R. v. Cvitan, 2019 MBPC 21

Citation: R. v. Cvitan , 2019 MBPC 21 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) I. Singh for the Crown ) and ) ) ) CVITAN, Robert Marino ) ) M. Wasyliw for the Accused ) ) ) Reasons for Decision delivered: April 3, 2019 C.A. DEVINE, P.J. [ 1 ] Mr. Cvitan is charged with impaired driving and driving over .08, arising from a police Check Stop after a Blue Bombers game in Winnipeg on July 28, 2018.

He has brought a motion alleging that police did not have grounds to demand the initial screening breath sample from him, they did not use the required protocols to ensure the accuracy of the result and they did not provide him with the right to speak to a lawyer that night. He says that the police breached his sections 8 and 10(

b) Charter rights, such that they did not have reasonable grounds to arrest him for impaired driving, and the sample of his breath he provided should be excluded pursuant to section 24(2) of the Charter . All evidence in the trial was heard in the context of a voir dire to determine the admissibility of evidence obtained pursuant to the alleged Charter breaches. This is my decision on the voir dire .

SUMMARY OF THE FACTS [ 2 ] On the evening of July 28, 2018, Winnipeg Police Service set up a Check Stop program to check for impaired drivers. There was a Winnipeg Blue Bombers game that night. Six to eight officers were involved in the Check Stop. The sergeant in charge waved in six to eight cars at a time and stopped them. Uniformed police officers then had a brief chat with drivers, asking whether they had had anything to drink or had consumed any drugs.

Based on their initial interaction with drivers the police would send them on their way or ask them to provide a sample of their breath in an approved screening device (ASD). [ 3 ] Mr. Cvitan was pulled over in the Check Stop that night. Based on observations of a police officer he was asked to provide an ASD sample. He blew a ‘Fail.’ Mr. Cvitan was then arrested for impaired driving and a formal demand was made for him to provide a breath sample pursuant to section 254(3) of the Criminal Code . [ 4 ] Mr. Cvitan did not speak to a lawyer prior to providing breathalyzer samples.

He stated that he wanted to speak to a police officer friend who could give him advice on which lawyer to call. Police testified Mr. Cvitan asked only to speak to a friend and did not ask to speak to a lawyer. Based on his breathalyzer readings, which were higher than .08, Mr. Cvitan was also arrested for driving over .08 pursuant to section 253(1)(b). ISSUES [ 5 ] The defence raised three issues in this case: 1. Did Cst. McKane have reasonable grounds to suspect that Mr. Cvitan had alcohol in his body when he made the ASD demand? 2. Was Cst. McKane required to satisfy himself that Mr.

Cvitan had not been drinking within the previous 15 minutes? Could the police rely on the results of the ASD as being accurate? 3. Did Cst. McKane breach Mr. Cvitan’s right to obtain and consult legal counsel? [ 6 ] I have determined that Cst. McKane had reasonable suspicion that Mr. Cvitan had alcohol in his body when he made the ASD demand. I am also satisfied that in the particular circumstances of this case, the police were entitled to rely on the readings from the ASD as accurate. [ 7 ] With respect to the alleged breach of Charter

section 10(b), I am satisfied on a balance of probabilities that Mr. Cvitan’s right

to counsel was violated. I have also determined that the evidence obtained as a result of that breach, specifically the breath sample results, should be excluded pursuant to Charter section 24(2). EVIDENCE ON THE ASD [ 8 ] Cst. McKane works in the Traffic Division of the Winnipeg Police Service, where he has been an officer for 15 years. He has investigated well over 100 impaired driving cases. He has received training in administering the ASD and breathalyzer, and Standardized Field Sobriety Training. He is an ASD operator and Drug Recognition Expert (DRE). [ 9 ] Cst.

McKane did not have an independent memory of most of this investigation; he relied on his notes on the Check Stop Sheet and the Impaired Driver’s Checksheet. He did not have police officer’s notes. [ 10 ] Just before midnight, the sergeant involved in the Check Stop had waved over Mr. Cvitan’s vehicle. Cst. McKane was waiting for the vehicle to pull over in the area where he was communicating with drivers and administering ASD’s. He noticed that Mr. Cvitan was driving unusually slow, markedly slower than all the other cars being pulled over. Cst.

