His Majesty the King - v. -, 2024 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2024 SKPC 8 Date: January 11, 2024 Information: 90458673 Location: Maple Creek _____________________________________________________________________________ Between: His Majesty the King - and - Tucker Sunderland Appearing: Curtis G. Wiebe For the Crown Devon T. Sletten For the Accused VOIR DIRE / TRIAL DECISION M.E. TOMKA , J BACKGROUND [ 1 ] Tucker Sunderland was charged on Information 90458673 that on or about April 8, 2023, he did: Count 1- Operate a conveyance while impaired contrary to

section 320.14(1) (

a) of the Criminal Code [ Code ]. Count 2 - Within two hours of operating a conveyance have a blood alcohol level at or above the legal limit contrary to

section 320.14(1) (

b) of the Code .

[ 2 ] Prior to trial, defence served notice alleging several Charter breaches including: 1 . Mr. Sunderland’s

section 10(

a) Charter right was violated as the RCMP did not adequately advise him of the reason of his detention. 2 . Mr. Sunderland’s

section 10(

b) Charter right was violated because: a . The RCMP delayed in advising Mr. Sunderland of his right to counsel for six minutes after his arrest for impaired driving and/or; b . The RCMP steered him towards Legal Aid. [ 3 ] Defence seeks a remedy under section 24(2) of the Charter for exclusion of the breath samples. [ 4 ] A blended voir dire /trial was held on November 28, 2023. The Crown called two witnesses, Cst. Townsend-Carter (Carter) and her partner Cst. Huard. Three exhibits were entered: Exhibit P-1- The WatchGuard Video which shows 19 minutes of the traffic stop.

Exhibit P-2- The Certificate of Qualified Technician which indicated two samples of 100 milligrams of alcohol in 100 millilitres of blood, and Exhibit P-3- The Certificate of an Analyst. [ 5 ] Mr. Sunderland testified on the voir dire . His evidence was not applied to the trial proper. [ 6 ] At the conclusion of the evidence, the Crown conceded there was insufficient evidence to prove Count 1, the impaired driving charge. As such, Mr. Sunderland is acquitted of impaired driving. [ 7 ] It was also clear, that if all the evidence from the voir dire was admissible, the Crown has proven Count 2, that Mr.

Sunderland had a blood alcohol level at or exceeding the legal limit within two hours of operating a conveyance. [ 8 ] However, the final verdict on Count 2 is subject to the impact of any Charter remedy that may be granted. THE CHARTER ISSUES 1. Has Mr. Sunderland proven on a balance of probabilities that there was a violation of his Charter right under

section 10(a)? 2. Has Mr. Sunderland proven on a balance of probabilities that there was a violation of his Charter right under

section 10(b)? a. Was there an unjustified delay in advising him of his right to counsel? b. Was he steered towards Legal Aid?

3. If a breach is proven, should the evidence of the breath tests be excluded under section 24(2) of the Charter? Findings of Fact [ 9 ] The following are my findings of fact based on the evidence I accepted as credible and reliable on the voir dire : 1 . Cst. Huard and Cst. Carter were members of the RCMP stationed at the Maple Creek detachment at all material times. 2 . On April 8, 2023, Cst. Carter was new on the job and had been an RCMP officer for approximately one week. That day she was partnered with Cst. Huard who was her field officer for the shift. A field officer is essentially a training officer. 3 .

At approximately 1:30 a.m., the constables spotted Mr. Sunderland driving his truck in or near Maple Creek, Saskatchewan. 4 . Upon seeing the truck, they initiated their emergency lights and followed Mr. Sunderland’s truck for the purpose of performing a traffic safety stop to check licence/registration and sobriety of the driver. 5 . Mr. Sunderland drove for approximately 200 metres or 20-30 seconds after the RMCP had engaged their emergency lights. He was aware that the RCMP were attempting to stop him, but he proceeded as his grandfather’s shop yard was close by. 6 . When Mr.

Sunderland stopped, he remained in the truck. There were two passengers also in the vehicle. 7 . Cst. Huard approached Mr. Sunderland’s vehicle. Mr. Sunderland was observed to have lit a cigarette and was sitting in the driver’s seat. 8 . Cst. Huard checked Mr. Sunderland’s licence and made the mandatory Approved Screening Device (ASD) demand at 1:32 a.m. 9 . Cst. Huard then asked Mr. Sunderland if he was drinking, Mr. Sunderland’s response was “No”. 10 . Mr. Sunderland provided samples of his breath into the ASD. The first sample registered insufficient. The second sample also registered insufficient.

