Her Majesty the Queen - v. -, 2011 SKPC 54

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 054 Date: March 31, 2011 Information: 42402321 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jordan Breland Appearing: Lori Chambers For the Crown Ron Piché For the Accused DECISION ON VOIR DIRE M.L. GRAY , J BACKGROUND [ 1 ] Mr. Breland was charged with having the care or control of a motor vehicle on December 18, 2009, while his ability to do so was impaired by alcohol contrary to s. 253(1) (

a) and s. 255(1) of the Criminal Code , and secondly, with having the care or control of a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(

b) and

s. 255(1) of the Criminal Code. [ 2 ] At the commencement of the trial, counsel for the accused advised that notice had been given with respect to several Charter issues. As a result, the Crown evidence was called on a voir dire ; there was no defence evidence. The matter was adjourned for decision in order to permit written arguments to be filed on the following issues. Counsel were content to rely on their briefs without the necessity of oral argument. ISSUES 1. Did the officer have reasonable grounds to make a demand for breath samples pursuant to s. 254(3) of the Criminal Code ? 2.

Was the accused arbitrarily detained and if so, what is the appropriate remedy? 3. As soon as practicable: (

i) Was the breath demand made “as soon as practicable” within the meaning of s. 254(3) of the Criminal Code ? (ii) Were the breath samples taken “as soon as practicable” within the meaning of s. 258(1)(c)? 4. Was the accused properly advised of his right to counsel upon his detention? 5. Was there a violation of the implementational component of s. 10(

b) of the Charter? Should a Prosper warning have been given? 6. If there was a violation of s. 10(b), what is the appropriate remedy? EVIDENCE Constable Tara Danielson [ 3 ] Constable Danielson was on duty and on routine patrol with her partner Constable Shirran on December 18, 2009. At about 3:58 a.m. they were northbound on Spadina Crescent in the City of Saskatoon when she saw a large white truck parked northbound on the street. Given the time of day and cold temperature, she initially thought someone was simply warming their vehicle.

However, as they passed, they noticed a person who appeared to be sleeping in the driver’s seat. Constable Danielson advised Communications of her intentions, and proceeded to check on this individual. She immediately heard very loud music through the closed windows of the truck. As she approached, she saw that the male behind the wheel was the only person in the vehicle. She knocked repeatedly on the window and received no response. When she tried the door it was unlocked, so she opened it, shouted at the occupant and shook his arm. About this time her partner approached.

They kept trying to wake the male with no response. The officer turned off the ignition and sound system, then applied a pressure point technique to awaken him. After several minutes, the male looked at the officer and she noted that his eyes were quite “glossy” and red and were not focusing well. When she asked if he knew where he was, he mumbled that he was “just outside Red Deer.” He said that he did not have any identification when asked; he seemed confused and spoke with difficulty. The officer smelled alcohol coming from his breath. He was asked to accompany her to the patrol car.

He did not have any difficulty getting out of his truck or with walking. Prior to being placed in the police car, a cursory search was done for weapons and in

the process a wallet containing identification was located. [ 4 ] Constable Danielson concluded that Mr. Breland’s ability to operate a motor vehicle was impaired by alcohol and, at 4:22 a.m, some twenty minutes after he was first observed, the accused was arrested and read his rights to counsel followed by the police warning and the breath demand. It was not until he was in the patrol car, some twenty minutes later, that he recalled he was in Saskatoon. [ 5 ] Constable Danielson articulated the following reasons for her belief that the accused was impaired by alcohol:

a) she had great difficulty wakening him;

b) his eyes were glossy and red and he had difficulty focusing;

c) he was confused to such a degree that he was uncertain as to which city he was in; initially, he said he was “outside Red Deer” and later said he was “outside Rocky Mountain House.”

d) there was a strong smell of alcohol when he spoke; and

e) his speech was slurred. [ 6 ] When asked if he understood his rights to counsel, he refused to respond on each of the three occasions he was asked but did say that he wanted to call a lawyer and that he did understand the warning. When subsequently read the demand for breath samples and asked whether he understood, his response was “I have the right to call someone to pick up my truck.” He then stated “I fucked up.” [ 7 ] Throughout her dealings with the accused Constable Danielson said he talked incessantly, would interrupt her and would go from topic to topic.

