police fulfill their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judgefinds they fulfilled their duty then there is no breach of s. 10(b). (

b) If the police did not fulfill their duty then there are two possibilities: (

i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(

b) is established:Kumarasamy. (ii) If the police breached their duty because they made some effort but it is found not to constitute “reasonable diligence”, the trial judgemust next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then as. 10(

b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b):Brydges; Richfield. (

c) If a breach of s. 10(

b) is established the court must then go on to consider whether or not to exclude the consequent evidence under s.24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfield suggested that thethreshold for exclusion is higher in breathalyzer cases: at para. 18. [22] This analysis was adopted and approved by Justice Keene in R. v. Menkerios, 2011 SKQB 128. [23] Police are not entitled to select a lawyer for someone who is detained, nor are they allowed to push the detainee in thedirection of Legal Aid as a convenient way of fulfilling the requirements of

section 10(b): R. v. MacLaren, 2001 SKQB 493, 212 Sask.R. 204; R. v. Trueman, supra.

[ 24 ] In R. v. Brouillette , 2009 SKQB 422 , Koch J. followed the reasoning expressed in MacLaren , supra , and held that, where a detainee has expressed a preference for a particular counsel, simply placing a phone call to that lawyer’s office at 3:00 a.m. does not fulfil the implementational duties required of the police.

If the lawyer can not be reached at his or her office at an unusual hour, more is required of the police, such as making at least some efforts to locate alternate contact numbers, before giving up on contacting counsel of choice. [ 25 ] However, cases such as MacLaren , Brouillette, and Trueman must now be read in light of the Supreme Court of Canada’s more recent decisions in Sinclair , Willier, and McCrimmon, supra.

While the question of whether or not the police have met their implementational obligations is one that must be decided on the particular facts of the case, the Supreme Court made it clear that merely reminding a detainee of the availability of Legal Aid duty counsel, or even suggesting that as an option, does not violate the right to counsel of choice protected by

section 10(b). See R. v. McCrimmon , supra , at para. 19 , and R. v. Willier , supra , at para. 43 . [ 26 ] This reasoning has been applied in recent cases, which have held that it is appropriate for the police to remind detainees of the option of Legal Aid duty counsel in situations where the detainee does not have a lawyer, or is unable to immediately reach counsel of choice: See R. v. Rice , 2011 SKQB 412 ; R. v. McLeod , 2013 SKCA 28 ; R. v. Edgington , 2010 SKQB 381 ; R. v. Svennes , 2011 SKQB 137 ; R. v. Hughes , 2010 SKQB 392 .

In such circumstances, if Legal Aid duty counsel is not considered an acceptable option by the detainee, he or she should ask for further assistance in contacting counsel of choice. Failure to do so may be seen as lack of diligence in exercising the right to counsel: R. v. Rice , supra , at para. 29 . [ 27 ] However, while the police may properly remind the detainee of the availability of Legal Aid duty counsel, they may not interfere with the detainee’s right to a reasonable opportunity to choose and contact counsel.

If police actively dissuade a detainee from making efforts to contact his or her preferred lawyer, or interfere with that decision, then the right to counsel is violated. Simply reminding a detainee of the availability of Legal Aid does not interfere with the right to choose counsel; wrongly leaving the impression that the detainee cannot pursue other options does. [ 28 ] Although the police made some efforts in this case to contact Mr. Kreiser’s counsel of choice, they did not act with reasonable diligence. Mr.

Kreiser mentioned two specific lawyers that he wished to call, and made it clear that he did not wish to speak to just anyone. In response to that, Cst. Kaip made only two calls, over a three minute period, to a law office in the middle of the night, where he had to have known that it was extremely unlikely he would reach a lawyer. Mr. Kreiser was not offered the opportunity to wait for someone to call back, and was given no further time to consider the situation. According to the evidence, both Mr. Korpan and Mr.

Fox are listed in the white pages of the Regina telephone book, and looking for their residential listings would not have taken much time or effort. But, instead of looking for residential listings, the police in this case rushed the process and Mr. Kreiser’s decision, when there was no need to, as there were no safety concerns and no other circumstances of urgency. [ 29 ] I must also consider whether Mr. Kreiser was diligent in exercising his right to counsel. After the two unsuccessful calls made to the McDougall Gauley office, Mr. Kreiser asked for a phone book. Instead of providing one, Cst. Kaip told Mr.

