2011 MBPC 66, 2011 MBPC 66

Citation # 2011 MBPC 66 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Michael Himmelman, for the Crown ) - and - ) ) Gregory Ferland ) Mark Wasyliw, for the Accused ) ) ) Judgment delivered: ) October 6, 2011 W. GARRECK, P.J. Decision on Voir Dire Introduction [ 1 ] Gregory Ferland is charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded eighty milligrams in 100 millilitres of blood. [ 2 ] Counsel has argued against the admissibility of the certificate of analysis on this voir dire.

Issues: [ 3 ] Was the roadside approved screening device (ASD) sample obtained forthwith? [ 4 ] Did the detention for the ASD sample take place in a parking lot? If so, does

section 76.1 of the Highway Traffic Act apply to parking lots which allows suspension of the right to counsel prior to compliance with the roadside demand? [ 5 ] Was there a breach of

section 10(

b) of the Charter or was there a valid waiver of the right to counsel prior to compliance with the breath demand? [ 6 ] If there was a Charter breach, should the certificate of analysis be excluded pursuant to s.24(2) of the Charter ?

Summary of the Evidence relating to these Issues: [ 7 ] On February 26, 2010, Powerview-Pinefalls R.C.M.P. were conducting check stops for drivers’ sobriety off Highway 304, on a road leading to the Paper Town Motor Inn. [ 8 ] Constable Pleskacz testified he was stopping vehicles coming from the Paper Town Motor Inn. He testified there was a well travelled, two-lane, snow covered path leading from the bar at the back of the Paper Town Inn to the roadway connected to Highway 304 and a service road running parallel to Highway 304.

He said most of the vehicles being stopped were coming from the bar area of the Paper Town Inn, but some may have come from the parking lot in front of the Inn. [ 9 ] Constable Pleskacz agreed on cross-examination there were no medians, lines or barriers dividing the parking lot area from the roadway to the bar. He agreed it was private property that Mr. Ferland had travelled to get to the check stop. Constable Pleskacz believed he was acting under the authority of the Highway Traffic Act . [ 10 ] Constable Pleskacz testified he stopped Mr. Ferland at about 11:45 p.m. He spoke to Mr.

Ferland at the driver’s side window and noticed an odour of liquor from his breath almost immediately. He continued to talk to Mr. Ferland for about two minutes to determine if he was impaired. [ 11 ] Mr. Ferland provided a Manitoba photo driver’s licence and Constable Pleskacz confirmed his identity as Mr. Gregory Ferland with a date of birth January 31, 1977.

[ 12 ] Constable Pleskacz said he formed a suspicion at 11:45 p.m. that Mr. Ferland may have consumed alcohol just prior to driving and may have alcohol in his blood. He did not see any overt signs of impairment in his dealings with Mr. Ferland. [ 13 ] Constable Pleskacz asked Mr. Ferland to park his vehicle in front of the cruiser car and accompany him to provide a sample of breath into a roadside screening device. [ 14 ] Mr. Ferland parked his vehicle in front of the cruiser car, left the engine running, and exited his vehicle. At the request of Constable Pleskacz he attended the cruiser for the ASD test.

At the rear passenger side of the cruiser, Constable Pleskacz did a pat down of Mr. Ferland’s pockets and ankles for weapons or items that might cause him harm. He then directed Mr. Ferland into the back of the cruiser car. [ 15 ] Constable Pleskacz testified the reason he took Mr. Ferland to the cruiser car to administer the ASD was for officer safety. He indicated the road conditions were icy, there was a fair amount of traffic in the area and he had no idea who Mr.

Ferland was or what he might have inside his vehicle. [ 16 ] He testified he would not administer the ASD to a person in their own vehicle because of officer safety issues and concern for the safety of the screening device and the results. [ 17 ] Constable Pleskacz sat in the front seat of the cruiser where he conducted checks on the computer system used by the R.C.M.P. and on the Motor Vehicles Branch database. The checks were to confirm the status of Mr. Ferland’s drivers licence and to confirm whether there were any warrants or issues to cause concern for his safety.

