R. v. Markovic, 2013 ONCJ 300

COURT FILE No.: Toronto DATE: 2013-05-1 Citation: R. v. Markovic , 2013 ONCJ 300 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — MILENKO MARKOVIC Before Justice Mara B. Greene Reasons for Judgment released May 1, 2013 O. Delgado………………………………………………………………………… for the Crown F. Fedorsen and A. Little………………………………….……………... for Mr. Markovic M. B. Greene, J: Introduction [ 1 ] Mr. Markovic was arrested on January 29, 2012 and charged with driving while having over 80mg of alcohol in 100ml of blood. At trial, counsel for Mr. Markovic argued that his client’s rights as guaranteed by

section 10(

b) of the Charter were violated and that in light of this violation, the results of his breathalyser tests should be excluded. Relevant Evidence [ 2 ] On January 29, 2012 at 2:39 a.m., Mr. Markovic was driving home from the Eagles club at approximately 2:40 a.m. when he was stopped by a R.I.D.E. program . P.C. Bellion, one of the officers working the R.I.D.E. program, approached Mr. Markovic’s vehicle to speak to Mr. Markovic and immediately detected an odor of alcohol emanating from Mr. Markovic’s breath. When asked, however, Mr.

Markovic denied consuming any alcohol. [ 3 ] Having detected an odor of alcohol on Mr. Markovic's breath the officer formed the proper grounds to demand that Mr. Markovic provide a sample of his breath into an approved screening device. [ 4 ] At P.C. Bellion’s request, Mr. Markovic pulled over his vehicle and provided a sample of his breath into an approved screening device. The machine registered a fail, which signified to P.C. Bellion that Mr. Markovic had over 80mg of alcohol in 100ml of blood. As a result, Mr.

Markovic was arrested for driving while having over 80mg of alcohol in 100ml of blood and advised of his right to contact counsel. P.C. Bellion also read to Mr. Markovic the breathalyser demand. [ 5 ] In response to being arrested, Mr. Markovic begged the officer to give him a warning. He then asked to call his pregnant wife. The officer advised Mr. Markovic that he could not contact his wife at that time but he could call a lawyer. Mr. Markovic replied that he wanted to call his lawyer, Zoren Sandler, but did not have his telephone number.

[ 6 ] P.C. Bellion and Mr. Markovic then entered the R.I.D.E. truck and P.C. Bellion telephoned dispatch in an attempt to locate a telephone number for Mr. Sandler. At 2:53am., the officer received the number for Mr. Sandler and called him. As there was no answer, P.C. Bellion left a message for the lawyer to call him back. P.C. Bellion then telephoned duty counsel because he assumed that Mr. Sandler would not call back given the time of day. [ 7 ] Mr.

Markovic, when told that there was no answer at his lawyer’s office, advised the officer that his wife had his lawyer’s cellular telephone number. [ 8 ] At 3:00am, Mr. Markovic’s wife was called. Mr. Markovic spoke to his wife for approximately one minute and then he passed the telephone to the officer who spoke to Mr. Markovic’s wife for approximately ten more minutes. [ 9 ] Immediately after ending the telephone conversation with Mr. Markovic’s wife, duty counsel called and Mr. Markovic was instructed to speak to duty counsel. [ 10 ] According to Mr.

Markovic, he spoke to duty counsel for approximately three minutes. He did not find the information provided particularly useful but did not complain to the police about it. It was his impression that he would not be afforded another opportunity to speak to counsel and that he had to go ahead with the providing a breath sample or else be charged with refusing to provide a sample. Mr. Markovic formed this impression because once off the telephone with duty counsel he was told by P.C. Bellion that Mr.

Sandler could not be reached, that they did not have all night and that he had to provide a breath sample now or be charged with failing to provide a sample. I note that despite Mr. Markovic testifying that he did not find the advice from duty counsel all that useful, he did rely on parts of that advice when in the breath room. [ 11 ] Mr. Markovic did, while in the breath technician’s room, ask to speak to his wife again but was at first told he could not. Mr. Markovic then asked again and was told that he could call his wife later after he provided the sample of his breath. [ 12 ] P.C.

