Her Majesty the Queen - v. -, 2013 SKPC 164

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 164 Date: October 31, 2013 Information: 24433370 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Bradley E. Harvey Appearing: Rob Parker For the Crown Dave Halvorsen For the Accused JUDGMENT M. GORDON , J [ 1 ] Bradley E. Harvey is charged that on the 31 st day of March 2012, at Moose Jaw District in the Province of Saskatchewan did: (1) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

b) of the Criminal Code ; (2) while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle contrary to s. 255(1) and s. 253(1) (

a) of the Criminal Code .

[ 2 ] The Crown elected to proceed summarily and the trial took place before me on September 26, 2013. [ 3 ] Prior to trial, the defence filed a notice under the Canadian Charter of Rights and Freedoms claiming that Mr. Harvey’s Charter rights were infringed pursuant to s. 8 , the right to be secure against unlawful search or seizure and s. 9 , the right to be free from arbitrary detention. The notice also stated that Mr. Harvey’s rights to be able to retain and instruct counsel without delay and to be informed of that right were breached contrary to s. 10(

b) of the Charter . The defence asks for exclusion of the Certificate of Analyses pursuant to s. 24(2). [ 4 ] At the commencement of trial, all the evidence to be heard at trial was called in a voir dire and it was agreed by the parties that all admissible evidence from the voir dire would be admitted as evidence in the trial proper. THE EVIDENCE [ 5 ] Cst. Hill was the only witness for the Crown. He has been a member of the RCMP for 12 years and is currently with the Moose Jaw Organized Criminal Investigation Unit.

At the time of the alleged offence, he was employed at the RCMP Moose Jaw Detachment and was on routine patrol in his full working uniform in a marked police vehicle on Highway #363 southwest of Moose Jaw. Cst. Hill observed a vehicle westbound on Highway #363 which was driving slower than the 100 kilometre per hour posted speed limit. At 12:59 a.m., the officer stopped the vehicle to check for licence, sobriety and vehicle registration. [ 6 ] The accused pulled over onto the shoulder when signalled to do so and parked on the shoulder and parallel to the white line. Cst.

Hill approached the driver’s side and asked for the driver’s licence and registration and where the driver was going and coming from. The officer noted the accused looked for his wallet and fumbled getting his driver’s licence from his wallet. The officer also noted a strong odour of beverage alcohol coming from the vehicle. He noted Mr. Harvey to appear to be in a stupor, have a droopy look to his face, delayed responses, red and glossy eyes, and slightly slurred speech. In addition there was the smell of burnt marihuana in the vehicle.

The officer made these observations while standing at the driver’s side door. All these observations were made within the first minute of the stop. [ 7 ] Cst. Hill asked Mr. Harvey to step out of his vehicle and come back with him to the police vehicle. This time the officer noted the accused was slightly swaying. He described this as enough of an off kilter movement that it was noticeable. The accused was walking into the wind and went back and forth an inch or two. It was a clear night and there was no snow on the road. [ 8 ] Somewhere between 1:01 and 1:02 a.m., Cst. Hill told Mr.

Harvey he was under arrest for impaired driving. He did a pat down search of the accused and then placed Mr. Harvey in the rear of the police vehicle. At 1:02, the officer read the breath demand to Mr. Harvey. Mr. Harvey said he understood. At 1:03, the officer again advised Mr. Harvey he was under arrest for impaired driving and read him his Charter rights. Mr. Harvey said he understood and that he did not want to contact a lawyer right now. Subsequently the officer read the police warning and again Mr. Harvey said he understood. [ 9 ] The officer then proceeded to search Mr.

Harvey’s vehicle incidental to arrest. He found some drug paraphernalia as well as a 750 millilitre bottle of Crown Royal, one-third full and a two litre cold bottle of Coke, three-quarters full. The officer opened the Coke and he noted it did not appear to have any alcohol in it. As a result, the officer returned to the police vehicle and placed Mr. Harvey under arrest at 1:15 a.m. for possession of a controlled substance. Mr. Harvey was again read his Charter rights and asked if he understood and Mr. Harvey indicated he understood and that he did wish to call a lawyer now.

