Her Majesty the Queen - v. -, 2015 SKPC 013

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 013 Date: January 27, 2015 Information: 90004398 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Matthew Edmond Lafrance Appearing: Colton Fehr For the Crown James Korpan For the Accused DECISION ON VOIR DIRE B. Tomkins, J [ 1 ] Mr. Lafrance is charged under the Criminal Code with driving while impaired and with driving while his blood alcohol level exceeded .08 on November 9, 2013. [ 2 ] Mr. Lafrance served notice alleging that he was arbitrarily detained and not advised of the reasons for his detention, contrary to sections 9 and 10(

b) respectively of the Charter . He also alleged that the taking of breath samples constituted an unreasonable search contrary to

section 8 of the Charter . [ 3 ] The trial commenced by way of a voir dire in order to resolve these matters before consideration of the evidence and issues on the trial itself. This is my decision on the voir dire . ARBITRARY DETENTION AND FAILURE TO GIVE REASON

[ 4 ] Mr. Lafrance argued that he was detained by Corporal Lorence when he was asked to step out of his vehicle and that Cpl. Lorence did not have reasonable grounds to detain him. As such, the detention was arbitrary and contrary to

section 9 of the Charter . Mr. Lafrance also argued that Cpl. Lorence did not advise him of the reasons for the detention, as required in

section 10(

a) of the Charter . He argued that pursuant to section 24(2), all evidence obtained at, after or consequent on these breaches should be excluded. [ 5 ] The evidence relevant to these issues is not, save for certain details, in significant dispute. Subject to discussion of specific matters in the course of my analysis, these are the facts as I find them as relevant to the Charter arguments above. [ 6 ] On November 9, 2013, just before 10:00 p.m., Corporal Jody Lorence was parked on Victoria Avenue in Regina in an unmarked police vehicle.

He saw a vehicle come off Arcola onto Victoria; he noticed this especially because the driver took the corner fast and did not slow as people usually do. The vehicle continued at high speed and Cpl. Lorence heard its motor racing as it passed him. Corporal Lorence pulled out behind the vehicle and followed. [ 7 ] Cpl. Lorence could not estimate the vehicle's speed but said he was driving at 70 k.p.h. and the vehicle was pulling further ahead of him. After a few blocks, Cpl. Lorence activated his emergency equipment but the vehicle did not pull over until about a block later.

It turned north onto Osler Street and took the corner so tightly that the vehicle’s right wheels went about a foot onto the sidewalk as it rounded the corner. Cpl. Lorence approached. [ 8 ] As he did exited his vehicle, he saw that the driver had his hands out his vehicle's window and by the time Cpl. Lorence arrived at that vehicle, the driver also had his head and torso out the window. Corporal Lorence thought this was odd behaviour and not something he had observed before. He asked the driver why he was doing this and he responded he was trying to make the corporal more comfortable. [ 9 ] Mr.

Lafrance was the driver; there were two passengers in the car. Mr. Lafrance provided his licence and registration. Cpl. Lorence observed glossy eyes and rapid speech but Mr. Lafrance denied having taken drugs or consumed alcohol. He said, according to Cpl. Lorence, that he was going to a Christmas party. [ 10 ] Cpl. Lorence said he "heavily suspected" that Mr.

Lafrance had consumed alcohol, drugs or both on the following grounds: • manner of driving including speeding and the way he took the Arcola corner; • the fact of the delay in stopping after emergency equipment was activated; • driving onto the sidewalk when he turned; • putting his head and torso out the window of the vehicle; • rapid speech; • glossy eyes; and • the fact that he said he was going to a party. [ 11 ] Cpl. Lorence called to the station - which was just yards up the same block - for Corporal Gordon to come. She was a Drug Recognition Expert and, given his concerns about what he thought was Mr.

