R. v. Meyers Date:, 2011 BCPC 50

Citation: R. v. Meyers Date: 20110125 2011 BCPC 0050 File No: 24371 Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RONALD WILLIAM MEYERS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.D. MORGAN Counsel for the Crown: S. Morrison and V. Galbraith Counsel for the Defendant: A. Zipp Place of Hearing: Quesnel , B.C. Date of Hearing: September 10 and December 16, 2010 Date of Judgment: January 25, 2011 [ 1 ] Mr. Myers is charged with one count of impaired driving and one count of driving with an illegal blood-alcohol level.

These charges arise out of a police stop of his vehicle on November 21, 2009, in Quesnel B.C. [ 2 ] The investigating officer, Cpl. Jenkins, was the only witness called to testify. [ 3 ] The issue is whether the accused's rights under

section 10(

b) of the Charter were breached when Cpl. Jenkins failed to take any further steps in attempting to contact the accused's lawyer of choice after calling the lawyers office telephone number and receiving a recorded message saying calls would be returned on the next business day. If the accused is successful in establishing a breach of his

section 10(

b) rights, the question becomes whether the breath testing evidence should be excluded pursuant to section 24(2) of the Charter . The Facts: [ 4 ] On November 21, 2009, at 2255 hrs. Cpl. Jenkins noticed a vehicle travelling without headlights or tail lights turned on. He followed the vehicle. After 150 meters the driver turned his headlights on. Cpl. Jenkins activated his emergency lights and followed the vehicle for a further 250 to 300 m before it began to pull over.

The driver slowed but because of the snow, was unable to fully pull over until reaching an exit where the driver then pulled over safely and appropriately. [ 5 ] Other than driving without headlights for a short while, there is no other abnormal driving evidence. Where Cpl. Jenkins first noted the vehicle, there was artificial illumination. [ 6 ] Cpl. Jenkins walked to the driver side and motioned for the accused to roll down his window. The accused had some difficulty finding the window activation switch, gave up and tried to open the door, having some initial difficulty with that as well. [ 7 ] Cpl.

Jenkins is a 12 year R.C.M.P. veteran and estimates he has done approximately 200 impaired driving investigations. He

noted the accused had glassy, bloodshot eyes and a flushed face. The accused was smoking a cigarette. Cpl. Jenkins noted the accused'sspeech was "thick as if his tongue was swollen". [8] The officer did not initially detect an odour of liquor and the accused denied having consumed any alcohol. However, after thecigarette smoke dissipated from inside the vehicle, Cpl. Jenkins could distinctly smell an odour of liquor on the accused's breath. Cpl.Jenkins formed a suspicion the accused had alcohol in his body and told the accused he would be making an ASD demand but was goingto wait five minutes.

The wait was to allow the cigarette smoke to dissipate from the accused lungs. Cpl. Jenkins said this is inaccordance with his training and the ASD manufacturer's recommendations. While waiting the five minutes Cpl. Jenkins wrote out awarning to the accused for driving with no headlights. [9] At 2303 hrs. Cpl. Jenkins asked the accused to step out of his vehicle. He noted the accused had initial difficulty standing up andthat when he did so he was swaying. The accused's movements were slow and deliberate. At 2304 Cpl. Jenkins read the ASD demandfrom his card. The accused provided a sample, registering a fail.

Cpl. Jenkins formed his opinion the accused was operating a motorvehicle while his ability to do so was impaired by alcohol, and he detained the accused for an impaired driving investigation. [10] He did a cursory officer safety search of the accused before placing him in the police cruiser. He immediately read to the accusedhis rights under sections 10(

a) and 10(

b) of the Charter. He then read the breath demand and the police warning. All of the informationwas read from prepared cards. Cpl. Jenkins recorded the accused's answers. [11] To the question "Do you want to speak to a lawyer?" the accused responded with "Let's get this over with." Cpl. Jenkins asked"So I take it and that is a 'no'?" The accused said "I would like to speak to one if there is one available." Cpl. Jenkins asked "Do youwant to speak to one at the detachment?". The accused said "Yes I do." [12] The officer and the accused departed for the detachment at 2315 arriving at 2322. At the detachment, Cpl.

