R. v. Dumaine Date:, 2010 BCPC 310

Citation: R. v. Dumaine Date: 20101123 2010 BCPC 0310 File No: 23703-1 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREA ROSE DUMAINE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M. A. GRAY Counsel for the Crown: J. Johnston Counsel for the Defendant: D. Jenkins, Q.C. Place of Hearing: Quesnel , B.C. Date of Judgment: November 23, 2010 INTRODUCTION [ 1 ] In this proceeding, Ms. Dumaine is charged with impaired driving and with having excessive amount of alcohol in her body.

In the trial, a Voir Dire was conducted to determine the legality of the demand for a roadside sample of breath, and the admissibility of a breath sample. Ms. Dumaine, by her counsel, alleges that her Charter of Rights were breached and a sample was taken without the necessary grounds. I ruled on this issue and, in oral reasons delivered July 8, 2009, determined that Ms. Dumaine’s rights were violated and the subsequent breath sample and evidence were therefore not admissible on the trial. [ 2 ] After the ruling, the Supreme Court of Canada issued their decision in R. v Grant [2009] SCC 32, and Ms.

Johnston, on behalf the Crown Counsel, requested that I review my ruling in light of the principles that were set forth in Grant and re-examine the question of admissibility under the

Section 24 provisions of the Charter . I agreed that this was an appropriate application and I was able to return to the Voir Dire proceeding and review this decision, as the trial was not yet concluded. I heard further argument from both counsel before re-commencing the trial and I have had the advantage of written submissions that were provided to the court on June 7 and July 7 of this year. I now provide my decision of the Voir Dire issue, in light of Grant, and its refinement of the analysis that is required on a

ruling for the admission or exclusion of evidence under

Section 24 and an alleged Charter breach. I will provide a review of the facts for completeness of the written record. FACTS [ 3 ] The facts as I found them are set out in my oral reasons as follows: [3] Now, the event took place June 7, 2008. It was here in the Quesnel city on our main artery, Highway 97. The stop took place around 1:30, 2 a.m. in the morning.

Constable Harvey indicated that he had observed a vehicle travelling southbound through the area of the city and approaching the bridge across the Quesnel River, and the highway then proceeds up a long hill into what is known as the Dragon Lake area. [4] The officer observed the vehicle for a long distance and initially observed the vehicle travelling below the speed limit. Instead of travelling at or near 50 kilometres, the posted speed limit, the vehicle was travelling at 40 kilometres. That drew the officer's attention. He was travelling behind that vehicle.

He commenced his observations, observing the vehicle to wander in its lane. It still proceeded at approximately 40 kilometres, and the particular road contour at that place had curves and a rise as the road approached the bridge, and there was a sharp turn to the right onto the bridge, as the officer described it. [5] During that period of time, the vehicle, as I say, was travelling slowly and wandered in its lane. It appeared to cross a fog line, although as I heard the evidence, it appeared that the tires of the vehicle touched the fog line and, later on, touched the centre line.

In fact, the officer indicated that it was near the centre line but it did not touch the centre line. [6] That is the extent of the wandering in the laneway by the vehicle. [7] After travelling through the bridge, the officer then placed the emergency equipment on and started the overhead lights.

According to his evidence, there was a five-second lag between the time of the lights and the brake and then appeared after that in which the vehicle then pulled over to the highway shoulder which had an extensive area for pullover. [8] The officer did acknowledge there were many obstacles in terms of the road and in terms of the hill, the sharp turn onto the bridge, and then a further hill, an extensive hill after the bridge which required, certainly, acceleration. [9] As he observed the vehicle, he determined that from his experience as an officer and the fact that he has knowledge of the interaction of alcohol and driving, that as he observed that

section of the roadway, there were a number of tasks involved in driving a vehicle and multiple decisions have to be made, and as he described it, the coping technique of a driver is made difficult by the many factors that they have to deal with, and as he determined, there was enough difficulty in the driving that this person was not able to function appropriately, was not able to manoeuvre and complete the multitasking that would be required. That brought him to proceed with the stop. [10] At the stop, he approached the driver's side. He requested documents.

He was provided a B.C. driver's licence without any difficulty by the individual, and it was determined that the individual was Ms. Dumaine, Andrea Dumaine, the accused. He compared, of course, the photograph on the licence with the individual before him and confirmed that it was Ms. Dumaine. [11] There was some difficulty obtaining the registration material. In fact, Ms.

