R. v. Wood Date:, 2014 BCPC 13

Citation: R. v. Wood Date: 20140203 2014 BCPC 0013 File No: 221737-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SCOTT ROBERT DAVID WOOD RULING ON VOIR DIRE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: J. Medjuck Counsel for the Defendant: H. Hunter Place of Hearing: Vancouver , B.C. Dates of Hearing: Jan. 9-11, 15; June 3; Aug. 2, 13; Oct. 18; Dec. 23, 2013 Date of Judgment: February 3, 2014 A Corrigendum was released by the Court on February 25, 2014. The corrections have been made to the text and the Corrigendum is

appended to this document.

INTRODUCTION [ 1 ] Scott Wood (the accused) faces charges that on July 11, 2011, at Burnaby, British Columbia, his ability to operate a motor vehicle was impaired by alcohol and, further, on the same date, at Burnaby, British Columbia, that the concentration of alcohol in his blood exceeded 80 mg. [ 2 ] The accused has asserted that his rights under s. 7 and s. 8 of the Charter of Rights and Freedoms (the Charter ) were violated during the course of the police investigation when the investigating member, Constable Gillis, failed to read a statutorily-compliant blood demand to the accused at the Royal Columbian Hospital (RCH). [ 3 ] In the alternative, the accused has asserted that his right to counsel under s.10 (

b) of the Charter was violated during the course of the police investigation. [ 4 ] As a result of the demand, blood was withdrawn from the accused by medical personnel utilizing a blood kit provided to the RCMP. Certificates of a “Qualified Medical Practitioner Who Caused Blood Samples To Be Taken” along with a “Certificate of an Analyst ” were filed in this voir dire . [ 5 ] On October 18, 2013, I ruled that the demand made by Constable Gillis was an invalid demand and was in violation of s. 8 of the Charter .

Though not specifically addressed in my Ruling, I find that the subsequent taking of blood from the accused in the face of an invalid demand was also in violation of s. 7 of the Charter , as submitted by the accused. [ 6 ] In light of my Ruling with respect to breaches relating to s. 7 and s. 8 of the Charter , I need not address the right to counsel issue in terms of a possible breach. However, I do find it necessary to comment in this Ruling on some of the language used by Constable Gillis respecting the right of the accused to legal counsel and the need of of this Court to dissociate itself from that language.

ISSUE [ 7 ] The sole issue to be determined at this stage is whether or not the certificates filed in this voir dire ought to be either admitted or excluded into evidence in the trial proper. BACKGROUND [ 8 ] On July 4, 2011, at approximately 10:25 am, Frank McCauley was operating his bus in the area of Holdom Avenue at Lougheed Highway. As Mr.

McCauley began to make a turn northbound into the east lane of Lougheed Highway, a white Mazda automobile came through a red light located at that intersection, struck the side of the bus, flipped into the air over the median separating the east/west lanes of Lougheed Highway, and came to rest in the middle lane on the driver's side. [ 9 ] This collision was described in evidence as "spectacular" and fortunately other than minor injuries to the accused, no one else was injured. Ambulance personnel were soon on the scene along with other first responders, including the fire department and the RCMP.

Paramedics Sophia Georgass and Jonathan Rosso attended to the accused. [ 10 ] It was determined by the paramedics that the accused ought to be taken to the RCH for assessment and, if need be, treatment. Constable Gillis became the lead investigator into this collision.

In his contact with the accused, he began to form a suspicion that the accused may be under the influence of alcohol and that he was in the care or control of the automobile while under that influence. [ 11 ] As a result of his observations of the accused, the scene of the collision, the actions of the paramedics, and the information received from another police officer (Constable Polman), Constable Gillis made a demand that the accused provide a breath sample into an Approved Screening Device (ASD).