Jenkins asked Mr.Myers which lawyer he would like to talk to. Mr. Myers said he wanted to make a phone call first before calling a lawyer. Cpl. Jenkinsprovided Mr. Myers with access to a phone. After the call was terminated Mr. Myers said he wanted to call lawyer Mr. Tessmer. [13] Cpl. Jenkins consulted the BC Lawyers Directory and found the only Tessmer listed in it and called that number. He received arecorded message saying the office was closed and that if the caller wanted to leave a message the call would be returned the nextbusiness day. Cpl.

Jenkins left a message identifying himself, stating where he was calling from, who he had in custody, and that theaccused wanted to speak with Mr. Tessmer. Cpl. Jenkins left the callback number. However, given the wording of the recorded message,he did not expect a return call nor did he wait for one. He never did receive a return call. [14] Cpl. Jenkins advised the accused of the recording and of his message and asked him if there was any other lawyer he wanted totalk to. Mr. Myers said no. Cpl. Jenkins asked whether he was sure. Mr. Myers said "That's the one I want." [15] Cpl.

Jenkins was unclear if the accused was saying he wanted to wait till Monday - that being the next business day - to speak toMr. Tessmer, so he read to the accused a supplemental Charter warning then asked him if he understood. The accused said yes, thenasked "What are my choices?" Cpl. Jenkins said his choices were: to call another lawyer, to call legal aid, or to wait till Monday morningto speak with Mr. Tessmer. The accused said he would wait till Monday morning to speak with Mr.

Tessmer. [16] The investigation continued in the usual fashion, save for an interrupted first observation period to allow the accused to urinate.Two valid samples were obtained, both indicating readings of 120 mg of alcohol per 100 mL of blood. Argument of the Defence: [17] Mr. Zipp, on behalf of the accused, argues the investigating officer should have done more in attempting to locate Mr. Tessmerother than just relying on the number in the BC Lawyers Directory.

He argues those other reasonable steps would include looking in thewhite pages directory, the Yellow Pages directory, perhaps looking in these directories online, and also calling for directory assistance. [18] Mr. Zipp says that given the dialing was handled by the investigating officer, the officer was required to take the reasonablesteps the accused himself would have taken in attempting to contact his lawyer of choice. He says this is especially so given there was notime pressure that would affect the investigation. Mr.

Zipp says the options given by the officer to the accused, after the first and onlyattempt to contact counsel of choice, suggested to the accused it was not an option to make further efforts to contact Mr. Tessmer. [19] The defence argues that Cpl. Jenkins’ failure to make further efforts to locate the accused's lawyer of choice results in a violationof Mr. Myers' rights under

section 10(

b) of the Charter and, consequently, the breath evidence should be excluded under section 24(2)given the importance of the right protected. [20] Defence counsel relies on the following cases: • R. v. Liknes, 1999 ABPC 154 , [1999] A.J. No. 1579 (Alta. P.C.) • R. v. Jacobs, 2002 BCPC 227 , [2002] B.C.J. No. 1358 (BCPC) • R. v. Bloom, [2006] B.C.J. No. 3165 (BCSC) • R.v. Reinhardt, [2008] S.J. No.333 (Sask. P.C.) • R. v. Mainse, [2008] B.C.J. No. 1849 (BCSC) • R. v. Swift, [2009] B.C.J. No. 680 (BCSC)

• R.v . Brouillette, [2009] S.J. No. 678 (Sask. C. of Q.B.) • R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 (SCC) [21] Regarding the 24(2) analysis, Mr. Zipp emphasizes that all of his cases (save for Grant itself) pre-date the Grant decision. However, although he recognizes the decision in Grant has been determined to have changed the 24(2) analysis, Mr. Zipp argues theanalysis in the Grant decision actually supports Mr. Myers' position. Argument of the Crown: [22] The Crown argues there was no breach of the accused's Charter rights and that Cpl. Jenkins provided, in a timely and clearmanner, all of the information he was required to do so under

section 10. He also ensured the accused understood his rights. [23] Crown argues the accused elected to wait to speak to Mr. Tessmer on the next business day, effectively waiving his right to speakto counsel immediately, and did so after having his rights read to him a second time. The accused did not ask the officer to try Mr.Tessmer again nor did he ask the officer to try to find a different phone number for him. [24] Crown argues that if there was a breach, the analysis under R. v.