Dumaine was not able to locate or know the registration document and was fumbling with the actual ICBC instruction manual in the package. [12] He did, in his evidence, as I said earlier, in his careful responses, he indicated in examination in chief that the B.C. driver's licence was provided with no difficulty. He made observations, observed her eyes to be bloodshot, glassy, and appeared to be watery.

Again, he was cautious or careful in his description. [13] He testified that during the shift, he had no ability to smell, that because of an illness, a cold, his nasal passages were completely blocked and he could not smell anything. He was certainly aware of that when he made his first observation of this motor vehicle and commenced his investigation with that knowledge. [14] He asked Ms. Dumaine to get out of her vehicle. She did so without any difficulty. Then he asked her about the situation of driving and asked if she knew why the police had stopped her. She said she did not.

She was told that she had been driving poorly and she responded that she did not notice that and that at the time she was arguing with her boyfriend, an individual that was in the passenger seat. [15] He questioned her about liquor and alcohol, and she advised that she had a beer, one with supper, and that was hours ago. It appeared to the officer that Ms. Dumaine had been to the bar.

She was dressed for going out for an evening and that he was alert to her having some difficulty explaining the situation. [16] He indicated in his testimony that he knew that she had a liquor smell about her, and I will just make reference to the transcript on that point because although the officer was not able to smell alcohol, he indicated on two occasions that he knew that she was consuming. [17] At page 15 of the transcript at line 10, after she had said that she had not noticed what she was doing and that she had been arguing with her boyfriend, the officer says this: A At this point I -- I am sure if I had to bet one way or the other, I knew the smell of liquor was there, I just couldn't smell it so at this time I asked her if she had anything to drink.

And she responded, and again, she described the fact that there had been the drinking of one beer at supper. [18] Then the matter was further developed in cross-examination at page 29, line 32, and I will refer to that shortly. [19] Dealing with the evidence that was presented at the examination in chief, the officer indicated that he had a suspicion and that at that point, after the comment about the beer at suppertime, that he had formed the reasonable suspicion. [20] Now, the officer indicated that he was not relying on any one factor but that these many elements or factors accumulated to enable him to develop a suspicion, and it enabled him to form the reasonable suspicion and that he proceeded with his investigation, and he further described that the parties attended at the detachment. [21] Now, in cross-examination, he indicated that yes, in response to her question that she had alcohol hours before, that it could well have been actually nine hours before and that the officer indicated that he did not make any further inquiries on that particular point. [22] He reiterated that he observed the driving pattern and that it was problematic.

He conceded that the individual may have been distracted from other reasons beyond alcohol; in fact, arguing with the boyfriend would be one example. [23] The officer did concede again in cross-examination that the individual, Ms. Dumaine, had no difficulty providing the driver's licence and that, in fact, he conceded that if the registration material had been put in the car by a mother or someone, then yes, indeed, the driver, Ms.

Dumaine, would not know what the piece of paper was or what to be looking for. [24] Now, that was the evidence that was presented on the Voir Dire, and as the officer indicated, he formed the reasonable suspicion based on his observations of the driving, the low speed of the vehicle, the fact of the various requirements of multitasking because of the road contour, the slow response to the police lights, and he described that he expected a quicker response because at that time of night the emergency lights from the police cruiser would have illuminated the vehicle ahead, in other words, Ms.

Dumaine's vehicle, and she should have, in his view, responded more promptly, and that was another factor that he took into account in terms of forming a reasonable suspicion. [25] He also took into account that this was an event that occurred in the early morning hours at the time of the closing of the liquor establishments in the area.

He also took into account the fact that she had commented about alcohol consumption at dinnertime. [26] Now, I noted that the officer was very careful and forthright in his answers, and he obviously, as he explained, was taking care during his investigation to come to a determination as to the nature of the individual's condition. [27] Now, I mentioned that in cross-examination he elaborated on the other point being that he was of the view that she had alcohol in her system, and at line 32 of the transcript at page 29, he says this in a very extended answer, and he explains that he was concerned that her responses indicated that she did not appreciate the nature of her driving and that as he discussed matters with her, she appeared to be justifying or rationalizing her conduct which, again, provided him with a further factor to determine that perhaps she had been drinking earlier, although in cross-examination he did concede that perhaps she did not appreciate the actions on the road. [ 4 ] I accepted the officer’s evidence as reliable.