The third sample registered a fail. 11 . Upon failing the ASD, Cst. Huard advised Mr. Sunderland he was under arrest for impaired operation and asked him to step out of the vehicle. 12 . Mr. Sunderland’s response was to ask the officer, “Does this mean I blew over?” Cst. Huard replied “Yes”. 13 . Mr. Sunderland then asked Cst Huard if he would allow him to urinate. 14 . Cst. Huard granted his request. 15 . While Mr. Sunderland urinated RCMP performed an ASD test on one of the passengers. This was done to determine if this passenger could later pick up Mr. Sunderland from the detachment.

The passenger passed the ASD test. 16 . It took approximately three minutes for Mr. Sunderland to urinate. 17 . When he finished urinating, Mr. Sunderland was handcuffed by Cst. Huard and taken to a police vehicle. 18 . Once in the police vehicle Mr. Sunderland, asked “Exactly what are the charges?” Cst. Huard’s response was “Oh, I’ll tell you”…“I’ll read it to you just”… and then he left without completing what he was telling Mr. Sunderland. 19 . Mr. Sunderland waited for approximately six minutes before Cst. Huard returned. 20 . During the six minutes wait, Cst. Carter was also in the police vehicle with Mr.

Sunderland. Cst. Carter made small talk and joked with him. 21 . When Cst. Huard returned the following conversation occurred: Cst. Huard- Alright so I will read you a bunch of stuff, okay. Cst. Huard- Alright so now you are under arrest for impaired-, K. Applicant- K. Cst. Huard- Uh. What is your name? Tucker? Applicant- Yes, Tucker Sunderland. Cst. Huard- Alright. So, you have the right to retain and instruct counsel without delay. Cst. Huard- You may call any lawyer you wish ; L egal A id and duty counsel is available to provide you with legal advice free of charge and I can explain the legal aid plan to you.

I can provide you with a number you can call free of charge. Do you understand? Applicant- Yeah. Cst. Huard- Do you want to call a lawyer? Applicant- Probably for the best. Cst. Huard- What. Applicant- Probably for the best, yeah. Cst. Huard- So ya? Applicant- Yes, yeah please. Cst. Huard- Who do you want to call? Do you know?

Applicant- Um, whatever you guys provide. Cst. Huard- K. [reads right to silence]. Do you understand? Applicant- Yes. Cst. Huard - Yeah like even if you want to use Legal A id now and pay for a lawyer later, like nothing stops you. Applicant- Yeah just 'cause I don't have a- [Gets interrupted]. Cst. Huard- You might not even get charged in the end like I said. Cst. Huard- And then last one, okay. [Reads s.320.28 breath demand]. Cst. Huard- So basically, you did the roadside one, it is not as accurate as the other one. 22 . Mr.

Sunderland never did specify that he wanted to speak to any lawyer other than Legal Aid/duty counsel. Instead, he specifically told Cst. Huard that he wanted to speak to “whatever lawyer you provide”. He meant he was choosing Legal Aid/duty counsel as counsel of choice. 23 . Mr. Sunderland did not have a lawyer of his own or know a lawyer. 24 . He did not ask to speak to his parents or anyone else to assist him in getting a lawyer. 25 . Mr. Sunderland was tired as it was the early morning hours and he was stressed about the jeopardy he was facing.

He chose to contact Legal Aid/duty counsel because he wanted to get the whole process completed and wanted to get home. 26 . There was no outside indication to the RCMP that Mr. Sunderland failed to understand his right to counsel or, more particularly, his right to counsel of choice. 27 . Mr. Sunderland was driven to the Maple Creek detachment. While at the detachment the officer asked Mr. Sunderland if he wanted to contact a lawyer or Legal Aid/duty cousnel. 28 . Mr.

Sunderland confirmed he wanted to speak to Legal Aid/duty counsel and was given the opportunity to consult with duty counsel at approximately 1:52 a.m. 29 . Mr. Sunderland spoke to duty cousel for approximaely four mintutes. He did not identify any dissatisfaction with the advice he was given. 30 . Following his call with duty counsel, Mr. Sunderland provided his first sample to the Qualified Technician at 2:18 a.m. The sample was 100 mg of alcohol in 100 ml of blood, exceeding the legal limit. 31 .

