Her Majesty the Queen - v. -, 2011 SKPC 32

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 032 Date: February 10, 2011 Information: 24372215 Location: North Battleford , Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Grondin Appearing: Michel Piché For the Crown Michael Owens For the Accused INTERIM RULING ON VOIR DIRE V. H. MEEKMA, J INTRODUCTION [ 1 ] The accused is charged: That on or about the 11 th day of July, A.

D. 2009, at North Battleford, in the Province of Saskatchewan, did while his ability to operate a motor vehicle was impaired by alcohol or a drug operate [a motor] vehicle contrary to section 255(1) and section 253(1) (

a) of the Criminal Code .

Count #2: And further that on or about the 11 th day of July, A.D. 2009, at North Battleford, in the Province of Saskatchewan, did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood operate a motor vehicle contrary to section 255(1) and section 253(1) (

b) of the Criminal Code . [ 2 ] Evidence was called on a voir dire to determine three issues: (

a) whether the accused was arbitrarily detained and unlawfully searched when the officer relied on the Approved Screening Device reading but failed to first inquire as to when the accused had his last drink; (

b) whether the accused was arbitrarily detained or imprisoned when he was held in police cells for eight hours following the Breathalyzer tests;

c) whether his right to be tried within a reasonable time has been breached. FACTS Grounds for the Breath Demand [ 3 ] Constable Jaszczyszyn had three years of service when he testified, so he had only one and one-half years of service on July 11, 2009. He had attended the Bennigan’s bar parking lot of the Tropical Inn in North Battleford, Saskatchewan, at closing time in order to check on driver’s licences and sobriety. He spotted two vehicles, one of them off to one side. The accused’s vehicle backed up. The officer approached, he first asked him to pull ahead and then spoke to the accused.

The accused seemed nervous. The officer asked the accused if he was in the bar and if he was drinking. The accused said he was in the bar. The officer did not recall what the accused answered to the other question. The officer noted that his eyes were red and bloodshot, his speech was slightly slurred and there was a slight odour of liquor on his breath. He asked him to step out and sit in the police vehicle in order to assess his ability to drive.

After speaking to him for several minutes, he formed the belief that the accused had been consuming alcohol and at 2:39 a.m. read him the Approved Screening Device demand. The result was a fail, indicating a minimum reading of 100 milligrams of alcohol in 100 millilitres of blood. Based on the “fail” reading, the constable arrested the accused for impaired operation of a motor vehicle and read the accused his Charter rights, police warning and breath test demand.

They returned to the detachment where the officer waited with the accused until two suitable breath samples had been taken. [ 4 ] Before reading the Approved Screening Device demand, the officer had formed the belief that the accused had been consuming alcohol based on his slurred speech, red and bloodshot eyes, slight odour of alcohol on his breath, and the fact that the bar was closing. [ 5 ] The officer agreed that without the Approved Screening Device fail result, he did not have grounds for a Breathalyzer demand.

As it was not in his notes, the officer could not say with certainty whether he had asked the accused when he had his last drink. He did presume that the accused had just left the bar. His practice is to ask if suspects have been drinking, and if they have, to wait 20 minutes before administering the Approved Screening Device test, as he had been taught.

The officer acknowledged that if he does not wait 20 minutes, a false fail reading from mouth alcohol is possible, and that less than 15 minutes would have passed from the time he approached the accused until he administered the test. [ 6 ] The accused testified on the voir dire . He had ordered rye and Coke at last call, which he finished just 40 seconds before exiting the bar and entering his vehicle. Three to four minutes after he finished the drink, the officer approached the car. The officer asked if he had anything to drink and how much, but not when he had his last drink.

The accused did not volunteer the information, even though he testified that he had had a number of roadside stops, agreed he is familiar with the concept of mouth alcohol, and knew that it takes between 15 and 20 minutes to dissipate. He recalled another occasion when an officer waited 20 minutes before administering another test. When asked in cross-examination if there was a reason why he did not offer the information, the accused said, “No, I don’t have a good one.” When asked again why he did not bring it up, the accused answered, “He didn’t ask me if I knew about mouth alcohol.” The Over-holding Issue

[ 7 ] The accused was held for eight hours before release by an officer the following day. Constable Jaszczyszyn was frank in admitting that at the time, impaired drivers were lodged in cells more frequently than they are at present. The police now make multiple attempts to locate someone sober to release them to. He did not ask the accused if there was anyone he could call.