He was a thorough witness, and it was obvious in his measured testimony that he carefully observed a series of factors that he accumulated to reach his opinion of a suspicion, one that the Criminal Code describes as being based on a “reasonable ground of suspicion.” CROSS EXAMINATION [ 5 ] During cross-examination, Mr. Bauman, who was counsel for Ms. Dumaine at the time, thoroughly questioned the officer on his observations and his actions. The officer conceded that the actions of Ms. Dumaine could be explained to have been caused by factors other than alcohol.

SUBMISSIONS [ 6 ] I received written submissions from both counsel and Crown in their submissions rely on R. v. Grant (see above) and its companion cases. The Defence has relied on numerous authorities which set out principles regarding the issue of reasonable suspicion and the appropriate Charter analysis. [ 7 ] The Crown argues from the recent Supreme Court of Canada cases and especially from Shephard that the officer had sufficient information to form the reasonable suspicion. If the officer did not have sufficient information, than any breach of the Charter under a

Section 24 analysis should determine that the evidence obtained from this breach should be admitted. The evidence is of a quality that is only minimally intrusive upon the privacy rights of the individual, and that under Grant, this evidence is reliable and serves the truth- seeking function. [ 8 ] The Defence has argued that the taking of the breath sample is a serious intrusion upon the privacy rights of the accused person. Ms.

Dumaine was stopped in her travels and taken to the detachment, separated from her companion and isolated for several hours. [ 9 ] The step that set this entire investigation in motion was the decision by the police officer that the person has alcohol in their blood system. Once the step has been taken, then authority of the state controls the actions of the individual. Defence argues that the primary step must be carefully examined and the police have to be held to the necessary standard that they have a reasonable ground to suspect the existence of alcohol in the body. ANALYSIS

[10] I have reviewed the authorities presented by Crown and Defence and rely on the principles set out in those cases. CrownCounsel referred to the following cases: 1. R. v. Grant [2009] SCC 32 2. R. v. Suberu, 2009 SCC 33 3. R. v. Shephard, 2009 SCC 35 [11] Defence Counsel referred me to the following cases: 1. R. v. Buker, 2010 ABPA 203 2. R. v. Leonardo, 2009 ONCJ 507 3. R. v. Kerr, 2010 ONCJ 189 4. R. v. Foley, 2010 NL P.C. 17986 5. R. v. Haut, 2010 ABPC 2 6. R. v. Sergalis, (ON S.C.) 7. R. v. Appleby, 2009 ABPC 301 8. R. v.

Robinson, 2009 ONCJ 450 [12] I must determine if the officer had grounds for a reasonable suspicion. This opinion must be based on subjective and objectivegrounds, in other words it must be “reasonable”. Beyond the officer’s subjective assessment there must also be confirmatory evidencethat supports the suspicion in an objective way. There must be objective evidence that a reasonable person would recognize assupporting an assessment that someone has alcohol in their body. The obvious objective factor is the smell of alcohol.

I must carefullyassess what are suitable objective facts upon which a suspicion can be based. [13] I have also examined several additional cases and will set out pertinent passages. [14] I have noted the following passages from R. v. Skuce [2009] BCPC 0333, a decision of Judge Skilnick: [20] In R. v. Daggitt (1991) 30 M.V.R. (2d) 53 (B.C.S.C.), Madam Justice Ryan, then a member of the Supreme Court of thisprovince, set out the proper test to be used in assessing whether a police officer has reasonable and probable grounds to demand a breathsample.

She wrote at p. 60: “The test is therefore: whether the circumstances that the peace officer believes to be true are such that would give rise in the mind of areasonable person to the belief in the likelihood that the accused has committed an offence under s. 253.” [21] In R. v. Rhyason 2007 SCC 39, Madam Justice Abella of the Supreme Court of Canada also confirmed that the question ofwhether or not reasonable and probable grounds exist will always be a question of fact.

However she also noted that there is considerableauthority for the proposition that evidence of alcohol consumption alone will generally not amount to reasonable and probably groundsto demand a breath sample under section 254(3). She wrote: 17 As McFadyen J.A. noted, none of the cases relied upon by the trial judge found that evidence of alcohol consumption alone wassufficient to establish reasonable and probable grounds.

The trial judge himself noted that it was a "combination of facts" that formed thereasonable and probable grounds, not evidence of mere consumption, as the following passage from his reasons reveals: [I]t is clear that Stevens did not arrest the Accused arbitrarily.

On the contrary, when deciding to arrest, Stevens had in his subjectiveawareness a combination of objective facts (deceased pedestrian at accident site, and admitted driver with a smell of alcohol on hisbreath, together with other minor evidence consistent with the driver's alcohol consumption), which together reasonably indicate theoffense of impaired driving causing death. [Emphasis added; para. 23.