Lafrance's unusual behaviour, he intended to have her conduct a drug consumption assessment. He also asked her to bring an ASD machine. [ 12 ] In the meantime, Cpl. Lorence asked Mr. Lafrance to step out of his vehicle and he did. He did not tell Mr. Lafrance the reason he wanted him to exit - that he wanted to conduct sobriety tests and subject him to an evaluation by a Drug Recognition Officer. Cpl. Lorence said that he was not certain what he would have done if Mr. Lafrance had refused his request to exit his vehicle. He said he might have conducted an ASD test at the window. [ 13 ] Once outside, Cpl.

Lorence was downwind of Mr. Lafrance and could smell alcohol coming from his breath, not withstanding strong winds. Given this, at 10:01 p.m., he made an ASD demand. [ 14 ] While waiting for the machine and during the ASD test, Mr. Lafrance lifted his shirt, took money from his clothing and placed it on the ground and started to disrobe. When asked what he was doing, he again said that he was trying to make the officer more comfortable. [ 15 ] Meanwhile, Cpl. Gordon arrived and administered the test. At 10:05 p.m., a fail reading was obtained. [ 16 ] Based on this result, Cpl.

Lorence thought he had reasonable and probable grounds to believe Mr. Lafrance's ability to drive was impaired by alcohol and perhaps drugs. Based on this, Cpl. Lorence arrested Mr. Lafrance for impaired driving and driving while over .08, read his right to counsel and police warning and made a breath demand. Mr. Lafrance said he understood all of these and that he did wish to contact a lawyer. These events occurred at and immediately after 10:06 p.m. [ 17 ] By this time, a third officer - Constable Warnar - had arrived. Cst. Warnar took Mr. Lafrance to the Regina Police Station as Cpl.

Lorence's vehicle was not equipped to transport others. [ 18 ] Mr. Lafrance does not take significant issue with this evidence but he did explain some of his actions. He said that, when he saw the police activate their emergency equipment, he did not realize that they were interested in him. He slowed and pulled toward the curb so the police car could pass but noticed that it followed him. It was only then that he realized that it was his vehicle that had attracted the officer's interest. At that point, he was driving slowly near to the Osler Street corner and thought it best to pull around the

corner and under the lights. He admitted his right wheels went over the curb but said this was because he was so close to the curb when he made the turn. [ 19 ] I accept Mr. Lafrance's evidence on these points. It is not inconsistent with what the officer described and is consistent with what a driver might think and do in the circumstances. It is believable. [ 20 ] Mr. Lafrance also testified that he was going to a harvest party, not a Christmas party, and that this is what he told the officer. I accept this evidence. [ 21 ] Mr.

Lafrance denied entirely putting his head and torso out the window as the officer approached, though he did admit to putting his hands out the window. He said he had seen this on television shows. He also admitted that he started to disrobe later during the stop but said the officer had asked him to remove his parka. I do not accept his evidence on the first point and I do not accept his explanation on the second. [ 22 ] This is not behaviour which is commonly ascribed to impaired or nervous drivers. It is not behaviour which is expected, in the first case, or ordered, in the second, by police.

I agree with Corporal Lorence that it is distinctly odd behaviour and that he was entitled to and did consider it so in forming his suspicions and grounds. Analysis [ 23 ] Despite the officer's ambivalence on the point, I am satisfied that Mr. Lafrance was in fact detained when he was asked to step out of his vehicle. Cpl. Lorence asked him to step out for specific purposes; he was conducting an investigation and wished to assess sobriety, both as to drugs and alcohol. It is unlikely that he could effectively do either if Mr. Lafrance remained in his vehicle. In any event, whether Mr.

Lafrance remained in his vehicle or stepped out, he was detained in order that the officer could continue his investigation; he was not free to leave. [ 24 ] In R. v. Mann , [1] the Supreme Court of Canada declined to recognize a general power of detention for investigative purposes but nonetheless concluded that police officers may detain an individual if there are reasonable grounds to suspect that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances.

In assessing whether an officer has reasonable grounds for an investigative detention, the officer must consider all of the circumstances, both inculpatory and exculpatory.