She wrote notes as he did so and had recorded some eight pages in her notebook before setting off for the police station. [ 8 ] Constable Danielson could not say whether they left the location of the stop at 4:39 a.m. or whether they arrived at the police station at that time; however, they went directly there with the trip taking between 5-7 minutes. Throughout, the accused continued talking although he was not asked any direct questions. [ 9 ] Upon arrival in detention he was booked in, his possessions were taken and secured in a locker.

He was then directed to a telephone room where he indicated he wished to call a particular lawyer. The business number for that lawyer was called, but was picked up by the message manager. The outgoing message referred to an emergency number which was also tried. There was no answer. The phone number for the lawyer’s residence was called but the message box was full. The accused had a cell phone number for his lawyer. That number was also called and the officer left a message stating her name, the accused’s name, the charge and how to reach the accused.

The accused was advised that a message had been left and he was asked if there was anyone else he would like to call. His response was “it is what it is, babe.” The officer again asked whether he wished to contact any other lawyer and also reminded him about Legal Aid duty counsel; she received the same rejoinder, “it is what it is”, a response he had used several times throughout the officer’s interaction with him. [ 10 ] The accused was then taken to an interview room where they waited for the intoxilyzer to be prepared.

The accused never again broached the subject of calling a lawyer and the lawyer for whom a message was left did not call back. [ 11 ] Constable Danielson characterized the accused as vacillating in demeanour from angry, to upset, to sad and as having difficulty providing straight answers.

[ 12 ] The accused was presented to Constable Flogan and two samples of his breath were provided. Once the tests were completed, Constable Danielson filled out release documents and left instructions that the accused was to be released to a sober person. She left a message for a friend whose name had been provided by the accused.

She spoke to that individual when he called and arrangements were made for him to pick up the accused at the police station at 7:00 a.m. [ 13 ] In cross-examination, the officer acknowledged that she did not know whether the accused was a deep sleeper and also acknowledged that individuals can be confused when roused from a deep sleep. She further acknowledged that fatigue could cause red eyes and that one cannot gauge impairment on the basis of the strength of the smell of alcohol.

She could not specify which words were slurred. [ 14 ] She had not made up her mind about making a demand when she asked him to exit the vehicle, nor did she do any roadside sobriety tests. The accused was asked to step out of his truck to make sure that he was all right and to secure some identification. [ 15 ] Upon being arrested and advised of his right to counsel, the accused said that he did wish to speak to a lawyer. No such opportunity was provided until after the accused was booked into detention.

He was placed in a room with an extension phone which did not allow him to dial. [ 16 ] Constable Danielson agreed that she spent a total of approximately three minutes attempting to contact the accused’s lawyer of choice and leaving voice messages. She asked the accused if he wanted to speak to someone else or to Legal Aid and received the same response noted earlier. She did not explain to him that there was no rush to get samples, nor did she explain the Prosper warning.

She believed he was simply being uncooperative. [ 17 ] With respect to the accused’s position in his vehicle, she could not say whether the seat was reclined, whether the accused had on a seatbelt, or if the truck was an automatic or standard transmission. She is a qualified operator of the approved screening device and had one with her on the morning in question, but did not make a roadside demand. Constable Eric Flogan [ 18 ] This officer has been a qualified Intoxilyzer technician since May 2005. On December 18, he was working a night shift and was called upon to obtain breath samples from the accused.