Bellion presented a different version of events. He testified that after leaving a message for Mr. Sandler at his office he obtained Mr. Sandler’s cellular telephone number from Mr. Markovic’s wife. He then called the cellular number two times, once at 3:12 am and again at 3:14am. On each occasion, the lawyer did not answer the cellular telephone and there was no mechanism to leave a message. P.C. Bellion further testified that he only had Mr. Markovic speak to duty counsel because he assumed, in light of the time of day, that Mr. Markovic’s lawyer would not call back.

As far as he was concerned speaking to duty counsel was better than nothing. When pressed in cross-examination, P.C. Bellion testified for the first time that he asked Mr. Markovic if it was O.K. to speak to duty counsel and that Mr. Markovic replied that it was. This conversation, however, was not in the officer’s notebook nor was it repeated on video in the breath technician’s room. [ 13 ] P.C. Bellion further testified that Mr. Markovic could have spoken to any lawyer he wanted had he suggested another one. Mr. Markovic, however, never gave him the name of another lawyer. P.C. Bellion also never asked if Mr.

Markovic had another lawyer nor did he tell him that he could try to contact a different lawyer. Mr. Markovic testified that he did not realize that he could ask to speak to a different lawyer, the impression he had from PC Bellion’s comments was that his only choice was to speak to duty counsel or nothing. Had he known, he would have asked to speak to a lawyer who was a friend of the family, Dragi Zekavica. [ 14 ] Mr. Markovic provided his first breath sample at 332 a.m. yielding a reading of 125 mg. of alcohol in 100ml of blood.

His second reading was at 3:44 am with a reading of 112mg of alcohol in 100ml of blood. [ 15 ] At 3:32 a.m., P.C. Bellion telephoned Mr. Markovic’s wife and gave her instructions on where to pick up Mr. Markovic. [ 16 ] Mr. Markovic was released at 402 a.m.. P.C. Bellion thought that Mr. Markovic’s wife was there when he Mr. Markovic left the truck, but he could not recall for sure. He conceded that it would not have been safe to just leave Mr. Markovic on the side of the expressway which is why he thought he did not do this. Mr.

Markovic testified that when he was released by the police the RIDE trailer left immediately, leaving him alone at the side of the expressway until his wife picked him up almost an hour later.

Relevant legal principles [ 17 ]

Section 10(

b) of the Charter provides that all persons upon arrest or detention must be advised of their right to counsel and given a chance to contact and consult with counsel. The exact extent of this right has been clarified by the appellate courts over the years. [ 18 ] In the case at bar, defence counsel conceded that Mr. Markovic was advised of his right to counsel and was able to consult with a lawyer. Counsel also conceded that P.C. Bellion did attempt to contact Mr. Markovic’s counsel of choice. What is in issue is whether P.C. Bellion,

i) gave Mr. Markovic sufficient information about his right to speak to counsel of choice and ii) waited enough time for counsel of choice to call back before advising Mr. Markovic to speak to duty counsel. [ 19 ] These two separate but related issues require an understanding of what the police are required to do to facilitate contact with counsel of choice at 3:00 in the morning. [ 20 ] In R. v. Kumarasamy , [2002] O.J. No. 303 (S.C.J.) , Justice Durno, held that “there is no breach of s.10(

b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so”. He further held, however, that the police must facilitate contact with counsel even if “the person has counsel’s number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.” In the case at bar, the police adhered to these obligations.

The question is whether they were required to wait longer than the three minutes they did in fact wait for counsel of choice to call back. [ 21 ] In R. v. Zaidi , [2007] O.J. no. 4105 (SCJ) , Justice Langdon held that where counsel of choice is not readily available, the police must still wait a reasonable amount of time for counsel to call back before relying on duty counsel. In that case, the officers called duty counsel 40 seconds after leaving message for counsel. The court held that this was woefully inadequate. [ 22 ] In 2010, the Supreme Court of Canada addressed this issue in more detail in R. v.

Willer [2010] S.C.R. 429. In that case, the Supreme Court of Canada held at paragraph 35, Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(

b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond.

What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black . [ 23 ] The Supreme Court of Canada further held, however, that while the police have an obligation to wait a reasonable amount of time to allow the detainee to consult with counsel of choice, once a detainee has spoken to counsel, be it counsel of choice or duty counsel, if the detainee does not complain about the advice received, the detainee cannot then argue at trial that his or her rights were violated (see R. v.