While the officer is not required to investigate to learn whether exculpatory explanations obtain, he or she cannot base suspicion on only the inculpatory indications that are present. [ 25 ] In this case, at the time of detention, Corporal Lorence said he based his suspicion on: • manner of driving including speeding and the way he took the Arcola corner; • the fact of the delay in stopping after emergency equipment was activated; • driving onto the sidewalk when he turned; • putting his head and torso out the window of the vehicle; • rapid speech; • glossy eyes; and • the fact that he said he was going to a party. [ 26 ] I do not think the fact that Mr.

Lafrance said he was going to a party is or can be a factor influencing the officer's suspicion. It may be that an admission of coming from a party might, in some circumstances, be indicative of alcohol consumption but the admission of travelling to a party does not. [ 27 ] I also do not accept rapid speech, without slurring, incoherence or any other compromise, as indicative of impairment. [ 28 ] While the other indicia could suggest consumption of alcohol or drugs, they are also consistent with innocent explanations.

Further, there are a myriad of common indicia that were not present in this case. [ 29 ] As was referenced above, it is not for the officer to consider and weigh all innocent and compromising factors or the absence of some. For purposes of suspicion, I am satisfied that Cpl. Lorence's suspicion was honestly held subjectively and is supported objectively. In this regard, I am particularly influenced by Mr. Lafrance's bizarre behaviour in extending his head and torso outside the vehicle and the smell of alcohol. [ 30 ] Therefore, Mr. Lafrance has not satisfied me that his detention was arbitrary or contrary to

section 9 of the Charter . [ 31 ] While the officer claimed two reasons for the detention - to conduct sobriety tests and to subject Mr. Lafrance to a drug evaluation - he did not advise Mr. Lafrance of either of these or of any other reason for the detention. In this respect, Mr. Lafrance's right to be advised of the reason for his detention under

section 10(

a) of the Charter was breached. [ 32 ] I reach this conclusion notwithstanding the Crown’s argument that the detention might be justified under

section 209.1 of The Traffic Safety Act . Conceding without so deciding that this may be so, the evidence establishes that Cpl. Lorence detained Mr. Lafrance for purposes of sobriety tests and drug assessment; he gave no evidence at all suggesting that, at that point, the detention was premised on or for the purposes of

section 209.1.

[ 33 ] On Grant analysis, the circumstances weigh in favour of admission of evidence notwithstanding the breach. [ 34 ] On the first branch, the breach was serious by definition as it involved a loss of liberty. While the officer testified to his reasons for detaining Mr. Lafrance, he offered no explanation at all as to why he did not advise Mr. Lafrance of those reasons.

The failure, without explanation, is serious and weighs in favour of exclusion. [ 35 ] As to impact on the Charter -protected right, however, I note that the detention was of short duration and there is no indication that the officer asked for or obtained any admissions or other compromising information during or as a consequence of the detention. In this respect, the impact on Charter -protected rights was minimal. [ 36 ] However, it was during the detention that the officer was able to detect the odour of alcohol from Mr. Lafrance's breath.

It was this observation that caused him to abandon his intention to engage in sobriety testing and a drug assessment. Instead, on detecting the odour, Cpl. Lorence decided instead to demand an ASD sample. This is a more significant impact but not one, I am convinced, that would not have been observed otherwise notwithstanding the breach. This weighs in favour of inclusion. [ 37 ] Finally, the offences before me are serious and relate to what is one of - if not the - most serious risks faced by innocent users of our roads and highways.

There is a real societal interest in the adjudication of such matters on their merits and, when appropriate, the consequent opportunity for denunciation and deterrence of objectionable conduct. While society is also interested in adjudication that meaningfully protects the Charter rights of individuals, I am not satisfied that the nature of this breach in these circumstances outweighs the general interest in adjudication. [ 38 ] Taken together, these considerations weigh in favour of the inclusion of the evidence obtained, notwithstanding this Charter breach. RIGHT TO COUNSEL [ 39 ] Mr.