Then, he provided a second sample to the Qualified Technician at 2:40 a.m., again registering a sample of 100 mg of alcohol in 100 ml of blood. 32 . Mr. Sunderland had been operating his vehicle within two hours of the provision of both breath samples. LAW and ANALYSIS 1 . Has Mr. Sunderland proven, on a balance of probabilities, that there was a violation of his Charter right under

section 10(a)? [ 10 ]

Section 10(

a) of the Charter provides: 10. Everyone has the right on arrest or detention: (

a) to be informed promptly of the reasons therefor; [ 11 ] Notably, the Court of Appeal of Saskatchewan in R v Suteau, 2019 SKCA 115 , 382 CCC (3d) 118 stated at para 30 : [30] Whether the informational requirement under s. l0(

a) can be met without requiring specific words was addressed by this Court in Carrier. Carrier sought leave, relying on Mann and Orbanski, to argue that where a person is being investigated for impaired driving, a police officer is required to specifically inform the individual as to the purpose of the investigation rather than relying on the context or circumstances to determine if sufficient reasons were provided or were obvious as required in Evans. Hunt J.A. held that the statements relied on by Carrier in Mann and Orbanski were obiter dictum as neither case raised s. 10 (

a) breaches. She concluded that the law on s. l0(

a) remains to be governed by Evans, as applied in Latimer; that when considering whether there has been a breach of s. 10(a), it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, that matters. Leave to appeal was denied. … In my view, the law surrounding the informational component of s. 10(

a) is settled. Carrier concluded that Evans remains the law and the informational requirement of s. 1 0(

a) can be inferred from the context or circumstances in each case. The inquiry must be whether, substantively, the accused can reasonably be supposed to have understood the basis for the investigation. That is the precise issue raised here.

[Emphasis in original] [12] The Supreme Court of Canada in R v Evans, (SCC), [1991] 1 SCR 869 describes the 10(

a) Charter right asfollows: [26] The right to be promptly advised of the reason for one's detention embodied ins. 10(

a) of the Charter is founded mostfundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it: R. v. Kelly(1985), (ON CA), 17 C.C.C. (3d) 419 (Ont. S.C.) at 424. A second aspect of the right lies in its role as an adjunct tothe right to counsel conferred by s. l0(

b) of the Charter. As Wilson J. stated for the Court in R. v. Black, (SCC), [1989] 2S.C.R. 138 at pp. 152-153, "[a]n individual can only exercise his s. l0(

b) right in a meaningful way if he knows the extent of hisjeopardy." In interpreting s. l0(

a) in a purposive manner, regard must be had to the double rationale underlying the right. [Emphasis added] [13] Mr. Sunderland argues that his

section 10(

a) Charter rights were breached because he did not understand his jeopardy asevidenced by his request that the officer reiterate the charge against him once he was placed in the police vehicle. [14] However, contrary to Mr. Sunderland’s argument, he specifically admitted that he understood that the purpose of the trafficstop was to check his licence and registration. Furthermore, he admitted as soon as the ASD breath demand was made, he was aware theASD was being used to check his sobriety.

He also understood that the ASD tested acceptable levels of alcohol in one’s system and heknew he failed. [15] Most significantly, Mr. Sunderland admitted that the officer advised him that he was under arrest for impaired drivingimmediately after he failed the ASD. He also testified that he was handcuffed and in his mind being handcuffed coincides with beingarrested or detained by police. [16] I found Mr. Sunderland to be an articulate and intelligent young man. Given the clear words used by the officer in advisinghim of his arrest for impaired driving immediately after failing the ASD and Mr.

Sunderland’s own admissions, I do not accept that Mr.Sunderland did not understand the reason for his detention at any stage of the traffic stop. Indeed, the reason for his detention or arrestwas perfectly clear from the circumstances of the stop and what the officer had told Mr. Sunderland. [17] As such, I find that Mr. Sunderland has not proven on a balance of probabilities a breach of his

section 10(

a) Charter right. 2. Has Mr. Sunderland proven on a balance of probabilities that there was a violation of his Charter right under

section 10(b)? a. Was there an unjustified delay in advising him of his right to counsel?b. Was he steered towards Legal Aid? [18]

Section 10(

b) of the Charter provides: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [19] The Supreme Court has held that the right to counsel places a duty on the police that is both informational and, if the detaineeinvokes his or her right, implementational (R v Bartle, (SCC), [1994] 3 SCR 173 at 203-204). [20] In, R v Willier, 2010 SCC 37 at para 29, [2010] 2 SCR 429 [Willier], the Court states:

Section 10(

b) requires the police.