Kreiser that he would call Legal Aid duty counsel, since the contact information for the lawyers requested did not appear on the list posted on the wall. Mr. Kreiser then agreed to speak to Legal Aid. [ 30 ] At the point that Cst. Kaip suggested calling Legal Aid, Mr. Kreiser had not abandoned the intention to contact his preferred lawyer. In fact, Mr. Kreiser had requested that a telephone book be made available to assist him in doing so. Far from being an unreasonable request, this is what one would expect of someone diligently exercising his right to counsel.

Instead of providing the requested assistance in locating contact information for Mr. Korpan, however, Cst. Kaip effectively steered Mr. Kreiser to Legal Aid. I am therefore satisfied that Cst. Kaip’s actions in this case went beyond merely reminding Mr. Kreiser of the availability of Legal Aid, and amounted to interference with the right to counsel of choice. For that reason, this case is distinguishable from R. v. McCrimmon , supra; R. v. Menkerios , supra; R. v. Hughes , supra; R. v. Edgington , supra; R. v. Rice , supra; R. v. McLeod , supra; and R. v. Svennes , supra . [ 31 ] In R. v.

Willier , supra, the accused was arrested on a weekend. After a single, unsuccessful phone call to the office of his lawyer of choice, the police reminded Mr. Willier of the availability of Legal Aid duty counsel. Mr. Willier agreed to speak to duty counsel, and after doing so, expressed satisfaction with the advice received. The police proceeded to interview Mr. Willier, and he made inculpatory statements. The Court held that Mr. Willier’s right to counsel of choice was not violated. By simply reminding Mr.

Wilier of the immediate availability of free Legal Aid after the unsuccessful attempt to call his preferred lawyer, the police did not interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice. Key to the Court’s finding in Willier was the fact that Mr. Willier was not told that he could not wait to hear back from his lawyer, or that Legal Aid was his only recourse, and there was nothing to suggest that his choice to call duty counsel was the product of coercion. The Court found Mr. Willier’s decision to get legal

advice from duty counsel was entirely voluntary. [32] This case is different. As soon as he was detained, Mr. Kreiser expressed a desire to speak to a specific lawyer, and madepolice aware that not just any lawyer would do. He was told in the police car that, if his lawyer was not available, police would have tocontinue with their investigation. At the police station, when his lawyer was not listed on the material posted in the telephone room, Mr.Kreiser was not told that he could take further time to consider the situation. He was not told he could wait for a call back.

He was nottold he could try calling again, and no efforts were made to find alternative contact information. He was not provided with a phone bookwhen he asked for one. Instead, Mr. Kreiser was simply pointed in the direction of Legal Aid. In my view, the words and actions of thepolice officers left Mr. Kreiser with the impression that Legal Aid duty counsel was his only option, and accordingly I do not regard hisdecision to consult with duty counsel as voluntary. [33] Nor, in the circumstances, do I consider his failure to complain after his consultation with duty counsel to be a lack ofdiligence on his part.

Mr. Kreiser was left with the impression that he had no real alternative at that point, so even though he did notclearly express dissatisfaction with the legal advice he received, I am satisfied that he was as diligent as reasonably possible in thecircumstances. [34] I am satisfied, on a balance of probabilities, that Mr. Kreiser’s right to counsel, as guaranteed by s. 10(

b) of the Charter, wasviolated.

(2) If there was a violation of Mr. Kreiser’s right to counsel, is the remedy of exclusion of evidence warranted, pursuant tosection 24(2) of the Charter? [35] Exclusion of evidence is not automatic upon concluding that the evidence was obtained in a manner that violated the Charterrights of the accused. Nor is the evidence prima facie inadmissible. Section 24(2) of the Charter requires that I exclude the evidenceonly if it is established that, having regard to all the circumstances, its admission would bring the administration of justice intodisrepute.

The accused bears the burden of establishing this, on a balance of probabilities: R. v. Bartle, supra; R. v. Sandhu, 2011 ONCA124; R. v. Collins, (SCC), [1987] 1 S.C.R. 265. [36] In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court laid out the three avenues of inquiry to be undertakenand the factors to be balanced in determining whether the administration of justice would be placed in disrepute by the admission of theevidence.

The Court in Grant noted that this requires attention to whether the overall repute of the justice system, viewed in the longterm, and objectively speaking, will be negatively affected by the admission of the evidence, taking into account all the circumstances. [37] The first factor to consider is the seriousness of the Charter-infringing state conduct. In considering this factor, I must keep inmind the importance of preservation of public confidence in the rule of law and its processes. Police are expected to abide by Charterstandards.

Minor and inadvertent breaches of Charter rights will be seen as less serious than deliberate or reckless violations. The moreserious the breach, the greater the need for the Court to dissociate itself from such conduct. Good faith and extenuating circumstanceswill weigh in favour of admission, while carelessness and ignorance of Charter standards will not. Negligence and wilful blindness donot constitute good faith. [38] I find that analysis of this factor weighs in favour of the exclusion of the evidence. I am satisfied in this case that the breachwas not deliberate. However, while Cst.