Lafrance argued that he was not properly afforded his right to counsel and that his Charter right pursuant to

section 10(

b) was thereby breached. Based on the evidence of Corporal Lorence, Constable Warnar and Mr. Lafrance, these are the facts as I find them regarding this issue. [ 40 ] Cst. Warnar and Mr. Lafrance arrived at the station within a couple minutes of leaving the scene of his arrest. Cst. Warnar took Mr. Lafrance to the telephone room. In that room, Mr. Lafrance had access to some of the lawyer listings from the yellow pages of the phone book and to a phone which did not have a dial.

To make a call, an officer would dial from a phone in the adjoining breathalyzer room, listen to ensure that it was answered and then signal to Mr. Lafrance to pick up the phone in the phone room. [ 41 ] Mr. Lafrance said he wished to contact Jim Ehmann, a Regina lawyer. Cst. Warnar dialed Mr. Ehmann's office number from a phone in the breathalyzer room at 10:23 p.m. and received a recorded message saying the office was closed. Mr. Lafrance left a message for Mr. Ehmann. [ 42 ] Mr. Lafrance next asked to call Matt Sirois. The officer dialed the lawyer's number but, according to Cpl.

Lorence, they received a message saying the office was closed. According to Mr. Lafrance, there was no answer at all. It is not necessary that I decide which evidence to accept because the result was the same - Mr. Lafrance did not reach counsel. However, was it necessary, I would accept Mr. Lafrance's evidence. Cpl. Lorence said Cst. Warnar placed this call before he arrived, while Cst. Warnar said he only placed the call to Mr. Ehmann. Thus, neither was able to give specific evidence about the call. [ 43 ] Mr. Lafrance next asked to call the Merchant Law Office. Cst.

Lorence said this call had already been placed when he arrived back at the detachment but Cst. Warner, as before, said that he had left Mr. Lafrance to Cpl. Lorence after the first call was made. [ 44 ] Whoever placed the call, Mr. Lafrance confirmed that it was made. He reached a live operator for an answering service who asked him to hold while she attempted to contact a lawyer. He did so. [ 45 ] Cpl. Lorence observed Mr. Lafrance through the window and could see that or thought that he was on hold because he was not talking. Eventually, after an undefined length of time but not more than 23 minutes, Cpl.

Lorence entered the room and checked the phone. He thought it was dead and hung it up. Cpl. Lorence believed that Mr. Lafrance was not exercising rights and was stalling the investigation and process for obtaining samples within the legislated time frame. Nonetheless, Cpl. Lorence said: I want to insist with him that he does talk to a lawyer. In my mind, I don't know if the answering service has connected him and he's had a brief conversation. I didn't see something like that happen.

However, I'm not on the phone and I want to ensure that he's talked to an open law office and I suggest to him it's in his best interest to at least talk to a Legal Aid lawyer to ensure he's had that opportunity to exercise his Charter rights. So at that point, I had him hang up the phone, we dialed the number for Legal Aid knowing that it would be open and had Mr. Lafrance in contact with counsel that I could then say "You have had opportunity to talk to a lawyer". (Emphasis mine.) [ 46 ] Cpl. Lorence then dialed the number for Legal Aid duty counsel and passed the phone to Mr. Lafrance. Mr.

Lafrance spoke to counsel. Following that, he gave two breath samples. [ 47 ] Mr. Lafrance said that after Cpl. Lorence hung up the phone when he was holding for the answering service, he said something to the effect that Mr. Lafrance was stalling and playing games. Mr. Lafrance said he was not stalling - as far as he knew he was on hold. [ 48 ] He said he knew other lawyers he would have tried to call them but Cpl. Lorence said they needed to hurry and said words he understood to mean that if he didn’t reach counsel soon, he would be “charged” with refusing the breathalyzer or refusing to exercise his

right to counsel. [ 49 ] Mr. Lafrance said that when Cpl. Lorence dialed Legal Aid, he yelled to him: "Pick up the phone! Pick up the phone!" So he did. He said he felt "pushed and guided" and that he had no choice but to talk to Legal Aid counsel. I accept this evidence. Analysis [ 50 ]

Section 10(

b) of the Charter guarantees that, upon arrest or detention, everyone has the right to retain and instruct counsel without delay, and to be informed of that right. [ 51 ] This right has an information component and an implementation component. The information component was satisfied in this case when Corporal Lorence advised Mr. Lafrance at the time of his arrest that he had the right to retain and instruct counsel and that Legal Aid duty counsel was available.