The reason the officer gave for holding him was his high state of intoxication, based on his readings of almost three times the legal limit (220 and 230) and the officer’s concern that the accused would be a hazard to himself and would not understand his release documents. [ 8 ] He admitted that the accused was somewhat unsteady, but his balance was fair. He had little difficulty getting in and out of the vehicles. The officer did have to explain several times why the accused was in the police vehicle.

He stated that some people can be very intoxicated and show few signs. [ 9 ] Constable Jaszczyszyn testified that most intoxicated prisoners are released in eight hours. Because of his high readings, the constable did not consider releasing him at the time. At the detachment, the accused seemed far more intoxicated than when the officer dealt with him initially. [ 10 ] The accused, testifying in the voir dire , confirmed that he did not ask if anyone could come to get him. He said no one checked on his state of sobriety. He sang to himself, and might have slept. He claimed not to have been given anything to eat.

The booking form indicates one meal, but there was no further evidence on that point. When asked if there was anyone whom he could have called, he responded “reluctantly” he would have said he could call his parents and could probably name 30 people. He did not ask to go home, or when he might be released. He said he assumed that he was in there for the night. Delay to Trial [ 11 ] On August 17, 2009, the first return date before the Court, a trial date of March 17, 2010, was set. On February 12, 2010, defence counsel, Mr. Owens, wrote to Mr.

Jacques, Crown counsel then on the file, as follows: ATTENTION: Glen Jacques Via Fax: 446-7499 Dear Sir: Re: R. v. Edward “Michael” Grondin Trial: March 17, 2010, 9:30 a.m., Courtroom #2, North Battleford Further to your letter of February 3, 2010, we can advise that because the officer will be away at a training course that we would not object to the Crown’s request for an adjournment. However, we could not waive delay to the date when we are next available to conduct a day long trial in North Battleford.

If you are agreeable to the adjournment on these conditions, we would be pleased to have the matter brought forward and speak to it by phone for the selection of a new date. [ 12 ] On March 12, 2010, Mr. Jacques faxed the Clerk of the Court, marked “Urgent”: Attention: Clerk of the Court “URGENT” Dear Sir: RE: Accused: Michael Grondin

{Our file: 317047-NB} Charge: s. 253(1)(a), 253(1)(

b) C.C. (Information 24372215) Court Date/Time: March 17, 2010, at 9:30 a.m. (Trial - Courtroom No. 2) Location: North Battleford, Saskatchewan Inv. Officer: Cst. Jaszczyszyn - File: 09-775721 Please be advised that the Crown will be requesting an adjournment of the above captioned trial due to the unavailability of the Crown witness. This request has been previously communicated to Defence Counsel who has indicated they are prepared to consent to the setting of a new trial date (though Defence is not waiving any delay resulting from said adjournment). Defence Counsel (Mr.

Owens) has indicated his preference to speak to the matter by telephone either on the trial date or an earlier docket date. [ 13 ] On March 17, 2010, Mr. Jacques and the accused appeared in person and Mr. Owens appeared by telephone to speak to the consent adjournment. The following exchange appears in the transcript, page 3, lines 1 through 11: THE COURT: Mr. Jacques is Crown counsel on the Grondin matter. Mr. Grondin s [sic] at the front at the microphone. I understand that this is to be adjourned at the request of the Crown and defence counsel is not objecting but not waiving delay. MR. OWENS: Correct.

I indicated to the Crown as well that we couldn’t waive delay to a date that we would be available as defence counsel. THE COURT: And fair enough. I have dates here for the adjourned matter, courtroom number two. How long is this going to take would you estimate? [ 14 ] Crown counsel estimated one-half to three-quarters of a day would be required and defence counsel suggested a day because of the Charter issues.

The Court offered the following full days (pages 4 to 6): June 29, July 5, July 6, August 10, August 11, August 23, August 25, August 26, August 30, August 31, September 9, September 22, September 23, September 27, October 14 and October 25, and all of the month of November. None were available to defence counsel. The Court then asked what date in December Mr.

Owens would be available and the trial was set for December 13, his first available date. [ 15 ] As an aside, I note that Wednesday, March 17, 2010, was never utilized by the Court, due to counsel not informing the Court of the pending adjournment until 3:00 p.m. on Friday, March 12. ANALYSIS Reasonable and Probable Grounds for the Breath Demand [ 16 ] The first issue arises from the officer relying on the Approved Screening Device result without first determining that at least 15 minutes had expired after the accused’s last drink.