The accused complied and the ASD registered a fail at 10:51 am. [ 12 ] As a result of the fail reading, Constable Gillis detained the accused for an impaired driving investigation and, at 10:52 am, advised the accused of his rights under s. 10(

b) of the Charter . When asked by Constable Gillis if the accused wanted to speak to a lawyer, the accused responded with a "No". [ 13 ] The paramedics then proceeded to take the accused to RCH in the ambulance with Constable Gillis present. During the course of the transport of the accused, Constable Gillis took a taped statement from the accused where, in part, Constable Gillis re-canvassed the right of the accused to legal counsel and the reason for his detention in the following exchange: 86. C So, Scott, I’ve already ah read you, your rights, that was all of the jabber before.

Ah, ahum, before we took off there from scene. Do you have any questions for me? Do you understand all your rights and all that jazz?

87. B Like, 88. C Like, 89. B What happens now? 90. C Yah, do you understand that, do, you, do you remember how I told you that you 91. B Yes. 92. C that you were detain for an impaired investigation? 93. B Of course, yes, but what happens now? 94. C Well, we’re gonna be going to be hospital, we’re gonna be going to the hospital. [ 14 ] Constable Gillis noted that the accused had scrapes on his nose and chin, along with some scrapes to his legs, and that the accused complained that he had a sore head.

Constable Gillis did not disagree with the suggestion of Defence Counsel that the accused may have been in shock. [ 15 ] While the accused was being attended to by medical personnel, Constable Gillis reached the opinion, at 11:55 am, that it would be impractical for the accused to provide a breath sample and so determined that if he was to advance the impaired driving investigation, he would need to proceed to a blood demand. [ 16 ] Prior to reading the blood demand to the accused, Constable Gillis testified that he asked the doctor if providing a blood sample would endanger the life of the accused.

Though the question was asked, no response to the question was offered in evidence. On this point, the following exchange took place in direct examination: MS. MEDJUCK: Q You were going to tell us the time that you asked Dr. Taylor whether or not taking a blood sample from Mr. Wood would endanger his life. A That was at 12:04. Q Did you ask Dr. Wood (sic) anything after that? A I asked him if he would be willing to take the blood samples and he said he wouldn't. He would have a blood technician take the samples of blood from him. Q And what time was that at?

A That was at 12:05. (Transcript, January 10, 2014, Page 25, Lines 33-43) [ 17 ] Constable Gillis testified that, at 12:08 pm, he read the accused the blood demand from his “Force-Issued Charter card.” That demand, as read in from the card, is as follows: A At 12:08 I read Mr. Wood the blood demand. Q And that was from your card as well? A From my Force issued Charter card. Q Okay. And I'm going to ask you to read that onto the record again and at the same tempo that you would have read it to him in the hospital. THE COURT: Yes, please.

A Blood demand. (As read in): I have reasonable grounds to believe that you are committing or within the preceding three hours have, as a result of the consumption of alcohol, committed an offence under

section 253 of the Criminal Code , and I hereby demand that you provide, as soon as practicable, such samples of your blood as are necessary to enable a proper analysis to be made to determine the concentration, if any, of alcohol in your blood. Samples of your blood will be taken by or under the direction of a qualified medical practitioner who is satisfied that the taking of those samples will not endanger your health. (Transcript, January 10, 2013, Page 26, Lines 4-26)

[18] Constable Gillis testified that, at 12:12 pm, blood samples were taken from the accused by a technician. He later corrected thatevidence by testifying that the first samples were for hospital purposes, and that two subsequent blood samples were taken through theuse of the RCMP blood kit at 12:25 pm and 12:27 pm respectively. The two samples of blood were then placed in vials and secured byConstable Gillis. [19] The vials of blood were submitted by Constable Young for analysis.