He could not recall whether he was at the police station or on patrol when he received this request. [ 19 ] He used an Intoxilyzer 5000C which was operating properly. When he met with the accused he asked if he had spoken to counsel to which the accused replied “yes, I have”. He then asked him if he knew why he was there and received the response “I have an idea”. The accused also indicated that he was prepared to supply samples of his breath. Constable Flogan had the accused wait with Constable Danielson while he prepared to take the first test.

That occurred at 5:23 a.m. and resulted in a reading of 170 milligrams of alcohol in 100 millilitres of blood. While dealing with the accused, Constable Flogan could smell alcohol coming from him but found him to be cooperative. A second test with the same reading was taken at 5:44 a.m. Constable Flogan prepared a Certificate of Analyses, but did not serve a copy on the accused. In cross-examination, he acknowledged that he did not inform the accused that samples did not have to be given until he had a reasonable opportunity to speak to a lawyer.

Constable Richard Shirran [ 20 ] Constable Shirran was on patrol with Constable Danielson when he noticed a vehicle parked on Spadina Crescent, just north of Pinehouse Drive. He was the passenger in the patrol car and Constable Danielson approached the individual in the driver’s seat. Constable Shirran stood near the open door of the patrol car and could hear Constable Danielson calling to the driver and shaking him.

He recalled the driver telling Constable Danielson that he was “outside Rocky” and then later “outside Red Deer.” Although the accused was looking for his wallet in the consol of the vehicle, the officer could clearly see his wallet in his pocket. The accused had been drinking, smelled of beverage alcohol and had slurred speech. He was belligerent and uncooperative with Constable Danielson and

insisted he had the right to take his truck to a friend’s house. [21] In accounting for the time between the vehicle check and the departure for the police station, Constable Shirran indicated thatit took a few minutes to get the accused into the patrol car and they called for another patrol unit to supervise the seizure of the accused’svehicle. Constable Danielson read the demand and made notes. Constable Shirran indicated that the vehicle was seized as it posed aroad hazard but did not specify how it created a danger.

In cross-examination, he acknowledged that his practice is to seize vehicleswhen a person is arrested (transcript p. 112, lines 1-13). It was not suggested to the accused that he could call a lawyer while theywaited. Although the accused had a cell phone, he said that it did not work. ANALYSIS 1. Did the officer have reasonable grounds to make a demand for breath samples pursuant to s. 254(3) of the Criminal Code? [22] Although the onus lies upon an accused to establish a Charter violation on a balance of probabilities, compelling breathsamples amounts to a warrantless search which is prima facie unreasonable.

Thus the Crown must establish that the search wasauthorized by law, the law was reasonable and the search was conducted in a reasonable fashion. There is no argument that s. 254(3),which authorizes the search is unreasonable or the manner in which the search was conducted is unreasonable. The only issue is whetherConstable Danielson was entitled to make the demand; in other words did she have reasonable grounds? [23] It is well established that there is a subjective and objective component to determining this issue. As stated by the SupremeCourt of Canada in R. v.

Bernshaw (1995), (SCC), 95 C.C.C. (3d) 193 at p. 216: ...the existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Coderequires that the police officer subjectively have an honest belief that the suspect has committed the offence and, objectively, there mustexist reasonable grounds for this belief: R. v. Callaghan, (SK KB), [1974] 3 W.W.R. 70 (Sask. Dist. Ct.); R. v.Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL)... R. v.

Richard (1993), (ON SC), 43 M.V.R. (2d) 144... [24] This test does not require proof beyond a reasonable doubt, and it is not a test of the accuracy of the demanding officer’sbelief, but rather an assessment of all of the evidence to determine whether the belief was reasonable, both from the perspective of theofficer making the demand and an objective observer. Such an assessment by necessity requires a review of all the evidence in thepossession of the officer at the time the demand was made.

Many cases have dealt with the subject of what constitutes reasonablegrounds but there is no formula which can be gleaned from them. Rather, a case by case analysis is required in every instance. Or, asstated by Mills J. in R. v.