He agreed he did not have any reason for specific concern about Mr. Ferland. [ 18 ] He advised that the checks were done by calling the communication center and waiting for a response because the computer in his car was not working that evening. He agreed the response from the communication center was a bit slower on this evening as the radio traffic was busier than usual. He said it may have taken a minute or two longer than usual but because he expected the reply to come back momentarily he waited before proceeding further.

He updated his notes while waiting. [ 19 ] A camera inside the cruiser car was recording the incident. However, the microphone was not turned on until part way through the incident; therefore, most of the video does not capture any of the audio. Once the microphone was turned on the only audio captured is that of Constable Pleskacz. Constable Pleskacz testified that the time stamp on the video was about 4-5 minutes slower than the time on his watch that he was using when recording his notes. [ 20 ] Constable Pleskacz could not recall talking with Mr.

Ferland about hockey or the World Junior final that was on that night. [ 21 ] Constable Pleskacz testified he made the ASD demand at 11:55 p.m., prepared the device, gave instructions to Mr. Ferland and received the sample at 11:59 p.m. The results of the analysis were received at 12:01 a.m. registering “fail”. [ 22 ] Mr. Ferland was arrested for driving over the legal limit at 12:01 a.m. and a breath demand was made at that time. Constable Pleskacz testified that he explained the reason for arrest again because he did not feel Mr.

Ferland had given a confident yes to understanding same so he wanted to be sure he understood. He also explained the breath demand again after Mr. Ferland said he did not understand initially. [ 23 ] After the breath demand was made, Mr. Ferland was provided notice of his right to counsel which was how Constable Pleskacz was trained to do it. • Constable Pleskacz read the

section 10(

b) rights from the card in his notebook. • Mr. Ferland said “yes” in response to “Do you understand?” • Mr. Ferland said, “I’d like legal representation yes” in response to “Do you want to call duty counsel or any other lawyer?” • On the video, Constable Pleskacz is then heard saying, “So you want to call a lawyer tonight?” and, “No it means before we go any further tonight you can call a lawyer just on the phone” • Mr. Ferland’s responses are not recorded on the video [ 24 ] Mr. Ferland was read the police charge and caution to which he replied his understanding.

On the audio recording, Constable Pleskacz is heard saying, “Ya too much celebration”, and “so you are a teacher in town here? Not good for you to be doing this.” [ 25 ] Constable Pleskacz leaves the area of the check stop with Mr. Ferland in the back of the cruiser car at 12:04 a.m. and they arrive at the R.C.M.P. detachment in Powerview-Pinefalls at 12:07 a.m. The video recording ends when the car is turned off at the detachment at 12:08 a.m. [ 26 ] Once inside the detachment Constable Pleskacz testified that he told Mr.

Ferland words to the effect: now is the time to call a lawyer, or here is your opportunity to call a lawyer. He recorded in his notebook, “Ferland now declines a lawyer.” He did not record this conversation verbatim. [ 27 ] Constable Pleskacz said he then read the waiver of right to counsel from the card in his notebook, which included advising Mr. Ferland that he had to be given a reasonable opportunity to try to contact duty counsel or any other lawyer and a phone and phone book would be provided. [ 28 ] Constable Pleskacz testified that Mr.

Ferland said he understood the waiver and when asked if he wanted to call duty counsel or any other lawyer he replied “no”.

[ 29 ] On cross-examination, Constable Pleskacz said he did not recall Mr. Ferland saying he wanted to see a lawyer once they were at the detachment. During cross- examination Constable Pleskacz was asked; did you tell Mr. Ferland if he wanted to see a lawyer he would be lodged in cells till morning as they were not available at that time of night but that if he gave a sample he would be released. Constable Pleskacz said he did not have this conversation with Mr. Ferland. [ 30 ] Constable Pleskacz said he provided Mr. Ferland his opportunity to call a lawyer and Mr. Ferland declined. [ 31 ] Mr.

Ferland then provided a sample of his breath for analysis and a certificate of analysis was obtained which the Crown seeks to have tendered as evidence. [ 32 ] Mr. Ferland testified he is 34 years old and works as a program manager for adult students at the Sagkeeng High School where he has worked for 3 years. [ 33 ] He testified he was driving from the Paper Town Inn on his way home after watching highlights from the World Junior final game. He indicated the R.C.M.P. waived him over and spoke to him at the driver’s window.