A Certificate of Analyst in relation to the blood vials wasfiled, which revealed that the blood alcohol count of the accused at the time of analysis was in excess of 80 mg of alcohol per 100 mL ofblood. LEGAL FRAMEWORK OF THE CHARTER BREACHES [20]

Section 254 of the Criminal Code establishes

definitions and terms relating to demands for breath and blood samples, andsamples of other bodily substances. This

section establishes the grounds in which a peace officer may make certain demands ofindividuals arrested or detained in relation to impaired driving investigations. [21] In this case, Constable Gillis determined that it would be impractical to make a breath demand on the accused when the accusedwas being attended to by medical personnel at RCH. Constable Gillis testified that he was satisfied that he had reasonable and probablegrounds to make a blood demand on the accused at RCH. [22] The grounds for making a blood demand are set out in s. 254(3)(a)(ii), and are as follows: ...

(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, ... (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; ... [23] Specific language is found in the Code dealing with who may take a blood sample and under what conditions may they do so. Section 254(4) reads as follows: Condition

(4) Samples of blood may be taken from a person under subsection (3) or (3.4) only by or under the direction of a qualified medicalpractitioner who is satisfied that taking the samples would not endanger the person’s life or health. [24] In this case, Constable Gillis testified that he used a “Force-issued Charter card” to read the blood demand to the accused.There is a failure to make reference to a “person’s life” in the wording of this demand. [25] In my Ruling pronounced October 18, 2013, I found that the omission of the words “person’s life” was material and resulted inan invalid blood demand.

This Ruling applies the position taken by the Supreme Court of Canada in R. v. Green, (SCC), [1992] 1 SCR 614. In Green, La Forest, J., speaking for the Court, applied a strict approach to the

interpretation of s. 254(4) ofthe Code, at page 3, para. 4, as follows: 4 This case raises the issue of whether a demand for blood samples by a peace officer pursuant to s. 254(3) must incorporate theassurances of s. 254(4) that the samples of blood will only be taken by or under the direction of a qualified medical practitioner and onlyif the qualified medical practitioner is satisfied that the taking of those samples would not endanger the life or health of the patient.

Inother words, it raises the question whether the phrase "under the conditions referred to in subsection (4)", which appears in s. 254(3),should be interpreted as describing what the demand should contain. In my view it should. Otherwise, the phrase would be surplusage.Parliament's purpose appears to be directed to putting to rest the fear that an improper procedure might be followed or that unqualifiedpersons might conduct the procedure. The danger is that a person might be prompted to refuse to take the test on such grounds. While adetained person has the right to counsel under s. 10(

b) of the Canadian Charter of Rights and Freedoms, it must be remembered that theblood sample, unlike a breath test, may be taken in circumstances where a person is particularly vulnerable. Finally, while s. 254(3) isnot a model of clarity, any ambiguity should be resolved in favour of the accused. ... [26] I note as well in this case that while Constable Gillis asked the attending doctor if providing a blood sample by the accusedwould endanger his life, the evidence is silent as to any response. [27] Accordingly, I found that the blood demand was an illegal demand and that the subsequent taking of the blood of the accused,

especially given that the opinion of the attending doctor is silent or unknown with respect to any risk to the accused, amounted tobreaches of s. 7 and s. 8 of the Charter. [28] Having found that there were breaches of the constitutional rights of the accused, the next step in the analysis turns on theapplication of s. 24(2) of the Charter, which reads as follows:

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

POSITION OF THE PARTIES [29] Though this application has been brought by the accused, it is preferable for the purpose of this Ruling that I set forth theposition of Crown Counsel before dealing with the position of the accused. [30] In relation to s. 24(2) of the Charter, Crown Counsel emphasizes that a non-compliant demand would not establish that theadministration of justice would be brought into disrepute. [31] Crown Counsel notes that the framework to be applied when considering the admissibility of evidence under s. 24(2) of theCharter has been settled by the Supreme Court of Canada in R. v.

Grant, 2009 SCC 32, which expounds a three-part test to be followedwhen a s. 24(2) Charter analysis is engaged. [32] The first step requires an analysis of state conduct. In this first step of the inquiry, Crown Counsel submits that the conduct ofConstable Gillis could not be seen as severe or deliberate.

