R. v. Grant, 2017 MBPC 4

Cite #2017 MBPC 4 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Carolyn Reimer, for the Crown ) - and - ) ) Gagandeep Sidhu ) Todd Bourcier, for the Accused ) ) Judgment delivered: ) January 10, 2017 CORRIN, P.J. [1] Section 24(2) of the Charter reads as follows: Where in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances,the admission of it in the proceedings would bring the administration of justice into disrepute. [2] Having concluded that the accused’s rights were infringed, I must determine whether admission of the breathalyser resultswould bring the administration of justice into disrepute.

The Supreme Court established the factors for this assessment in R. v. Grant(2009) 2009 SCC 32 , 2 S.C.R. 353 at paragraph 71, which reads as follows: A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewedin a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), a court mustassess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousnessof the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) theimpact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count forlittle), 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 theassessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidencewould bring the administration of justice into disrepute.

Seriousness of the Charter-Infringing State Conduct [3] Under this first line of inquiry, the more severe or deliberate the state conduct that led to the Charter violation, the greater theneed for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct (see paragraph 72 of Grant). [4] State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtainedthrough inadvertent or minor violations of the Charter may minimally undermine confidence in the rule of law.

At the other end of thespectrum, admitting evidence through a wilful or reckless disregard of Charter rights will inevitably have a negative impact on publicconfidence in the rule of law, and risk bringing the administration of justice into disrepute (see paragraph 74 of Grant). [5] Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question mayrequire the court to dissociate itself from such conduct.

It follows that deliberate police conduct in violation of established Charterstandards tends to support exclusion of the evidence (see Grant at paragraph 75). [6] Defence submitted that the Charter infringing state conduct is a serious breach of the accused’s rights. This Court found thatConstable Webb wasted 8 of the first 13 minutes before the ASD demand on extraneous matters notwithstanding that he had the groundsto make the ASD demand within the first five minutes of his arrival on scene.

The Court agreed with the position of the accused thatConstable Webb was effectively “gambling” with her rights when he didn’t call for the ASD, but rather appeared to be looking forgrounds for arrest. [7] This “gambling” by Constable Webb, by its very nature, is a wilful disregard of Charter rights and, therefore, is on the higherend of the spectrum contemplated by the Supreme Court in R. v. Grant, as it showed a deliberate choice on the part of Constable Webb todisregard the accused’s Charter rights.

Constable Webb’s breaches also included an unlawful detention of 20 minutes and interviewingthe accused without advising her of her right to counsel. The officer used this interview to try and elicit incriminating evidence from theaccused in a vain attempt to acquire sufficient grounds to arrest her without relying on the ASD. The Court concludes that the foregoingis evidence of bad faith on the part of the officer as it suggests that he was deliberately failing to take proper steps in the limited contextof the ASD detention. [8] In R. v. Geisel,

(2013) M.J. No. 78 Moar, J. made the following comments respecting the deliberate actions of arrestingofficers relating to these officers having continued their investigation after establishing sufficient grounds for an ASD demand within afew minutes of initiating the traffic stop.

“The decision to question the accused further at this time was something Constable Harschall indicated she does whenever an individual is placed within the cruiser car. That is a concerning statement as, in my view, it shows a complete disregard for s. 254(2) and its frame work being time is of the essence. Although I do not find that the actions of police were malicious or done with any ill-intent, I do find that they were intentional and certainly encroaching up the spectrum, well beyond trivial in nature.” (at paragraph. 156-157) [ 9 ] In R. v. Bergen ,

(2014) M.J.

No. 122 the Manitoba Court of Queen’s Bench found that the arresting officer’s decision to wait 15 minutes before administering the ASD test unreasonable and found that the officer’s conduct was a “deliberate choice” and that consequently, the breach was “serious”. [ 10 ] The Court in Bergen , in finding that the state conduct was serious, noted that the constitutional validity of the ASD testing regime in s. 254(2) depends upon the test being done forthwith or without delay and that “forthwith” is neither difficult to understand nor onerous to implement (see paragraph 28). [ 11 ] The Court further observes that even if Constable Webb’s conduct was not a flagrant disregard of the accused’s rights, at minimum it shows an ignorance of the requirements of the Charter .

And as stated in R. v. Grant , “Ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith” (see paragraph 75). Impact on Charter Protected Interests of the Accused [ 12 ] This line of inquiry focuses on the seriousness of the impact of the Charter breach on the Charter protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed ( see Grant at paragraph 76 ).

The more serious the incursion on these interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute ( see Grant at paragraph 77 ). [ 13 ] The entirety of the circumstances must be considered as the Court found that the failure to perform the ASD test forthwith resulted in the infringement of constitutional rights pursuant to subsection 8, 9 and 10 of the Charter . [ 14 ] Most such cases, including Geisel and Bergen , however, did not contemplate breaches of the other rights, as found in the present case. [ 15 ] The Supreme Court in Grant found breaches of several Charter protected rights, including the accused’s

section 9 right to be free of arbitrary detention that the Court stated, “deprived Mr.

Grant of his freedom to make an informed choice as to how to respond” and concluded that “the impact of the breach, while not severe, was more than minimal” (see paragraph 135). [ 16 ] Also in Grant , the Supreme Court considered the impact of a breach under s. 10 and stated “The failure to advise of the right to counsel, undermines the detainee’s right to make a meaningful informed choice whether to speak, the related right to silence, and, most fundamentally, the protection against testimonial self-incrimination” (see paragraph 95). [ 17 ] The Court observes that Ms.

Sidhu did not testify so there is no ‘subjective’ evidence of the impact of the breach upon her. [ 18 ] The Court observes that all jurisprudence has held that the obtaining of an ASD sample is minimally intrusive in relation to the full range of

section 8 bodily searches. Society’s Interest in an Adjudication on the Merits [ 19 ] The final line of inquiry in the analysis under s. 24(2) of the Charter involves the question of whether the trial process would be better served by admission of the evidence, or by its exclusion. Accordingly, the exclusion of highly reliable evidence may more negatively impact the repute of the administration of justice where such an exclusion effectively guts the prosecution. The evidence from the ASD and subsequent breathalyser results is generally reliable and is also clearly necessary to the Crown’s case.

Part IV – Conclusion [ 20 ] In balancing the three lines of inquiry, I must rhetorically ask myself whether the admission of the ASD and breathalyser results would bring the administration of justice into disrepute. Constable Webb’s deliberate conduct resulted in serious breaches of the accused’s rights and this conduct cannot be condoned as to do so would diminish the accused’s rights to such an extent as to make them effectively non-existent. As this Court observed in R. v. Girouard ,

(2015) M.J. No. 70 , “However well meaning the officer’s intentions may have been, his conduct, if condoned, may be seen to be a minimization and trivialization of his Charter infringing behaviour” (at paragraph 35). [ 21 ] The Court concurs with defence’s assertion that it is also crucial to remember that an accused’s Charter rights are held in abeyance by operation of s. 254(2) of the Criminal Code and that the constitutionality of this

section entirely depends on the requirement of immediacy. [ 22 ] Constable Webb’s intentional decision to disregard the requirement of immediacy and his decision to gamble with the accused’s rights initiated a course of conduct that resulted in the accused being detained illegally, being questioned by the officer without being informed of her rights, being arrested on the basis of illegally obtained evidence, and being forced to provide incriminating evidence against herself without any legal authorization. [ 23 ] Accordingly the Court rules that the evidence obtained in violation of the accused’s rights, both the ASD reading and the breathalyser evidence, should be excluded under s. 24(2) of the Charter .

“Original signed by” CORRIN, P.J.