M.V.R.] He also noted that signs of alcohol consumption merely "suffice to contribute to reasonable grounds" (emphasis added; para. 24 M.V.R.),not establish their existence... 19 This is not to suggest that consumption plus an unexplained accident always generates reasonable and probable grounds or,conversely, that it never does. What is important is that determining whether there are reasonable and probable grounds is a fact-basedexercise dependent upon the circumstances of the case.

In this case, the presence of an unexplained accident was one factor that the trialjudge appropriately took into consideration when determining that those grounds existed. [22] A review of these cases leads me to conclude the following

summary of the law concerning when a peace officer has sufficientgrounds to demand a breath sample pursuant to section 254(3) of the Code: (

a) In order to make a valid demand for a breath sample pursuant to section 254(3) of the Code, a peace officer must subjectivelybelieve that a person is committing, or has, within the past three hours, committed an offence under

section 253 of the Code. (

b) That belief must be based on reasonable and probable grounds.

(

c) Reasonable and probable grounds are made out if the circumstances that the peace officer believes to be true would cause areasonable person to believe in the likelihood that the accused has committed an offence under s. 253. (

d) It is a question of fact whether or not the peace officer has reasonable and probable grounds to form the requisite belief. (

e) Signs of alcohol consumption by the subject driver contribute to the reasonable grounds under section 254(3), but do not generallyestablish their existence in and of themselves. [15] These cases are dealing with the demand under Section 254(3), but I rely on the analysis to determine the proper grounds forreaching a “reasonable suspicion”. [16] In R. v. Johnston [2009] BCPC 0403, Judge Baird Ellan made these comments: [19] Whatever may be the state of the law in other provinces, I agree with Mr. Barrenger for the Crown that the governing case in thisprovince is that of R. v. Todd, 2007 BCCA 176.

The indicia must be evaluated in total, and it is error to consider them individually. [20] To the extent that Todd is reconcilable with earlier cases following Gavin, I would say that those cases turn on the factualexistence of other apparent causes for the symptoms, observed by and acknowledged by the officer, as occurred, for instance, inSoczynski [an injury] and Gavin [an accident].

Indeed, in Gavin, the Court only requires further inquiry as to other causes of thesymptoms where the circumstances present some reasonable possibility of that being the case. [Gavin, para. 8, emphasis added.] [21] This is not a case that turns on the availability of other apparent explanations for the symptoms. Although the officer admitted ofother conjectural possibilities, there is no factual basis for finding another explanation for the symptoms he observed, apart perhaps fromhis admission that it was late, and cold out, and that a person “might” sway because they were tired or cold.

However, there was nothingin evidence to support a conclusion on his part that those were causes for that symptom. In light of Todd, it is clearly not open to theCourt to speculate. [22] In my view, absent factual support for an alternate explanation, admissions by the officer in cross-examination that there “mayhave been” other reasons for one or more of the symptoms does not detract from the objective support for his opinion. The issue here as Iperceive it, then, is strictly one of sufficiency. [23] Both counsel cited a number of cases in which the symptoms were stronger than those here and yet were rejected.

Notably, forinstance, in R. v. Skuce, 2009 BCPC 333, Skilnick PCJ found the grounds insufficient where there was an array of symptoms. However,there was in that case video evidence that refuted the officer’s observations of unsteadiness and problems with speech.

Judge Skilnickdid say that his assessment of the grounds was admittedly based on hindsight, presumably with the benefit of the video evidence. [24] I have not done a survey of all cases with stronger grounds than existed here, as each case turns on its own facts; however, I donote that in many cases where grounds including three or four symptoms are found insufficient, there is another explanation for one ormore of them that arises from the facts. [25] Judge Skilnick applied the test set out in R. v.

Daggitt (1991), 30 M.V.R. (2d) 53 (BCSC) by Ryan J. [then of the BC SupremeCourt] of “whether the circumstances that the peace officer believes to be true are such that would give rise in the mind of a reasonableperson to the belief in the likelihood that the accused has committed an offence under s. 253.” [26] In the later case of R. v. To, [1998] B.C.J.