At 1:15, the police warning was also read to Mr. Harvey. [ 10 ] Cst. Hill contacted the Moose Jaw Police Services to determine if a breath technician was available and subsequently drove directly to the Moose Jaw City Detachment, leaving at 1:23 and arriving at Moose Jaw at 1:33. Before leaving for Moose Jaw, the officer with Mr. Harvey’s consent moved the Harvey vehicle closer to the ditch. Highway #363 is narrow and the officer felt it would be safer if it was almost off the shoulder. There was some discussion about the interior light of Mr. Harvey’s vehicle not going off.

The officer was concerned that the battery could be dead by the next morning if this was not solved and he asked Mr. Harvey how to ensure

the light was turned off. Mr. Harvey was able to tell him about the switch on the vehicle to ensure the interior light did go out. [11] When they arrived at the police detachment, Mr. Harvey was taken to the booking in area. At the end of the booking inprocedure Mr. Harvey stated “oh I screwed up my signature” when signing for his personal items. As well, about this time, Mr. Harveynoticed a sign above the bench in the waiting area and Mr. Harvey asked “what does that mean, one bracelet?” The sign actually readblanket, not bracelet. Mr. Harvey joked about his mistake. [12] At 1:46 a.m., Cst. Hill asked Mr.

Harvey if he wanted to contact a lawyer. Mr. Harvey said he had a lawyer in mind but it wasa family lawyer and he didn’t think that would be too useful so he inquired of the officer what difference would it make if he called thelawyer. Cst. Hill quite properly said that “I can’t say anything, I just have to give you the information. There is a Legal Aid number andthere is a phone book”. He advised Mr. Harvey that he had to make his own decision of who and what kind of lawyer to call. At thatpoint, the accused, according to Cst. Hill, gave a definite and direct “no” and stated “I just want to get my tests over”.

The officer toldhim if you want to call a lawyer at any time, let me know. The issue of counsel never came up again. [13] As the observation period was complete Cst. Flanagan, the Intoxilyzer technician, called Mr. Harvey into the Intoxilyzerroom and two samples of the accused’s breath were obtained. The Certificate of Analyses was entered as Exhibit P-1 on the voir direindicating readings over the legal limit. [14] On cross-examination, Cst. Hill admitted he had an approved screening device with him that evening.

It was his view and hisopinion that he had grounds to make the Intoxilyzer demand pursuant to s. 254(3) and that the ASD was unnecessary. [15] The events in question were recorded on video and most of the video was played in Court. By agreement the videorecordings were entered as Exhibits P-2 and P-3 respectively on the voir dire. [16] The accused was charged and served with all the necessary documentation including the Promise to Appear and released at3:06 a.m. ISSUES [17] After considering the written Charter notice filed by the defence and the submissions of counsel, the following issues need tobe determined:

(1) Was the officer’s arrest of Mr. Harvey for impaired driving and the subsequent breath demand based on lawful grounds? If not, hasthere been a violation of Mr. Harvey’s rights under s. 8 and 9 of the Canadian Charter of Rights and Freedoms?

(2) Has the Crown proven beyond a reasonable doubt that Mr. Harvey’s ability to operate a motor vehicle was impaired by alcohol or adrug?

(3) Have the accused’s rights been breached under s. 10(

b) as the officer failed to provide to Mr. Harvey a Prosper warning?

(4) If I find a Charter breach, what is the appropriate remedy? POSITION OF THE PARTIES [18] The Crown urges me to focus on the basics and not get sidetracked by cases from lower courts in Saskatchewan or elsewherefor that matter. The Crown referred to the legal principles as established by the Supreme Court and the Saskatchewan Court of Appeal inthe following cases: R. v. Bernshaw, [1994] 1 S.C.R. 254; R. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527; R. v. Gunn, 2012SKCA 80; and R. v. Basko, 2007 SKCA 111.

[19] The Crown suggests that in the many cases filed by the defence, the above noted cases were not considered by the trial judge. The Crown also argues that I should accept the evidence of Cst. Hill even when it appears to differ or to be somewhat at variance withwhat I saw on the video. The Crown points out the video is not recorded under ideal conditions and is subsequently of poor quality. Cst.Hill’s observations, the Crown suggests, are more accurate. [20] The defence argues that Mr.