It is the implementation component that is at issue. [ 52 ] The implementation component requires the police to do two things: first, they must give the accused person a reasonable opportunity to consult counsel and, second, they must defer attempts to gather evidence until the accused has had a reasonable opportunity to exercise his or her right. [ 53 ] The right to counsel of choice is an integral part of the right. As Mr. Justice Mills wrote in R. v. Trueman : [2] Selecting counsel of one's choice cannot be underestimated.

The integrity of the system of justice is based in part on the accused's belief that his lawyer will represent his interest alone. If an accused has confidence in a particular individual to represent his interests over those of the state, he or she must be given a reasonable opportunity to obtain advice from that individual. [ 54 ] Thus, police are not allowed to choose a lawyer for a person who is detained, nor are police allowed to direct or "stream" someone to Legal Aid in lieu of counsel of choice. [ 55 ] Mr. Lafrance told Cpl.

Lorence at the time of arrest that he wished to consult counsel and he pursued his right once he arrived at the detachment. He had a specific lawyer in mind, and alternates if that lawyer was not available for some reason. Calls were placed to those lawyers' offices in succession, each resulting in a message that the office was closed. In at least one case, with Mr. Ehmann's office, Mr. Lafrance left a message. The final call reached a live answering service but was ultimately disconnected. [ 56 ] It seems to me that the implementation component of the right must be meaningful.

That is, it cannot be enough to place a call to an office that you are virtually certain will not be open and where the accused is unlikely to reach counsel. This would be little better than making no call at all as it does not meaningfully afford an accused person a reasonable opportunity to consult counsel. In R. v. Brouillette , [3] Justice Koch confirmed a lower court decision wherein it was stated: On these facts, it had to have been clear to the police officer that, not only was Mr. Brouillette interested in exercising his

section 10(

b) Charter rights, he was interested in speaking to Mr. Byron Behiel, Q.C. To place a phone call to an office number of the specific lawyer that the detainee wishes to speak to, at 3:10 A.M., is an inadequate response to the situation. Having not received an answer, the least that the officer could have done was to take further steps to locate a home number for Mr. Behiel. However, she took no further steps, choosing instead to ask Mr. Brouillette what it was that he wished to do next.

As it was the officer who chose to make the phone call, and chose to call an office number in the early morning hours, in these circumstances it was the officer who bore the responsibility to take further appropriate steps to attempt to contact Mr. Behiel before suggesting, or inquiring into, what other options Mr. Brouillette might want to explore. [ 57 ] These circumstances closely parallel those in this case. Here, calls to Mr. Lafrance's counsel of choice were made to those lawyers' offices after 10:00 on a Saturday night.

Not surprisingly, each call resulted in a message informing that the office was closed and inviting callers to leave a message. Given the day and time, common sense suggests that the chance of a lawyer from the firm retrieving and returning the message within a reasonable time are negligible. Cpl. Lorence all but admitted this when he said "Due to the hour, we were having unsuccess getting through to an open law office at the time." [ 58 ] None of the officers involved took any steps to obtain meaningful contact information for the lawyers Mr.

Lafrance wished to consult and telephone calls to offices which one would expect to be closed cannot meet the officers' implementation obligation. [ 59 ] Eventually, Mr. Lafrance reached the operator of a live answering service who, he said, indicated she would attempt to contact a lawyer for him to consult. While he thought he held for no more than ten minutes, I am satisfied that it was much longer than that and as much as 23 minutes. [ 60 ] When Cpl. Lorence checked and thought the phone was dead, this was because he did not hear music or any other sound suggesting the call was on hold.