Rather, omitting reference to the word “life” in the demand was a technical orinadvertent violation that favours admission of the certificates filed in this hearing. [33] Crown Counsel further submits that, at this stage of the inquiry, the word “health” logically implies that the life of the accusedwould not be endangered by the taking of blood samples.

In her written argument, Crown Counsel notes, “The protection of a person'shealth necessarily protects their life.” [34] Crown Counsel submits that Constable Gillis did not exercise any bad faith requiring a need for the court to disassociate itselffrom inappropriate police conduct. Constable Gillis omitted to place the word “life” in the blood demand but this omission did notsubstantially alter the protections the demand was intended to convey. [35] The second step of the Grant analysis requires that the Court look at the impact on the Charter-protected interests of theaccused.

In this second step of the inquiry, Crown Counsel submits that while the taking of blood is intrusive, the technical nature of thebreach militates in favour of admission. [36] The third step of the Grant analysis requires that the Court look at society's interest in an adjudication on the merits.

In this thirdstep of the inquiry, Crown Counsel submits that the Court ought to consider whether the evidence of the certificates is reliable evidence,the importance of the certificate evidence to the case for the prosecution, and the serious nature of the offense facing the accused. [37] Crown Counsel submits that there can be no doubt that the blood samples taken from the accused and the resulting Certificateof Analyst are reliable evidence and, further, that the effect of excluding the certificate evidence defeats the case for the prosecution inrelation to the charge of the accused having care or control of a motor vehicle with an alcohol count in excess of 80 mg of alcohol in 100mL of blood. [38] Crown Counsel submits that impaired driving cases are extremely serious, leaving a trail of death, injury, heartbreak anddestruction. (See R. v.

Bernshaw, (SCC), [1995] 1SCR 254.) [39] It is in relation to the third step of the Grant inquiry, Crown Counsel submits that, where a person otherwise complies with aninvalid demand for a breath sample or a blood sample, the administration of justice would not be harmed notwithstanding the deficientdemand. On this point, Crown Counsel relies heavily on the decision from the Supreme Court of Canada in R. v. Knox, (SCC), [1996] 3 SCR 199. [40] Knox dealt with a deficient blood demand made upon the accused following a serious collision. The demand was deficient as itdid not comply with the Code.

Notwithstanding, blood samples were taken from the accused. At trial, the judge found that the accuseddid not consent to the taking of blood samples, and the blood-alcohol evidence was excluded. [41] Though the Québec Court of Appeal agreed that the demand was deficient, the Appeal Court found that the Crown was notrequired to prove consent. Accordingly, a new trial was directed. [42] The accused appealed to the Supreme Court of Canada. The Court dismissed the appeal, and referred the case back for a newtrial.

[ 43 ] In the case at bar, Crown Counsel submits that the Knox decision is important as the Court commented that the administration of justice would not be harmed in the face of a deficient demand when an accused actually complies with a blood demand.

Accordingly, Crown Counsel submits that the third step of the Grant inquiry favors admission of the certificates evidence. [ 44 ] In balancing the Grant factors Crown Counsel submits that the certificates filed in support of the Crown case ought to be admitted into the trial proper. [ 45 ] The accused takes the position in relation to the first avenue of the Grant inquiry that the infringing state conduct is serious and that the illegal demand with the subsequent taking of blood samples from the accused cannot be equated with good faith. [ 46 ] In particular, the accused urges that this Court should find that there is no uncertainty in the law and that since the Green decision in 1992, it is well-established that there must be strict compliance with the wording of a blood demand to incorporate into the demand the words “would not endanger the life or health”.

Accordingly, it is submitted by the accused that the police should not be rewarded for their negligence or wilful blindness in relation to the deficient demand. [ 47 ] The accused also submits that there were no extenuating circumstances that would justify the reading of an improper blood demand which in turn elevates the seriousness of the Charter -infringing state conduct. [ 48 ] The accused further submits that while the attending physician was asked by Constable Gillis if the taking of blood samples would endanger the life of the accused there was apparently no response to that question.