Grant (above) makes clear that the breath evidence should beadmitted given the reliability of the test results and society's interest in adjudicating drink driving cases on their merits. [25] Crown relies on the following cases: • R. v. Willier, 2010 SCC 37 , 2010 S.C.C. 37 • R. v. McCrimmon, 2010 SCC 36 , 2010 S.C.C. 36 • R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32 • R. v. Orbanski, 2005 SCC 37 , [2005] S.C.J. No. 37 Analysis: [26]

Section 10(

b) of the Charter reads in part: Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay, and to be informed of that right. [27] The purpose of

section 10(

b) is set out by Lamer J. in R. v. Bartle [1994] 2 S.C.R. 173 at page 191 as follows: The purpose of the right to counsel guaranteed by s. 10(

b) of the Charter is to provide detainees with an opportunity to be informed oftheir rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill thoseobligations: R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because,when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has thisperson suffered a deprivation of liberty, but also this person may be at risk of incriminating him - or herself.

Accordingly, a person whois "detained" within the meaning of s.10 of the Charter is in immediate need of legal advice in order to protect his or her right againstself-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, (SCC), [1990]2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" andupon request. As this Court suggested in Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, at p. 394, the right tocounsel protected by s. 10(

b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.(Emphasis in original quote) [28] The duties imposed on the police under

section 10(

b) were discussed in Bartle at pages 191-192, as follows: This Court has said on numerous previous occasions that s. 10(

b) of the Charter imposes the following duties on state authorities whoarrest or detain the person: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability oflegal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise theright (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in casesof urgency or danger). [29] In R. v.

Ross (SCC), [1989] 1 S.C.R. 3, at paragraph 13, Lamer J. for the majority discussed the duty imposed

upon the police under s. 10(

b) to give a detainee who so wishes, a reasonable opportunity to exercise the right to retain and instructcounsel without delay. At about the one third mark of paragraph 13, Lamer J. held as follows: .....Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in Manninen are suspended.

Reasonable diligence in the exercise of the right tochoose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detainedperson is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seekingthe best lawyer to conduct a trial, the accused person faces no such immediacy.

Nevertheless, accused or detained persons have a right tochoose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accusedshould be expected to exercise the right to counsel by calling another lawyer. (Emphasis added) [30] At paragraph 14 in Ross, Lamer J. dealt with the concept of an accused or waiving his right to counsel: Moreover, once the appellant asserted his right to instruct counsel, and absent a clear indication that he had changed his mind, it wasunreasonable for the police to proceed as if Leclair had waived his right to counsel.

As the majority of this Court held in Clarkson v. TheQueen, (SCC), [1986] 1 S.C.R. 383, at pp.394-95: Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s.10(

b) of the Charter, it is evident that any alleged waiver of this right by the accused must be carefully considered and that the accused'sawareness of the consequences of what he or she was saying is crucial. Indeed, this Court stated with respect to the waiver of statutoryprocedural guarantees in Korponay v.

Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41, at p. 49, that any waiver"...is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with fullknowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process." Since the evidence reveals that Leclair asserted his right to counsel, the burden of establishing an unequivocal waiver is on the Crown.Here, the Crown has failed to discharge the onus. [31] In Mr.

Myers’ case, he asked the officer - after being told of the unsuccessful attempt to contact his lawyer of choice - what hisoptions were. This question is consistent with the accused being reasonably diligent in the exercise of his right to choice of counsel. Cpl.Jenkins’ response, although well-intentioned, had the unfortunate effect of circumscribing the options. Cpl. Jenkins said the accused'soptions were to call another lawyer, to call legal aid, or to wait till Monday morning to contact Mr. Tessmer. He should have told theaccused another option was to look for another contact number for Mr. Tessmer.

This could have been easily and quickly done bysearching the phonebook, either physically or online, or by calling the telephone directory service. [32] By making the telephone calls himself, the officer bore the responsibility to take the reasonable steps the accused likely wouldhave taken had he been allowed to attempt to contact counsel on his own. In R. v. Bloom (above) BC Supreme Court Justice Masuhara, indealing with a similar fact pattern, said at paragraph 37: A detained person in Mr.