However, he also did not hear a dial tone. As such, in my view, Cpl. Lorence did not know if the call had been disconnected or not. Given this, it might be expected that Cpl. Lorence would place a second call to the service to confirm that the call had been disconnected or, maybe, to learn that the call had remained alive until he hung it up. This is common practice in most other circumstances where a person believes a telephone call has been disconnected. I cannot see any reason why this would not be a reasonable expectation in this case. [ 61 ] After disconnecting the call to the Merchant Law Office, Cpl.

Lorence had apparently determined that Mr. Lafrance had exhausted his opportunity to call counsel of choice. In this respect, I accept Mr. Lafrance’s evidence that Cpl. Lorence said that if Mr. Lafrance was not able to reach counsel soon, he would face “refusal” in some context. Without needing to decide, I suspect that Cpl.

Lorence said, in effect, that Mr. Lafrance’s right to contact counsel would not continue indefinitely and that failing contact, Mr. Lafrance might be considered to have waived that right. [ 62 ] This does make sense and it does not make sense that Cpl. Lorence would suggest that Mr. Lafrance's actions - even if he was stalling - could constitute the basis for a refusal charge. Cpl. Lorence, being an experienced police officer, would know this and Mr. Lafrance likely would not. In his inexperience, he might easily have thought that the reference to refusal related to the breathalyzer, even if it did not.

Either way, I do accept that Cpl. Lorence said words suggesting Mr. Lafrance’s opportunity to contact counsel was nearing its end. [ 63 ] But Cpl. Lorence did wish to ensure that Mr. Lafrance have a chance to talk to some counsel. He therefore reminded him of Legal Aid duty counsel, dialed the number and, according to Mr. Lafrance, ordered him to pick up the phone. [ 64 ] The Corporal's actions went well beyond reminding Mr. Lafrance of the availability of Legal Aid. He hung up a call which he believed - but did not know - had been disconnected, dialed Legal Aid and instructed Mr. Lafrance to pick up the phone.

There is nothing in Cpl. Lorence's evidence suggesting he asked Mr. Lafrance if there were any other lawyers he would like to contact or whether he wished to speak to duty counsel. He simply dialed the number and instructed Mr. Lafrance to pick up the phone. This, in my view, goes beyond streaming. In effect, Cpl. Lorence decided that Mr. Lafrance would not be given further opportunity to contact counsel of choice and Cpl. Lorence decided that Mr. Lafrance would consult Legal Aid duty counsel. [ 65 ] In this regard, I note that there was no urgency in the situation.

The call to Legal Aid was placed at about 11:00 p.m., almost an hour before the window of time for taking the breathalyzer tests would close. [ 66 ] I am also mindful that Mr. Lafrance did not directly ask for access to the white pages of the phone book, nor did he ask the officer to consult them. However, once the police officers take responsibility for implementing the accused's counsel rights, they take on the obligation to take such steps as a reasonably diligent accused person would be expected to take. [ 67 ] Nor, in my view, is it surprising, in the circumstances that transpired, that Mr.

Lafrance did not object or ask for more. He took all that was offered to him. He said that once he left a message, for example, they asked who he wanted to call next. When no contact was made there, he was again asked what he wished to do next. He did not know that he could ask for a better chance to contact the chosen counsel. As he said, "They were onto the next one right away." This is confirmed in the officers' evidence as to what they did; that is, by their own evidence they were "on to the next one right away." I do not think Mr. Lafrance can be faulted for lack of diligence in these circumstances.

Finally, Mr. Lafrance did attempt to obtain information that might have helped him actually reach counsel of choice. At some point during the time Mr. Lafrance was attempting to reach counsel, he asked to use his cell phone. He said in evidence that he had lawyers listed in his contacts and wished to consult that list. Cst. Lorence agreed that Mr. Lafrance had asked to use his cell phone but this was refused because people in custody are required to use the phone provided so that police can dial numbers to be certain who is contacted and can hear if contact is made. This, I believe, is generally reasonable.