At least no answer was offered in the evidence of Constable Gillis. [ 49 ] The accused further submits that Constable Gillis should have been put on notice that the accused may not understand the blood demand after he was told by the attending physician that the physician was “not sure” that the accused would understand the blood demand. Notwithstanding, the accused was read the illegal demand and blood samples were taken. [ 50 ] In addition, the accused submits that Constable Gillis was not careful in ensuring the Charter rights of the accused were protected.

In particular, it is noted that Constable Gillis in conversation with the accused in the ambulance respecting his Charter rights, made reference to those rights as “jabber” and “all that jazz”. [ 51 ] Accordingly, the accused submits that in relation to the first avenue of the Grant inquiry that the certificate evidence ought to be excluded. [ 52 ] In relation to the impact of the breaches on at the Charter -protected interests of the accused, it is submitted that the failure to read a proper demand exposed the accused to continued detention and the eliciting of incriminating physical evidence arising directly from the violations. [ 53 ] Accordingly, it is submitted that in relation to the second avenue of the Grant inquiry that the certificate evidence ought to be excluded. [ 54 ] In relation to society’s interest in the adjudication of the case on its merits, it is submitted by the accused that if the blood sample evidence was so important to the case for the Crown, they had an alternative to a blood demand by securing a warrant to seize the hospital blood samples taken from the accused.

In this case, a warrant was not considered as an alternative. [ 55 ] In relation to the application of the Knox decision, it is noted by the accused that the Chief Justice left the ultimate determination as to the admissibility of the blood samples evidence to a trial judge as a new trial was ordered.

It is argued that the Knox decision is no longer good law, or in the alternative, should be narrowly interpreted. [ 56 ] Accordingly, it is submitted that in relation to the third avenue of the Grant inquiry that the certificate evidence ought to be excluded. [ 57 ] In relation to the balancing of the three factors, the accused submits that the taking of blood samples is much more intrusive than the taking of breath samples.

It is further submitted that the breaches in this case are serious in nature and seriously impacted the Charter -protected interests of the accused. [ 58 ] While the blood sample certificate evidence may be potentially reliable evidence, the accused also submits that the reliability of this evidence has been compromised as there are significant errors in the evidence given by Constable Gillis and Constable Young in relation to the continuity of the blood samples. [ 59 ] In the result, the accused submits that the certificate evidence relating to the blood samples taken from the accused ought to be excluded from the trial proper.

ANALYSIS [ 60 ] The Knox decision was handed down by the Supreme Court of Canada in 1996. Thirteen years later, the Supreme Court of Canada handed down what is commonly called the Trilogy. The Trilogy includes the Grant decision, coupled with R. v. Suberu , 2009 SCC 33 , and R. v. Harrison , 2009 SCC 34 . It is the Grant decision that sets out the framework to be applied when considering the admissibility of evidence, elicited or real, under s. 24(2) of the Charter . [ 61 ] In R. v.

Reddy , 2010 BCCA 11 , at paras. 91-94 , Frankel J.A. summarized the approach set out in the Grant decision for determining the admission of evidence obtained in breach of a Charter right as follows: 91 The Grant factors are succinctly stated at paragraph 71 of that decision. In deciding whether to admit or exclude evidence, a court

must now assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); (2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and (3) society's interest in the adjudication of the case on its merits.

See also: Harrison at para. 2 92 With respect to the first factor -- seriousness of the breach -- the greater the level of state misconduct, the greater will be the need of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend to support exclusion: paras. 71-74. Further, as the Chief Justice and Charron J. noted (at para. 75): "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.

However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: [citations omitted]. 93 As for the second factor -- impact of the breach on the accused -- it was observed that "[t]he impact of a Charter breach may range from fleeting and technical to profoundly intrusive".