Gunn, 2010 SKQB 451, at p. 11: Although it is tempting to list indicia of possible impairment in a particular case and to compare them with similar indicia from othercases to come up with a formula for assessing an officer’s grounds, that is not the appropriate approach to take. [25] With respect to the case before the Court, I have no difficulty finding that Constable Danielson subjectively believed that theaccused was committing an offence. I accept her evidence, which is uncontradicted, that she found the accused behind the steeringwheel of a motor vehicle, the engine of which was running.

He appeared to be asleep, in spite of exceedingly loud music emanatingfrom the sound system. She had great difficulty in rousing him, his eyes were glossy, red and he had trouble focusing, he was confusedabout his whereabouts, he smelled of beverage alcohol and slurred his speech. She did not note the accused having any difficulty gettingout of his vehicle or walking to the patrol car. I accept that she honestly believed that the accused’s ability to operate a motor vehiclewas impaired by alcohol based on these observations. [26] Does the evidence objectively support that conclusion? I find that it does.

In addition to the symptoms of impairment whichthe officer described, is the fact that the accused was found, in his vehicle on a cold winter morning apparently asleep, despite the loudmusic emanating from within his truck. The officer’s subjective belief is supported on an objective consideration of all of the evidence. Counsel for the accused argues that the symptoms relied upon by the officer are consistent with being awakened from a deep sleep.

However, there is no evidence before me that this accused suffers from a sleep disorder which caused him to fall asleep in thecircumstances in which he was found or that he is such a deep sleeper that he becomes confused and disoriented on waking. It is not for

the Court to speculate about alternative explanations for the evidence. Rather, the Court must ask whether, based on the admissibleevidence before the Court, the honestly held subjective belief of the officer is objectively reasonable. It was not unreasonable for theofficer to conclude, on the whole of her observations, that the accused was impaired by alcohol and that the symptoms displayed werethe result of the ingestion of alcohol. [27] After considering all of the evidence, I am satisfied that Constable Danielson had a subjective belief that Mr.

Breland hadcommitted an offence pursuant to s. 254(3) of the Criminal Code and that her belief was objectively reasonable. 2. Was the accused arbitrarily detained and if so, what is the appropriate remedy? [28] No issue was taken with the officer’s initial reasons for checking the vehicle and occupant and, having found that reasonablegrounds did exist to make the demand, the resulting detention was not arbitrary. Therefore, there is no need in light of that finding toembark on a s. 24(2) Charter analysis. 3.

As soon as practicable: [29] Section 254(3) of the Criminal Code says, in part: If a peace officer has reasonable grounds to believe that a person is committing...an offence under

section 253 as a result of theconsumption of alcohol, the peace officer may, by demand made as soon as practicable, require a person (

a) to provide, as soon as practicable, (

i) samples of breath.... (emphasis added) [30] Thus, the Crown bears the onus of proving both that the demand was made and the tests were taken as soon as practicable. Section 258 (1)(

c) creates a presumption about the concentration of alcohol in an individual’s blood at the time of driving, but before anyreliance can be placed on that presumption, certain things must be proven including that the demand was made as soon as practicable andthat the tests were taken as soon as practicable. [31] In R. v. McCoy (1990), (SK KB), 86 Sask. R. 204 (Sask. Q.B.), the Court held that as soon as practicablemeans “as soon as can be reasonably expected.” There is an acknowledgment that every case must be viewed on its particularcircumstances.

Gerein J. said: If the Crown is to be permitted to rely on the presumption it must establish that the samples were taken within a reasonable time. What isreasonable will depend on the particular circumstances of each case. As well, in each case the trial judge may have reference to his orher own experience. At the same time, the Crown cannot be expected to account for every minute or even several minutes lost over aperiod of time. However, when the time lapse is one of considerable or unusual duration, it is incumbent upon the Crown to provide an explanation forthe delay.

If that explanation is accepted as proper then the lapse of time remains reasonable. If the explanation is rejected then the sample is not obtained within a reasonable time and the presumptioncan have no application.