Willer, supra at paragraph 42). [ 24 ] The issue of how much time the police must wait for a detainee to reach counsel of choice has been considered by trial courts a number of times since the Supreme Court of Canada’s decision in R. v. Willer. [ 25 ] In R. v. Vizzari, [2012] O. J. No. 2945 (OCJ) , the trial judge found a violation of

section 10(

b) of the Charter where the police waited two minutes for counsel of choice to call back before calling duty counsel and another fifteen minutes before he actually spoke to duty counsel. Even though twenty minutes had passed and counsel of choice had not called back, the trial judge still found violation of

section 10(

b) because the officers told Mr. Vizzari that he would have to take the test regardless of whether his lawyer called back. It was only because of this comment that Mr. Vizzari spoke to duty counsel instead of waiting longer for his own lawyer [ 26 ] Similarly, in R. v. Ho, [2011] O.J. No. 3524 (OCJ) , Justice Gorewich found a violation of

section 10(

b) of the Charter where Mr.

Ho had asked to speak to a specific lawyer but was put through to duty counsel instead when counsel had not called back. In Ho, the officers called duty counsel two minutes after leaving a message for counsel of choice. Moreover, they then proceeded to have Mr. Ho speak to duty counsel without first telling him that his counsel of choice was unavailable. In that case, like the case at bar, Mr. Ho did not complain at the time about the advice he received from duty counsel. In finding a 10(

b) breach, the court specifically addressed the fact that Mr. Ho never complained about the quality of legal advice he received from duty counsel. In finding that this was effectively meaningless, Justice Gorewich wrote at paragraph 35, … I do not find his charter rights were any less violated as a consequence of his not complaining thereafter. In my view, it is unrealistic to expect that a citizen would know what he or she should or should not do in these circumstances.

Application of the Law the facts in the case at bar [ 27 ] In the case at bar, the officer properly took steps to ascertain the telephone number for counsel of choice. In my view, however, Mr. Markovic’s rights as guaranteed by

section 10(

b) of the charter were nonetheless violated when the officer failed to wait a reasonable time for counsel to call back before starting the breath tests. [ 28 ] I appreciate that the officer testified that had Mr. Markovic asked for another lawyer he would have tried to contact another lawyer, but in my view, without the officer communicating this fact to Mr. Markovic, there was no way for him to know this.

Section 10(

b) of the charter has both an informational and implementation component. Mr. Markovic was not in a position to know he could ask for another lawyer without first being told this was an option. [ 29 ] Similarly, I appreciate that Mr. Markovic did not complain about duty counsel’s advice and, as is clear from the video in the breath technician’s room, Mr. Markovic followed at least some of the advice duty counsel gave him. In my view, however, it does not necessarily follow that Mr. Markovic was satisfied with the advice that he received or that he did not want to consult with his own lawyer.

I reach this conclusion in part for the same reason Justice Gorewich did in R. v. Ho, supra. I agree that it is unrealistic to expect that a citizen who has little to no prior involvement with the criminal justice system to know that there is some value in expressing their dissatisfaction with the legal advice received. I further find that it is not unreasonable for Mr. Markovic to grasp on to the only legal advice he received no matter how dissatisfied he was with the overall discussion with duty counsel given his apparent inexperience with the criminal justice system. [ 30 ] Moreover, I believed Mr.

Markovic when he testified that he did not know the full extent of his rights. The fact that Mr. Markovic referred to duty counsel as the Crown on more than one occasion highlighted how unfamiliar he was with the criminal justice system. It was also clear from the video from the breath technician’s room that Mr. Markovic was very distraught and was not given much of an opportunity to ask questions. [ 31 ] I appreciate that Mr. Markovic did “humbly” ask to speak to his pregnant wife more than once while in the breath technician’s room.

I note, however, that the officer’s responses were inconsistent and unclear even to me. At first the officer said “no” when asked this question. Moments later, when Mr. Markovic repeated the question, the officer said “I told you yes already but later”. It is unclear when the officer said “yes” and what “later” meant. In my view, the fact that Mr. Markovic asked to speak to his wife and not his lawyer is in no way indicative of his satisfaction with the legal advice he received or that he understood his right to ask to speak to other people. The only inference I draw from this request was that Mr.

Markovic was concerned about his pregnant wife and about getting home that night. [ 32 ] Finally, I reject P.C. Bellion’s evidence that he asked Mr. Markovic if it was O.K. to speak to duty counsel instead of counsel of choice and that he asked Mr. Markovic if he was satisfied with the legal advice he received. These highly important conversations were not recorded in the officer’s notes nor were they referenced during the videotaped discussion in the breath technician’s room.