McKane testified that “right away” he had a suspicion that the driver may be thinking about what they were going to say to him. Mr. Cvitan had his window rolled down. He did not make eye contact nor turn his head towards Cst. McKane, which in the officer’s experience, people do to avoid detection of the smell of alcohol on their breath. He also noticed that Mr. Cvitan had a reddened face, which he thought could be from sun or from the consumption of alcohol. He noticed that Mr. Cvitan’s eyes were slightly glossy and reddened. Mr. Cvitan was wearing a Winnipeg Blue Bombers lanyard around his neck. Cst.

McKane knew there had been a game that night and that alcohol is typically consumed at the games. Because of the lanyard, he assumed Mr. Cvitan was coming from the game. [ 11 ] When he asked Mr. Cvitan if he had consumed any alcohol or drugs, Mr. Cvitan, still staring straight ahead, replied shortly, “Nope.” All his responses were similarly curt. [ 12 ] Cst. McKane started to suspect Mr. Cvitan had been drinking. He also noted the faint scent of alcohol in the vehicle. Mr. Cvitan had a passenger who was obviously impaired, so obviously impaired that Cst.

McKane would immediately have arrested him for impaired driving without further investigation had he been driving. On cross-examination, Cst. McKane also testified that Mr. Cvitan was slow in retrieving his driver’s licence; it took between a half minute to one minute. [ 13 ] Cst. McKane testified that based on these observations, “I started to suspect that there was, that this driver had consumed alcohol this evening.” [ 14 ] He requested Mr.

Cvitan provide an ASD because “I suspected alcohol consumption.” [ 15 ] In cross-examination he confirmed that all these things “made me suspect that he may have been drinking that night.” ANALYSIS [ 16 ] Cst. McKane did not testify that he believed that Mr. Cvitan had alcohol “in his body.” [ 17 ] However, he is trained in the administration of the ASD and has been a police officer for 15 years.

His training would familiarize him with the legal test and precondition for an ASD demand. [ 18 ] The law does not require particular language. [ 19 ] I am satisfied that his testimony on the issue, taken as a whole, demonstrates that he believed that Mr. Cvitan had not only consumed alcohol that evening, but also that the alcohol was still in his body. [ 20 ] This is based on the other circumstances that Cst. McKane observed that led him to believe Mr. Cvitan had consumed alcohol.

In his words: - Driving markedly slower than expected or than any other drivers, when being waved over for the Check Stop. - The faint smell of alcohol in the vehicle. - Reddened face. - Looking straight forward in an effort to not breath towards the officer. - Slight glossy and reddened eyes. - Wearing a Winnipeg Blue Bombers lanyard, knowing there was a game that night and people drink at the games. - Extremely short responses, while facing forward and not making eye contact with the officer, for example, when asked if he had consumed any alcohol or drugs that evening, “Nope.” [ 21 ] I am satisfied that he suspected Mr.

Cvitan had alcohol in his body at the time. [ 22 ] I am also satisfied that his suspicion was reasonable. Cst. McKane complied with the requirements in section 254(2) of the Criminal Code that he have a reasonable suspicion that Mr. Cvitan have alcohol in his body before making an ASD demand. EVIDENCE ON ADMINISTERING THE ASD ONLY AFTER ASCERTAINING THE ACCUSED HAD NOT CONSUMED ALCOHOL WITHIN THE PRECEDING 15 MINUTES

[23] Mr. Cvitan testified that when he rolled down the window at the Check Stop and when Cst. McKane asked if he had consumedany alcohol, he told him that he had two beers earlier that evening. This evidence was not put to Cst. McKane during cross-examination.Cst. McKane’s evidence, untested, was that Mr. Cvitan told him he had nothing to drink. He checked that off on the checksheet. It is theevidence of both Cst. McKane and Mr. Cvitan that Cst. McKane did not ask when he consumed his last beer nor whether he smoked andif so, when he smoked his last cigarette. [24] Cst. McKane testified that he did not ask Mr.

Cvitan if he had any alcohol to drink in the previous 15 minutes, as Mr. Cvitanhad already denied drinking anything. [25] Cst. McKane agreed that he is aware through his training in administering the ASD, that if a person consumes alcohol in thelast 15 minutes, the device may register a false positive. To avoid this possibility, waiting for 15 minutes from the time of the lastalcohol consumed is recommended. Similarly, smoking a cigarette within five minutes of the test can register a false positive. [26] Mr.