He was asked where he was coming from to which he answered, and they talked about the hockey game. He was asked if he had anything to drink at the bar and he said no. [ 34 ] He said the officer explained they were doing random checks for drinking and driving. He pulled his car over and went into the cruiser car. In the cruiser car they still talked mainly about hockey, as well as his work and the roadside test. He was told by the officer that he would be doing a test. The officer was writing notes while they talked hockey in the cruiser car. [ 35 ] Mr.

Ferland said at the detachment he was told he would be doing another test and he could not recall the room or what it was called but he recalled that the breathalyser was mentioned. He also said the officer mentioned a lawyer and he said yes he would like legal representation. [ 36 ] Mr. Ferland testified he was advised and requested legal representation in the cruiser car prior to the officer making the ASD demand. [ 37 ] Mr. Ferland believed Constable Pleskacz asked him if he wanted to speak with a lawyer at the detachment and he said yes he wanted legal representation.

He said at that point the officer told him if he tried to get a lawyer, since it was after midnight, he would have to wait until morning and then he could speak to a lawyer around six or seven in the morning and after that he would be released. Rather than wait and be locked up Mr. Ferland said he felt fine so he thought he would go ahead with the testing. [ 38 ] Mr.

Ferland also said in his evidence that he would have talked to a lawyer if one was available but he was told because they were out in Pine Falls, and Selkirk and Winnipeg were too far, he would have to wait till morning for one to come out to speak with him. [ 39 ] On cross-examination, he again said he had no problems with the officer other than when he told him he would have to wait until morning to speak to a lawyer. [ 40 ] Mr. Ferland testified he did not understand he was under arrest but knew he was stopped for a breathalyser. He could not recall the officer advising he was under arrest.

When asked in court if he heard on video the officer saying he was under arrest, Mr. Ferland said no he did not hear that on the video in court. He agreed he had difficulty recalling the words of the officer on this point. He did recall being told about the roadside screening and getting detailed instructions on how to provide the sample, which he understood. [ 41 ] Mr. Ferland agreed the incident was 1.5 years ago but said he recalled it clearly other than a few details. [ 42 ] Mr.

Ferland at first said he pulled up behind the cruiser car because he did not want to drive through a check stop but on cross- examination said he did not know it was a check stop until after the officer explained that to him. [ 43 ] Mr. Ferland said he knew the officer wanted to check his blood for alcohol. He said he also knew the check stop was to check for drinking and driving. On cross-examination, when asked if he knew the officer wanted him to do the test to see if he had been drinking and driving, Mr. Ferland simply stated that he knew the officer wanted to check his blood for alcohol.

He would not agree he knew the officer wanted to check to see if he had been drinking and driving. [ 44 ] Mr. Ferland testified that he had not more than two drinks at home before he went to the Paper Town Inn at about 10:30 p.m. [ 45 ] On cross-examination, Mr. Ferland said he was told about a lawyer before he was told about the ASD demand. He agreed he was having trouble remembering the order of the conversation and bits and pieces of the conversation with the officer. Analysis: ISSUE 1: Was the ASD sample provided forthwith? [ 46 ] I conclude the ASD sample was provided forthwith.

The stop was at 11:45 p.m., the demand was made at 11:55 p.m. and the result was obtained at 11:59 p.m., 14 minutes from the initial stop. [ 47 ] Counsel argued the following events were unnecessary and unrelated to the gathering of the sample: • Making the accused exit his vehicle and go to the cruiser car • the pat down search resulting from the unnecessary request to go into the cruiser car • checking CPIC and the Motor Vehicle Data base and waiting for a response from the communication center via radio before taking the sample

• not getting the device ready or explaining the procedure while waiting in the cruiser car • updating officer’s notes prior to administering the screening test [48] The case law refers to the dictionary definition of forthwith being immediately or without delay. The reason the test must beforthwith is because individuals’ rights are suspended during this detention which is meant to be as brief as possible. The officer is not toengage in tasks unnecessary or unrelated to the purpose of the stop and administration of the screening device.

The cases conclude thatthere should be no undue delay and the test should be done as quickly as possible in the circumstances. [49] In this case I find that nothing the officer did was unrelated to the taking of the test. While the tasks may not have beennecessary in the sense of physically required to obtain the sample they were nevertheless necessary to the process. [50] Constable Pleskacz formed his suspicion that Mr. Ferland had been drinking and within two minutes made the demand for theroadside test. The two-minute investigation was to determine if there were grounds to believe Mr.