I also note that the officer during the course of his evidence often read directly from his notes, and when information was not included in his notes, he had a difficult time remembering all the details. In light of this, I find P.C. Bellion’s evidence on this point unreliable. Moreover, I accept Mr. Markovic’s evidence that these conversations did not occur. Overall I found Mr. Markovic to be an honest and forthright witness. He was consistent, did not over exaggerate, did not evade questions and in general presented as a credible and reliable witness. [ 33 ] Ultimately, I accept that Mr.

Markovic wanted to speak to a lawyer he knew, that he was not fully informed of the extent of this right and therefore could not properly exercise this right. I further find that P.C. Bellion failed to wait a reasonable amount of time for counsel of choice to call back before advising Mr. Markovic that he had to provide a breath sample or be charged with refusing to provide a sample. In light of these findings, Mr. Markovic has met his burden and established that his rights as guaranteed by

section

10(

b) of the Charter were violated. [34] Before turning to section 24(2) of the Charter, I will briefly make reference to two cases referred to by the Crown. In both thesecases the Appellate Courts found no charter breaches. In my view, both cases relied upon by the Crown are very different from the factsin the case at bar. [35] In R. v. Willer, supra, the Supreme Court of Canada did not find a breach of Mr. Willer’s 10(

b) rights. In reaching this conclusion,the court noted that

a) the officers gave Mr. Willer the chance to wait for his lawyer to call or to speak immediately to duty counsel andhe chose to speak to duty counsel;

b) Mr. Willer explicitly stated he was satisfied with the advice he received from duty counsel; and, c)throughout their questioning of Mr. Willer, the police advised Mr. Willer that he had an open ended invitation to contact counsel ofchoice. In the case at bar, Mr. Markovic was not given the option of waiting for counsel of choice, he did not advise the officer that hewas satisfied with the advice he received from duty counsel and the police did not provide him with an open invitation to contact counselof choice. [36] In R. v. Wilding, [2007] O.J.

No. 4775 (C.A.), the other case relied on by the Crown, the accused, like in the case at bar, was notable to speak to counsel of choice before providing a breath sample. The difference is that in Wilding, the officers were unable to evenfind a telephone number for the lawyer, let alone leave a message. In concluding that no charter breach occurred, the court noted thatthe police really did all they could do to contact counsel of choice. The officers first telephoned Mr. Wilding’s friend to obtain thetelephone number. When this proved unsuccessful, they looked up the lawyer’s name in a lawyer’s telephone book.

The officers finallylocated a telephone number, but when they tried to call it, they were advised the number was out of service. In upholding the conviction,the appellate Court found that that the police took all reasonable steps necessary to attempt to contact counsel of choice. In the case atbar, the police had an active number for the lawyer but chose not to wait to see if the lawyer would call back in a reasonable time. In myview the issues addressed by the court in Wilding are very different from the issues raised in the case at bar.

Section 24(2) of the Charter Relevant legal principles [37] Pursuant to section 24(2) of the Charter, the Applicant has the burden of establishing on a balance of probabilities that admission ofthe evidence would put the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, theSupreme Court of Canada outlined the test for exclusion of evidence under section 24(2).

The Court stated at paragraph 71: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence onsociety’s confidence in the justice system having regard to:

(1) The seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious statemisconduct)

(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rightscount for little), and

(3) Society’s interest in the adjudication of the case on its merits. The Court’s role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether,considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Application of the law to the case at bar

(

i) Seriousness of the Charter-infringing state conduct [ 38 ] In the case at bar, the police advised Mr. Markovic of his 10(

b) rights and took steps to contact his counsel of choice, including calling dispatch for the phone number and contacting Mr. Markovic’s wife to ascertain a second telephone number for counsel. There can be no suggestion that the officers displayed a pattern of disregard for Mr. Markovic’s charter rights nor is there any evidence of a malicious intent by the officers. Having said that, the officers did fail to wait a reasonable amount of time for counsel of choice to call back before resorting to duty counsel. [ 39 ] The only explanation provided by P.C.

Bellion for why he failed to wait a reasonable amount of time for counsel to call back was that P.C. Bellion thought that Mr. Markovic was satisfied with the advice he received from duty counsel and that his lawyer was not likely to call back at 3:00 in the morning. I note, however, that the officer’s mistaken belief that Mr. Markovic was satisfied with using duty counsel flows directly from his failure to let Mr.