Cvitan also testified that he smoked a cigarette just before entering the Check Stop. [27] After the first breathalyzer was performed, the police found a partially consumed Labatt’s Lite beer in the console between thefront seats. There was an intoxicated passenger in the front passenger seat. Mr. Cvitan testified he drank three regular cans of Bud Lightbeer that night, between 5:00 p.m. and 6:45 p.m. He testified he had nothing to drink after that. He did not know where the Labatt’s Litecame from; he testified he had a Pepsi from home with him. [28] Mr.

Cvitan testified that he had nothing to drink at the stadium. He and friends ate poutine in the parking lot before the game.The game started at 7:00 p.m. and he stayed and watched the entire game. He testified that the game was over around 10:45 p.m. [29] Cst. McKane testified that he had no reason to doubt the accuracy of the ASD. There was nothing that raised a concern in hismind that Mr. Cvitan had been drinking within the past 15 minutes, such as a can of beer in his hand.

When he was asked about the canof Labatt’s Lite the police found later, and whether he was concerned about the ASD possibly registering a false positive, Cst. McKanetestified that it did not cross his mind – he already had the first reading from the breathalyzer, which was well over .08. [30] During cross-examination, Cst. McKane was shown the Check Stop checksheet. He had checked off “No” for the questionsabout whether the driver had consumed alcohol in the past 15 minutes or smoked a cigarette in the last few minutes. Cst.

McKane did notrecall asking those questions, but the fact that he had answered them on the checksheet suggested to him that he had. [31] Cst. McKane testified that when he received the red fail result on the ASD, he believed on reasonable grounds that Mr. Cvitanhad been driving while his ability to do so was impaired by alcohol and he arrested him for driving while impaired.

LAW AND ANALYSIS [32] The defence argued that the third branch of the Collins test of a reasonable search, that the manner in which the search iscarried out is reasonable, was breached when the police did not turn their mind to whether the ASD breath sample was contaminated bymouth alcohol from recent drinking. (The first two branches of the test being that the search was authorized by law and the law isreasonable (R. v. Collins, (SCC), [1987] 1 S.C.R. 265). [33] This issue was conclusively determined by the Ontario Court of Appeal in R. v.

Notaro, 2018 ONCA 449, where JusticePaciocco stated: If a subject has alcohol in his mouth it can distort the accuracy of a blood alcohol breath test. Mr. Notaro contends that it is therefore aCharter violation for an arresting police officer administering a roadside breath test using an approved screening device ("ASD") to failto consider whether the subject has residual mouth alcohol. . . . I do not agree. Even if the arresting police officer, Cst. Kovacic, failed to turn her mind to the presence of residual mouth alcohol, shehad reasonable grounds to arrest Mr.

Notaro and to make an evidential breath demand. (At paras. 1 – 2) [34] I agree with the legal analysis and conclusion of Justice Paciocco: . . . the existence of reasonable and probable grounds does not turn upon whether an arresting officer has considered the possibility ofresidual mouth alcohol or its effects. I say this for two main reasons. First, it is settled law that arresting officers do not have a duty to inquire into the presence of residual mouth alcohol; it makes no sense totreat a failure to consider something that there is no duty to inquire about to be a Charter violation.

Second, the reasonable and probable grounds test does not turn on the quality of the inquiry, such as whether the arresting officer askedherself all of the questions that a prudent person would. It turns, instead, on whether the arresting officer subjectively has an honestbelief that the suspect has committed an offence and whether, objectively, there are reasonable grounds for that belief. (At paras. 23-25) [35] In this case, Cst.

McKane testified and I accept his testimony, that he believed, based on the ASD red fail result, that Mr.Cvitan was driving while his ability to do so was impaired by alcohol. [36] It was also an objectively reasonable belief.

Justice Paciocco summarized the law on this issue as follows in paragraph 43 ofNotaro: In my view, the effect of the law relating to the objective component of the reasonable grounds test can be put this way: • If the information known to an arresting officer about a suspect's residual mouth alcohol would make it unreasonable for theofficer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not thearresting officer turned her mind to the presence or effect of residual mouth alcohol.

• If it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial. [ 37 ] An officer must believe that the ASD results are reliable. ( Notaro at para. 48 ) Cst. McKane believed them to be. [ 38 ] I only add that in the Notaro case, the officer had seen the driver leave a bar ten minutes before getting in his car and performing the ASD.