Harvey’s rights under s. 8 and 9 of the Charter were infringed and subsequently the evidenceshould be excluded on a Grant analysis. The defence filed the following cases in support: R. v. Sedley, 2013 SKPC 59 , 2013SKPC 059; R. v. Marquart, 2013 SKPC 108; R. v. Proskie, 2013 SKPC 149; R. v. Lacasse, 2013 SKPC 157; R. v. Knaus, 2012 SKPC103; and R. v. Maslinko, 2011 ABPC 202. [21] The defence suggests these cases are illustrative of the evidence required to meet the tests as enunciated by the Supreme Courtand Saskatchewan Court of Appeal. ANALYSIS [22] The obvious starting point is whether Cst.

Hill had the requisite reasonable and probable grounds to make the Intoxilyzerdemand pursuant to s. 254(3) of the Criminal Code. If he did not, there is a breach of the accused’s rights under s. 9 of the Charter inthat Mr. Harvey was arbitrarily detained at the time of arrest. The subsequent breathalyzer tests would constitute unreasonable searchand seizure under s. 8. The question then becomes what is the appropriate remedy. [23] A warrantless search is prima facie unreasonable unless it is authorized by law, the law is reasonable and if it is carried out ina reasonable manner (R. v.

Collins, [1987] 33 S.C.C. (3d) 1).

Section 254 of the Criminal Code reads:

(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, withinthe preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment orhad the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officermay, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (

a) and (b),in the case of alcohol: (

a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demandmay be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (

b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of anapproved screening device and, if necessary, to accompany the peace officer for that purpose.

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

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose.

(3.1) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under paragraph 253(1)(

a) as a result of the consumption of a drug or of a combination of alcohol and a drug, thepeace officer may, by demand made as soon as practicable, require the person to submit, as soon as practicable, to an evaluation

conducted by an evaluating officer to determine whether the person’s ability to operate a motor vehicle, a vessel, an aircraft or railwayequipment is impaired by a drug or by a combination of alcohol and a drug, and to accompany the peace officer for that purpose.

(3.2) For greater certainty, a peace officer may make a video recording of an evaluation referred to in subsection (3.1).

(3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if a demand was not madeunder paragraph (2)(

b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person toprovide, as soon as practicable, a sample of breath that, in the evaluating officer’s opinion, will enable a proper analysis to be made bymeans of an approved instrument. [24] A warrantless search is authorized by this section. Therefore I need to consider if the police officer had reasonable grounds tobelieve that the operator of the motor vehicle Mr. Harvey had within the preceding three hours operated a motor vehicle while his abilityto do so was impaired by alcohol or a drug. In R. v.

Gunn, 2012 SKCA 80, Mr. Justice Caldwell summarised the law at paragraphs 7 and8: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” theindividual has, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer mustsubjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that beliefmust be rationally sustainable on an objective basis (see: R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254, at para. 48).

Thisdoes not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35 , 2009 SCC35, [2009] 2 S.C.R. 527, at para. 23), let alone prove its case beyond a reasonable doubt (R. v.

Bush, 2010 ONCA 554 , 2010ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simplyrequires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable andwere capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding threehours. [8] Where an individual challenges the validity of a breath-demand on the basis that the police officer’s belief was not reasonable, thequestion for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officerwould have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v.

Storrey, (SCC), [1990]1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147 , 2008 SKCA 147, 314 Sask. R. 224 at para. 17). This is a question oflaw and a trial judge’s answer to it is measured on appeal against the yardstick of correctness (see: R. v. Shepherd). [25] In this case the defence argued that the evidence does not support or satisfy the objective basis for reasonable grounds to“believe” part of the test. It is conceded that the officer had the subjective basis to make the demand. Cst.

Hill testified that he based hisopinion to make the breath test demand pursuant to s. 254(3) on the following: - driving slightly below the speed limit; - strong odour of beverage alcohol coming from the vehicle; - stupor, droopy look on the driver’s face; - delayed responses, slightly slurred speech; - red and glossy eyes; - smell of burnt cannabis marihuana; and - Mr. Harvey’s admission to consuming alcohol earlier. [26] All these observations were made in less than a minute at night on the side of the highway while the peace officer wasstanding outside the accused’s vehicle. Mr.