Markovic know that he could wait a reasonable amount of time for his lawyer to call back before deciding whether or not he wanted to resort to duty counsel and before compelling him to provide a breath sample. P.C. Bellion could have avoided this misunderstanding by taking the time to properly explain to Mr. Markovic the extent of his rights. [ 40 ] Counsel for Mr. Markovic argued that one potential explanation for P.C. Bellion not complying with s.10(

b) of the Charter is because he was unaware of the extent of his obligations. In support of this argument, counsel relied on P.C. Bellion’s evidence that it was his understanding that his obligation under s.10(

b) of the Charter was limited to contacting counsel of choice first and if counsel does not call back, then he must call contact duty counsel. He made no mention of having to wait a reasonable amount of time for counsel to call back. Counsel argued that this lack of knowledge is problematic in the case at bar particularly because this obligation is not new nor is it a source of confusion or recent change in the law. I note that in 2007, Justice Langdon in R. v. Zaidi, [2007] O.J. No. 4105 (S.C.J.) commented on the police duty to facilitate contact with counsel of choice.

Justice Langdon stated at paragraph 75, The recurring theme is that police repeatedly prove reluctant, even recalcitrant to facilitate a detainee’s contact with counsel of choice. The more the courts permit police to shirk this duty by defaulting to duty counsel, the less likely it is that the right to counsel of choice will have any real meaning. [ 41 ] I appreciate that the facts in R. v. Zaidi, supra, are somewhat different in that Mr. Zaidi advised the police that he was dissatisfied with the advice given to him by duty counsel. The facts otherwise are quite similar.

In Zaidi the police took a number of different steps in order to locate the telephone number for counsel of choice. They then called the lawyer and left a phone number with the lawyer’s paging system. When no return call came in immediately, the officers contacted duty counsel and Mr. Zaidi later spoke to duty counsel. By the time Mr. Zaidi provided his first breath sample, 20 minutes had passed and his lawyer had not called back. It was in this context that a charter breach was found and the breath results were excluded. [ 42 ] Counsel for Mr. Markovic further argued that P.C.

Bellion’s limited understanding of his obligations under

section 10(

b) of the Charter is not surprising given his evidence that he has not had any training in the charter since Police College in 2001. This is troubling indeed and suggests a real absence of training within the police. What is even more troubling, from my perspective, is that the breath technician, P.C. Pointer, testified that all police officers must attend one training session a year and this training session always includes a piece on the Charter . It is impossible to reconcile the evidence of P.C. Bellion and P.C. Pointer on this point and I am unable to conclude which officer’s evidence is the most accurate.

On P.C. Bellion’s evidence there is no ongoing training for officers available and On P.C. Pointer’s evidence, such training is mandatory, yet it appears P.C. Bellion did not attend this mandatory training. Regardless of the reason why P.C. Bellion has not received any training on the Charter since 2001, it is now well accepted that where an officer acts out of ignorance of the law, the state cannot rely on the good faith of that officer. [ 43 ] There is other circumstantial evidence that arguably suggests that P.C. Bellion did know his obligations under s.10(

b) of the Charter but chose not to follow them. First, I note that P.C. Bellion testified that he asked Mr. Markovic if it was alright to speak to duty counsel instead of his lawyer of choice as his lawyer had not called back. Second, P.C. Bellion testified that after speaking to duty counsel he asked Mr. Markovic if he was satisfied with the conversation with duty counsel. While I rejected P.C.

Bellion’s evidence on this point, the fact that he added this in during his evidence suggests that the officer had some understanding that his obligations to facilitate contact with counsel of choice went beyond calling the lawyer and if he did not call back immediately, to contact duty counsel instead. [ 44 ] This leads into counsel’s second argument. Counsel for Mr. Markovic argued that on all the evidence before the court, one realistic explanation for why P.C. Bellion did not wait longer for Mr. Sandler to call back is because Mr. Markovic was the last breath test of the shift and P.C.