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal 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 this right (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 cases of urgency or danger). [ 21 ] If a detainee elects to exercise their rights to counsel by speaking to a specific lawyer,

section 10(

b) entitles that detainee to a reasonable opportunity to contact their chosen counsel prior to police questioning. [ 22 ] If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. [ 23 ] What amounts to a reasonable period of time will depend on the circumstances as a whole and may include factors such as the seriousness of the charge and urgency of the investigation ( Willier at para 35 ).

The police have not only a duty to provide a reasonable opportunity to contact counsel of choice, they must also facilitate that contact ( R v Traicheff , 2010 ONCA 851 at paras 2-3 and Willier at para 41 ). a . Was there an unjustified delay in advising Mr. Sunderland of his right to counsel after he was arrested for impaired driving? [ 24 ] Indeed, a detainee has the right to be informed of the right to retain and instruct counsel “without delay”. This has been interpreted to mean “immediately”.

The courts have recognized that a situation of vulnerability relative to the state is created at the outset of a detention and accordingly, the concerns about self-incrimination and the interference with liberty that

section 10(

b) seeks to address are present as soon as a detention begins ( R v Suberu , 2009 SCC 33 at para 4 , [2009] 2 SCR 460 [ Suberu ] ) . [ 25 ] While the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate the exercise of that right immediately upon detention, this duty is subject to concerns for officer or public safety and such limitations as prescribed by law and justified under

section 1 of the Charter ( Suberu , supra at para 42 ). [ 26 ] Despite there being a nine-minute delay in advising of the right to counsel following arrest, it is conceded by defence that three minutes of that delay were a result of Mr. Sunderland being allowed to urinate. This three-minute delay is justified and reasonable in the circumstances. [ 27 ] As such, the real issue is whether a six-minute delay in advising of the right to counsel in this case was justified. [ 28 ] Cst. Huard’s explanation for the delay was he was securing the keys to Mr. Sunderland’s vehicle.

He testified he needed the keys for two reasons, officer safety and to secure the vehicle for impounding. [ 29 ] On the issue of officer safety, Cst. Huard testified he was facing a dynamic situation. In addition, there were two passengers in Mr. Sunderland’s vehicle at the time of the stop and he believed there was risk one of the passengers would back the truck up, presumably, into the police vehicle parked behind it. [ 30 ] To be frank, I was somewhat surprised by his testimony of safety concerns.

All the evidence before the Court including the WatchGuard video depicts a light and cordial interaction during this traffic stop. There was no indication of any problem whatsoever with the passengers and certainly no suggestion that any weapons were present. Specifically, all the passengers were co-operative and showed no signs of aggression. In fact, at least one passenger was given the opportunity to provide an ASD sample to show they could pick Mr. Sunderland up from the detachment. This passenger passed the test; he was not intoxicated. Furthermore, Cst.

Huard eventually sought the assistance of one of the passengers in locating the keys. All of this indicates that officer safety vis à vis the passengers was not a realistic concern.

[31] Furthermore, there were multiple officers on the scene. Mr. Sunderland was handcuffed and in the back of a police vehicle. Ifofficer safety was a real concern, then one would have expected the officers to take more control of the other passengers during theprocess. Instead, the passengers were left to wander around at will and, for the most part, they remained in the shop building. [32] Given Cst. Huard’s testimony about officer safety, I am somewhat concerned he was reverse engineering the reason for thedelay in providing rights to counsel.

As a result, his credibility was impacted in relation to this portion of his testimony. [33] I note, the Crown also suggested that the delay in advising Mr. Sunderland of his rights to counsel was justified as the RCMPhave a common law duty regarding the seizure and impoundment of a vehicle.

The Crown refers to sections 146-150 of The TrafficSafety Act, SS 2004, c T-18.1 and the case of R v Nicolosi (1998), (ON CA), 127 CCC (3d) 176 (Ont CA) in thisregard. [34] However, I do not accept that securing a vehicle to comply with provincial legislation was a reasonable justification for adelay in the circumstances of this traffic stop. Again, there were two officers on the scene. Cst. Huard agreed Cst. Carter could havelooked for the keys while he advised Mr. Sunderland of his right to counsel and other Charter rights. [35] In addition, the truck was safely parked on private property owned by Mr.