Harvey was unknown previously to Cst. Hill. [27] In Gunn, the Court refers with approval to R. v. Sunquist, 2000 SKCA 50 with respect to the differences between reasonablesuspicion and reasonable and probable grounds. At paragraph 15 in Gunn, Caldwell J. makes it clear the differences are as follows: [15] In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether the

observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which wasdrawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, thefactors articulated by the arresting officer need not prove the accused was actually impaired.

This is so because that is the standard ofproof reserved for a trial on the merits (i.e., proof beyond a reasonable doubt). [28] Caldwell J. goes on to say at paragraph 21 that it is not necessary for the peace officer to conduct sobriety tests or use theASD if the officer already believes he has the necessary reasonable and probable grounds to make a demand under s. 254(3). Andfinally at paragraph 22, Caldwell J. quotes with approval R. v.

Shepherd: [22] Finally, and most importantly, the simple fact that a police officer’s observations objectively support, on the one hand, an inferencewhich buttresses the officer’s belief that an accused was impaired and, on the other hand, one or more inferences of innocent orinnocuous explanation for the activity which aroused the officer’s initial suspicion is not sufficient to render the officer’s inferenceunreliable (see: R. v. Bush, at para. 58).

The standard of “reasonable grounds to believe” does not require that the arresting officer be inthe position to dispel innocent or innocuous inferences which might also be reasonably drawn from his or her observations. As noted inR. v. Shepherd (at para. 23): “…[an] officer need not have anything more than reasonable grounds to believe that the driver committedthe offence of impaired driving or driving ‘over 80’ before making the demand.

He need not demonstrate a prima facie case forconviction before pursuing his investigation.” [29] The Court also had the benefit of the video recordings which were entered as exhibits by consent of counsel. The first part ofExhibit P-1 which recorded the initial encounter between the officer and Mr. Harvey was played again at the request of the defence. While I agree the quality of the DVD is not perfect, I reject the Crown’s suggestion that I should disregard the DVDs because of the poorquality of the video when it when it differs from the police officer’s evidence.

It is my conclusion from viewing Exhibit P-1 that thepeace officer’s description of the accused and the accused’s actions do not accord with what is shown. For example, when the officertestified that the accused’s movements were slightly off kilter it is so minimal that it can hardly be seen. Likewise the facial observationsdo not carry much weight. I observed Mr. Harvey in Court and saw that he has a long face and when not smiling it looks droopy. Thered and glossy eyes are a standard observation.

However, I question in this brief encounter at the car on a dark night through thewindow, the accuracy of these observations. [30] Mr. Harvey was going slightly under the speed limit. Cst. Hill could not venture even a guess as to what “slight” meant. It isnoted that this is a two lane highway with narrow shoulders just on the outskirts of Moose Jaw on a dark night. Mr. Harvey said he wasjust driving around so it may well be this apparently decreased speed means nothing other than he was not in a hurry to get somewhere.

On the DVD the accused is observed pulling over, stopping and parking his vehicle perfectly parallel to the white line. I heard hisconversation and watched his movements. [31] It is not a requirement to use the approved screening device in every case of a suspected impaired driver. The ASD is a toolthat can assist the officer and in my view should have been used here. The police officer had an ASD with him and was an approvedoperator at the time. It is a minor intrusion, quick to administer and would have avoided any question of sufficiency of grounds under s.254(3). Judge Green in R. v.

Sedley, 2013 SKPC 59 , 2013 SKPC 059, arrives at a similar conclusion in similar circumstances. The Crown, as I have said, suggests that by the Court not referring to the relevant appeal court’s decisions that the incorrect test wasapplied by the trial judge. With respect, I do not agree. In R. v. Knaus, 2012 SKPC 103, Judge Morgan reached a similar conclusion. He found that the arresting officer had little evidence at the time of arrest even admittedly less than the evidence here. However JudgeMorgan correctly states the law without referring to any particular case.

At paragraphs 22 and 23, he states: In order to effect a lawful arrest, the arresting officer must have reasonable and probable grounds to believe that Mr. Knaus wascommitting the offence for which he was arrested. This subjective belief, if held, must be objectively reasonable. In order to assess thatquestion, it is necessary to look at the evidence that was available to that arresting officer. Facts discovered after the arrest was made arenot relevant, as such facts would not have been available to the arresting officer at the time of the arrest.