The more serious the impact is on the rights of the accused, the more likely it will be that exclusion is warranted: paras. 76, 77. 94 The last factor -- society's interest in a decision on the merits -- involves the question of "whether the truth seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion": para. 79. The reliability of the evidence is an important consideration, as is the importance of the evidence to the truth-seeking function of the trial.

Although "seriousness of the offence" remains a consideration, it has far less importance than under the Collins/Stillman framework, because s. 24(2) focuses on the long-term implication for the repute of the administration of justice, and not the public's short-term desire for a conviction: para. 84. [ 62 ] The Grant analysis must be followed by a trial court in determining admissibility of elicited evidence under s. 24(2) of the Charter .

I find the Knox decision would properly be considered in relation to the third avenue of the Grant inquiry as it applies to a consideration of whether or not the admission of the certificate evidence would bring the administration of justice into disrepute.

The Seriousness of the Charter -Infringing State Conduct [ 63 ] In Harrison , at paragraph 22 , the Court held that in conducting the first inquiry under s. 24(2) of the Charter , that a court should dissociate itself from misconduct where the police knew that their conduct was not Charter compliant: 22 At this stage the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. Did it involve misconduct from which the court should be concerned to dissociate itself?

This will be the case where the departure from Charter standards was major in degree, or where the police knew (or should have known) that their conduct was not Charter -compliant. On the other hand, where the breach was of a merely technical nature or the result of an understandable mistake, dissociation is much less of a concern. [ 64 ] I find that the wording of the demands, especially so in relation to the securing of conscriptive evidence, necessitates the need for certainty. A blood or breath demand in relation to impaired driving investigations carries with it significant legal consequences.

In addition, in relation to a blood demand, there are significant health and life considerations. [ 65 ] I cannot find in this case that the omission of the word “life” in the blood demand read to the accused by Constable Gillis is merely technical or inadvertent in nature. This is particularly so as the Constable utilized a “Force-issued Charter card” (see paragraph 17 of this Ruling). [ 66 ] The Supreme Court decision in Green was pronounced in 1992. There have been numerous cases since that date, including Knox , which apply the Green decision.

I appreciate that the Green decision was in relation to a refusal allegation but nonetheless it is clear that a blood demand does require the use of the words “life or health of the person”. As was noted by La Forest J., compliance with the wording of the

section in the Code is necessary as, “Otherwise, the phrase would be surplusage” (See paragraph 25 of this Ruling). [ 67 ] Not only did Constable Gillis communicate an illegal demand, but it appears that he was issued a Charter card that was also deficient. I find that this is a case where Constable Gillis, and the RCMP, should have known that the blood demand utilized in this case was not Charter compliant.

No explanation has been provided for this deficiency and I cannot find that this deficiency is a result of an understandable mistake. [ 68 ] While I do not find bad faith on the part of Constable Gillis and the RCMP, I nonetheless cannot equate their conduct to good- faith. In addition, I do not find that the state conduct in this case resulted from inadvertence or that extenuating circumstances existed.

[69] Accordingly, it is necessary for the Court to dissociate itself from state conduct in which the RCMP issued a deficient andillegal blood demand card which directly resulted in the Charter-protected interests of the accused being violated. [70] As noted at paragraph 6 of this Ruling, it is necessary to comment on the language used by Constable Gillis in relation to hisdiscussions with the accused in the ambulance respecting the Charter rights of the accused.

In part, Constable Gillis described thoserights as “all of the jabber” and “all of that jazz”. [71] This Court must dissociate itself from the use of such language. Police officers have a constitutional duty to ensure that personswho are subject to arrest or detention are promptly and properly advised of their rights in clear and unambiguous language. The languageused by Constable Gillis in this case was inappropriate.

The use of such inappropriate language and the casual approach taken byConstable Gillis in relation to his constitutional obligations to the accused reduced his reliability. [72] In advancing argument in relation to the first avenue of the Grant inquiry, Crown Counsel took the further position that the useof the word “health” in the demand read by Constable Gillis to the accused would imply that the life of the accused would not beendangered. I disagree. [73] Constable Gillis testified that he was aware that the accused was involved in a spectacular motor vehicle collision.