Bloom's position, when faced with only an answering service at his lawyer's office well after normal workinghours, which would normally be anticipated, would access the means to find a home number or, if possible, to find an alternate lawyer.This is an obvious step that would be expected of such a person in the situation here. The police, having taken it upon itself to stand inthe shoes of the accused to facilitate the calls, have the duty to take these naturally expected steps.

In this case, the steps were not taken.There is an obligation on the part of the accused to act diligently to contact counsel of choice, and diligence is equally required of thepolice when they choose to stand in the shoes of the accused. [33] In R. v. Jacobs (above), another an impaired driving case where the officer took on the task of attempting to contact counsel onthe accused’s behalf, B.C.

Provincial Court Associate Chief Judge Stansfield (as he then was) stated the following at paragraph 36: I do not wish to be interpreted as holding as a matter of law that police must provide a telephone with the dial pad, together with atelephone directory, from which a defendant can dial out her or himself.

But I do find that when police - for whatever reasons, howevervalid they may be from security and other operational perspectives - reserved to themselves the only means of doing what the cases haveheld the detainee otherwise would be obliged to do for himself, there arises a correlative obligation on police to take reasonable steps tofacilitate contact with counsel. What is "reasonable" may in part be determined by comparison to the steps of the detainee might beexpected to take if given the means of doing so. In that regard, I refer to Top and Brownridge as quoted in Bartle. [34] In Mr.

Myers’ case it would have been reasonable for Cpl. Jenkins to have made an additional effort to find an alternate after-hours number for the accused's stated counsel of choice. At minimum, he should have asked the accused if he wanted to attempt to findan alternate number. [35] It cannot be said the accused waived his right to counsel by deciding to wait till the next business day to contact Mr. Tessmer.His decision to wait was not an informed one. It was based on his belief that his options were limited to those set out by the officer.

Theimplication arising from the circumscribed options provided by the officer was that it was not an option for the accused to search foranother number for Mr. Tessmer when in fact - in the circumstances of this case - it would not have been unreasonable to do so. [36] I find that the officer's attempt at contacting the accused's lawyer of choice fell short of the attempts the accused himself couldreasonably be expected to have made. Consequently, the accused was not provided with a 'reasonable opportunity' to exercise the right tocounsel of choice, contrary to his rights under s. 10(

b) of the Charter. [37] In so finding, I have considered the two Supreme Court of Canada cases provided by Crown, those being R. v. McCrimmon(above) and Willier v. The Queen (above), and find they are distinguishable from Mr. Myers' case. [38] In McCrimmon, the accused was arrested in relation to eight assaults committed against five different women. He requested aparticular lawyer. However the police were unable to reach that lawyer and left a message on the lawyer's answering machine. The

officer did not attempt to find the lawyer's home telephone number nor did the accused ask her to do so. The accused said "I don't know if I'll hear back from him. Like I said, I only used him once. He's the only guy I know. I've never really dealt with a lawyer before." The officer asked the accused if he would like to call a legal aid lawyer, to which the accused replied "Well, yes, definitely, but I prefer Mr.

Cheevers." The accused spoke privately with duty counsel for about five minutes, and told the police officer he was satisfied with the consultation and that he understood the advice. [ 39 ] The issue relevant to the case at bar was whether the police breached Mr. McCrimmon's rights by failing to hold off the interview until he had an opportunity to consult with counsel of choice. Chief Justice McLachlin, for the majority, confirmed that where a detainee wants to speak with a specific lawyer, s.10(

b) entitles him or her to a reasonable opportunity to contact chosen counsel. (par. 17) [ 40 ] However, the Court also found that given Mr. McCrimmon's counsel of choice was not immediately available the police rightly inquired as to whether the accused wanted to contact legal aid instead. Having opted to do so and then stating that he understood the advice he received and was satisfied with it, the Court found there was no breach of Mr. McCrimmon's s. 10(

b) rights. (par. 19) [ 41 ] In Willier , accused was arrested for murder and was advised of his right to choice of counsel. He spoke briefly with legal aid. The next day he was offered another opportunity to speak to counsel and he made an unsuccessful attempt to call his lawyer of choice, leaving a message on an answering machine. He stated his preference to wait for a call back as opposed to calling another lawyer. The police informed Mr.