No. 1323 (C.A.), in dealing with the sufficiency of grounds for arrest, Ryan J.A.stated: Objective grounds must be measured from the standpoint of the officer with his skills and knowledge rather from the standpoint of theaverage citizen. [para. 11]. [27] In addition, Mr. Barrenger cited the cases of R. v. Censoni, [2001] O.J. No. 5189 and R. v. Oduneye 1995 ABCA 295 ,1995 15 M.V.R. (3d) 161 (Alta. C.A.). In Oduneye, the Court accepted that the reasonableness of grounds must be weighed on the basisof the officer’s knowledge base at the time he was dealing with the defendant.

That line of reasoning was adopted in Censoni, whereJustice Hill estated: 36 In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductionsdrawing on experience: Jacques and Mitchell v. The Queen (1996), (SCC), 110 C.C.C. (3d) 1 (S.C.C.) at 12 perGonthier J.; Regina v. Simpson, supra at 501 (quoting U.S. v. Cortez, 449 U.S. 411 (1981) at 417-8); Regina v. Cayer (1988), (ON CA), 66 C.R. (3d) 30 (Ont. C.A.) at 45 per curiam (leave to appeal refused [1989] 1 S.C.R. vi, [1988] S.C.C.A. No.370) (quoting with approval Regina v.

McIntosh (1984), 29 M.V.R. 50 (B.C.C.A.) at 60-61 per Esson J.A.). To this extent, there may besome modification of the objective test of reasonable grounds or as stated in Regina v. Oduneye, supra at 168-9: It is therefore, in a sense subjective because what the court looks into is the state of mind of the officer, what did he understand thecircumstances to be.

It's in a sense, also objective because the court objectively examines the circumstances as understood by the officer. [28] In assessing the objective sufficiency of grounds for making a breathalyzer demand the Court must therefore consider thegrounds from the perspective of the officer with his skills base and knowledge, not from that of the reasonable lay person.

While it is anarea in which the “reasonable” person may have some basic understanding of symptomatology, neither judges nor lay people are trainedto assess physical symptoms of impairment, nor do they have the regular occupational experience of having those assessments testedagainst breathalyzer results. [29] I would characterize the analysis based on this line of cases, and including Todd, as an assessment of the totality of thesymptoms, viewed from the officer’s trained perspective, including any apparent alternate explanations for them which are based on theevidence, and of which he was aware at the time.

In a sense, the Court is taking an appellate role; not substituting its opinion for that of

the trained officer. Judges are specifically proscribed by Todd from analyzing the symptoms from their own [lay] perspective, absentanother apparent explanation based on the circumstances presented to the officer. [30] I might observe that applying such a test largely obviates the purpose of extended cross-examination on possible alternativeexplanations for the symptoms that are not raised on the evidence. This is in my view as well an issue on which the onus will generallylie on the defendant. He is making a Charter application to exclude evidence.

The existence of grounds is not an element of an “over.08” charge. While the Crown bears the initial onus of establishing that the warrantless seizure of breath samples was justified in thesense that the officer was acting within his or her authority, the evidentiary onus will pass to the defendant if the officer makes anassessment based on symptoms that are collectively consistent with probable impairment, from the officer’s experienced perspective. [17] In R. v. Chipchar [2009] ABQB 562, Madam Justice D. L. Shelley reviewed the issue of reasonable suspicion and made thesecomments: [19] Binnie J. in R. v.

Brown, 2008 SCC 18 , 2008 SCC 18, discussed the difference between mere suspicion andreasonable suspicion (at para. 75): "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion meanssomething more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. As observed by P.Sankoff and S.

Perrault, "Suspicious Searches: What's so Reasonable About Them?" (1999), 24 C.R. (5th) 123: [T]he fundamental distinction between mere suspicion and reasonable suspicion lies in the fact that in the latter case, a sincerely heldsubjective belief is insufficient. Instead, to justify such a search, the suspicion must be supported by factual elements which can beadduced in evidence and permit an independent judicial assessment. [p. 125]...

What distinguishes "reasonable suspicion" from the higher standard of "reasonable and probable grounds" is merely the degree ofprobability demonstrating that a person is involved in criminal activity, not the existence of objectively ascertainable facts which, in bothcases, must exist to support the search. [p. 126] [20] Thus, reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supportingfacts, not a probability. In R. v.

Jacques, (S.C.C.), [1996] 3 S.C.R. 312, Gonthier J., for the majority, held that the“suspicion on reasonable grounds” standard in the Customs Act requires only that there is a possibility that an offence is beingcommitted. Wachowich J. (as he then was) in R. v. Bilodeau (1990), 26 M.V.R. (2d) 170 (Alta.