[17] A number of prior Court decisions have dealt with an accused being stopped after leaving a bar, or the parking lot of a bar, orin the vicinity of a bar: · R. v. Mastromartino, [2003] O.J. No. 127 (QL): The Court disallowed the Certificate of Analyses, applying R. v.Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193, on the basis that the police officer should have made the appropriateinquiry. The officer pulled the accused over one minute after witnessing him leave the bar. ∙ R. v. Szybunka, [2005] A.J. No. 1682 (QL), 2005 ABCA 422: Police observed the accused drive away from the barparking lot.

The Court of Appeal applied Bernshaw and noted, “The central inquiry is whether there is any evidence which might havecaused the investigating constable to question when the applicant had his last drink. Absent such evidence, there is no requirement thatthe investigating constable either determine when the last drink was consumed or defer administration of a screening test for 15 minutes.Sopinka J. in Bernshaw, speaks of ‘credible evidence to the contrary’, that leads an officer to believe that the suspect may have had adrink in the preceding 15 minutes” (para. 8).

The trial judge had found there was no such evidence. Leaving the parking lot of a bar doesnot satisfy the test (that the officer knew or was wilfully blind to whether the result would be unreliable). The appeal was dismissed. ∙ R. v. Kathol, [2005] A.J. No. 1729 (QL), 2005 ABPC 335: The evidence was excluded; the officer saw the accused enterthe vehicle parked next to the bar.

Given his proximity to the bar and the possibility that he had drank alcohol recently, the officer shouldhave asked. (It was noted that he had told the officer at 1:50 a.m. that he had been drinking since 9:00 p.m., and had six beer over thepast five hours.) ∙ Smith v. R., [2009] S.J. No. 724 (QL), 2009 SKCA 139: The officer stopped the accused a few blocks from the bar. Hetold the officer that his last drink was five minutes before he left the bar.

The Court noted there was no evidence as to what amount oftime elapsed after the accused left the bar and “the only person with that knowledge was the appellant himself and he chose not to sayanything to the officer in that respect and elected not to give evidence on the voir dire” (para. 7). The Court of Appeal referred to theprinciples from Bernshaw that the officer need not question the suspect with respect to when he last drank, and the mere possibility thathe drank within the preceding 15 minutes does not preclude the officer from making the demand and relying on the result where he actsbona fides.

The appellant failed to prove a breach of the Charter and the appeal was dismissed. [18] Clearly, each case must be determined on its own facts. In the case at bar, Constable Jaszczyszyn did not actually see theaccused leave the bar, but saw him in the vehicle in the parking lot at closing time. The accused told the officer that he had been in thebar. Included in the grounds for the Approved Screening Device demand were the slight smell of alcohol on his breath and the fact thebar was closing.

The officer had been taught that if he did not wait 20 minutes after the accused’s last drink, a false fail reading couldresult. He testified that it is his usual practice to ask suspects if they have been drinking and to wait 20 minutes if they have, but he hadno notes of the accused’s response to any such question in this case. [19] The accused testified that he was not asked when he had his last drink, which was only three or four minutes before he wasapproached by the officer, and there is no evidence to refute that.

What distinguishes this case from the more usual scenario is that theaccused was well aware from previous encounters that mouth alcohol takes 15 to 20 minutes to dissipate, and affects the result, yet hechose not to divulge the presence of mouth alcohol to the officer. His responses in cross-examination when asked why could suggest thathe intentionally neglected to mention it. [20] I have no doubt that the officer subjectively believed that he had the requisite grounds. He was honest and forthright in hisevidence before the Court.

As noted in Smith, supra, a mere possibility that the suspect drank within the preceding 15 minutes does notmandate further inquiry. But in this case, there was more than a mere possibility. Factors supporting recent consumption formed part ofthe officer’s grounds for the Approved Screening Device demand (proximity to the bar, closing time, slight smell of alcohol).

In thesecircumstances, he should have asked the question, and acknowledges that it was his usual practice to do so. [21] Where the objective grounds are not met, and it is therefore not reasonable for the officer to rely on the Approved ScreeningDevice result, the fact that the accused knew what the officer did not, does not change the fact that the officer’s belief was notobjectively reasonable. In my opinion, that is a factor to be considered in the Grant analysis.