Sunderland’s grandfather. This was not a situationwhere the vehicle was on a public roadway in an isolated area. In my view, there was no urgency requiring the prioritization of securingthe vehicle over advising Mr. Sunderland of his constitutional right to counsel. [36] Further, I have some issue with an officer suggesting that common law or provincially imposed duties somehow take priorityover the constitutional duty of advising of the right to counsel in this case. [37] In the end, I do not accept there was a reasonable justification for the six-minute delay in advising Mr. Sunderland of his rightto counsel.

The delay in this case does not meet the “immediacy” requirements of

section 10(

b) of the Charter. [38] As such, I find that Mr. Sunderland has proven on a balance of probabilities a breach of the

section 10(

b) right to be advisedof his right to counsel without delay. b. Was Mr. Sunderland steered towards Legal Aid thereby breaching his

section 10b) Charter right? [39] Defence further alleges that Mr. Sunderland’s

section 10(

b) right was breached because he was steered to Legal Aid/dutycounsel. They say Mr. Sunderland’s right to counsel of choice was thereby impacted. [40] However, in this case, Mr. Sunderland was clearly told he could contact any lawyer he wished and Legal Aid/duty counselcould be provided to him free of charge. Further, Mr. Sunderland admitted he knew he could call any lawyer he wanted and that bysaying “whatever you provide”, he meant that he wished to call the provided lawyer which he understood as being Legal Aid/dutycounsel. [41] I find as fact, Mr. Sunderland advised Cst.

Huard that he wanted to speak to Legal Aid/duty counsel and thereby invoked hisright to counsel and the counsel of his choice was Legal Aid/duty counsel. [42] Once Mr. Sunderland invoked his counsel of choice, it is my view it would have been improper for the RCMP to do anythingto dissuade him from using Legal Aid including offering him a phone book or other means to look up other lawyers’ numbers. To thecontrary, the RCMP were under an obligation to fulfill their implementation duty of facilitating contact with counsel of choice, namely,Legal Aid/duty counsel. [43] I do not accept Mr.

Sunderland’s testimony that he did not understand that he had the right to contact counsel of his choosing

and the comments of the officer steered him towards Legal Aid. I find this suggestion inconsistent with admissions made during his testimony. Mr. Sunderland admitted that he did not have another lawyer, that it was early in the morning, he was tired, and he just wanted to get the process over with. [ 44 ] Indeed, had he misunderstood his right to counsel of his choice or believed that Legal Aid was possibly the only choice available to him because of what the officers were saying, I have little doubt Mr.

Sunderland would have raised the issue with the officers that night as it was clear that he had no issue questioning the officers even during his initial detention and arrest. [ 45 ] In any event, I find that there was nothing in the circumstances of this traffic stop that would have indicated to the RCMP that Mr. Sunderland did not understand any part of his right to counsel. [ 46 ] In R v Edgington, 2010 SKQB 381 , 367 Sask R 44 [ Edgington ] , the accused, when asked if he wished to call a lawyer, stated he did not have a lawyer. The officer advised the accused that he could be put in touch with duty counsel.

The accused agreed. The Court held that absent extraordinary circumstances, the police are entitled to give a detainee credit for being able to think and decide for themself. If a detainee indicates that they choose a particular lawyer, it is appropriate for the police to accept that decision at face value and conclude the right to choose a lawyer has been provided. Accordingly, the Court held that the police did nothing wrong in suggesting that the accused speak with Legal Aid/duty counsel.

By allowing the accused to consult with Legal Aid, the officer’s implementation obligation had been met and no Charter breach was established. [ 47 ] At no time did Mr. Sunderland advise Cst. Huard he wanted to speak to any other lawyer, nor did he convey any dissatisfaction with the legal advice that he received from Legal Aid/duty counsel. As such, I adopt the comments in Edgington and, in the context of this case, I find that the RCMP were entitled to take what they were being told on face value, namely, Mr.