Ferland was impaired and proceeddirectly to a breathalyser test rather than the roadside test. [51] Mr. Ferland was immediately taken to the cruiser car for the purpose of providing a sample of breath. The brief pat downsearch and computer check was conducted for officer safety reasons and to confirm licence status. [52] I find it is reasonable for an officer to remove a person from their vehicle to the back of the cruiser car to ensure the safety ofthe individual and the officer. There are many factors facing an officer in such circumstances many of which are unknown and notnecessarily immediately predictable.

In this case, the officer was concerned about the icy road he was standing on, he was concernedabout the flow of traffic and he was also concerned in general for what might be inside the person’s vehicle that could cause harm ifused. [53] I infer from the officer’s evidence that the safety and integrity of the sample depends on administering the test in a controlledenvironment away from outside risks.

It is reasonable for the officer not to put his hand through the window of the person’s vehicle andallow them to blow and it is reasonable not to hand the device to the person without securing the device. [54] The computer checks conducted by the officer were simultaneously done to verify outstanding warrants, security risks anddrivers licence status. The check for drivers licence status is one authorized by the Highway Traffic Act.

If the check is legallyauthorized then it matters not whether it is done before or after the roadside screening test is administered, it still requires a briefdetention to retrieve the information. [55] I infer from the evidence of Constable Pleskacz regarding checks under the Highway Traffic Act that whether the roadside testwas done first or not, would not have made any difference in the time Mr. Ferland was detained.

He would have remained detained untilthe licence status was verified before he would have been allowed on his way. [56] I do not find that the time required to conduct these relatively brief computer checks (keeping in mind that on this occasion itmay have taken a couple of minutes longer than usual), impacted the sample being obtained forthwith. I find the checks were anecessary part of the process of conducting the roadside test in a safe manner.

The notes were updated during this process not resultingin any further unnecessary delay. [57] Once the physical process of gathering the sample began, it took a total of 4 minutes from start to result. The total time of thedetention being 14 minutes. I am satisfied in this case there was compliance both with the requirement of “forthwith” and the implicitprinciple from R. v. Dewald referred to in R. v.

Boutamine (2004), ONCJ 264 at page 5: “the public interest in detecting suspect drivers permits only a brief investigative detention, delaying and interfering as little as possiblewith the accused’s constitutional rights.” [58] I find the officer proceeded “as quickly as is reasonably possible in the circumstances to minimize the intrusion on the subject’sliberty”. R. v. McMahon (2002), (SK PC), 228 Sask. R. 217. ISSUE 2: Did the detention for the roadside screening sample take place in a parking lot? If so, does

section 76.1 of the HighwayTraffic Act apply to parking lots which allows for suspension of the right to counsel prior to compliance with the roadsidedemand? [59] Counsel argued the portion of the road Mr. Ferland travelled to get to the check stop was a parking lot on private property. Assuch, he argued

section 76.1 of the Highway Traffic Act does not apply to parking lots; therefore, he says the police had no lawfulauthority to detain Mr. Ferland pursuant to the section. (See Appendix for Highway Traffic Act

section 76.1) [60] Counsel for Mr. Ferland argued that R. v. Orbanski,

(2005) S.C.C. 37, which held the right to counsel is suspended for theduration of the detention under s.76.1, does not apply to this situation and as such Mr. Ferland was entitled to his right to counsel upondetention. [61] I conclude from the evidence the area from which Mr. Ferland travelled was in fact a parking lot or the roadway leading to andfrom the parking lot. He was not on a highway as defined under the Highway Traffic Act until he was directed by the officer to pull ontothat portion. It is clear from the evidence that Mr.