He alsotestified that the accused sustained some injuries and maybe in shock. That information would explain why Constable Gillis asked theattending physician if the taking of a blood sample would endanger the life of the accused.

Though this question was asked there is noevidence as to the response by the attending physician. [74] Accordingly, I cannot find that the evidence supports the Crown position that the use of the word “health” in the demand readby Constable Gillis to the accused would imply that his life would not be endangered by the taking of blood samples. [75] The first avenue of the Grant inquiry favours exclusion of the certificate evidence from the trial proper.

The Impact of the Breaches on the Charter-Protected Interest [76] The impact or the effects of a breach of an accused’s Charter-protected interest, as discussed in the Harrison decision atparagraph 32, was discussed in R. v. Loewen, 2010 ABCA 255 by Berger J.A. at paragraphs 97 - 100 as follows: 97 In Harrison, the police conduct was characterized as "brazen" and amounted to "blatant disregard for Charter rights". The breacheswere said to be "serious".

The impact on the accused's liberty and privacy interests and rights was judged to be "significant" although not"egregious" (para. 32). 98 The latter pronouncement suggests that the test of "egregiousness" need not be met. The effect on the accused's rights need only be"significant".

Mindful that in Harrison the cocaine was "highly reliable" and "virtually conclusive of guilt", it was nevertheless deemedinadmissible because the seriousness of the violation outweighed the reliability of the evidence. 99 It follows that in evaluating the seriousness of the Charter-infringing state conduct, a "significant" impact on an accused's libertyand privacy interests, even if the breach itself does not qualify as "egregious", will suffice. 100 In the context of unreasonable search and seizure, the focus is on the degree to which search or seizure intruded upon privacy,bodily integrity and human dignity.

A spectrum of interest may be engaged from unlawful forcible taking to "relatively innocuousprocedures such as fingerprinting": Grant at para. 109. [77] The taking of the blood of the accused did intrude upon his privacy and bodily integrity. The taking of his blood was not just aninnocuous procedure but rather required the piercing of skin. [78] The reading of the illegal demand, resulting in breaches of s. 7 of the Charter, exposed the accused to continuing detention andthe eliciting of conscriptive evidence.

This evidence was obtained wholly as a result of the illegal blood demand. [79] It follows that the state conduct did have a significant impact on the accused's liberty and privacy interests. Accordingly, thesecond avenue of the Grant inquiry favours exclusion of the certificate evidence. Society’s Interest in the Adjudication of the Case on its Merits [80] Under this heading, the Court must consider whether the truth-seeking function of the criminal process would be better servedby admission of the certificate evidence or by its exclusion.

The Court should also consider society’s “collective interest in ensuring thatthose who transgressed the law are brought to trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2S.C.R.1199, at paras. 1219 and 1220. [81] I also find that society has a collective interest in ensuring that Charter interests are observed by the state. [82] In this case, an illegal demand was made by Constable Gillis requiring the accused to provide blood samples.

The exclusion ofthis evidence would defeat the case for the prosecution in relation to the .08 charge. [83] While Crown Counsel has argued that the blood-certificate evidence is reliable, the accused takes the position that there arediscrepancies in relation to the continuity of the blood samples in the evidence given by Constable Gillis and Constable Young. Inparticular, with respect to Constable Young’s evidence, the accused submits that there are discrepancies in relation to the timing of theplacing of notations in Constable Young's notes.

The accused also submits there are omissions in Constable Young’s notes as to the

name or number on the box on the day he picked up the sample box. Nonetheless, Constable Young checked off a pro forma document confirming pickup and delivery. [ 84 ] Accordingly, I find that the Certificate of Analyst may be reliable as to the analysis, but not necessarily powerful evidence in light of the continuity issues raised by the accused. [ 85 ] In addition, Constable Gillis was aware that hospital staff had taken blood samples from the accused prior to the taking of blood from the accused resulting from the blood demand.