Sunderland was invoking his counsel of choice, namely Legal Aid/duty counsel. [ 48 ] I conclude that, in these circumstances, Cst. Huard properly informed Mr. Sunderland of his right to counsel and complied with his implementational duty in facilitating a reasonable opportunity to exercise that right to counsel of choice before the taking of breath samples. I am not of the view Mr. Sunderland was steered to Legal Aid/duty counsel by the RCMP in any way whatsoever. [ 49 ] In the end, Mr. Sunderland has failed to establish, on a balance of probabilities, a breach of his

section 10(

b) Charter right due to being steered to Legal Aid/duty counsel. 3. If a breach is proven, should the evidence of the breath tests be excluded under section 24(2) of the Charter? [ 50 ] Defence seeks the exclusion of the breath samples pursuant to section 24(2) of the Charter . Recently, in R v McColman , 2023 SCC 8 , 423 CCC (3d) 423 [ McColman ] the Supreme Court considered section 24(2) in the context of a drinking and driving case.

It wrote, at paras 53 to 55: [53] Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial 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”.

The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Gran t, at para. 68. [54] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant , at para. 70.

In Grant , this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits.

Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant , “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140. [55] Trial courts must evaluate each of the three lines of inquiry thoroughly.

A cursory review of the Grant test prevents appropriate appellate review and transforms s. 24(2) from a contextual inquiry into a bright-line rule. [ 51 ] I note that there are several cases submitted by defence where courts have excluded evidence of breath tests because of a breach of the “immediacy” requirement of

section 10(b). See: R v Davis , 2023 ONCA 227 , 425 CCC (3d) 80 [ Davis ] ; R v Nufio , 2023 ONCJ 255 [ Nufio ] and R v Lester , 2015 SKQB 53 , 469 Sask R 257 [ Lester ] .

[ 52 ] In Davis the Court of Appeal of Ontario upheld the exclusion of breath samples by the trial judge resulting from a violation of the accused’s right to counsel. In that case, the accused was not informed of this right for eight minutes. [ 53 ] In Nufio , a judge of the Ontario Court of Justice also excluded evidence of the breath tests where there was a delay of eight minutes from time of arrest to being advised of the right to counsel. [ 54 ] Lester , was a

summary appeal at the Court of King’s Bench. The appeal judge concluded that there were ss. 8, 9, and 10 Charter right violations and excluded the evidence of the breath samples under section 24(2). The breaches were based on a 12-minute delay in placing the accused under arrest, providing a breath demand and reading his right to counsel. [ 55 ] In determining whether to exclude evidence, the cases cited by defence are not determinative as there is no categorical rule about admitting or excluding evidence based on similar circumstances.

There is no specific amount of delay in advising of the right to counsel that is acceptable or not acceptable for section 24(2) purposes. Instead, I must consider all the circumstances of the case before me. [ 56 ] I adopt the Ontario Court of Appeal’s comments in Davis at para 69 wherein they say: [69] In its submissions the Crown cautioned the panel repeatedly against taking a “categorical” approach to s. 24(2), an admonition that I endorse. This explains, in part, why the Crown’s own invitations to treat brief breaches of the immediacy requirement of s. 10(

b) as “technical” or inherently non-serious, or “cured” by compliance with other s. 10(

b) rights, do not resonate. Such determinations are to be made on a case-by-case basis by individual judges. In this regard, I fully accept that not all judges would have found the informational breach in this case to be serious, or its impact to have been moderate, and I recognize that not all judges would have found the balancing of factors to require the exclusion of the evidence. That, however, is not a basis for allowing the appeal. [Emphasis added] [ 57 ] In each case a section 24(2) analysis must be completed on its own set of facts.

THE GRANT ANALYSIS Seriousness of the breach [ 58 ] As stated in McColman , at paras 57-59 : [57] The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law.

As this Court stated in Grant , at para. 72, this line of inquiry “requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. Or as this Court phrased it in R. v.

Harrison , 2009 SCC 34 , [2009] 2 S.C.R. 494, at para. 22 : “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?” [58] In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson , 2017 SCC 15 , [2017] 1 S.C.R. 202, at para. 43 . As Justice Doherty observed in R. v.

Blake , 2010 ONCA 1 , 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant , at para. 75. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith?

Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability. [ 59 ] … State conduct that is not particularly serious may nonetheless heavily impact the accused’s Charter -protected interests. Conversely, state conduct that is egregious may minimally impact the accused’s Charter -protected interests. [59] In R v Nguyen , 2008 ONCA 49 , 231 CCC (3d) 541 at para 21 the Court of Appeal noted:

[21] Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(

a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter . [ 60 ] In this case, on the continuum of good faith/bad faith breaches Cst. Huard cannot be said to be acting in good faith.