[22] I find that when the officer relied on the Approved Screening Device result without first inquiring when the accused lastconsumed beverage alcohol, he lacked the objectively reasonable grounds to believe that the accused had committed the offences whichjustified a Breathalyzer demand. The detention was, therefore, arbitrary and the Breathalyzer test an unreasonable search, contrary to ss.8 and 9 of the Charter of Rights. Over-holding in Police Cells [23] The officer did have a legitimate purpose for holding the accused after obtaining such high Intoxilyzer results.

Even if he didnot physically show extreme levels of impairment, that was his state, and no doubt liability could attach had they turned him out into thestreet. It was necessary in the public interest that he be detained, unless he could be released to a responsible, sober adult. State ofsobriety was noted to be a factor to be considered in determining whether detention is necessary in the public interest under s. 497 of theCriminal Code in R. v.

Wilcox (12 June 2008), Saskatchewan Provincial Court decision of Ferris J., Prince Albert Information No.31591420 (although in that case, it was held that sobriety is not justification for holding in, and of, itself, and necessity requires thepracticality of releasing him to others to be addressed. The accused blew .20 and .18 and was held for almost 10 hours.

The officersknew that he had friends and family in the city, and he was very anxious about missing work.) [24] In the case at bar, the police did not inquire if there was someone who could be called to collect the accused, and the accuseddid not volunteer that information. It is unclear to me as to whether he would have called anyone, if asked, from his responses in Court.He did not seem to be particularly bothered by the experience. He expected to spend the night in cells, he sang to himself, and probablyslept.

His high level of intoxication no doubt contributed to a lack of concern and discomfort. [25] Most of the cases which found arbitrary detention dealt with individuals who were held longer than this accused, or whoselevels of impairment were less. It was noted in R. v. Fox, 2007 SKPC 61: [22] It is also necessary to comment on Mr. Fox’s detention for the three or four hours after he awoke in his cell and prior to his release.I am of the opinion that this period of detention, alone, was an arbitrary detention. Even if the original detention was justified in law,there was no need to hold Mr.

Fox in cells for a period in excess of twelve hours. This is especially so in light of the fact that he hadalready been in RCMP custody for almost three hours prior to his being placed in cells. Mr. Fox should have been checked on regularlyto ensure his earliest possible release. As Cst. Tremblay testified, an accused who is lodged in cells should be checked on after seven oreight hours to ensure his release as soon as sober. There is no satisfactory explanation offered by the RCMP for this delay in checking onand releasing Mr. Fox.

Just because the detachment was busy that weekend due to a cultural event does not justify Mr. Fox’s continueddetention. In fact, the appropriate inquiries in the first instance may well have alleviated the very need to conduct checks on Mr. Fox. [26] In R. v. Holbrook, 2008 SKPC 133, the accused was held in excess of eleven hours, he could have been released to his soberwife, and there was “no reliable evidence to suggest a level of intoxication which would require overnight detention” (para. 45). [27] In R. v. McKelvey, 2008 ABQB 466, the accused was detained overnight as his impairment level was high.

Para. 8 states: Even if detention may have originally been necessary, the Accused was not released for over ten hours after his detention commenced.To paraphrase Maloney J. in R. v. Smith, [2005] A.J. No. 1161, 2005 ABPC 202 at para. 33, the onus of proof to establish a Charterbreach is borne by the accused, but there comes a point when the Crown must explain the accused’s continued detention. There was noexplanation put forward in this instance. [28] In R. v. Schemenauer, (SK KB), [1986] S.J. No. 840, 54 Sask.

R. 171, the blood alcohol reading was .25and the high level was one of the reasons the accused was detained. Justice Barclay stated: I am of the opinion that even if there was a breach of s. 9 of the Charter, it was not deliberate, wilful or flagrant and therefore the learnedProvincial Court Judge erred when applying s. 24 of the Charter in acquitting the respondent, as an acquittal under these circumstancesbrings the administration of justice in disrepute.