The Court of Appeal found that it would be speculative to infer that the driver had consumed alcohol ten minutes before he took the ASD. In this case, Cst. McKane did not observe anything to alert him that the ASD results may be compromised. [ 39 ] I do not accept that his belief was unreasonable given the later discovery of a partially consumed beer in the console. First, it was not the type of beer that Mr. Cvitan was drinking that evening and it is more likely to be connected to the intoxicated passenger. But more importantly, the possibility that Mr.

McKane consumed that beer, and consumed it within the preceding 15 minutes is speculative, and does not undermine reasonable reliance on the ASD fail result. [ 40 ] Accordingly, Cst. McKane was entitled to rely on the ASD fail result. He had reasonable grounds to believe that Mr. Cvitan was impaired by alcohol. Therefore the arrest was legal and the demand to provide a formal breath sample was also legal. [ 41 ] There was no breach of

section 8 of the Charter . EVIDENCE ON RIGHT TO COUNSEL [ 42 ] Cst. McKane’s testimony with respect to providing Mr. Cvitan his right to counsel on direct examination was brief, “I provided his right to counsel.” When he was asked if Mr. Cvitan spoke to a lawyer, the officer testified that he did not have it noted, but he recalled that he offered Legal Aid and he offered a phone book to phone a lawyer, and Mr. Cvitan just kept saying he wanted to speak to a friend. “I told him you don’t do that when you’re under arrest; you speak to a lawyer and that’s it.” When Cst. McKane was asked if he asked Mr.

Cvitan why he wanted to speak to his friend, Cst. McKane said he did not recall exactly what he said. [ 43 ] Cst. McKane did not read the rights and cautions from the back of his police officer’s note-book, nor did he make any notes of what he told Mr. Cvitan, nor Mr. Cvitan’s responses. “I went by memory.” [ 44 ] On cross-examination, Cst. McKane testified that he provided the right to counsel as follows: You have a right to speak to a lawyer of your choosing. If you don’t know a lawyer, I can provide you with Legal Aid in privacy for a free consult. Do you understand that? Yeah. Would you like to call a lawyer?

At that point there, um, I don’t recall exactly what he said but it was something to the tune of he wanted to speak to a friend not a lawyer, and then I provided him the police caution. Q. So, when you asked him if he wanted to speak to a lawyer, his response was, “I’d like to call a friend of mine.” A. Yeah. Q. And do you recall him telling you the friend of his was a police officer, a Winnipeg Police Service police officer? A. Now that you mention it, it was, I think so, I don’t... Q.

And the reason he wanted to speak to the Winnipeg Police Service police officer is to get advice as to who he should call for a lawyer. A. Oh, okay. Q. That’s what he told you? A. Okay. That’s, I don’t recall that happening. It may have happened. Q. And then you indicated you couldn’t do that. A. Yeah. When somebody’s in our custody they, you can speak to a lawyer, that’s it. Q. And so if somebody needs to call their parents to get a lawyer referral or to call a spouse to get a lawyer referral or to call a police officer to get a lawyer referral, you don’t allow that? A.

Well, how do I know who they’re calling and again, I don’t, I’m sure if it was explained to me in those terms, um, that would have been permissible, but I don’t recall. I recall him saying “I want to speak to a friend”, and again, now that counsel mentions it, I think that perhaps a police officer was mentioned. Q. But you didn’t engage him in any discussion about that; you just told him you couldn’t do it? A. I told him and the supervisor there at the time told him the same thing. You can speak to a lawyer via the phone book or we’ll provide you with Legal Aid and their phone number and a phone in privacy.

Q. So, he never actually said, “No”, he didn’t want a lawyer? A. Uhm, I don’t recall verbatim what he said. Q. At any time during your dealings with him, he at no time ever said to you, “No, I don’t want a lawyer”? A. Again, I don’t recall. If Mr. Cvitan had said to me I want to speak to Legal Aid or any lawyer, or “Give me a phone book,” or anything like that, then that would have been permitted, but I don’t know who people are phoning when I just hand them a phone, so. Q. Well, you never handed him a phone. A. No. Q. And he never actually, as far as to your knowledge, was able to speak to a lawyer that night.