(

i) Was the breath demand made “as soon as practicable” within the meaning of s. 254(3) of the Criminal Code ? [ 32 ] In the case at hand, the officer first noted the truck idling at 3:58. She estimated that it was about 4:00 a.m. when she approached the accused. Although she could not say exactly how long it took to roust the accused from his vehicle, it is clear from her description that it took several minutes. The uncontradicted evidence is that when awakened, the accused was disoriented and it was only after being placed in the back of the patrol car that he became more coherent.

The demand was read to him at 4:22 a.m. Under these circumstances, the demand was made as soon as practicable; that is, once the accused was sufficiently alert to comprehend the demand. (ii) Were the breath samples taken “as soon as practicable” within the meaning of s. 258(1)(c)? [ 33 ] The larger question is whether the samples were taken as soon as practicable. Counsel for the accused argues that waiting for a tow truck caused an unreasonable delay in obtaining the breath samples and consequently they were not taken as soon as practicable. The Court was referred to R. v. Hiebert, 2004 S.J. No. 664 (Sask.

Q.B.) . In that case, the Court found that there was no evidence of what occurred in the 21 minutes immediately prior to the breath tests and the Court could not conclude that the samples were taken as soon as practicable. [ 34 ] Unlike Hiebert , an explanation was offered in this case. Although every minute is not explained, that is not the requirement. Between 4:22 and 4:39, which I accept as the time of departure for the police station, the accused was read his rights to counsel, police warning and demand.

Constable Shirran called for a tow truck and another patrol car, and Constable Danielson wrote eight pages of notes. Rather than wait for the tow truck, they left the scene when other officers arrived and were able to supervise the seizure. Given the duration of travel, arrival at the police station was between 4:43 and 4:45 and was followed by the booking procedure. Between 4:58 and 5:03, efforts were made to contact the accused’s counsel of choice; that was followed by a conversation about what he wished to do since he was unsuccessful in reaching a particular lawyer.

At 5:10, the accused was shown to the washroom and at 5:20, he met with Constable Flogan. The first test was taken at 5:23 a.m. [ 35 ] One might argue that more or less time should have been spent on various things; however, the role of the Court is to assess whether the time prior to the taking of the tests is reasonable and adequately explained, not to critique each step taken. Is there a satisfactory explanation for any delay in this case? I find that there is.

To remain at the roadside for a few minutes to arrange for the seizure of the accused’s truck in order to ensure that it was not damaged and that it did not become a source of liability, is reasonable. Although peripheral to the investigation, it is related to it. I also note that the officers did not rely on a quick response from the towing company on a cold winter night, but rather called for other officers to wait for the tow truck. While waiting for these other officers, Constable Danielson made notes. On the whole, this is a satisfactory explanation.

In any event, the accused was presented to the Intoxilyzer operator within two hours and, in this case, as soon as practicable. 4. Was the accused properly advised of his right to counsel upon his detention? [ 36 ] Counsel for Mr. Breland argues that the accused was detained at the point that he was asked to step out of his vehicle . Thus, the moment that the officer determined that she would not allow the accused to walk away from her, she was obliged to advise him of the reason for his detention, his right to contact a lawyer and to give him the opportunity to do so .

In support of this argument, counsel relies on R. v. Sandypoint , 2009 SKPC 108 (Sask. Prov. Ct.). In that case, a somewhat obstreperous accused was lodged in a cell without having been advised of his right to contact a lawyer. The explanation provided to the Court by the officer was that it was lunch time and he decided to have his lunch and start his report before fulfilling his obligations toward the accused. [ 37 ] The case before me is significantly different on a factual basis. Here, the officer was engaged with the accused throughout; it took several minutes to make the accused aware that she was there.