QB), took the same approach in thecontext of impaired driving, noting (at para. 5): A roadside demand under s. 254(2) only requires the officer to "reasonably suspect" that the accused is operating a motor vehicle withalcohol present in his body in order to make a demand for a sample of an accused's breath for a roadside analysis. In view of the wording, "reasonably suspects", the Court is not concerned with whether the officer's belief is the more probable inferenceto be drawn from the facts as long as his belief is bona fide.

Thus, the smell of alcohol on the accused's breath, together with a speedinginfraction, was sufficient to make a demand. (R. v. Trent, (1979) (ON CJ), 47 C.C.C. (2d) 321). See also R. v. Singh (2006), 44 M.V.R. (5th) 285; R. v. Haydl (2003), 58 W.C.B. (2d) 230 (Ont. C.J.) at para.14; and R. v. Tidlund, 2008ABPC 113 , 2008 ABPC 113 at para. 25. [18] I must examine the particulars of this roadside stop to determine if the police officer had both the subjective and objectiveelements to support his suspicion.

I note the following and find as fact: (1) the officer acted carefully in observing numerous factors (2)the officer was confident in his suspicion (3) the suspicion was based on subjective elements and limited objective elements (4) theabsence of odour of alcohol required the officer to conduct further observations (5) the officer was convinced - he “just knew she hadbeen drinking” (my

interpretation) (6) his observations of Ms. Dumaine’s conduct at roadside did not match his observations when firstfollowing her vehicle (7) limited enquiry followed at the roadside to assess his suspicion or re-assess his suspicion. [19] I have determined that the objective portion of the grounds must be factors that a reasonable person would rely on to reach asuspicion that an individual has alcohol in their body. This objective factor must be observable, measurable or verifiable. It must be afactor that the court can assess.

It is a suspicion that a qualified and reasonable person would have also reached. [20] I conclude that Constable Harvey did not have the objective factor necessary for the suspicion. Without the odour of liquor, theofficer did not have objective factors to reach his conclusion. He assessed a variety of observations of the driving and made what I haveconcluded was a subjective assessment of the operation of the motor vehicle. I recognize that each case must be determined on theparticularity of the circumstances, and I also acknowledge that this set of factors is close to the line.

Nonetheless, I have concluded thatthe officer rendered an opinion that was subjective in content. I comment further on the seriousness of this mistake. [21] I turn now to the issue of the appropriate remedy for this breach of the Charter rights. [22] In R. v. Reddy [2010] BCCA 11 , Mr. Justice Frankel stated: [90] At the time the trial judge made his ruling, the approach to be taken with respect to the application of s. 24(2) was set out in theleading cases of R. v. Collins, (SCC), [1987] 1 S.C.R. 265, and R. v. Stillman, (SCC), [1997] 1 S.C.R.607.

However, the Collins/Stillman framework has been displaced by the Court’s recent judgment in Grant. In that decision, McLachlinC.J. and Charron J. reformulated the approach to be taken in determining whether evidence obtained in breach of a Charter right shouldbe excluded. At the outset of their discussion, they explained the purpose of s. 24(2): [67] The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term “administrationof justice” is often used to indicate the processes by which those who break the law are investigated, charged and tried.

More broadly,however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

[68] The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediatecriticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of thejustice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It askswhether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that theadmission of the evidence would bring the administration of justice into disrepute. [69] Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already beendone to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through thatbreach does not do further damage to the repute of the justice system. [70] Finally, s. 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system. [91] The Grant factors are succinctly stated at paragraph 71 of that decision.

In deciding whether to admit or exclude evidence, acourt 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 seriousstate misconduct); (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individualrights 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 theneed of the courts to disassociate themselves from that conduct. Wilful or reckless disregard for Charter rights will, therefore, tend tosupport 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 goodfaith: [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 mayrange from fleeting and technical to profoundly intrusive”.

The more serious the impact is on the rights of the accused, the more likely itwill 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 ofthe criminal trial process would be better served by admission of the evidence, or by its exclusion”: para. 79. The reliability of theevidence 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, becauses. 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 aconviction: para. 84. [23] Also in R. v. Lauriente [2010] BCCA 72, the Court of Appeal stated: [29] The trial judge then tracked the analysis in Bohn, which, in turn, relied on the s. 24(2) framework of analysis set out in Stillman.

Although that framework has been modified to some extent by the recent decisions of Grant, 2009, Harrison and Suberu, particularly inrelation to the question of whether the evidence obtained was conscriptive or non-conscriptive, and the effect thereof on the fairness ofthe trial, the other aspects of the s. 24(2) analysis applied in Stillman and Bohn relating to the seriousness of the breaches and the effectof the admission (or exclusion) of the evidence on the administration of justice do not appear to be fundamentally changed.