A. Not to my knowledge, no. Q. Your supervisor got involved in this – is that because he repeatedly asked to speak his friend the police officer? A. Yeah. Yes. And my supervisor at the time reiterated, “Listen, you can phone a lawyer, that’s it. You can phone your friend once you’re released. You’ll be released very shortly.” This whole ordeal took about an hour. “So if you want to phone a friend, phone when you’re not in our custody,” is what I recall of the conversation happening. [ 45 ] Mr.

Cvitan initially testified on direct examination that once he was told he had failed the ASD he immediately asked if he “could make a phone call” and he was denied that right. He was told he had to provide another sample (which I infer was the second breath sample) in the Check Stop van. [ 46 ] When he was asked by defence counsel to provide more detail about the road-side conversation, it went as follows: Q. You were told you were under arrest, and who speaks next, you or the officer? A.

He was the one who spoke next, I didn’t really say anything; I just listened to what he had to say and followed his directions and instructions. Q. Did he mention lawyers at that point? A. No. Q. So, who talks about lawyers first? A. I did. I indicated... on the second time when I asked if I could phone a friend, he asked me who and I indicated to him a police officer friend, so I could get advice on who I could hire as a lawyer or represent me because obviously I realized I needed some kind of legal counsel of some sort about this situation I was in. And I was denied the right. Q. What was his reaction? A.

He said “No.” Q. Did you raise that issue again? A. A third time after I was released from the Check Stop van where I had provided two breath samples coming down the stairs and they said it would be a few more minutes and I said, “Can I make a phone call now?” and he said, “No, not yet.” So, I asked three times and I was denied three times to make a phone call. [ 47 ] Mr. Cvitan testified that he did not speak to a lawyer that night and he wanted to.

He was never given that opportunity. [ 48 ] When it was suggested to him on cross-examination that he asked to make a phone call, but not to a lawyer, he testified that the second time he did ask for a lawyer. He said that was to Cst. McKane after he provided his breathalyzer samples when he left the Check Stop van. [ 49 ] The question and answer was as follow: A. He said, “Who do you want to phone?” ‘Cause I asked him the first time, like, “I’d like to phone a police officer friend of mine to get some advice about a lawyer,” and he said, “No.” Q.

So you told the officer that you wanted to speak to a police officer after you had already provided your two breath samples? A. That’s correct. He’s the one I initially asked as well, first of all. Q. So, you told the officer the first time you wanted to make a call from your personal phone they said, “No.” A. I just said, “Can I make a phone call?” and he said, “No.” Q. And then when you got out of the van after providing your breath samples you asked again, can I phone my friend, he’s a police officer?

A. No, I said, “Can I make a phone call?” and he said, “Who do you want to call?” And I said I’d like to phone a police officer friendof mine to get some advice about legal counsel and he said “No.” He said something to the effect, “We’re not quite done here yet.” [50] He testified that Cst. McKane did not tell him anything about a lawyer, that he was the one who asked. His testimony on thispoint remained unchanged during cross-examination. He testified that Cst. McKane did not say anything about a lawyer, Legal Aid or aright to counsel. LAW AND ANALYSIS [51] A person seeking a Charter remedy must prove a breach of their Charter rights on a balance of probabilities. [52]

Section 10(

b) of the Charter provides a person the right on arrest or detention to retain and instruct counsel without delay andto be informed of that right. The jurisprudence interpreting the right has established that police have a duty to: 1) Inform the detainee of their right to counsel. 2) Give the detainee who wishes to retain and instruct counsel a reasonable opportunity to exercise that right. 3) Refrain from obtaining evidence from the detainee until they have spoken with their lawyer. R. v.

Evans, (SCC), [1991] 1 S.C.R. 869 at para. 42. [53] The right to exercise the right to obtain counsel includes the right to consult with a third party to obtain the name of a lawyer orotherwise facilitate the implementation of the right. R. v. Hughes, 2014 ABQB 166 R. v. MacLaren, 2001 SKQB 493 R. v. Leemhuis, [1984] BCJ 1146 (BCSC) at para. 13 R. v. LaPlante, (1987) (SK CA), 40 CCC (3d) 63 (Alta.QB) See also R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435 at para. 8. [54] This is not to suggest that a detainee is always entitled to make a call to someone other than a lawyer, even where they indicatethat it is for the purpose of obtaining the name of a lawyer. There may be cases where contacting certain people would interfere with theinvestigation of a crime. That is not the case here however. R. v. Kumarasamy, 2002 CarswellOnt 368 at para. 26 (Ont.S.C.J.). [55] The Crown’s position is that Mr. Cvitan did not ask to speak to a friend to facilitate his right to counsel. [56] Mr.