Kaip was a relatively junior officer, the other officer involved, Cst. Bacon, was moreexperienced. The right to counsel is a well-known, fundamental right. Mr. Kreiser expressed a clear interest in being allowed to exercisethe right. He was not difficult to deal with, nor was he uncooperative with the police. The situation was not urgent because of time, andthere were no safety concerns. The solution to not being able to reach two lawyers in their office in the wee hours of the morning - i.e.,looking in a phone book for their home numbers - was glaringly obvious and would have required minimal effort.

The efforts made bythe officers in this case fell short of reasonable. I consider the breach in this case to be careless, and to demonstrate an ignorance ofCharter standards. [39] The second factor to be considered is the impact on the Charter-protected interests of the accused. This involves examiningthe interests engaged by the rights, and the extent to which the breach impacted upon those interests. As noted in R. v. Grant, supra, the

more serious the impact of the breach, the greater the chance that admission of the evidence would risk sending the message that guarantees under the Charter , in reality, count for very little, and the more heavily therefore, that analysis of this factor weighs in favour of exclusion of evidence. [ 40 ] I consider the impact of the breach on Mr. Kreiser to be moderately serious. There is no evidence that Mr. Kreiser was mistreated or otherwise subjected to any dangerous, demeaning or degrading procedures. The evidence gathered from him was non- intrusive, and involved minimal impact on his bodily integrity.

This was not a case where the police had an absence of grounds to make a breath test demand, and apart from the breath samples, there was no other incriminating evidence gained from Mr. Kreiser in connection with the violation of his right to counsel. However, while Mr. Kresier was able to get legal advice, it was not from a lawyer he knew, trusted, or actually wanted to speak to. [ 41 ] In order to have real meaning, the right to counsel cannot be reduced to an “any lawyer will do” approach. Counsel of choice is important, even where duty counsel service is available. As noted by Justice Greene in R. v.

Markovic , 2013 ONCJ 300 , at paragraph 49 : There are...some obvious benefits to consulting with counsel of choice as opposed to duty counsel. Firstly, the detainee is speaking to someone he/she already knows. Secondly, counsel of choice will, in many cases, already know some information about the detainee to help structure the advice and highlight the pros and cons of cooperating with the police.

Thirdly, counsel of choice in most cases will be a lawyer that the detainee already trusts and is comfortable with thereby increasing the likelihood of having a full and frank conversation which will also produce better legal advice. [ 42 ] Taking all those factors into account, while the impact on Mr. Kreiser’s Charter -protected interests is not at the high end in this case, it is sufficiently serious to weigh in favour of excluding the evidence. [ 43 ] The third factor to be considered is society’s interest in adjudication of the case on its merits.

In that regard, I note that the breath sample evidence obtained was reliable, and would enhance the truth-seeking function if it were admitted. Excluding highly reliable evidence is likely to negatively affect the truth-seeking function of the Court, and therefore more likely to diminish the repute of the administration of justice: R. v. Cote, 2011 SCC 46 , at para. 47 . Furthermore, drinking and driving offences are a serious problem in Saskatchewan, and society has a strong interest in seeing that cases such as this are dealt with on their merits.

Analysis of this factor weighs in favour of admitting the evidence. [ 44 ] In balancing the three factors, I must keep in mind the long-term and prospective repute of the administration of justice. Focusing on this particular case becomes less important than focusing on the long-term impact of admitting the evidence obtained by infringement of Charter rights. This is not a mathematical exercise, but rather a qualitative one: R. v. Grant , supra , at paragraph 86 . There is no overarching rule that governs how a Court is to strike this balance.

No single consideration should be permitted to trump other considerations: R. v. Grant , supra; R. v. Cote, supra. [ 45 ] In this case, I consider the breach to be of moderate seriousness, as was its effect on Mr. Kreiser’s Charter -protected rights. On the other hand, the evidence obtained was highly reliable and was obtained through non-intrusive means. While society clearly has an interest in seeing criminal cases decided on their merits, there is also a compelling societal interest served by the protection of individual legal rights.

When these factors are weighed and balanced, I am satisfied that admitting the evidence, in the circumstances of this case, would bring the administration of justice into disrepute. Accordingly, the remedy of exclusion of evidence pursuant to section 24(2) of the Charter is warranted. CONCLUSION [ 46 ] The Certificate of Qualified Technician will not be admitted as evidence on the trial.

J.D. Kalmakoff, J