With respectto those factors, the trial judge quoted extensively from the reasons for judgment of Madam Justice Ryan, speaking for the Court in theBohn decision, where she referred to the impact of several breaches of Mr. Bohn’s Charter rights as indicative of “the inattention of thepolice to the rights of the appellant” and as “a part of a larger pattern of disregard for Charter rights” (citing R. v. Strachan, (SCC), [1988] 2 S.C.R. 980, 56 D.L.R. (4th) 673).

In my view, the articulation in Bohn of the impact of multiple Charter breaches onthe long-term administration of justice has survived the recent Supreme Court of Canada decisions. In that respect, the trial judge reliedon the following extract from the Bohn decision, at para. 56 of her reasons: In R. v. Golub (1997), (ON CA), 117 C.C.C. (3d) 193 (O.C.A.), Doherty J.A., writing for the court, emphasized theimportance of respect for constitutional rights in the context of s. 24(2) of the Charter.

He said, at para. 60: In addressing the effect of the exclusion of the evidence on the administration of justice, I bear in mind the comments of Iacobucci J. inR. v. Burlingham (1995), (SCC), 97 C.C.C. (3d) 385 (S.C.C.) at 408: ... [W]e should never lose sight of the fact that even a person accused of the most heinous crime...is entitled to the full protection of theCharter. Short-cutting or short circuiting those rights affects not only the accused, but also the entire reputation of the criminal justicesystem.

It must be emphasized that the goals of preserving the integrity of the criminal justice system as well as promoting the decencyof investigatory techniques, are of fundamental importance in applying s. 24(2). Iacobucci J. reveals the heart of the third part of the s. 24(2) inquiry in this passage. The moral authority to apprehend and punish thosewho commit crimes rests on the community’s commitment to the rule of law. Convictions procured by state violations of our most

fundamental law lack that moral authority. Respect for the rule of law and the long-term viability of the justice system suffers where thepolice engage in “short cuts” or fail to respect the constitutional rights of those they encounter in the course of the exercise of theirduties. The long-term harm to the justice system is not worth the short-term gain made by the admission of the evidence which wasobtained in a manner which ignores the rule of law. I agree with the comments of Doherty J.A.

Examined in this light, I am of the view the trial judge erred in failing to find that thecumulative effect of the Charter breaches was serious and that the admission of this evidence could bring the administration of justiceinto disrepute. I would exclude the evidence obtained through the search. [Emphasis added.] [24] And also in the following paragraph in Lauriente: [31] It is not necessary in the context of the issues raised in this appeal to review the extent to which Grant, 2009, Harrison andSuberu have modified the law with respect to s. 24(2).

I note, however, that Chief Justice McLachlin and Madam Justice Charron,writing for the majority in Grant, 2009, made the following comment (at para. 75): It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified andunredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distancethemselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to supportexclusion. [25] In R. v.

Mellors [2010] BCPC 0211, a decision of Judge St. Pierre, he comments on Grant as follows: [50] R. v.

Grant (above) mandates a different kind of analysis than previously endorsed. [51] The new approach requires a three part analysis requiring the court to consider the following: (1) the seriousness of the Charter violation (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 rightscount for little) and (3) society’s interest in the adjudication of the case on its merits.

It was found in Grant that the court must balance the assessments under these lines of inquiry to determine whether admission of theevidence would bring the administration of justice into disrepute. [52] The development of this new regime has been interesting to watch. In my opinion the near automatic exclusionary rule thatexisted under Stillman/Collins and cases following is in danger of being replaced by an automatic inclusionary rule under Grant.

It is myopinion that neither is appropriate and that the point of Grant is that each case must be looked at on its own merits and there should beno automatic inclusionary or exclusionary rule when considering an application under Section 24(2). [53] A few passages in Grant seems to have led many courts to conclude that Charter breaches in the context of impaired drivingcases and the taking of breath samples are simply not of any great import. [54] When discussing criticisms of the former Stillman/Collins approach to Section 24(2) the Supreme Court of Canada in Grant saidthe following at paragraph 106: 106 A third criticism of the conscription test for admissibility of bodily evidence under s. 24(2) is that from a practical perspective, theconscriptive test has sometimes produced anomalous results, leading to exclusion of evidence that should, in principle and policy, beadmitted: see Dolynchuk; R. v.