Cvitan testified that he told the police he wanted to call a friend of his who is a police officer, to get the name of a lawyerto call. Cst. McKane on cross-examination recalled that Mr. Cvitan had said something about the friend being a police officer. He couldnot remember if Mr. Cvitan mentioned that he wanted to call the police officer friend who could give him the name of a lawyer. [57] Cst. McKane did not have notes. His recollection of providing Mr. Cvitan’s “rights” was very general and if the information heactually provided to Mr. Cvitan was as he testified in court, the information was cursory.

On balance, I believe that Mr. Cvitan asked tospeak to the friend so that he could get the name of a lawyer to call. [58] Moreover, I am not sure that Cst. McKane believed he had a duty to allow Mr. Cvitan to contact a friend to put him in touchwith a lawyer. Cst. McKane’s testimony on this point was that he would only facilitate a call to a lawyer. Several portions of histestimony suggest that a person is only allowed to contact a lawyer. [59] Only when pressed on cross-examination, he testified that, “. . .

I’m sure if it was explained to me in those terms, um, thatwould have been permissible, but I don’t recall.” [60] Although I do not accept everything that Mr. Cvitan testified to, I do accept that he asked to speak to a police officer friend whocould give him the name of a lawyer to call. Mr. Cvitan made this point several times in his testimony. [61] Mr.

Cvitan has met his burden of convincing me on a balance of probabilities that he made this request. [62] Once a person asserts their right to retain and instruct counsel, the police have an obligation to refrain from obtaining anyfurther evidence until the person has exercised that right. R. v. Prosper, (SCC), [1994] S.C.J. 72 at para. 44. [63] Cst. McKane did not refrain at that point. His testimony and his subsequent actions are consistent with Mr. Cvitan havingwaived his right to retain and instruct counsel.

[ 64 ] The burden lies with the Crown to prove that any waiver of counsel is unequivocal. There was no waiver of counsel in this case. Cst. McKane was asked directly whether Mr. Cvitan had ever said he did not want to speak to a lawyer; the officer’s answer was evasive. I infer from his answers that Mr. Cvitan did not at any time state that he did not wish to speak to counsel. [ 65 ] Although Mr.

Cvitan testified on cross-examination about the timing of the second request to speak to his friend to facilitate counsel and this request appears to have been made after he provided his breathalyzer samples, I am still satisfied that he made at least one earlier request to speak with his police officer friend to facilitate his right to counsel. [ 66 ] Cst. McKane’s evidence, although largely credible, was unreliable. He did not have notes of any of the words he spoke or the interaction between he and Mr.

Cvitan with respect to right to counsel, he had very little independent recollection and he agreed his recollection was possibly not accurate. [ 67 ] I am satisfied on a balance of probabilities that Mr. Cvitan’s right to counsel protected by

section 10(

b) was violated. The totality of the evidence suggests that Mr. Cvitan asserted his right and the police rushed him, did not consider that the right to counsel could include his right to contact his friend to facilitate his right to counsel, and incorrectly treated the fact that Mr. Cvitan did not exercise his right to counsel within the narrow parameters offered to him as a waiver of that right. [ 68 ] Subsequent to the breach of that right, Mr. Cvitan was further observed by the police and provided two samples of his breath. Defence counsel is seeking exclusion of the results of those tests.

SECTION 24(2) EXCLUSION OF EVIDENCE [ 69 ] Section 24(2) of the Charter provides as follows: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [ 70 ] A discussion of the objectives of section 24(2) can be found in R. v.

Grant , 2009 SCC 32 where Chief Justice McLachlin and Justice Charron stated: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. . . .

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system. (At paras. 68 – 70). [ 71 ] Grant suggests that the following three avenues of inquiry assist in determining whether evidence should be excluded: 1) the seriousness of the Charter -infringing state conduct (admission may send the message the justice system condones serious state misconduct); 2) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that individual rights count for little); and 3) society’s interest in the adjudication of the case on its merits. [ 72 ] The right to counsel is one of the most fundamental rights in Canadian law.