Willier that it was unlikely he would receive a call back prior to the lawyer's office reopening the next day, and reminded him of the immediate availability of free legal aid. Mr. Willier opted to speak with legal aid duty counsel again. He expressed satisfaction with the advice he had received from the legal aid duty counsel lawyer. It was found that the accused made an informed and un-coerced choice to speak again with a legal aid lawyer. It was expressly noted that Mr. Willier was not told by the police that he could not wait to hear back from Mr. Willier, or that legal aid was his only choice.

He was also given an open ended invitation to contact counsel prior to and throughout the interview, but did not pursue that opportunity. It was noted that "If Mr. Willier maintained a continuing desire to speak with Mr. Royal, or wait for him to call back, he was not diligent in exercising that right" (see par. 44). The Court held there was no breach of Mr. Willier's rights under s. 10(b). [ 42 ] In the case at bar, Mr. Myers did not opt to speak with legal aid or any other lawyer when it was discovered his lawyer of choice was not immediately available. He asked the officer what his options were.

He was told he could contact another lawyer, call legal aid, or wait till Monday to talk with his lawyer of choice, Mr. Tessmer. He was not told that a reasonable period of time could be spent on either waiting for a return call or making further reasonable efforts at contacting Mr. Tessmer, and those reasonable efforts were not made. Consequently, Mr. Myers' rights under

section 10(

b) were breached. Section 24(2) Analysis [ 43 ] The state infringement of Mr. Myers' rights under

section 10(

b) necessitates a determination of whether, notwithstanding the breach, the breath testing evidence should be admitted. The analytical framework is set out in R. v. Grant (above), at paragraph 71 as follows: [71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interest engaged by s. 24(2), reviewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2) application is to balance the assessments 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. These concerns, while not precisely tracking the categories of considerations set out in Collins , capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [ 44 ] Defence counsel, Mr.

Zipp, argues that it is the nature of the right that is breached that should be the determining factor for exclusion in this case. He refers me to paragraph 95 in Grant , which reads as follows: [95] The second inquiry considers the extent to which the breach actually undermined the interests protected by the right infringed. Again, the potential of harm to the repute of the justice system varies with the seriousness of the impingement on the individual's protected interests. As noted, the right violated by unlawfully obtained statements is often the right to counsel under

section 10(b). The failure to advise of the right to counsel undermines the detainee's right to make a meaningful and informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination. These rights protect the individual's interest in liberty and autonomy. Violation of these fundamental rights tends to militate in favour of excluding the statement. [ 45 ] Mr.

Zipp says this paragraph shows a breach of the right to counsel can have the effect of undermining the fundamental right against self-incrimination and militate in favour of exclusion. He says that although the court makes reference to 'testimonial' self- incrimination, it would not be improper to use the same analysis with ‘breath sample’ incrimination when in the context of a

section 10(

b) breach. [ 46 ] Mr. Zipp says it would be illogical to exclude a statement for a breach of

section 10(

b) rights, but to not exclude a breath sample for a breach of

section 10(b). [ 47 ] With the greatest of respect to Mr. Zipp, I must remain guided by the clear distinction the Supreme Court of Canada makes in Grant between 'statements by the accused' (paragraphs 89 to 98), and 'bodily evidence' (paragraphs 99 to 111). I do not read Grant to suggest there is a hierarchy of Charter protected rights that is to be considered. It is not the nature of the right breached that is the primary focus, but it is the nature of the breach itself, often categorized as egregious or non-egregious, and its effect on the Charter

protected interests of the accused. The ‘effect’ is most often reflected in the evidence sought to be excluded, whether it be self incriminating testimonial statements made in circumstances of complete failure to advise of right to counsel (the example in Par. 95 of Grant relied on by Mr. Meyers), or breath evidence the accused was in fact legally required to give, and did give, after inadequate efforts were made to locate counsel of choice. [ 48 ] In paragraphs 108-111, the Supreme Court of Canada provides guidance to a judge applying a 24(2) analysis when the evidence in question is bodily evidence.

Those paragraphs read as follows: [108] The first inquiry informing the s. 24(2) analysis -- the seriousness of the Charter -infringing conduct -- is fact specific. Admission of evidence obtained by deliberate and egregious police conduct that disregards the rights of the accused may lead the public to conclude that the Court implicitly condones such conduct, undermining respect for the administration of justice.