When he seemed sufficiently aware, she advised that he was being arrested and asked that he come to the police vehicle. In the interim, officers continued to ask for a driver’s licence and identification which he denied having. It was located in a wallet in his pocket when he was searched prior to being put in the patrol car. He entered the car approximately 20 minutes after she first approached him in his unconscious state (transcript p. 15, lines 10-11). Throughout that 20

minutes, the officer testified that the accused had comprehension difficulties and was confused to the extent that he did not know wherehe was and it was only when he was in the police car that he became more alert. [38] It is clear, on the evidence of Constable Danielson, that the accused was detained shortly after he was directed to get out of hisvehicle. She candidly admitted that he would not have been permitted to walk away from her. It is equally clear that she did not tell himthe reasons for his detention or apprise him of his right to counsel until several minutes later.

The obligation on the police to advise anaccused of the reason for his detention and his right to counsel carries with it an obligation to ensure that he understands what he is beingtold. In these circumstances, I am satisfied that Constable Danielson waited until the accused became coherent and able to accurately tellher where he was before she fulfilled her obligation to him. To do so is eminently reasonable and proper. [39]

Section 10(

b) provides the right to retain and instruct counsel without delay and implicit is the right to do so in private. Uponbeing informed of his rights, Mr. Breland indicated that he did wish to speak to a lawyer but he was not given the opportunity at thescene. The only evidence as to whether he physically could have done so comes from Constable Shirran who indicated that the patrolcar was not equipped with a telephone which the accused could use and that although the accused had a personal cell phone, it apparentlydid not work.

In these circumstances, it is not unreasonable to wait to permit the accused access to a private call. 5. Was there a violation of the implementational component of s. 10(

b) of the Charter? Should a Prosper warning have been given? [40] Counsel for the accused argues that the peace officer was obliged to provide a Prosper warning to ensure that the accused hadunequivocally waived his right to consult counsel before any further evidence was gathered. The Crown’s position is that ConstableDanielson’s conclusion that the accused had waived that right was reasonable and that the accused was not diligent in the exercise of thatright. [41] R. v. Prosper, (SCC), [1994] 3 S.C.R. 236, arose from a situation where a detainee expressed a clear interest in speaking to duty counsel.

Numerous attempts were made by the officer to contact duty counsel to no avail as they were not answering calls as a form of protest. Once that was discovered, the officer gave the accused anopportunity to obtain advice from a private lawyer but the accused demurred, being unable to afford that expense.

The Supreme Court ofCanada held that in cases where an accused expresses a desire to speak to counsel, and is diligent, but unsuccessful, in exercising thatright, the police are obliged to advise the accused that he or she will be afforded a reasonable time to reach a lawyer and thatincriminating evidence will not be sought until then. A similar obligation arises where an accused appears to change his or her mindabout getting legal advice. [42] The necessity of a “Prosper” warning was visited by the Saskatchewan Court of Appeal in R. v. Basko, 2007 SKCA 111 , [2007] S.J. No. 564.

At para. 21, Wilkinson J.A. said: In R. v. Luong, the Alberta Court of Appeal had held that the onus is upon the detained person to establish that a breach of Charter rightshas occurred, and they set out steps to be followed in making that assessment.

Section 10(

b) of the Charter imposes two duties on policeofficers. They must inform the detainee of his right to counsel without delay and of the existence and availability of Legal Aid and dutycounsel. If the detained person wishes to consult counsel, the police must provide a reasonable opportunity for the detained person toexercise that right, and refrain from eliciting evidence until after he or she has had that opportunity.

Where the trial judge concludes thata reasonable opportunity has been provided by the police, the trial judge must consider whether the detained person was reasonablydiligent in exercising that opportunity. The burden is on the person detained, not the police, to establish reasonable diligence. If thedetained person is unable to reach counsel after reasonably diligent efforts (which requires some evidence) then the issue of waiver willarise and a “Prosper” warning may be required. (Emphasis mine) [43] In this case, Mr.