In considering the seriousness of the Charter violation in this case, I have determined it was a serious breach. In this case, I have determined that Cst. McKane’s denial of Mr. Cvitan’s Charter rights to obtain and retain counsel was not deliberate. At the same time however, his actions that night demonstrate a rushing and brushing off of any request other than a precisely-stated request to speak with a lawyer. The provision of Charter rights is a duty imposed on police and that duty is taken seriously by the Court because it underpins the Rule of Law in a democratic society.

Form over content does not rule when it comes to providing citizens their constitutionally-protected rights. Cst. McKane is a very senior police officer with special training and certifications in the interdiction of impaired driving. It is important that he not only understand and exercise the aspects of criminal investigation correctly, but also the rights of the citizens with whom he has contact. Mr. Cvitan was detained for an ASD and then immediately arrested and handcuffed. He had an immediate right to retain and instruct counsel to discuss his jeopardy. This right was denied to him.

This investigation took place as part of a Check Stop program. One wonders how many other drivers that night were similarly denied their right to consult with lawyers in the rush to process them. Or how many other drivers might similarly be treated by this traffic officer. [ 73 ] I have to regard the denial of Mr. Cvitan’s right to counsel as a “reckless disregard of Charter rights,” to quote Justices McLachlan and Charron at paragraph 74 of Grant . The Court must be concerned whether this is a pattern of disallowing persons to contact third parties to obtain counsel.

Also quoting the Grant decision, from paragraph 75 : . . . ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good

faith: R. v. Genest, (SCC), [1989] 1 S.C.R. 59 (S.C.C.), at p. 87, per Dickson C.J.; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3 (S.C.C.), at pp. 32-33, per Sopihka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 (S.C.C.), at para. 59.Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require thatthe court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tendsto support exclusion of the evidence.

It should also be kept in mind that for every Charter breach that comes before the courts, manyothers may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition ofthe need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of apattern of abuse tends to support exclusion. [74] This is a serious contravention of rights.

Admitting evidence that was obtained in violation of the right to counsel as it washere, would undermine confidence in the rule of law. [75] As for the impact of the breach on Mr. Cvitan’s Charter-protected interests, I begin by identifying what those interests are.They are twofold in this case. The first interest is that protected by

section 10(b), the interest in having legal advice when one isdetained, arrested, handcuffed, and a demand to provide incriminating evidence is made. The other interest is the interest in maintainingone’s privacy and bodily integrity protected by

section 8 of the Charter. In this case, Mr. Cvitan did not have an opportunity to consultwith a lawyer in circumstances where his liberty was constrained, he was arrested and handcuffed and he was asked to provideincriminating evidence. The impact of the breach of his right to counsel was serious. On the other hand, his interests in bodily integrityand privacy were only minimally impaired by the taking of a breath sample. (See para. 11, Grant) [76] Even though the legal advice that Mr.

Cvitan would have obtained may have been that he had limited options, that does notpreclude the requirement that he be given the right to consult counsel. The Alberta Court of Appeal addressed this issue in R. v. Berger,2012 ABCA 189 at paragraphs 24 – 25: While any lawyer contacted by the appellant would have told him that his options were limited with regards to non-participation in theface of a breathalyzer demand, that does not excuse a Charter violation.

The lawyer could have provided other critical advice, includingthe importance of remaining silent, strategies for interrogation and practical advice about securing release from custody. More importantly, to accept the argument that the Charter breach would not have mattered because both refusing to blow, and achievinga fail rating after blowing result in a criminal consequence, would be to insulate s. 10(

b) Charter breaches in the course of aninvestigation of an over .08 charge from any consequence because the accused person has little choice but to eventually provide a breathsample in any event. That is not the law: Prosper; R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 (S.C.C.); R. v. Cobham, (SCC), [1994] 3 S.C.R. 360 (S.C.C.); R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 (S.C.C.). [77] The last consideration is the impact of excluding the breath sample results on the public interest in adjudicating the case on itsmerits. The evidence is reliable. Without it, the Crown does not have a case of driving over .08.

The Court recognizes the deterrent effectof a successful prosecution on impaired driving. [78] However, having found that the breach was serious and the impact on Mr. Cvitan’s right to have legal advice was serious, Ihave determined that on balance, the public’s confidence in the administration of justice would be harmed by admission of this evidence. DECISION ON THE VOIR DIRE [79] The breath sample evidence is excluded. “Original signed by:” C.A. DEVINE, P.J.