[29] It cannot be said that the accused was held for no purpose, considering the very high level of intoxication. He was released ineight hours, and there was no evidence that he was anxious to be released. In the particular facts of this case, in my opinion the detentionwas not arbitrary, and even if it was, it was only for a portion of the eight hours and could adequately be compensated with a reduction insentence for the aggravated readings in the event of conviction: R. v. Paquette, [2002] S.J. No. 78, 2002 SKQB 18, R. v. S.L.L., 2002SKQB 425, and R. v. Scharf, 2005 SKQB 287. The Right To Be Tried Within a Reasonable Time,

Section 11(b) [30] There is no indication on the record as to the reason or reasons for the first trial date being set seven months after plea.Although the correspondence between counsel does not indicate when the Crown was first aware that the investigating officer would beunavailable, it does indicate that defence counsel agreed to the adjournment on February 12, 2010, which was not communicated to theCourt for a further month. The transcript from March 17, 2010, shows that the trial could have been held as early as the following June,but defence counsel was not available until December 13, 2010.

If the Crown had not delayed bringing the adjournment request to theattention of the Court for a further month, earlier dates may have been available to the defence and the Court. [31] I agree with the decision of Singer P.C.J. in R. v. McAllister, [2005] S.J. No. 282, 2005 SKPC 56, wherein he states that theaccused cannot be expected to accept a date which requires him to get new counsel, except in extreme cases (para. 28).

Judge Singer didnot accept that agreeing to the request was a waiver of the right to trial within a reasonable time and states: “There are many reasons whyan accused person may agree to a Crown’s request for an adjournment, suspecting that the trial judge would probably grant theadjournment is one of them. In seeking the adjournment the Crown is also aware that some counsel are very busy” (para. 37). Suchcould certainly be said for defence counsel in this case. As the Court is well aware of Mr.

Owen’s busy court schedule, so must theCrown, and would have known of that at the time of the adjournment request. [32] The reason given by the Crown for the adjournment is not one which would automatically be granted by the Court. We mayexpect to be advised of what the course involved, and when it was booked for the investigating officer. The Court was never given thatinformation, even at trial in the course of this argument.

It is quite possible that without defence consent, the Crown would have beenrequired to call its case. [33] A long delay resulting from a Crown request for adjournment calls for an explanation from the Crown as to the necessity forthe adjournment, and in the absence of such an explanation, the Court can infer that the delay is unjustified. (See R. v. Shendaruk, 2004SKQB 44, quoting Sopinka J. in R. v.

Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.), and the reference therein to R. v.Smith (para. 26).) [34] In the case at bar, I find that the delay was unjustified and the delay of nine months to the second trial date falls solely on theCrown. The total delay from the date of plea to trial was 16 months, 17 months from the date of the charge. [35] In R. v. McAllister, supra, the delay attributable to the Crown was 14 out of the total of 18 months. The Court stayed theimpaired driving charges. It was noted in the decision that the accused had found the stress of the charges overwhelming.

He had beenirritable, impatient, anxious and depressed, which had affected him and those around him (para. 45). In the case at bar, the accused didnot testify as to any effect which delay of the charges had on him or anyone else. [36] In Shendaruk, supra, the accused demonstrated actual as well as inferred prejudice. His health and employment prospects hadbeen impacted, and he demonstrated to the Court a desire to have the matter resolved at an early date. The charge was possession ofcocaine for the purpose of trafficking, and took more than two years to reach trial.

The Court noted that a delay of 16 months in that casewould not have breached s. 11(b), applying Morin, supra (para. 38). [37] In R. v. Shields, 1999 SKQB 246, Wright J. stayed the impaired driving proceedings. The time to trial was 21 ½ months for acase which had first gone to preliminary inquiry, only seven weeks of which had been waived. The actual prejudice suffered by theaccused determined the matter. At para. 12, the Court states: Taking the foregoing into consideration, this would, in my view, at best be a borderline case in which to grant the relief requested by the

accused. In other circumstances I would have been inclined to dismiss the application. The accused was not in custody pending trial.There were no restrictions placed on his movements. The accused, however, testified on a voire [sic] dire as to actual and tangibleprejudice suffered by him in the months preceding the date set for trial and which could have been avoided had the matter beenconcluded in a more timely fashion. This, in my opinion, tips the balance in favour of the accused and supports his request for thisextraordinary relief. [38] Similarly, in R. v.