The Court is not to look at this in a piecemeal fashion; rather, the Court is to examine the totality of that evidence, and determine,essentially, whether a reasonable person in the place of the officer would have believed that reasonable and probable grounds existed forthe arrest. (See R. v. Poyntz, 2012 ONCJ 245, [2012] O.J. No. 1877, and the cases cited therein, at paragraphs 37 and 38.) [32] I accept that Cst. Hill had a subjective belief to make the arrest and the demand. However, I find on the totality of theevidence the peace officer did not have reasonable grounds to support a demand under s. 254(3).

There is not sufficient compellingevidence which objectively supports the reasonableness of the demand. In my view, reasonable grounds to believe requires somethingmore, even though the officer does not need to demonstrate a prima facie case for conviction.

[33] Mr. Harvey was detained at the time of the arrest contrary to s. 9 of the Charter. The taking of breath samples are anunreasonable search and seizure under s. 8 of the Charter. [34] Before I discuss whether the Certificate of Analyses should be excluded, I will deal with the defence argument that Mr.Harvey should have been given what is commonly referred to as a Prosper warning under s. 10(

b) of the Charter. [35] The Crown agrees that a Prosper warning applies in Saskatchewan but argues that the evidence does not support the necessityof the police officer providing this warning to Mr. Harvey. The defence argues that Cst. Hill had the Prosper warning printed on thecard from which he read the other warnings. The accused was given his rights to counsel upon arrest and clearly said “no”. Subsequently when the accused was arrested for possession of cannabis marihuana, the police officer clearly told the accused thesituation had changed and provided the rights to counsel again.

Again, after a pause, the accused replied in the affirmative. After theaccused arrived at the Moose Jaw Police Station and the booking process was complete, the accused, when asked by Cst. Hill, replied hedid want to talk to a lawyer. This was at 1:46. The accused said he had a family lawyer but that that likely wouldn’t help so the accusedsaid “Legal Aid, I guess”. At 1:51, the accused asked the police officer what difference it would make if he called a lawyer. Cst. Hillclearly replied and explained that he could not give advice to Mr. Harvey but he had to tell him that he had the right to contact a lawyer.

The accused then clearly stated he did not want to call a lawyer but just wanted to get the tests over with. [36] In R. v. Luong, 2000 ABCA 301, the Court held that the onus is on the person detained to establish a Charter breach. TheCourt set out steps to be followed in making such an assessment with respect to rights to counsel under s. 10(b).

I am not going to repeatthe list but step 9 is the relevant one here and it reads as follows: If the trial judge is persuaded that the first implementational duty has been satisfied, only then will the trial judge consider whether thedetainee, who has invoked the right to counsel, has been reasonably diligent in exercising it; the detainee has the burden of establishingthat he was reasonably diligent in the exercise of his rights. R. v. Smith (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) at315-316 and 323. [37] I do not find that Mr. Harvey was reasonably diligent in exercising his right to counsel.

There is no indication that Cst. Hillwas rushing him or pressuring him to hurry up and decided what he wanted to do. I found Cst. Hill to be patient, polite and professionalwith the accused. The officer explained to the accused what was happening from the first encounter at the roadside until his release. Mr. Harvey did not testify on the voir dire. The only evidence is from Cst. Hill concerning the accused’s clear response of “no”. It wasnot an equivocal response where further explanation was necessary. There is no suggestion that Mr. Harvey asked for time to considerwhich lawyer to call.

There is no indication Mr. Harvey was confused about his right to call a lawyer. It is clear the detainee must bediligent in exercising his right to counsel. This did not occur here. Accordingly, I reject Mr. Harvey’s application that his s. 10(

b) rightswere infringed. [38] I now come to an analysis under s. 24(2) of the Charter to determine if the Certificate of Analyses should be excludedbecause I have held that Mr. Harvey’s Charter rights under s. 8 and 9 have been breached. [39] R. v. Grant, 2009 SCC 32, stated that the trial judge must have regard to the following: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on the Charter protected interests of the accused; and 3) society’s interest in the adjudication of the case on its merits. [40] When assessing the first line of inquiry, I must consider Cst.