However, Cpl. Lorence also said that he did not know why Mr. Lafrance wanted to use his cell phone – it might have been to place a call but it might have been to consult his contacts. He assumed the former and did not ask. In these circumstances, it is difficult to place any lack of diligence on Mr. Lafrance’s shoulders. [ 68 ] Thus, Mr. Lafrance has established that his

section 10(

b) Charter right to counsel was breached. [ 69 ] On Grant analysis, I am satisfied that the Certificate of Analysis must be excluded. [ 70 ] Cpl. Lorence is an experienced police officer and knew or should have known and understood the exercise of Mr. Lafrance’s right to counsel. While I accept Cpl. Lorence’s evidence that he wanted to be sure Mr. Lafrance had an opportunity to talk to some lawyer, I must remind him that it is not his job to determine who that lawyer should be.

He called or others, to his knowledge, called law offices late on a weekend night knowing that the likelihood of reaching a lawyer was slim. When Mr. Lafrance did reach a person at the Merchant answering service, Cpl. Lorence decided when he had held long enough and he decided that Mr. Lafrance would speak to Legal Aid duty counsel. [ 71 ] What Cpl. Lorence did not do is what a reasonable person in Mr. Lafrance’s circumstances would have done. He did not consult the white pages to learn if Mr. Ehmann or Mr. Sirois had residential numbers listed.

He did not consult computer resources to see if either had a reachable number listed. He did not call back to the Merchant Law Group Service to learn whether or not the call had been cut off and if so, to reinstate the request to seek counsel. All of these are reasonable expectations in an attempt to actually connect a person to counsel and neither would have taken very much time. Instead, their efforts were likely doomed even before the counsel calls were made and Cpl. Lorence knew that. [ 72 ] The breach is careless at best and demonstrates either ignorance of Charter standards or little effort to meet them.

This weighs in favour of exclusion. [ 73 ] As to impact, the more serious the impact, the more heavily the analysis will weigh toward exclusion. In this case, Mr. Lafrance was able to speak to a lawyer, albeit not a lawyer he identified, knew or wished to consult. Further, the evidence was obtained in a non-intrusive manner and with little impact on Mr. Lafrance’s bodily integrity. [ 74 ] Other aspects of impact are more difficult to assess.

The right to counsel of choice allows an accused person the chance to speak to someone he knows or knows of, someone he respects - if only by reputation - and someone who may have knowledge of the accused by reason of prior dealings. The value of this lies in the context in which advice is given and in the confidence the accused may feel in the advice he receives. The loss of that context and confidence diminishes the value of the advice.

This impact of the breach at least balances the minimal intrusion discussed earlier. [ 75 ] Finally, I must consider society’s interest in adjudication of the case on its merits. Certainly there is nothing suggesting that the evidence obtained – being breath samples – was in any manner rendered unreliable and it is significant in the prosecution of the .08

offence before me and potentially significant in the prosecution of the impaired driving offence. [ 76 ] But the administration of justice involves more than the adjudication of this issue or this case.

The society’s interest in adjudication on the merits must also take into consideration society’s interest in ensuring that Charter rights have real meaning and that they cannot be abridged by reason of ignorance or convenience. [ 77 ] Considering both aspects, this factor weighs in favour of exclusion. [ 78 ] Balancing the conclusions and impacts regarding the three factors, I am satisfied that admitting the evidence in these circumstances would bring the administration of justice into disrepute. The Certificate of Qualified Technician will not be admitted as evidence in the trial of these charges.

FORM OF CERTIFICATE OF SERVICE [ 79 ] Mr. Lafrance also argued that the Certificate of Service on the Certificate of Qualified Technician was irregular and that the Certificate ought to be excluded on that basis. In light of my decision above, it is not necessary that I decide this issue and I decline to do so. _________________________________ B. Tomkins, J