Ferland had every intention of proceeding onto the highway but had not yet reached itat the time of the stop by the R.C.M.P. [62] I accept counsel’s argument that Mr. Ferland was not on a highway when he was flagged over by police at the check stop. However, having accepted counsel’s argument that this was a parking lot I find that

section 76.1 of the Highway Traffic Act does applyto a parking lot in this situation. I arrive at this conclusion based on

section 236 of the Highway Traffic Act. (see Appendix)

[63] I agree with the decisions of R. v. Duma, 2011 MBPC 19, R. v. Leslie (unreported decision of Judge Lerner, ManitobaProvincial Court May 2, 2011), and R. v. Bedernjak, 2011 MBQB 47. The issue has been decided after very careful analysis and I agreecompletely with the analysis done in the cases noted. [64] I agree with Judge Lerner in R. v. Leslie (supra) at line 26 page 8: “Applying this principle of statutory

interpretation to

section 236, I conclude, for the reasons described above and applying the principleof statutory

interpretation set out in Markevich, that it would lead to an absurd result if the rights and duties of motorists in parking lotsreferenced in

section 236 as being the same as those of motorists on a highway were interpreted as encompassing, everything but therights and duties associated with the investigation by police of perhaps one of the greatest hazards on the highway, that of impaireddriving and its related offences.” And page 9 line 4: “Further, if persons operating motor vehicles on parking lots have the same rights and duties as persons operating motor vehicles on ahighway, then the rights of such persons must logically include the limitation on the right to counsel set out in

section 76.1(6), alimitation which applies to persons operating motor vehicles on a highway. [65] I agree with Judge Lerner that the case of R. v. Bowler, 2007 MBQB 200 , 2007 M.J.291, is distinguishable on itsfacts. Bowler was a case very clearly dealing with an abandoned service station lot that no longer functioned as a parking lot or any lotthat the public readily accessed. Whereas, in this case the Paper Town Inn lot in which Mr. Ferland was driving is an area well travelledand highly accessed by the public as a parking lot and passageway to the beverage room and hotel.

This was not a piece of privateproperty no longer utilized for public access to any business or parking lot. [66] I conclude, as did Judge Lerner, that

section 236 of the Highway Traffic Act renders the provisions of

section 76.1 applicable toparking lots. There was no need to provide Mr. Ferland his right to counsel before administering the roadside test as that right wassuspended for the duration of the detention under s.76.1 of the Highway Traffic Act. [67] I conclude there was no breach of Mr. Ferland’s right to counsel prior to compliance with the roadside test. ISSUE 3: Was there a breach of section10 (

b) of the Charter or was there a valid waiver of the right to counsel prior tocompliance with the breath demand? [68] I find there was no breach of Mr. Ferland’s right to counsel. I find there was a valid waiver of the right to counsel by Mr.Ferland. [69] The onus is on Mr. Ferland to establish a breach of his right to counsel on a balance of probabilities. However, in this casethere is no dispute that Mr. Ferland asserted his desire to contact counsel; therefore, the onus shifts to the Crown to prove beyond areasonable doubt that there was a valid waiver of that right. [70] I first consider Mr.

Ferland’s evidence and determine if I accept his evidence. I do not accept Mr. Ferland’s evidence. Mr.Ferland’s evidence was not completely clear on whether he was told he would have to wait until morning to speak to a lawyer or whetherhe would have to wait until morning to see a lawyer in person. He testified to both. [71] Regardless, I do not accept that Mr. Ferland was told either of these things by the officer. I reject Mr. Ferland’s evidence aftercareful review of it in its entirety.

While some of these points may seem minor they nevertheless add to the overall assessment of hiscredibility. [72] He initially said he stopped behind the cruiser car because he did not want to drive through a check stop, but then in cross-examination said he did not know it was a check stop until he was told so by the officer. He would not acknowledge the apparentcontradiction in his position. [73] Mr. Ferland said he could not recall the officer advising him he was under arrest, and when asked about hearing it on the videoplayed in court he said he did not hear it on the video.

He acknowledged difficulty recalling some of the specific conversation with theofficer, this being one of the examples. He agreed he had trouble recalling the order of the conversation with the officer and bits andpieces of the conversation given it happened over a year and a half earlier. [74] Mr. Ferland agreed on cross-examination he knows a check stop is for detecting drinking and driving and he was told by theofficer that this check stop was to detect drinking and driving. He knew the officer wanted a sample of his breath to see if he had anyalcohol in his blood.