Bellion was in a rush to return to the station. I note that this suggestion was put to P.C. Bellion and he adamantly denied it. In support of this argument, however, counsel pointed to the fact that Mr. Markovic was in fact the last arrest of the shift; that at one point the officer told Mr. Markovic that they did not have all night; that the officers all left the scene once Mr. Markovic was released; and, the officers left Mr. Markovic standing alone on the side of the expressway, in a dangerous location to wait for his

wife. [ 45 ] I find some merit to this argument, in particular because I accept Mr. Markovic’s evidence that P.C. Bellion told him that they did not have all night. When I consider all the evidence I find that the breach in the case at bar was a product of P.C. Bellion not knowing the full extent of his obligations coupled with his desire to return to the station in a timely fashion. I am not saying that P.C. Bellion intentionally breached Mr. Markovic’s rights because he was in a rush. P.C. Bellion in many ways presented as a conscientious office. Instead, I find that P.C. Bellion’s lack of information on the extent of one’s 10(

b) rights coupled with the time of night led to him not properly consider all the steps required by

section 10(

b) of the Charter. [ 46 ] When I consider all the evidence presented at trial, I agree with the Justice Gorewich in R. v. Ho , that the breach in the case at bar is more than a trivial violation or a product of inadvertence. While the conduct in question is not the most serious of violations on the spectrum, it is also not trivial in nature.

In my view, this prong militates in favour of exclusion of the evidence. (ii) Impact of the breach on the Charter-protected interests of the accused [ 47 ] On its face it is tempting to conclude that the impact of the breach on the charter protected interests of the accused was minimal because Mr. Markovic did in fact speak to duty counsel and, to some extent at least, chose to follow the advice of duty counsel.

If this was the full analysis, however, then what is the value of guaranteeing access to counsel of choice. [ 48 ] In some cases, the value of allowing a detainee to consult with counsel of choice is obvious because the accused person has expressed dissatisfaction with the advice received from duty counsel. In many other cases, however, the accused, like Mr.

Markovic, will not know at the time of the breath test that he or she can express their dissatisfaction with the advice or that there is any benefit in expressing their dissatisfaction. [ 49 ] There are, however, in my view, some obvious benefits to consulting with counsel of choice as opposed to duty counsel. Firstly, the detainee is speaking to someone he/she already knows. Secondly, counsel of choice will, in many cases, already know some information about the detainee to help structure the advice and highlight the pros and cons of cooperating with the police.

Thirdly, counsel of choice in most cases will be a lawyer that the detainee already trusts and is comfortable with thereby increasing the likelihood of having a full and frank conversation which will also produce better legal advice. [ 50 ] Moreover, as noted above, I accepted Mr. Markovic’s evidence that he in fact did not find the advice from duty counsel helpful. [ 51 ] In light of this, while I appreciate the impact on the charter protected interest is not as high as it might be in other cases, it can hardly be deemed minimal.

In my view this prong militates slightly in favour of exclusion of the breath samples. (iii) Society’s interests in adjudication on its merits [ 52 ] There is a strong societal interest in trying this case on its merits. This is a serious offence that has the potential of risking the lives of many innocent persons. Moreover, the results of the breath tests are reliable and are necessary for the successful prosecution of this case. In my view, this prong militates in favour of inclusion of the evidence. [ 53 ] In balancing all three factors, in my view this case is a very close call.

As noted above, the breaches, while not the most egregious breaches were also not trivial. Moreover, Mr. Markovic did receive some legal advice and chose to rely on at least some of the advice, but also testified that in general the advice given by duty counsel was not that helpful to him. Finally, the court must consider the reality that, if the breath results at are admitted at trial, Mr. Markovic will likely be convicted. To that end, I note that impaired drivers are a menace to society and place the safety of all persons on the road and sidewalks at risk.

The offence of impaired driving is so serious and dangerous that Parliament has enacted legislation to give police special powers to investigate and detect impaired drivers. Without the highly reliable results from the breathalyser test, the Crown will be unable to successfully prosecute this case.

[ 54 ] On the flip side, the police and the Crown are statutorily given extra powers to detect impaired drivers and enforce impaired driving laws. These extra powers permit officers to delay giving accused persons their rights to counsel and require detained persons to incriminate themselves by making it an offence to refuse to comply with a demand for a breath sample.

All these intrusions are necessary in order to properly protect the public but they are intrusions and as such, the police and prosecution must be held to a high level of compliance. [ 55 ] When I balance all the relevant factors, recognizing that this is a close call, I am satisfied that the defence has established that inclusion of the breathalyser readings, given the nature of violation, would bring the administration of justice into disrepute and I will exclude the blood-alcohol readings. Released on May 1, 2013 __________________________________ Justice M. B. Greene