In my view he acted negligently in this case. [ 61 ] In R v Tim , 2022 SCC 12 , 412 CCC (3d) 147 at para 85 , our Supreme Court said: [85] … Good faith on the part of the police, if present, would reduce the need for the court to dissociate itself from the police conduct (see Grant , at para. 75; Paterson , at para. 44 ).

Good faith cannot be claimed if the Charter breach arises from a police officer’s negligence, unreasonable error, ignorance as to the scope of their authority, or ignorance of Charter standards (see Grant , at para. 75; Buhay , at para. 59; Le , at para. 147; Paterson , at para. 44 ). [ 62 ] In has long been known that the police are required to advise of the right to counsel immediately. This “immediacy” requirement is a longstanding Charter requirement as it has been in place for well over a decade ( See: Suberu ) . Therefore, the “immediacy” requirement should have been well known to Cst. Huard. Indeed, Cst.

Huard testified he was aware of the “immediacy” requirement as he confirmed his understanding by testifying that he understood he was required to advise of the right to counsel “as soon as possible”. Based on his understanding of the requirement, it appears to me that Cst. Huard took a laid-back approach to Mr. Sunderland’s

section 10(

b) Charter rights. Such an attitude is evidenced when he put Mr. Sunderland in handcuffs, placed him in the back of the police cruiser and when Mr. Sunderland asked what he was charged with exactly, refused to substantially respond initially -- simply telling him he would advise him later. In addition, Cst. Huard’s prioritization of securing the vehicle shows a misunderstanding of the scope of the “immediacy” requirement under the informational duty and indicates to me a lack of recognition of its importance. [ 63 ] A further aggravating factor is that Cst.

Huard was acting as a field officer at the time of this traffic stop. Cst. Carter had only been on the job for approximately one week. Cst. Huard had the responsibility to be a role model for this young officer. In my view, it is especially important that an officer who is training another get it right when it comes to Charter rights. Otherwise, the failure to comply with the Charter may be repeated by the new officer. [ 64 ] Lastly, in my view, there was no subjective or objective standard that would suggest officer safety was an issue. [ 65 ] In the end, I conclude that, in the circumstances, Cst.

Huard breached the standard of care expected by a field officer training a junior officer and that the six-minute unjustified delay of a longstanding known Charter right without reasonable explanation is negligent and results in a moderately serious breach. The seriousness of the breach in this case weighs in favour of excluding the evidence.

Impact of the Breach [ 66 ] On the second branch of the Grant inquiry, t he Supreme Court in McColman explained at para 66 that: [66] The second line of inquiry is aimed at the concern that admitting evidence obtained in violation of the Charter may send a message to the public that Charter rights are of little actual avail to the citizen. Courts must evaluate the extent to which the breach “actually undermined the interests protected by the right infringed”: Grant , at para. 76.

Like the first line of inquiry, the second line envisions a sliding scale of conduct, with “fleeting and technical” breaches at one end of the scale and “profoundly intrusive” breaches at the other: para. 76. [ 67 ] In response to the Crown’s argument that the impact of this breach is technical and fleeting because Mr. Sunderland did contact counsel of choice and no evidence was elicited in the six-minute delay, I adopt the comments of the Court in Davis at para 41 : [41] …the subsequent compliance with s. 10(

b) did not repair the damaging effects of the breach of Mr. Davis’s s. 10(

b) immediacy rights. As the Crown concedes, during the period of delay, Mr. Davis was without the benefit of information about his right to counsel, a consequence that the belated advice he received did not change. Nor did Mr. Davis’s ultimate enjoyment of the s. 10(

b) implementational rights remedy this breach of his informational rights. After all, informational rights are not provided solely as a means of enjoying implementational rights. A detained person requires the immediate assurance that ‘they are not entirely at the mercy of the police while detained’ and are entitled to a ‘lifeline to the outside world’ through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation : Pino , at para. 105; R. v. Rover , 2018 ONCA 745 , 366 C.C.C. (3d) 103, at para. 45 ; R. v.

Noel , 2019 ONCA 860 , at para. 24-26 ; R. v . O’Brien , 2023 ONCA 197 , at paras. 48 , 49. Compliance

with the immediacy requirement provides these constitutionally assured benefits; something Mr. Davis was deprived of even after thebelated compliance with s. 10(b). Put simply, because the subsequent compliance with s. 10(

b) in this case did not fully dispel the effectsof the informational breach, the justification for the application of the ‘fresh start’ doctrine is materially weakened. [Emphasis added] [68] Indeed, at issue under this branch of the test is Mr. Sunderland’s right to know that he was not entirely at the mercy of thepolice, and he did have a “lifeline” to the outside world. [69] Mr. Sunderland was a 22-year-old man who had not been previously arrested.