Breland understood that he had a right to talk to a lawyer and was able to name the lawyer to whom hewished to speak. When attempts to contact that particular person failed, not unexpectedly since it was 5:00 a.m, the officer explained thesituation and provided options to the accused. His repeated response was, “it is what it is, babe.” Further when asked by ConstableFlogan whether he had contacted a lawyer, he answered in the affirmative. He spent several minutes with Constable Danielson beforethe first test without mentioning any desire to contact a lawyer.

I am mindful that on an application asserting a Charter breach of thisnature, the onus is on the accused, on a balance of probabilities, to show that he was reasonably diligent in asserting his right; ampleopportunity was available to him between the time he was booked and the time of the first test. The Court did not have the benefit of any

evidence from the accused and on the basis of the evidence before the Court, I cannot conclude that he was diligent in his expresseddesire to consult counsel. Rather, by responding as he did to Constable Danielson and by leading Constable Flogan to believe that he hadindeed spoken to a lawyer, I conclude that he unequivocally waived that right. [44] Counsel further argues the impropriety of the police handling the telephone and dialling the numbers provided and allegesthat this also constitutes a violation of s. 10(b).

Absent any evidence as to what effect, if any, that may have had on this particularindividual’s diligent pursuit of the exercise of his right to counsel, there is no basis upon which to find a breach. 6. If there was a violation of s. 10(b), what is the appropriate remedy? [45] Having found that there was no violation of the accused’s right to counsel, either at the roadside or at the police station, thereis no need to embark upon an analysis pursuant to s. 24(2). However, in the event that there was a breach, I would have admitted theCertificate of Analyses after a consideration of R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. In determining whetherinclusion would bring the administration of justice into disrepute, the Court must weigh and consider the following factors: (

i) the seriousness of the state conduct infringing any Charter right leading to the discovery of the evidence; (ii) the impact of the Charter-protected interests of the accused; and (iii) the interest of society in the adjudication of the case on its merits. (

i) The seriousness of the state conduct infringing any Charter right leading to the discovery of the evidence. [46] In the case before me, the seriousness of the state conduct was at the low end. The accused was provided with informationabout his right to counsel as soon as he appeared capable of understanding it and was afforded the opportunity to exercise that right at thepolice station. It cannot be said that the officer wilfully or recklessly disregarded the right of the accused to speak to a lawyer.Throughout, the officer conducted herself appropriately and in good faith.

The same cannot be said for the behaviour of the accused. As indicated in R. v. Tremblay, 1987 CarswellOnt 111, this conduct is relevant to a s. 24(2) analysis and would favour the admission ofthe evidence. (ii) The impact of the Charter-protected interests of the accused. [47] With respect to the impact upon the accused resulting from the alleged infringement, I find that it is negligible. The police conducted their investigation expeditiously, detaining the accused for a total of three hours, which included waiting for his friend to collect him from the police station.

Further, the evidence obtained didnot involve any violation of bodily integrity and was minimally intrusive. Consideration of this factor also militates in favour ofadmission of the evidence. (iii) The interest of society in the adjudication of the case on its merits. [48] The final factor deals with whether the truth seeking function of the criminal trial process is better served by the admission orexclusion of the evidence. In this instance I find the process to be better served by the admission of the evidence. As stated at para. 110

of Grant (supra) : 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 favour of admission.

CONCLUSION [ 49 ] I am satisfied that: 1. the officer had reasonable grounds, both subjectively and objectively, to make the demand pursuant to s. 254(3) of the Criminal Code ; 2. the demand was made as soon as practicable and the samples were taken as soon as practicable as required by s. 258(1) (

c) of the Criminal Code ; 3. no contravention of s. 9 or s. 10(

a) or s. 10(

b) of the Charter has been established on a balance of probabilities; and 4. in any event, under all of the circumstances, exclusion of the certificate would not be warranted after a Grant, supra , analysis. [ 50 ] In conclusion, the Certificate of Analyses is admissible. ________________________________ M. L. Gray, J