The Criminal Code provides authority for the issuance of a warrant to seize evidence. As such, there were alternative avenues for securing blood samples for analysis that would not engage a blood demand under s. 254 of the Code . [ 86 ] Crown Counsel also submits that the inclusion of the Certificates of Analyst with respect to the blood samples would not bring the administration of justice into disrepute.

Crown Counsel relies heavily on the Knox decision to support their position. [ 87 ] As discussed earlier, the Court in Knox dismissed the appeal from the Québec Court of Appeal and sent the case back for a new trial.

In doing so, the Chief Justice confirmed at paragraph 17: 17 The integrity of the blood sample regime requires the police to deliver a valid demand with the s. 254(4) assurances even if the accused would have complied with the demand in the absence of the medical assurances. [ 88 ] The Chief Justice then went on to discuss whether blood sample analysis could still be used in the face of a Charter violation.

At paragraph 18 of the Knox decision, the Chief Justice had this to say: 18 Of course, this leads to a crucial question: whether the results of the blood sample analysis can be used despite the Charter violation. Contrary to the appellant's submission, the Quebec Court of Appeal did not err by ordering a new trial instead of rendering a verdict of acquittal. The issue that needs to be addressed is whether the admission of the blood sample results could "bring the administration of justice into disrepute" under s. 24(2) of the Charter.

As I have said on previous occasions, this is a determination appropriately left for the trial court, and I leave this issue to be decided by it . Nevertheless, I might point out that if an accused actually complies with a blood sample demand, in the absence of the medical assurances of s. 254(4), I cannot conceive how adducing the evidence of the blood sample could "bring the administration of justice into disrepute". This is particularly true when the conditions stipulated by the provision were in fact met.

Subject to other considerations which are ultimately left to the trial court , the administration of justice is not harmed by the deficient demand when an accused actually complies under these circumstances. This is because a proper demand under s. 254(4) would only serve to encourage further compliance. [Emphasis Added] [ 89 ] As noted earlier, there are issues as to whether or not the life of the accused would be endangered by the taking of blood samples. Additionally, there are issues as to whether or not he would actually understand the demand for the taking of blood samples.

These clearly are evidentiary considerations for this Court in determining whether or not the administration of justice “could” be brought into disrepute. [ 90 ] Ultimately, these evidentiary considerations are of concern to the Court as they do bear on the issue of whether or not the administration of justice would be brought into disrepute under s. 24(2) of the Charter . This is especially so in light of the above noted issues.

These are the type of “other considerations” contemplated by the Chief Justice in the Knox decision. [ 91 ] I am unable to say from the evidence in this case that the administration of justice would not be brought into disrepute by the admission of the certificates of the blood analysis. [ 92 ] In relation to the third avenue of the Grant inquiry, I find that, on balance, there are factors that favour admission of the certificate evidence and that, equally so, there are factors that favour exclusion of the certificate evidence. [ 93 ] Accordingly, I find the impact of the third avenue of the Grant inquiry to be neutral.

Balancing the Grant Factors [ 94 ] I find, when viewed from a long-term, forward-looking, and societal-oriented perspective, the admission of the certificate evidence would have a serious negative impact on the repute of the administration of justice and, as such, I conclude that the certificate evidence presented in this voir dire must be excluded. The Honourable Judge G. Rideout

Provincial Court of British Columbia CORRIGENDUM - Released February 25, 2014 In the Ruling on Voir Dire dated February 3, 2014, the following change has been made: [ 95 ] On page 2, paragraph 9, the first sentence, “other than” is repeated twice and should be only referenced once. The sentence should now read as follows: This collision was described in evidence as "spectacular" and fortunately other than minor injuries to the accused, no one else was injured. Ambulance personnel were soon on the scene along with other first responders, including the fire department and the RCMP. …