On the other hand, where the breach was committed in good faith, admission of the evidence may have little adverse affect on the repute of the court process. [109] The second inquiry is the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the system of justice. This requires the judge to look at the seriousness of the breach on the accused's protected interests.

In the context of bodily evidence obtained in violation of s. 8, this inquiry requires the courts to examine the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused. The seriousness of the intrusion on the accused may vary greatly. At one end of the spectrum, one finds the forcible taking of blood samples were dental impressions (as in Stillman ). At the other end of the spectrum lie relatively innocuous procedures such as fingerprinting or iris- recognition technology.

The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused. [110] The third line of inquiry -- the effect of admitting the evidence on the public interest in having a case adjudicated on its merits -- will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favor of admission. (Emphasis added) [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately 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 in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with the breath sample evidence, whose method of collection is relatively nonintrusive. (Emphasis added) The Seriousness of the Charter-infringing Conduct: [ 49 ] In Mr. Myers' case, the investigating officer acted in good faith and with due regard for the law. There is nothing to suggest, had Mr.

Myers asked the officer to look in another source for an after hours number for his lawyer of choice, that Cpl. Jenkins would not have done so. He had complied with Mr. Myers' request at the outset to make a call to an unidentified party prior to making the call to lawyer Mr. Tessmer. After telling the accused of the results of his attempt to contact Mr. Tessmer, and the accused indicating he wanted to speak with only Mr. Tessmer, Cpl Jenkins gave the accused a 'Prosper' warning. This is consistent with the officer being well aware of the importance of, and respecting, the accused's right to counsel.

The unfortunate circumscription of the accused's 'options' occurred only after the accused asked the officer what his options were. I find the officer's response was not intended to cut off any additional attempts at contacting Mr. Tessmer, but was made in recognition of what the officer believed to be a practical reality: that there was no after hours number otherwise it would have been listed in the BC Lawyer's Directory. [ 50 ] The breach was not egregious, or deliberate, nor was it made in disregard to Mr. Myers' rights.

Admitting the breath testing evidence in these circumstances would have very little adverse effect on the repute of the court process. The Impact of the Breach on the Charter Protected Interests of the Accused: [ 51 ] While the right to counsel is an important and fundamental right, the impact of the breach was that breath samples were taken. The Supreme Court of Canada has indicated the taking of breath sample evidence is relatively non-intrusive in terms of privacy, bodily integrity and dignity.

The Effect of Admitting the Evidence on the Public Interest in Having a Case Adjudicated on its Merits: [ 52 ] There is a high public interest in reducing the deaths and injuries caused by people who drive while impaired. This goal is obtained in large part through deterrence. Consequently, there is a high public interest in having impaired driving cases adjudicated on their merits. The breath evidence is reliable. Without it the Crown's case fails. With it, the Crown has proven beyond a reasonable doubt Mr. Myers was driving with an illegal blood alcohol level.

Decision on the 24(2) Analysis: [ 53 ] The breach of Mr. Myers' s. 10(

b) rights was not deliberate or egregious, and occurred in circumstances where the officer was acting in good faith. The breath evidence was obtained in a non-intrusive way and there is a high public interest in having this type of case adjudicated on its merits. I find the breath evidence should be admitted. [ 54 ] I note my decision to admit the breath evidence is consistent with the following post Grant BC Provincial Court decisions

dealing with cases of non-egregious breaches of s. 10(

b) rights in drink driving cases: R. v. White 2009 BCPC 312 (Frame); R. v. Martin2009 BCPC 367 , 2009 BCPC 0367 (Gulbransen); R. v.Temple 2010 BCPC 4 (Hicks); R. v. Teske 2010 BCPC 246 (Daley). Decision on the Trial: [55] The driving evidence is minimal and the indicia are not such that I can safely conclude Mr. Myers' ability to drive was in factimpaired by alcohol. I acquit on the impaired driving charge. [56] However, Crown has proven beyond a reasonable doubt via the breath evidence that Mr. Myers was driving with an illegal bloodalcohol level, and I convict on that count. ________________________ R.D. Morgan Provincial Court Judge