Shepherd, 2007 SKCA 29, 218 C.C.C. (3d) 113, per Smith J.A. dissenting, aff'd 2009 SCC 35 (releasedconcurrently); and R. v. Padavattan (2007), (ON SC), 223 C.C.C. (3d) 221 (Ont. S.C.J.), per Ducharme J. Notably,breath sample evidence tendered on impaired driving charges has often suffered the fate of automatic exclusion even where the breach inquestion was minor and would not realistically bring the administration of justice into disrepute.

More serious breaches in other kinds ofcases - for instance, those involving seizures of illegal drugs in breach of s. 8 - have resulted in admission on the grounds that theevidence in question was non-conscriptive.

This apparent incongruity has justifiably raised concern. (My emphasis) [55] Later at paragraph 111 the majority in Grant stated the following: 111 While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted.

For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. (My emphasis) [56] These “expressions of tendencies” were not meant, I find, to completely replace the existing regime of near automatic exclusionof breath test results where a Charter breach had been established under Stillman/Collins with one of automatic inclusion of those results. [57] Grant simply calls for a revised analysis under Section 24(2) that takes into account the different facts of every case and theeffect of exclusion for lesser serious breaches on the administration of justice. [58] In the past where non-discoverable conscriptive evidence was obtained pursuant to a Charter breach then trial fairness wasaffected.

This was seen as a distinct stage of the 24(2) inquiry. Under Grant (see paragraphs 64-65), trial fairness is better conceived asan overarching systemic goal rather than a distinct stage of the analysis. [26] I rely on the principles enunciated in these cases when I examine the facts of this incident and complete my Charter analysis

pursuant to Grant . [ 27 ] I have reviewed the testimony of Constable Harvey. I have found his evidence reliable and uncontroverted. I accept his account of the facts and rest my analysis on his testimony. [ 28 ] A screening test is a limited tool, but it does require a stop and exit from the motor vehicle and some questioning and instructions from the police officer. It is recognized to be a minimal intrusion upon a person who is granted the privilege of driving a motor vehicle on our public roads.

It is a step, however, that launches a police investigation and a much broader intrusion into one’s life and privacy. A “fail” reading from the roadside device can make a conviction a likely outcome. [ 29 ] I accept this is a serious breach of an individual’s Charter rights. This intervention by a state authority launches a cascade of steps and events that are an enormous intrusion on a person’s life. The actions of the police officer must be carefully examined and it is my conclusion that the step taken by Constable Harvey was an error that should have been recognized by him.

He should not have relied on his assumptions to conclude that a sample of breath could legally be obtained. He let his subjective belief cloud the necessary investigative analysis. I rely on the statements in Reddy and Lauriente in this regard. [ 30 ] I also view the circumstances of this incident as having a large impact on Charter protected interests. This was a warrantless search, and as I have stated, the intrusion into a personal life is extensive, and the necessary grounds must be present.

In addition it is my view that police practice needs to be adjusted to ensure that adequate Charter safeguards are being honoured. The comments of Judge St. Pierre in Mellors are noteworthy: [63] The overarching principle against self-incrimination (

Section 7 of the Charter ) is raised in this context. The accused in these scenarios do not realistically have a choice of whether to comply with a demand or not. The standard that had to be met in order for a statutorily and constitutionally valid demand to be made is or should be well-known to all police officers. The fact that this demand was unlawful and the fact that it was made precipitously without a proper consideration by the police officer of the grounds that are required is clearly inexcusable in this case.

The breach led to the seizure of incriminating evidence that the accused was not obliged to provide in the absence of proper grounds. It cannot be of no consequence that the accused acceded to the demand. The primary remedy for an accused is to seek exclusion of the results. If it were otherwise, the breach would become irrelevant and the accused’s Charter-protected right under

Section 8 in this case would mean nothing. [ 31 ] It is my view that the state interest in adjudication on the merits must be balanced against the circumstances that have arisen in this case. The Crown has an additional count in the Information and adjudication can be completed without this disputed count. I also rely on the comments in Grant at paragragh 84 that it is important to recognize the long-term effect on the administration of justice, and not simply the short-term consequence. I view this breach of the individual’s right against self-incrimination as the cornerstone to fundamental justice.

A constant reminder of this precept is a necessary reinforcement to our administration of justice. [ 32 ] I conclude that the breach of Ms. Dumaine’s Charter rights is a serious breach and the evidence following this breach must be excluded. ____________________ M. A. Gray Provincial Court Judge