However, he would not agree with the simple conclusion that he then knew the officer was checking to see if hewas drinking and driving. [75] He says the officer asked him if he wanted to call a lawyer prior to being asked to provide the sample of breath into the ASD inthe cruiser car. I do not accept that this happened in this order. Even though Mr. Ferland acknowledged he was having trouble recallingthe order of things he did not say this was so in relation to his assertion of the timing of being advised of his right to counsel. [76] Mr.

Ferland testified that he had two drinks of alcohol as he watched the hockey game at home. He was not able to say whattime he had the drinks or exactly how much alcohol was in each glass although he spoke about using a shooter glass. He said he had onedrink between each period of the hockey game.

[77] Mr. Ferland’s evidence is too unreliable to place any weight on it. He refuses to acknowledge the obvious in certain details forno apparent reason. [78] Mr. Ferland says the officer told him he would have to wait until morning to be seen by a lawyer or to speak to a lawyer, and Isimply do not accept this evidence in light of all the evidence I have before me. This includes an audio tape of portions of theconversation in the cruiser car. [79] On the audio tape recording in the cruiser car, Mr.

Ferland was very clearly advised of his right to counsel which includedbeing told he could call duty counsel or any other lawyer. He did not dispute being told this. He was at that time asked, “so you want tocall a lawyer tonight”, and it was clarified, “no it means that before we go any further tonight you can call a lawyer just on the phone”. The officer is very clearly heard explaining this to Mr. Ferland on the audio recording from the cruiser car. The officer was not crossexamined on this evidence [80] Given the evidence that right to counsel was explained to Mr.

Ferland in the cruiser car and he was clearly told that meant “juston the phone”, and was asked if he “wanted to call a lawyer tonight”, I reject Mr. Ferland’s evidence. I do not believe that he was told hewould have to wait until morning to see or speak to a lawyer. I do not accept or believe that Mr. Ferland was told something different atthe detachment. His evidence does not raise a reasonable doubt on whether this was said to him. [81] Mr. Ferland was advised at the detachment of the waiver of right to counsel which was read verbatim from a card.

The waiverclearly indicates he could call duty counsel or any other lawyer and he would be given access to a phone and phone book. Mr. Ferlanddid not deny that the waiver was explained to him nor did he say he did not understand the waiver. When Mr. Ferland goes on to say hewas told he would have to wait until the morning it is inconsistent with all the other evidence before me and it does not raise a reasonabledoubt in the context of all the evidence before me. [82] It is not clear from Mr.

Ferland’s evidence whether he was saying he thought he had to wait to speak to a lawyer or if hethought he had to wait to see a lawyer, until morning. He may have believed in his mind he wanted to see a lawyer in person and wouldhave to wait until morning rather than speak to one on the phone at the time. He did not make it clear in his evidence what he wasthinking. [83] However, if Mr. Ferland had either belief and I am not satisfied from his evidence that he did, then it was not from anythingsaid to him by the officer.

In fact, the opposite was said to him when the officer clearly advised him on the audio that his right to contactcounsel meant “just on the phone” in reference to “tonight”. I do not accept that after taking the time to clarify this, the officer wouldthen go on to tell Mr. Ferland he would have to wait until morning. [84] Having rejected Mr. Ferland’s evidence and having found it does not raise a doubt on the issue of whether he waived his rightto counsel, I look to the remainder of the evidence that I do accept to determine if the Crown has satisfied me beyond a reasonable doubtthat Mr.

Ferland waived his right to counsel. [85] I accept the officer’s vive voce evidence in court as well as the evidence from the audio recording. Based on this evidence it isclear that Mr. Ferland was provided with an explanation of what his right to counsel involved. In the cruiser car Mr. Ferland wasadvised that this meant only that he could call a lawyer on the phone “tonight”. He was again asked if he wanted to call “tonight”. [86] At the detachment, I accept the officer did give him the opportunity to contact counsel as Mr. Ferland himself said. I alsoaccept the officer’s evidence that he did not tell Mr.

Ferland he would have to wait till morning to speak to a lawyer, nor did he tell himhe would be held in cells if he wanted to do that, nor did he say he would be released after giving the sample if he did not wait to speak toa lawyer. [87] Notwithstanding that the officer did not record the initial comment made and reply back from Mr. Ferland at the detachment,he was adamant he did not say these things to Mr. Ferland. He then read and recorded the waiver of counsel and Mr. Ferland’s responseverbatim. [88] The waiver made it very clear to Mr. Ferland that he could call a lawyer right away.