Hill’s actions in making the demand under s. 254(3). I haveconcluded that he disregarded a statutory requirement. Cst. Hill is an experienced officer who must be taken to know the differencebetween reasonable suspicion and reasonable grounds. He had an ASD unit with him and he was a qualified operator. The officer

should have made use of this additional tool in these circumstances. Parliament has provided an alternate screening tool for thesecircumstances. The officer made a hasty decision on grounds that would easily have supported an ASD demand. As Judge Morgan saidin Knaus at paragraph 33: Although there is nothing to suggest that the arresting officer lacked good faith, the fact remains that the arresting officer acted on nomore than a hunch in arresting for impaired operation of a motor vehicle. As was pointed out in R. v.

Harrison, 2009 SCC 34, [2009] 2S.C.R. 494, at paragraph 20: “While an officer’s “hunch” is a valuable investigative tool - indeed, here it proved highly accurate - it is nosubstitute for proper Charter standards when interfering with a suspect’s liberty”. As was noted in R. v. Anderson, 2012 SKPC 44, 2012 SKPC 044, at paragraph 23, “...further investigation was warranted in this particular instance”. [41] While I have concluded that the peace officer was patient and polite throughout his dealings with the accused, I nonethelessfind the Charter breach to be serious.

To admit the certificate when I have concluded the officer did not have reasonable grounds unders. 254(3) would sanction and allow the officer to ignore the requirements established by Parliament. [42] Under the second line of inquiry, an evaluation of the extent to which the breach actually undermined the interests protectedby the infringed right must be looked at. I have found that the search was unreasonable pursuant to the Charter. The breath testsadmittedly are minimally intrusive and the accused was released from custody by the officer shortly thereafter.

However, this does notcompensate for the fact he was arrested, searched on two occasions, placed in the back of a police vehicle, taken to the police station, andprovided self-incriminating evidence. It is true that if the officer had made the ASD demand prior to the s. 254(3) demand the accusedmay have been in the same position. However, I am concerned about the protection of the accused’s Charter protected rights. Thepolice must take sufficient investigative steps prior to arresting a person. As other cases have pointed out “non-intrusive” does notequate with “not serious”.

In my view exclusion is favoured under this ground. [43] The third branch of the test talks about society having an interest in the adjudication of a case on its merits. Grant tells us thatwe need to take a long term view of the overall administration of justice. Surely society has an interest and has to be confident that thepolice act within the law. The test of whether to admit or exclude evidence requires me to have regard to all of the circumstances todetermine if it would bring the long term administration of justice into disrepute. It is not a simple mathematical formula.

I am notprepared in this case to condone such a Charter breach. There were other avenues open to this experienced police officer. In my view,the long term repute of the administration of justice would be undermined by the inclusion of this evidence. It is in my view rarely insociety’s interests to ignore or weaken the requirements of a warrantless search and seizure. THE IMPAIRED DRIVING CHARGE [44] R. v.

Stellato, (SCC), [1994] 2 S.C.R. 478, is the well-known and accepted case that states the law withrespect to impaired driving as follows: Accordingly before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate amotor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonabledoubt as to impairment, the accused must be acquitted.

If the evidence of impairment established any degree of impairment rangingfrom slight to great, the offence has been made out. [45] The peace officer described the indicia of impairment. However, I also must consider the lack of certain observations and theshort time frame in which these observations were made. The officer noted the vehicle to be travelling slightly under the speed limitalthough he could not provide any further details. The video showed that the accused’s vehicle pulled over when signalled to do so andstopped perfectly parallel to the road on the shoulder of this two lane highway.

The only balance issue was that the accused appeared tobe a bit off kilter when he walked on this dark night going to the police vehicle. There was approximately one minute interactionbetween the officer and the accused prior to placing Mr. Harvey under arrest. The verbal interaction between the two indicated that theaccused understood and was able to respond appropriately to the police officer’s questions. The incidents at the police detachment aboutmisreading the sign and not writing his signature properly shed little weight in this context.

This occurred some time later after the arrestwhen the accused was at the police station and arguably in more jeopardy. [46] The lack of certain observations must be considered. There was no evidence to indicate bad driving. The only evidence was

the accused going slightly slower than the speed limit. I have already found that all of the officer’s observations were made quickly and some do not accord with what I saw on the video. Therefore, when I consider the totality of evidence, the conflicting signs of impairment coupled with the lack of any other driving pattern, I have a reasonable doubt as to the accused’s guilt on this charge. M. Gordon, J