I accept that he was stressed about hispredicament and the jeopardy he would be facing He was fearful throughout the delay as evidenced by the fact that he questioned theofficer about the reason for his detention and had numerous questions. The impact of the delay is aggravated somewhat due to Cst.Huard’s choice to delay answering Mr. Sunderland’s questions when he was first put in the police vehicle. [70] However, I am mindful that the impact of not knowing that a lifeline existed lasted only six minutes. In those six minutes Mr.Sunderland was in the presence of Cst.

Carter who was engaging in small talk and joking with him, seemingly to keep him at ease. I amsure that those six minutes seemed like a lifetime to Mr. Sunderland, but six minutes is still only six minutes. I am not suggesting thiswas a fleeting and technical breach, but I am saying the breach was not profoundly intrusive. As such, I have concluded the impact ofthis breach is at the lower end of the scale which leads me to conclude it should have a neutral impact on whether the breath sampleevidence should be excluded in this case.

Society’s Interest in Adjudication on the Merits [71] The Court in R v Grant, 2009 SCC 32, [2009] 2 SCR 353 [Grant] explained the third branch of the inquiry as follows: [79] Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiryrelevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admissionof the evidence, or by its exclusion.

This inquiry reflects society's "collective interest in ensuring that those who transgress the law arebrought to trial and dealt with according to the law": R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus theCourt suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of theevidence on the repute of the administration of justice, but the impact of failing to admit the evidence. … [81] ...The reliability of the evidence is an important factor in this line of inquiry.

If a breach (such as one that effectively compels thesuspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission ofunreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth.

Conversely,exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfairfrom the public perspective, thus bringing the administration of justice into disrepute. [Emphasis mine] … [83] The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. LikeDeschamps J., we view this factor as corollary to the inquiry into reliability, in the following limited sense.

The admission of evidence ofquestionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case againstthe accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration ofjustice where the remedy effectively guts the prosecution. [Emphasis mine] [84] It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue.

Indeed,Deschamps J. views this factor as very important, arguing that the more serious the offence, the greater society's interest in itsprosecution (para. 226). In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cutboth ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how peopleview the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus.

As pointed outin Burlingham, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused"(para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcementof the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must notdefeat the s. 24(2) judge to the longer-term repute of the administration of justice.

Moreover, while the public has a heightened interest inseeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that isabove reproach, particularly where the penal stakes for the accused are high. [72] In Canada, and in Saskatchewan in particular, drinking and driving is a serious and widespread offence.

Parliament has shownits importance and seriousness through a series of legislative amendments including prescribing harsher penalties for drinking anddriving offences, to deter individuals from committing these offences and to protect society.

[ 73 ] There is no indication that the breath samples in this case are anything but reliable. Furthermore, without the evidence of the breath samples the Crown’s case would fail. [ 74 ] Given society’s collective interest in insuring that those who break the law are brought to trial where there are serious allegations before the Court and where there is reliable evidence of the offence, I find the last branch of the Grant analysis leans heavily in favour of admission of the breath samples as evidence.

Impact upon the Public Confidence in the Administration of Justice [ 75 ] The balancing of the Grant factors requires both a short and long-term view of the justice system. The public’s perception of the justice system should be considered with a focus on the long-term view. [ 76 ] Balancing all three Grant factors, it is my view, in the circumstances of this case, the balance is tipped slightly on the side of including the evidence. [ 77 ] In this case, there is one single breach in issue and that breach only lasted for six minutes.

There is no evidence of a systemic institutional issue; the administration of justice requires a long-term view of the interests of justice and not the punishing of the RCMP for this one incident. This, along with the importance Parliament has placed on trying to curb drinking and driving in Canada, leads me to conclude that the balancing of the Grant factors requires the admission of the evidence of the breath samples. CONCLUSION [ 78 ] As the evidence of the breath samples has not been excluded, the Crown has proven beyond a reasonable doubt that Mr.

Sunderland had a blood alcohol level above the legal limit within two hours after operating a conveyance. Mr. Sunderland is found guilty on Count 2. _____________________________ M.E. Tomka, J