Schoffer, 2009 SKPC 118, Kolenick P.C.J. found the accused had suffered real prejudice and stayed theproceedings after a 19-month delay. [39] The factors which must be considered are set out in R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.): (

a) Length of delay; (

b) waiver of time periods; (

c) the reasons for the delay, including (1) inherent time requirements of the case; (2) actions of the accused; (3) actions of the Crown; (4) limits on institutional resources, and (5) other reasons for the delay, and (

d) prejudice to the accused. [40] As the Court states in Morin, supra, once a prima facie case is made out, the Court must proceed with a closer considerationof whether the right to be tried within a reasonable time outweighs the conflicting interest of society: The question is whether, on the facts of the particular case, the interest of society in requiring the accused person to stand trial isoutweighed by the injury to the accused’s rights and detriment to the administration of justice which a trial at a later date would inflict. [41] The length of the delay in this case, 16 months from plea to trial, is sufficient to warrant further inquiry.

Only nine months ofthat delay falls solely on the Crown, and is not justified. Had there been any evidence of actual prejudice to the accused, I may well havedecided differently, however, considering all of the circumstances in this case, the consequences of the delay are not great, and I haveconcluded that the interests of society in bringing the accused to trial outweigh the interests of the accused. Balancing all of the factors,the delay is not unreasonable, and there will be no stay of proceedings. REMEDY FOR THE BREACH OF SECTIONS 8 AND 9 [42] Having found no breach of s. 11(

b) and no over-holding contrary to s. 9, the issue remaining is the remedy for the accusedbeing detained and required to provide breath samples without reasonably objective grounds. The usual remedy, if any, is the exclusionof the Certificate of Analyses pursuant to s. 24(2). [43] Since the decision in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, exclusion is no longer automatic.

The analysisrequires a consideration and balancing of the seriousness of the action of the officer, the impact on the Charter interests of the accused,and society’s interest in having the matter adjudicated, and the onus is on the accused to justify the remedy (See R. v. Gunn, 2010 SKPC63, upheld on appeal at 2010 SKQB 451).

[44] In R. v. Sapara, 2011 SKQB 9, the Provincial Court had found that the officer did not have the reasonably objective groundswhen he had lost sight of the vehicle leaving the bar, so the detention was arbitrary, but still admitted the certificate following the Grantanalysis. Although disagreeing that the officer’s suspicion was not objectively supported by, inter alia, the proximity to the bar, onappeal McMurtry J. agreed that the Certificate of Analyses should be admitted into evidence and dismissed the appeal. [45] In R. v.

Wetzel, 2011 SKPC 9 , 2011 SKPC 009, Agnew P.C.J. in the end concluded that the accused was not guiltybecause the samples were not taken as soon as practicable, but had admitted the Certificate of Analyses even though there wereinsufficient grounds for a breath demand. [46] Admission of the Certificate of Analyses was similarly upheld in R. v. Anderson, 2009 SKQB 378. Herauf J. wrote: The Supreme Court in Grant commented in obiter that the admission of Breathalyzer evidence may more often than not be admittedbecause it is reliable.

I realize, as did the trial judge, that the Court must consider and balance the three factors in each and every casebased upon the circumstances at play (para. 10). [47] I would summarise the circumstances here, under the three headings in Grant, as follows:

(1) The seriousness of the state action: There was no bad faith on the part of the officer; he subjectively believed that he had grounds, but because of his failure to inquire aboutthe timing of the last drink, it was not objectively reasonable for him to rely on the Approved Screening Device result. It would havebeen much more egregious had the officer actually known that the accused had consumed alcohol within the preceding 15 minutes butstill relied on the Approved Screening Device result to make a breath demand. In this case I am satisfied that the failure to ask was theoversight of a well-meaning but inexperienced officer, and does not weigh heavily against inclusion.

(2) The impact of that conduct on the Charter-protected interests of the accused: Klause P.C.J. noted in Sapara, supra, that the collection of breath sample evidence is relatively non-intrusive and found the impact onthe accused in that case was relatively low. It is also a relevant circumstance in the case at bar that the accused knew that mouth alcoholwas present and could affect the result, yet opted not to bring that to the attention of the officer. The circumstances under this headingfavour inclusion.

(3) Society’s interest in adjudication of the case on the merits: This factor weighs heavily in favour of inclusion. There is little evidence of impairment outside of the certificate, so it is necessary Crown evidence to support a conviction. The importance of bringing impaired drivers to trial has been stressed by the courts many times. [48] After assessing and balancing the three factors in Grant, in the circumstances of this case, I have determined that admission ofthe Certificate of Analyses would not bring the administration of justice into disrepute. [49] The Certificate of Analyses will be admitted into evidence. ________________________________ V. H. Meekma, J