If there was any misunderstanding of thatright it was not caused by anything said or done by the officer, nor was any misunderstanding communicated to the officer. [89] I do not accept Mr. Ferland’s evidence when he says he misunderstood and thought he would have to wait until morning for alawyer. There is no evidence before me that the officer would have been aware of such a misunderstanding even if Mr. Ferland did infact have such a misunderstanding. [90] There was evidence that Mr.

Ferland communicated not fully understanding the arrest or the breath demand and in each casethe officer made a point of clarifying both requirements. There was no evidence of any misunderstanding on the part of Mr. Ferland ofhis right to counsel nor did he verbalize any such misunderstanding to the officer. [91] Having found that Mr. Ferland indicated a clear understanding of his right to counsel and waived that right after initiallyindicating a desire to call counsel, I find there was no breach of his right to counsel. [92] Having concluded there was no breach of Mr. Ferland’s Charter rights.

I conclude the certificate of analysis is admissibleevidence in the trial. ISSUE 4: If I am wrong on whether there was a breach of Mr. Ferland’s s.10(

b) rights should the certificate of analysis beexcluded from the evidence under section24(2) [93] Mr. Ferland must establish that admitting the certificate into evidence would bring the administration of justice into disreputepursuant to the decision of R. v. Grant 2009 SCC 32 , [2009], S.C.J. No.32.

[ 94 ] If Mr. Ferland’s

section 8, 9 or 10(

b) rights were violated there would be a temporal and causal connection between the roadside screening result, the breathalyser results and any breaches of Mr. Ferland’s Charter rights. [ 95 ] If there were any Charter breaches in this case I do not find them to be serious. The length of the stop before obtaining the roadside sample results was minimal and for valid reason. Therefore, even if the sample was not forthwith I find it was not a serious violation of Mr. Ferland’s rights.

The results of the screen test were not admissible as evidence but only as reasonable and probable grounds for the breath demand. [ 96 ] I find in this case there was no wilful or flagrant disregard for Mr. Ferland’s rights that the court needs to distance itself from. Counsel argued that I should take into account the fact the officer made the breath demand prior to advising Mr. Ferland of his right to counsel. Nothing flowed from this order of reading the demand and the rights. Nor do I think this necessarily leads to a conclusion that the officer was violating Mr.

Ferland’s rights. [ 97 ] The requirement to provide a breath sample is one which is a matter of statute and not one which the individual has a choice to exercise freely. While accused persons are by law entitled to obtain legal advice about their situation prior to complying with the breath demand, they are also required by law and threat of criminal sanction if they do not comply.

Thus, in this situation a violation of right to counsel while serious is less serious than a situation where an accused is asked to voluntarily provide a statement or participate in a process, otherwise not required by law, which could result in incriminating evidence. [ 98 ] I do not find there was a wilful or flagrant disregard of Mr. Ferland’s rights in this case. If there was any violation it was through inadvertence and the miscommunication of a lack of understanding on the part of Mr. Ferland, not a deliberate attempt on the part of the officer to undermine Mr. Ferland’s right to consult counsel.

In fact the officer was very careful to explain the process to Mr. Ferland at each step of the investigation and re-explained where he felt necessary or where asked by Mr. Ferland. [ 99 ] The breath sample was obtained with minimal intrusion on Mr. Ferland’s privacy, bodily integrity, and dignity and is highly reliable. The breath sample is necessary to the truth seeking function of the trial process.

In Grant (supra) , the court used breath samples as an example of evidence which will often be admitted because of the relatively non-intrusive collection method. [ 100 ] The exclusion of the certificate would undermine society’s interest in adjudication on the merits, which is high in cases involving drinking and driving while under the influence of alcohol. I conclude in all the circumstances exclusion of the evidence would bring the administration of justice into disrepute. [ 101 ] I would not exclude the evidence under section 24(2) of the Charter even if I had found evidence of any breaches of Mr.

Ferland’s rights. Conclusion: [ 102 ] Having found no Charter breaches, the motion to exclude the certificate of analysis is denied, and the evidence will be admitted at the trial. “ORIGINAL SIGNED BY:” WANDA GARRECK, P.J.